Volume 16 — Utah Reports

A. N. Cherry, Judge. Application by James G-. McAllister for a writ of mandate directed to George Swan, auditor of public accounts for Salt Lake City. The writ was denied and plaintiff appealed.

A ppeal from tlie Third, district court, Salt Lake county. Ogden Hiles, Judge. Action by; the Colorado Fuel & Iron poanpany against tlie Western Hardware Company and Oscar W. Moyle to set aside a deed of assignment for the benefit of creditors. Joseph Geogliegan and others intervened. From a judgment for defendants, plaintiff and interveners appeal. Cited: Smith v. Sipperly, 9 Utah 267; Cobhntz v. Driver, 10 Utah 96; Kohler.

Ogden Hiles, Judge. Action by tbe Central Trust Company of New York against the Utah Central Railway Company and others. From a judgment preferring the claim of Joseph Goddard, plaintiff: appeals. If there be no earnings, or if the earnings are insufficient to pay expenses, and there be no permanent improvements made and no interest whatever paid, upon no principle of law or equity could the bondholder be made to pay out of his own property the debts of the common debtor.

H. H. Eolapp, Judge. Action by Elizabeth J. Stephens on a fire insurance policy against the Union Assurance Society. From a judgment for plaintiff, defendant appeals. The policy provides, “ This company shall not be liable for loss caused, directly or indirectly, by invasion, insurrection, riot, civil war, etc.” This fire might have been occasioned by some of these causes, and the complaint is fatally defective in not averring that it did not.

Ogden Hiles, Judge. Action of tort by Jacob Anderson against the Daly Mining Company for injuries sustained by plaintiff while at work in defendant’s mine. From a judgment for defendant plaintiff appeals. The shift bosses on these separate shifts and the men ■on all the shifts were not fellow workmen as defined by the courts of Utah. The lower court took the extreme «lelilíilion of common employment, a definition which this court has repeatedly refused to adopt. Pool v. 8.

H. H. Eolapp, Judge. Action by Chari otta Louisa Young, an infant, by Nancy Martin, her guardian, against S. H. H. Clark and others, receivers. Judgment for plaintiff. Defendants appeal. Plaintiff was a trespasser upon the bridge; knew and understood her danger and voluntarily incurred it. Defendants used every effort to prevent the injury as soon as her condition .was discovered. She was herself guilty of contributory negligence. Mason v. By.

<p>PROMISSORY Note — Contemporaneous Agreement to Extend Payment-Consideration eor Extension — Agency.</p> <p>Defendant Richards solicited M. to procure a loan for him. M. procured the loan from the plaintiff, and defendant Richards, with Sells and Fisher, signed the note as joint makers, but Sells and Fisher were in fact accommodation makers, and Richards received all the money, but plaintiff, a non-resident, was not informed of these facts. Richards gave testimony tending to show that, before and at the time the loan was made, M. agreed to extend the note one or two years, if he desired it, and when the note was due M. gave him to understand that the note could be extended. No consideration was paid for such agreement, and it was not shown that M. had any authority to extend the payment, or do anything beyond loaning the money for plaintiff on the note. Interest was not demanded until sis; months after it was due. Defendant Richards wrote the note himself and did not include therein the agreement as to an extension. Held, that plaintiff’s motion, at the close of defendant’s case, to strike out the testimony, because no agency was shown on the part of M., and no consideration p.aid for the promised extension, and the agreement was contemporaneous with the making of the note, and varied the terms of the written instrument, should have been granted.</p> <p>Held, further, that, if the agreement to extend was contemporaneous, the agreement must be in writing, unless it is intended to show that by accident, fraud, or mistake, the agreement was unintentionally omitted from the instrument. If the agreement was made before the execution of the note, it follows that all the negotiations are presumed to be embodied within the instrument, in the absence of fraud or mistake. If the agreement was made afterwards, it would not avail the defendant, because no definite time was fixed or agreed upon for the extension, and no consideration was paid therefor. What M. said concerning the extension or renewal of tlíe note was incompetent, as he was not shown to be the agent of the plaintiff for that purpose.</p> <p> Liability of Sureties. </p> <p>It was competent for defendants S. and F. to show that they were accommodation makers, but this relation, when shown, would not relieve them, as sureties, from responsibility, because the note was not presented for payment until after it was due, unless an extension of time had been granted to the principal maker by the owner and payee of the note, or by his ' direction, for a valuable consideraticfn, and for a time reasonably certain, without the knowledge and consent of the sureties.</p>

Ogden Hiles, Judge. Action by the George R. Barse Live Stock Commission Company against the Range Valley Cattle .Company and J. M. Dart to compel a transfer of stock on defendant corporation’s books to plaintiff, and free plaintiff’s title to said stock from a cloud arising from a sale of the same to defendant Dart under execution in his favor. From a judgement for plantiff, defendants appeal.

