Or.)

on the part of the state tended to show that the defendant had used the most gross and persistent abuse towards the deceased without apparent cause, at the same time intimidating him with a revolver, and his conduct was such as clearly to indicate that he made this abuse and attempted intimidation of the person there killed for the purpose of provoking an asault. Defendant made no attempt in that case to have the court define what would constitute the provoking of an assault, and it, strictly speaking, had reference to the seeking of the difficulty; while in the case before us the claim that defendant was not seeking an affray, and that he made no attempt to intimidate decedent, was relied upon as a part of the defense, and there was some evidence tending, at least sufficient for the jury's consideration, to show that the defendant may not, by calling upon decedent, have further than to contemplated anything straighten out the misunderstanding between them. In People v. Thomson, 145 Cal. 717, 721, 79 Pac. 435, 436, the court, in discussing this feature there involved, observes: "In either event the mere fact that the parties are engaged in a sudden quarrel, which may be a mere altercation of words, cannot deprive one of the right to defend himself against the real or apparent assailant." And in State v. Perigo, 70 Iowa, 657, 665, 28 N. W. 452, 456, the court say: "If defendant did not make the statement attributed to him with the intention of provoking the assault, but deceased was induced by it to make it, he might lawfully defend himself against it, even to the extent of taking the life of the assailant, if that reasonably seemed to be necessary for the preservation of his own life, or the protection of his person from great injury." And in State v. Taylor, 57 W. Va. 228, 50 S. E. 251, after mentioning that the trial court had told the jury that defendant could not justify the killing if he · had brought on or begun the difficulty, although with no intent to kill or do bodily injury to the deceased, the court observes that this instruction "should have been refused. A man does not lose his right of self-defense unless he has done some wrongful act. innocent or accidental cause of difficulty or combat permitted by this instruction is not enough." We do not think the mere words and acts alone of defendant, as disclosed by the testimony in the record, are sufficient to necessarily preclude him from the right of self-defense. The weight of authority indicates that merely offensive words springing naturally from the accused while engaged in a quarrel are insufficient to deprive such person of the right of self-defense, unless accompanied by circumstances clearly showing an intent on his part to provoke some kind of an affray. Where different deductions may be drawn from the testimony as to the effect of the language used and of the intention under such circumstances, the question

Mere

should, under proper instructions, be sub mitted to the jury.

The evidence discloses that defendant, at the time of the trouble, was armed with a revolver, which he was carrying in his pocket, this having been his custom for some time past. This, in itself, under our statute, constitutes a misdemeanor, concerning which defendant requested the court to instruct the jury to the effect that, if they found from the evidence that defendant had for a long time carried a pistol and had it on his person at the time of the homicide, in pursuance of his usual custom and without any reference to the deceased, the fact that he had the pistol, whether rightfully or wrongfully, ought not to prejudice them in any way in the trial of the case, and that defendant was not on trial for carrying the pistol, whether rightfully or wrongfully, and that they had no right to consider that fact against him in any way, except as it may bear upon his conduct in the affray, and that the mere fact that a man is armed at the time of the affray does not necessarily take away or lessen his right of self-defense. This instruction was refused by the court. The mere fact that a person may be armed is no offense under the statute (B. & C. Comp. § 3281); but such arms, when carried in a concealed manner, is a misdemeanor. In other words, it is not the being possessed of arms that constitutes the offense, but the manner thereof. But whether the weapon was concealed or not, to hold that the mere fact that a person accused of a .homicide was armed at the time, and that because of the misdemeanor resulting therefrom he shall be deprived of any right of self-defense, would lead to the absurd and unjust consequence in practically all cases of depriving the accused of any defense, whether such person is in the right or wrong, and whether his acts were necessary to save his life or to avoid receiving great bodily injury or not. The jury had a right to take into consideration the fact that the defendant was carrying a pistol at the time only in so far as that incident was connected with the homicide. For instance, they might consider it so far as it has any bearing on the question as to whether the defendant was the aggressor, or, where the question of premeditation is in issue, whether he went there armed with the intention of slaying the deceased, together with any explanations which he may have offered as to how he happened Since the deto be armed on the occasion. fendant was entitled to such instructions as would fairly present his theory of the case under the evidence (State v. Teller, 45 Or. 571, 78 Pac. 980), instructions sufficient to make these points clear should have been given.

The errors indicated make a reversal of the judgment of the circuit court and the granting of a new trial necessary.

