Volume 15 — Utah Reports

Hon. A. N. Cherry, Judge. Mandamus proceeding by Arthur Pratt against the board of police and fire commissioners. From a judgment for defendant, plaintiff appeals. This is an action in m-andamus to compel tbe respondents to reinstate the appellant to the office of chief of police of Salt Lake City, on the ground that he has been unlawfully removed therefrom.

Hon. W. M. McCarty, Judge. Action by John H. Eccles against the Union Pacific Coal Company and others to recover damages for forcible and unlawful detainer. There was a verdict for plaintiff, the amount of which the court declined to treble; and, from a judgment entered thereon, plaintiff appeals.

<p>Appeal from tbe Third district court, Salt Lake county. Hon. Ogden Hiles, Judge.</p> <p>Action of tort by Andrew Anderson against the Daly Mining Company for injuries sustained in a mine.</p> <p>Cited: Consolidated Coal & M. Co. v. Ford, 25 L. Rep. An. 848-56, (Ohio); Cullen v. Bull, 45 Pac. Rep. 1017-20; Petaja y. Aurora, 66 N. W. Rep. 951-2; Finlaysen y. Utica, 67 Fed Kep. 507; Davis y. 8. P. R. R., 98 Cal. 19-25; Burns y. Bennett, 99 Cal. 363-8; Lewis Con. Coal Co. y. Scheller, 42 Ill. App. 619; Kelly y. Norcross, 121 Mass. 508; McQinty y. Reservoir, 155 Mass. 183-7; City of Minn. y. Lundin, 58 Fed. Rep. 525-29; Mansco y. Cataract Co., 34 N. Y. Supp. 507; Qulf C. é 8. F. Ry. Co. y. JacJcson, 65 Fed. Rep. 48.</p>

Hon. C. H. Hart, Judge. Action by Hiram H. Henderson and George H. Burgitt as administrators of the estate of Edward A. Reed against Louis B. Adams and others, asking that a certain trust deed be set aside, that a receiver be appointed, that defendants account for all property received by them, and that the receiver be directed to sell the property received by him or so much as may be necessary to pay a judgment held by plaintiffs against Louis B. Adams et al. Judgment for…

Hon. M. L. Ritchie, Judge. Action by James Thompson against M. J. Cheesman. On the death of plaintiff, Frank Thompson, executor, and Joseph R. Lane, administrator, were substituted as parties plaintiff. From the judgment, plaintiffs appeal.

Hon. E. V. Higgins, Judge. E. G. Wilson was convicted originally in a justice’s court for moving a building onto the street in violation of an ordinance of Eureka City, and appeals. That such an ordinance is invalid and unconstitutional, see: Frazee’s Case, (Mich.) 6 Am. St. Eep. 310; In re Garrabad, (Wis.) 36 Id. 948; Gity of Chicago v. Trotter,-136 Ill. 430; Anderson v. Gity of Wellington, (Kan.) 10 Am.

Hon. E. V. Higgins, Judge. R. G. Wilson was convicted in the justice’s court of Eureka City of the violation of an ordinance of that city which defines its fire limits and provides that no wooden building shall be erected within such limits except certain small buildings described in the ordinance, and appeals. That this ordinance is unconstitutional and void; see the following authorities: Bissonies v. Oity of Indianapolis, 71 Ind. 189 5 Oity of Richmond v. Dudley, 28 Am.

<p>Habeas Corpus — Jurisdiction — Criminal Law — Judgment— Validity.</p> <p>1. Where a prisoner convicted of the crime of murder is in the custody of the proper officer, who detains him under a warrant, fair and regular on its face, issued after conviction and judgment by a court of record, which had jurisdiction of the person and subject-matter, he will not be discharged on habeas corpus.</p> <p>2. In a criminal case, where the ‘ district court has jurisdiction of the person and cause, its judgment is binding on all the world, until reversed in a regular way by appeal. A fortiori is this so after the judgment has been affirmed by the supreme court. Such a judgment is final, and pronounces the law of the case; and the supreme court will not, upon habeas corpus, look beyond it, and review the proceedings upon which the judgment was pronounced.</p> <p>3. A prisoner’s detention under a judgment, the commitment being regular on its face, cannot be unlawful unless the judgment is an absolute nullity, and irregularities and mere errors in proceedings will not render it an absolute nullity, although they may render it voidable; and, when voidable only, it is conclusively presumed to be valid until reversed, and it cannot be reversed by habeas corpus.</p> <p>4. Where a case has been tried in a district court, and the judgment rendered at the trial has been affirmed by the supreme court, such trial and judgment will be presumed to be legal, and cannot be questioned upon habeas corpus for anything except a want of jurisdiction, shown upon ' the face of the record or proceedings, as ruled upon in the supreme court.</p>

Hon. A. N. Cherry, Judge. Action by John A. Fritseh against the board of county commissioners of Salt Lake county and others. From a judgment for plaintiff, defendants appeal. No briefs filed.

Hon. A. N. Cherry, Judge. Action by the Pleasant Valley Coal Company against the board of county commissioners of Salt Lake county, Utah. Judgment for plaintiff, and defendants appeal. No briefs were filed.

Hon. M. L. Eitcbie, Judge. Action by tbe Weyetb Hardware -and Manufacturing Company against tbe James-Spencer-Bateman Company and another to set aside a deed of assignment. From a judgment of dismissal, plaintiff appeals. No briefs were filed.

Hon. Ogden Hiles, Judge. Defendant was convicted of the crime of abortion and sentenced to eight years’ imprisonment. From the judgment he appeals.

<p>Homicide — Former Jeopardy — Challenge of Juror — Evidence —Identification by Deceased — Instructions—Presumptions.</p> <p>1. Defendant was tried on an indictment upon which he might have been convicted of murder in the first or second degree, or of voluntary or involuntary manslaughter, and found guilty of murder in the second degree. Upon appeal a new trial was granted. Held, that defendant could be tried again for murder in the first degree after the verdict of guilty of murder in the second degree has been set aside on his motion.</p> <p>2. A challenge may be properly sustained when a juror entertains conscientious scruples against the death penalty."</p> <p>3. The identification of defendant by deceased may be admitted in evidence when made by deceased under a belief of impending death, although in making it he refers to a former identification, — a part of a statement made by him, and excluded, because defendant was told to keep still when he undertook to deny an accusation made by the deceased.</p> <p>4. After retiring, the jury may return, and ask to be instructed as to the punishment for voluntary and involuntary manslaughter, and it is not error in the court to read them the law on the subject.</p> <p>5. When an oral charge has been given, the presumption is, in the absence of any statement in the record to the contrary, that the reporter took it down as required by. statute.</p> <p>Miner, J., dissenting.</p>

Hon. W. M. McCarty, Judge. Brigham Spencer was convicted of larceny and appeals. On tbe question of election counsel for tbe state cited: Anderson v. People, 7 N. E. Eep. 265; Herman v. People, 131 Ill. 594; Note to 9 Lawyers’ Reports, Anno. 182; Thompson v. State, 22 S. W. Rep. 979; Green v. State, 17 S. W. Rep. 262; State v. Hodges, 26 Pac.

<p>Habeas Corpus — Attempt to Commit a Crime — Period of Sentence.</p> <p>1. Attempts to murder otherwise than by poisoning or assault are included in the general description of attempted crimes defined in section 4744, Comp. Laws Utah 1888.</p> <p>2. Petitioner was sentenced to. imprisonment for 12 years for an attempt to commit murder. Held, that under section 4744, Comp. Laws Utah 1888, providing that a person attempting to' commit a crime may be sentenced to imprisonment not exceeding half of the longest term for which he might have been imprisoned had he committed the crime, the petitioner might be sentenced for twelve years, although it was uncertain that he would have lived 34 years had he committed the crime and been sentenced for life.</p>

Hon. John A. Street, Judge. Action by Charles Mader for money had and received against the Taylor-Romney-Armstrong Company and by the same against the Salt Lake Building and Manufacturing Company. Judgment for defendants. Plaintiff appeals.

Hon. E. V. Higgins, Judge. Action by C. D. White against V. H. Pease and others for conversion. From a judgment for plaintiff and an order denying a new trial defendants appeal.

Hon. Ogden Hiles, Judge. Action of tort by William Handley against the Daily Mining Company for injuries sustained by plaintiff while employed in defendant’s mine. From a judgment for defendant plaintiff appeals. This is an action brought by the plaintiff to recover damages for an injury received by him while at work for the defendant in its mine.

Hon. G-. W. Bartch, Judge. Action of replevin by Helen I. Blish and others against W. S. McCornick and others. From a judgment for defendants plaintiffs appeal. This is an action of replevin commenced March 16, 1895, in the district court of the Second judicial district of the territory of Utah, in Beaver county.

Hon. A. C. Hatch, Judge. Action on a promissory note by Franz Jungk and another against L. Holbrook and others. Judgment for certain defendants. Plaintiffs appeal. This action was brought against Cropper and Eeed, as makers of three promissory notes for $7,000, and against respondents Holbrook and Duggins, as indorsers. The notes were payable in Salt Lake City, where the plaintiffs resided. Eespondents resided in Proyo, in the First district, where the action was brought.

On motion for rebearing. For former opinion, see 24 Pac. 673. The suit was instituteS-a number of years ago by tbe plural wife and her childreli against the estate of Hand-ley for a share of the property of the decedent. The probate court, the district court and the supreme court of Utah all decided the case adversely to contestants. An appeal was then taken to the supreme court of the United States, and the appeal was dismissed on jurisdictional grounds.

<p>Appeal — Amendments — IRRIGATING Rights — Appropriation — Abandonment.</p> <p>1. Where, from an examination of the record, it appears that plaintiff had a primary right to use sufficient water of a certain creek for irrigating certain lands, and no abandonment of such right, as contemplated by the statute, was shown by defendants, the supreme court may so modify the decree of the trial court as to make it comply with the showing made in the record of the cause, and award to plaintiff an equitable portion of the water in dispute.</p> <p>2. A prior appropriator of water of a certain stream cannot so increase his demands and use of the water as to deprive a subsequent appropriator of his rights acquired before such increased demands and use.</p> <p>3. An appropriator who permits a part of the water to run to waste or fails to use a certain portion of it for some beneficial purpose, is only entitled to that part of the water actually applied-to a beneficial use.</p>

Hon. John A. Street, Judge. Action by John Baxter Donaldson against Frank A. Grant and others. From judgment for defendants plaintiff appeals.

Hon. A. N. Cherry, Judge. Action by Mary Judge against John D. Spencer, collector of Salt Lake county, to recover the amount paid, under protest, to the collector on mortgages held by plaintiff, on the ground that the constitution and laws of the state do not authorize the taxing of mortgages. To the complaint a demurrer was interposed on the ground that the complaint did not state a cause of action.

<p>Attachment — SheRiff—Justification—Liability of Attaching Creditors — Judgment by Default — Bill of Sale — Replevin —Allegations of Fraud — Appeal—Abstract—Costs.</p> <p>1. Attaching creditors are not liable for the acts of a sheriff unless by interference in some way they make themselves liable. They are presumed to have intended that no action should be taken by the officer not authorized by the terms of the writ. And it is not error to grant a non-suit, as to creditors who have been joined in a suit with the sheriff, when the record furnishes no evidence tending to show that the officer was authorized or directed by his co-defendants, or either of them, to levy upon the particular goods in question or any goods except such as belonged to the debtor. The receiving of the proceeds of the sale in satisfaction of their claims implies no consent to any irregularities or proceedings of the officer, and they are not joint wrongdoers with the sheriff.</p> <p>2. Where one of the attaching creditors files no answer to such a suit brought, and plaintiff fails to show liability as to any of such creditors, it is not error to deny judgment by default against a creditor thus failing to file an answer.</p> <p>3. It is not error in a court to direct a jury to return a verdict of no cause of action, in a proceeding in replevin for. the possession of goods or their value, against a sheriff who attached the same as the property of B., when the liability of the officer depends upon the validity of a sale of the goods claimed to have been made by bill of sale which has never been recorded, and where there was no change of possession, as required by section 2837, Comp. Laws Utah 1888.</p> <p>4. In replevin the rule that, where a party to an action relies upon fraud, he must allege and prove it, does not always apply. Where the plaintiff alleges ownership generally, and right of possession without disclosing the origin of title, or stating facts showing it, the defendant may traverse the allegations of the complaint, and, under the issue thus formed, may prove that the plaintiff’s title was founded in fraud, and introduce any evidence which tends to show that the plaintiff had neither title in the property nor right of possession thereof.</p> <p>5. Where property is found in the possession of the defendant in attachment proceedings, and the writ under which the levy was made and the property seized was issued by a court or officer having lawful authority to issue it, and is in legal form, the officer may justify the levy by producing the writ.</p> <p>6. When the omissions and inaccuracies of appellant’s abstract render the filing of an additional abstract necessary, the costs of such additional abstract may be taxed against appellant.</p>

<p>Equity — Findings op Fact — New Trial — Presumption.</p> <p>1. While the supreme court has power, under section 9, art. 8, of the constitution, to review questions of fact in an equity case, still, when such cases have been regularly tried before a court of chancery, and facts found on all material issues, the appellate court will not disturb such findings unless they are so manifestly erroneous as to demonstrate some oversight or mistake which materially affects the substantial rights of the appellant.</p> <p>2. Where it is urged that a trial court erred in refusing a new trial on the ground of newly-discovered evidence, and it does not appear from the affidavits why the newly-discovered evidence could not have been produced at the trial, and the transcript shows no assignment of error upon the action of the trial court thereon, and where it does not appear on the hearing of the appellant’s motion for a new trial that the court’s attention was directed to the affidavits, or that they were considered by the court, or identified as’fpapers used on the hearing, the appellate court will not consider the affidavits. The appellate court must presume that the court below committed no error in overruling a motion for a new trial, and the burden of overthrowing this presumption, and of showing that the action of the court was erroneous, is on the appellant.</p>

Hon. M. L. Ritchie, Judge. Action by Harriet Ann Watson and David Kay against Andrew P. Mayberry, Judgment for plaintiffs. Defendant appeals. An order overruling a motion for a new trial is not appealable. North Point Irrigation Co. v. Canal Co., 14 Utah 155; Eastman v. Gurrey, 14 Utah 169; Yoimg v. Shellenherger, 41 N. B. 519; Holdsworth v. State, 18 N. B. Rep. 430; Kearney v. Snodgrass, 7 Pac. 309; Boberts v. State, 3 Tex.

Hon. M. L. Ritchie, Judge. Bill by J. F. Hamilton and John S. Rohrer against John E. Dooly. Decree for defendant, and plaintiff appeals. This is a suit in equity, brought to establish a trust in favor of the plaintiffs, and to compel an accounting by the defendant, as trustee, for certain proceeds of the sale of a mine, and for other property which came into his hands as trustee and executor of an estate.

<p>Promissory Note — Attorney’s Fee — Neqotiability.</p> <p>1. The fact that the makers of a promissory note undertake to pay an attorney’s fee if suit should be brought to enforce the collection of the note does not render the note non-negotiable.</p> <p>2. A note falling due in the hands of the payee ceases to be negotiable. Afterwards indorsers take it subject to the same defenses that could have been made to it in the hands of the payee. The stipulation to pay attorney’s fees in case of suit binds the maker to pay them as a part of the costs of the remedy, but he cannot be required to pay more than the fees actually charged. They are for the attorney, not for the plaintiff.</p>

<p>Appeal — Notice—Adverse Party.</p> <p>Plaintiff obtained a judgment by default on foreclosure of a mortgage on realty against S. as receiver of a partnership and T. as administratrix. The money for which the mortgage had been given was received and used by the partnership, and the land mortgaged was partnership land. The administratrix was the wife of one of the partners, and' a deficiency judgment was entered against her. Upon appeal the administratrix failed to serve notice on S., the receiver. Held, that S. was an adverse party under section 3636 Comp. Laws 1888, and that the failure to serve him with notice was fatal to the appeal.</p>

Hon. J. A. Street, Judge. Action by John A. Montague against George McOarroll. From a judgment for plaintiff, defendant appeals. This action was brought to quiet title to 20 acres of land, which plaintiff claimed to own.

Hon. H. H. Eolapp, Judge. Action by Alfred H. Nelson, administrator of the estate of Charles A. Nelson, deceased, against the Southern Pacific Company. Judgment for plaintiff. Defendant appeals.

Hon. H. H. Rolapp, Judge. Action of Philander V. Saunders against the Southern Pacific Company for injuries received on defendant’s railroad. From a judgment for plaintiff, defendant appeals.

<p>Homestead — What Constitutes.</p> <p>In an action brought by the plaintiff to enjoin defendant from selling certain land on execution, on the ground that it was exempt, under section 3429, subd. 11, Comp. Laws Utah 1888, relating to homesteads, held, that the land, not being the residence of the plaintiff or his family, nor in any manner appurtenant to, or used in connection with, their residence, nor selected by the plaintiff for a homestead, is not within the exemption provided for in the statute, and hence subject to sale by the judgment creditor.</p>

N. Cherry, Judge. Action by George E. Woolley against the Maynes-Wells Company, a corporation, and John Kerkman, assignee thereof. Judgment for defendants. Plaintiff appeals. That the court had perfect power to take this bond, and that it is good as a common law bond, in the absence of express statutory authority, is abundantly supported. Barnes v. Webster, 16 Mo. 258; Wright v. Keyes, 103 Pa.

Ogden Hiles, Judge. Action by the Blyth & Fargo Company against E. A. Swenson, J. B. Swenson, and S. J. Stookey. From a judgment for plaintiff, and an order refusing to set aside the same, defendant Stookey appeals. No personal judgment could be rendered against the defendants not served.

<p>Discharge oe Employe — Waiver oe Right.</p> <p>In determining whether an employer had violated the terms of his contract, an instruction by the court to the jury as follows: “If you find a waiver or condonation of any particular act, that act cannot subsequently be relied upon by the employer as a reason to discharge the servant. Such discharge must then arise from another act or acts occurring subsequently to those waived or condoned,” — is not error, since the court did not say that an act subsequent to one waived as a justification for a discharge might not be considered in the light of such former acts and conduct.</p>

<p>Waters — Irrigating and Domestic Uses — Findings—Certainty.</p> <p>1. Where the findings and decree are that the defendant is the owner and entitled to the use of sufficient of the water of two certain natural streams to irrigate a total of 31 acres, and that the plaintiff is the owner and entitled to the use of all the water of the same streams, subject to the rights of the defendant, and the rights of defendant and plaintiff to the water in question are not otherwise specified or determined, held, that the findings and decree are not sufficiently certain, and that the same should be modified by finding and decreeing the amount of water necessary, in * second-feet, or the fractional part of the.streams in question, that will be sufficient to irrigate defendant’s 33 acres.</p> <p>2. A finding that the defendant “constructed a small ditch” at a certain point, over the land of said defendant, and down to his house, and that he has diverted therein “a small amount of water for culinary and domestic purposes,” and a decree that the defendant is entitled to maintain said ditch, and to run therein at all seasons of the year sufficient of the waters of said stream for his culinary and domestic purposes, and that plaintiff is the owner and entitled to the use of the waters of said stream, subject to the rights of the defendant, held to be uncertain, and that the same should be modified by finding the quantity of water, in second-feet, or the fractional part oT the stream in question, that defendant is entitled to for his culinary and domestic purposes, and decreeing the same to him.</p>

M..L. Ritchie, Judge. Action by William H. McClure and others against James T. Little and Elias A. Smith. The Deseret Savings Bank intervened. From the judgment, plaintiffs appeal. If the alterations were fraudulently made, not only the notes, but the original debt for which they were given, are destroyed or wiped out.

' Appeal from the Third district court, Salt Lake county. John A. Street, Judge. Action of quasi-contract by Margaret Thompson against Harry P. Hynds and Thomas McDermott. From a judgment for defendants, plaintiff appeals.

W. H. King, Judge. Action by the Victor Gold and Silver Mining Company against the National Bank of the Republic and others. Judgment for defendants. Plaintiff appeals. ' Groesbeck could not be the purchaser. Any purchase by him was a redemption and a payment.

John A. Street, Judge. Action of tort by Guy C. Royce against Salt Lake City for false imprisonment.

N. Cherry, Judge. Ejectment by May Eastman against A. E. Gurrey.. From a judgment for plaintiff, defendant appeals.. Ii there was no definite parcel of land assessed, there was no lien, and if there was no lien, there could be no legal sale — see abst. p. 19.

<p>Appeal from the Second district court, Weber county. H. H. Rolapp, Judge.</p> <p>Action of tort by James Alfred Wrigbt against the Southern Pacific Company. Judgment for plaintiff, defendant appeals.</p>

. Ogden Hiles, Judge. Quo warranto by Joshua Coit and others against Charles M. Freed and others. Judgment for defendants.. Plaintiffs appeal. This is an action in the nature of quo warranto, brought under the statute to determine whether the appellants or-respondents constitute the lawful board of directors of the Sheep Rock Mining & Milling Company.

Salt Lake county. Ogden Hiles, Judge. Action by John W. Chandler and others against the Sheep Eock Mining & Milling Company and others. From a judgment for defendants, plaintiffs appeal.

<p>CORPORATION — Capital Stock — Assessment—Injunction.</p> <p>1. For a decision of the question as to who constitutes the lawful board of directors of the defendant corporation reference is made to the case of Coit v. Freed, 15 Utah 426, and for a decision of the question whether a certain assessment made by that board was valid reference may be had to the case of Chandler v. Milling Co., 15 Utah 434.</p> <p>3. No subsequent assessment can be levied on the capital stock of a corporation under section 3376, Comp. Laws Utah, 1888, until the power of the corporation has been exercised to collect any previous one which remains unpaid, unless the collection of such previous assessment has been prohibited by injunction, so that it can be of no avail to the corporation.</p> <p>3. Where the collection of an assessment on such stock is enjoined merely by a restraining order issued pending an order to show cause why a temporary injunction should not issue until a final determination of the suit, it does not affect the validity of the assessment, but simply suspends the power to collect it until the day for the hearing of the order to show cause; and if upon the day so fixed there is no appearance of parties, and no continuance of the hearing or of the motion for the injunction, such restraint upon the collection of the assessment is at an end.</p>

<p>Appeal from the Third district court, Salt Lake county. M. L. Ritchie, Judge.</p> <p>Action by the Salt Lake Lithographing Company and others against the Ibex Mine and Smelting Company and others. From the judgment, W. S. McCornick appeals.</p>

. M. L. Ritchie, Judge. Suit by Salt Lake Lithographing Company and others: against the Ibex Mine & Smelting Company and others. G. W. Black and one hundred and twenty other inter-veners appeal from the decree in favor of plaintiffs- Cited: Flanders v. Murphy, 25 Pac. 1052; Marshall v..

J. W. N. Whitecotten, Judge pro tern. Action by J. Jordan against the city of Mount Pleasant. Judgment for plaintiff. Defendant appeals. In the states where the common law rule with reference to surface water is held to be in force, it is also held that flood waters are surface waters and as such may be defended against. Shelbyville v. Green, 99 Ind. 205; Jean v. Pennsylvania Go., 36 N. E. Bep. 159; Howards. Bes Moines, 62 la. 326; Railway Go. v. Keys (Kan.) 40 Pac.

<p>Appeal from tbe Third district court, Salt Lake county. A. G. Norrell, Judge.</p> <p>Action by E. W. Reese, administrator of Meredith Reese, against' the Morgan Silver Mining Company. From a judgment for defendant, plaintiff appeals.</p> <p>Cited: Olsen v. By. Go., 9 Utah 129; FranMin v. By. Co., 83 Cal. 63; Souse v. Meyer, 100 Cal. 592; By. Go. v. Peterson, 55 Fed. R. 940; By. Go. y. Jarvi, 53 Fed. R. 65; Owens v. Bailroad Go., 26 Atl. 748; Bichmond & D. B. Go v, Bowers, 149 U. S. 43; Ballmer v. By. Go., 83 Wis. 459; Huntress v. By. Go , 34 Atl. 154; Beaver v! By Go , 43 Pae. 1136; Bowers v. By. Go., 4 Utab 215; Beddon v. By. Go., 5 Utab 344; B. B. Go. v. Steinley, 17 Micb. 99; Inger-man v. Moore, 90 Cal. 410; Gisson v. Sehwabeelcer, 99 Cal. 419; Biddoclc v. By. Go , 5 Utab 612.</p> <p>Dougherty v. West Superior Iron & Steel Go. (Wis.) 60 N. W. 274; Washington, etc., Bailroad Go. v. MeDade, 135 U. S. 570; Senior v. Ward, 10 Morrison Min. Rep. 651; Bed-don v. Bailway Go., 5 Utab 344; Diamond Blate-Glass Company y. Dehority, 40 N. E. Rep. 681; Southern Baeifle y. Seley, 152 U. S. 145; Booney y. Seioall & Day Cordage Go., 36 N. E. Rep. 789; Writt y, Girard Lumber Go., 65 N. W. Rep. 173; Malm y. Thelin, 66 N. W. Rep. 650; Klattv. W.. 0. Foster Lumber Go., 66 N. W. Rep. 791; Ghicago B. & Q. B. Go. y. MeGinnis, 68 N. W. Rep. 1057; Wuss y. Bafsny-der (Pa.) 35 Atl. 958, Bonnet y. Galveston, H. & S. A. By. Go., 31 S. W. Rep. 525.</p>

