hold it until such time as Mr. Cupit's attachment lien would ripen into title by sale thereunder, and until the time for redemption from the sale should expire. The receiver had the same right to the property that the bank would have had had no assignment been made. As such receiver, he had the right to insure the property for the benefit of the creditors of the bank, and to pay the premiums from any assets in his hands. Не had an insurable interest in the property, and was entitled to use it, receive rents from it, repair it, and preserve it from loss, the same as any other owner would have; and this right would continue until the title was lost by sale on the execution and the time for redemption had expired. So Mr. Cupit, as attaching or execution creditor, and owner of an equity of redemption, had an insurable interest in the property. 1 May, Ins. § 83; Trust Co. v. Boardman, 149 Mass. 158, 21 N. E. 239; Insurance Co. v. Stinson, 103. U. S. 25, 26 L. Ed. 473; Carpenter v. Insurance Co., 16 Pet. 495, 10 L. Ed. 1044. The receiver and the attaching creditor had an insurable interest, and could insure the property for their own benefit. Under such circumstances the insurance would be a personal contract between the insured company and each party insuring; and, unless there be some contract or trust relation between the insured parties to the contrary, each would hold the money derived by loss of the property by fire in their individual or official right. In such cases the contract is personal, and does not run with the title to the property. As held in Carpenter v. Insurance Co., 16 Pet. 495, 10 L. Ed. 1044, the insurance is a mere special agreement with a party seeking to insure himself against apprehended loss on account of his interest in a particular subject-matter, and not at all incidental to and transferable with the subject-matter, and in case of loss satisfaction must be to the person insured. 2 May, Ins. § 6; Trust Co. v. Boardman, 149 Mass. 158, 21 N. E. 239; Plimpton v. Insurance Co., 43 Vt. 497; King v. Insurance Co., 7 Cush. 1; McDonald v. Black's Adm'r, 20 Ohio, 185; Quarles v. Clayton (Tenn.) 10 S. W. 505, 3 L. R. A. 170. There are many cases holding that, as between a vendor and vendee, the insurance money, in case of a distribution of the property, represents the property itself, because of some express or implied contract relation existing between the parties. Many cases so hold because of a contract, express or implied, existing between the parties. In this case no such relation is shown or exists. See Grange Mill Co. v. Western Assur. Co., 118 Ill. 396, 9 N. E. 274. Had the petitioner insured the property in his own right to cover his interest therein, it could not be claimed that the receiver would have any right therein. So, where the receiver insured it, and paid the premiums out of funds in his hands belonging to the estate, the insurance became a personal indemnity to the receiver for the benefit of the creditors

of the estate he represented. Mr. Cupit is not one of the creditors who had acquiesced in the assignment. He had never consented to the assignment in any manner, and has continually opposed it on all occasions, and still continues to do so. He is not now asking to come in as a common creditor, and receive his just proportion of the estate, including the insurance money, in accordance with the provisions of the assignment; but he now demands at the hands of the court the entire fund received under the policy of insurance, while refusing to acquiesce in the assignment, and while still holding the proceeds of the sale of the real estate under his execution. The property of the bank was, in effect, conveyed in trust for such creditors of the bank as should come in and accept the provisions of the assignment. The assignee and receiver no doubt held the property in trust for such creditors, and this trust relation could not exist between the receiver and a creditor who wholly repudiates the assignment as well as the trust relation. There was no contract relation between the receiver and Mr. Cupit. The real estate in controversy was rightfully held by the receiver with the right to the use, rents, and profits thereof for the benefit of the estate until Cupit should acquire title by a sale on his execution. He held an equity of redemption, and had and would have the same rights as the bank would have had no assignment been made. An execution creditor is not entitled to possession and rents of the property levied upon before sale, and before the time for redemption has expired.

The case of Cupit v. Bank (Utah) 58 Pac. 839, is not in conflict with this position. In that case it was no doubt the intention of the court to hold that the receiver acquired no title to the property that conflicted with the right of Cupit under his attachment lien, and it did not intend to hold that Mr. Cupit would have the right to the title of the property, and the possession thereof, before sale upon his execution. Under such circumstances Cupit had no right to charge the receiver with the rents and use of the premises, which at most would about cover the expense of operating and keeping the building, etc., in repair; nor has he any right to recover the insurance money claimed in this case. As said in Collumb v. Read, 24 N. Y. 515: "If the plaintiff and the other creditors had affirmed the assignment, the trustee would have been compelled to account for these rents according to its provisions; but the plaintiff, claiming in hostility to it, must treat the trustee as a stranger, whose only fault has been in suffering himself to be made an instrument by means of which the debtor has been enabled to apply the rents towards the payment of other creditors." The receiver was not a trustee for Mr. Cupit in the sense that it was his duty to see that the money collected on these insurance policies should be held for the benefit and be paid over to Mr. Cupit to

satisfy the execution which the property might have paid if the building had not been consumed by fire. After careful consideration of the very able arguments and briefs of counsel, we can arrive at no other conclusion than as before expressed. The judgment of the district court is affirmed, with costs.

