cal purposes by hospitals, osteopaths, dentists, | weight of water; and alcohol is defined by and others who, under the construction of said act, as contended for by counsel for the state, would not be able to purchase it at all. If a prescription for pure alcohol for medical purposes had been intended, the Legislature certainly would have provided the form of one that would meet the necessities of those who are required to keep a supply on hand, such as sanitariums, hospitals, osteopaths, and others. It is made a misdemeanor to sell such liquor on a prescription that does not conform to the provisions of said act; and if a duly licensed physician desired to give a prescription to a hospital, osteopath, or others who used pure alcohol in their avocation or business for the improvement of the health of their patients, he could not make it conform to the provisions of said act, and the druggist could not legally sell, except on the form of prescription prescribed by the statute.

It must be conceded that the nature and functions of pure alcohol and alcoholic beverages are very different; that pure alcohol has a vast number of uses in medicinal, mechanical, manufacturing, and scientific purposes which alcoholic beverages do not have. It must also be conceded that alcoholic beverages have no necessary use, except as medicines. That being true, the Legislature may provide by legislative enactment that such beverages may be used only as medicines on the prescription of a duly qualified physician. That would be a proper police regulation, as it is a well-recognized fact that excessive use of such beverages interferes with the sobriety, peace, and welfare of the people. In the enactment of said law, the Legislature has not undertaken to prohibit the use of intoxicating liquors for medicinal purposes, but has prohibited their use as beverages.

Counsel for the state contend that the Legislature, by section 31 of said act, above quoted, has defined the words "intoxicating liquors," and that as there defined pure alcohol is included therein. The provisions of said act must be construed together, and it is clear that the Legislature intended to prohibit the use of all intoxicants, including spirituous, vinous, malt, and fermented liquors and all mixtures and preparations thereof, including bitters and other drinks that are used as beverages and produce intoxication, except for medical purposes, and has placed pure alcohol in a class by itself, and permitted it to be sold upon written application.

the same work (page 33) as a liquid composed of 92.3 per cent. by weight of absolute ethyl alcohol, and about 7.7 per cent. by weight of water. This latter is the alcohol that is termed "pure alcohol" by said local option law. Diluted alcohol is a liquid of about 41.5 per cent. by weight of absolute ethyl alcohol, and about 58.5 per cent. by weight of water (Id. p. 34), and it is diluted alcohol that is used as a beverage, and not pure alcohol. Pure alcohol as sold by druggists generally is the alcohol containing 92.3 per cent. by weight of ethyl alcohol and 7.7 per cent. of water. That kind of alcohol is not used as a beverage, and that is the only kind that druggists are authorized to sell under the pure food law of the United States, as well as under the provisions of said local option act, upon written application. While it is true pure alcohol may be reduced by the addition of water, and used as a beverage, it is not classed as an intoxicating liquor that is used as a beverage; and if the Legislature had desired to prohibit the sale of pure alcohol for medical purposes, except on the prescription of a duly licensed physician, it would have been an easy matter for them to have clearly so stated in said act. As above shown, pure alcohol is used for medicinal purposes in so many ways and in such varying quantities that the form of prescription provided by said act could not be made to apply, and that is one of the cogent reasons for holding that the Legislature did not intend to require a prescription upon the sale of pure alcohol for medical purposes.

[5] Not withstanding the fact that the Legislature, in said section 15, has provided that pure alcohol may be sold for medical purposes by a druggist upon the application of an individual, the Legislature also has taken the precaution to provide a punishment, where such pure alcohol is sold upon an application for medical purposes and used by the purchaser as a beverage, clearly indicating the intention to limit the use of pure alcohol to the purpose for which it is sold or purchased.

There is some apparently conflicting language used in said act and incongruity in some of its provisions, but, taken as a whole, we think the intention of the Legislature is in conformity with the views expressed in this opinion. We therefore hold that, under the provisions of said act, pure alcohol may be sold, as provided in said act, for medicinal purposes, upon the proper written application of the party desiring it, and without the prescription of a duly licensed physician.

[6] Pure alcohol, as above stated, is not a beverage, but a violent irritant. Absolute alcohol is defined by the United States Pharmacopoeia (Eighth Decennial Revision) STEWART, C. J., concurs. AILSHIE, J., p. 34, as ethyl alcohol (C2H5OH−45.70), did not sit at the hearing, nor take any part containing not more than 1 per cent. by in the decision.

the judgment of confirmation entered by the 160 days after the posting and publication of district court must be sustained, and the Judgment affirmed, and it is so ordered, with costs in favor of the respondent.

