Volume 37 — Utah Reports

J. E. Booth, Judge. Action by Martha E. Miller against the Mt. Nebo Land & Irrigation Company and. others, in which one of the defendants set up a counterclaim. Judgment for defendant on the counterclaim. Plaintiff appeals. appellant’s points. This court has decided in a number of cases that where findings are inconsistent with each other, and against the pleadings, they will be set aside on appeal.

M. L. Ritchie, Judge. Action by G. W. Moyer against James Langton. Judgment for plaintiff. Defendant appeals. APPELLANT'S POINTS.

M. L. Ritchie, Judge. Action by James Gibson against George G. Doyle & Company. Judgment for defendant. Plaintiff appeals. APPELLANT'S POINTS. • There was not a scintilla of evidence showing that • the plaintiff was guilty of contributory negligence, yet the court charged the jury upon that subject. ‘To authorize an instruction it must be relevant.

<p>1. Banks and Banking — Actions foe Deposits — Pleading—Issues. ■Where the complaint alleged that defendant hank received on deposit, on April 16, 1908, the sum of $1077.62, which it agreed to repay on demand, hut refused to do so, and the answer alleged that defendant received on the'date alleged in the complaint the sum of $2227.62, and paid to plaintiff on his check on a date thereafter the sum of $1150, and on a subsequent date paid to him on his check the sum of $1075, leaving a balance of $2.62, the only issue was whether defendant had paid to plaintiff or his order the sum of $1075. (Page 31.)</p> <p>2. Judgment — Conformity to Issues — Withdrawal of Issues. In an action against a hank for a deposit, defendant’s counsel, by stating that, if the court found that plaintiff’s signature to the canceled check for the amount claimed .by plaintiff was genuine, judgment should he entered for plaintiff only in the sum defendant claimed was due, agreed to the elimination of all issues other than the genuineness of the check, and hence judgment was properly given plaintiff for the amount claimed upon finding against the genuineness of the signature. (Page 31.)</p> <p>3. Appeal and Eeeoe — Peesentation Below — Issues Not Presented. Where the trial court, at appellant’s request, passed upon but one issue in rendering judgment, the Supreme Court cannot pass upon other issues not considered, or requested to he considered, below. (Page 32.)</p> <p>4. Appeal and Eeeoe — Discretion of Trial Couet — Examination of Witnesses — Inspection of Documents. It was within the trial court’s discretion to permit a witness to examine an instrument to which his alleged signature was attached before stating whether his signature was genuine; and its ruling will not he disturbed on appeal, in absence of a prejudicial abuse of discretion. (Page 33.)</p> <p>5. Aepeal and Brroe — Findings—Conclusiveness. Where the judgment is based upon findings supported by sufficient evidence, the Supreme Court cannot reverse, though it might make different findings from the evidence contained in the record. (Page 34.)</p>

J. E. Booth, Judge. Action by Edward P. Ferry, by William Montague Ferry, and another, his general guardians, against R E. Fowler. Judgment for plaintiff. Defendant appeals. APPELLANT'S POINTS. In determining boundaries of land courses and distances yield to monuments or natural objects.

<p>1. TeIAL-INSTRUCTIONS-ERROR CURED BY OTHER INSTRUCTION. In</p> <p>an action for injuries from a collision with, a street car, an instruction that the burden was on plaintiff to prove by a preponderance of the evidence that he was injured by the negligence of defendant, and that, if he was so injured without fault on his part, he was entitled to a verdict, was not erroneous as casting upon plaintiff the burden of proving that he was free from contributory negligence where the court also charged that contributory negligence constituted a defense, and that the burden of establishing it by a preponderance of the evidence was on defendant. (Page 45.)</p> <p>2. Street Railroads — Injuries to Traveler — Instructions. In an action for injuries from a collision with a street car, it was not error to charge that it was the duty of the plaintiff before crossing or going upon the tracks to use his senses as a person of reasonable prudence and ordinary intelligence would do, under like circumstances, for the purpose of ascertaining whether or not a car was in sight or hearing upon the track.1 (Page 46.)</p> <p>3. Street Railroads — Operation — Liability por Injuries — Instructions. Where, in an action for injuries from a collision with a street car, it appeared that plaintiff drove upon defendant’s tracks, it was not error to refuse to instruct that it was not negligence as a matter of law for a person to fail to look and listen before driving upon a street car track, unless there is some circumstance apparent that would make it ordinarily prudent to do so. (Page 47.)</p> <p>4. Trial — Instructions—Exceptions. When an instruction contains several propositions, some of which are confessedly sound, an exception to it as a whole will not be considered.2 (Page 48.)</p>

M. L. 'Ritchie, Judge. Action by Louis P'assow and another against Frank C. Emery, as sheriff of Salt Lake County. Judgment for defendant Plaintiff appeals. appeliant's points. The transaction constituted a preliminary conditional contract of sale, title to remain in vendor until payment. Such contracts have always been upheld by the Supreme Court of Utah.

M. L. Ritchie, Judge. Application by tbe State, on tbe relation of Joseph Brandi, for a writ of mandate to tbe Silver King Consolidated Mining Company of Utah, a corporation, and G. W. Browning, secretary. From a judgment for insufficient relief, relator appeals. APPELLANT^ POINTS.

T. ID. !'Lewis, Judge. Action by Joseph E. Caine and another against E. J. Ha-genbarth. Judgment for plaintiffs. Defendant appeals. appellant's points. The question as to what is the true construction of a written instrument is one of law3 to be answered by the court.