rate property of the wife is community property, under the provisions of section 2497, Rev. St., and hence liable for or subject to the payment of the husband's debts. Said section is as follows: "All other property acquired after marriage by either husband or wife, including the rents and profits of the separate property of the husband or wife, is community property; unless by the instru

(7 Idaho, 421)

THORN v. ANDERSON, Sheriff, et al. (Supreme Court of Idaho. Dec. 17, 1900.) MARRIED WOMAN'S SEPARATE PROPERTY-INCREASE-EXEMPTED FROM EXECUTION AGAINST HUSBAND.

Under the provisions of section 4479, Rev. St., the increase of a married woman's separate property (in this case consisting of cattle) is exempt from execution against her husband. (Syllabus by the Court.)

Appeal from district court, Cassia county; C. O. Stockslager, Judge.

Action by Elizabeth R. Thorn against Oli7er P. Anderson, as sheriff, and others. Judgment for plaintiff. Defendants appeal. Affirmed.

Hawley & Puckett, for appellants. W. L. Maginnis, for respondent.

SULLIVAN, J. This action was brought by the respondent against the appellants to recover the sum of $2,500, the alleged value of 48 head of cattle taken by the defendant Anderson, as sheriff, under a writ of attachment, and thereafter sold under execution issued out of the district court of Cassia county against the property of A. S. Thorn, the husband of respondent. The answer put in issue the material allegations of the complaint. The cause was tried by the court with a jury, and a verdict was rendered in favor of the respondent for the sum of $832.50 damages, and judgment was duly entered in favor of respondent for that sum and costs of suit. A motion for a new trial was denied, and this appeal is from the judgment and an order denying the motion for a new trial.

It appears from the record before us that in the year 1888 George Rutherford, an uncle of respondent, made her a birthday present of 10 cows and 10 calves, which were taken to the ranch of her husband, A. S. Thorn, and branded with his brand and cared for by him, and the increase branded by him, and some of them disposed of by him up to the time of the levy of the execution aforesaid. It is conceded that all of the cattle levied upon and sold as aforesaid, except 5 head thereof, were the increase of said 10 cows and calves. Counsel for appellants do not seriously contend that said original 10 cows and 10 calves were not the separate property of Mrs. Thorn, the respondent; but they contend that the increase of the sepa

by the wife it is provided that the rents and profits thereof be applied to her sole and separate use; in which case the management and disposal of such rents and profits belong to the wife and they are not liable for the debts of the husband." Counsel for appellants, as well as counsel for respondent, overlooked section 4479, Rev. St., which provides as follows: "All real and personal estate belonging to any married woman at the time of her marriage, or to which she subsequently becomes entitled in her own right, and all the rents, issues and profits thereof and all compensation due or owing for her personal services, is exempt from execution against her husband." Said sections 2497 and 4479, having been adopted as one act of the legislature, must be construed in pari materia; and by the provisions of said section 4479 the rents, issues, and profits of the separate property of the wife are exempted from execution against the husband. The judgment of the court below must be affirmed, and it is so ordered. Costs of this appeal are awarded to the respondent.

HUSTON, C. J., and QUARLES, J., concur.

(7 Idaho, 453) ANDREWS v. BOARD OF COM'RS OF ADA COUNTY.

(Supreme Court of Idaho. Dec. 28, 1900.) STATUTE-TITLE OF ACT-BRIDGES-LETTING CONTRACT.

1. The title to an act approved March 14, 1899 (Sess. Laws 1899, p. 443), held a sufficient compliance with the provisions of section 16, art. 3, Const. Idaho, in that it states the subject of said act.

2. Under the provisions of section 1762, Rev. St., before the board of commissioners can legally advertise for competitive bids for the erection of a bridge they must adopt plans and specifications of such bridge, and said notice must contain explicit specifications of the proposed bridge.

3. If no plans and specifications are adopted, the board has no standard by which the lowest bid can be determined.

4. In the matter of advertising for bids and letting contracts for public buildings or improvements, the provisions of section 1762 applicable thereto must be substantially followed. (Syllabus by the Court.)

