Volume 23 — Utah Reports

— Hon. A. O. Norrell, Judge. Action upon a promissory note. Erom a judgment for defendant plaintiff appealed. The court erred in allowing certain witnesses, for the defense, to give expert testimony by comparing the signature of David Lebeher, on the back of the note in question, with certain unproven signatures attached to letters purported (not proven or admitted) to have been written or signed by David Lebeher.

Original application for a writ of mandate to prevent tire city council of Salt Lake City from issuing bonds creating an indebtedness for the purpose of supplying the city with water, claiming that under section 4, article 14 of the Constitution the debt limit of the city is eight per cent of the value of the taxable property therein.

— Hon. W. M. Dusenberry,’ Judge. Action under the statute to condemn a strip of ground for a right of way for plaintiff’s railway. From a judgment for plaintiff defendants appealed. In an action to condemn the plaintiff necessarily admits the defendant’s title.

- — Hon. B. V. Higgins, Judge. Action for damages for personal injuries alleged to have been caused by the negligence of defendant company. Erom a judgment for plaintiff defendant appealed. It is not permissible, when undertaking to prove negligence on the part of defendant, to show that he has been negligent at any other times or in other places and in other ways than the one immediately in controversy. Snowden v. P. V. Coal Co., 16 Utah 336.

— Hon. A. N. Cherry, Judge. Action by plaintiff to recover damages alleged to have been caused by defendant company dumping slag into the channel of Little Cottonwood Creek so as to retard the flow of water and cause the same to spread out over plaintiff’s land. Erom a judgment for plaintiff defendant appealed.

— Hon. A. N. Cherry, Judge. Action based upon a certain written contract. Erom a judgment for plaintiff defendants appealed. This contract is one that requires the strictest construction against the obligees and the most favorable to the obligors. It is a contract of sureties. Not any benefit whatever is alleged to have accrued to any of these twelve signers, for signing it. It was purely voluntary on their part.

— Hon. A. N. Oherry, Judge. Action by 'plaintiff to recover of defendant a certain amount alleged to be due him on account of an overdraft of defendant- at his bank. From a judgment for defendant plaintiff appealed. The appointment of an agent and his authority may be proved by the agent’s testimony. The testimony of an agent on the question of his agency, is as competent as that of any other witness. R. S. Utah, secs. 3412, 3413.

— Hon. E. V. Higgins, Judge. Action to recover damages for a breach of warranty contained in a deed. From a judgment for plaintiff, defendants appealed. “It has been well settled that shares of stock are personal property, and not realty.

— Hon. A. N. Cherry, Judge. Action upon a contract in wbieb it was sought to establish the individual liability of defendant S. as a partner in the firm of Gr.

— Hon. II. H. Holapp, Judge. Action to recover damages for personal injuries alleged to have been caused through, the negligence of defendant company. Erom a judgment for plaintiff, defendant appealed.

— Hon. Ogden Hiles, Judge. Action to recover tbe amount of a county warrant issued in payment of furniture alleged to bave been purchased by Salt Lake county.

— Hon. H. H. Bolapp, Judge. Action in equity to set aside and cancel a deed to certain real estate and to have plaintiff adjudged tbe lawful owner of tbe same. From a judgment for defendant plaintiff appealed. Plaintiff and defendant ought not to be beld to have been in pari delicto. Ency. of Law (2 Ed.), vol. 6, pp. 416, 417; 2 Pomeroy Eq. Jur., par. 914; 2 Pomeroy Eq. Jur., par. 942; Meecb v. Lee, 46 N. W. 399; Foley v. Greene, 14 R. I. 618, 51 Am. Rep. 419.

— Hon. JE. V: Higgins, Judge. Action for damages for the negligent killing of plaintiff’s minor son by defendant. From a judgment for plaintiff defendant appealed. It will be seen from sections 2911 and 2912, giving the right of action, that in this class of cases, in case of a minor, the right is confined to the father, mother or guardian, according as the parental relation may exist, and that such damages may be given, as under all the circumstances of the case may be just.

— Son. Ogden Siles, Judge. Action to reform a mortgage and a sheriff’s deed upon the sale of mortgaged premises. From a judgment for plaintiff, defendants appealed. The power conferred upon an agent is based upon tbe special confidence or trust which the principal has in the. agent’s personal ability or integrity, and such power can not be redelegated by the agent so as to bind the principal. 1 Am. and Eng.

— Hon. A. N. Gherry, Judge. Action to recover a commission claimed by plaintiff for services rendered in finding a purchaser for certain… Held: and the acts of the board of directors and Lavagnino in the premises were ratified; that at this meeting Lavagnino voted his own stock of 14,000 shares, stock held by the eastern company of 965,000 shares, being a total of 979,000 shares, and a few days later a proxy to vote 10,000 shares of Bougliese, another stockholder, was…

— Hon. ' H. H. Bolapp, Judge. Action tinder the provisions of chapter 9, page 282, Revised Statutes 1898, by which the plaintiff and appellant-contests the election of respondent to the office of State senator. Erom a judgment for defendant plaintiff appealed.

— Hon. E. V. Higgins, Judge. Action to recover damages for personal injuries received by plaintiff through the negligence of defendant company. Erom a judgment for plaintiff defendant appealed. There is no evidence in this case to sustain the verdict and the verdict is against law. Eritz v. Electric Light Go., 18 Utah 493; Bailey’s Personal Injuries, vol. 1, note p. 162; Burgess v. Salt Lake City Railroad Company, 17 Utah 406; Spriggs v. Moale, 92 Am.

— ■ Hon. Ogden Hiles, Judge. Action by way of a supplemental complaint in an injunction proceeding wherein the equitable issues were first tried and determined in plaintiffs favor for the purpose of obtaining damages. From a judgment for plaintiff defendants appealed.

— - Hon. Jacob Johnson, Judge. In settlement of an estate the District Court refused to admit testimony offered by appellants for the purpose of proving that one H. C. was divorced from the deceased and entered a decree awarding her one-third of the residue of the estate. From such decree certain petitioners claiming to be sole heirs of the deceased appealed.

— Hon. Charles H. Hart, Judge. Defendant was convicted of the crime of murder in the first degree and sentenced to be sbot. From that judgment defendant appealed and this court has heretofore affirmed that judgment (See 22 TTtab 162). This appeal is from an order overruling a motion for a new trial based upon fkcts coming to tbe knowledge of tbe defendant subsequent to tbe previous decision of this court in tbis case.

— Ron. Ogden Riles; Judge. Action on a promissory note in which, it was sought to bind one H. personally, H. having signed the note as general guardian for an incompetent. Erom a judgment holding that H. was not personally responsible and dismissing the complaint plaintiff appealed. A note executed by an administrator under an order of the probate court, which order is void, makes the administrator personally liable. He can not shield himself under a void order.

— Hon. H. H. Rolapp, Judge. Action for damages for personal injuries alleged to have been received through the negligence of defendant company. Erom a judgment for plaintiff defendant appealed. We insist that there is an entire want of competent evidence to prove that the crossing in question was not in an ordinary safe condition.

— Hon. Jacob Johnson, Judge. Defendant was prosecuted and convicted of the crime of rape and appealed to the Supreme Court, claiming that the trial court was without jurisdiction to try the cause, the information having been filed by the district attorney instead of the county attorney.

— Hon. John E. Booth, Judge. Defendant was prosecuted and convicted of the crime of adultery and appealed to the Supreme Court, claiming that the trial court was without jurisdiction, the information against him having been filed by the district attorney instead of the county attorney.

— ■ Hon. E. V. Higgins, Judge. Defendant was prosecuted for and convicted of the crime of arson and appealed to this court, claiming that the trial court was without jurisdiction, the information against him having been filed by the district attorney instead of the county attorney.

— 'Hon. A. 0. Norrell, Judge. Defendant was prosecuted for and convicted of the crime of unlawful cohabitation and appealed to this court. In Ball v. United States, 140 IJ. S. 136, the rule is laid down with regard to the places in which the offense is committed, as follows: “The accused is entitled to be informed of the nature and cause of an accusation against him, and jurisdiction should not be exercised when there is doubt as to the authority to exercise it.

— Hon. A. G. Norrell, Judge. Action to compel the cancellation of a certain trust deed. From a judgment for defendants, plaintiff appealed.

<p>Motion fob New Trial — Time fob Hearing — Under Sec. 3297, B. S. 1898 — Postponement of Hearing — Stipulation of Counsel — Es-toppel.</p> <p>1. Motion fob new trial: time fob .heading: under section 3297, R. S. 1898. Under the provisions of section 3297, B. S. 1898, if a motion for new trial is to be heard upon the minutes of the court it shall be heard at the earliest practicable moment ofter notice of the motion; but if it is to be heard upon affidavits, then within sixty days after the affidavits are filed, “unless no session of the court is held in the county within that time.”</p> <p>2. Postponement of hearing: stipulation of counsel: estoppel. Plaintiffs’ counsel having sought delay in the hearing of the motion for a new trial, and the same having been so continued from time to time, and finally heard at the time agreed upon, and in accordance with the absolute and unconditional stipulation of counsel that it should be so hbard, plaintiffs are estopped to complain that it was not heard at an earlier date.</p>

— Hon. Ogden Hiles, Judge. Action to enjoin defendants from erecting a fence or other obstruction on a certain street in Salt Lake City. From a judgment for plaintiffs defendants appealed. It was not competent to prove any alleged statements of Nicholas Groesbeck when he was dead, and the witnesses were interested. The statute is absolutely clear on this question.

— Hon. A. Q. Norrell, Judge. Defendant was prosecuted for and convicted of the crime of adultery and appealed to the Supreme Court.

— Hon. Ogden Hiles, Judge. Action to enjoin the collection of taxes on the premises described in the complaint, upon the ground that they are used exclusively for charitable purposes. Erom a judgment dismissing the action plaintiffs appealed.

— Hon. Jacob Johnson, Judge. Action to determine the rights of the respective parties to the waters of a certain creek and for an injunction restraining defendants from interfering with plaintiffs water rights during the irrigation season. From a judgment for defendants' plaintiff appealed.

— Hon. Jacob Johnson, Judge. Action in conversion. From a judgment for defendants plaintiff appealed. Assignments fairly raise the question of whether it was necessary for the defendant sheriff and the other defendants acting under him to show a valid judgment upon which the process issued, under which the sheriff claimed to justify. There ought not to be any serious controversy over this proposition of law.

— Hon. Ogden Hiles, Judge. Action against defendant company and its stockholders to subject the stockholders to a personal liability for stock subscriptions. From a judgment for plaintiff, defendants appealed.

— Hon. H. H. Bolapp, Judge. Action by plaintiffs ■ as creditors of a deceased 'to have a certain chattel mortgage set aside and declared void. Nelden-Judson Drug Company intervened as additional creditors. From a judgment of dismissal plaintiffs and intervener appealed.

— Hon. E. V. Higgins, Judge. Action in replevin for the recovery of certain property and damages for wrongfully withholding the possession thereof. From a judgment for plaintiff, defendant appealed. STATEMENT OF FACTS.

— Hon. Jacob Johnson, Judge. Action to recover possession of certain mining ground and to have a judgment decreeing that defendants have no interest in the ground. From a judgment for plaintiff defendants appealed.

— lion. Ogden Hiles, Judge. Action for an accounting and an injunction pendente Hie., Erom an interlocutory judgment for an accounting plaintiff appealed.

— Hon. A. N. Cherry, Judge. Action to recover on a fire insurance policy for loss sustained from the destruction by fire of the property insured. From a judgment for plaintiff defendant appealed.

<p>Objection to Evidence — Waiver—Contributory Negligence — Assumption of Risk — Duty of Master — Pleading—Expert Evidence — Directions of Foreman.</p> <p>1.Where evidence was admitted, over an objection, on the ground that it might be material in connection with testimony to be subsequently introduced, but subject to a motion to strike out unless its materiality was shown, an objection to such evidence is unavailing if no motion to strike out was made and denied.</p> <p>2. Contributory negligence of a servant consists of the performance of some negligent act, or the negligent omission to perform some duty, which materially contributed to, and in conjunction with the negligence of the master, was one of the elements of the proximate cause of, the injury to the servant.</p> <p>3. Where a servant enters upon or continues in a service with full knowledge that it is dangerous, and of the extent of the danger, there is an implied contract of assumed risk, by which he waives his right to recover for injuries received in such service.</p> <p>4. Where a master employs one to enter into his service, it is an implied contract that he will exercise ordinary care to protect him from all danger except such as is obvious and necessary, and the doctrine of assumed risk by the employee does not lessen the master’s duty.</p> <p>5. The defense of assumed risk is available only when pleaded.</p> <p>6. Where a miner was engaged by order of his foreman in excavating at a place which the foreman assured him was safe, he had a right to rely on such assurance, and did not assume the risk incident to the surroundings.</p> <p>7. Where a miner was ordered by his foreman to make excavations at a place where the miner thought the overhanging ground looked “a little suspicious,” but the foreman assured him it was safe, there was no such obvious danger as to create an assumption of risk, in spite of the fact that the work was under the foreman’s supervision.</p> <p>8. Where a miner was making excavations preparatory to the placing of supporting timbers by other workmen, he was not engaged in making a dangerous place safe, so as to work an assumption of risk.</p> <p>9. An instruction that evidence as to the defective condition of a certain sill should be disregarded, unless such defective condition directly contributed to the injury, was correctly refused; the evidence-being properly for the jury’s consideration if it was an efficient, though it may not have been a direct, cause.</p> <p>10. Where the jury was instructed that it was their duty, to determine on which side the evidence preponderated, and to find a verdict in accordance therewith, the refusal of an instruction that the jury must not arrive at their verdict by mere speculation, but that the verdict must be supported by the evidence, was not error.</p> <p>11. In an action for personal injuries alleged to have been caused by the defective condition of a mine, questions to expert witnesses as to whether the decayed state of a sill would render extra timbers necessary, to make it reasonably safe for a man to work at the place where the accident occurred, were not objectionable as calling for conclusions as to the safety .of existing conditions, but admissible to show the proper mode of construction.</p>

— Hon. Charles H. Hart, Judge. Action by Anders Larsen against the Utah Loan & Trust Company for fraud in loaning plaintiff’s money. Erom a judgment in favor of the defendant, plaintiff appeals.

<p>Election — Election Contest — Filing op Statement — Time foe.</p> <p>Revised Statutes, section 917, requiring a contestant to file a written statement of election contest within forty days after the return day of the election, requires the filing of such statement within such time after the board of canvassers meets to canvass the returns on the Monday next after the election as required by section 869, and not from the time the result is declared and recorded as required by section 873.</p>

— Hon. W. N. Dusenb&rry, Judge. Action by the Wasatch Irrigation Company and others against Edward Eulton and others. Erom a judgment determining tbe water, rights of the various parties, some of defendants appeal.

<p>MORTGAGES — DESCRIPTION OE PROPERTY — FORECLOSURE-SALE-REFORMATION.</p> <p>Property was so described in a mortgage by inadvertence that a portion meant to be mortgaged was not included in the description. On foreclosure and sale of the property, the decree of foreclosure, notice of sale, and deed described the land as set out in the mortgage. The mortgagee, who bought the property, believed that the property offered for sale was that intended to be mortgaged, and bought it with that understanding. An action was brought to reform the mortgage, decree, and sheriff's deed, so as to include the land omitted, and the relief was granted. Seld, error, since it invested the purchaser with title to property never advertised, offered for sale, or sold to her, and which may have been purchased by others at a higher figure had it been correctly described in the notice of sale.</p>

<p>Eminent Domain — Statutes—Constitutionality—Telegraph Companies — Condemnation Proceedings' — Pleadings — Sueeioienoy— Corporations — Legal Existence — Railroad Right oe Way — Appropriation- — -Necessity—Discretion oe Appropriation — Rights—• Evidence — Compensation—Measure op Damages — Amount.</p> <p>1. The provision of the eminent domain statute that all proceedings must be brought in the county in which the property or some part thereof is situated is not in conflict with Constitution, article 8, section 5, providing that all civil or criminal business arising in any county must be tried in such county, so as to preclude a telegraph „ company from bringing an action to condemn a railroad’s right of way, which extends through several. counties, for the construction of its lines in one of such counties.1</p> <p>2. The complaint in an action by a telegraph company against a railroad company to condemn a right of way for its lines alleged that defendant’s property was a railway running between certain named termini within certain counties in the State, -and set forth the amount of ground needed for each pole, the distance of the poles from each other, and their distance from the railroad track. Held, that -such description of the way desired was sufficient.</p> <p>3. The fact that a telegraph company of another State is interested in a corporation duly organized under the laws of the State to construct a telegraph line, does not affect the latter’s right to maintain proceedings to condemn a right of way for its line under Revised Statutes, section 3588, subdivision 8.</p> <p>4. The corporate existence of a telegraph company, shown to be a de facto corporation, will not be inquired into in an action by such company against a railroad company to condemn a right of way for the construction of its lines.2</p> <p>5. Land which is a part of a railroad’s right of way, but not used for any purpose and not essential to the enjoyment of such railroad’s franchise and property, may be appropriated to the use of a duly-incorporated telegraph company for the purpose of constructing and maintaining its lines, since such appropriation is for a more necessary public use.</p> <p>6. Where a telegraph company makes a bona fide effort to agree with a railroad company on terms for the use of land in its right of way for the construction of the former’s lines, and the latter refuses to negotiate, a necessity is shown to exist for the taking of a right of way for the lines, though there may be other land equally available.</p> <p>7. Where a duly-incorporated telegraph company exercises the power of eminent domain in good faith, and is not guilty of oppression, its discretion in the selection of land will not be interfered with by the courts.</p> <p>8. A duly-incorporated telegraph company has the power to construct a telegraph line longitudinally on a railroad’s right of way, in the absence of legislative authority, where such construction will not materially interfere with the use of such land for railroad purposes.</p> <p>9. In an action by a telegraph company against a railroad company to condemn a right of way for the construction of its lines, the certificate of the Postmaster-General of the United States, showing the acceptance of the provisions of Act of Congress, July 24, 1866, by which acceptance such companies are given the right to erect lines on all post roads, is admissible in evidence.</p> <p>10. A telegraph company, seeking to condemn a railroad’s right of way for its lines, can not be authorized to enter into possession and construct the lines until it has paid a just compensation therefor, to be ascertained by resorting to the State statutes.</p> <p>11. Where a railroad company’s right of way has been condemned for the use of a telegraph company in constructing and maintaining its lines, the measure of damages is the decrease in the value of such way for railroad purposes.</p> <p>12. In an action to condemn a railroad’s right of way for the use of a telegraph company, evidence to show damages from the added expense of burning grass from such way by reason of the erection of telegraph poles is not admissible, since such damages are too remote.</p> <p>13. Where a telegraph company has a right to condemn a right of way on the right of way of a railroad, the damages to be paid the railroad company are nominal, since the telegraph company does not interfere with the railroad’s right of way.</p>

— Hon, A. N. Cherry, Judge. Action by George W. Lambourne against John Halfin. Erom a judgment in favor of tbe plaintiff and a denial of a motion for a new trial, defendant appeals.

<p>VENDOR an;d Purchaser — Contract of Sale — Implied Warranty— Specific Performance — Statute of Frauds — Evidence.</p> <p>1. Where a vendee, on entering into a written contract for the sale of real estate, knows that there is a squatter in possession of a portion of the property, and the written contract does not refer thereto, or to the character of the vendor’s title, there is no implied contract to furnish a good and marketable title as against such squatter.</p> <p>2. The vendor may enforce a specific performance of the written contract, though the squatter continues in adverse possession of a portion of the property.</p> <p>3. Letters in which the parties agree to an exchange of real estate, but which do not describe the property, constitute a sufficient compliance with the statute of frauds, requiring contracts for the sale of lands to be in writing, when considered in connection with deeds to the property to be exchanged, though one of the deeds is not delivered.</p> <p>4. Letters in which the parties agree to exchange real estate are sufficient compliance with the statute of frauds, though the letters do not describe the lands, when considered in connection with the answer in a suit for specific performance, which admits that the property-contemplated in the letters is correctly described in the complaint.</p> <p>5. Where a written contract for the sale of real estate does not mention the possession of a portion thereof by a squatter, and is silent as to the vendor’s title, parol evidence is admissible to show that the ven-dee had notice of the squatter’s possession at the time of the execution of the contract.</p>

<p>County Warrants — Validity—Cubative Statute — Interest.</p> <p>Session Laws 1896, page 178, chapter 64, validated debts which counties had contracted in excess of the limit of indebtedness. Chapter 131, section 59, provided that county warrants should bear five per cent interest from the time of presentation till paid. Held, that a county ■warrant issued prior to 1896, and void as in excess of the debt limit, and also containing an invalid provision for the payment of eight per cent interest, though interest on county warrants was not then authorized, was only validated by chapter 64 as to the principal, and not as to the interest, and hence the holder thereof was only entitled to five per cent interest from the time chapter 131 went into effect.1</p>

<p>Appeal from District Court, Seventh District. — Hon. Jacob Johnson, Judge.</p> <p>Peter P. Mickel and others were convicted of grand larceny, and they appeal.</p>

<p>Costs — Bill—Piling—Entry—Time — Directory — Compromise — Acceptance — Amendment of Bill — Objections—On Trial — Necessity — Appeal—Witnesses—Pees—Several Cases.</p> <p>1. Where defendants, in accordance with Revised Statutes, section 3217, at the commencement of the trial offered, in writing to allow judgment for a certain sum and accrued costs in full satisfaction of plaintiff’s claims, plaintiff could 'file a bill of costs.</p> <p>2. Where plaintiff filed a bill of costs which did not comply with the statute, and within the time allowed by law filed a second one in proper form, costs were properly taxed under the second bill.</p> <p>3. Under Revised Statutes, section 994, providing that every witness legally required to attend on the district court is entitled to a certain amount for each day’s attendance and mileage, witnesses subpoenaed and in actual attendance in several cases at the instance of the same plaintiff, are entitled to their fees in each case, though the suits are pending at the same time and place.</p> <p>4. Failure of the clerk of the court to insert in the judgment the amount of costs within two days after taxation thereof, as required by Revised Statutes, section 3353, does not defeat recovery of costs; being merely directory, and not prohibiting their entry after the expiration of two days. ,</p> <p>5. Where in an action for trespass, the objection that plaintiff could not recover more than one-half of the costs was not made in the trial court, it will not be considered on appeal.</p>

— Hon. A. N. Cherry, Judge. Action by George H. Budd against tbe Salt Lake City Railroad Company. Prom a judgment in favor of tbe plaintiff, and an order overruling a motion for a new trial, defendant appeals. «

— Hon. A. N. Cherry, Judge. Action by Benjamin R. Haddock against Salt Lake City. From a judgment in favor of plaintiff, defendant appeals. Tbe plaintiff brought this action to recover of the defendant $422.28 for services alleged to have been performed for it by him as constable.

— Hon. W. 0. Hall, Judge. Petition by K. G. Wilson for an order confirming a sale of the interest of Frederick H. Auerbach, deceased, in the firm of E. Auerbaeb & Ero. From an order refusing to confirm the sale, petitioner appeals.

<p>Animals — Tjreseass—Costs.</p> <p>In taxing the costs in an action for damages caused by the trespass of sheep, it was prejudicial error not to apply Revised Statutes, section 20, providing that the fees in an action for trespass by certain animals shall be one-half the fees in other civil cases.</p>

<p>R&pe — Trial —Juror—Exclusion—Evidence—Admissibility—Admissions-INTRODUCTION OE CHILD — ARGUMENT TO JURY — READING DECISIONS.</p> <p>1. Where a juror admits that he has formed an opinion which it will take evidence to remove, and that he has counseled with defendant in regard to the case, and that he has stated to°the prosecuting attorney that it is against the interest of the prosecutrix to prosecute the case, he may he properly excused on the challenge of the State.</p> <p>2. Evidence of improper familiarity between defendant and prosecutrix, before the commission of the alleged criminal act, but not thereafter, is admissible on behalf of the State in a prosecution for rape.1</p> <p>3. Admissions of defendant as to the paternity of the child of prose-cutrix are admissible in a prosecution for rape.</p> <p>4. Defendant’s counsel can not read decisions of the Supreme Court to the jury in a prosecution for rape.</p> <p>5. An instruction that by a reasonable doubt is meant a real, substantial doubt, based on reason, and reasonable in view of an impartial consideration of all the evidence, and if the jury is not satisfied therefrom of defendant’s guilt there is a reasonable doubt, but if they have an abiding conviction of defendant’s guilt, arising spontaneously from the evidence, which they would act on in more weighty matters relating to their own affairs, there is no reasonable doubt, is not erroneous.</p> <p>6. The child of the prosecutrix may be brought into court, in a prosecution for rape, to corroborate the testimony of the prosecutrix, and its birth and identity as the result of the illicit intercourse may be shown, but it can not be introduced to show a resemblance to defendant.</p>

— Hon. Jacob Johnson, Judge. Action by M. E. Murray, as trustee in bankruptcy of tbe Golden Rule Cask Store, against Henry Beal. From a judgment in favor of defendant, plaintiff appeals. The Golden Rule Cash Store of Ephraim City, Utah, was incorporated and doing business under the laws of the State of Utah in 1898. A board of directors was duly elected and qualified as such.

— Hon. Ogden Hiles, Judge. Suit by John F. Seheib against James Thompson, as executor of Morris Livingston, deceased, to require an accounting for funds secured by defendant’s testator as guardian of plaintiff. From the decree in favor of plaintiff, defendant and plaintiff both appeal.

— Hon. A. N. Cherry, Judge. Action by W. A. Clark against A. G. Campbell to receive a dividend on certain mining stock. Erom a judgment in favor of defendant and an order denying a new trial, plaintiff appeals. Action to recover $19,000, the amount of a dividend upon certain mining stock. Under the instructions of the court so to do, the jury returned a verdict for the defendant, and, after motion for new trial, duly made and overruled, plaintiff appeals.

— Hon. Ogden Hiles, Judge. Suit to quiet title by Jeremiab Schenek against Edward B. Wicks, administrator of the estate of George H. .Shaw, deceased. Erom a decree in favor of defendant, plaintiff appeals.

— Hon. Ogden Hiles, Judge. Suit to q/uiet title by Hattie H. Young against the Consolidated Implement Company. Erom a judgment in favor of defendant, plaintiff appeals.

— Hon. H. H. Rolapp; Judge. Action by John W. Allen against J. W.W. Eitzgerald. Erom a decree in favor of plaintiff, defendant appeals. This action was brought to recover possession of thirty acres of land, and for the rents and profits thereof.

<p>Appeal — Review.</p> <p>Where plaintiff does not appeal, lie can not obtain a review of a ruling of the court against him, though he excepted to it when the ruling was made.</p>

— Hon. A. N. Cherry, Judge. Bill of interpleader by William 0. Hall against John McNally and others to determine the ownership of certain money in bis possession, and claimed by defendants. From a judgment settling ownership and ordering payment, defendants McNally and another appeal.

— Hon. A. N. Oherry, Judge. Action by P. W. Ober against D. H. Schenck and another.

— Son. Ogden Hiles, Judge. Action by Isabel M. Pitts and another against the New Mammoth Gold-Mining Company and others. From a decree directing the sale of the property of the defendant mining company, and determining the amount and priority of liens thereon, the defendants National Bank of the Republic and Frank Knox, trustee, appeal. The record herein shows that an action entitled John R. Eoulks v. The New Mammoth Gold-Mining Company was commenced on November 25, 1899.

<p>Watbes — Irrigation Eights — Quieting Title — Stream in Two States —Jurisdiction—Appearance—Estoppel.</p> <p>1. Where a stream rises in the state of Idaho, and flows into the State of Utah, a court of the former State has no jurisdiction to try‘and determine the title and right to the use of the water flowing in that portion of the stream which is situated in Utah, and there diverted and used for irrigation of lands therein.’</p> <p>2. Where a stream rose in the State of Idaho, and flowed into the State of Utah, and a bill was filed in the former State for the purpose of quieting complainant’s title to certain waters of the stream, and other parties intervened in the case and participated in the trial, and a decree was rendered establishing rights in waters which were diverted and used for irrigation purposes in Utah, such parties were not estopped, by such adjudication, from subsequently urging in another suit in Utah that the Idaho court had no jurisdiction over the waters in Utah, inasmuch as jurisdiction of the subject-matter may not be conferred by consent, nor can want of such jurisdiction be waived.</p>

— Hon. Ogden Hiles, Judge. Action to quiet title by Priscilla Wheatley Murphy against Humphrey J. Ganey and Mary A. Ganey. Erom a decree in favor of defendants, plaintiff appeals. Suit by plaintiff to quiet title to a certain tract of land three rods by eight rods, in Ogden city.

<p>Elections — Registe ation — Registe ation Agent — Right oe Appointment — Computation oe Vote.</p> <p>1. Under Revised Statutes 1S98, section 795, providing that appointment of registrar of election shall be based on the votes for representative •to Congress at the election next preceding such appointment, a special election for Congress held in April was the next preceding congressional election under such section.</p> <p>2. In determining appointment of registrar of election under Revised Statutes 1898, section 795, the vote east for each political party-should be separately returned, and the highest vote for any one political party for member of Congress should be basis for appointment of a registrar, without counting the vote cast by any other party for the same candidate on any ticket.</p>