<p>Appeal from District Court, Third District; Hon. T. D. Lewis, Judge.</p> <p>Action by Joseph E. Caine and another against E. J. Ha-genbarth.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

<p>1. Adverse Possession — Requisites—Payment op Taxes. Where land had been occupied under a claim of right for about twenty-four years, so as to acquire title under Comp. Laws 1876, secs. 1097-1104, requiring seven years’ adverse possession to acquire title, when Comp. Laws 1888, secs. 3137, effective in 1888, was enacted, making payment of taxes essential to the acquisition of title by the adverse possession, title by adverse possession was complete without the payment of taxes, either during the adverse holding or thereafter.1 (Page 106.)</p> <p>2. Boundaries — Estoppel by Acquiescence — Persons Estopped— Heirs. An heir would be estopped by his ancestor’s acquiescence in an agreement with an adjoining landowner as to their boundaries, if the ancestor himself would be estopped. (Page 109.)</p> <p>3. Boundaries — Estoppel by Acquiescence — Efpect op Subsequent Acts op Parties. The predecessors of defendant and plaintiff located land on sections 23 and 26, respectively, before it was surveyed and the section line run, and in 1865 they agreed upon a triangular line as the boundary, and erected a fence on the line. Thereafter the land was surveyed and the government section line run so as to cut through the triangular line, but as to the part of the lapd in controversy, the line as originally established and fenced was recognized and acquiesced in as the true line from the time it was established to 1905. Held, that defendant was estopped from claiming title to the tract in controversy within the triangular line fenced in 1865 to the extent that the parties had continued to treat it as the boundary line, and that they thereafter abandoned in part the original line and accepted the section line as the bound- „ ary for a part of the distance on either side of the tract in controversy, or that defendant’s deeds from his predecessor did not refer to any land in section 26, was immaterial.2 (Page 110.)</p> <p>4. Boundaries — Estoppel by Acquiescence. Whether one is estopped from claiming land beyond an agreed boundary acquiesced in by him must be decided largely upon the particular facts of the case, and no absolute rule can be applied to every case. (Page 113.)</p> <p>5. New Trial — Newly Discovered Evidence — Evidence on Collateral Matters. In an • action to quiet title to land, in which defendant claimed to a certain fence, fixed as the boundary by the parties’ predecessors, defendant testified that before he purchased from the heirs of his predecessor they stated that their land was bounded by the fence. Plaintiff filed with his motion for a new trial an affidavit of one of such heirs, to the effect that when defendant purchased from the heirs, affiant told him that the fence was not the true boundary, and they would sell only what they owned. Held that, even if the statement contained in the affidavit was newly discovered evidence, it was not such as to require a new trial, as its only effect was to contradict defendant’s testimony on a collateral matter. (Page 114.)</p> <p>6. New Trial — Newly Discovered Evidence — Probable Epeect. Where alleged newly discovered evidence for which plaintiff sought a new trial would merely affect defendant’s credibility as a witness, and would not change the result even if defendant’s testimony on the question to which the newly discovered evidence related was eliminated, it was not ground for requiring a new trial. (Page 115.)</p> <p>7. New Trial — Misconduct op Parties. In an action to quiet title, in which defendant claimed to a certain fence alleged to have been fixed and acquiesced in as the boundary by the parties’ predecessors, defendant served notice on plaintiff for the taking of a nonresident’s deposition, but did not afterwards have it taken, and plaintiff produced the affidavit of such person in support of his motion for new trial, stating that he told defendant when the latter purchased from him that the fence was not the true boundary line between his and plaintiff’s land. Meld that, in absence of a further showing by the record, defendant’s failure to take the deposition of such witness after serving notice, and to inform plaintiff’s counsel thereof, would not authorize a new trial on the ground of miseonduet. (Page 115.)</p> <p>8. Judgment — Conformity to Issues. Where, in an action to quiet title, in which defendant claimed that a certain fence was the boundary, the pleadings and evidence did not raise the question as to defendant’s right to have plaintiff erect a fence upon the boundary line to which defendant claimed, the decree for defendant improperly required plaintiff to erect such fence. (Page 115.)</p>

