Volume 1 — Utah Reports

<p>Powers of a Grand Jury in the District Courts. — A Grand Jury summoned from tlie body of the Judicial District in which the Court is held, has the right to inquire into the violations of the Territorial criminal laws, co-extensive with the District.</p> <p>Construction of Section 17 of the Act Regulating the Mode of Procedure in Criminal Cases. — Section 17 of “An Act regulating the mode of procedure in criminal cases,” approved January 21st, 1853, does not apply to proceedings in the District Courts,</p> <p>The Common Law in Force in Utah. — Section 17, of the Organic Act of Utah Territory, approved September 9th, 1850, extends the Common Law over the Territory of Utah, and a Grand Jury impaneled for the District Courts must consist of twenty-three persons.</p>

<p>. Appeal from the District Court of the Third Judicial District.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>A party may be arrested on complaint made, and upon proper evidence may be held for a crime committed in another State or Territory, a sufficient length of time to communicate with the Executive of such State or Territory, before demand made by such Executive.</p>

<p>Appeal from the District Court of the Third Judicial District.</p> <p>The facts are stated in the opinion of the Court</p>

On the 10th day of August, 1866, the Plaintiff Cunningham commenced an action in the Probate Court of Salt Lake County, to recover from the Defendants the sum of one thousand dollars for work and labor, in transporting goods from Salt Lake City to Virginia City, M. T. At the time of the commencement of said suit, there was pending in the District Court of Montana, held at Virginia City, an action wherein Thatcher & Robinson had brought suit against said Cunningham for…

<p>Money in the Possession of a Prisoner, at the time of his arrest, cannot be appropriated by officers who have him in charge, and the same, although taken from him at the time of his arrest, is still his property and subject to his order.</p>

<p>Effect of a Sale under a Power Contained in Mortgage. — A sold B certain premises, for which B promised verbally to pay $3,000. To secure this sum B executed and delivered to A a mortgage on said premises, containing a power to sell at public auction. The premises were sold by A, and $700 realized thereby.</p> <p>Held, In an action for the balance of $2,300, due on the original verbal contract, that the sale did not extinguish the debt, and is no bar to an action on the verbal contract.</p> <p>Held Further, That the contract was not merged in the mortgage, but existed independently of it, and parol evidence was admissible to prove the terms thereof.</p> <p>Note. — The names of the Attorneys for the respective parties do not appear in the record. — Reporter.</p>

<p>1. A person Elected as Alderman in the City of Salt Lake, solely as such, is not and cannot be a Justice of the Peace by the simple act of qualifying as such.</p> <p>2. Pleadings before a Justice of the Peace must contain all the material qualities of a Common Law Pleading, and an “Information,'’ or complaint, must show affirmatively that a crime has been committed.</p> <p>3. The Record of a Justice of the Peace, where the official character or judicial power of such Justice is called in question, must affirmatively show the Jurisdiction of the Court..</p>

<p>Original proceedings in bankruptcy in the Supreme Court at a special term, January 6th, 1871.</p> <p>Certain motions herein having been argued before Associate Justices Hawley and Strickland, and they having disagreed on these conclusions, the matter came up for re-argument before the full bench, on the day above mentioned.</p> <p>It was shown to the Court that David P. Kimball and Heber P. Kimball filed their petition April 23d, 1869, and their amended petition May 11th, 1869, praying that Joseph F. Nounnan & Co. (the above named Nounnan and Orr) be declared bankrupts, &c.; that afterwards, before adjudication, by agreement with the Kimballs, and by the acquiescence of the other creditors, Jos. F. Nounnan & Co. prosecuted a claim against the Union Pacific Railroad Company; that they employed, by agreement in writing, Stevenson, an engineer, to make certain surveys and measurements of portions of the U. P. Railroad involved in the litigation; that Jos. F. Nounnan & Co. recovered from the said Railroad Company the sum of $95,000; that Jos. F. Nounnan & Co. then filed their own petition in bankruptcy (June 9, 1870); that the Kim-balls and all other creditors — taking no further steps under the first two petitions or either of them- — came in and proved their claims under the third or voluntary petition ; that an assignee was chosen under the last named petition; that Jos. F. Nounnan & Co., paid over to the assignee, for the benefit of the creditors, the $95,000 recovered from the Railroad Company, and that that sum was nearly or quite all the assets of the bankrupts.</p> <p>The argument came up on the following motions:</p> <p>On the part of Stevenson, that he be allowed the stipulated price for his services, and that his demand be preferred.</p> <p>On the part of the Kimbals, that their petitions of April 23d and May 11th, 1869, be dismissed.</p> <p>On the part of Thos. F. Almy, a creditor, that he be substituted in the place and stead of the Kimballs as petitioning creditor, &c.; or that a hearing be had upon the first and second petition, &c ; or that these petitions be combined and a hearing had, &c.</p> <p>On the part of the assignee, that Almy’s claim be rejected, on the ground that Almy had received certain collateral security therefor, which he had sold.</p>

The question before the Court arises upon two separate demurrers filed by said several alleged bankrupts to the petition for Adjudication of Bankruptcy against them.

The Plaintiff claimed judgment against the Defendant, on the following alleged state of facts, to-wit: That in the spring of 1865, the Plaintiff, at the request of the Defendant, advanced to the latter, “.to be used in the construction of the Deseret Irrigation and Canal Co.,”agoods of the value of $10,020 27; that on the 12th day of February, 1866, an account was stated by the plaintiff to the Defendant for the said sum, to which the Defendant made no objection; that on the…

<p>1. Interest. — An agreement to pay interest on a note which provides for “ interest at the rate of two per cent, per month from date,” does not extend beyond the time the said note becomes due and payable by its terms.</p> <p>2. When there is a Statute providing a specific rate of interest, such note is the measure of damages, otherwise the damage is to be established by proof.</p> <p>3. Damage as Interest. — Upon stated and liquidated accounts, for money had and received, and upon notes overdue, where there is no Statute for Interest, damages may be recovered in lieu of interest, upon proper proof.</p> <p>4. Rule as to Interest when there have been Partial Payments.— The payment is to first apply to the discharge of the interest due, and if the payment exceeds the interest, the surplus goes towards discharging the principal ; if the payment be less than the interest, the surplus of the interest due must not be taken to augment the principal, but interest continues on the former principal until the period when the payments taken together exceed the Interest due, and then the surplus is to be applied towards discharging the principal, etc.</p>

This is a suit in equity, brought originally in this court. In his bill the Plaintiff alleges that he is a druggist by occupation, and carries on the business of a wholesale and retail druggist in the City of Salt Lake; and the Defendant is a corporation; that by virtue of an ordinance of said Defendant, passed October 27th, A. D. 1866, entitled, “An Ordinance relating to License for the the Manufacture and Sale of Spirituous, Yinous and Fermented Liquors,” the said City of…

(Original-Proceedings in the;Suprema Court.) The Court being in adjourned session, in the month of May, 1874, Duncan appeared in court, and by his counsel claimed to be recognized by the Court as Territorial Marshal for the Territory. McAllister also appeared by his counsel and claimed to be recognized as Territorial Marshal. The evidence presented, and the grounds relied upon by each, are stated and considered in the opinion of the Court.

<p>Appeal from the District Court of the Third Judicial District.</p> <p>The facts appear in the Opinion of the Court.</p>

The facts are stated in the Opinion of the Court. made the following points: 1. The Defendant Connor, as it is alleged in the complaint, and not denied in the answer, having written his name upon the back of the note at the time of its execution, and in connection with Murphy, the maker of the note, delivered it to the payee, is.regarded in law as a maker. • He was not, therefore, entitled to notice. (Red & Big. Lead. Cases on Bills, and Prom. Notes, 155; 22 Howard, 341.) 2.

<p>Pleading in Action Against a Guarantor, — Wherever tlie Statute of Frauds is recognized, it is not necessary that a complaint against a guarantor should set forth that the guaranty was in writing and signed, etc. (Braunan v Ford, 46 Cal., 7; Miles V. Thorne, 35 Cal., 335.)</p> <p>The Common Law. — No specific body of the Common Law was transplanted to the Territory of Utah by the fact of emigration. Neither has the Common Law been extended over the Territory by the Treaty of Guadalupe Hidalgo, and but one course has been left open, to-wit: for the whole body of the people to agree-expressly or tacitly .upon a common measure. The people .of-Utah have tacitly agreed upon maxims and principles of the Common Law, suited , to their .condition, and consistent with the Constitution and Laws of th,e United States, and these only wait the recognition of the Courts to become the Common Law of the Territory. When so recognized, they are laws as certainly as if expressly adopted by the law-making power. — Emerson, Justice-(See ante People v. Green; also, Norris v. Harris, 15 Cal. 226; 2 Cal. 99;'also, Godbe v. S. L. City, ante 68.)</p> <p>Statute of Frauds. — The question as to whether any part of the Statute of Frauds in foice in England, is in substance a part of the Territorial law, discussed by Emerson, Justice, but not decided by the Court.</p> <p>When the Statute of Frauds Applies. — In the case at bar the promise of the Defendant was for the payment of a still subsisting debt of another, and comes within the terms of the Statute'of Frauds; but if the effect of the con- " tract of Defendant had been to discharge the original debt and he became the sole debtor, and there was no debt of another to which his -promise was collateral, then the contract was not within the purpose and spirit of the statute. (Crooks w. Tully, 50 Cal.; 38 Cal. 135, 34 id. 673.)</p>

<p>Inquiry on Writs of Habeas Corpus. — A party will not be discharged upon the hearing on a writ of habeas corptis, when it appears that he is held upon a final process from a court of competent jurisdiction, and when the judgment of such court is regular upon its face and entered in the ordinary course of justice —irregularities, if any, must be corrected either in the court where they are alleged to have occurred, or by appeal.</p> <p>Power of Municipal Corporations to Punisi-i Under Ordinances. — The City of Salt Lake, by its Council, passed an ordinance to punish parties who should be convicted of keeping any house for “gaming purposes;” the general Statutes of the Territory had also provided against such offence. ITeld, that the power to punish this offence is embraced among those granted to Salt Lake by its Charter.</p> <p>Held further, that the City had power to punish the same, notwithstanding the offence was provided against by general law.</p> <p>Held further, that the power to pass the Ordinance in question is not a special privilege within the meaning of section one of the Act of Congress entitled, “ An Act amendatory of an Act to provide a temporary government for the Territory of Montana;” Approved May 26th, 1864. (4 Stat. at Large, 426.)</p>

<p>Alimony jn the Supreme Court. — On motion made in the Supreme Court, in a proper case, temporary alimony and counsel fees will be allowed.</p>

<p>Matters Not of Record, Not Considered. — Extraneous matter filed with the Record, but not made a part thereof, will not be considered 'on Appeal.</p> <p>An “Occupant,” Who Is? — An “Occupant,” within the meaning “Town Site ” Law of Congress (14 Stat, at Large, 541) is one who is a settler or resident of the town, and in the bona fide, actual possession of the Lot at the time the entry is made. One who has never been in the actual possession of a Lot, cannot be said to be an “Occupant” thereof. ,</p>

<p>Appeal from the Third District Court.</p> <p>The facts are stated in the Opinion of the Court.</p>

<p>Appeal from the District Court of the Third Judicial District.</p> <p>Order changing place of trial.</p> <p>The facts appear in the Opinion of the Court.</p>

<p>Appeal from the District Court of the Third Judicial District.</p> <p>The facts appear in the Opinion.of the Court.</p>

“To the Honorable James B. McKean; Chief Justice of the,Territory of Utah: Tour petitioner, Henry A. Morrow, for cause of complaint to your honor, states: That Frederick Bright is an enlisted private soldier in the- Thirteenth Regiment (Company 0), in the army of the United States, and belongs to the command of.-your petitioner, who is the officer-in command of the forces of the United, States stationed at Camp Douglas, in the Territory of Utah; that on the 12th day of…

The Defendant was sued as Administrator ■of the Estate of said Lambson, and filed answer, pleading payment of the same by said Lambson before his decease. The other facts are stated in the Opinion of the ■•Court.

The Respondent brought his action in the Third District Court to recover the value of his interest in a certain lot of Railroad ties, of which the Appellant and he were joint owners, alleging that Appellant had sold the ties and used the money. After due personal service, the time for answering having expired, the Respondent, took judgment in the Clerk’s office by default.

<p>Appeal from the Third Judicial District.</p> <p>The facts appear in the opinion of the Court.</p>

<p>Appeal from tlie Third District Court.</p> <p>The facts appear in the opinion.</p>

The facts appear in the opinion of the Court. made the following j)oints: The intent of our Statute of Limitations plainly expressed, is that every creditor shall have four full years to sue in the Courts of this Territory, and that he shall not lose his demand except by such an omission as the Law deems voluntary, or negligent. Utah Statute Limitations, Sec. 15 and 23; Sec. 506, Utah Practice Act; 5th Nev. R. 73 ; 20th.

<p>Appeal from the Third District Court.</p> <p>The facts appear in the Opinion.</p>

<p>AppeatJ from Order Sustaining Demurrer. — No appeal lies from an order of the District Court sustaining a demurrer.</p>

<p>Appeal from the First District Court.</p> <p>The facts appear in the Opinion.</p>

<p>Misjoinder of Parties Defendant. — Plaintiff in an action involving the title to an entire tract of land, joined several Defendants, who, it was alleged, were in the possession of, and claimed separate and distinct parcels thereof, held, there was a misjoinder of parties Defendant, and that Defendants could not in such a case be joined in the same proceeding.</p>

<p>Appeal from tire Third District Court.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Third Judicial District Court.</p> <p>The facts appear in the opinion.</p>

<p>ApplioatioN by petition to the Supreme Court to be' released on writ of habeas corpus.</p> <p>The material facts appear in the Opinion.</p>

<p>NEWLY DISCOVERED EVIDENCE MUST NOT BE CUMULATIVE MERELY. — A new trial should not be granted upon the ground of newly discovered evidence^ when it appears that such evidence is merely cumulative.</p>

<p>Appeal from the Third District Court.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the Third District Court.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Compliance with Order Opening Default. — Judgment by default, whereupon motion of Defendant the same is vacated and the default set aside “ upon payment of costs taxed at twenty dollars,” held that a payment of the twenty dollars to the Clerk of the Court is a substantial compliance with the order.</p> <p>No Appeal Lies from a Judgment that has been Vacated. — On- a motion to vacate a judgment by default, and to set aside the default of Defendant, the Court made the following order : “ That the judgment herein be set aside and the default opened, and that the Defendant have leave to answer within five days, upon payment of the costs taxed at ninety dollars, and in default of such answer the Plaintiff have judgment.” Held that the opening of the default was absolute, and effectually disposed of the judgment, and that Defendant could not thereafter appeal from the judgment.</p> <p>No Appeal from Order Opening Default. — There is no appeal from an order opening a default and setting aside a judgment.</p> <p>Order Refusing to Retax Costs how Reviewed. — There is no appeal from an order refusing to retax costs. Such an order can only be reviewed by an appeal from the judgment, and a statement annexed.</p>

Motion to place the cause on the calendar. On the 13th day of October, 1874, .the Respondent recovered, in the Third District Court, a judgment against the Appellant, directing the payment of money.

The appellant was indicted for forging-and uttering a promissory note for $400.00, in the name of one Hugh White, with intent to defraud, &c. He was tried and convicted in the Third District Court, in December last. He appeals to this Court. The facts are sufficiently set forth in the opinion of the Court.

<p>United States Marshal Could not Serve Process Prior to the Poland Bill . — Suit in Chancery and process served by the United States Marshal, Defendants made default; held, that the Court failed to acquire jurisdiction of the parties,-as the process múst be served as prescribed by See. 28 of the Practice Act, and that prior to the passage of the Act of Congress com monly called the Poland Bill,” the United States Marshal was, not the proper officer-to sferve the process. ’</p>

<p>When Certiorari will be Granted. — An application to review proceedings in a lower Court by certiorari when there has been no judgment or final determination in such Court is premature, and will be denied.</p>

The Grand Jury, by which, the Petitioner had been indicted for the crime of murder was held to have been illegally organized, whereupon the petitioner, applied to the Court to be admitted to bail

<p>Challenge for Cause how Waived. — A Defendant who interposes a challenge to a juror for cause, which is denied, and subsequently peremptorily chai-lenges the same party, is not prejudiced by the ruling of the Court.</p> <p>Qualification as Juror must Exist when the Person is Offered. — The provision of the Territorial statute that a person shall not serve as a petit juror unless he is the owner of taxable property is express and cannot be disre‘_ garded. The qualification must exist at the time he is offered as a juror, and it does not satisfy the statute that he possessed the qualification when the jury list was prepared.'</p> <p>Poland Bill not Exclusive as to Qualifications of Jurors. — The Poland Bill does not profess to prescribe all the qualifications of jurors in. this Ter-‘ ritory, and it supercedes and controls the Territorial laws only so far as it prescribes a new qualification of the same kind as embraced in the Territorial law.</p> <p>When Juror Should be Excluded. — A juror who has formed an unqualified opinion-as to the merits of a case, and states that it would .require evidence to remove such opinion, should upon a challenge be excluded from the jury.</p> <p>Basis of Jurors’ Opinion not ILaterial.- — It is not material upon whafthe opinions of the juror are founded, whether upon rumor or fact, "for it is the unbiased state of mind that is requisite.</p> <p>Error Once Shown, how Removed, — When error appears in the record, to avoid its effect, resort cannot be had to presumption, but it can only be removed by-matter affirmatively shown by the record.</p> <p>When Witness not Bound to Answer Question — -A witness is not bound to answer, nor is a Court to compel an answer to an inquiry to disgrace a witness unless the evidence is material to the issue being tried.</p> <p>Inquire as to Motive of Witness when Made, — When the motive of a witness in’performing a particular act or making a particular declaration becomes, a material issue in a cause, he may be permitted to testify in regard to it; '</p> <p>Inconsistent Defenses, how Objected to — It inconsistent defenses are set up in an answer, advantage of it must be taken by motion or demurrer, otherwise the defect is waived, and upon the trial the party may rely upon such defenses.</p> <p>Insufficient Denial Raises no .Issue.. — Under our rules of pleading a denial, of the exact sum claimed by Plaintiff, or if damage, in Jhe.precise amount alleged'; is insufficient and raises no issue.</p> <p>Pboferts not Affected by the Crimes of the Owner. — The private household goods óf a criminal cannot be deemed to be affected by the crimes and misconduct of the owner, and such property cannot be destroyed or taken, except by due process of law.</p>

<p>Religious Convictions Cannot Excuse Crime. — On the trial of Defendant for the crime of Polygamy, evidence was offered by him to show that polygamous marriage was a part of his religion; held, such evidence not admissable and has no foundation for its admission in either justice, reason or law.</p> <p>Number of Persons Constituting a Grand Jury. — The Act of Congress com-monlv called the “ Poland Bill,” does not fix the number of persons that shall constitute a Grand Jury. Nor does it by express terms or by implication repeal the existing Territorial laws fixing the number of persons that shall constitute the Grand and Petit juries in the District Courts. (Sec. 13 Wal-iace 434), also (People v. Green, Ante 11).</p> <p>Laws not Inconsistent. — A law which declares the number necessary to constitute a Grand'Jury, is not inconsistent with a law which provides the mode of procuring the number out of which to compose the jury'.</p> <p>Number Requisite for Á Grand Jury.' — Under the Poland Bill ” and the existing Territorial laws, a Grand Jury must'be composed of fifteen members.</p> <p>Juror when Incompetent from Conscientious Scruples. — A person who has conscientious scruples against indicting persons for the crime of polygamy, is wholly incompetent to serve as a Grand Juror in the investigation of such charge. The same rule applies to his competency to sit upon a petit jury.</p> <p>Court can Summon Additional Jurors.— If'from any cause the jurors summoned prior to the term do not appear, the' Court is authorized to have such additional number drawn and, summoned, after the beginning, of the term, as' may be necessary to complete the panel.-</p> <p>Jtutor. Owning Taxable Pbomcbty. — A juror summoned was tlie owner of taxable property, and was ready to pay his taxes, but was not assessed, nor did he pay taxes; Jit Id, if he was not so assessed and allowed to pay taxes, it was not his fault, and such juror is competent to serve.</p>

<p>Action by Father. — A father cannot maintain an action at Common Law for the death of his son occasioned by negligence.</p> <p>The Common Law in Utah. — The Common Law recognized as furnishing.- the measure of personal rights and the rule of judicial decision in this Territory, (see ante People v. Green, and First National Bank v. Kinner).</p>

<p>Sec. 15 and 17 of Limitation Act. — The term liability,’' as used in Sections 15 and 17 of the Limitation Act, does not extend to tort.</p> <p>Action for Damages when Barred. — An action by a passenger against a carrier to recover damages for injuries, received through the negligence of such carrier, not having been specially provided for in the Limitation Act, is embraced under the general provision of section twenty, and must be commenced within four years after the cause of action shall have accrued.</p>

<p>Record on Appeal from Judgment. — On an appeal from a judgment, papers and files of the Court below attached to the Judgment Roll will not be considered, unless they are incorporated in a statement, as provided for in Secs. 195 and 330 of the Practice Act.</p> <p>Record, How Made Up. — Merely attaching a mass of papers and files to the Record, does not by any means make such papers part of the Record on Appeal.</p>

<p>Appeal from the Third District Court.</p> <p>The facts appear in the opinion.</p>

<p>Allegation of a Conclusion of Law. — :An allegation that “the Defendant gave a mortgage,” &c., is simply a conclusion of law.</p> <p>No Decree by Default,'When. — The mortgage not having been set out in the complaint, upon a default, the Court could not render a decree intelligibly.</p> <p>Officer to Serve Process Prior to July 23D, 1874. — Prior to the passage of the “ Poland Bill,” the United States Marshal had no authority to serve an original process.</p>

<p>Order Made Without Notice, how Vacated. — Ah order for a temporary injunction, made out of Court by the judge, without notice to' the adverse party, may be vacated by th’e judge without notice.</p> <p>Irreparable Injury, how Pleaded. — Where, upon an application for an injunction to restrain the Defendants from working certain mining ground, and from selling any ores therefrom, the Plaintiffs alleged that the injury was irreparable, from the fact that it was impossible for them to know the amount and value of the ores taken from the mine by Defendant; held, that the simple statement of the complaint to that effect is not sufficient, but the facts should be stated from which the Court could learn that the injury was irreparable.</p> <p>R estraining Order Governed by the Complaint. — A restraining order that goes further than the prayer of the complaint is improper, and should be set aside.</p> <p>Practice on Motion to be Restored to Possession. — When the Defendants have been deprived of the possession of mining ground by an officer acting under a restraining order, which was improperly issued, the judge who granted the same cannot upon application of the Defendants without notice, restore them to the possession.</p>

<p>Appeal from the Third District Court.</p> <p>The facts are stated in the opinion.</p>

.This was an action for damages in failing to deliver a lot of railroad ties at Corinne, Utah Territory, by flooding said ties down Bear Diver from a point fifteen miles above “Soda Springs,” in Idaho Territory, under a written contract to deliver the same within four months from the 28th day of July, 1869.

<p>.Appeal from the Third.District Court.</p> <p>The facts involved appear in .the Opinion.</p>

A.ppeal from the Third District Court. Action to foreclose a Mechanics Lien. At the preceding Term of the Court the judgment of the Lower Court was reversed; but upon the main point, as to the time within which a material man must file his Notice of Lien, the opinion then rendered affirmed the action of the Court below. Upon petition, a rehearing' ivas granted, and after argument the following . opinion was rendered by a majority of the Court. made the following points •: .

<p>Appeal from the Third District Court.</p> <p>The facts appear in the Opinion.</p>

<p>Action on Distillers Bond. — It is no defence in an action against the sureties on a distillers bond, that they had no notice of the increased producing capacity of the distillery', notice to the principal is sufficient.</p> <p>Contract Void. — Where the producing capacity of a distillery is 266 gallons per day, the assessor cannot agree with the principal to return taxes for only 80 gallons per day. Such contract allows parties to violate the plain provisions of the Revenue law.</p>

The Despondent applied to the judge of the Third-District Court at Chambers, for a writ of Mandamus to> compel the Appellant to deliver over to him the papers,, books and records appertaining to the office of Clerk of the Probate Court of Tooele County, and claiming damages in the sum of $500. Mandamus issued after trial of the issues before the. judge. Defendant appealed.

<p>[Tooele Mandamus Cases],</p> <p>Preceding Gase Affirmed. — Judgment reversed upon the authority of Chamberlain v. Warburton, Ante.</p> <p>Property Held by Outgoing Sheriff. — Articles of personal property held by an outgoing Sheriff under an attachment, are not property pertaining to the office, in the sense that a delivery will be compelled by Mandamus.</p> <p>In such a case the incoming Sheriff has an adequate remedy either by Replevin, or by a suit on the bond of the outgoing Sheriff.</p>

<p>Appeal from the Third District Court.</p> <p>The facts appear in the Opinion.</p>

<p>Appeal from the Third District Court.</p> <p>The facts appear in the opinion.</p>

In November,' 1873, Defendants wer¿ merchants and partners; Cole, thé deceased', then delivered to McKee $813 to carry to and deposit in a bank where deceased had deposit account. McKee received the money for that purpose, took it to the bank, but deposited it to the credit of his firm on their account in that bank.

On the 23rd day of July, 1875, the Plaintiff brought an action against the Defendant on a promissory note for $700.

<p>Appeal from the Third District Court.</p> <p>'The facts appear in the opinion.</p>

<p>Evidence op Local Mining Laws. — In order to introduce evidence of the local Mining Laws of a District, it is necessary that it should be made to appear aliunde that the copy offered comes from the proper custodian, and that such person was empowered to give certified copies thereof, so as to become'evidence, and that such was a copy of the laws in force in such District.</p> <p>Mining^Ground, How Held. — A party claiming mining ground, not actually, possessed and worked, and beyond the possessio pedis, must show his right thereto by constructive possession, and he can show such constructive possession only by physical works or. monuments, or by the local Mining Laws and rules, and-compliance therewith,</p> <p>Cases Approved. — Atwood v. Fricot, 17 Cal. 43; and English v. Johnson, Id.; and Hess v. Winder, 30 Cal. 355, referred to and approved.</p>

<p>New Trial on the Ground of'Surpkise. — A new trial will not be granted on the ground that the moving party was surprised at the testimony of his ad' versary at the trial, when such testimony was pertinent and within .the issue, unless there was some trick or fraud perpetrated.</p> <p>Id. — Newly Discovered Evidence. — A new trial should not be granted upon the ground of newly discovered evidence, where no proper diligence had been used to procure it at the trial.</p> <p>Facts on Appeal, When Reviewed. — Upon appeal the Court will not review the facts unless a motion for a new trial was made in the Court below upon the insufficiency of the evidence.</p>

<p>Petition for a Re-hearing.</p> <p>At the last term of this Court the judgment of the lower Court was affirmed, whereupon the Appellants filed a petition for a Re-hearing, and also for leave to amend their complaint in the Court below.</p> <p>The other facts are stated in the opinion.</p>

<p>Appeal from the Third District Court.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the First District Court.</p> <p>The facts are stated in the opinion.</p>

<p>Number of Grand Jury. — People v. Reynolds ante affirmed as to the number necessary to constitute a Grand Jury.</p> <p>Drawing a Grand Jury. — Under the Poland Bill requiring the Judge of the District Court to give public notice of the drawing of a jury it is not necessary to give notice thereof by publication in a newspaper — any public notice is sufficient.</p> <p>Qualifications of Jurors. — On the trial of the Defendant charged with the crime of polygamy, a juror under examination as to his qualifications to serve, was asked the following question : “ Are you living in polygamy ?” which, under the caution of the Court he declined to answer, as the answer would tend to criminate him; held, that the juror virtually admitted the fact, and it was not necessary that his disqualification should be shown by extrinsic evidence.</p> <p>Held, further — that the juror was properly excluded from the panel.</p> <p>Opinion of a Juror_A juror who has formed an opinion as to the guilt or innocence of the deceased, but says that such opinion would not influence his verdict, is a competent juror, no other facts being shown.</p> <p>Testimony of a Witness on a Former Trial. — Where it appears that a witness who testified on the former trial has concealed herself by the aid of Defendant, it is competent for the Court to allow evidence of her former testimony to go to the jury.</p> <p>Instructions. — On the trial of Defendant for polygamy the Court, among other things told the jury that they “ Should consider what are to be the consequences to the innocent victims of the delusion;” held, not erroneous.</p>

<p>Continuance in Criminal Cases. — An affidavit for a continuance in a criminal case, on account of the absence of Defendants' witnesses, which shows that the witnesses left the Territory “temporarily,” and to ‘‘spend the winter elsewhere,” without showing when they left, and that the Defendant did not know of their intention to leave, and that he made no effort to subpoena them, does not show proper diligence upon the part of the moving party.</p> <p>UncommuniCATed 'Threats. — Where it is clear from the evidence that the Defendant was the assailing parly, and the deceased was unarmed at the time of the homicide, proof of uncommunicated threats is inadmissable.</p> <p>Instructions. — When the propositions of Law, arising in a criminal case, are given to the jury in separate instructions, the Court should remind the jury that the instructions are all to be considered together; but when all the instructions are embodied in one statement, this rule does not necessarily apply</p>

The Defendants demurred to the complaint. Demurrer overruled, and Defendants failing to answer, the default and judgment was entered, whereby, all the property was ordered sold, and all the notes ordered paid out of the proceeds of such sale. First. — The Court erred in overruling the demurrer to the amended complaint.

Action to enjoin the Defendant from threatened trespass upon a- certain mining claim; No other than injunctive relief was, asked for in the complaint. ' ' • . The other facts appear in the opinion of the Court. /

<p>Practice. — Where a party stands by a pleading to which a demurrer has been sustained, no exception is required, and the action of the Court on the demurrer can be reviewed without a statement on appeal. Ante Zeile v, Moritz.</p> <p>New Promise. — An account was dated in 1872. On July 31st, 1872, the Defendant wrote a letter to Plaintiff, saying: “I shall express to you this day $100, etc., hoping you will accept it in part payment of my debt. I shall as quick as possible forward the balance;” held, clearly an acknowledgment, . and a new promise.</p> <p>Limitation on New Promise. — The acknowledgment and new promise is a new contract, notwithstanding it was made before the statute had run against the original account, and the new promise being in writing a right of action thereon is not barred under four years.</p>

<p>Sale of Personal Property_When the contract, is executory for the sale of property not in existence, but to be made or manufactured, no property passes to the purchaser until it is finished and either delivered to him, or is appropriated to his benefit, set apart for him and is accepted by him.</p> <p>When in a sale of personal property something remains to be. done to the thing sold to identify it or to discriminate it from other articles, the sale is not complete, and the property does not pass absolutely to the purchaser.</p>

<p>General Demurrer to Answer. — When one defense set up in an answer is good, a general demurrer should be overruled.</p> <p>Disaffirmance of Contract by an Infant. — The rule that an Infant is bound by his contracts, unless he disaffirms them within a reasonable time after his majority, applies only to such contracts as are beneficial to the infant.</p> <p>Reasonable Time for Disaffirmance. — In determining what is a “reasonable time” within which an infant must disaffirm a contract, the jury can take into consideration the nature of the contract and the situation of the parties. No particular manner of disaffirmance is necessary.</p>

<p>Sec. 445 op the Practice Act. — Section 445 of the Practice Act, which pro-, vides that the writ of Mandamus may be issued by any Court of this Territory, except a Justice of the Peace, is in conflict’with the Poland Bill, and is wholly inoperative and void.</p> <p>Statutes Construed. — The provisions of the various Acts of Congress regulat- ’ ing the jurisdiction of Courts in Utah commented on and construed.</p> <p>Original Jurisdiction of the Supreme Court. — The Supreme Court has no . original jurisdiction to issue writs of- Mandamus, except to enable it to exer.-.cise its appellate jurisdiction. Godbe v. Salt Lake City, Ante 68.</p> <p>Id — The Supreme Court of Utah is one of appellate and not original jurisdiction, ,</p>

The facts are stated in the opinion. The District Court erred in adniitting evidence of the dying declarations, because 1st. The declarations were reduced to writing, signed and sworn to, and the writing should be produced. 10 Cal. 32, People v. Glenn; 11 Iowa 359 ; 1 Greenleaf Ev., Sec. 161; 7 Car. & Payne, 230 ; 1 East P. C. 356 ; Rex v. Trouter. 2nd.

Appeal'from the Third-District Courtb When the case was heard in the Court below Hon. Alex. Held: in trust, and to whom he is to make the deeds. * * * This is the construction and meaning of the Act of Congress — Copeld v. McClelland, 16th Wallace, 334.

<p>Party Entitled to Government Title. — A party claiming deed for Government title, from the Mayor, under the “Townsite” Law of Congress, must show that he is an inhabitant of the town, an occupant of the ground, and has an interest in the property.</p> <p>Occupancy, How Begun. — The occupancy referred to must be actual, and cannot be begun by Agent, no one being allowed to take up lots by AgenL.</p> <p>Nature of the Occupancy. — The occupancy may be for residence, or for business, or use, but the residence, business, or use, must be the claimants.</p> <p>Right of the Occupant. — A party having made a bona Jide occupancy can afterwards lease the ground and still retain his rights thereto; and he may sell his claim, provided that no contract either for sale or lease conflicts vvith the requirement that the title shall be made to an inhabitant, who is an occupant and has an interest, will be recognized in deciding to whom the Government title should go.</p> <p>Possession of Heirs. — The possession by the ancestor at his death is the possession by the heirs, and minor heirs cannot give up or surrender possession except by proper suit to which they are parties.</p> <p>Possessory Rights, .How Disposed of. — These possessory rights are treated as real estate in the manner of descent and distributions, and cannot be sold by administrators, except to pay debts incurred by the ancestor; but if they be treated merely as personal property, they cannot be sold to pay debts not incurred by the ancestor and not allowed by the Probate Court.</p> <p>Sale of Administrator, When Void. — An order of the Probate Court for the sale of such property to pay for improvements made years after the death of the ancestor, and Whilst there was no administration, is void; the Probate Court has no jurisdiction to render it, and no sale thereunder passes any interest or title, and the party going into possession under such order and sale is a trespasser.</p> <p>Widow’s Interest in the Husband’s Estate. — A party buying the widow’s interest in such property, can have Government title to the extent of such interest, provided that he becomes an occupant; but he cannot claim more than the widow’s interest, and can hold only in the nature of a tenant in common with the heirs, and not adverse to them.</p> <p>Possession of Trustee. — The .possession by one.as trustee cannot be set up to support an individual claim of possession.</p> <p>Right of Trespasser. — A claim based upon a trespass is not “rightful,” and cannot be maintained.</p> <p>Homestead Property, How Disposed of. — A homestead of a family is not subject to sale by adminintrators to pay debts, nor can any part of it be given away by the widow, nor otherwise taken from the heirs, except by due process of law in suit to which the heirs are parties.</p>