That an officer dipping sheep under a gubernatorial proclamation does not act in a quasi judicial capacity, but in a ministerial, and hence liable for negligence: See Bair v. Struck (Mont.), 74 Pac. 69.

IV. Construction of Statutes.

Where a statute provided that no Texas cattle should be driven through the state that might have come in between the first days of March and December of each year, it was meant to prohibit only such as should come into the state between those dates, and was not a prohibition against driving through the state any Texas cattle during that time, regardless of when they were brought into the state: Kansas Pac. Ry. Co. v. McCoy, 8 Kan. 538. And where a statute forbidding the importation of such cattle, gives a right of action for all damage resulting in any manner therefrom, it is not limited to any particular kind of disease, nor to any mode by which it may be communicated: Sangamon etc. Co. v. Young, 77 Ill. 197. In State v. Turner, 63 Kan. 233, 65 Pac. 217, a statute made it a misdemeanor to drive into the state any cattle liable to impart Texas fever, and made the fact that the cattle were brought in from south of a certain parallel of latitude, between the first of February and December of each year prima facie evidence that they were capable of communicating the fever, and that the owner had full knowledge thereof. The defendant contended that, as the information charged a driving into the state, knowing that they were capable of communicating Texas fever, the state should be confined to proving actual knowledge on his part. The court, however, held that as the statute provided that driving was prima facie evidence of knowledge, the admission of that fact in evidence was correct as proving it.

V. Jurisdiction.

The legislature enacting a statute for the protection of livestock may, within the limits of the constitution, determine the forum which shall try the cases arising thereunder; and if brought in any other courts than those prescribed, there is a want of jurisdiction: Evans v. Adams, 21 Kan. 119.

VI. Expense of Quarantine.

Where a statue provides that when any animals are quarantined upon the premises of the owner, he shall pay the expense, and when taken from such premises, it shall be paid by the city, if they are quarantined on his premises and subsequently shipped away, by order of the authorities, he is not entitled to be reimbursed, the reimbursement applying only to animals isolated upon premises other than those of the owner when the order of isolation was made: Kenneson v. Inhabitants of Framingham, 168 Mass. 236, 46 N. E. 704.

WILLIAMS v. OLDEN.

[7 Idaho, 146, 61 Pac. 517.]

ATTACHMENT-Levy-Creation of Lien.-The levy of a writ of attachment must be in substantial compliance with the provisions of the statute, to create a lien. (p. 251.)

ATTACHMENT-Notice of Levy-Creation of Lien.-If the statute requires copies of a writ of attachment, a description of the property and notice of the levy to be served on the occupant of the land attached, if there is one, and if none, the posting of such copies in a conspicuous place, on the land, it is not a sufficient compliance with the statute to create a lien, to serve such copies on the owner who is not an occupant of the land. (p. 251.)

ATTACHMENT-Lien.-Entry of Judgment will not cure defects in the levy of a writ of attachment, and make what is no lien a valid one. (p. 252.)

J. L. Niday, for the appellant.

B. F. Olden, for the respondent.

147 SULLIVAN, J. This is an action to quiet title, and was submitted to the trial court on stipulated facts, and judgment was entered in favor of the defendant, who is the respondent here.

The only question submitted for decision is whether a valid levy of a writ of attachment can be made on land, not containing an occupant, by filing with the recorder of the county in which the land is situated a copy of the writ, together with a 148 description of the land attached, and a notice that it is attached, and by leaving a similar copy of the writ, description, and notice with the defendant, who does not reside on the land. Section 4307 of the Revised Statutes provides, inter alia, as follows: "The sheriff to whom the writ is directed, and delivered, must execute the same without delay, and if the undertaking mentioned in section 4305 be not given, as follows: 1. Real property, standing upon the records of the county in the name of the defendant, must be attached, by filing with the recorder of the county a copy of the writ, together with a description of the property attached and a notice that it is attached; and by leaving a similar copy of the writ, description and notice with an occupant of the property, if there is one, if not, then by posting the same in a conspicuous place on the property attached." It will be observed that said section provides the specific acts that must be done and performed by the officer in levying the writ, and among other acts it provides that the

officer must leave a copy of the writ, description, and notice with an occupant of the property, if there be one; if not, then he must post a copy of such writ, description, and notice in a conspicuous place on the property attached. A substantial compliance with the said provisions is necessary to make a valid levy, and the personal service of a copy of the writ, description, and notice on the defendant in the action, who is not an occupant of the land sought to be attached, is not equivalent to the posting of such copies in a conspicuous place on the land. Had the legislature intended that personal service would satisfy the requirements of that provision of the law, it certainly would have used terms clearly expressing its intention. In Watt v. Wright, 66 Cal. 202, 5 Pac. 96 (which was a case involving substantially the same question as the one at bar), the supreme court of California said: "The failure of the officer to do these things, as required by law, was fatal to the validity of the levy by attachment"; and that the acts done by the officer were insufficient to create a lien upon the property: See, also, Steinfeld v. Menager (Ariz.), 53 Pac. 495. While some of the California cases held that a strict compliance with the provisions of the statute is required to create a lien, this court does 149 not go to that extent. We hold that a substantial compliance is all our statute requires in said matter. In First Nat. Bank v. Sonnelitner, 6 Idaho, 21, 51 Pac. 993, this court held in the levy of a writ of an attachment that, if the acts required by the statute are not performed by the officer, there is no levy of the writ. Respondent cites in support of his contention First Nat. Bank v. Lieuallen, 6 Idaho, 431, 39 Pac. 1108, decided by this court. While the statement in this case may be obscure and misleading as to the levy of the attachment and the notice filed with the recorder being sufficient to give notice, still the only question raised in that case was as to the contents of the notice. The record in that case shows that copies of the writ, description of the land, and notice that the land was attached were posted in a conspicuous place on the land and the court did not intend to convey the idea that a filing of such copies with the county recorder was all that was required by the law to make a valid levy of the writ. The notice itself was attacked on the ground that it was not as full and complete as the law required. No question was raised as to the performance of the acts required by the officer in the levy of the writ.

It is also contended by respondent that, as the defendant failed to appear and move to discharge said writ, he waived all

defects in the levy thereof, and that the entry of the judgment cured any and all defects, if any there were, in the levy. We cannot agree with that contention. While the entry of judgment may cure some defects in the issuance of the writ, such entry will not cure defects in a levy of the writ, and make what was no lien a valid one. No lien is created unless the service of the writ is made in substantial compliance with the requirements of the statutes. The judgment is reversed, and the cause remanded for further proceedings in conformity with the views expressed in this opinion. Costs are awarded to appellant.

Huston, C. J., and Quarles, J., concur.

The Essentials of a Valid Attachment of real property are discussed in Baker v. Aultman, 107 Ga. 339, 73 Am. St. Rep. 132, 33 S. E. 423; Schoonover v. Óshorne, 111 Iowa, 140, 82 Am. St. Rep. 489, 82 N. W. 505; Bank of Colfax v. Richardson, 54 Or. 518, 75 Am. St. Rep. 664, 54 Pac. 359. As a rule the statutory provisions for levying an attachment, must be observed strictly, and a departure therefrom invalidates the levy: Ames v. Parrott, 61 Neb. 847, 87 Am. St. Rep. 536, 86 N. W. 503; Pullman etc. Co. v. Harrison, 122 Ala. 149, 82 Am. St. Rep. 68, 25 South. 697; note to Miller v. White, 76 Am. St. Rep. 800. For irregularities and defects avoiding attachments, see the monographic note to Fridenberg v. Pierson, 79 Am. Dec. 164-174. Every intendment of the law is in favor of the sufficiency of an attachment, where the writ issues from a court of superior or general jurisdiction, unless the record affirmatively shows want of jurisdiction: White v. Ladd, 41 Or. 324, 93 Am. St. Rep. 732, 68 Pac. 759. On judgments depending for their validity upon an attachment of property, see the monographic note to Miller v. White, 76 Am. St. Rep. 800-805.

STATE v. ALCORN.

[7 Idaho, 599, 64 Pac. 1014.]

EVIDENCE.-Answers to Hypothetical Questions, based upon facts which the evidence then before the jury tends to prove, are properly admitted in evidence. (p. 256.)

MURDER by Abortion.-On a prosecution for murder resulting from an operation to produce an abortion, the pregnancy of the deceased must be proved beyond a reasonable doubt, but need not be demonstrated to an absolute certainty. (p. 256.)

ABORTION.—Under Idaho Statutes abortion may be committed prior to the quickening of the foetus. (p. 257.)

CORPUS DELICTI may be Proved by Declarations and Circumstances and the order in which the evidence proving the material facts is introduced is not material. (p. 257.)

T

MURDER-Manslaughter.-Under an indictment for murder & erdiet of manslaughter may be sustained. (p. 258.)

MURDER by Abortion-Evidence Res Gestae.-On a prosecution or murder resulting from an operation to produce an abortion, the leclaration of the deceased, made at the time she was introduced to the accused, to the effect that she was pregnant, and which had direct reference to the contemplated transaction between the parties, is admissible in evidence as a part of the res gestae. (p. 261.) MURDER by Abortion.-An unnatural or criminal abortion procured upon a pregnant woman, is, when death results, murder in the second degree, and not manslaughter. (p. 262.)

CRIMINAL LAW.-An Erroneous Instruction Beneficial to, and not prejudicial of, the rights of the accused, is not ground for reversal of the judgment. (p. 262.)

CRIMINAL LAW-Circumstantial Evidence.-If evidence depended upon for a conviction is circumstantial, every fact necessary to connect the defendant with the commission of the alleged crime must be established to the satisfaction of the jury beyond a reasonable doubt, but this does not impose upon the prosecution the burden of proving every collateral or corroborative fact or circumstance in the case, beyond a reasonable doubt. (p. 262.)

E. McBee, for the appellant.

F. Martin, attorney general, for the state.

602 QUARLES, C. J. The appellant was tried upon an indictment charging him with the murder of one Cora A. Burke, resulting from a criminal operation performed by appellant for the purpose of bringing about an abortion; was convicted by a jury of manslaughter, and adjudged to serve a term of seven years in the state penitentiary; moved for a new trial, which was denied; and appealed, both from the judgment and from the order denying him a new trial. The record is quite voluminous, but we have given to the same our careful attention, and from the record we summarize the facts, as shown by the evidence at the trial, as follows:

603 The deceased was twenty years old, and had been married, but her husband had been dead about five months. She had one child, a son about four years old. She lived in her own home, her father and mother living with her. She was in apparent good health up to June 21, 1899. Some time in May, 1899, Mrs. Martha Johnson, at the request of the deceased, introduced the deceased to the appellant, who had been practicing medicine for a short time in the town of Harrison, in said Kootenai county. Before being introduced to appellant, the deceased inquired of Mrs. Johnson as to the appellant, asking if he was a good doctor, and stating at the time that she was preg nant, and had been about six weeks. Mrs. Johnson in connec