STEWART, C. J., concurs.

the notice of attachment, certain other creditors commenced their actions against the debtor, but did not secure judgments within 60 days after the posting and publication of the notice of attachment. The court allowed all creditors to prorate with the attaching

AILSHIE, J. (concurring). There is noth-creditor in the distribution of the proceeds ing before the court in this case to consider. Appellant assigns no error whatever on the part of the trial court, but, on the contrary, admits that the judgment is correct. There being no issue or controversy presented to this court, the appeal should, in conformity with the statute and rules of the court, be dismissed, which would in effect affirm the judgment. Section 4823, Rev. Codes.

of the sale of the attached property, where they commenced their actions within 60 days after the posting and publication of notice of the attachment, although judgments were not obtained until more than a year thereafter. [1, 2] The only question here involved is the construction of that portion of section 4304 of the Rev. Codes, which reads as follows: "Any creditor of the defendant, whỏ, within sixty days after the first posting and publication of such notice, shall commence and prosecute to final judgment his action

HOWARD v. GRIMES PASS PLACER MIN- for his claim against the defendant, shall

ING CO. et al.

(Supreme Court of Idaho. Dec. 21, 1911.)

(Syllabus by the Court.)

1. ATTACHMENT (§ 282*)-RIGHT TO PROCEEDS PRORATING AMONG CREDITORS "COMMENCE AND PROSECUTE TO FINAL JUDG

MENT.

Under the terms of section 4304 of the Rev. Codes, which provides for prorating the proceeds of attached property among all creditors who "commence and prosecute to final judgment" their actions "within sixty days after the first posting and publication" of the notice of such attachment, no creditor will be entitled to prorate in the proceeds of such attached property, unless he has procured his judgment within the 60-day period prescribed by the statute.

[Ed. Note.-For other cases, see Attachment, Cent. Dig. §§ 989-991; Dec. Dig. § 282.*] 2. ATTACHMENT (§ 282*)-RIGHT TO PROCEEDS

-PRORATING AMONG CREDITORS.

Held, that under the provisions of section 4304 of the Rev. Codes, a creditor, in order to be entitled to prorate in the proceeds of attached property, must both commence his action within the 60-day period and prosecute the same to final judgment within the 60-day period.

[Ed. Note. For other cases, see Attachment, Cent. Dig. §§ 989-991; Dec. Dig. § 282.*]

Appeal from District Court, Ada County; Carl A. Davis, Judge.

Action by I. V. Howard against the Grimes Pass Placer Mining Company and others. From an order denying a motion to vacate and set aside a sale on execution, plaintiff appeals. Judgment and order reversed, and

share pro rata with the attaching creditor in the proceeds of defendant's property where there is not sufficient to pay all judgments in full against him." The respondents Contend, and the trial court held, that the foregoing provision of the statute only requires that the action be commenced "within sixty days after the first posting and publication of such notice," and that, if judgment is at any time thereafter procured in an action so commenced, the judgment creditor will be entitled to prorate in the proceeds of the attached property. The appellant, on the other hand, contends that under this statute, in order to entitle a creditor to prorate with action and prosecute the same to final judgthe attaching creditor, he must commence his ment within 60 days after the first posting and publication of the notice.

A statute written in the plain and ordinary language in common everyday use, dealing with a subject that is neither technical nor scientific, should be construed as the ordinary reading public would read and understand it. In speaking of the rule that should be applied in construing a statute that does not employ technical language, this court in Re Bossner, 18 Idaho, 519, 110 Pac. 502, said: "It is a well-established rule of law that when words have not a technical meaning or application, or when they have not been so used or employed in the statute, they should then be given their ordinary significance as they are popularly understood. We must construe the language here used by the Legislature in the light of the popular and common acceptation of the terms there employed." Applying this rule to the foregoing statute, there can be but little or no doubt as to AILSHIE, J. This is a controversy which its meaning. The creditor must "within arises between certain creditors of the sixty days after the first posting and publiGrimes Pass Placer Mining Company. The cation of such notice * commence appellant commenced an action and sued out and prosecute to final judgment his action," a writ of attachment and caused the proper-etc. The words "within sixty days" refer to ty of the company to be attached. Within both the words "commence" and "prosecute," *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

cause remanded.