<p>1. Pleading — Complaint—Joint Demurrer. Where a complaint, in an action against several defendants, stated a cause of action against some of them, it was good as against a joint demurrer by all. (Page 121.)</p> <p>2. False Imprisonment — Civil Liability — Actions—Instructions. In an action for false imprisonment, consisting of the arrest of a party under a void warrant of a justice of the peace, an instruction that all persons parties to the issuing, procurement, or service of the warrant would be liable as trespassers for any damages caused thereby, and that all the proceedings were void from the beginning, was erroneous, as convyeing the idea that the person making the complaint in the justice court was liable as a trespasser. (Page 121.)</p> <p>3. False Imprisonment — Civil Liability — Actions—Instructions. Such instruction was erroneous, where the person who made the complaint in' the justice court was a party defendant, and the evidence failed to show that he took any part in the subsequent proceedings. (Page 122.)</p> <p>4. False Imprisonment — Civil Liability. A party making and verifying a complaint before a justice is not liable for false imprisonment of the person arrested on a warrant issued by the justice, where he took no further part in the proceeding, though the complaint stated no offense. (Page 123-133.)</p> <p>5. False Imprisonment — Civil Liability — Nature and Elements— “False Imprisonment.” “False imprisonment” is the unlawful arrest and detention of the person of another, with or without a • warrant or other process, or an unlawful restraint upon his person, or control over the freedom of his movements by force or threat; and every such force, restraint, or confinement is unlawful, where it is not authorized by law. (Page 126.)</p> <p>6. False Imprisonment — Civil Liability — Actions—Pleading.—In an action for false imprisonment, plaintiff must plead that the imprisonment was wrongful or unlawful, -or the facts or circumstances showing the unlawfulness thereof. (Page 126.)</p> <p>7. False Imprisonment — Civil Liability — Actions — Evidence. Where, in an action for false imprisonment, the facts show that plaintiff was restrained' "or imprisoned by the defendant without a warrant or other process, or by threats or force, or by other facts and circumstances which naturally give rise to the inference or presumption that the restraint or imprisonment was wrongful or unlawful, he makes a prima facie case, and the burden is on defendant to show a legal justification for the imprisonment. (Page 127.)</p> <p>8. False Imprisonment — Civil Liability — Actions — Evidence. In an action for false imprisonment, where plaintiff, by his own evidence, shows that he was imprisoned as the result of a judicial proceeding and by a warrant, or other legal process issued thereon, he is required, in order to make a prima facie case to show something more than detention or imprisonment. (Page 127.)</p> <p>9. Trial — Instructions—Sufficiency. Instructions should not be mere abstract statements of law. (Page 127.)</p> <p>10. False Imprisonment — Civil Liabililty — Persons Liable. The rule that every imprisonment of a man is prima facie a trespass, and in an action to recover therefor, if the imprisonment is proved or admitted, the burden of justifying it is on the defendant, does not apply to the person who made the complaint against the party imprisoned before the justice, who issued the warrant and caused his arrest, where he took no other part in the proceedings. (Page 128.)</p> <p>11. Malicious Prosecution — Civil Liability — Want of Probable Cause — Result of Prosecution. Whether or not the discharge by a magistrate of one accused of crime is evidence of want of probable cause for his prosecution depends on the proceeding had before the magistrate; and where he was discharged without a hearing, and there were no circumstances which in themselves indicated a want of probable cause, this discharge, although proof of the unsuccessful termination of the prosecution, was no proof in a civil action for malicious prosecution of want of probable cause. (Page 131.)</p> <p>12. MALICIOUS PROSECUTION — CIVIL LIABILITY — ACTIONS—EVIDENCE. In an action for malicious prosecution of plaintiff on a charge of larceny of brick, the record in a justice court of an action of re-plevin between the same parties, holding that the defendant in the malicious prosecution action was the owner of the brick, and entitled to possession of them at the time they were taken by the plaintiff, was admissible, as tending to show probable cause for the prosecution. (Page 131.)</p>

<p>1. Evidence — Parol Evidence — Varying Whitten Agreement. When parties have deliberately put their contract in writing, and there is no uncertainty as to the extent of their respective rights and obligations thereunder, it cannot be varied by showing a prior or contemporaneous oral agreement in conflict with and at variance with the written- instrument, and hence evidence of a contempora- • neous oral agreement not embraced in the terms of a note and mortgage was not admissible to show that they were to be paid in merchandise. (Page 136.)</p> <p>2. Mortgages — Execution-—Fraud—Evidence. Evidence held to show that defendant executed a mortgage and note to plaintiff’s bank without receiving any consideration under the misapprehension that she was securing a debt of her son’s company to the bank, while in fact she was securing the debt of others to the bank; she being induced to do so by a fraudulent scheme of her son and plaintiff. (Page 146.)</p>

J. A. Sowell, Judge. Action by Jolm McCullough against Mary McCullough. From an order vacating the order substituting as defendant the administrator of defendant, and denying a motion to modify the judgment rendered in the action, plaintiff appeals.

<p>1. Tbial — PiNdiwgs of Fact and'Conclusions of Law. The findings should he limited to ultimate facts. (Page 153.)</p> <p>2. Trial — Findings of Fact and Conclusions of Law. If the court makes a finding of ultimate facts and additional findings of probative facts not shown to be the only probative facts estahlished by the evidence, the judgment rendered in accordance with the ultimate facts cannot be attacked on the ground that the first findings are not true because contradicted by the probative facts. (Page 154.)</p> <p>3. Trial — Findings of Fact and Conclusions of Law. When the ultimate fact is found, no finding of probative facts which may tend to establish that the ultimate fact was found against the evidence can overcome the finding of the ultimate fact. (Page 154.)</p> <p>4. Judgment — On Trial of Issues — Conformity to Findings. If all the probative facts are found from which the ultimate facts necessarily follow, the judgment is good, though based entirely on the probative facts. (Page 155.)</p> <p>5. Judgment — Findings of Fact — Conclusions of Law. When the ultimate fact is found, the judgment rests on it, and not on the probative facts. (Page 155.)</p> <p>6. Appeal and Error — Review—Presumptions. A judgment is presumed to be correct, unless the contrary appears from the record. (Page 157.)</p> <p>7. Appeal and Eeror — Record—Questions Presented for Review. Where, on appeal on the judgment roll alone, it appeared that the judgement was based entirely on a finding of the utimate fact that a certain sum was paid on the claim in suit and not on another account, and it appeared that an additional finding of probative facts did not contain all the probative facts on which the court found the ultimate fact of payment, the judgment could not be questioned on the ground that the conclusions of law as to the application of the payment were contrary to the probative facts found. (Page 157.)</p>

G. W. 'Morse, Judge. Action by Judge George J. Gibson against Frank E. Mc-Gnrrin and others. Judgment for plaintiff. Frank E. MeGurrin and others appeal. APPELLANTS* POINTS. The general rule is, both in equity and under statute which do not expressly grant the action, for the purpose here sought, to one out of possession, “that a bill either to quiet title or to remove a cloud can be maintained only where the plaintiff is in actual possession.” (17 Enc.

Geo. G. Armstrong, Judge. TT- E. Howe was convicted of selling milk without obtaining a permit, in violation of a municipal ordinance, and he appeals.

