Volume 24 — Utah Reports

— Hon. W. M. McGarty, Judge. Action to foreclose a mechanic’s lien and to recover for services rendered by plaintiff for the defendants. From a judgment in favor of the plaintiff the Victor Gold & Silver Mining Company appealed. (1) The court had no jurisdiction of the cause as a suit in equity. This lien was filed in August, 1894. The action is a statutory one and the right given is a creature of statute.

— Hon. Jacob Johnson, Judge. The defendant was prosecuted for, and convicted of, the •crime of “having sexual intercourse with a female jierson over the age of thirteen years, and under the age of eighteen years.” Upon having been sentenced to imprisonment for a term of two years, he appealed.

— lion. Jacob Johnson, Judge. Action to recover damages for tbe removal, by tbe re-respondents, of certain improvements from certain mining •claims. In presenting this ease we might rest it alone upon the form of the motion for nonsuit, as under the repeated rulings of this court the motion is entirely -wanting in specifying the grounds upon which it is based. It is a mere-general statement that the proof fails to show any liability. The motion is too indefinite.

— Hon. W. 0. Hall, Judge. Action to enforce a lien for attorney fees adjudicated and made a part of the judgment in an action of foreclosure against the purchaser at foreclosure sale. Erom a decree in favor of the defendant, Floy E. Hicksj the plaintiffs appealed.

— Hon. A. N. Cherry, Judge. Action by the plaintiff to determine an adverse claim to the Ada lode mining claim, for.which the defendant is seeking to obtain a United States patent. Froni a judgment in favor of the defendant, the plaintiff appealed.

— Hon. G. W. Morse, Judge. Action on a promissory note. Erom a judgment in favor of the plaintiff company, the defendants appealed. Held: Mr. Fargo was acting individually therein, and not as agent for anybody. It is nowhere shown that he was authorized to warrant another man’s property. But aside from this consideration, even for the moment considering him as agent of plaintiff in this respect, which he was not, his representations would not constitute a warranty.

— Hon. E. V. Higgins, Judge. Tbe defendants, having applied in the United States land office for a patent of the Havenor mining claim, and the plaintiff company having filed a protest and adverse claim, this suit was instituted by the plaintiff to determine the right of possession of the premises. From a judgment in favor of the plaintiff, the defendants appealed.

— Hon. John E. Booth, Judge. Action to recover damages alleged to have been caused by a breach of contract on the part of the defendant company. From a judgment in favor of the plaintiff, the defendant appealed. STATEMENT OE TACTS. This is an action to recover damages alleged to have been caused by a breach of contract on the part of the defendant.

— Hon. 8. W. Stewart, Judge. Action for divorce, alimony and custody of children. Erom a decree, granting divorce and alimony, in favor of the plaintiff and awarding the custody of the children to the defendant, the plaintiff appealed. The court erred in awarding to the defendant the custody of the children; and the decree in that respect is inconsistent with the findings of fact made by the court, and the first conclusion of law.

— Hon. H. H. Rolapp, Judge. Action to recover $419 alleged to be due as the balance of tbe purchase price of certain real estate. From a judgment in favor of the defendants, the plaintiff appealed. ' The ruling of the court on the demurrer is res adjudicata only as to the legal sufficiency of the complaint. Neater v. Hook, 16 Iowa 23. Such a judgment is not upon the merits, within the meaning of the rule claimed by appellant.

— Hon. J acolo Johnson, Judge. The defendant was prosecuted for murder in the first degree and was convicted of voluntary manslaughter, by a jury of eight. From the judgment entered on conviction, the defendant appealed.

— Hon. W. 0. Hall, Judge. Action to quiet title to a certain piece of real estate. Defendants denied plaintiff’s allegations of title and set up as a defense the statute of limitations, estoppel, family compromise and settlement, and want of consideration. From a decree in favor of the defendants, the plaintiff appealed. The first agreement was a family settlement. Courts of equity uphold such settlements with a strong hand. 12 Ency.

Action to foreclose a mechanic’s lien. From a decree awarding to the lumber company a lien for $197.51 and ordering a sale of certain real'estate to satisfy the same, defendant Whitmore appealed. Where the contract for furnishing materials is not made by the owner himself or his duly authorized agent, but by the principal contractor, the materialman can recover from the owner only the fair market value at the time.

— Hon. H. H. JRolapp, Judge. Action in ejectment. From a judgment in favor of tbe defendants, plaintiff appealed.