A. N. Cherry, Judge. Action by Oscar W. Moyle, as assignee of the Burton-Gardner Company, a corporation, against the Congregational Society of Salt Lake City. Judgment for plaintiff. Defendant appeals. Oral testimony varying the written contract was no! admissible. 1 Greenleaf on Ev. 15th Ed. Sec. 275; Ninmam v. Suhr, 91 Wis. 392; Washabaugh v. Hall, 56 N. W. Bep. 82; Northern Trust Go v. Hillgen, 64 N. W. Bep. 909; Galmeletv.

Application by the State, on relation of J. A. Cunningham and others, for a writ of certiorari to J. J. Thomas and others, composing the State Board of Equalization. Judgment for relators.

<p>Constitutional Law — Tule to an Act — U. S. Laws and Mining RECORDS.</p> <p>1. A law entitled “An. act providing for the manner of locating and recording quartz and placer mining claims,” and providing that the records of claims should be made and kept by the county recorder at the county seat, and that records of such claims kept by the recorder in the respective mining districts should be delivered to the county recorder, is not in conflict with section 23, art. 6, of the state constitution, which requires that “no bill shall be passed containing more than one subject, which shall be clearly expressed in its title.” The term “manner,” as used in the title, means the method and way of locating and recording claims, and includes the instrumentalities and means used in effecting their location, and the recording of them.</p> <p>2. Section 8324, Rev. Stat. U. S.— Interpretation.</p> <p>Such a law does not conflict with section 2324, Rev. St. U. S., authorizing mining districts to make regulations not inconsistent with the laws of the United States or the laws of the state or territory in which the district is situated, governing the location, manner of recording, and the amount of work necessary to hold possession of mining clhims.</p>

<p>ContRact — Allegations—Statute op Limitations — Burden op Proof — Damages—Insufficient Allegations of Breach of Contract. •</p> <p>1, The allegation of the complaint in an action on a contract that defendant, an attorney, neglected to collect certain notes, or any of them, does not show a breach, when it appears from the terms of the contract that defendant simply agreed to use reasonable diligence to collect; nor is the allégation sufficient which states that defendant neglected to obtain judgment or bring suit, when he agreed to bring suit and obtain judgment in case plaintiff furnished the money to pay costs.</p> <p>2. The allegations of a complaint that plaintiff delivered to defendant 54 promissory notes for collection; that defendant ha$ returned 28, but refused to state whether any part of them had been collected, or whether any steps had been taken to collect; that he did not return the others, and' refused to account for them, or to infoi’m the plaintiff what steps, if any, had been taken to collect them; and- that, by reason thereof, plaintiff had been damaged in the sum of $5,400, — without an allega- ■ tion as to value, or as to the solvency of the makers, showed a breach of the contract, and a right to recover nominal damages.</p> <p>8. The notes came into defendant’s possession lawfully, and those not returned or sued on were held by him for plaintiff, and a right of action for them did not accrue until a refusal or failure to deliver upon demand, and the statute of limitations did not begin to run until that time.</p> <p>4. Statute of Limitations and Simple Oontracts. ■</p> <p>A receipt given by the defendant for the notes taken for collection constituted a contract between the parties, and the plaintiff's action being founded upon it, he had four years from the time the statute began to run within which to begin suit.</p> <p>5. Burden of Proof.</p> <p>Where defendant sets up the statute of limitations, the burden of proof necessary to sustain the allegations of the defense is on the defendant, unless the proof is furnished by plaintiff’s evidence.</p> <p>6. Reversal on Question of Nominal Damages.</p> <p>When there has been a full and fair presentation of the case on the trial in the court below, and the appellate court can say, as matter of law, that no more than nominal damages was proven, a judgment of reversal will not be made; but, when the court is not clear as to such presentation and trial, a reversal should be granted, and a new trial ordered.</p>

M. L. Ritchie, Judge. Action by Jane George against William L. Butler, Jabez G. Sutherland, and others to foreclose a mortgage, in which defendant Sutherland filed a cross complaint. From a decree in favor of Sutherland, plaintiff appeals.

