Volume 2 — Utah Reports

<p>Note. — The following opinion was rendered by Hon. Alexandre white, while be was Chief Justice of Utah Territory, at the January Term, 1876, of the Supreme Court — and was not published in 1st utah, because the opinion had not been filed with the Reporter. Owing to the importance of the case, it is deemed best to publish it now.</p> <p>Hagan, Reporter.</p> <p>1. National Bank Act. — The National Banking Act was framed for two purposes: One was to furnish suitable fiscal agencies and safe deposi-taries for public moneys for the Federal Government, and the other, to provide a National currency for the people of the United States, based upon National securities and guaranteed by the United States.</p> <p>2. Taxation by State. — In the absence of express legislation by Congress, providing for and permitting it, neither a National Bank, nor United States bonds, constituting, in whole or in part, its capital stock, can be taxed by authority of a State.</p> <p>3. Taxation of National Banks by a State. — A State cannot tax a National Bank.which is the financial agent or public depositary of the Federal Government. A law imposing such tax would be unconstitutional.</p> <p>4. Taxing Power. — The power to levy taxes is one of the leading, if not the highest, attributes of legislative power. It is an evidence of sovereignty, without which no government could exercise the powers delegated to it.</p> <p>5. Taxing Capital Stock of a Bank. — A tax on the capital of a National Bank is not the same thing as a tax on the shares of which the capital is composed — and e converso, a tax on the shares of individuals in a National Bank is not the same as a tax on the capital stock of the Bank.</p> <p>6. Power to Tax National Banks. — There is nothing in the Constitution of the TJnite'd States, nor in the National Banking Act, which precludes the Territorial Legislature from taxing the franchise of banking by a tax upon the individual shares of the stockholders in National Banks.</p> <p>7. Taxes Paid Under Protest. — Taxes unlawfully levied, and collected under protest, can be recovered back.</p>

The facts appear in the opinion of the Court. “ Each party must allege any fact which he is required to prove, and is precluded from proving any .fact not alleged,” is a fundamental rule, as old as the history of pleading, and is no where more strictly enforced than under the Code. Oreen v. Palmer, 15 Cal. 411. The court will see that the fact that the defendants own the “ No You Don’t” mine, though admitted, could not help their case.

When the jury was called in the case, those who belonged to and were members of the Mormon Church, were asked if they believed in the doctrine of polygamy, and they answered that they did, but that they would agree to enforce the law against it. That they believed that polygamy came from God, and that God’s law was the higher law. Whereupon they were severally excluded from the jury by triers appointed by the court.

<p>1. Indictment — How Signed. — In the absence of a statutory requirement, an indictment need not be signed by the United States District Attorney, and therefore if the same is signed by the Deputy District Attorney, the mere signing is surplusage.</p> <p>3. Record Must Contain All the Evidence. — When the bill of exceptions fails to state that it embodies all the evidence in the case, the Appellate Court will presume that there was other and sufficient evidence to fully sustain the verdict.</p> <p>S. Instructions — How QrvEN. — Instructions should always be given in reference to the evidence in the case, and the whole charge of thé court should be construed together.</p> <p>4. Newly Discovered Evidence — Cumulative.—A new trial will not be granted on the ground of newly discovered evidence, when such evidence is cumulative merely.</p> <p>5. Several Distinct Larcenies in Same Count. — The alleged larceny of several distinct articles may be joined in the same count, although such several articles belonged to different owners, where the time and place of the taking of each are the same.</p> <p>6. Judicial Notice. — The court will take judicial notice that one who was in the grand jury room pending the investigation of a charge was a duly appointed Assistant District Attorney.</p>

The facts are stated in the opinion of the court, and also in the case of Kahn v. Hamilton, post. The powers of the trustees are limited by the terms in which they are conferred, and must be strictly pursued, (Martin v. Farnsworth, 49 N. Y. -555,) and must be construed with reference to the subject matter of the trust. Taylor y. Ha/r-low, 11 Barb. 232; 2 Story’s Eq. Jur. § 1,276.

The facts are stated in the opinion of the court. Held: that a usage in conflict with plain and well established rules of law is not admissible in. evidence in any case, and must be disregarded. A custom must be certain. The doctrine of bona fide purchase, under registry laws, is the equity doctrine on that subject.

The facts are stated in the opinion of the court. Only one point is involved herein. Can the owner of a vein, located prior to May 10, 1872, and who was in the possession thereof at such date, follow his vein ’ within the surface ground of another, even though such surface ground be patented? The Butte Patent was issued October 17, 1874, and, as shown by “ Exhibit A,” crossed the north end of the Oregon Mining Claim.

The facts are stated in the opinion of the court. The District Court had no jurisdiction in this case, for the reasons that— 1. The right of appeal, both as to its existence and the manner of its exercise, is a creature of statute. Unless given in express terms, or by necessary implication, it does not exist. Golding v. Jennings, Hagan’s R. 135; Appeal of Houghton, 42 Cal. R. 35.' 2.