Appeal from district court, Ada county; George H. Stewart, Judge.

Action by De Forest H. Andrews against the board of commissioners of Ada county. Judgment for plaintiff. Defendant appeals. Affirmed.

S. H. Hays, Atty. Gen., and E. J. Frawley, for appellant. Fremont Wood and Milton G. Cage, for respondent.

SULLIVAN, J. This is an appeal from a judgment of the district court that reversed and annulled an order of the board of county commissioners of Ada county authorizing a contract with the Gillette-Herzog Manufacturing Company for the construction of a wagon bridge across Boise river, near Boise City, at the agreed price of $15,335. It is stipulated that it was the purpose of the board of commissioners to construct said bridge under the authority of the provisions of an act approved February 7, 1899, entitled "An act providing for the issuance of negotiable coupon bonds for the funding and refunding of county indebtedness, amending chapter six, title 13, Revised Statutes of Idaho, and the subsequent amendment thereto approved March 14, 1899."

First. It is contended that the title of said act of February 7, 1899, is not sufficient to support the provisions of section 3604 thereof, which authorizes the construction of bridges and other public improvements, and the issue of bonds in payment therefor, as that subject or purpose is not expressed in the title; that the title of said act recites that the purpose of the act is "for the issuance of negotiable coupon bonds for the funding and refunding of county indebtedness"; and that the issuance of bonds for the purpose of building bridges and the construction of such other public improvements as are named in said section is not included in said title, and for that reason said provisions are void, under the provisions of section 16, art. 3, of the constitution of Idaho, which provides that every act shall embrace but one subject and matters properly connected therewith, which subject must be expressed in the title. Conceding, for the purposes of this case, that said title refers only to the issuance of coupon bonds for funding and refunding county indebtedness, and does not include the issue of bonds for the purpose of constructing such public improvements as are mentioned in said section 3604 when such proposed indebtedness exceeds the income or revenue of the county for that year, we find that said act of February 7th was amended by an act approved March 14, 1899, the title to which act is as follows: "To amend section 3604 (concerning issue of bonds by counties for certain purposes in excess of the income or revenue of the county for the year) in section 1 of an act of the legislature of the state of Idaho, entitled 'An act providing for the issuance of negotiable coupon bonds for the funding and re-funding of county indebtedness, amending chapter 6, title 13 Revised Statutes of Idaho,' approved February 7th, 1899, by adding thereto authority to issue bonds to assist any city or village in constructing a free bridge over any navigable stream, within, or partly within or adjoining 63 P.-38

the limits of any such city or village." It will be observed that it is stated in the title of the last-mentioned act that it is an act to amend section 3604, and also recites that the subject of said section is concerning the issue of bonds by counties for certain purposes in excess of the income or revenue of the county for the year. The subject, object, or purpose of said section is sufficiently set forth in said title, and comes within the requirements of said section 16, art. 3, of our constitution. We therefore hold that said title is sufficient. State v. Doherty, 2 Idaho, 1105, 29 Pac. 855. See, also, 23 Am. & Eng. Enc. Law, p. 234 et seq.

The second point raised involves the authority of the board to provide for an issue of bonds for the construction of the bridge in question until such time as the contract price for the bridge has been first legally determined by the board. It is contended that it was the duty of the board first to determine the necessity for the construction of said bridge: then to adopt plans and specifications, advertise for proposals for construction thereof in accordance with such plans and specifications, and thereafter enter into a conditional contract for the construction of such bridge subject to the ratification by the electors of the county, and then submit the question of the issuance of a sufficient amount of bonds to pay such contemplated liability, after deducting all funds in the county treasury available for that purpose. It is evident that the amount necessary to construct the contemplated improvement must be ascertained in some manner before the amount of bonds to be issued can be determined; and, before persons desiring to bid for such contracts can make competitive bids, they must have plans and specifications of the contemplated public improvement before they can make an intelligent bid. It therefore follows that the board must adopt plans and specifications sufficient to enable a contractor to make an intelligible estimate of the cost of such public improvement. If each several bidder bids on separate plans and specifications, it will not be contended that such bids are competitive; and where, as in the case at bar, bids for the construction of a two-span 500-foot bridge were called for, and a three-span bridge less than 500 feet long was let under said call, no competitive bidding was allowed or had. It is evident that said contract was not let to the lowest responsible bidder for the reason that no proposals were invited for the construction of a three-span bridge less than 500 feet in length. In discussing the question of competitive bidding for the construction of a public building, the supreme court of California has very pertinently stated in Ertle v. Leary, 114 Cal. 238, 46 Pac. 1, as follows: "To permit each bidder to propose the plans and specifications according to which he will construct the building not only prevents competition in bidding for the work, but gives to

the board an opportunity for the exercise of favoritism in awarding the contract, instead of being required to let it to the lowest responsible bidder, for, since neither of the bidders can know the plans and specifications under which the others are making their bids, there is no standard by which the board can determine which is the lowest bid." See, also, Hardware Co. v. Erb, 54 Ark. 645, 17 S. W. 7, 13 L. R. A. 353.

The third point raised involves the question of procedure in submitting to the electors the question of issuing bonds. It is shown by the record that the order for the election, and also the election notices, stated that specifications for the construction of said bridge were on file in the office of the clerk of said board, when, as a matter of fact, no plans or specifications had been adopted. The disposition of the second point raised disposes of this specification of error in favor of respondent's contention.

The fourth assignment of error is to the effect that said contract was void, for the reason that plans and specifications for said bridge were not adopted by the board prior to the notice for sealed proposals for the construction of said bridge, and for the further reason that the bridge contracted for does not comply with the plans and specifications adopted by the board. That assignment of error is well taken. The contract is void for both reasons stated in said specification. The record shows that the contract was let to the Gillette-Herzog Manufacturing Company upon plans submitted by it, and not upon the specifications stated in the notice inviting bids for the construction of said bridge. No standard having been fixed by the board by which to determine the lowest bid made, the commissioners could not determine who was the lowest bidder, and for that reason the contract was not let to the lowest responsible bidder, and is void for that reason. The trial court held that said contract was void for the reason that the board failed to follow the provisions of section 947, Rev. St., in letting the contract. Said section is as follows: "No bridge, the cost of the construction or repair of which will exceed the sum of one hundred dollars, must be constructed or repaired except on order of the board of commissioners. When ordered to be constructed or repaired, the contract therefor must be let out to the lowest bidder, after reasonable notice given by the board of commissioners, through the road overseer, by publication at least two weeks in a county newspaper; and if none, then by three posted notices, one at the court house, one at the point to be bridged, and one at some other neighboring public place; the bids to be sealed, opened, and the contract awarded at the time specified in the notice. The contract and bond to perform it must be entered into to the approval of the board of commissioners." We gather from the record that the board intended to let the contract under

the provisions of section 1762, Rev. St., which section is as follows: "When a petition signed by at least one third of the taxpayers who are qualified voters of any county is presented to the board at any regular meeting, asking that a court house, jail, or other public buildings or improvements be built for the use and benefit of the county the cost of which will exceed one thousand dollars, the board must not act upon the said petition until the next regular meeting; and at least for four weeks before the next meeting the clerk of the board must give notice by publication in a newspaper or otherwise, as ordered by the board, of presentation of said petition, and the nature and cost of said buildings, or improvements contemplated. and that the petition will be acted upon by the board at their next regular meeting. If they deem the interest of the county demands it, the board must order the said improvements or buildings to be made or erected, and must thereupon advertise for sealed proposals for making said improvements or erecting said buildings. Such notice for sealed proposals must be given by the clerk in a newspaper or otherwise, as ordered by the board, for at least thirty days, and must contain explicit specifications of the improve ments or buildings to be made or erected, and state the day when said proposals will be opened. Proposals may be received until the opening of the session on the day they are to be opened, and they must be opened and considered publicly, and the contract let to the lowest responsible bidder, unless they all be rejected, which the board shall have power to do if they are too high; and the board may proceed to advertise again or let the same by private contract, provided it be for a less sum than that proposed by the lowest bidder. The person or persons awarded the contract must give a good and sufficient bond to be approved by the commissioners for the completion of the contract according to the specifications. The building or improvements may be paid for by warrants upon the proper fund, or by the levying of a special tax, not exceeding fifty cents on each one hundred dollars of assessable property, to be paid into a special fund for that purpose; against which warrant may be drawn in payment for buildings or other improvements constructed or made under the provisions of this section." Said sections must be read in the light of the provisions of section 3, art. 8, of the constitution, which section is as follows: "No county, city, town, township. board of education or school district, or other subdivision of the state, shall incur any indebtedness or liability in any manner or for any purpose exceeding in that year the income and revenue provided for it for such year without the assent of two thirds of the qualified electors thereof, voting at an election to be held for that purpose, nor unless, before or at the time of incurring such indebtedness, provision shall be made for the