(14 Idaho, 284)
RUSSELL & BARBOUR v. LAMBERT.
(Supreme Court of Idaho. Feb. 11, 1908.)
1. CONTRACT-MODIFICATION-CONSIDERATION.

Where parties have been doing business under a written agreement, and differences and contingencies arise which were not foreseen and provided for by the agreement, and they thereafter make an additional or subsequent agreement, "in order to avoid complications," and for the purpose of fixing a basis on which their settlement shall be had, the consideration for the latter agreement is sufficient in law, and will not be disregarded by the courts for want of consideration, although no pecuniary consideration passed.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, §§ 1119–1122.]

2. COMPROMISE AND SETTLEMENT CONSIDERA

TION.

The settlement of disputes and fixing a basis on which such settlement shall be made is a sufficient consideration for an agreement or contract of compromise.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 10, Compromise, §§ 35-50.]

(Syllabus by the Court.)

Appeal from District Court, Washington County; Ed. L. Bryan, Judge.

Action by Russell & Barbour against J. G. Lambert. Judgment for plaintiffs. Defendant appeals. Affirmed.

Lot. L. Feltham, for appellant. L. L. Burtenshaw, for respondents.

AILSHIE, C. J. This action was commenced by the plaintiffs to recover from the defendant for labor and cost and expenses of logging and cutting timber for the defendant, and for the delivery of certain lumber and material at the places specified in the contract. The original contract between the plaintiffs and defendant was in the nature of a lease whereby the defendant leased and let to the plaintiffs a certain sawmill belonging to defendant. The plaintiffs, among other things, were to cut a large quantity of lumber and receive specified compensation therefor, together with certain compensation for the delivery of the lumber at the market places. Thereafter some differences and disputes and disagreements arose between the lessees and the owner of the mill, the outcome of which was that the mill was turned back to the owner, the appellant herein. By paragraph 7 of plaintiffs' complaint they allege that on the 11th day of October, 1906, they turned over to the defendant the sawmill and all property received from him under the original contract, and that they then and there attempted to make settlement with defendant, but were unsuccessful in making any settlement at that time. By paragraph 8 they allege that on the 13th day of October, "in order to effect a settlement, and to avoid litigation and further trouble, the said parties plaintiff herein entered into the following agreement with the said defendants: 'Council, Idaho, Sawmill, Oct. 13th, 1906. In order to avoid complications, I, J. C. Lambert, agree to pay Russell & Barbour $75.00

per month each counting 26 days a month
and allowing full time, except Sundays, from
the 17th day of July, 1906, till the evening of
the 11th day of October, 1906, above actual
expense of logging and cutting timber during
the above-stated time by the said Russell &
Barbour, and I, J. G. Lambert, agree to pay
all actual expenses of logging and cutting
lumber as per above, expenses to be account-
ed for by accounts and receipts. We, the
undersigned, mutually agree to the foregoing.
J. G. Lambert, R. M. Barbour, Geo. T. Rus-
sell.'"
By paragraph 9 plaintiffs allege that
on the 15th day of October they demanded
settlement with the defendant in pursuance
with and according to the terms of the addi-
tional or supplemental agreement of October
13th, and that the defendant neglected and
refused to pay them. The defendant demur-
red to the complaint, and also moved to
strike these three paragraphs-7, 8, and 9-
from the complaint. The court overruled
the demurrer and also the motion, and the
appellant assigns that action as error.

It is argued that this agreement of October 13, 1906, was a compromise agreement, and was without consideration. The objection is not well taken. The agreement was made after the happening of contingencies not foreseen in the original agreement. The appellant had taken back the mill, and the parties were no longer operating under the original agreement, but were, on the contrary, having differences and disputes as to a proper settlement for the time the plaintiffs had been in possession of the property and been cutting lumber. The settlement of that dispute, and the fixing of a definite basis upon which settlement could be made, was within itself a sufficient consideration for the new agreement. The first clause in the agreement, namely, "in order to avoid complications," indicates the purpose of the agreement. A sufficient consideration is shown for the agreement to enable plaintiffs to maintain their action thereon. Elliott v. Howison, 146 Ala. 568, 40 South. 1018; Ruege v. Gates, 71 Wis. 634, 38 N. W. 181; 8 Cyc. 509-12.

It is further contended by the appellant that the respondents failed to comply with that part of the agreement of October 13th wherein it is stipulated "expense to be accounted for by accounts and receipts." This contention is not supported by the record. The plaintiffs substantially complied with the requirement in furnishing bills, receipts, and vouchers upon which a settlement was asked.