<p>1. Appeal in Criminal Case — How Taken. — An appeal in a criminal case is taken by filing the notice of appeal with the Clerk of the Court, and serving a copy thereof upon the adverse party or his attorney.</p> <p>2. Record in Supreme. — Where the record shows the filing of a notice of appeal, but is silent as to its service, affidavits will not be received in the Supreme Court to show that the notice of appeal was in fact served upon the adverse party.</p>

<p>Appeal from the First Judicial District.</p> <p>The facts are sufficiently stated in the opinion of the court.</p> <p>No briefs on file.</p>

The facts appear in the opinion. The rule of damages on the ore due is the value of the ore at the time and place of delivery. 3 Parsons on Contracts, 205, et seq./ Shepherd v. Hampton, 3 Wheat. 200;… Held: on what then appeared in the case on motion, that the directors could not lawfully make the contract or give the power. It is not held in that, and we believe in no other case, that a corporation may not give such power as part of a security.

The facts are stated in the opinion of the court. The complaint alleges that by the promissory note defendant Popper “ promised to pay the order of A. Godbe, cashier of said bank.” This allegation, as it stands, makes A. Godbe the payee, and the words “ cashier of said bank ” are merely a desci’iption and designation of the man Godbe.

The facts appear in the opinion. The administrator is a proper party when he has title, but not after distribution or conveyance to heirs. Curtis v. Cutler, 15 Cal. 259; Meelcs v. Holm, 20 Cal. 620. The statute which gives possession and control of real property of deceased to administrator, only applies to cases arising since the statute was passed. Soto v. Hroder, 19 Cal. 87, pp. 97, 98; Coppinger v. Bice, 33 Cal. 423; Dwwner v. Smithy 24 Cal. 114; Peoples.

<p>1. Pbactice. — Statement on Appeal, When to be Piled. — Where a party appealing from a judgment does not file and serve a statement on appeal within twenty days from the entry of the judgment, his right to be heard on a statement is waived, and the case will be heard on the judgment roll alone.</p>

The facts are stated in the opinion of the court. The joinder of the Territory and county as parties plaintiff' was proper, if, under the tax law, the assessment of a tax,, without description of the land, constitutes a lien upon real estate, because their interests, or equities rather, were equal;, neither has a priority over the other; the assets from a sale-must be marshaled, and if insufficient to pay the whole, must be applied pro rata/ and the plaintiffs had a right to…

The defendants are not suable at law, and a court of law has not jurisdiction of the subject matter. •. Tbe defendants are sued as trustees, and the pleadings and evidence disclose the precise nature of their trust; it is correctly described in the answer. The action is a suit at law, not in equity, and is brought on promises alleged to be binding on the defendants in their fiduciary capacity.

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

The facts are sufficiently stated in the opinion of the court. In an action by two or more plaintiffs, if there is an interest in the subject of the action, even though it be only scintilla juris in one of the plaintiffs, as for example, he i* a mere trustee, it is sufficient to maintain the suit. Story’s Eq.

Action for the claim and delivery of.personal property, brought by the respondents against the appellant. The complaint is in the regular form, and alleges that plaintiffs were in possession of the property and were the owners thereof, at Ogden, Utah, on the 28th day of April, 1873; that the value of the property was $10,000, and asks damages for its deténtion in the sum of $2,000.

The facts sufficiently appear in the opinion of the court. The first error assigned is denying the defendant’s motion for a non-suit on the ground that plaintiffs failed to prove the partnership alleged to have existed at the time of the execution of the note between Frank Randall and H. D. Winsor. Where the action is against partners it is necessary to allege and, if denied, to prove the partnership as alleged. Amable v. OonkH/n, 25 N. Y. R. 473; Grcmdall v. Beach, 7 How.

The facts are stated in the opinion. While in the case of minor offenses, as in misdemeanors, an arraignment may be waived, in felonies an arraignment and plea are always essential; certainly a plea is absolutely necessary in any case. The court cannot supply an issue after ver-diet where there has been neither an arraignment nor plea, notwithstanding that the defendant has consented to go to trial. People v. Games, at late term of Cal. Sup. Court; Peoples.

The facts appear in the opinion. No brief on file. The question of greatest general importance is as to whether, in any event, the court will look into the Legislative Journal to ascertain whether a law has passed or otherwise?

An indictment against the appellant for murder in the first degree was returned into open court on the 28th day of September, 1877. On the 29th day of „September, 1877, the appellant, be:ng in court in the custody of an officer, was duly arraigned, and entered his plea of not guilty.

The facts are stated in the opinion. Where an action is brought upon an account stated, tlie stated account, if denied, must be proved before plaintiff can recover. Melchoi/r v. McOarty, 31 Wis. 252; Racovillot v. Rene, 32 Oal. 450; DeWitt v. Porter, 13 Cal. 171; Abadie v. Carillo, 32 Cal. 174; Hawkins v. Borland, 14 Cal. 413; Stout v. Coffin, 28 Cal. 65; 2 Greenleaf’s Ev. §§ 126,127, and cases cited; Beuhler v. Reed, 11 Iowa, 182.