— Hon. H. H. Bolapp, Judge. Application for a peremptory writ of mandate to compel the defendants, as the board of county commissioners of Weber county, to select from a list of three names submitted by J. A. Wright, the relator, as the member of the state board of horticulture for the district in which Weber county is located, the name of one of such persons to act as county fruit tree inspector.

The plaintiff brought an action against a railroad company wherein he recovered judgment. The company appealed to the district court and thereafter the case was dismissed for want of prosecution. Upon the application of the plaintiff, a writ of certiorari was issued from this court. Demurrer to the petition and motion to quash the writ sustained.

— Hon. Ogden Hiles, Judge. Action by the plaintiff, as trustee in bankruptcy of John Beck, against the defendants, to obtain a decree declaring the transfers of certain stocks to defendant Cunningham fraudulent and void as to Beck’s creditors and for an accounting as to the amount due upon the alleged pledge of said stock to Josiah Barnett as trustee for certain of the defendants. Erom a decree in favor of the defendants, plaintiff appealed.

— Hon. O. H. Hart, Judge. Plaintiff brought two actions against the defendant and intervener — the one in ejectment to recover the possession of 64 acres of land, and the other in replevin to recover for hay grown upon the land in controversy. At the trial the actions were consolidated. Erom a judgment in favor of the defendant and intervener the plaintiff appealed.

— Hon. W. M. McQarty, Judge. Action, to quiet title to a portion of a mining claim of which the defendant claimed to be the owner. From a judgment establishing a boundary line, the defendant appealed.

— Hon. John E. Booth, Judge. Action to recover money loaned and for goods sold and delivered. From a judgment holding defendant Hawke alone liable for certain moneys advanced by plaintiff, the plaintiff appealed.

— Eon. O. II. Hart, Judge. From an order denying the widow’s petition to remove Richard Thorn as administrator of the estate, and also denying her petition to have the I’eal estate set aside to her as a homestead, and granting the administrator’s petition to sell the real estate, the widow petitioner appealed.

— Hon. Jacob Johnson, Judge. Action to recover damages for the alleged negligent killing, by defendant, on its railroad, of a number of cattle which belonged to the plaintiff. Erom a judgment in favor of the plaintiff, the defendant appealed.

— Hon. A. N. Cherry, Judge. Action to determine an adverse claim to tbe Ada mining claim for wbicb tbe defendant.is seeking to obtain a patent. Erom a judgment in favor of tbe defendant, tbe plaintiffs appealed.

— Hon. Ogden Hiles, Judge. Action to recover the value of ore alleged to have been wrongfully extracted from the Drum Lummon vein by the defendant company and converted by it. Erom a judgment in favor of the defendants, the plaintiffs appealed.

Original application in mandamus for a writ to compel the defendant, as State Auditor, to draw and deliver to tbe plaintiff a warrant for bis salary as Governor.

— Hon. H. H. Rolapp, Judge. Action to recover damages for tbe death of plaintiff’s husband, alleged to have been caused by tbe negligence of tbe defendant in the operation of its railroad. Erom a judgment in favor of tbe plaintiff for $4,250, tbe defendant appealed.

— Hon. Ogden Hiles, Judge. Action to quiet the title to certain real estate which the plaintiff alleges he owns and is in possession and entitled to the possession thereof and that the defendant claims the same adversely to' him through a tax deed. From a judgment quieting the title in the plaintiff, the defendant appealed.

— Bon. G. W. Morse, Judge. Action to quiet title to the waters of the Jordan river. Erom a decree in favor of the defendants and interveners, thp plaintiff, Salt Lake City, appealed. Here is an attempt to make a judgment dependent upon upon a future contingency.

<p>Appeal from the Third District Court, Salt Labe County.— Hon. Ogden Hiles} Judge.</p> <p>Action by Frank Thompson against S. Hays. From a judgment in favor of the plaintiff, the defendant appealed.</p>

— jEon. O. H. Hart, Judge. Action to recover a certain sum due on a promissory note and to foreclose a trust deed given as security for tbe same. From a judgment in favor of tbe defendants, tbe plaintiff appealed.

Original petition for a writ of certiorari by Salt Lake City against tbe Salt Lake City Water & Electrical Power Company to review tbe proceedings of tbe Third District Court, Hon. O. W. Morse,… Held: as here, for the purpose of municipal uses, and supplying the inhabitants of the municipality with water, are of such public utility and necessity that they are held in trust for the use of the citizens.

— IIon. A. G. Norrell, Judge. Action to recover for injuries alleged to have been caused by the negligence of the defendant company. From a judgment in favor of the plaintiff for $15,000, the defendant appealed. The signals required to be given at- highway crossings, are for the exclusive benefit of persons, traveling on the highway and about to cross the railway tract. Rotfer on Railroads, 1004, 1006, 1015; Thompson, Negligence, 452, note 3; Ill.

<p>Burglary: Sufficiency of Proof: Evidence as to time.</p> <p>Burglary, which, under Revised Statutes, sections 4334, 4338, must be committed between sunset and sunrise, is not proved by evi- , denee that goods were stolen from a building between 9:30 p. m. and 6:30 a. m.; the sun rising at 4:38 a. m.</p>

— Hon. W. M. McCarty, Judge. Tbe defendant was convicted of tbe crime of burglary and appealed. Tbe appellant complains tbat be did not have a fair and impartial 'trial, for tbe reason tbat one of tbe jurors wbo tried tbe case, James P. Sbowalter, was at tbe time a director of tbe firm of Cameron & Sevy, and not only was be a director in said firm, but was also indebted to it. This objection is without merit.

— Hon. T. Marioneaux, Judge. Ail information was filed against tbe defendant under section 4423, Revised Statutes 1898, for displacing a part of a railroad. Upon tbe trial the defendant objected to any evidence being given in the case on tbe part of tbe State on tbe ground that tbe information did not state any public offense. Prom a judgment discharging tbe defendant and releasing bis bail, tbe State appealed.

— Hon. Ogden Hiles, Judge. Petition by Le Grand Young and others, in conformity to section 288, Revised Statutes 1898, against Salt Lake City, praying that certain land described therein be detached and disconnected from said city. Prom a judgment in favor of the petitioners, the city appealed.

— lion. Jacolo Johnson, Judge. Action for divorce. From a decree in favor of the defendant, the plaintiff appealed. The question raised by this appeal upon the record is: Can a court in this State grant a divorce to a non-resident? So far as the appellant is advised, this question has never been before this court for consideration.

Ogden Hiles, Judge. Action to set aside a deed to certain premises. Prom a judgment in favor of the plaintiffs, the defendant appealed. This is an equitable action, and under section 9, article 8 of the Constitution, the appellate court has the same power as the trial court to examine anew all questions of fact involved — to weigh the evidence. In fact it is the duty of the appellate court to do so.

W. 0. Hall, Judge. Action to foreclose a mortgage. Erom a judgment in favor of the defendants, the plaintiff appealed. The court erred in permitting the defendant to go behind the settlement of 1898, and in admitting evidence of transactions prior to said settlement, for the reasons: 1.

— Hon. Ogden Hiles, Judge. The case is stated in the opinion. From a judgment partly in favor of the plaintiff, the defendant appealed. Twenty years user is necessary to establish an easement for a right of way. An easement can be acquired only by grant or by prescription. A grant is not claimed here.

— Hon. J: E. Booth, Judge. Action to recover damages for the conversion of certain property alleged to be of the value of $6,000. Erom a judgment in favor of the defendants, the plaintiff appealed. When the jury appeared defendant challenged the panel because summoned by Sheriff William Preece, one of the defendants in the case. We insist that it is not competent for a party to an action to have anything to do with the making up of the tribunal who shall decide the case.

— Hon. W. G. Hall, Judge. Action brought by John S. Scott, as the administrator of the estate of James McCann, deceased, claiming a right to a one-tenth interest in the Zelnora mining claim, the legal title to which, by a patent from the United States, has been vested in Zelnora Hopper, and by her deeded to the defendants. From a decree in favor of tbe defendants, tbe plaintiff appealed.

— Son. O. H. Hart, Judge. Action to recover damages for personal injuries alleged to have been occasioned through the negligence of the defendant. From a judgment in favor of the plaintiff, the defendant appealed. The question whether the relation of fellow-servants exists in a given case, is one of fact for the jury. Hass v. Phila., etc., S. S. Co., 88 Pa. St. 269; Holton v. Daly, 4.U1.

<p>1. Homicide: Information: Sufficiency to Charge Murder in the First Degree.</p> <p>An information charging a killing by shooting to have been done feloniously, unlawfully, willfully, and with deliberate, premeditated malice aforethought, sufficiently charges murder in the first degree.1</p> <p>2. Homicide: Change of Venue: Sufficiency of Showing: Service of Copies: Reversible Error.</p> <p>Where a homicide case is called for trial on Hay 26th, and affidavits for change of venue were not filed until May 24th, and affidavits thereafter filed by the State are simply in rebuttal, and defendant does not ask time to procure additional affidavits, but submits the motion, the cause will not be reversed because the defendant, was not served with copies of the State’s affidavits, or had no opportunity to examine them.</p> <p>3- Same.</p> <p>Criminal Code, section 4802 (Rev. Stat. p. 989), requires the trial court in a criminal ease to grant a change of venue if the representations made by defendant are true. Section 4836 provides that no person shall be disqualified as a juror by having formed or expressed an opinion founded upon public rumor, statements in public journals, or common notoriety, if it appears to the court that he can act impartially and fairly. The defendant in homicide filed twenty-three affidavits in support of a change of venue to the effect that there was great popular feeling against defendant, and that he could not receive a fair trial, and the state filed fifty-two counter affidavits, to the effect that there was no popular feeling which would prevent a fair trial; and-the motion was denied. Held, that the denial of the motion could not be said to be erroneous.2</p> <p>4. Homicide: Jury: Actual Bias.</p> <p>An opinion by a venireman in a homicide case that deceased has been unlawfully killed, which it will take evidence to remove, but which is not coupled with an opinion as to who is guilty of the crime, does not disqualify the juror on the ground of actual bias, which is defined in Criminal Code, section 4833, subdivision 2 (Rev. Stat., p. 993), as the existence of a state of mind on the part of the juror which leads to a just inference that he will not act with entire impartiality.</p> <p>5. Same: Opinion of Juror.</p> <p>Under Criminal Code, section 4836, providing that no person shall be disqualified as a juror by reason of having formed and expressed an opinion founded upon public rumor, statements in public journals, or common notoriety, provided it appears to the court, upon the juror’s declaration, that he can and will act impartially and fairly, it is not error, in a homicide case, to accept a juror who states on his voir dire that he has an opinion, from what he has heard and read, as to the guilt of defendant, but that he will weigh the evidence independently, and act fairly, impartially, and without bias, and will not be influenced, except by the evidence and the charge.3</p> <p>6. Homicide: Confession: Cross-Examination: Mental Condition of Defendant: Evidence: Admissibility.</p> <p>Where a confession introduced in a homicide case was made on March 30th, and the question whether it was voluntary is in issue, a witness for the state can not be asked on cross-examination whether defendant was in fear of violence on January 1st of the same year.</p> <p>7' Same.</p> <p>Where the State, in a homicide case, offers preliminary evidence of an alleged confession of the defendant, it is not error to exclude defendant’s evidence of his mental condition at the time of the alleged confession, offered before the confession itself is introduced, but proof of defendant’s mental condition may only be shown by cross-examination and in rebuttal.</p> <p>8. Homicide: Confession: Admissibility: Though not Signed..</p> <p>A purported confession of defendant in a homicide ease, taken down in writing by the person to whom the confession is made, is admissible, though not signed by the defendant.</p> <p>9. Homicide: Voluntary Confession: Evidence Sufficient to Show-</p> <p>Evidence by a sheriff, who procured a confession from defendant, in the sheriff’s care, who is charged with homicide, that he made no threats or promises to defendant to procure the confession, but received it at defendant’s request, and that he had refused to talk with defendant at various times, and evidence by a third person, who was present at the confession, that it was not procured by threats, promises, or inducements of any character, is sufficient to show that the confession was voluntary and admissible.</p> <p>10- Same: Witness: Refreshing Memory.</p> <p>Where a witness for the State, in a homicide case, is interrogated on cross-examination as to a certain conversation, and states that he made a memorandum of the conversation at the time, it is not error, on redirect examination, to permit him to refresh his memory by the use of the memorandum.</p> <p>11. Homicide: Evidence: Sufficiency of Motion to Strike out: “Effect” for the Jury.</p> <p>Where a witness for the State, in a homicide case, states the substance of a certain conversation, a motion to strike out his ■ . testimony on the ground that “the witness is unable to state, either in substance or effect, any of the entire conversation,” is properly denied, as the effect of the conversation is for the jury. •</p> <p>12. Homicide: Impeachment of Witness: Immaterial Question.</p> <p>A witness in a criminal case can not be impeached by contradicting an answer made to an immaterial question.</p> <p>13. Homicide: Impeaching Evidence: Foundation.</p> <p>A question asked a witness for the State, in a homicide case, whether he did not state to a certain person, that, if the latter would testify, he could come to Utah without any danger, is not a sufficient foundation to authorize the introduction of impeaching evidence that the witness stated to such person in California that, if he would testify against the defendant, he would be safe.</p> <p>14. Homicide: Evidence: Question Held Improper as Framed.</p> <p>The refusal in a criminal case to allow the sheriff, who is a witness for the State, to be asked if he refused to permit the defendant’s attorney or his brother to s.ee the defendant privately, in the absence of a showing that such persons had ever requested to see defendant alone is not error, though, if the latter fact had appeared or been included in the question, it would have been admissible as affecting the credibility of the sheriff.</p> <p>15. Homicide: Evidence: Admissible in Impeachment: Refusal to Answer: Tend to Incriminate.</p> <p>Where a witness for defendant in a criminal case testifies as to an alleged alibi, evidence of contrary statements, made by him is admissible in impeachment, though, when he is interrogated as to such statements, he is excused from answering for the reason that his answer would tend to incriminate him.</p> <p>16. Homicide: Misconduct of Counsel: Improper Arguments: Appeal: Sufficiency of Record.</p> <p>Where an affidavit of defendant’s attorney in a homicide case, filed in support of a motion for a new trial, states that the prosecuting attorney commented on the fact that defendant had failed to introduce certain evidence, which was objected to by defendant, and that the court cautioned the jury upon the subject, but neither the attorney’s remarks, nor the caution of the court, are stated in the affidavit, or.bill of exceptions, or anywhere in the record, the court on appeal can not determine whether the remarks were injurious, and the objection will not be considered.</p> <p>17. Same.</p> <p>Where defendant’s attorney in a homicide case calls attention to certain language of plaintiff’s counsel in the argument of the latter to the jury, and states that he desires to except thereto, and that it be taken down, but the court is not asked to pass on the objection, and is silent in respect thereto, an assignment of error based thereon is insufficient to authorize a consideration on appeal of the alleged improper argument.</p> <p>18. Homicide: Instructions: Sufficient. .</p> <p>An instruction in a homicide ease that an attempt by defendant to escape is a circumstance’ which may be considered, in connection with all other evidence, as bearing on his guilt, but is insufficient in itself to determine his guilt, is not subject to the objection that it is an instruction that the slightest evidence in addition to the attempt to escape will authorize á conviction.</p> <p>19. Homicide: Instructions: Review on Appeal: General Exception not Sufficient where Portion of Charge is Correct.</p> <p>Where an instruction in a criminal case includes two independent propositions, and one proposition is correct, a general exception to the instruction which' fails to specifically point out the objectionable portion thereof does not authorize a review of the instruction on appeal.</p> <p>20. Homicide: Instructions: Given in 'Substance as Requested: Precludes Objection.</p> <p>A requested instruction by defendant’s counsel in a homicide case that though a confession voluntarily made by one in full possession of all his mental faculties is often the most satisfactory evidence of guilt, when the corpus delicti is proven, yet an alleged confession must be received with great caution, precludes defendant from objecting to an instruction that if a confession made by the defendant was his voluntary ' act, and is .corroborated by proof that deceased was murdered, and that defendant was so situated that he had an opportunity to commit the crime, it is entitled to great weight.</p> <p>21. Homicide: Instructions: Properly Refused when Whole Case Covered.</p> <p>Where the instructions given in a homicide ease cover the whole case, and properly submit it to the jury, the refusal of instructions requested by the defendant is not error.4</p>

— Hon. W. 0. Hall, Judge. Action to compel the cancellation by defendant of a mortgage which he held upon certain real estate of the plaintiff. Erom a judgment in favor of the defendant, the plaintiff appealed.

— Hon. T. Marioneaux, Judge. Action to recover for alleged personal injuries received by the plaintiff while working in the defendant’s mine. Erom a judgment in favor of the plaintiff, the defendant appealed.

— Ron. R. R. Bolapp, Judge. , Action by the plaintiff to recover $1,200, with interest, which he claims is due him as a balance of salary for his' services as mayor of the defendant city. From a judgment in favor of the plaintiff, the defendant appealed. In the ease at bar the mayor’s salary was adjusted on the basis proposed by him in his ordinance. It was a voluntary act on his part. There was no fraud or deceit practiced, which induced Mr. Doyle to forego his rights.

— Hon. G. H. Hart, Judge. Action to quiet title against several defendants having several interests in different pieces of land. From a judgment in favor of the defendants, the plaintiff appealed.

— Hon. H. H. Bolcepp, Judge. Action to set aside and cancel a deed to certain real property executed by the plaintiff to the defendant and to have the plaintiff adjudged to be the real owner of the premises. From a judgment in favor of the defendant, the plaintiff appealed. It is a well-settled rule of procedure that the bill of exceptions must be-settled, signed and filed within the time required by law, or it does not constitute part of the record.

— Hon. H. H. Rolapp, Judge. Action to recover damages arising from defendant’s alleged negligence resulting in the death of August Olson. From a judgment in favor of the plaintiffs, the defendant appealed. The trial court erred in permitting testimony to be given with reference to the speed of the train. Bunnell v. Eio Grande Western Eailway Company, 13 Utah 314.

— Hon. II. II. Rolapp, Judge. Action for the death of Charles H. Thorpe, by his heirs, against the defendant, a Wyoming corporation. From a judgment sustaining a demurrer to the complaint, the plaintiffs appealed.

<p>2. Criminal Law: Murder in First Degree: Testimony of Absent Witness: Admissibility: Constitutional Law.</p> <p>Revised Statutes 1898, section 453 3, subdivision 4, providing that where the charge has been examined before a committing magistrate, and “the testimony taken down by question and answer in the presence of the defendant, who has, either in person or by counsel, cross-examined the witness, . . . the deposition of such witness may be read” upon the trial if it is satisfactorily shown to the court “that the witness is dead, ... or can not, with due diligence, be found within the State,” is not in conflict with Constitution, article 1, section 12, guaranteeing that an accused shall have the right “to be confronted by witnesses against him.”1</p> <p>1. Same.</p> <p>A witness was examined and cross-examined at defendant’s preliminary hearing. He did not appear at the trial, though subpoenaed. His roommate had not seen him for three weeks, when he stated that he was going to Oregon. To the officer summoning him as a witness, he stated that he was going away, but would return. The officer had not seen him since serving the subpoena upon him. Another officer had not seen the witness since the day he was summoned as a witness, and stated that at that time he informed the officer he was going to Oregon. The name of the witness was called in court at the opening of</p> <p>tlie trial. A subpoena was issued for him at the time of the trial, which was returned unserved. The return showed that after due diligence the witness could not be found, and that his whereabouts were unknown. Held, that the trial court properly-exercised its discretion, within Revised Statutes 1898, section 4513, relating to the depositions of witnesses, when it is “satisfactorily shown to the court” that the witness “can not, with due diligence, be found within the State,” in admitting the testimony given at the preliminary hearing by the absent witness.</p> <p>3. Criminal Law: Murder: Commission of Felony: Indictment: Sufficiency: Evidence of Felony: Admissible.</p> <p>Revised Statutes 1898, section 4161, provides that “every murder perpetrated by poison . . ., or any other kind of willful, deliberate, malicious and premeditated killing, or committed in the perpetration of any arson . . or robbery” is murder in the first degree. An information for murder alleged that the accused “willfully, deliberately, maliciously, and with premeditated malice, killed and murdered” decedent. Held sufficient to charge murder in the first degree, and evidence tending to show that the murder was committed in the perpetration of a robbery was properly admissible.</p> <p>4. Appeal: General Exceptions: Insufficient.</p> <p>General exceptions to the instructions of the court, or exceptions to whole paragraphs thereof, are insufficient to raise questions on appeal.2</p> <p>5. Criminal Law: Conspiracy: To Commit Felony: Murder.</p> <p>When two defendants and another were associated together to rob a person, and such person was killed, the killing, by whichever of the three it was done, was the act of each and of all three of the conspirators, and the two defendants, were chargeable therewith, whether they, or their companion, fired the fatal shot.3</p>

— Hon. H. H. Bolapp, Judge. Action to recover damages for the destruction of the plaintiff’s barn and hay by fire alleged to have been caused by sparks from the defendant’s engine. From a judgment in favor of the plaintiff, the defendant appealed. Assuming that this fire was caused by the defendant’s engine, then the fire resulted purely from an accident caused entirely by the very heavy wind, and was not the result of any negligence.

— Hon. J. E. Booth, Judge. Action for an accounting and final settlement of a partnership. From a judgment in favor of the plaintiff, the defendant appealed. The execution and delivery of the deed having been established, the burden was on the plaintiff to impeach its validity, and by the great weight of authority this could only be done by evidence beyond a reasonable doubt; a mere preponderance is not sufficient.

— Hon. H. H. Rolxcpp, Judge. Action against tbe sureties upon an attachment bond. From a judgment in favor of tbe plaintiff, tbe defendant Eisber appealed. This verdict is clearly bad.

— Hon. T. Marioneaux, Judge. Action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. From a judgment in favor of the plaintiff, the defendant appealed.