A. N. Cherry, Judge. Action by the Belleville Pump & Skein Works, a corporation, against Alma Samuelson, George M. Cannon, and others. From a judgment in favor of plaintiff, defendants Samuelson and Gannon appealed, and plaintiff moves to dismiss the appeal.

H. H. Rolapp, Judge. Action by Edwin A. Peck against the Girard Fire & .Marine Insurance Company. Judgment for plaintiff. Defendant appeals. The “ loss ” payable clause is a mere direction to pay and does not constitute an assignment to plaintiff of any loss that may occur under said policy. Hodgson v. German Ins. Co., 56 N. W. 920; Williamson v. Mich. Fire £ M. Ins. Co., 57 N. W. 46; Hatch v. Ins. Co., 11 Fed. Rep. 29; Ins. Co. v. Davenport, 37J\!ich. 609.

W. N. Dusenbury, Judge. Action by the Eio Grande Western Railway Company against the Telluride Power-Transmission Company and others. Judgment for plaintiff. Defendants appeal.

A. G. Norrell, Judge. Action by James H. Bacon, as administrator of the estate of William F. Aulls, deceased, and others, against Joseph Thornton and others. From a judgment for defendant Thornton, plaintiffs appeal. Cited on the valuation of improvements: Van Bibber v* Williamson, 37 Fed. 759; Burwell v. SollocJc (Tex.), 32 S. TV. 846; Dickelr.

<p>1. Insurance — Mutual Benefit Societies — By-Laws—Construction of Pleading —Allegations of — Evidence—Findings.</p> <p>A by-law of a mutual benefit association provided that “any member, while engaged in any lawful avocation, receiving bodily injuries which alone shall cause * * * total and permanent loss of eyesight, shall receive the full amount of his policy.” M., who was a locomotive engineer, and to whom the association had issued a policy of insurance, received an. injury while engaged in lawful employment, which caused the total and permanent loss of the sight of one eye. Thereafter, and before the loss of eyesight became permanent, the by-law was amended so that the expression “total and permanent loss of eyesight” was made to read “total and permanent loss of one or both eyes.” It appeared from the record that the loss of one eye disabled the insured from pursuing his usual and accustomed occupation. In an action on the policy, held, that M. was entitled to recover.</p> <p>2. By-Laws — Construction of.</p> <p>Where associations or corporations are organized for the purpose of mutual benefit and relief, the terms of their by-laws must be interpreted liberally and reasonably; and, when they are susceptible of two constructions, that must be adopted which will more nearly carry out the benign object of the association, and sustain the claim of the injured.</p> <p>3. Complaint — Allegations of — Waiver.</p> <p>Where a complaint states a cause of action in general terms, objections that the allegations are indefinite or uncertain or ambiguous must be taken advantage of before judgment by proper pleading, or they will be waived.</p> <p>4. Improper Evidence — Reversible Error.</p> <p>Where a cause is tried before a court without a jury, the admitting in evidence of an answer to a question calling for a conclusion, though it may be improper, will not be regarded as reversible error, where, regardless of such answer, the evidence is sufficient for the court to enter judgment in favor of the opposite party, and the facts on which the conclusion was based have all been stated in evidence.</p> <p>5. Findings — Material Issues — Reversible- Error.</p> <p>It is not error for the court to fail to make findings of fact on immaterial issues raised by the pleadings, nor is it reversible error to fail to make find.ngs on material issues, when they would necessarily have been prejudicial to the appellant, and when those already found are sufficient to sustain the judgment.</p>

H. H. Eolapp, Judge. Action by Endolpli ICono-ld against the Eio Grande Western Eailway Company to recover damages for personal injuries. From a judgment for plaintiff, defendant appeals. The motion for change of venue was properly denied: People v. Richie, 12 Utah 193, and citations; Oroolcton v. 0. M.. Co., 13 Utah 116. The statute must be followed in making an application for change of venue: Railway Co. v. Railway Co., 6 How. Prac. 107; Ifouch v. Lasher, 17 How.

Ogden Hiles, Judge- Action by the Geyser Mining Company and others against the bank of Salt Lake and others. Frank Knox and C. H. Jacobs were appointed receivers. From orders appointing receivers, and other orders fixing their compensation, defendant Bacon appeals.