<p>1. Timber Agents, COMPROMISE by. — Under the act of Congress punishing trespassers on public lands for cutting timber without authority, the Government is not bound by any compromise made by its timber agent, unless such agent has regularly pursued his authority.</p> <p>2. Another Action Pending, Effect of. — Where plaintiff obtains his title from the Government, he is not bound by the records in another suit to which he was not a party, although in such suit the title to the same property was involved.</p> <p>3. Instructions, How Reviewed. — It is not proper to point out a single instruction, and claim it to be objectionable of itself, but all the instructions must be considered together.</p>

<p>1. General Issue in Ejectment — Under the denial of the title of plaintiff in the answer, the defendant can give in testimony any title in himself at the commencement of the suit, without specially pleading it.</p> <p>3. Supplemental Answer — What to Contain. — Any title to the premises in dispute that accrued to the defendant after the commencement of the suit must be set up by a supplemental answer, otherwise defendant cannot avail himself of it.</p> <p>3. Termination op Plaintiff's Right During Suit. — Where it is claimed that the plaintiff’s right has terminated during the pendency of the action, the fact cannot be shown unless pleaded by a supplemental answer by defendant; otherwise if the fact appears from the plaintiff’s own evidence.</p> <p>4. Patent prom: Government after Suit. — A patent from the Government to the defendant for the premises in dispute, issued after the commencement of the suit, must be pleaded by a supplemental answer.</p> <p>5. Motions Affecting Pleadings. — It, is the better practice to bring motions designed to affect the pleadings and settle issues, to a hearing before a cause is called for trial.</p> <p>6. Patent Title — Relation of. — A patent title, when granted, relates back to the first initial valid step, which is the foundation of the right and in pursuance of which the patent is issued.</p> <p>7. Patent Title — Relation of. — As a location notice in the acquisition of mineral lands is the first step in that direction, the same is proper evidence in connection with the patent to show the claim to which the patent refers.</p> <p>8. Expert Testimony. — Expert testimony proper is given on questions of- science, skill or art, by persons educated or experienced and deemed competent to speak concerning the matters in issue; but on matters which are open to common observation, and in regard to which a jury are supposed to have knowledge or experience, the witness must state the facts only and not give opinions.</p> <p>9. Expert Testimony as to Continuity of Vein. — The question as to the continuity of a vein discussed, and under the facts held that expert testimony was admissible upon the question.</p> <p>10. Opinions as Evidence. — While the opinions of experts are not the safest evidence, and are liable to great abuses, still when they constitute the best available form of evidence they must be resorted to from necessity.</p> <p>11. Defendant not Confined to One Title. — In ejectment, under a claim of the defendant that he is the owner of the premises in dispute, be can support such claim by showing that he has several different titles thereto.</p> <p>13. One Form: of Action, etc. — While all the forms of action have been abolished by the Code, the inherent distinction between legal and equitable causes of action, and the remedies appropriate to each, are not changed.</p> <p>13. Gbant by Patent when Attacked. — It is now settled that, in an action of ejectment, in certain cases a patent of the United States may be shown to be void. As in instances where the patent is void upon its face, or issued without authority, or its issue prohibited, etc.</p> <p>14. Grant by Patent when Attacked. — Where the government had the title and it passed by the grant, it can only be recalled or made subject to equitable interests of other parties by an. action in equity brought for that purpose; and in such cases, although fraud may have been practiced or other parties held superior equities the patent is not void, but only voidable in equity.</p> <p>15. Grant by Patent when Attacked in Law Actions — The rule is otherwise in actions at law, for in such cases the patent can be attacked only upon the ground that it is void in its issuance.</p> <p>16. Want of Authority to Issue Patent. — The want of authority which will make a patent void is a total want of authority to issue the same for the subject of the grant, and not a latent impropriety in exercising the authority by reason of unknown impositions moving to its exercise.</p> <p>17. Equitable Defense Must be Set Up. — An equitable defense may be set up in an action of ejectment, but such defense must contain all the essentials of a bill in equity, and the issue thus made is triable by the court, without a jury, as an equitable issue.</p> <p>18. Equitable Defense Must be Set Up. — This rule does not, however, avail a plaintiff who bases his claim on a legal title., and is met by a superior legal title of defendant; in such case he cannot be permitted to attack the title of defendant on purely equitable grounds.</p> <p>19. Ejectment a Suit of Title. — In an action of ejectment the question is as to who has the better title; therefore, before a defendant can prevail on an inferior or equitable title, he must first, in equity, subject the better title to him. He must become an actor and invoke equitable affirmative relief.</p> <p>30. Statutory Denials of Answer. — Where the statute provides that the allegations of the answer shall be deemed to be denied, this does not take the place of a bill in equity on which to grant affirmative relief.</p> <p>31. Patent of Mining Claim. — A patent to a mining claim passes whatever title the government had to the surface and any vein or veins beneath it not otherwise granted; and its issuance presumes a compliance with the mining laws.</p> <p>22. Purchasing- Adverse Titles. — One who purchases an adverse title to his premises is not estopped from denying that such title is not good. One has a right to “ buy his peace.’’</p> <p>23. Notice op Location. — Anotice of location of a mining claim should contain a description of the premises located, and the same should he marked on the ground.</p>

The facts appear in the opinion of the court. The lien law, upon which this issue is based, will be found on pp. 386, 399, Revised Statutes of Utah, and the same being in derogation of the common law must be strictly construed. 1 Oal. 185; 2 Oal. 90; 29 Cal. 286. The law was intended for the benefit of laboring men.

<p>1. Continuance. — An order of the court below refusing a continuance will not be reversed unless there has been an abuse of discretion. When an affidavit for continuance contains very little of a definite nature the court should deny a motion for continuance.</p> <p>2. Opening Judgment. — Defendant, on motion to vacate a judgment, set up by affidavit that he had gone on a journey, and had been mistaken as to the distance he had to travel and in consequence was detained from court longer than he had anticipated, etc.: Held, the court did not commit error in refusing the motion.</p>

<p>1. Justice Court Summons, when Quashed.— In an action commenced by an officer in his official character, the summons must affirmatively disclose the official capacity in which such officer claims to act, otherwise it will on motion be quashed.</p> <p>2. Costs in Certiorari. — Where a writ of certiorari is directed to a Justice of the Peace, who is the only party to the proceedings in the District Court, it is error upon setting aside the judgment of the inferior tribunal to enter judgment for costs against such Justice.</p>

The facts involved in the appeal are stated in the opinion of the court. In trespass at common law, the allegation of value or damages was not traversable, and the plaintiff could recover only tlie damages which the proofs showed him entitled to. So under the code it is not a material allegation, and is not admitted although not denied. Pomeroy’s Pern. etc. §§ 532,613, 614, 617; Jenkins etal. v. Steanka, 19 Wis. 128-140; 7 Wis. 525; Gonnoss v. Mew, 2 E. I).

The facts are sufficiently stated in the opinion of the court. The Practice Act only provides for one trial on issues of facts, and but for one answer, in which the defendant may set up any new matter constituting a defense. Sec. 46, Practice Act. Where it appears upon the face of the complaint that there is a defect, or misjoinder of parties, the defendant may demur, otherwise the objection may be taken by answer. See § 40, Sub-division 4, of Practice Act. § 44 Practice Act.

Respondent commenced in said court her action against the defendant for the recovery of certain personal property of the alleged value of $450, and also claimed damages for the detention of such property in the sum of $250. The complaint was duly verified. After giving the necessary bonds, respondent by proper proceedings obtained possession of the property sued for.

The complaint, omitting the formal parts, was as follows: Plaintiffs allege that at the time of the earliest settlement made in Salt Lake County, Utah Territory, A. D. 1847, there was and still is a well defined stream of water, known and designated as Butterfield Creek, flowing from a canyon in the mountains, situated at and near to the southwest corner of Great Salt Lake Yalley, in Salt Lake County, Utah, and flowing northeast down said'canyon (Butterfield canyon) a…

The Supreme Court at the hearing of the cause found the following facts: First — That lot number two (2), block seventy-eight (78), plat “ A,” is embraced within and forms a part of the entry of public lands made on the twenty-first (21st) day of November, 1871, for the use and benefit of the occupants thereof, residing in Salt Lake City, under the provisions of an act of Congress entitled “ An Act for the relief of the Inhabitants of Cities and Towns upon the Public Lands,”…

The facts appear in the opinion. The facts set forth in these affidavits were sufficient to entitle the defendant to a continuance. People v. MeCrory, 41 Cal. 458; People v. Brown, 46 Cal. 102; People v. Ver-rrdlyea, 7 Cow. (N. Y.) 383. When there is no evidence of taking, leading, or driving away, as charged in the first count of the indictment, a new trial should be awarded and verdict set aside, the mere possession of stolen property not being sufficient to convict.

<p>Appeal from the Third J udicial District Court.</p> <p>The facts appear in the opinion.</p> <p>It scarcely requires the citation of authorities to show that memoranda or entries by plaintiff in his own account book, could not be used as evidence in his favor to show a sale to defendant. Wharton on Agents, pp. 159, 160; 1 Halsted on Ev. p. 325, § 91; Soper v. Veazie, 31 Me. 122.</p> <p>The plea of non-joinder of parties plaintiff operates, under the proofs, to defeat the plaintiff’s action. He certainly has no legal capacity to sue upon the contract according to his own evidence. Cases, Whitney v. Stark, 8 Cal. 516; Lvneker v. Ayeshford, 1 Cal. 75; 1 Yan Sandtvoord’s PL, pp. 128-9, 98-125, 121-130, 131-1. Exceptions, see § 78, C. C. P. of Cal.; 3 Cal. 267-165; 37 Cal. 183; Swift v. Swift, 16 Cal. 267; Tinlrnm v. O'Neal, 5 Nev. 95; Mexican Mill v. Yellow Jacket, 1 Nev. 10; McKenzie v. Amoroux, 11 Barb. (S. C.) 516; Bennett v. Scott, 1 Cranch. (C. Ct.) 339; The A. Cheese-borough, 3 Blatchf. (C. Ct.) 305; Karin v. Tesson, 1 Black. 309.</p> <p>Goodspeed, as “ manager,” could not maintain an action in his own name, upon a contract made for the Reed & Benson co-partnership. Goodenov) v. Ewer, 16 Cal. 171; Abel v. Lore, 17 Cal. 237.</p> <p>The motion for a non-suit should have been granted. Evidence as to who were interested in the event of the suit should have been admitted. S. K. de P. Ganal Oo. v. Snow, 19 Cal. 155; Whitney v. Stark, 8 Cal. 516; Bowe v. BacigoVwpi, 21 Cal. 631; Sweet v. Tuttle, 1 Kern, 168; Wooster v. Ohambef-lain, 28 Barb. 602; Pr. Act, § 150, §§ 17, 12,1, 11.</p> <p>Respondent argued the case orally, and has no brief on file.</p>

The facts appear in the opinion of the court. The court erred in admitting evidence of assignment in bankruptcy from Anderson to Firman. After the order was made, October 23d, there was no change in the pleadings. The complaint at the time of the trial was the same amended complaint which Anderson had filed- — the order was ex parte, and had no effect to enlarge the issue to be tried.

Bespoudent moved to dismiss the appeal upon the ground that no undertaking on appeal had been filed, as required bylaw. It appeared from the record that an undertaking on appeal had been made and perfected on the 29th day of May, 1876, but not filed until July 7,1876. That a notice of appeal had been filed and served on July 7,1876.

<p>1. CONFLICT of Testimony. — Where there is a conflict of testimony in the court below, this court will not ordinarily disturb the findings.</p> <p>2. Review of Action of Lower Court. — Where the record discloses a substantial conflict of testimony, this court will not undertake to say whether the action of the court below in its conclusions, was correct or not.</p>

Action on the official bond of respondent, Nelson, as United States Marshal for Utah Territory, for an alleged false imprisonment of appellant. The other respondents were all sued jointly with Nelson, and were sureties on the bond. Marshal Nelson had the penitentiary in charge, but had no control of any other prison.

Action to recover certain premises alleged to be owned jointly by plaintiff and defendant and in the possession of defendant. The verdict was as follows: “We tbe jury in tbe case of Peter Zillicmskyolclt v. Geo.

The facts appear in the opinion of the court. The demurrer ought to have been sustained. Whenever a mandamus is sought against a fiscal officer of the government, to compel payment of a public indebtedness, it must appear from the law and the facts stated, that the indebtedness is such an one as the officer is authorised to allow, and that it is his duty to pay it or cause it to bo paid.

The plaintiff was a mining corporation, organized under the “Companies Act” of 1862 and 1867, of the Kingdom of Great Britain, and its board of directors ordered the secretary to enter into a contract in its behalf with Erwin Davis, one of the defendants, by which it agreed to appoint defendant- Patrick, its agent and manager of all its mining property, (which was situated in Utah Territory) and for his retention in that position, until out of the profits of the workings of…

On the 9th day of February, 1877, “The People of Salt Lake County, for the use of themselves and for the use of the people of the Territory,” as plaintiffs, commenced an action in said District Court against Robert J. Golding, William Howard, H. P. Kimball, and H. S. Beatie, for the sum of $11,911.22, for moneys alleged to have been collected by said Holding, as Tax Collector of Salt Lake County, for the year 1875, and which sum he failed to pay over to the Territorial…

The bill of exceptions was not certified by the judge of the court below, nor was it agreed to by the attorneys for the people. Upon the case being called for argument in this court, the counsel for respondent, moved to strike the same from the files. The defendant was indicted on the 6th day of May, 1876, for the crime of robbery, alleged to have been committed on the 18th day of January, 1876. The other facts appear in the opinion of the court.

The facts appear in the opinion of the court. No brief on file. The determination of the motion in the District Court, under section 68, Practice Act, was so far discretionary that the decision will be reversed only in case there was a manifest abuse of discre'.ion. Woodward v. Badeas, 20 Cal. R. 137; Coleman v. Banlcin, 37 Cal. R. 247.

Daniel Spencer, a member of the Mormon Church, died at Salt Labe City, leaving five wives surviving him.

Both appeals were heard together. The facts are stated in the opinion of the court. And as to the facts in that part of the case, as we cannot abbreviate the testimony, and counsel have agreed that the abstract contains all the testimony, that each party might use the whple abstract, we content ourselves with referring the court to it.

<p>Appeal from the First Judicial District Court.</p> <p>The case is reported in 1 Utah, 335. Bespondent filed a petition for a rehearing.</p> <p>“A. sells eighty quarters of barley to B., but does not specifically appropriate any quarters. B. sells sixty of the eighty quarters to C. C. informs A., who assents to the transfer. C., being satisfied with this, says nothing further to B. as to delivery. B. becomes bankrupt. A. cannot, in an action by C. to recover the barley, deny that he holds for C. on the ground that for want of specific appropriation, no property passed to B.”</p> <p>The foregoing principles are taken from the case of Knights v. Wiffin, which was decided by a full court in the Queen’s Bench in 1870. Lang. Sel. Cases on Sales, 766. See, also, Gillett v. Kill, decided in the. Exchequer, Ibid. 755; White-house v. Frost, decided in King’s Bench, Ibid. 734; Ka/wes v. Watson, Queen’s Bench, Ibid. 656; Stonard v. Dunl&in, Ibid. 653; Ghapmcm v. Searle, 3 Pick. 38.</p> <p>The doctrine of estoppel by conduct, applies alike to the buyer and seller, and to sub-vendee and original vendor, as well as to bailees, in whose possession the property was lodged at the time of sale. Kimberly v. Patchim, 19 N. Y. 330.</p> <p>When a vendor appropriates the chattels sold to the vendee, the sale is complete, and the property passes to the purchaser. Benj. on Sales, § 360; Merchants'1 Nat. Bank v. Bangs, 102 Mass. 295; Hatch, v. Lincoln, 12 Cush. 33-35; 2 Starkie on Ev. 489.</p> <p>The question whether a sale has been completed or not rests in the intent of the parties, and such intent is always a question of fact for the jury. 1 Pars, on Con. 528; LeBidder v. McKnigkb, 13 John. 294; Biddle v. Yarrrmn, 20 Pick. 284; Bodee v. Wade, 47 Barb. 53.</p> <p>We take the position, “ that the goods sold must be ascertained, designated and separated from the stock or quantity, with which they are mixed before property can pass; and this position, well sustained as it is, must be, and is, conclusive of this case. Hutchinson v. Ilwnter, 7 Burr, 145; Haldeman v. Bwncan, 51 Pa. 66; 2 Kent’s Com. 640; Bopely et al. v. Mackes et al., 6 Cowen, 250.</p> <p>The above position is fully sustained by the following authoi’-ities, almost all of which are directly in point: 18 Pick. 305, 549; 6 Pick. 280; 13 Pick. 215; 24 N. H. 336; 34 N. H. 300; 9 Allen, 502, 498; 11 Cush. 573; 22 N. H. 172; 43 N. H. 141.</p> <p>Benjamin on Sales, lays down the same doctrine in sections 311 and 312, and even more fully in section 352.</p> <p>The distinction drawn by the last authorities, between the rules as applied to grain, flour and such articles, and that applied to horses, cattle, sheep, etc., is clearly defined, and the reason given therefor in the case cited by the respondents. Kimberly v. Patchen, 1971 N. Y. 330.</p> <p>On the doctrine of estoppel, appellants also cite: Bigelow on Estoppel, 369, 370,480,531, 534, 535, 540, 549, 550; 1 Pars, on Con. (5 ed.) 527.</p>

Action to foreclose a mortgage. The complaint was in the ordinary form of foreclosure,. and contained the following allegation among others: “That there is now .due and owing upon said note the sum of $1,493, with interest thereon at ten per cent, per annum from November 24, 1875.” The answer contained the following denial of said allegation: “ Denies that at the commencement of this, suit or at any other time there was due or owing upon the note mentioned in the complaint,…

<p>1. Local Mining Laws. — Congress lias given the local laws and customs of miners the force and effect of laws, so far as they are not in conflict with any superior law.</p> <p>2. Location op Mining Claim. — The notice of location is presumed to refer to the surface ground as well as to vein or lode located — and if the latter are held by the notice of “ location,” that must be along the general course or strike of vein.</p> <p>3. Act op Congress — Suupace Ground. — It is clear that the Government did not intend, by the act of Congress of July 26,1866, to authorize the miner to locate, or itself to grant, two separate and distinct estates in a mining location, one in the surface ground, and the other in the vein or lode, whenever the latter might he found to run in its course, without regard to the surface ground.</p> <p>4. Location Must Cover Vein, etc. — Under the provisions of sections 2 and 4, of the act of Congress of July 26, 1866, the right to follow a vein claimed under a mining location, is expressly confined to depth, and such act cannot by any fair construction, be made to apply to the strike or course of the vein.</p> <p>5. Location Must Cover Vein, etc. — The foregoing sections of the act of Congress referred to, qualify and enlarge the common law right by which miners hold their locations, and that is to this extent only: That the owner of a mining claim may follow his lode or vein from the apex found within his surface ground, on its dip, to any depth, although in its downward course it may so far depart from a perpendicular, as to enter the land adjoining; hut he cannot go beyond or outside of his side lines on the course or strike of the vein.</p> <p>6. Surpace Location — Side Lines, etc. — The ¡location of a mining claim should be made along the course of the vein or lode, so as to include the same within its boundaries; otherwise, it will only secure so much of the lode or vein as it actually covers.</p>

•The facts are sufficiently stated in the opinion of the court. The sole question raised on this appeal is whether the court below erred in refusing an injunction to the plaintiff by holding that the judgment debtor has an equitable interest by the effect of the contracts of February 16, and April 19,1877, set forth in the record, and the payments which were made thereon.

<p>Appeal from the Third Judicial District Court.</p> <p>Respondents moved to dismiss the appeal.</p> <p>The other facts are stated in the opinion of the court.</p>

The case was submitted on November 17, 1877, and on November 21, 1877, the court filed its findings of fact and conclusions of law, and on the same day the judge rendered a written opinion in the case. On the 5th day of December, 1877, at the request of plaintiff, and after the judgment had been entered upon the former finding, the court caused other findings to be filed in the cause.

This was an action by plaintiff against defendant to recover damages for injuries resulting from a pistol shot wound in the right arm of plaintiff, alleged to have been’ carelessly and negligently inflicted by defendant upon plaintiff without any fault or negligence on his, the plaintiff’s, part. On November 29, 1875, a difficulty occurred between one Baxter and defendant McIntyre, at Eureka, Juab County, at the store of Baxter.

The facts are stated in the opinion of the court. This case is fully within the code, even if it is held that there are two or more contracts in this matter, for all the alleged causes of action that arise out of the contract are between the same parties, are triable in the same place, and they were separately stated in the complaint.

Action to recover possession of a portion of the Live Pine Mining Claim, in the West Mo'untain Mining District, alleged to be in the possession of defendants; also, for a perpetual injunction. At the trial the plaintiff had judgment as prayed for; whereupon defendants (appellants) moved for a new trial, upon the two grounds mentioned in the opinion.

No brief on file. Under a grant of power to the Territorial Legislature “ to legislate upon all rightful subjects of legislation,” such legislature has the power to create municipal corporations and invest them with such powers as the legislature itself might exercise within their limits. 1 Dillon on Mun.

Application in the court below for a writ of mandate directed to the County Court of Salt Labe County, commanding such court to audit and allow a certain claim of the relator against the County of Salt Lake. Petitioner had been sheriff of said county, and had charge of the county jail and the prisoners therein confined, and had fed and clothed them, while in custody, and had also incurred expenses in arresting such prisoners, and conveying them from place to place.

The facts are sufficiently stated in the opinion of the court. Plaintiff should have given notice of an acceptance of the guaranty and of an intention to act on it. Douglas v. Reynolds, 7 Pet. 117; Lee v. Dick, 10 Pet. 482; Mv.ssey v. Ray-nor, 22 Pick. 223; 2 Parsons on Con. 174, 175; Reynolds v. Douglas, 12 Pet. 408; Fell on Guar. (3d Am. ed.).295, note; Louisville M. Go. v. Welch, 10 How. 461.

Action to foreclose a mechanics’ lien upon the hotel owned by defendant, Clinton, in 1875, and by him conveyed to Z. Snow, his co-defendant, and known as the Lake Point Hotel. The money claimed was for lumber and materials furnished by plaintiff to said Clinton up to January 12,1875.

The facts are stated in the opinion of the court. No brief on file. When fraud enters into a cause, either as a ground of complaint or defense, a wide latitude is allowed in the introduction of evidence either 'pro or con. We would call the particular attention of this court to the wide latitude allowed defendants in the trial below, and in strong contrast therewith the strict, iron-clad rule applied to plaintiffs throughout.

Salvatore Maltese, who had been acting as administrator of the estate of one Berrassa, deceased, was removed from such position by the Probate Court of Salt Lake County, on the petition of Albert Uebel, and the latter apj oi ited in his stead. Maltese appealed to the Third District Court, under rule 24 of the Supreme Court. No undertaking on such appeal was filed, the appellant therein claiming that as he had given official bonds no additional undertaking was required.

The facts are stated in the opinion. The plaintiff is not confined to the time mentioned in the complaint, but he is confined to proof of one trespass when that is all that he has alleged.

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

Defendant was indicted, with others, for the murder of the Arkansas emigrants at Mountain Meadows, which event is commonly known as the ‘‘Mountain Meadow Massacre.” The facts involved in the appeal are given in the opinion of the court. The court disregarded the requirements of the statute, and did draw twenty-three men as grand jurors; thus rendering the drawing irregular. The law is mandatory in its terms, so far as it relates to the drawing and empaneling of grand juries.

<p>1. Indictment nob Lascivious Cohabitation. — The statute punishing lascivious cohabitation provided, “That if any man and woman, not being married to each other, lewdly and lasciviously associate and cohabit together,” etc., and the indictment charged “that defendant and one J. L. did unlawfully, openly and publicly, live, dwell and cohabit together in lewdness and laciviousness, they being unmarried to and with each other,” etc. Held, on appeal, That the indictment was sufficiently certain, and that it was not necessary that the precise words of the statute should be employed.</p> <p>2. Omission op Word “ Feloniously.” — Where an offense is so defined by statute that a felonious intent constitutes no part of the crime, it is not necessary that the indictment should charge the act as having been done “feloniously</p> <p>3. Exceptions and Negatives in Statutes. — Under the statute of Utah, punishing lascivious cohabitation, the negative averment that the parties “ were not married to each other,” should be alleged in the indictment, as it constituted a part of the description of the offense. In such case, however, where the subject of the negative averment relates to the defendant personally, and is peculiarly within his knowledge, such negative need not be proven by the prosecution, but is a matter of defense by the defendant.</p>

The facts appear in the opinion of the court. The defendants, Higgins, took their conveyance after the possessory title had vested in the occupants, their grantor, by virtue of the mayor’s entry, and with notice of the mortgage, and in the purchase the amount of the mortgage was deducted from the price. They, as well as the mortgagor, were bound by the mortgage. Clark v. Baker, 14 Oal. 612; Galveston B. Ii. Co. v. Condry, 11 Wall. 481; 3 Greenl. Oh.

On the 18th day of January, 1861, an act was passed by the Legislative Assembly of Utah Territory incorporating Ogden City, and defining the powers of the city government.

The complaint contained two counts, both for the same cause of action. The first count was for a balance of account tor money paid, and the second on an alleged account stated. The trial developed the fact that both counts were for an indebtedness created prior to 1870, and which had from time to time been reduced by cash payments, leaving due two unpaid acceptances in the fall of 1870.

The facts fully appear in. the opinion. The demurrer to the indictment should have been sustained. It contains no description of the property alleged to have been stolen. The statute requires that the indictment must contain a clear and concise statement of the acts constituting the offense, and particulars as to property, etc. Laws 1878, § 150, p. 92.

The facts appear in the opinion of the court. At common law an execution to enforce a judgment such as the one at bar, must be issued or sued out within a year and a day from the date of the rendition thereof, otherwise the right to execution on that judgment was gone forever. By statute of Edward I., c. 45, scvre facias was given in personal actions, but the time within which to issue executions was not changed.

The facts appear in the opinion of the court. The proof showed possession in the plaintiff. It consisted of proof of title in fee, that he took possession of the lot and shut up the alley. His possession was disturbed under the adverse claim, but there was no ouster or adverse possession, or claim of possession by the defendants. Golemcm v. Turnpike Go., 49 Cal. 517; Sepulveda v. Sepulveda, 39 Cal. 13; Pealus v. Jefferson, 34 Cal. 558; Ricks v. Coleman, 25 Cal. 122.

The facts, other than those set out in the opinion, are as follows: On tbe 12th of September, 1878, Louis P. Beus, being largely in debt, made an assignment of his property to Paul Beus. Held: that it did not, as to facts, show an intent to delay, hinder or defraud creditors. In Kellogg v. Slauson, 15 Barb.

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

The following are the sections of the Criminal Code referred to in the opinion: “ Section 278, grand larceny is larceny committed in either of the following cases: “ When property taken is a horse, mare, gelding, cow, steer, bull, ox, calf, mule, jack, jenny, goat or sheep. “ Section 6, * * * “ Words used in the masculine gender comprehend as well the feminine and neuter. “* * * Words and phrases must be construed according to the context and the approved usage of the…

The facts appear in the opinion of the court. The act of Utah Territory in reference to railroad companies provides that “it shall be the duty of any company operating lines of railroad in this Territory to make and maintain a good and sufficient fence on either or both sides of their entire railroad, where the lines run through lands which are now or hereafter may be inclosed or improved,” etc. C. L. Utah, § 35, p. 214.

The facts appear in the opinion of the court. All parts of the record must be examined in order to ascertain the jurisdictional facts. A notice of appeal is no part of the judgment roll. Practice Act, § 203. It may happen that when part of a record fails to show evidence of service of process that other parts may disclose the fact that the matter of jurisdiction has been considered and passed upon and determined by the court.

The facts are stated in the opinion of the court. The court below erred in ruling on the formation of a jury, by discharging twelve of the jurors summoned for the term, and requiring the selection of the jury for this action from the residue, under the supposed authority of late Territorial Legislature.

The facts appear in the opinion of the court. By chapter 2 each school district is made a separate taxing district for school purposes, and the trustees are only authorized to assess and collect an equal tax on the property of the district, and for the sole purpose of maintaining schools in the district. Section 19 is invalid, because it provides for a distribution of the district taxes to the schools of the county. Cooley on Taxation, 104, et seq.; Id. 110,114; Cooley Con.

<p>1. Fees op United States Commissioner — A county is not liable for services performed by an United States Commissioner in Utah, as Committing Magistrate, although the offense was committed within the county sought to be charged.</p> <p>2. Jurisdiction op Such Commissioner. — Persons appointed Commissioners under the act of Congress, approved June 28, 1874, in relation to courts in Utah Territory, have a Territorial jurisdiction, co-extensive with the power which appointed them, to-wit: that of the whole Territory.</p>

The facts appear in the opinion of the court. Priority of appropriation in this Territory, and other West-. ern States and Territories, where artificial irrigation is required, gives the indefensible right to the use of water.

The facts appear in the opinion of the Court. It is the universal rule that every one who in any way becomes surety for another, is discharged from this secondary obligation if the creditor does not hold the principal debtor to bis obligation witb strictness. 2 Pars. Notes & Bills, 82, 46, 47, 51. The indorsment herein is not a guaranty. The guaranty, under our statute, must be in writing. O. L. p. 340, § 1014.

The facts appear in the opinion of the court. To establish the fact that the indebtedness was due from Pratt at the time of the sale, the plaintiif was permitted to introduce the written admission of Pratt, dated March 21, 1879, to the effect that the debt was still due. This was after Pratt had executed the subsequent mortgage to Thornton, owned at the time by the defendant, Eachel Chalmers.

The facts appear in the opinion of the court. A purchaser of the legal title, with notice of a prior equitable contract for the conveyance of the land, is bound to perform the contract. The holder of the legal title is treated as a trustee for the benefit of the party entitled, and may be decreed to specifically perform it. School Dist. v. Mealon, 4 Wis. 79; Ten JEicle v. Simpson, 1 San. Ch. 244; Lvnscott v. Dick, 38 Me. 530.

The facts are stated in the opinion of the court. The statute of limitations has no application to the two breaches of the bond first assigned. The action is on a bond given to secure the performance of a written agreement; these two breaches are the non-performance of this agreement. The accounts for goods consigned and sold are not the .basis of the action, but only a means of proving the non-performance of the written agreement, and measuring the damages sustained.

Original application in tbe Supreme Court, by George Q. Cannon, Brigham Young, Jr., and Albert Carrington, executors of the last, will and testament of Brigham Young, deceased, for a writ of certiorari to review the record of tbe proceedings against them for contempt in the District Court of the Third Judicial District, wherein they were imprisoned by order of the said court.

<p>Original application to the Supreme Court for writ of mandamus.</p> <p>The facts appear in the opinion.</p>