Jackson, Quarles & Taylor, for appellant. Perky & Crow and C. S. Polk, for respondents.

and the prosecution must be to "final judg- tion, and means that any creditor of a dement." It is not enough that the creditor fendant, who within 60 days after the first commence his action "within sixty days," but posting and publication of the notice of athe must prosecute his action to "final judg-tachment shall commence and prosecute to ment within sixty days." It would be an un- final judgment an action for his claim reasonable and strained construction to hold against the defendant, by so doing shall that the "within sixty days" refers only to share pro rata with the attaching creditor in the word "commence," and that the words the proceeds. But while I thus concur in "prosecute to final judgment" are unmodified this opinion, I do not hold that, by a creditor and unlimited as to time, and that any time commencing an action and prosecuting it to will do. final judgment within 60 days after the first posting and publication of notice of attachment, such creditor shall have any right whatever to prorate with the attaching creditor in the proceeds of the property attached, or that said statute in any way confers any right whatever to a subsequent attaching creditor to prorate in the proceeds of property attached, whether the suit be begun and prosecuted to final judgment within 60 days after the notice of the attachment is issued, or after such time.

It is argued, however, in opposition to the foregoing construction, that if such actions must be prosecuted to final judgment within 60 days that it will require an impossibility in many cases where the action must be brought in the district court. It is suggested that there are only two terms of court a year in many of the counties, and that where an action is contested it would be impossible in many instances to procure a judgment within the 60-day period. That may all be true, and still it does not change the language employed by the Legislature in this section. The Legislature undoubtedly had in mind the prevention of the issuance of a great many writs of attachment, and also speedy action in such cases, and so it was intended that all persons who commenced and prosecuted their action to final judgment within 60 days should have the benefit of the first writ issued. It should be remembered that judgments can be procured in the justice and probate courts up to the maximum of $500 and costs, and that those courts are always open, so that it would be possible for all of the smaller claims to be prosecuted speedily in such courts.

BOYER v. BUGHER. (Supreme Court of Wyoming. Jan. 12, 1912.) 1. MALICIOUS PROSECUTION (§ 16*)-MAINTENANCE OF ACTION-ELEMENTS.

To maintain an action for malicious prosecution, plaintiff must show that the prosecumalicious; and that it has terminated in his tion was without probable cause; that it was favor, either by acquittal or discharge.

[Ed. Note.-For other cases, see Malicious Prosecution, Cent. Dig. §§ 19-22; Dec. Dig. $ 16.*]

-MOTIVE.

2. MALICIOUS PROSECUTION (§ 27*)-MALICE Legal malice essential to malicious proseThe question as to the validity of this stat-cution is shown when it appears that the prosute has not been briefed or argued, and does ecution was instituted from any improper monot arise in the present case, for the reason tive. that no judgments were obtained within 60 days, and so we express no opinion as to the validity of the statute. We hold, however, that an action by a creditor who has not prosecuted his claim to final judgment within the 60-day period does not come within the contemplation of the statute as the same has been enacted and was evidently intended.

The judgment is reversed, and the cause is remanded, with directions to the trial court to take such further proceedings as may be consistent with the views herein expressed. Costs awarded in favor of appellant.

SULLIVAN, J., concurs.

[Ed. Note.-For other cases, see Malicious Prosecution, Cent. Dig. § 60; Dec. Dig. § 27.*] 3. MALICIOUS PROSECUTION (§ 32*)-MALICE -INFERENCE.

Malice may be inferred from the want of probable cause, though such inference is not a necessary one.

Prosecution, Cent. Dig. §§ 67, 68; Dec. Dig. § 32.*]

[Ed. Note.-For other cases, see Malicious

4. MALICIOUS PROSECUTION (§ 23*) — WANT

OF PROBABLE CAUSE.

The want of probable cause essential to malicious prosecution cannot be inferred from any degree of malice.

[Ed. Note.-For other cases, see Malicious Prosecution, Cent. Dig. § 39; Dec. Dig. § 23.*] 5. MALICIOUS PROSECUTION (§ 71*)-PROBABLE CAUSE- QUESTION FOR COURT AND JURY.

STEWART, C. J. I concur in the conclusion of the majority opinion in holding that The existence of probable cause for a the trial court was in error in refusing to set of what the facts are and what may be reacriminal prosecution involves the consideration aside the sale made by the sheriff of Boise sonably deduced therefrom, and is a mixed county upon an execution issued in this case question of law and fact; and where the facts on a judgment obtained in the district court. are not in dispute the question is for the court; and where the facts are disputed the jury must The language used in section 4304, as quot-pass on them under proper instructions. ed in the majority opinion, in my judgment [Ed. Note.-For other cases, see Malicious is plain and explicit and needs no explana- Prosecution, Cent. Dig. § 161; Dec. Dig. 71.*]

6. MALICIOUS PROSECUTION (§ 21*) — PROBA- | instruction is not warranted, because defendBLE CAUSE-ACTION OF COUNSEL. ant knew all the facts, it is not objectionable as misleading.

POTTER, J. This is a proceeding in error inquiry, the advice of counsel was no defense for the review of a judgment rendered upon depends on the facts of the case; but if the the general verdict of a jury in an action for For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes.