Volume 35 — Utah Reports

District Court, Salt Lake County. Son. M. L. Ritchie, Judge. Action upon a covenant of warrantj. From a. judgment for plaintiff, defendant appeals. appellant’s AUTHORITIES. In order that possession may be adverse it must be under a claim of title exclusive of any other right.

Hon. T. D. Lewis, Judge. Action by tbe San Pedro, Los Angeles & Salt Lake Railroad Company against the Board of Education of Salt Lake City. From the judgment, defendant appeals, and plaintiff presents cross-errors.

'Original proceeding by the State, on the relation of the Utah Savings & Trust Company, against Salt Lake City and others, for a writ of prohibition to prohibit the defendants from issuing, negotiating, and disposing of water and sewer bonds. P DAINTINESS AUTHORITIES. Tbe notice of election sbonld have designated the polling places. (Compiled Laws of Utah 1907, sec. 309; 29 Cyc. 1590, and cases cited; 21 Am. & Eng.

Hon. T. D. Lewis, Judge. Action by Max M. Aaron against G. S. Holmes. From an order denying defendant’s motion to open a' default judgment for plaintiff, • defendant appealed. STATEMENT OE PACTS. This is an appeal from a judgment entered by default in the district, court of Salt Lake county against G. S. Holmes, appellant.

<p>1. New Tbial — Notice of Motion — Amendment. A notice of motion for a new trial cannot be amended after the expiration of the time allowed by statute by adding a ground not germane to anything contained in the original notice. . (Page 63.)</p> <p>2. Appeal and Ebbob — Assignments of Ebbob — Sufficiency. Under Supreme Court Rule 26 (97 Pac. x); providing that the particulars wherein the evidence is claimed to be insufficient shall be specified, an assignment of error that the court erred in denying a motion for a new trial, the grounds alleged in which were “insufficiency of the evidence” and “errors of law occurring at the trial,” is insufficient to raise the question of the sufficiency of the evidence. (Page 64.)</p> <p>3. Appeal and Ebbob — Assignments of Ebbob — Abandonment. An assignment of error not discussed in appellant’s brief must be treated as abandoned. (Page 67.)</p>

'Appeal from Second District Court, Weber County. Hon. J. A. Howell, Judge. Action for partition of real property. From a judgment' of dismissal on sustaining a demurrer to tbe complaint, tbe plaintiffs appealed. APPELLANTS' AUTHORITIES. Tbe question involved in tbis controversy requires tbe interpretation and construction of section 2830 of tbe Compiled Laws of Utab for 1907.

<p>1. Contracts — Construction—Meaning of Language. General terms of a contract which., standing alone, extend the obligation beyond the subject-matter of the contract, must be strictly limited to the subject-matter. (Page 79.)</p> <p>2. Contracts — Construction—Meaning of Language. The language of a contract must be given its usual and ordinary meaning, unless clearly employed in a technical sense. (Page 82.)</p> <p>'3. Contracts — Construction—Meaning of Language. Where the intention of the parties to a contract cannot be ascertained from the language alone, the court may have recourse to the circumstances. (Page 82.)</p> <p>4. Principal and Surety- — Contracts-—Obligation of Surety. The liability of sureties is not to be extended by implication beyond the terms of the agreement.1 (Page 82.)</p> <p>5. Contracts — Construction—Intention of Parties — Meaning of Language. The court in construing a contract may enlarge or restrict words or clauses which, if construed literally, would defeat the intention of the parties.2 (Page 86.)</p> <p>6. Evidence — Judicial Notice — Geographical Pacts. The court will take judicial notice of the general scope and- extent of the territory named in'a contract employing an insurance agent-to solicit insurance in the states of Oregon and Washington, and of the general history and number of inhabitants of the states, and of their general condition so far as the same is a matter of common or general knowledge. (Page 87.)</p> <p>7. Insurance — Agent’s Bond — Construction — “Future Agreement.” A contract employing an agent to solicit insurance in the states of Oregon and Washington provided that the agent should give a bond for faithful performance “under this or any future agreement.” The bond stipulated that it should remain in force so long as the agent should continue to he agent, “whether under his existing appointment or any future one and whether such present or future agency” he sole or in connection with others. Subsequently the agent was made soliciting agent in the states of Utah, Colorado, and Wyoming. Held, that the sureties were liable for a breach of his duties in such subsequent employment; the term “future agreement” having reference to a future appointment. (Page 88.)</p>

<p>1. Depositions — Admissibility in Evidence — Insufficiency of Answers. The mere fact that answers to certain cross-interrogatories in a deposition, answered at least in a general way, are not deemed sufficiently specific by the party propounding them would not-authorize the exclusion of the entire deposition as evidence, especially where the questions are not material nor relevant to any material issue. (Page 93.)</p> <p>2. Appeal and Error — Record—Questions Presented — Trial by Court — Necessity of Certifying all the Evidence. Where trial was to the court, and all the evidence heard is not certified'"to the Supreme Court on appeal, the admission of a deposition in evidence is not reviewable, since the court may have disregarded the deposition, and based its findings and conclusions on other evidence, which may have been sufficient to support them. (Page 93.)</p> <p>3. Appeal and Error — Review—Trial by Court — Failure to Certify Evidence — Presumptions. Where trial was to the court, and all the, evidence is not certified to the Supreme Court on appeal, it will be presumed that there was sufficient evidence to support the findings, and that they are correct. (Page 93.)</p> <p>4. Estoppel — Clothing Person with Apparent Title — Issue of Stock Certificate — Rights of Third Persons. Where a corporation issues a stock certificate to a person, it thereby holds out to all who may undertake to deal with it that the person is the owner thereof, and has the capacity to transfer it. (Page 93.)</p> <p>5. CORPORATIONS' — Capital Stock — Transfer op Shares — Prima Facie Right op Holder. Where a person presents a stock certificate, with a proper assignment duly signed hy the person to whom it was issued hy the corporation, the assignee has at least the prima facie legal right to have the stock transferred in his name on the corporation hooks, so that he may enjoy the full benefits of a stockholder of record. (Page 93.)</p> <p>6. Corporations — Capital Stock — Transfer of Shares — Right of Corporation to Question. A corporation cannot inquire into and pass upon the motives of the assignor and assignee of shares of its stock which induce a transfer thereof, nor can it ordinarily inquire into and pass upon the legality of the transaction by which the shares are transferred from one to another, nor question the consideration for the transfer. (Page 94.)</p> <p>7. Corporations — Capital Stock — Transfer of Shares — Right of Corporation to Interfere. If a corporation has some claim upon a certificate of its stock sought to he transferred, or .some rights against the assignor that wouldi, or might, be affected or lost by the transfer, nr if it is notified hy a third person not to transfer the stock, upon the ground that he claims some interest in it which would, or might be, lost by making the transfer, the corporation may refuse to make the transfer. (Page 94.)</p>

<p>1. Larceny — Evidence—Sufficiency. Evidence on a trial for larceny held, to authorize a finding that defendant obtained the money, which he claimed to have won hy betting at cards, either by fraud, trick, or artifice with the intent at the time to appro- ' priate it to his own use, and deprive the owners thereof. (Page 101.)</p> <p>2. Larceny — Taking. Though defendant did not intend to keep all of the money which he claimed to have won by betting a't cards, and intended to divide it with those connected with him in the alleged game, it would, still he larceny of the whole amount. (Page 101.)</p> <p>3. Larceny — Evidence—Sufficiency—Consent of Owner. Evidence on a trial for larceny held to authorize a finding that there was no consent by the owners that the right to the money should pass to defendant. (Page 101.)</p> <p>4. Larceny — Taking—Trick or Device. The obtaining of money under pretext of betting at cards and the best hand winning, hut where in fact prosecuting witness had no chance to win, and was the only player who actually risked anything, is larceny within Comp. Laws 1907,‘section 4355, defining larceny to be the felonious taking of the property of another, and such a game cannot be held to constitute gambling merely, and the offenders punishable for that offense ' alone. (Page 101.)</p> <p>5. Larceny — Evidence—Conspiracy. Evidence on a trial for larceny field to authorize a finding that there was a conspiracy among the persons concerned in the taking. (Page 102.)'</p> <p>6. Courts — Opinions—Meritorious Assignments. Though the Supreme Court always endeavors to pass upon all the errors assigned and argued and to comply with the constitutional requirement of giving the reasons for its conclusions, it nevertheless must limit the discussion to assignments that contain merit. (Page -103.)</p> <p>7. Criminal Law — Appeal—Harmless Error — Admission oe Evi- ' dence. Where a witness testified as to the character of defendant and the state was permitted to ask on cross-examination, over defendant’s objection, whether' it was not true that the only association witness had had with defendant for the three months preceding the acts in question was that they smoked opium together in a disreputable resort, to which the witness answered, “No.” Held, any error in the allowance of the question was harmless. (Page 104.)</p>

<p>1. Perjury — Evidence—Record of Cause in Which Perjury was Committed — Admissability. On a trial for perjury the record of the cause in which the alleged perjury was committed is admissible to show the jurisdiction of the court, the regularity of the proceedings, and the materiality of the alleged perjured testimony, hut the record oannot he considered as proof of perjury. (Page 108.)</p> <p>2. Pebjuby — Evidence—Insteuctions. The court on a trial for perjury must charge that the record of the cause in which the perjury was committed was received in evidence only to show the jurisdiction of the court, the regularity of the proceedings, and the materiality of the perjured testimony. (Page 108.)</p> <p>3. Cbiminal Law — Harmless Eeeoe — Ereoneous Admission of Evidence. On a trial for suhornation of perjury, the error in receiving in evidence, the demurrers to the complaint and answer in the action in which the perjury was committed was not prejudicial to accused. (Page 108.)</p> <p>4. Criminal Law — Harmless Eeeoe — Erroneous Admission of Evidence. The admission of immaterial evidence is no ground- for reversal of a judgment of conviction, unless the evidence tends in some way to prejudice the rights of accused. (Page 108.)</p> <p>5. Perjury — Subornation of Perjury — Nature of Offenses. Perjury and suhornation of perjury are separate and distinct offenses, and one charged with subornation of perjury is not ah accessory of the one committing the perjury. (Page 109.)</p> <p>6. Criminal Law — Evidence—Acts of Conspirators — Admissibil- ■ ity. Where two or more persons conspire together to commit a crime, and either accomplish or abandon their design, no one of them can. hy a subsequent act or declaration affect his co-conspirator, and his confession subsequently made, though by the plea of guilty, is not admissible in evidence as such against the co-conspirator. (Page 109.)</p> <p>7. Perjury — Subornation ojt Perjury — Evidence — Admissibility. On a trial for subornation of perjury, the record of the plea of guilty of perjury hy the person alleged to have been procured to commit the perjury is inadmissible. (Page 109.)</p>

<p>1. Negligence — Ordinary Care. — In all cases grounded on negligence, the law imposes the duty of ordinary care which must be exercised by both the one causing the injury and the one sustaining it; the standard of care being that degree which men of ordinary intelligence and prudence would exercise under similar circumstances. (Page 115.)</p> <p>2. Railroads — Crossing Accident — Care Required. In discharging the duties imposed by law on a railroad company and a traveler at a crossing, neither party may ordinarily rely on the other, each being required to perform the duty imposed on him, and, if it is undisputed that the complaining party has not done so, he cannot recover, except under peculiar circumstances, as a matter of law, regardless of defendant’s negligence. (Page 116.)</p> <p>3. Railroads — Crossing Accident — Care Required of Traveler. In attempting to cross a railroad track, a traveler as a matter of law was bound to listen for signals, notice signs put up as warnings, and look attentively up and down the track, and if, by looking, he could have seen an approaching train in time to escape, it must be presumed, in case he was injured by a collision, either that he did not look, or, if he did look, that he did not heed what he saw, and was therefore negligent per se.1 (Page 116.)</p> <p>4. Railroads — Crossing Accident — Last Clear Chance. Where the last clear chance doctrine is involved in an action growing out of a railroad crossing accident, the case is ordinarily one' for the jury, though the precedent and concurring negligence of both parties is conceded or established without dispute. (Page 123.)</p> <p>5. Railroads — Crossings—Signals—Statutes. Under Comp. Laws 1907, section 447, requiring engines or trains to stop at street grade crossings, and ’give a signal by two blasts of the whistle where no interlocking signal apparatus and derailing switches are used, it could not be presumed, in the absence of proof, that a crossing at which plaintiff was injured by defendant’s alleged failure to give signals was one where signals were required. (Page 121.)</p> <p>6. Railroads — Crossing Accident — Contributory Negligence— Warning. A traveler injured at a railroad crossing cannot excuse his want of ordinary care in entering on the track in front of an approaching engine because he was not warned. (Page 121.)</p> <p>7. Railroads — Crossing Accident — Contributory Negligence. Plaintiff driving a horse attached to a covered milk wagon en-tere^ a street on which defendant’s main railroad line was located. He then saw an engine standing headed in the opposite direction on a switch about 400 yards north of the crossing, at which he was subsequently injured. At the time he looked plaintiff was between 70 and 75 yards north of the crossing, and he, believing that the engine would remain on the switch because it was nearly time for another train of which plaintiff saw the smoke, but which was not then in sight, paid no more attention to the engine, but kept looking for the train, when he turned to cross the track at right angles, and, as he did so, he saw the engine approaching without having rung the bell or blown the whistle, at a speed of from 12 to 20 miles a hour, and it struck plaintiff’s horse and wagon before he could escape. Held, that plaintiff was negligent as a matter of law. (Page 122.)</p> <p>8. Railroads — Crossing Accident — Last Clear Chance. Where plaintiff was driving along the side of a railroad track in a place of safety, and, without looking, attempted to cross the track in front of an approaching engine, and was struck and injured’, he was not entitled to recover on the ground that defendant’s servants by the exercise of ordinary care could have seen him going into a place of danger, and could have prevented the accident. (Page 124.)</p>

<p>Appeal from District Court, Second District. Hon. J. A. Howell, Judge.</p> <p>Personal injury action by Anton Christensen, Martha Christensen’s guardian ad litem, against the Oregon Short Line Railroad Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>1. Sales — Action for Price — Evidence. In an action to' recover for beets sold, evidence at the close of plaintiff’s case held not to show that another than plaintiff had any interest in the beets. (Page 154.)</p> <p>. 2. Parties — Defects—Time fob Objection. The objection that there is a defect of parties plaintiff can only be taken advantage of by demurrer or answer. (Page 154.)</p> <p>3. Principal and Agent — Rights of Undisclosed Principal — Real Party in Interest. That a person making a contract for another makes it in his own name does not preclude the other from suing thereon as the real party in interest. (Page 154.)</p> <p>4. Garnishment — Proceedings to Procure — Service of Writ. Comp. Laws 1907, section 3092, provides that in garnishment before judgment or in aid of an attachment (the proceedings upon a writ issued after judgment being identical) a writ of garnishment must issue, following a prescribed form, which must be directed to the one intended to be made garnishee. Section 3093, provides that the writ must be served as a summons is required to be served. Section 3094 provides that, upon the return of the officer showing due service, the court has jurisdiction to proceed against the garnishee and the funds in his hands. Section 3112 relates to garnishment after judgment, and provides that, where an execution remains in the hands of the officer for service unsatisfied, a writ of garnishment may issue and the property of the judgment debtor may be reached by serving the writ on the person having it in his possession. Held, that to confer jurisdiction upon the court service of a writ of garnishment as required by statute is necessary, and, where only a copy of an execution was served on a person with a notice that property in his hands belonging to the execution debtor had been attached and that it should not be transferred to anybody except the serving officer with a request to furnish a statement, the court did not obtain jurisdiction; no writ of garnishment having been issued or served. (Page 157.)</p> <p>5. Garnishment — Proceedings to Procure — Jurisdiction—Effect of Appearance of Garnishee — Waiver of Defects. While mere defects in service or in the writ of garnishment which are not jurisdictional are waived by the voluntary appearance of the garnishee, where the court obtains no jurisdiction because of failure to comply with the statute requiring service of a writ of garnishment, the garnishee by appearing cannot waive the jurisdictional defect. (Page 158.)</p> <p>6. Corporations — Garnishment—Notice—Sufficiency. A notice in garnishment proceedings to a person ds “manager” without specifying of what he was manager and served on that person individually as shown by the officer’s return; stating that property in his hands belonging to a debtor had been attached, etc., was not notice to a company of which the person was manager. (Page 159.)</p> <p>7. Garnishment — Voluntary Payment by Garnishee — Effect. Where a garnishee, not obliged to pay garnished funds in his hands because no writ of garnishment was issued or served, nevertheless paid the amount into court, the payment was a voluntary one, and afforded the garnishee no protection as against the real owner, who was not the judgment debtor. (Page 159.)</p> <p>8. Garnishment — Receipt by Creditor oe Fund Without Legal Right. Where a garnishee, not obliged to pay oyer garnished funds in his hands because of jurisdictional defects in the proceedings, nevertheless did so, and the amount was used to satisfy the creditor’s judgment, the creditor acquired no legal right to the money as against the true owner, who was not the judgment debtor. (Page 159.)</p> <p>9. Garnishment — Construction of Statutes. Garnishment statutes are to be liberally construed to effect their purpose; hut, where a failure to observe a statutory requirement constitutes a jurisdictional defect, the courts cannot disregard it. (Page 160.)</p> <p>10. Attachment — Construction of Statute. The same rule applies to attachment statutes. (Page 160.)</p> <p>11. Estoppel — Accepting a Portion of Claim. While, under some circumstances, a creditor may estop himself from preferring a further claim after receiving a portion of property all of which belongs to him, yet, where there is no accord and satisfaction involved, he can receive any portion less than the whole at any time and still demand the remainder, and hence the mere fact that the owner of funds received what remained from another who had paid the balance to third persons under a mistake as to ownership would not preclude his recovery from the other of the balance. (Page 160.)</p>

<p>1. Escrows — Time Effective. An escrow deed does not become effective until the conditions upon which, it is executed are fully performed, and the taking possession of the property by the purchaser, and part performance, ordinarily does not render it effective, so that, where a deed was deposited in escrow for delivery when the vendee paid purchase-money notes, taxes, etc., title .remained in the vendor until that time. (Page 170.)</p> <p>2. Escrows — .Time Effective — Relation Back to Delivery. The passing of title under an escrow deed, upon performance of the conditions upon which it was executed, will relate back to the execution of the deed only when justice requires it. (Page 170.)</p> <p>3. Vendor and Purchaser — Rescission—Right of Purchaser. While the vendor, in a contract to convey, by a subsequent conveyance to another prevents himself from complying with his contract, or the conveyance amounts to a repudiation of the contract, or places an additional burden upon the vendee, the latter may treat the conveyance as an abandonment of the contract by the vendor, and recover any payments thereunder; but, where the conveyance does not prevent performance of the contract, as where the transferee recognizes the contract vendee’s rights, and is willing to convey, the vendee cannot rescind. (Page 171.)</p> <p>4. Vendor and Purchaser — Rescission—Rescission by Purchaser —Abandonment by Vendor. Where the vendor, in a contract to '.convey, conveyed the land to another, to whom the purchase-money notes had been previously transferred for the purpose of securing the notes, with the understanding that the transferee should convey to the contract vendee when the notes were paid, in accordance with the contract, such conveyance by the vendor • did not amount to an abandonment of the contract, so as to entitle the vendee to rescind and recover payments made under the contract. (Page 172.)</p> <p>5. Vendor and Purchaser — Rescission—Right of Vendee. The fact that the vendor, under a contract to convey, breached and abandoned the contract in February by conveying to another would not justify the failure of the contract vendee to. make payments due before that time, so as to entitle him to rescind and recover payments already made. (Page 173.)</p> <p>6. Vendo» and Pubchasek — Performance of Contract — Payment— Tender — Sufficiency. A tender of payment by the vendee, conditioned upon the vendor making deeds to certain lands not covered by the contract, and after making arbitrary deductions of unliquidated claims against the vendor, was not good. (Page 174.)</p> <p>7. Vendo» and Purchase» — Rescission—Agreement "by Parties — ■ Effect. A vendee, in an executory contract to convey, may recover the amount paid thereunder, where both parties voluntarily rescinded the contract. (Page 174.)</p> <p>8. Vendor and Purchaser — Rescission by Vendee — Effect—Rights on Rescission. The purchaser, under a contract to convey, may recover the amount paid thereunder, where the vendor fails to perform his part of the contract, or was guilty of fraud in making it, or the purchaser rescinds, under an option to do so contained in the contract, or where both parties are in default and unable to complete the contract at the time stipulated., (Page 174.)</p> <p>9. Vendor and Purchaser — Rescission by Vendee — Right. That the vendor demanded some security for the debt, after the ven-dee had refused to make payments due, would not entitle the latter to rescind the contract and recover payments already made. (Page 175.)</p> <p>10. Vendor and Purchaser — Construction of Contract — “Defauet in Payment.” A contract to convey provided that the deed should be delivered to • the vendee upon payment of a certain amount each year, from 1904 to 1910, and in case of “default in payment” the deed should he .returned to the vendor, and previous payments should be used as rent on the premises. Held, that the contract could not be construed so as not to put the vendee in default for nonpayment until 1910, but his failure to make any payment when it became due would amount to a de- . fault, (Page 177.)</p> <p>11. Vendor and Purchaser — Performance of Contract — Breach— Effect. A contract to convey required the payment of the purchase price at stipulated periods, and provided that, in case of default in payment, the escrow deed was to be returned to the vendor, and previous paymenis should be used as rent on the premises. Held, that the rights of the parties upon a breach by the vendee were measured by the contract itself, and the vendor was entitled thereunder to apply payments already made upon the rent, and to have the deed returned, while the vendee was entitled to have the unpaid purchase-money notes surrendered to him, so that the vendor could not recover thereon. (Page 178.)</p> <p>12. CONTRACTS — Breach—Effect. Where the parties to a contract stipulate what the result of a breach thereof shall be, the courts will ordinarily give it only the result stipulated. (Page 179.)</p>

<p>1. Appeal and Error — Review—Granting New Trial. Where the record contains only the verdict and motion for a new trial, the court’s action in granting a new trial is not reviewable, since, under the express provisions of Comp. Laws 1907, sec. 3298, the court for certain reasons could have granted a new trial on its Dwn motion. (Page 184.)</p> <p>2. Public Lands — Grants to State — Relief to Bona Fide Claimants — Trespass. Where the state, entitled under its enabling act to a grant of unoccupied and unclaimed nonmineral lands, made a selection, if the lands were of the character granted, the Secretary of the Interior could not defeat the state’s rights by rejecting the selection, his approval being merely evidence that the lands selected were subject to the grant; and hence where the state contracted to sell land selected, and the Secretary of the Interior afterward rejected the selection, which was canceled with the state’s consent, and the purchaser acquiesced and surrendered possession, the purchaser had exclusive right to possession until the cancellation, it not appearing that the land was mineral land, and the contract was admissible in evidence to show the purchaser’s right of possession prior to cancellation of the selection, as against another who entered thereon and damaged the purchaser’s property. (Page 186.)</p> <p>8. Public Lands — Grant to State — Risi-it of Possession. The state having the exclusive right under its enabling act to select unoccupied and unclaimed nonmineral lands, the right of selection carried with it the right to take and continue in possession, at least until some one with a better right claimed the lands or until they were found to be mineral lands, and hence, where the state transferred its right to another, the other could exclude mere intruders who had no right in the land until the national government asserted its superior rights, the state’s selection being set aside. (Page 187.)</p> <p>4. Damages — Pleading—Special Damages. The general rule is that all the consequences that necessarily and ordinarily flow from the wrongful acts described in the complaint may be proved under a general allegation of damages, but consequences which are the natural, but not the necessary and ordinary, result of such acts, must be specially alleged. (Page 189.)</p> <p>5. Damages — “General Damages” — “Special Damages.” The only difference between general and special damages is that general damages are the necessary and usual result of the acts described in the complaint while the special damages need not be but must only be the proximate result of and traceable to such acts. (Page 190.)</p> <p>6. Pleading — Sufficiency. In every pleading the opposite party is entitled to notice of what the proof will be directed to, and the notice must appear from the pleading.1 (Page 190.)</p> <p>7. Damages — Pleading—Scope of Proof. Where the only allegation is a cause of action in the complaint in regard to damages from the mingling of defendant’s bucks with plaintiff’s ewes was that the ewes brought forth lambs of an inferior quality at an unseasonable period, evidence was inadmissible to show that plaintiff hired extra men to care for the ewes and lambs during the time the ewes dropped their lambs, that he expended certain sums to purchase lumber for sheds to protect the ewes and lambs, that he purchased hay and straw to bed and feed them, and that all the expenses were necessarily incurred because of the wrongfully mingling of the bucks with the ewes, since it went beyond the scope of the allegation of damages. (Page 191.)</p> <p>8. Damages — Pleading—Special Damages. The matters sought to be proved were in the nature of special damages which should have been pleaded. (Page 191.)</p> <p>9.. Evidence — Admissions—Offer of Compromise. Under the express provisions of Comp. Laws 1907, sec. 3217, if a party serve on the adverse party a writing offering to, permit the adverse ■party to take judgment for a specified sum and the offer is rejected, the writing is privileged and cannot be used as evidence. (Page 191.)</p> <p>10. Evidence — Admissions—Offer of Compromise. Under the general rules of evidence a mere offer of money or anything of value, either oral or written, in settlement of a pending controversy, ordinarily cannot be used in evidence as an admission of liability. (Page 191.)</p> <p>11. Trial — Reception of Evidence — Restriction to Certain Purpose. Where letters are offered which are admissible to prove a fact other than the offer, the jury should be told not to consider them except for the purpose for which offered. (Page 192.)</p> <p>12. Trial — Reception of Evidence — Restriction to Certain Purpose. Where evidence admitted is competent only for a special purpose, it is the duty of counsel and not of the court to see that it is limited to the purpose for which it is admissible.2 (Page 192.)</p> <p>13. Damages — Speculative Damages — “General Damages” — “Special Damages.” In any case predicated upon a wrong, a person may be entitled to recover general damages which are the necessary and usual' results of the acts complained of, and special damages which are not the usual and ordinary result but as directly traceable to the wrongful acts complained of and result therefrom, but all other damages are too remote. (Page 193.)</p> <p>14. Damages — Instructions—General and Special. If both general and special damages are claimed, the court should by its charge limit both damages to such as are proximate and not remote, and should indicate plainly the limits beyond which damages cannot be allowed. (Page 193.)</p> <p>15. Trial — Instructions—Right of Party. A party has the right to have the-court instruct the jury upon the law on every material issue in the case in support of which there is some evidence. (Page 193.)</p> <p>16. Appeal and Error — Assisnment oe Error — Sufeiciency. An exception and assignment of error that the court erred in refusing requests as offered would not raise the question of the court’s error in failing to charge upon a material issue in the case, since, if the requests did not correctly state the law applicable to the evidence, it was not error to refuse them. (Page 193.)</p>

<p>1. ESCROWS — Delivery by Depositary — Sufficiency. Evidence held to show that a deed of land was placed in es-row by the grantor for delivery to the grantee on his paying the price, and hence a delivery to the grantee, who refused to pay the price, was unauthorized. (Page 202.)</p> <p>2. Vendor and Purchaser — Bona Fide Purchasers. A purchaser knew at the time of his purchase that his immediate grantors had never had possession of the premises nor had exercised any kind of ownership over the same, and that others were in possession, and exercised acts of ownership. The purchaser made no attempt to obtain possession until a considerable time after his purchase. The only consideration paid by him was the giving of a mortgage on the property. Held, that he was not an innocent purchaser for value. (Page 202.)</p>

<p>Easements — Gkants—Right oe Wat. An owner conveyed to a purchaser a parcel of land, together with the right of way extending from the northeast corner of the parcel “north to” a street for use of the grantee. Subsequently the owner conveyed to a third person the parcel adjacent to the purchaser’s parcel, without reserving the right of way. When the first conveyance was made, there were buildings and other improvements which prevented ■a way due north, hut which permitted a way in a northerly direction to the designated street. Held that, while the purchaser was entitled to a right of way to the designated street, he was not entitled to a way due north, and he could not cause a removal of permanent improvements, standing in the' way of such a direct course.</p>

<p>Appeal from District Court, Third District. Hon. M. L. Ritchie, Judge.</p> <p>Action by A. E. Snow against E. M. West and others. Erom a judgment for plaintiff against defendant E. M. West, he appeals.</p>

Hon. M. L. Ritchie, Judge. Action by Gr. E.. Bristol against Noab Brent, and another as garnishee. From an order dismissing the garnishment proceedings, plaintiff appealed. On motion to dismiss appeal.

<p>1. Appeal and Error — Assignment op Error — Insufficiency op Evidence — Specification op Grounds op Insufficiency. "Where no particulars wherein evidence is insufficient to support findings oí fact are specified, where the insufficiency is assigned as error, the findings are not reviewable; Supreme Court Rule 26 (97 Pac. x) providing that, when error is alleged upon the ground of insufficiency of evidence to sustain a decision, the particulars shall he specified. (Page 224.)</p> <p>2. Appeal and Error — Review—Subsequent Appeals — Former Holdings as Law op the Case. On a second appeal of a case between the same parties, and on the identical pleadings and evidence, holdings made on the first appeal are the law of the case, binding on both the litigants and the court. (Page 225 )</p> <p>3. Appeal and Error — Review—Findings. A holding by the Supreme Court that there was no evidence of the reasonableness of a stipulation in a contract for carriage of live stock implied a holding that the transcript of the' evidence in the case was properly before the court. (Page 225.)</p> <p>4. Stipulations — Record on Appeal — Necessity for Bill oi? Exceptions. While evidence to be properly presented on appeal should be incorporated in a bill óf exceptions, allowed, settled, and certified to by the trial judge, and not by stipulation of counsel, still where parties stipulated that the trans ript of evidence might be used by either on appeal, and should be taken as the whole evidence without certificate from the judge, obviously for. the express purpose of dispensing with a settlement of a bill of exceptions, neither party can complain if the court gives the stipulation effect, and considers the evidence properly before the court. (Page 227.)</p> <p>5. Appeal and Error — Subsequent Appeals — Review—Scope— Questions Concluded. In an action against a carrier for damages to live stock, judgment was rendered for defendant upon the sole ground that plaintiff had failed to present a claim within the time stipulated for in the contract. All other issues and matters of fact were found for plaintiff. The principal assignment of error and the briefs of both counsel on the merits on appeal chiefly related to the court’s conclusion respecting the stipulation in the contract, and its ruling admitting the ■ contract in evidence, plaintiff urging that the contract was invalid and the stipulation unreasonable, and defendant the opposite. The court’s opinion recited that “the only question presented by the appeal is with respect to the validity and effect of the contract.” On rehearing neither in the petition nor on reargument and resubmission was it urged that the court had ruled the case on a question not presented and not submitted, and the same contentions were made by counsel as on the original hearing; counsel in their briefs stating the validity of the stipulation in the contract to he in question and no other question was argued nor presented. Held, that the question of the validity of the stipulation in the contract was properly before the court on appeal. (Page 228.)</p>

<p>1. Pleadiitg — Reply—Necessity. Under Comp. Laws 1907, sec. 2980, providing that there shall be no reply except where a counterclaim is alleged or where some matter is alleged in the answer to which plaintiff claims to have a defense through some fact avoiding allegations of the answer, a reply is not always ■required to new or affirmative matter in the answer. (Page 232.)</p> <p>2. Pleading — Reply—Necessity eos — Limitations. Under Comp. Laws 1907, sec. 2980, providing that there shall be no reply except where a counterclaim is alleged or where some matter is alleged in the answer to which plaintiff claims to have a defense, a plea of limitations in an action to quiet title does not require a reply. (Page 233.)</p> <p>3. Pleading — Reply—Necessity foe — Quieting Title. In an action under Comp. Laws 1908, sec. 3511, to quiet title to land, defendant’s claim of ownership and possession is not in the nature of a counterclaim, so as to require a reply under section 2980. (Page 234.)</p> <p>4. Pleading — Pubpose. The principal purpose of pleading is to frame and present the issues to be tried. (Page 235.)</p> <p>5. Pleading — Aides by Ineeeence. While a pleading should state directly the facts relied on, an averment may be aided by inference or presumption. (Page 235.)</p> <p>6. Quieting Titee — Complaint—Sufficiency. If, when decedent died, he owned and was in possession of land, title to which his administrator sues to quiet, in the absence of proof to the • contrary it will be presumed that the title remained in his estate, and hence the administrator was not bound to allege ownership at the time of suit. (Page 235.)</p> <p>7. Statutes — Records-—Admissibility. While the record of an instrument may not be used as evidence of the contents of the original unless authorized by statute, statutes authorizing the record of instruments duly acknowledged, proved, or verified as provided by law to be used as evidence are remedial in their nature, and require a reasonable, if not a liberal construction. (Page 237.)</p> <p>8. Evidence — Records—Patents—Admissibility. Under Comp. Laws, 1907, sec. 1975, providing that every conveyance of land, etc., to impart notice, shall be acknowledged, certified, and recorded, section 1999, defining what is a sufficient certification and acknowledgment to entitle an instrument to record; section 2000, making conveyances of lands and patents properly executed, recorded, etc., constructive notice of their contents; and section 3409, providing that the record, or certified copies of the record, of instruments 'conveying land, duly acknowledged, may be read in evidence with the same effect as the original on proof that the original is not under the control of the person producing the record or copy — the record of a patent is admissible in evidence when the record shows that the patent was duly executed, etc. (Page 238.)</p> <p>9. Evidence — Records—Admissibility. Under Sess. Laws 1907, p. 102, c. 90 (Comp. Laws 1907, sec. 2010), making admissible in evidence instruments recorded before January 1, 1907, regardless of any defect, omission, or informality, a patent recorded January 19, 1901, was admissible in evidence in an action to quiet title.' (Page 238.)</p> <p>10. Evidence — Documents. Such acts as Sess. Laws 1907, p. 102, c. 90 (Comp. Laws 1907, sec. 2010), making admissible in evidence instruments recorded before a specified date, regardless of any defect, etc., are purely remedial, and apply to pending actions unless otherwise stated. (Page 238.)</p> <p>11. Evidence — Pajote Evidence — Identification of Description. Under the rule that, where the description in an instrument conveying land is not so vague and uncertain as to void the grant, the land may be identified by parol, in a suit to quiet title to a specified quarter of a specified section, testimony was admissible to identify the land as that described in a patent as lots 1-4 in that section. (Page 239.)</p> <p>12. Limitation of Actions — Evidence—Sufficiency. -Evidence held to sustain a finding that suit to quiet title was not harred hy limitations. (Page 240.)</p> <p>13. Limitation of Actions — Burden of Proof. In a suit to'quiet title a plea of limitations was an affirmative defense, to prove which the burden was on defendant. (Page 240.)</p> <p>14. Evidence — Failure to Sustain Burden of Proof. In the absence of evidence supporting an issue respecting which the burden of proof was on defendant, the trial court was bound to find for plaintiff. (Page 240.)</p>

<p>Appeal from District Court, Second District. Hon. J. A. Howell, Judge.</p> <p>Action by Francis Tate, administrator, against E. R. Shaw. From the judgment, defendant appeals.</p>

Hon. W. W. Maughan, Judge. Action by Mrs. O. W. Benson against tbe Oregon Short Line Bailroad Company for damages for goods destroyed in transit. Judgment for plaintiff, and defendant appeals. STATEMENT OE EACTS. On September 5th, 1906, respondent, at Bntte, Mont., employed one O. B. Oeschili to pack and deliver at defendant’s depot for shipment to Logan, Utah, certain household goods.

<p>Appeal from District Court, Third District. Hon. G. W. Morse, Judge.</p> <p>Action in tbe nature of a creditor’s bill by A. L. Burnham against J. M. Stoutt and. others.' Judgment of dismissal, and plaintiff appeals.</p>

<p>Appeal from District Court, Third District. Hon. T. D. Lewis, Judge.</p> <p>Action by George T. Ensign against the Colorado Investment-Loan' Company. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Appeal and Eeeoe — Assignments op Eeeoe — Review. "Where the assignments of error are reviewable without a motion for a new trial, the fact that the record does not properly disclose that a motion for a new trial was made and ruled on is immaterial.1 . (Page 262.)</p> <p>2. Appeal and Eeeoe — Recoed—“Judgment Roll” — Statutes. Under Comp. Laws 1907, sec. 3197, defining what papers shall constitute the judgment roll, a petition for removal of the cause to the federal court is not a part of the judgment roll, and, to make it a part of the record on appeal, it and the proceedings thereon must be incorporated into the bill of exceptions, though, under the federal practice, the petition is a part of the record without a bill of exceptions. (Page 262:)</p> <p>3. Removal op Causes — Petition—Suppiciency. A petition to remove a cause to the federal court must state facts which deprive the state court of the right to proceed, and must show that the federal court has jurisdiction, together with the grounds for which the removal is asked. "(Page 263.)</p> <p>4. Appeal and Eeeoe — Denial op Petition to Remove Cause to Fedeeal COURT — Review. Where the order denying the petition to remove the cause to the federal court showed that the removal was refused because the petition on its face disclosed that the federal court had no jurisdiction of the cause, the court on appeal could not, in the absence of the petition, review the ruling. (Page 263.)</p> <p>5. Master and Servant — Injury to Servant — “Fellow-Servants.” Under Comp. Laws 1907, sec. 1343, providing that all employees of a common master, engaged in the same grade of service and working together at the same time and place and to a common purpose, aré fellow-servants, neither a section foreman and those working under him while working on the track nor a telegraph operator engaged in ’the regular course of his employment are fellow-servants of an engineer in the discharge of his duties.2 (Page 264.)</p> <p>6. Master and Servant — Injury to Servant — Negligence oe Fellow-Servants. Where the acts complained of either related to matters that were nondelegable by the master, or were such as would make the negligence concurring negligence of the master and a servant other than the injured servant, the master could not escape liability for the injuries because of the negligence of a fellow-servant. (Page 265.)</p> <p>7. Trial — Instructions—Construction as a Whole. Where, in an action by an employee for personal injuries, the court charged that the jury must find that the employer was guilty of some act of negligence alleged in the complaint, followed by a specific enumeration thereof, an instruction that, if the 'accident was caused by one or more of the acts of negligence set forth in the complaint, then the employer was liable, was not open to the objection that it made the allegation, and not the proof, the test of recovery. (Page 266.)</p> <p>8. Evidence — Opinion Evidence — Competency. Under the rule that the opinion of an expert based on mere conjecture cannot be accepted as proof of any fact, an experienced railroad operator and an expert in his calling is not competent to state whether in view of his observation at and about a railroad wreck the speed of the train did not exceed 50 miles an hour. (Page 266.)</p> <p>9. Appeal and Error — Harmless Error — Erroneous Admission oe Evidence. The error in admitting hearsay evidence to establish a fact subsequently established by other evidence, and not disputed, is not prejudicial. (Page 267.)</p>

— Son. Geo. G. Armstrong, Judge. Action to foreclose a deed of trust.

' District Court, Salt Lake County. — 'Ron. T. D. Lewis, Judge. Action to recover damages for personal injuries received by plaintiff while a passenger on defendant’s train. From a judgment for plaintiff, the defendant appealed. APPELLANT’S AUTHORITIES. The court erred in permitting evidence of non-experts as to the plaintiff’s condition.

— Hon. J. A. Howell, Judge. Action to recover damages for tbe death.of plaintiff’s,intestate, alleged to bave been caused' by tbe negligence of tbe defendant. From a judgment for plaintiff, tbe defendant appealed.

Appeae from the Second District Court, Weber County.— Hon. J. A. Howell, Judge. Action to recover damages for the death of plaintiff’s intestate, alleged to have been caused by the negligence of the defendant. From a judgment for plaintiff, the defendant appealed.

— Horí. M. L. Ritchie, Judge. Action to recover attorney’s fees. From a judgment for plaintiff, the defendant appealed. statements op pacts. Plaintiff is an attorney at law, and ever since .the year 1897 has been engaged in the active practice of his profession in the state of Utah and in the courts of some adjoining states. The defendant, during all of said time, was a corporation engaged in the business of lending money upon real estate security in this and other states.

— Hon. J. E. Booth, Judge. Action to recover damages alleged to have been sustained by the plaintiff by the defendant’s negligence in running a train of cars over his sheep on a public highway. From a judgment for plaintiff the defendant appealed.

<p>1. Criminai. Daw — Confessions—Voluntariness—Province of Court and Jury. Preliminary to admission of confessions, a prima facie showing of voluntariness, to he determined by the court, after cross-examination by defendant, must be made, and, after this has been made, and the confession admitted, defendant may introduce evidence that it was not voluntary; and, the evidence being conflicting, the question of voluntariness, like other questions of fact, is to be left to the jury, with instructions to disregard the confession, unless convinced it was voluntary. (Page 405.)</p> <p>2. Abortion — Necessity for Preserving Dife — Evidence. Evidence, on a prosecution for abortion, held insufficient to show that the production of the miscarriage was not necessary to save the woman’s life, the burden of proving which, under Comp. Laws 1907, section 4226, defining the offense, is on the state. (Page 407.)</p> <p>8. Criminal Law — Circumstantial Evidence. In case of circumstantial evidence, circumstances must be proved which, not only agree with, and concur to show defendant’s guilt, bill are inconsistent with any other reasonable conclusion. (Page 408.)</p> <p>4. Abortion — Necessity for Preserving Life — Evidence. Evidence that the woman was unmarried, and that defendant, who produced the miscarriage, had had illicit intercourse with her, is not inconsistent with the production of the miscarriage having been necessary to save her life. (Page 410.)</p>

<p>Appeal from the Third District Court, Salt Lake County. —Hon. O. W. Morse, Judge.</p> <p>From a judgment refusing to set aside a default and vacate a judgment, the defendants appealed.</p>

Original application for a writ of mandat© to require respondent to set aside an, order dismissing an appeal and to ‘ reinstate tbe cause and to bear it upon tbe merits,

<p>1. Contracts — Control of Corporation — Voting Trust — Validity. Comp. Laws 1907, section 335, permits a stockholder to vote by agent or proxy, unless otherwise provided in the articles of incorporation. Section 330 declares that the stock of a corporation shall be deemed personal property. Stockholders owning a majority of the stock, contracted with other stockholders, who were then directors of the corporation, reciting that they desired to place the control of such stock in the hands of the latter stockholders, and authorized them to vote such stock, to collect all dividends, and to do all things that the owners of such stock might do as such. It was agreed that, in consideration thereof, the stockholders to whom such control was transferred should pay the owners a fixed sum per month and all assessments against the stock, that such stockholders would not vote it in favor of any assessment thereon or to incur any indebtedness on the part of the corporation not payable before expiration of the contract, and that they would pay the proportion represented by such stock of any indebtedness of the corporation created during the period of the contract. Held, that as between the parties to the contract, and in the absence of an express statute forbidding it, the contract was not void as against public policy. (Page 438.)</p> <p>2. Contracts — Mistake—Burden Not Anticipated. Where parties in entering into a contract stand upon an equality with respect to each other and the subject-matter of the contract, a court ought not to interfere merely because one party or the other, must assume or discharge a burden not anticipated when the contract was made, provided such burden comes within its terms. (Page 442.)</p>

— Son. W. W. Maughan, Judge. Certiorari to review proceedings in the Justice’s Court of Logan City. From a judgment affirming the justice’s judgment, the plaintiff appealed. APPELLANT’S AUTHORITIES. The giving of such notice of trial to one who has filed an answer is a jurisdictional fact, and that without the same being given a judgment would be absolutely void, and would-be vacated upon a writ of review.

— Hon. J. A. Howell, Judge. Action to recover money. The opinion states the facts. From a judgment for the defendant, the plaintiff appealed. APPELLANT'S AUTHORITIES.

—Hon. J. B. Booth, Judge. Action to recover a certain sum for grazing privileges which it is alleged were enjoyed by defendants upon lands leased by plaintiffs from United States Government. From a judgment for the plaintiffs, the defendants appealed. STATEMENT OE EACTS.

T. D. Lewis, Judge. S.uit by Jesse Knight against Hyrum F'. Thomas and others, as members of the City Council of Provo, Utah, to enjoin them from vacating a street. From a judgment of dismissal plaintiff appeals.

M. L. Ritchie, Judge. Action to recover damages for injury to property by Thomas Morris against Salt Lake City and S-. Birch. From a judgment for plaintiff against Salt Lake City it appeals, and from a judgment for defendant S. Birch plaintiff appeals. APPELLANT, SALT LAKE CITY^S AUTHORITIES.

<p>1. Criminal Law — Preliminary Examination — Complaint—Sufficiency — Effect of Irregularities. Where accused is bound over to answer to the district court on bis waiving a preliminary examination, or where the preliminary proceedings secure to him the rights to inform himself of the nature of the accusation, to cross-examine the witnesses, and to inform himself of the facts relied on by the state, the preliminary proceedings will not be annulled because the complaint is informal. (Page 500.)</p> <p>2. Criminal Law — Preliminary Examination — Complaint—Sufficiency. Under Comp. Laws 1907, sections 4604, 4610, providing that a complaint must state the name of accused, the county in which the offense was committed, the general nature of the crime, the acts complained of as constituting the crime, etc., a complaint, which states the name of the crime charged, the time and place of its commission, the name of accused, and which sets out in general terms the acts constituting the crime, is sufficient as a basis for a preliminary examination, though it is lacking in other averments necessary in an indictment or information. (Page 500.)</p> <p>3. Criminal Law — Preliminary Examination — Complaint—Sufficiency. A complaint for perjury, which alleged that accused, on designated date, within a designated county, committed perjury, giving false testimony before the district court in a civil action, wherein a third person was plaintiff and accused defendant, which states the issues of the action, and that accused was sworn as a witness, and which recapitulates the alleged false testimony, etc., is sufficient as a basis for a preliminary examination. (Page 500.)</p> <p>4'. Criminal Law — Preliminary Examination — Defective Complaint — Waiver. Accused, failing to object to the complaint when arraigned before the committing magistrate, waived all objections that might have been urged against the complaint. (Page 501.)</p> <p>5. Indictment and Information — Information—Duplicity. An information for perjury, ■which alleged that accused, as defendant in a divorce .action, gave false testimony on the. trial thereof by falsely testifying that he had heard the testimony oí his wife and children, wherein they stated that he had choked his children; that he had never choked them; that -the alleged choking did not occur; that at the time of the alleged choking he did not have a. club or raise, it, or threaten to beat out his wife’s brains; that he never threatened to drown his children; that he never spoke a cross word to his wife; and .that during the period of their married. life the parties had been on the best of terms, etc. — alleged successive statements made by accused while testifying as a witness, which statements weré so related to the subject-matter, and were so linked and blended together in point of timé, as to constitute hut one act, and but one offense, was not bad on demurrer, on the ground that more than one offense was charged therein. (Page 502.)</p> <p>6. Perjury — Information—Evidence—Sufficiency. Proof' of the falsity of any one of several matters alleged in an. information charging perjury, and containing several assignments of perjury, supports a general verdict of guilty, though the other assignments are not sustained by the evidence. (Page 503.) . •</p>

W. Mor so, Judge. Action by A. Fred Wey against Salt Labe City to annul a special assessment and quiet title. From a decree for plaintiff, defendant appealed.

T. D. Lewis, Judge. Action to recover damages for personal injuries by Ethel M. Anderson against the Salt Lake & Ogden Nailway Company. From a judgment for plaintiff for the sum of five hundred dollars defendant appeals. appellant's authorities.

<p>1. Prohibition — Questions Presented on Demurrer to Petition. In view of Comp. Laws 1907, see. 3654, authorizing the writ of prohibition to arrest the proceedings of any tribunal, etc., whether judicial or ministerial, when such proceedings are without or in excess of its jurisdiction, the question on demurrer to a petition to prohibit proceedings in a civil case is not whether the facts alleged are sufficient to entitle plaintiff to sue for malicious prosecution or abuse of legal process, but solely whether the court is proceeding without or in excess of its jurisdiction. (Page 520.)</p> <p>2. Prohibition — Scope of Remedy — Relief Against Gross Errors in Proceedings. If a court has jurisdiction of a proceeding, mere errors, however gross, in conducting it, do not deprive it of jurisdiction so as to justify prohibition of the proceeding. (Page 521.)</p> <p>3. Prohibition — Scope of Remedy in Generar. The writ of prohibition will issue only when the inferior tribunal usurps or exceeds the power conferred on it by law, and when there is no other adequate remedy. (Page 522.)</p> <p>4 Prohibition — Relief Against Garnishment Proceedings. Conceding that a garnishment is a malicious abuse or illegal use of legal process, it does not affect the district judge’s jurisdiction thereof so as to authorize resort to prohibition. (Page 523.)</p> <p>5. Prohibition — Relief Against Abuse or Illegal Use. Proceedings in a court of general jurisdiction cannot be arrested by prohibition on the sole ground that the suitor is abusing or illegally using legal process therein; an action for malicious prosecution lies therefor against the offender. tPage 523.)</p> <p>6. Prohibition — Abuse of Process — Effect on Jurisdiction— Duty of Court When Apparent. The mere abuse of legal process cannot deprive a court from retaining jurisdiction of the action in which it is practiced, though it ought to refuse to proceed when the abuse is made apparent. (Page 523.)</p> <p>7. Prohibition — Relief Against Garnishment Proceedings — Effect of Collusive Action.. That the action in which a judgment was obtained was instituted collusively does not affect the jurisdiction of the court as to the garnishment proceeding based on the judgment, and so authorize a resort to prohibition. (Page 523.)</p> <p>'8. Garnishment — Abuse of Process. A judgment debtor is al* ways supposed to be interested in paying his debts, and may therefore legally assist his creditor to obtain payment of a debt due from a garnishee to him, and do in the garnishment proceeding what he might lawfully do in a proceeding in his own name and behalf, though in neither proceeding would the law authorize him to abuse or maliciously, use legal process. (Page 524.)</p> <p>9.Prohibition — Relief Against Garnishment Proceedings. Though an appeal furnishes no redress to a party aggrieved by the use of a garnishment proceeding to gain information for use in another action or proceeding, the overruling of his objections would be nothing more than error, and will not deprive the court of jurisdiction so as to justify resort to prohibition. (Page 525.)</p> <p>10. Garnishment — Effect of Offset or Counterclaim. If it is made to appear that the garnishee in good faith claims an off set or counterclaim to the debt or claim sought to be reached, the court should at once arrest the proceeding and require the. parties to settle the controversy in a proper action or proceeding. (Page 527.)</p> <p>11. Prohibition — Relief Against Garnishment Proceedings. But the mere fact that this orderly method of procedure is not observed does not authorize the arrest of the court’s action by prohibition. (Page 527.)</p>

<p>1. Executors and Administrators Sale — Rights of Purchasers— As Against Grantee. Where land conveyed by the owner’s widow and children was afterwards sold to pay decedent’s debts, the purchaser at the sale took title as against the grantee of the widow and children. (Page 534.)</p> <p>2. Deeds — Reservations—Identification. Where a particular part of land conveyed is reserved in general terms, the physical conditions must be considered, and where land is sold subject to an existing right of way or other interest, which is marked on the ground, such marking is ordinarily sufficient to identify the part reserved.1 (Page 535.)</p> <p>3. Executors and Administrators — Conveyance of Land — Exceptions — Construction. Where, after the widow and children of a decedent conveyed to plaintiff railroad company land described by metes and bounds, excepting a strip -•■which the grantee had previously purchased and used as a right of way, the widow, as administratrix, sold land including 'such part conveyed, but excepting “such portions as were theretofore taken by the railroad as a right of way.” The part actually used by the railroad company as a right of way was distinctly fenced off from the part subsequently purchased by it. The railroad company, in listing the land for taxation, always treated the ' part subsequently purchased as separate from its right of way. Held, that the land excepted from the administratrix’s deed included only the fenced right of way, and which was used by the railroad as such, and not the part conveyed to the company by the widow and heirs. (Page 535.)</p> <p>4. Railroads — “Right of Way” — Definition. The term “right of way” ordinarily means a strip occupied by a railroad company for its tracks, and lands directly connected therewith, though it may not be of the same width, or used in the same manner, at all points. (Page 536.)</p> <p>5 Adverse Possession — Statutory Provisions — Applicability. An owner wlio had not acquired title by adverse possession prior to the enactment of Comp. Laws 1907, section 2866 (Comp. Laws 1888, section 3137), prescribing the requisites of title by adverse possession, could not thereafter acquire title by adverse possession except pursuant to the provisions of the statute. (Page 638.)</p> <p>6. Taxation — Assessment—Authority to Make — Railroad Property. The State Board of Equalization has no authority to assess a part of a lot claimed, but not owned by a railroad company, which was distinct from its right of way, and listed by it merely as a part of the lot; authority to assess it being in the local assessor. (Page 539.)</p> <p>7. Taxation — Assessment—Property Assessed. The assessment of a lot as a whole includes a parcel forming a part of it. (Page 539.)</p> <p>8. Adverse Possession — Requisites—Payment oe Taxes. Where a part of a lot was not owned by a railroad' company and was not a part of its right of way, and was assessed merely as a part of the lot distinct from the assessment of its right of way, so that the State Board of Equalization had no authority to assess it, and the lot, except that part occupied by it as a right of way, was assessed generally to the owners thereof by the local assessor for the whole period for which it was assessed to the railroad company by the Board of Equalization, the railroad company did not pay the taxes thereon so as to entitle it to claim the lot by adverse possession under Comp. Laws 1907, section 2866 (Comp. Laws 1888, section 3137), requiring the claimant to have paid all the taxes levied and assessed on the land according to law during the seven 'year period, in order to claim by adverse possession. (Page 539.)</p> <p>9. Easements — Acquisition by Prescription. An easement in land may be acquired' by a continuous use for twenty years. (Page 541.)</p> <p>10. Common Law — Repeal. Comp. Laws 1907, section 2498, making the Revised Statutes the law of the state respecting the subjects to which they relate, by implication at least, excludes the common law from all subjects that are regulated by statute. (Page 541.)</p> <p>11. Adverse Possession — Title by Prescription — Statutory Provisions; Adverse possession can be acquired in no other manner than that prescribed by Comp. Laws 1907, section 2866, so that title to land cannot be acquired by prescription as at common law. (Page 541.)</p>

<p>1. Appeal and Error — Time eor Appeal — Motion por New Trial. Under Comp. Laws 1907, section 3301, requiring an appeal to be taken within six months from entry of judgment, the time for appeal begins to run from the disposition of the motion for new trial, so that, where the notice of appeal was filed more than six months after entry of judgment, and no motion for new trial or order overruling it was incorporated in the bill of exceptions, the appeal was not taken within the required time: (Page 544.)</p> <p>2. Appeal and Error — "Record”—Order Denting New Trial. The “order” overruling a motion for new trial is not a part of the judgment roll, and is not part of the record on appeal, unless incorporated therein by bill of exceptions. (Page 545.)</p> <p>3. Appeal and Error — Record—What Constitutes. The proceedings had during and after trial are not a part of the record, except as they constitute a part of the judgment roll, but must be made a part of it in the manner provided by statute. (Page 547.)</p> <p>4. Appeal and Error — Record—Correction. The record of the trial court, when properly certified hy the clerk and transmitted, is conclusive upon the parties and upon the Supreme Court, except that any omission or mistake may be supplied or corrected at any time by the clerk when, upon suggestion.of counsel, the Supreme Court requests him to do so. . (Page 547.)</p> <p>5. Exceptions, Bill of — Settling—Powers of Trial Court. The trial court in settling a bill of exceptions makes a record of the proceedings had during and after trial which are not a part of the judgment roll, and is controlled by the statute as to the time and manner of making the bill of exceptions. (Page 548.)</p> <p>6. Exceptions, Bill of — Appeal and Error — Time of Settling— Record on Appeal. The trial court has no authority to allow and sign a bill of exceptions after the statutory period for doing so has elapsed, unless the time is extended as provided hy statute;' and a bill of exceptions filed after that time would be a nullity, and would constitute no part of the record on appeal. (Page 548.)</p> <p>7. Exceptions, Bill of — Amendment—Time. While a defect or omission in the bill' of exceptions not of its substance could be supplied hy amendment nunc pro tunc, the trial court could not amend a bill of exceptions after time to settle had expired, by adding thereto a copy of the notice of intention to move for a new trial and the order overruling the motion. (Page 548.)</p>

W. W. 'Maughan, Judge. Action by A. E. Cranney and others against John A. McAlister. Judgment for plaintiffs and defendant appealed. RESPONDENTS'’ AUTHORITIES. The facts of this case, as shown by the record, constituted appellant the constructive trustee of respondents. (Pomeroy’s Equity, secs. 1044, 1049, 1052; Sweet v. Jacodes, 6 Paige Oh. Rep., 355; Gushing v. Danforth, 76 Maine 114, 4 Kent [12 Ed.], 307; Davone v. Fanning, 2 John Ch. Rep., 252; 1 Storey Eq.

T. D. Lewis, Judge. Action by Fred W. Little and Jesse C. Little, co-partners doing business under the firm name of Little & Little, against A. Fleishman to recover broker’s commission.

G. W. Morse, Judge. Action to subject property to the payment of judgment. Thom a judgment for plaintiff, the defendant, the Utah Light ■& Hallway, appealed. APPELLANT'S AUTHORITIES.

Ferdinand-Erickson, Judge. Action to cancel and set aside conveyance. APPELLANTS'’ AUTH0RITIES. We respectfully contend that the rule is that where confidential relations exist that transactions between such parties are held to be presumptively void as being obtained through undue influence and the burden of proof in such cases shifts so as to require the beneficiary to establish the validity of the transaction.