Opinion of the Court-Truitt, J.

tain duties of the assessors involved the exercise of their legal discretion or individual judgment, but that such legal discretion must be exercised in good faith, and if not, then an officer who fails to perform his duty is liable for such failure to faithfully perform his duties. In that case the court says: "If an officer exercises his legal discretion in good faith and without fraud, then he is performing his duty under the law, otherwise not; and if not, then he fails to perform his duty and is liable for a failure to faithfully perform his duties."

The next question for consideration is, whether the words "at least once in each year" as used in sec. 3001, Rev. Codes, refer to a calendar year. The complaint in paragraph 8 alleges two breaches of duty under sec. 3001 as to examination by the bank commissioner: (1) That said W. G. Cruse did not, at least once in each year, make an examination of said bank, and that his last examination before the bank was closed on August 31, 1910, was made on May 12, 1909; and (2) that on or before the 12th day of May, 1910, said Cruse had knowledge of the unsafe condition of said bank, its violation of the banking law, and its falsification of the books, and other acts of said bank, as hereinbefore more particularly set forth. We have already discussed the second breach set out in paragraph 8 of the complaint, and held that the facts alleged in regard thereto were sufficient to constitute a breach of the duty of the bank commissioner under sec. 3001, wherein it is provided that it shall be the duty of the bank commissioner, when he shall deem it necessary, to make an examination of state banks. From the conclusion we there reached, it follows that a cause of action is stated in the complaint regardless of the first breach of duty by said commissioner alleged in said paragraph. It is, therefore, unnecessary to discuss or consider the breach of duty first alleged in said paragraph to determine whether or not the phrase "at least once in each year" means a calendar year or once in twelve months.

There still remains for consideration the question as to whether or not in this action it was necessary that the damages claimed should be first adjudged against the bank commis

Opinion of the Court-Truitt, J.

sioner. Sec. 191, Rev. Codes, provides that the bank commissioner shall execute a bond with three conditions, as follows: (1) That he shall faithfully and impartially discharge the duties of his office; (2) pay over to the persons entitled by law to receive it all money coming into his hands by virtue of his office; and (3) conditioned further for the payment of all damages and costs that may be adjudged against him under the provisions of title 2, chap. 13 of the Political Code, and under title 4, chap. 13 of the Civil Code.

The legislature intended by the enactment of said sec. 191 to require a bond covering the faithful and impartial discharge of the duties of said office as a distinct subject matter or condition of the bond; and it next intended to require the bond to cover the paying over of all moneys coming into the hands of the commissioner, as a second distinct subject matter or condition; and, lastly, having in mind that in sec. 3005, Rev. Codes, it had provided that where the commissioner had proceeded maliciously or without reasonable cause in closing a bank and having a receiver appointed, he was liable to such bank on his official bond for any damages, expenses and costs resulting therefrom. The legislature further intended to require a bond covering such damages and costs specifically mentioned in said section 3005, or in any other section of said chapter, and did not intend anyone injured or aggrieved by the failure of the commissioner to faithfully perform his duties, to first proceed and have his damages adjudged against the bank commissioner before he could bring suit against the sureties on said bond. Said three conditions required are separate and distinct. The first words "and conditioned further" imply that it is an additional condition to the two former conditions.

We do not in this decision, in passing upon said third condition, hold that even in a cause brought thereunder, that the injured party would be required to have his damage first adjudged against the bank commissioner before proceeding against his sureties. We reserve a decision on this question until it is properly before us. Under the bond in question, the principal and surety are jointly and severally liable, and

On Petition for Rehearing-Guheen, District Judge.

an action on said bond might be brought jointly against said. bank commissioner and his sureties, or might have been brought against either of them severally.

We do not consider that the other questions presented in the brief of amici curiae, not raised by appellant and not dealing with the sufficiency of the complaint, are properly before us, and we will, therefore, not pass upon these questions further than to state that from our examination of the same, the points are not well taken when applied to this case. The judgment of the court below must therefore be affirmed, and it is so ordered, with costs in favor of respondent.

Budge, J., and Guheen, District Judge, concur.

(February 4, 1915.)

ON PETITION FOR REHEARING.

GUHEEN, District Judge.-A petition for rehearing has been filed by counsel for the appellant in the above-entitled action.

The court, after carefully considering the same, finds that all of the material questions discussed by the learned counsel for the appellant in his petition for rehearing were fully covered in the briefs and oral arguments upon the original hearing of said cause, and upon a re-examination of the entire record, we are fully satisfied that we understood the facts and applied the law to the particular facts in this case; that the decision of this court was correct and in harmony with the decisions of this court as heretofore announced.

The petition for rehearing is denied.

Budge, J., concurs.

Points Decided.

(January 20, 1915.)

M. L. HARE and JAMES JUST, Administrator of the Estate of N. A. JUST, Deceased, Respondents, v. W. R. YOUNG, ANDREW LARSON & SONS, a Copartnership, Composed of ANDREW LARSON, J. B. LARSON and J. R. LARSON; YOUNG & SORENSON, a Copartnership, Composed of ROY YOUNG and ANDREAS SORENSON, Appellants.

[146 Pac. 104.]

LEASES OF LIVESTOCK-FILING FOR RECORD-COMITY BETWEEN STATES -BURDEN OF PROOF-POSSESSION OF PERSONAL PROPERTY-PRESUMPTION OF OWNERSHIP-ATTORNEY'S FEES-IMMATERIAL ISSUES -FINDINGS OF FACT.

1. Leases of more than ten head of livestock contracted in another state by citizens of another state, if said livestock is afterward brought by the lessee into Idaho, and thereafter and while the property and the lessee are in Idaho, by agreement between the parties, the original lease is continued for a longer term than was originally agreed upon, the new agreement is such a contract as is required to be filed for record by section 1263 of the Political Code of Idaho.

2. In order to invoke the doctrine of comity between states with respect to contracts, it is incumbent upon the party claiming such a benefit to show that his is such a contract as is contemplated by the doctrine. He must produce proof that the contract in behalf of which he seeks to invoke this rule is a foreign contract contemplated by the rule.

3. Where the evidence shows that the mortgagor of personal property had, for many years, been in possession of the property, dealt with it as his own, sold and otherwise disposed of portions of it and mortgaged other portions of it without objection, although there is evidence tending to show that his interest was that of a lessee, the finding of the trial court that the mortgagor was the owner of the property at the time he gave the mortgage is sustained by the evidence.

4. The facts in this case examined and found to justify the allowance of $750 as an attorney's fee to be awarded to plaintiffs under the terms of the note and mortgage.

5. Allegations in an answer that a portion of the amount of money secured by a mortgage was a pre-existing debt, and that no

Argument for Respondents.

levy was made on the property by the mortgagee, and that the mortgagee did not take nor attempt to take possession of it, held, to be immaterial, and that it was not error for the trial court to fail to make a finding of fact upon them.

APPEAL from the District Court of the Sixth Judicial District, in and for the County of Bingham. Hon. J. M. Stevens, Judge.

Suit to foreclose chattel mortgage. Judgment for plaintiffs. Affirmed.

J. W. Jones and Budge & Barnard, for Appellants.

The registration act provides that the lease "must be filed of record in the same county recorder's office or offices and within the same time and manner and for the same fee, as are chattel mortgages.

There is no statutory provision for filing foreign chattel mortgages when the chattels are subsequently brought into this state. The chattel mortgage registration acts apply only to property in Idaho when the mortgage is executed and have no extraterritorial effect. (Secs. 3406-3410, Rev. Codes.) By analogy, a foreign lease of animals, which are subsequently brought to this state, is not required to be placed of record in this state. (Shapard v. Hynes, 104 Fed. 449, 45 C. C. A. 271, 52 L. R. A. 675; Creelman Lumber Co. v. Lesh, 73 Ark. 16, 83 S. W. 320, 3 Ann. Cas. 108; Greenville Nat. Bank v. Evans-Snider-Buel Co., 9 Okl. 353, 60 Pac. 249.)

"The statutes of one state requiring mortgages and other instruments dealing with personal property to be recorded in the town or county where the mortgagor resides do not apply to mortgages made in another state where the parties and the property are at the time. The lex loci contractus governs." (24 Am. & Eng. Ency. Law, 2d ed., 94; Pyeatt v. Powell, 51 Fed. 551, 2 C. C. A. 367.)

Hansbrough & Gagon, for Respondents.

The person who has the possession and control of a chattel and the person in possession and control of an article of per