<p>1. Taxation — Wrongful Enforcement — Instructions. In an action against a county treasurer for conversion of sheep sold for taxes, where plaintiff contended that the assessor of Garfield County had no' authority to assess the sheep, because plaintiff was a resident of Wayne County, and had ranged his sheep part of the time during the year in Wayne County and part of the time in Garfield County, so that the sheep were taxable only in Wayne County under Laws 1901, c. 105, sec. 6, providing that the taxes for live stock owned by ■ residents of the state, and driven from one county to another for grazing, and which graze for any portion of the year in the county where owned, shall be paid in that county, thus making the result of the case depend upon the question whether plaintiff was a resident of Wayne County, whether he had a number of sheep in Garfield County which did not range in Wayne County part of the time that had been assessed in Garfield County for taxation, and whether the sheep ranging in Garfield County were there subject to taxation, a charge to find for plaintiff if he was a resident of Wayne County, and if the sheep assessed in Garfield County were grazed any portion of the year in Wayne County, but to find for defendant if plaintiff was not a resident of Wayne County, or if the sheep assessed in Garfield County grazed the entire year there, and no part of the year in Wayne County, was proper, though it did not state the things required by statute to make a lawful assessment, levy, and collection of the tax, and that it was essential for the jury to find that the law in such' particulars had been complied with before defendant could recover. (Page-185.)</p> <p>2. Appeal and Error — Questions Presented in Trial Court-Change of Objection on Appeal — Direction of Yehdict. A party cannot impute error to the court in refusing to direct a verdict on a motion in which the grounds were not specified, nor upon grounds not specified, in the lower court, unless the defect was incurable, and the party against whom the motion was directed was in no event entitled to recover; and hence, in an action for conversion for selling sheep for taxes, where the ground for motion for a directed verdict in the lower court was that defendant’s evidence failed to show legal justification for the seizure and sale of the property, and was insufficient to make up any legal justification for his act, as pleaded, error in refusing a directed verdict thereon could not be assigned on the ground that the evidence was insufficient to show that the delinquent tax list was published according to law.1 (Page 186.)</p> <p>3. Taxation — Wrongful Enforcement — Conversion'—Acts Constituting — Taking Possession of Property. Where sheep, alleged to have been unlawfully seized and sold for taxes, were not taken from the owner’s possession, and he was not deprived of their use, his agent having bid in the sheep at the sale for the amount of -the unpaid taxes, making payment with the owner’s personal check, there was no conversion of the sheep; the transaction, at most, amounting only to a payment under protest. (Page 187.)</p> <p>4. Appeal and Error — Harmless Error — Correct Yerdict. Where a verdict for defendant was the only verdict which could have been rendered, erroneous rulings would not be prejudieial.2 (Page 187.)</p>

<p>1 ALIENS-NATURALIZATION-JURISDICTION — OF STATE COURTS-NATURE or Authority Exercised. The federal government in authorizing state courts to act in naturalization proceedings selects such courts and the clerks thereof as government agencies through whom the government is discharging a function of sovereignty; and while Congress may confer power on the state courts to act in naturalization proceedings and the state courts may constitutionally exercise the same when authorized so to do, Congress may not make their acts in that regard a part of their duties as state courts, and the power conferred and the duties imposed by the naturalization act (Act Cong. June 29, 1906, e. 3592, 34 Stat. 596 [U. Si Comp. St. Supp. 1909, p. 97]), are not ex officio powers and duties belonging to and devolving on a state office as such. (Page 193.)</p> <p>2. States — Officers—Duties. . The state within its sphere may impose any duty it sees fit on an office it has the power to create, so long as the duties come within its sovereign power, but the state may not without the consent of the federal government empower any state officer to discharge functions belonging exclusively to the federal government. (Page 193.)</p> <p>3. Clerks of Courts — Accounting for Fees in Naturalization Proceedings. The duties which the clerk of a state district court discharges and the services which he renders in naturalization proceedings under the naturalization act (Act Cong. June 29, 1906, c. 3592, 34 Stat. 596 [U. S. Comp. St. Supp. 1909, p. 97]) are not duties imposed on nor services forming a part of the office, and the salary received as compensation therefor does not constitute compensation for extra official services, and he need not account therefor to his county, notwithstanding Const, art. 21, secs. 1, 2, providing that officers shall be paid fixed salaries, and Comp. Laws 1907, secs. 2057, 2062, fixing the salary of the clerk which shall constitute full compensation. (Page 194.)</p> <p>4. Clebks oí' Coubts — Compensation—Limitation' op Emoluments— Fees in Naturalization Proceedings. The principle.that the incumbent of a public office must discharge duties imposed on the office for the compensation fixed by law, and, where additional duties are imposed without additional compensation, he must discharge such duties for the compensation fixed by law, does not prevent the clerk of a state district court who performs services in naturalization proceedings under the naturalization act (Act Cong. June 29, 1906, c. 3592, 34 Stat. 596 [U. S. Comp. St. Supp. p. 97]) from retaining the fees as provided by the act. (Page 194.)</p>

<p>Appeal from District Court, First District; Mon. W. W. Maughan, Judge.</p> <p>Action by F. A. Neuberger against David Robbins, doing business under the firm name of David Robbins & Company.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

<p>1. Pleading — Scope of General Demurrer. A general demurrer reaches only defects of substance. (Page 205.)</p> <p>2. Execution — Injunction—Necessary Parties. In an action to enjoin the collection of a judgment, the judgment creditor or his legal representative is a necessary party. (Page 206.)</p> <p>3. Appeal and Error — Review—Harmless Error — Sustaining Demurrer. While ordinarily the objection that there is a defect of parties must be taken by special demurrer, where the defect appears from the face of the complaint, yet, where the complaint also fails to state a cause of action against the only party to the action, it is not prejudicial error to sustain a general demurrer to the complaint, although a good cause of action is stated against one not a party to the action. (Page 206.)</p> <p>4. Execution — Restraining Collection of Judgment — Action Against Sheriff Alone. A judgment debtor seeking to enjoin .the collection of a judgment because of insolvency of a judgment creditor, and because he has a valid, subsisting judgment against the creditor which is a set-off to the judgment sought to be collected, has no cause of action against the sheriff alone to whom an execution has been given by the judgment creditor. (Page 206.)</p>