<p>Assault with Intent to Commit Rape — Rape—Question foe the Jury — Constitutional Law — Intent—Reasonable Doubt.</p> <p>1. When the essential elements constituting the crime of an assault with intent to commit rape are made out and established, the question is for the jury; and it is not within the legal power of the supreme court, under section 9, art. 8, of the constitution, to substitute its judgment for that of the jury, even if so inclined.</p> <p>2. Rape.</p> <p>Rape,is not committed upon the person of a woman over the age of 18 years when no circumstances of force or violence accompany the carnal knowledge. Force or violence, or threats of immediate and great bodily harm, accompanied by an apparent power of execution, are essential elements in the crime of rape. The general rule requires that there should be shown, not only force, violence, or fraud, but the utmost reluctance and the utmost resistance on the woman’s part. The essence of the offense charged is not in the fact of the intercourse, but the injury and outrage to the feelings of the woman by means of the forcible carnal knowledge.</p> <p>3. Assault with Intent to Commit Rape.</p> <p>In cases of assault with intent to commit rape, the intent with which the assault is made is of the essence of the offense; and, in order to convict, the jury must be satisfied, beyond a reasonable doubt, not only that the defendant had the ability and intended to gratify his passions on the person of the woman assaulted, but that he intended to do so at all events, and notwithstanding any resistance on her part.</p> <p>When the intent is the gist of the offense, that intent should be shown by such evidence as, uncontradicted, will fairly authorize it to be presumed beyond a reasonable doubt.</p> <p>4. Reasonable Doubt.</p> <p>A reasonable doubt is not a mere imaginary, captious, or possible doubt, but a fair doubt, based upon reason and common sense, and growing out of the testimony in the case. It is such a doubt as will leave the juror’s mind, after a careful examination of all the evidence, in such a condition that he cannot say that he has an abiding conviction, to a moral certainty, of the defendant’s guilt.</p> <p>5. Consent.</p> <p>In the absence of threats, no act of the defendant constituted an assault, if such acts were consented to by the woman, provided it appears that she had the capacity to consent.</p> <p>6. Reputation of Prosecutrix — Bad Character — Testimony.</p> <p>It is no excuse to the defendant that the person assaulted was a woman of bad reputation for chastity, if she was forced against her will. If the woman be of bad reputation for chastity, that fact is a proper matter for the consideration of the jury, as affecting her credibility as a witness, and as to whether she would be more unlikely to resist an assault of that character upon her person.</p> <p>7. Resistance.</p> <p>No more resistance, in any case, is required by law, than the condition of the woman will permit her to make.</p>

H. H. Eolapp, Judge. Action by the Detroit Heating & Lighting Company against Sidney Stevens on a contract. Defendant had judgment, and plaintiff appeals.

<p>1. Evidence.</p> <p>A witness giving the language of another cannot give his understanding of its meaning.</p> <p>2. Id. — Statement of Detective and Co-conspirator.</p> <p>When a witness has been engaged as a detective, it is not proper to put in evidence his statement to others as those of a co-conspirator and plotter with the defendants, made in furtherance of such plot or design.</p> <p>3. Detectives — Suspicions or Beliefs.</p> <p>The suspicions or beliefs of a person claiming to be a detective, of the guilt of a defendant on trial, cannot be given to the jury, though offered to show such person is not an accomplice.</p> <p>4. Detective — Influencing others to Commit Crime.</p> <p>While a detective may ferret out crime, he is not justified in influencing another to commit it.</p>

<p>Detective or Accomplice — Beliefs or Suspicions not Evidence.</p> <p>The beliefs or suspicions of a detective or accomplice, of the guilt or innocence of a defendant of the crime charged, or of any other crime, are inadmissible as evidence, whether stated to the jury by such detective or accomplice, or by any other person.</p>

H. H. Rolapp, Judge. Action by John Smith against North Canyon Water Company. Decree for defendant, and plaintiff appeals. Held: or claimed to hold, adversely to Rolfson; that as to Rolf-son there was no ouster or relinquishment of his rights; that up to the .time of the transaction between Rolfson and the plaintiff, in 1887, Rolfson was the owner of 10 acres of water right in the district, but, by reason of the failure to make proper conveyance, he abandoned…

E. V. Higgins, Judge. Anna Marks was found guilty of an assault with a deadly weapon, with intent to do bodily harm, and appeals from the judgment.

W. N. Dusenberry, Judge. Joseph E. Crook was indicted for attempting to procure an abortion. His plea of former acquittal was overruled, and he appeals.