The record contains a long list of assignments of error, all of which go to rulings of the court in admission of evidence and rejection of proofs offered, and to the sufficiency of the evidence to justify the findings and judgment. After an examination of these assignments and specifications of error, and the record upon which they depend, we are satisfied that no prejudicial or substantial error has been committed, and that the judg

2. SAME.

Before a deposition, taken as provided in section 7588, Rev. St. 1887, is admitted in evidence, the prosecution must show all the preliminary steps necessary to be taken up to the time of taking said deposition.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 16, Depositions, §§ 242, 243.] 3. SAME.

The facts necessary to be shown are as follows: First, that the deposition was taken before the magistrate who conducted the preliminary examination, or the judge of the court to which such party had been held for trial; second, that it was shown to such magistrate or judge upon oath that there was reason to believe that such witness whose deposition was sought would not appear and testify unless security was given; third, that the magistrate or judge made an order requiring such witness to enter into a written undertaking, with sureties, under the provisions of section 7585, Rev. St. 1887.

4. SAME-CONDITIONAL EXAMINATION.

When it satisfactorily appears to the magistrate or judge, by examination on oath of the witness, or any other person, that the witness is unable to procure sureties, he may be forthwith conditionally examined on behalf of the people under the provisions of section 7588, Rev. St. 1887.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 16, Depositions, § 29.]

5. SAME-NOTICE TO DEFENDANT.

It must also appear that the defendant has been advised of his right to counsel, and to be represented by such, and that the defendant was present in person and by counsel if he desired so to be, or had notice of such examination if on bail.

6. SAME-EXAMINATION.

It must also appear that the examination was conducted in the same manner as an examination before a committing magistrate, and certified in the same way.

7. SAME-OFFER IN EVIDENCE.

Before such deposition is offered in evidence, the state must prove that the witness whose deposition is offered is unable to attend by reason of his death, insanity, sickness, or infirmity, or his absence from the state, and that due diligence has been exercised in the effort to procure the presence of said witness.

8. SAME.

Where such facts have not been proved at the time the deposition of the witness is offered, it is not error on the part of the court to refuse to admit such deposition in evidence. (Syllabus by the Court.)

Appeal from District Court, Twin Falls County; Edward A. Walters, Judge.

Raffaele Zarlenga was indicted for murder. From a refusal of the trial court to admit in evidence a deposition conditionally taken and offered by the state, it appeals. Affirmed.

J. J. Guheon, Atty. Gen., and F. A. Hutto, Pros. Atty., for the State.

STEWART, J. An information was filed against the defendant, charging him with the crime of murder in the killing of one Joseph D'Ipolito. Trial was had in the county of Twin Falls. The defendant was acquitted.

During the trial the prosecuting attorney offered in evidence the deposition of one Joe Pedri. It was contended that this deposition was taken under the provisions of section 7588, Rev. St. 1887. To the introduction of this deposition counsel for defendant made numerous objections, in effect as follows: That no foundation had been laid for the introduction of this deposition; that it did not appear that the deposition was signed or sworn to under the direction or in the presence of the magistrate; that it did not appear that the witness was intending to depart from the jurisdiction of the court; that it did not appear from the deposition that the defendant had been advised of his rights and appeared with his counsel; that diligence had not been shown; that at the time the deposition was taken the cause was pending in the district court, and had passed beyond The the jurisdiction of the probate court. objections were sustained by the court, and the deposition was rejected as evidence. The state appeals to this court from the ruling of the district court in refusing to admit in evidence said deposition. This appeal is taken under section 8043, Rev. St. 1887, as amended by Laws 1907, p. 508. The defendant makes no appearance in this court. The only question presented by the record is: Was said deposition admissible in evidence? This court has held that a deposition taken under the provisions of section 7588, Rev. St. 1887, is admissible in evidence. State v. Ireland, 9 Idaho, 686, 75 Pac. 257; State v. White, 7 Idaho, 150, 61 Pac. 517. But as to what is necessary to be shown by the state before such deposition is admissible has not been We are of the passed upon by this court. opinion that before a deposition taken conditionally as provided in section 7588, Rev. St. 1887, can be admitted in evidence, it is necessary for the state to show the following facts, which should appear as a part of the deposition or in connection therewith: First, that the deposition was taken before the magistrate who conducted the preliminary examination, or the judge of the court to which such party had been held for trial; second, that it was shown to such magistrate or judge upon oath that there was reason to believe that such witness whose deposition was sought would not appear and testify unless security was given; third, that the magis