<p>Appeal from District Court, Fourth District; Hon. J. E. Booth, Judge.</p> <p>Action by Thomas Tadd against the San Pedro, Los An-geles & Salt Lake Railroad Company.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

<p>1. Evidence— Judicial Notice — Acts oe Congress. Judicial notice is taken of an act of Congress restoring Indian reserved lands to the public domain. (Page 216.)</p> <p>2. Waters and Water Courses — Public Waters — Appropriation. The right to use unappropriated waters on the public domain and a right in the land itself are severable; the former not depending upon the latter. (Page 218.)</p> <p>3. Waters and Water Courses — Appropriation—Daws Governing. Acquisition of the right to use unappropriated public waters whether on the public domain, within a reservation, or elsewhere, is controlled by the laws and customs of the state in which the water is found. (Page 218.)</p> <p>4. Water and WIater Courses — Public Waters — Eight to Appropriate. The right to use waters on the public domain for a beneficial purpose may be acquired by mere appropriation, and the first appropriation takes against the world to the extent of his established appropriation, though at the time of his application to the state engineer he has no present right in the lands bordering the source of supply nor in the lands to be benefited; he being entitled to conduct the water across intervening public land to irrigate lands held by him or others or to dispose of it for a beneficial purpose on lands held or owned by them. (Page 218.)</p> <p>5. Indians — Reservations Not Subject to Private Appropriation. No private rights in the lands of an Indian reservation can be acquired. (Page 219.)</p> <p>6. Evidence — Judicial Notice — Opening of Public Lands. Judicial notice is taken of the opening of an Indian reservation in. the state and restoration of the unalloted lands thereof to the public domain, but not that particular tracts thereof have since been occupied, claimed, or possessed. (Page 221.)</p> <p>7. Waters and Water Courses — Public Lands — Acquisition of Bights. Under Comp. Laws, see. 1288x et seq., prescribing procedure for the appropriation of public water, an inceptive right to use such water upon or within an Indian reservation can be initiated or acquired after issuance of a proclamation restoring the lands to the public domain but before they are subject to entry, if the application be made in good faith to appropriate the water for a beneficial use, and not for speculation or monopoly. (Page 222.)</p> <p>8. Waters and Water Courses — “Appropriation of Water” — -Essentials. To constitute a valid appropriation of water, there must be intent to apply it to a beneficial use, a diversion from the natural channel by a ditch, canal or other structure, and an application of it to a useful industry within a reasonable time; the last-mentioned element being the most essential. (Page 222.)</p> <p>9. Waters and Water Courses — Application for Appropriation— Effect. An- application to the state engineer for permission to appropriate public water is merely notice of intent to appropriate, and does not establish an appropriation. (Page 223.)</p> <p>10. Waters and Water Courses — Appropriation—Extent of Eights: Bights under an appropriation of water are limited to the quantity actually used for a beneficial purpose. (Page 225.)</p> <p>11. Waters and Water Courses — Appropriation—Conflicting Bights. To establish a right to appropriate water, one must rely on the strength of his own right, and not on the weakness of his adversary’s. (Page 225.)</p>

<p>Appeal from District Court, First District; Hon. W. W. Maughan, Judge.</p> <p>Action by Israel Hunsaker against Adolpb Hands.</p> <p>Judgment for defendant. Plaintiff appeals.</p>

<p>Appeal from District Court, Third District; Hon. T. D. Lems, Judge.</p> <p>Action by C. E. Murphy against C. Paumie.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

<p>1. Boundaries — Acqtjiesence—Effect, 'Where the owners of adjoining lands occupy their respective premises up to a certain line, which they recognized and acquiesced in as the boundary line for a long period of time, they and their grantees may not deny that the boundary thus recognized is the true one.1 (Page 234.)</p> <p>2. Boundaries — Acquiesence—Effect. The practical location of a boundary line may he established either by an express agreement or by acquiescence without surveys, and the practical location so fixed may be in accordance or in conflict with a prior or subsequent official survey, and, when a tract is laid off into city lots, the landowners may subsequently adopt a line as the boundary line, and recognize it as the boundary line. (Page 234.)</p> <p>3. Boundaries — Acquiescence—Eeeect. Where a boundary is open and visible, marked by monuments, fences, or buildings, and is knowingly acquiesced in for a long term of years, the law will imply an agreement fixing the boundary as located, and will not permit the parties or their grantees to depart from such line.2 (Page 235.)</p> <p>4. Boundaeies — Acquiescence—Construction or Deed — Land Conveyed. A deed of a part of a lot .in a designated survey, which describes the part as beginning at a point eighty-nine and seventy-six hundretks feet west of the southeast corner of the lot, and running thence west to the line of a street, thence north thirty-four and six-tenths feet, thence east a specified distance, and then south to the place of beginning, makes the south line of the tract conveyed the south line of the lot, and the boundary line between the lot and the adjoining lot as established by acquiescence is the boundary of the part of the lot conveyed. (Page 237.)</p> <p>5. Boundaries — Acquiescence. Where, as between adjoining landowners, a practical boundary line was agreed on or acquiesced in for a long time, and all persons interested occupied up and claimed to the line, the line as between the landowners was the boundary line; and neither of the landowners or their grantees could depart therefrom and claim beyond it. (Page 237.)</p>

<p>1. Master and Servant — Injury to Servant — Asssumption oe Risk — Obvious Dangers — Concurrent Negligence oe Master. An employee engaged with a gang of men in loading a flat car with old rails, some of which are crooked, from the ground along the track, assumes the risk of injury from a rail falling off the ear after being thrown on, though, because of a direction by the foreman, there were no braces on the ear to prevent the rails from falling off, where the danger is as obvious to him as to the foreman. (Page 248.)</p> <p>2. Master and Servant — Injury to Servant — Assumption oe Risk — Suesiciency oe Evidence. Evidence held to show that the dangers of injury from a rail falling from a flat car after being thrown on in loading were as obvious to plaintiff as to the foreman. (Page 248.)</p> <p>3. Appeal and Error — Right to Allege Error — Error Induced by Party Complaining. Where the jury could properly render a verdict for plaintiff by following either of conflicting instructions, defendant, whose request induced the conflict and caused the error in its favor, cannot complain of the conflict.1 (Page 252.)</p> <p>4. New Trial — Grounds—Instructions—Injury to Servant — Con.-elict — Evidence to Support. In an action for injuries to an employee from a rail falling from a flat car after being thrown on the car in loading, the court instructed generally that defendant is liable for the negligence of “any agent, servant or employee,” and then specifically instructed that defendant is not liable for the negligence of its foreman in charge of the work. There was no claim or evidence of negligence by any person working with plaintiff except the foreman. Seld, that a verdict for plaintiff will be set aside, not because of the conflict in the instruction, but because it has no support in the evidenee.2 (Page 253.)</p> <p>5. New Trial — Verdict Contrary to Instruction. Where the court instructed that defendant is not liable for the negligence of its foreman, and the evidence shows that, if plaintiff’s injury was the result of any negligence, it was that of the • foreman, a general verdict for plaintiff will be set aside as contrary to the instruction, and without support in the evidence. (Page 254.)</p> <p>6. New Tbial — Grounds—Verdict Contrary to Evidence. A new trial should be granted in such ease, as the verdict is without evidence to support it. (Page 257.)</p> <p>7. Tbial — Taking Pleadings to Jury Room. It is the duty of the court to construe the pleadings and to instruct the jury on the issues; and it is not proper to permit the jury to take the pleadings with them to the jury room unless they have been put in evidence as proof of some fact, and made exhibits in the case. (Page 258.)</p>

<p>1. Apeal and Ebrob — Ceoss-Assignments of Error — Necessity. A question raised by respondents is not presented for review without a cross-assignment of error. (Page 267.)</p> <p>2. Specific Pebfobmance — Contracts Enfobceable — Mutuality of Obligation. A contract sought to be enforced provided, inter alia, that if the purchasers failed to make any of the payments mentioned for a period of sixty days after the same became due, vendors should be “released from all obligations to convey the property,” and the purchasers would “forfeit all right thereto and to any money paid under the agreement.” Held, that it did not lack mutuality of obligation. (Page 268.)</p> <p>3. Specific Pebfobmance — Contracts Enforceable — Mutuality of Obligation. Comp. Laws 1907, sec. 2463, provides that every contract for the sale of any lands, or interest in lands, shall be void unless the contract, or some note or memorandum thereof, is in writing and subscribed by the party by whom the sale is to be made, or by his lawful agent thereunto lawfully authorized in writing. Section 2467 provides that every agreement that by its terms is not to be performed within one year shall be void unless it, or some note or memorandum thereof, be in writing and subscribed by the party to be charged therewith. Held, that contracts of the kind referred to therein, to be binding and enforceable, need be signed by vendor only, and specific performance will not be denied for lack of mutuality because not signed by the purchaser.1 (Page 268.)</p> <p>4. FRAUDS, Statute op — Authority to Purchase Land — Necessity op Writing. That authority of agents to purchase land was not in writing does not invalidate a contract signed by them; there being at the time the agreement was entered into, no statute in this state requiring an agent’s authority to purchase land to he in writing. (Page 271.)</p> <p>6. Contracts — Rescission por Fraud. A party who has been induced to enter into a contract by false and fraudulent representations may rescind on discovery thereof. (Page 272.)</p> <p>6. Contracts — Rescission por Fraud — Loss op Right. A defrauded party will generally lose his right to rescind if he takes any benefit under the contract, or does any other act implying intent to abide by or affirm it, after he becomes aware of the fraud. (Page 272.)</p> <p>7. Contracts — Rescission pob Fraud. A party misled must, as soon as he learns, the truth and discovers the falsity of statements relied on, disaffirm the contract with all reasonable diligence, and he cannot derive all possible benefit from the transaction and then claim relief from his own obligation by a rescission or refusal to execute. (Page 273.)</p> <p>8. Vendor and Purchaser — Rescission por Fraud — Waiver op Right. After vendors learned that corporate stock given in payment of seven hundred dollars on the price had no actual or market value, they continued for eleven months to accept payments on the contract, aggregating six hundred dollars, and made no claim for rescission for misrepresenting the value of the stock till sued for specific performance, when they filed an amended answer nearly two and one-half years after they discovered the fraud which they claimed was practiced on them. Held, that they waived whatever right they had to rescind therefor. (Page 273.)</p> <p>9. Vendor and Purchaser — Breach op Contract — Failure to Pay Taxes. A contract by which vendors, on receiving payment, agree to execute a good and sufficient warranty deed to the property described, free and clear from all incumbrances except that the purchasers shall pay the taxes for a specified year, contemplated that the taxes for that year might become delinquent when final payment was made, and that in that event vendors might convey subject to an incumbrance for such taxes, and hence failure of the purchasers to pay the same was not a breach. (Page 273.)</p> <p>10.Vendor and Purchaser — Bona Fide Purchaser — Notice Putting on Inquiry. Where, if purchasers, with ordinary diligence, had followed the line of inquiry suggested by information furnished them by vendor before paying any part of the purchase money, they would have been fully advised of an equity of third persons in the land, they are charged with the same knowledge as to their rights as they would have acquired had they pursued the investigation suggested, and they were not relieved from inquiring by assurances that the contract on which the equity was based was abandoned. (Page 278.)</p> <p>11. Vendor and PuncnASEE — Bona Pide Purchaser — Evidence. Evidence held to show that a certain party was not a bona fide purchaser without notice. (Page 279.)</p> <p>12. Specific Performance — Keeping Tender Good — Necessity. Plaintiffs suing for specific performance tendered the money when they demanded execution of a deed to land involved, and in their complaint alleged they were ready and willing to perform their part of the contract. 'Reid, that this entitled plaintiffs to prevail without' a tender into court; the decree for plaintiff’s in such case being made conditional on payment within a specified time. (Page 279.)</p> <p>is. Specific Performance — Reciprocal Bemmands— Conditional Decree. Where there are reciprocal demands, and anything remains to be done by one obtaining a decree for specific performance, which, in equity and good conscience, he ought to .do, the court may and usually does, make the decree conditional that, in case of his failure to do what remains for him to do, the petition on which relief is granted will be dismissed. (Page 279.)</p> <p>14. Interest — Suspension—Keeping Tender Good. To discharge interest, a tender must be kept good by payment into court. (Page 280.)</p>

<p>1. Appeal and Error — Harmless Error — Erroneous Rulings— Pleadings. A defendant entitled under his answer remaining after striking out a part thereof to prove the matters stated in the answer as a defense is not prejudiced by striking out of the part, in tlie absence of an affirmative showing that the court restricted him in proving his matters of defense. (Page 285.)</p> <p>2. Appeal and Error — Harmless Error — Erroneous Rulings— Pleadings. Where the striking out of all of the parts of a pleading that a motion therefor specified would not have been prejudicial, an order granting the motion in part without specifying what was and what was not stricken was not prejudicial. (Page 285.)</p> <p>3. Trial — Findings of Fact — Conclusions of Law. A finding that an officer of a corporation by reason of his relation to it was chargeable with knowledge of a trust agreement entered into between the corporation and a stranger whereby the latter conveyed real estate to the corporation in trust, etc., is not a finding of fact, but is a conclusion of law deducible from facts. (Page 286.)</p> <p>4. Trial — Findings of Fact — Conclusions of Law. Where the facts found support a conclusion of law, the fact that the conclusion is stated in the findings of fact, instead of in the conclusions of law made by the court, is immaterial. (Page 286.)</p> <p>5. Trusts — Resulting Trust — Conveyance to Secure Debt of Another. Where the wife of a debtor of a corporation conveyed her land to the corporation to sell the same for the best price obtainable, and to retain so much of the proceeds as was necessary to pay the husband’s debts, and to account for the same, the obligation of the corporation was in the nature of a trust, and its relation to the wife and the proceeds was in the nature of a trustee. (Page 286.)</p> <p>6. Trusts — Sale by Trustee — Terms of Sale — Obligation of ■ Trustee. Where a corporation accepting a conveyance of land in trust to sell for the best price obtainable and account for the proceeds sold for a less price, it was liable to the grantor for the difference between what the property was actually sold for and what the corporation could have obtained for it. (Page 287.)</p> <p>7. Trusts — Sale by Trustee — Validity—Sale to Officer of Corporate Trustee. Where a corporation accepting a conveyance of land in trust to sell for the best price obtainable and account for the proceeds transferred the land to one of its officers for three hundred dollars, and the officer five days later sold it to a third person for five hundred dollars, the transfer to the officer was not a sale, and the corporation was liable under its trust agreement to account for five hundred dollars. (Page 287.)</p> <p>8. Corporations — Meetings of Directors — Powers of Majority. Under Comp. Laws 1907, sec. 324, providing that corporate powers are vested in and shall be exercised by the board of directors, a corporation exercises its powers through the board of directors; but a majority of the board, regularly convened, may exercise any corporate powers in the absence of the minority, and bind the minority. (Page 287.)</p> <p>9. Corporations — Powers—Board of Directors — Notice of Proceedings. Where the majority of the board of directors of a corporation, regularly convened, lawfully exercises any corporate powers, the minority members of the board are chargeable with knowledge of such acts, and, where the majority acquired property in trust, every director was charged with knowledge of the trust relation, and, as against the claims of those for whom the coi-po-ration became a trustee, the members acquired no better right to the trust property than the corporation had. (Page 287.)</p> <p>10. CORPORATIONS-POWERS-BOAED OF DIRECTORS — NOTICE OF PROCEEDINGS. The minority members of the board of directors of a corporation are chargeable with knowledge of legal corporate acts, whether the majority of the board directly exercise the corporate powers or authorize an agent to do so. (Page 288.)</p> <p>11. Trusts — Voluntary Trustee. Where a corporation accepting a conveyance of land in trust to sell at the' best price obtainable and account for the proceeds transferred the land to an officer for a price less than the best price obtainable, the officer became a volunteer trustee, and, when he sold the land at an advance, he held the proceeds in trust for the beneficiary. (Page 289.)</p>

<p>Appeal from District Court, Fifth District; Son. Joshua Greenwood, Judge.</p> <p>Action by A. Y. Hague against the Juab County Mill & Elevator Company.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from District Court, Second District; Hon. J. A. Howell, Judge.</p> <p>Action by Alvin E. Horton against Andries Rogbaar.</p> <p>Judgment for defendant. Plaintiff appeals.</p>

<p>Appeal from District Co-urt, Third District; Hon. Geo. T. Armstrong, Judge.</p> <p>Action by Charles Tyng against Oonstant-Loraine Investment Company.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

J. A. Howell, Judge. Action by J. H. Kurtz against the Ogden Canyon Sanitarium Company, and C. D'. Clark, defendants, and the Dtah & Oregon Lumber Company, J. H. Winslow, Sr., and the Shupe-Williams Candy Company, interveners. Judgment for plaintiff. Interveners appeal.