A. N. Cherry, Judge. Action by the Mercur Gold Mining & Milling Company against William Spry, collector of Tooele county, and Tooele county. Plaintiff had judgment, and defendants appeal. This action was commenced to annul and declare void a tax sale made of respondent’s mining claim for taxes levied and assessed upon the net annual proceeds of its mine for the year 189-6.

A. N. Cherry, Judge. Action by the Belleville Pump & Skein Works against the Sorenson & Neilson Furniture Company and others to rescind a sale and recover personalty on the ground of fraud. From a judgment for plaintiff, defendants appeal. The extension of time for the payment of the debt will be deemed sufficient to entitle the creditor to the protection given to bona fide purchasers for value. 20 Am. & Eng. Enc. 592; Gilchrist v. Gough, 30.

W. N. Dusenberry, Judge. Action by Isaac N. Whittaker against William Ferguson to recover damages for removal of a fence. From a judgment for defendant, plaintiff appeals. On the question of prescription the following cases are cited: Elliot on Eoads and Streets, p. 137; Quinn v. Anderson, 11 Pac. 746; Shellhouse v. State, 11 N. E. 484; Smith v. Smith, 8 Pac. 385; Harding v. Jasper, 14 Cal. 651; Graham v. Hartnell, 7 N. W. 280; State v. Horn, 12 Pac. U8.

A. G-. Norrell, Judge. Suit by the North Point Consolidated Irrigation Company against the Utah & Salt Lake Canal Company and others for damages, and an injunction restraining defendants'from discharging befouled water into a certain canal, and to compel them to fill up certain ditches. There was a decree for defendants, and plaintiff appeals.

E. Y. Higgins, Judge. Action by Minnie Lockwitz against James H. Larson and another to determine right to town-site entry. A demurrer to defendants’ applications being sustained, they were stricken from the flies upon motion, and defendants appeal.

. A. N. Cherry, Judge. Action by Joseph M. Thompson against the Salt Lake-Rapid-Transit Company. Plaintiff had judgment, and defendant appeals. This action was brought to recover damages for negligently causing the death of the plaintiff’s son.

H. H. Rolapp, Judge. Action by Theodore G. Steinke, receiver of the Oass County Bank, against M. N. Graves on a note. Plaintiff was nonsuited, and appeals. In general, all ministerial duties which the principal has a right to perform, may be discharged by a deputy. This is a common-law rule. 5 A. & E. Enc. 624; TVright v. Langenour, 5^ Cal. 280 (282), citing 4 Cal. 188; Jobson v. Fennell, 35 Cal. 711; Miller v. Mayor of New York, 109 U. S. 385; the Confiscation cases, 87 TJ.

<p>Right op Wat — Easement—Town Site — Testimony Equally within Knowledge of Grantor’s Predecessors — Equity Practice — Appeal in Equity — Additional Findings of Pact —Dower.</p> <p>1. The statement of a deceased person cannot be received in evidence against the assignee of his heir in possession and in interest, under section 3877, Comp. Laws Utah 1888, as amended by Sess. Laws 1894, p. 26.</p> <p>2. The plaintiff claimed title under an heir of Brigham Young. Respondents derived their interest in the same premises from S. L. Sprague. Held, that Sprague was not a competent witness to testify to admissions made and conversations had with Young, deceased, which must have been equally within the knowledge of Young and the witness, under section 3877 Comp. Laws Utah 1888, as amended by Sess. Laws 1894, p. 26. Held, also, that this would not render the testimony of the wife of said Sprague incompetent in this respect, as she held and conveyed to the respondents no title in the land, but simply an inchoate right of dower; that her act of joining with her husband in a deed to respondents did not operate as to her by way of passing any estate, but that such act inures simply as a release to the grantee of the husband, of her possible future inchoate right of dower in the premises conveyed, and such act would not constitute her a grantor of the premises or vest in the grantee any greater or other interest than such as he derived from the conveyance from Sprague.</p> <p>3. Town Site Land — Probate Court.</p> <p>Under section 2817, Comp. Laws Utah 1888, known as the “Town Site Law,” it was not necessary that Sprague, who held an easement over the land of Young, the title of which was in the United States government, should, in order to protect his interest and rendfer the testimony of Mrs. Sprague competent, present their claim for an easement to the probate court for an adjudication, because such claim was simply an easement appurtenant to the adjoining land, and not an adverse claim, within the meaning of the statute. Sprague was not the rightful owner in possession, occupant, or entitled to the occupancy, of such way at the time, but the owner of an easement which recognized and conceded the fee, ownership, and right of possession of the land in the actual owner.</p> <p>4. Sale of Town Site Equity.</p> <p>An occupant in possession under the town site law may sell his equitable right to a lot before patent.</p> <p>6. An Appeal in Equity Cases — Constitutional Law.</p> <p>An appeal in equity cases brings up questions of both law and fact for review, and the appellate court may render such judgment and decree, and enter such findings, as, in their judgment, the evidence may justify.</p> <p>6. Additional Findings of Fact.</p> <p>It is not good practice, either in law or equity cases, nor is it proper in either, after findings and judgment, for the court to file additional findings at the request of either party while the judgment is allowed to stand; and the appellate court may disregard such additional findings, or make findings of its own.</p> <p>7. Parol Executed Grant — Easement—Right of Way — User.</p> <p>When it appears by a preponderance of the testimony that there existed a parol executed grant to the respondent’s predecessors in interest, of an easement or right of way over premises in dispute, and such right of way was accepted and used by the respondent’s predecessors in interest since 1868, and was peaceable, uninterrupted, continuous, exclusive, open, adverse as of right, with knowledge of the appellant’s grantor and predecessor in interest, and the respondents have succeeded to such rights, held, that the decree in favor of the respondents, decreeing such easement or right of way for all purposes of travel, should be affirmed.</p>

Ogden Hiles, Judge. Action by Samuel 0. Ewing and another against David Keith and another. From a judgment for defendants, plaintiffs appeal. It appears from the record that in 1893 the plaintiff Ewing, being insolvent, made an Assignment to George Cullins of all his property, for the benefit of his creditors, preferred and unpreferred. At the time of the assignment, Ewing was the owner of an undivided thirteen-fifteenths of the Eldorado mining claim.

H. H. Rolapp, Judge. Proceedings to change the boundaries between the Eighth and Sixteenth school districts of Davis county. On writ of review by the Eighth district against the board of county commissioners, its action was set aside, and the board appeals.

A. N. Cherry, Judge. A.ction by Mary E. Hanks against Thomas Matthews and others on an appeal bond. Judgment for defendants, and plaintiff appeals. This is an action upon a bond on appeal from the supreme Court of Utah to the supreme court of the United States, to recover damages from the principal and sureties on the bond for rents and profits from certain real estate in controversy, which accrued during the pendency of an appeal.

Jacob Johnson, Judge. Action by A. A. Taylor against A. M. Robertson. Judgment for plaintiff. Defendant appeals. Plaintiff commenced this action against the defendant to recover the value of certain sheep, alleged to have been taken and converted by the defendant.

H. H. Eolapp, Judge. Application for mandamus by E. D. Shepard and August T. Post, partners as E. D. Shepard & Co., against the city council of Kaysville city. Writ ordered to issue, and defendant appeals.

<p>Constitutional Law — Venue.</p> <p>Under Const., art. 8, sec.. 5, all actions, civil and criminal, must be commenced and tried in the county in which the causes arise, unless a change of venue be taken, after suit brought in the proper county, in such cases as may be provided by legislative enactment. Konold v. Railway Co., 16 Utah 161, affirmed.</p>

A. N. Cherry, Judge. • Action by William Fowler against the Pleasant Valley Coal Company. Judgment for plaintiff, and defendant appeals. There is no presumption that the plaintiff was using due care, where there is evidence tending to show negligence on his part.

A. N. Cherry, Judge. Action by Martin Murray and another against the Salt Lake City Railroad Company. Plaintiffs had judgment, and a motion for a new trial was denied. Defendant appeals.

<p>Contract — Evidence— Right op Action — Appeal — Harmless Error.</p> <p>1. An instrument drawn up at the time a written contract is entered into, but which is expressly stricken out, is not admissible in evidence as constituting a part of the contract.</p> <p>2. Id. — Parol Evidence.</p> <p>Whenever the terms of a contract are susceptible of more than one interpretation, or latent ambiguity arises, or the extent and object of the contract cannot be ascertained from the language employed, parol evidence may be introduced to show what was in the minds of the parties at the time of making the contract, and to determine the object on which it was designed to operate.</p> <p>3. Bight of Action — Parties.</p> <p>Where a promise or contract has been made between two parties for the benefit of a third party, an action will lie thereon at the instance and in the name of the party to be benefited, although the promise or contract was made without bis knowledge, and without any consideration moving from him.</p> <p>4. Evidence — Third Party.</p> <p>' A conversation had between a third party and defendant, respecting a claim of the third party against the mine out of which defendant’s obligation to plaintiff arose, is immaterial, and not admissible in evidence.</p> <p>5. Beversal — Errors must be Prejudicial.</p> <p>A reversal will not be granted upon an error committed in the introduction of evidence, when the error does not appear to be prejudicial to the rights of the appellant.</p>

<p>1. Negligence — Evidence of — General Objections — Exceptions to the Rule.</p> <p>In an action for damages arising on account of injuries received in a mine, evidence of defendant’s negligence and omissions of duty at another time and place neither prove nor tend to prove a particular neglect complained of, since it tends to draw the minds of the jury away from the main facts in issue, and since the adverse party, having no notice of such a class of evidence, is not prepared to meet it.</p> <p>2. Id.</p> <p>Testimony of a conversation concerning a transaction which had . no connection with the circumstances of which plaintiff complains, and which occurred at another time and place, should have been excluded.</p> <p>3. General Objections — Exceptions to — The Rule of.</p> <p>General objections to the admission of evidence are unavailable to the party making them, either on motion for a new trial or appeal. The particular grounds of the objection should be stated, so that the trial court may understand the nature of the objection before passing upon it. But the rule is subject to the exception that, if the evidence is clearly inadmissible for any purpose, a general objection will be sufficient.</p>

A. N. Cherry, judge. Action by Horace A. Heath against Salt Lake City. Defendant had judgment, and plaintiff appeals. Police officers are state officers, and not officers of the city. Boyce v. 8. L. Gity (Utah), 49 Pac. 290; IDill. Mun. Cor., Secs. 60, 210 and 975'; 19 Am & Eng. Enc. Law, 562.

H. Bolapp, Judge. Suit by the New England Loan & Trust Company against S. C. Stephens and others to foreclose a trust deed.

W. N. Dusen-ber.ry, Judge. Action by William E. Wilson against the Sioux Consolidated Mining Company to recover for personal injuries. From a judgment for plaintiff, defendant appeals.

E. Y. Higgins, Judge. Action by the Deseret Irrigation Company and another against Samuel McIntyre and others. From an order dismissing the action as to certain defendants, plaintiffs appeal.

<p>Appeal — Time por Filing Transcript.</p> <p>Where 30 days have expired, after an appeal was perfected, before the record was certified to be correct by the attorneys for the respective parties, or by the clerk of the district court, and filed with that officer, and-no extension, of time was given, and it does not appear the failure to file in time was induced by any promise or conduct of the respondent or of his attorney; and a motion to dismiss was made on the first day of the next term of this court, after the appeal, the motion to dismiss will be granted.</p>

Jacob Johnson, Judge. Action by Annie E. Morrow against Charles C. Merritt and George Calder to declare and foreclose a mechanic’s lien. From a judgment for plaintiff defendants appeal. Building contracts cannot be disguised under the name of lease or by the pretended relation of lessor and lessee. BurMttr. Harper, 79 N. T. 273; Otis r. JDodd, 90 N. Y. 336; Barclay r. Wainwright, 86 Pa. St. 191; Woodward r. Leily, 36 Pa.

<p>1. Pleading — Amendment—Election.</p> <p>In ejectment the defendant denied the plaintiff’s right, and in a counterclaim alleged ownership and right of possession in himself, and afterwards amended by alleging the fee in a third party, but still relied on possession and ownership in himself. Held, that the court did not err in overruling plaintiff’s motion to require defendant to elect on which right he would rely, ás there was, in effect, but one cause of action relied upon.</p> <p>2. Evidence — Rebuttal.</p> <p>A witness for defendant testified that plaintiff had made material admissions in a conversation with him. The plaintiff, in rebuttal, was asked as to those statements, and an objection by the defendant was sustained. The plaintiff having denied the conversation in her examination in chief, the ruling was not reversible error, though it would not have been error to overrule the objection.</p> <p>3. Appeal — Law Oases — Conflicting Testimony.</p> <p>Where there is evidence in law cases to support the findings, the supreme court will not weigh the evidence, and determine on which side it preponderates.</p> <p>4. Findings must be Essential to the Issues. v</p> <p>Where a finding of a trial court is not essential to the issues, they may, be set aside, and the judgment allowed to stand without them.</p>

E. V. Higgins, Judge. Suit by John Hague against tbe Nepbi Irrigation Company. There was a decree for plaintiff, and defendant appeals. The use must be adverse. 28 Am. & Eng. Enc. 1005, and cases cited in notes; Gox v. Olough, 70 Cal. 345; Alta Land Go. v. Sancoch, 85 Cal. 219. But in this case the plaintiff had a mill on the stream. He simply passed through his mill race the water that came to him. He did not use it or take it away from the stream.

H. H. Rolapp, Judge. .Action by John H. Hamner against Thomas H. Ballan-tyne. By amendment, B. K. Bloch & Co., a corporation, was made defendant, the action against the other being, upon plaintiff’s motion, dismissed. Plaintiff had judgment, and defendant appeals.

H. H. Rolapp, Judge. Action by Ogden City against the Bear Lake & River Water-Works & Irrigation Company and others for injunction and equitable relief. From an order appointing a receiver on plaintiff’s motion, defendants appeal. Where the question in a pending action is a dispute as to the title of the property, and both parties claiming title thereto, and. the defendant is in possession, equity will not appoint a receiver.

<p>1. Constitutional Law — Statute Lato — Adultery.</p> <p>Section 3, chap. 7, Sess. Laws 1892, being a part of the act of the legislature of the territory of Utah approved February 4, 1892, respecting polygamy, adultery, and other offenses, is not in conflict with any act of congress, and was a valid law of the territory when enacted; and by virtue of section 2, art. 24, of the state constitution, the law was continued in force under the state government until altered or repealed by the legislature. Under the provisions of section 3 of that act, adultery became a crime against the laws of the state.</p> <p>2. Adultery — Exclusive Legislation — Statutory Construction.</p> <p>The acts of congress defining “ adultery,” and prescribing punishment therefor, in the territories, as a crime against the United States, were not exclusive of territorial legislation on the same subject, and did not prevent the territorial legislature from punishing by statute the same act as an offense against'the territorial government and its laws.</p> <p>3. Organic Act — Territorial Legislative Power.</p> <p>Under section 6 of the organic act of the territory of Utah, the power of the legislature to legislate extended to all rightful subjects of legislation, consistent with the constitution of the United States and the provisions of that act, but all territorial enactments were subject to disappraval by congress; and the act of 1892 was a valid exercise of legislative power.</p> <p>4. Same Act an Offense against each of Ttvo Governments — Punishment for.</p> <p>Where a person perpetrates an act which constitutes a crime against the United States, and also an offense against a territory or state and its local laws, he is subject to punishment by each government, and neither of such punishments is in contravention of the constitutional inhibition against the twice putting in jeopardy for the same offense.</p> <p>5. Constitutional Construction.</p> <p>The specific reference in section 2, art. 24, of the constitution, continuing in force that part of the act of 1892 respecting polygamy, does not exclude from the operation of that section of the constitution the part of the act which refers to adultery.</p> <p>6. Same — Special Reason.</p> <p>Where it is manifest that at the time of the framing of the constitution, and the drafting of a certain provision thereof, there existed some special reason why one thing should be mentioned in such provision, and no such reason existed as to another, a reference to the former does not, as a general rule, exclude the latter; and, when such reason exists, the maxim, “ Expressio unius est exclusio alterius,” has no application,</p> <p>7. Same — Constitutional Convention — Proceedings of — Judicial' Notice.</p> <p>In construing a provision of the constitution, the court may, to ascertain the true meaning and purpose of the provision, tal;e judicial notice of the proceedings of the convention which framed the constitution.</p> <p>8 Same -Prisoner — Examination—Waiver.</p> <p>Under section 13, art. 1, Const., and section 4509, Rev. St., a prisoner has the right, with the consent of the state, to waive examination before the committing magistrate; and if none was had, and, when called upon to plead, he fails to interpose the objection that he has not been lawfully committed, or waived an examination, but goes to trial without objection, the examination will be presumed to have been waived, and after trial he will be precluded from insisting on the objection.</p> <p>Zane, C. J., dissenting.</p>

<p>Appeal from the Third district court. A. G. Norrell, J udge.</p> <p>George Pierpont was convicted of fornication, and appeals.</p>

<p>Application for writ of prohibition by the state, on the relation of A. C. Bishop, attorney general, against the state board of corrections and its members.</p> <p>No briefs were filed.</p>

A. N. Cherry, Judge. Application by Arthur Pratt for a writ of mandate against George Swan, city auditor of Salt Lake City. A demurrer to the petition was sustained, and the petition dismissed. Plaintiff appeals.