Arizona citizen., 1874-02-07

between the Yuma and Yavapai terms, was absolutely too brief to enable the United States district attorney to transact the United States business at one of these courts and reach the other in time for it. the legislature was invited to join the judges of the supreme court in this order, not because these judges doubted their power to alone make the order, but to avoid every appearance of disreSpect towards the legislature, and all possibility of eXception-such as has been taken in the present case. The leglS- lature refused to act and the judges of the supreme court, not dOubting their authori- ty, made and promulgated the following order.
 The opinion then gives the order in full, and follows by explaining the necessity for such order and then continues: The authority of this court to make the order in question is derived from the Act of Con- greSs of August Is, 1856, which is as fol- lows: "Section 5. That the judges of the supreme court in each of the Territories, or a majority of them shall when assem- bled in their respective seats of govern ment, fix and appoint the several times and places of holding the several courts in their respective districts and limit the duration of the terms thereof; provided that the said courts shall not be held at more than three places in any Territory; and provided further that the judge or judges holding such courts, shall adjourn the same without day at any time be- fore the expiration of such terms, whenev- CT in his or their opinion, the further con- tinuanCe thereof is not necessary" Then follows history of the act, with referen- ceS to opinions of other courts relative to the subject and concludes by saying: The supreme judges of this Territory therefore had the power to appoint the regular terms of the district courts for each of the several entire districts, and this exception to the contrary is overruled.
 The first QCSiDnp1 inc hriaf of appellants counsel, and the one next to be considered, is as follows: The court erred in charging the jury that if defend- ant had been in possession of the said this action. To this the appellants coun- sei adds: "The owners of the property in question were tenants in common of the ditch and water right-the possession of one being the possession of all." The lat ter statement is certainly true and it is an abandonment of this exception. This unity of possession which makes the de- fendant tenant in common with the plaintiffs, protects him from all disturb ance by them or either of them. He can call upon them to account for any inva- sion of his rights, and his unity of posses sion can only be dissolved by proceedings in partition, or by amicable agreement If this is not so, then from all that appears in the case, the five years and some months which elapsed between the defen- icll1J'S bDOh lIlG Cl bhC water right in March, 1867, and the institu- ton of this suit in August, 1872, must bar the plaintiffs recovery. Compiled Laws, page 33l, Section 3. From all that appears in the present case, therefore, the defend- ant is entitled to the protection which is due to tenant in common or to the stat ute of limitations, and ill either event this exception must be and is Overruled.
 The next exception is: The court in re- jecting the evidence offered by plaintiffs of
 I,nlI 1N,- Do, ,,,1 PoStle, in which the two former refused to let defendant have any of the water claim ed by them, that POstle said he would let him have of his, and that there was no other understanding between the parties. No legal right of the plaintiffs was in- fringed by the rejection of this evidence. The defendant was not present at this meeting either personally or by represent atiOn. The declarations of the persons present, whether confined to the parties themselves or communicated to the de- fendant, could not effect his legal rights, unless it should appear that he in some way accepted or aSSented to them. ItdOeS not appear that his acceptance or assent was shown or proposed to be shown. This exception is therefore overrTled.
 The third exception is: The court erred in refusing to give the third instruction asked for by the plaintiffs ccunsel-that defendant having asserted right under the deed of DegrallO is bound by it, and that the statute of limitations does not be- gin to run until he claims under the right now set up by him." IL does not clearly appear either from the record or argument upon it, what is meant by this exception. To be at all available for the plaintiffs, it must be found to refer to some portion Of the evidence in the case. The only DOT tion of tue evidence to which this eXcep- tiOn appears to be responsive, is defen- dant'S allegation that "early in 1867, Brown offered him 8 ranch ill Chino val ley as an inducement for him to bring his family and settle there " This seems to be that which this exception describes as ''the right now set up by him." The exception assumes that this is in some way fatally conflicting with the defendants having asserted a right under the deed of Degra- lIO, and that this severed the tenancy in common which is asserted by the plain tiffs' first exception, and formed an era in the case, which put the statute Of l1m1ta- tionS in active operation. Such, however, is not the legal effect of this testimony. ants claiming at one time under Degra- Hos deed and at another under Browns promise. They are parts of one complex transaction in which the deed appears as the fulfillment of the promise previously made. The defendant might at one time assert that Browns promise was the con- sideration which actuated him; at another the $500 mentioned in DegralloS deed; at another the deed itself; and at other times any two of these; or, GSll three Of them to- gether; and yet he would forfeit no legal right and incur no legal hazard. The de- fendant in his conversations on this sub feet with Brown himself or with Browns grantees, would naturally refer to Browns promise, with strangers to DegrallO's deed, and in stating the cost of his ranch and water-right to anybody, he might allege the $500 mentioned in the deed, by which
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