<p>VENDOR AND PURCHASER — MORTGAGES—SURETYSHIP.</p> <p>JL, in part payment of purchase price, gave a mortgage to D. Before the maturity of the notes given with the mortgage, K. sold the property to O., who assumed the payment of the notes after their maturity. D., in consideration of an increase of ■the interest on the notes, extended the time of their payment without the consent of K., and the value of the mortgaged property depreciated from the time of such extension below the face of the mortgage debt. Held, that K,, the mortgagor, ■was released from liability on the notes.</p>

<p>Suit by S. W. Darke against the Board of County Commissioners, Salt Lake county, for a writ of prohibition.</p>

A. G. Norrell, Judge. Action by Salt Lake county against Francis Armstrong and others, county commissioners of Salt Lake county, sitting as a board of equalization. From the judgment defendants appeal. (No briefs were filed.)

<p>Application by the state, on the relation of Joseph P. Bache, against Morgan Richards, Jr., state auditor. H. 'W. Griffith intervenes.</p>

C. H. Hart, Judge. J. B. Carrington was convicted of murder in the second degree, and appeals. It is apparent that if the dying statement in writing .was admissible tbe oral statements were not admissible. ■If it was committed to writing it is essential to produce tbe writing, wbicb is tbe best evidence. Greenleaf on Evidence (14fch Ed.) 161; Rex v. Gay, 7 C. and P. 230; Rex v. Reason, 1 Strange 499; Boulden v. State, 15 So. Rep. 341.

<p>Constitutional Law — Tbial by Eight Juhobs — Due Pbocess op Law.</p> <p>The trial of defendant by eight jurors for the crime of larceny, committed before the admission of Utah into statehood, is not a contravention of the rights guarantied by section 10 of article 1 of the constitution of the United States, and is due process of law within the meaning of that constitution. State v. Bates, 14 Utah 293, affirmed.</p>

<p>Contract Construed.</p> <p>The defendants, who owned 11-16 of the Dalton and Lark mining claims, received from plaintiff $2,000, upon the agreement that if within one year from June 15, 1891, they, or either of them, should transfer any interest in the claims, they would pay on demand to the plaintiff the sum of $2,000. The contract concluded, “Otherwise such sum of $2,000 shall not be repaid by us to him.” Held, that the defendants were bound to repay at the end of the year, they not having done so before.</p>

Ógden Hiles, Judge. Action by Nathaniel Montgomery against Anton Rief and others. From a judgment for plaintiif, defendants Hiram Spencer and Thomas Dee appeal. That Spencer and Dee were liable to material men by the terms of the bond, see: Slump v. Myer, 20 Neb. 223; Cooper t. Foss, 15 Neb. 515; Steiuart' v. Snelling, 15 Neb. 502; Sample v. Hale, 34 Neb. 220. The court erred in sustaining the demurrer.

John A. Street, Judge. Action by the Bear River Valley Orchard Company against Peter M. Hanley and others. From a judgment for plaintiff defendants appeal.

H. H. Eolapp, Judge. Suit by Nellie E. Fisher and others against Harriet S. Emerson. Judgment for plaintiffs. Defendant appeals. After the court made and filed its findings, it had no power or authority to hear other testimony or make other findings without a motion for new trial by the plaintiff, nor without setting aside its findings of fact and granting such new trial.

C. H. Hart, Judge. Action by R. H. Jones against the New York Life In-sura nee Company to secure the amount of an insurance policy issued to plaintiff’s brother, Lewis H. Jones, deceased. B. H. Jones, the administrator of the estate of Lewis H. Jones, was made defendant, and the company upon paying the policy to the clerk of the court was discharged. Judgment for defendant B. H. Jones. Plaintiff appeals.

E. V. Higgins, Judge. Action by Willis L. Mangum against Bullion, Beck and Champion Mining Company for injuries sustained in defendant’s mine. From a judgment for plaintiff, defendant appeals. There must not only be objection amounting to protest on the part of the servant, but that there was promise express or implied sufficient to induce the servant to remain, and upon which he acted.