<p>1. Larceny — Grand Larceny. Comp. Laws 1907, sec. 4384, makes every person guilty of embezzlement punishable in the same manner prescribed for stealing property of the value of that embezzled, and section 4359 makes it grand larceny to steal property valued at more than fifty dollars, and section 4360 makes all other cases petit larceny. Accused was employed to solicit advertising contracts, and within about thirty-eight days collected $235 from various persons, and appropriated it to his own use; but forty-eight dollars was the largest amount collected from one person at one time. Held, that the taking of the $235 was one embezzlement committed by a series of connected transactions, so as to , make accused punishable as for grand larceny. (Page 332.)</p> <p>2. Embezzlement — Authority of Agent — Effect of Exceeding Authority. Where accused demanded and received the money appropriated as his employer’s agent, and it was paid in the discharge of obligations under advertising contracts which he had solicited for his employer, he was guilty of embezzlement, though he did not have authority to collect money due under such contracts. (Page 333.)</p>

<p>Appeal from District Court, Third District; Hon. M. L. Ritchie, Judge.</p> <p>Action by Salt Lake Investment Company against Jesse M. Eox.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

Geo. G. Armstrong, Judge. Proceedings by the State, on the relation of Percy Hallen, against the Utah State Board of Examiners in Optometry ■and its members. Judgment for relator. The board appeals.

<p>Waters and Water Courses — Change or Channel — Use oe Old Channel — Pish Ponds. Where a public stream, abounding in fish valuable for food, flowed across defendant’s premises, he was entitled to change the course of the stream over such premises and construct fish ponds in the old bed, without injury to public or private interests, or interfering with the fish in the stream, permitting the water diverted to his fish ponds and hatchery to run undiminished and unpolluted back into the stream. (Page 348.)</p>

<p>1. Corporations — Officers—Powers of President. Under Comp. Laws 1907, secs. 315, 324, providing that the corporate powers oí a corporation shall he exercised by the hoard of directors, which shall not he less than three nor more than twenty-live, etc., the president of a corporation has ordinarily only the powers of a director, or such as may be directly conferred on him by the board of directors. (Page 355.)</p> <p>2. Corporations — Officers—Board of Directors — Quorum. Under Comp. Laws 1907, secs. 315, 324, providing that the corporate powers of a corporation shall be exercised by the board of directors, consisting of not less than three nor more than twenty-five, and that a majority of a quorum when duly assembled may bind the corporation, a quorum of the board of directors must act as a unit when discharging or authorizing any one to execute corporate powers. (Page 355.)</p> <p>3. Corporations — Officers-—Powers. Where the president and secretary of a corporation entered into an option contract for the.sale of corporate property for a fixed price payable in installments, pursuant to the authority of the board of directors to the president and secretary to contract for the sale of the property for a specified price, the president alone had no authority to extend the time of the payment of any installment; the contract making timé of the essence. (Page 356.)</p> <p>4. Contracts — Option Contracts — Modification—Effect. Where an option contract for the purchase of property for a fixed price payable in installments on designated dates, made time of the essence, an extension of the time of the payment of the first installment is a modification of an executory agreement, and, in effect, the entering into of a new agreement. (Page 357.)</p> <p>5. Corporations — Ratifioation of Unauthorized Act. Where a corporate power is required to be exercised in a particular manner, a ratification of an unauthorized exercise of the power must be effected in such manner. (Page 357.)</p> <p>6. Corporations — Acts of Officers — Batificatton. The president and secretary of a mining corporation, pursuant to authority from the board of directors, made an option contract for the sale of corporate property for a specified price payable in installments on designated dates, and made time of the essence. The president alone extended the time for the' payment of the first installment. The secretary was informed of the modification, and he then wrote to the president, who was absent from the state, inquiring about it. Nothing further was done by any one until the purchaser in the option contract learned that the corporation had refused to recognize the extension of time. Held, that the act of the president was not ratified, and the corporation was not bound thereby. (Page 357.)</p>

<p>1. Courts — Stare Decisis — Operation oe Doctrine. Where the specific ground of estoppel is alleged in an action and passed upon, the decision is not a ruling on all other grounds of estoppel, so as to be stare decisis as to such grounds. (Page 363.)</p> <p>2. Dower — Estoppel to Claim. Complainant was married, and after-wards, in 1873, she and her husband obtained a purported divorce from the church, which was in fact invalid. Complainant and her husband lived apart thereafter until 1900, when the latter died, and during that time complainant never asked for or received aid from her husband, and they both lived as unmarried persons, and complainant went by her maiden name until 1875, when she married another in the same city in which she and her first husband lived, and complainant was thereafter known by the name of her second husband, and in 1887 — 89 she joined her second husband in conveyances which were recorded, and complainant raised a large family by her second husband. After their alleged divorce, her first husband conveyed the property in controversy as an unmarried man; he then living near such property. At least six months before his death complainant was informed of a decision of the court holding church divorces invalid, but continued to live with her second husband as husband and wife. Held, that complainant was estopped, as against bona fide grantees of her husband after their alleged divorce or purchasers therefrom, from claiming dower in the land sold by him. (Page 364.)</p> <p>3. Estoppel — Estoppel in Pais — Knowledge of Facts — Necessity. In order to be estopped, one need not in every case know the truth concerning material facts-or intend to deceive the person injured if, under the circumstances, he had a reasonable means of ascertaining such facts. (Page 372.)</p> <p>4. Estoppel — Eqtjitable Estoppel — Silence. Inaction or silence may under some circumstances amount to a misrepresentation and concealment of the true facts, so as to raise an equitable estoppel. (Page 373.)</p> <p>5. Estoppel — Equitable Estoppel — Nature oe Doctrine — “Estoppel in Pais.” The doctrine of “estoppel in pais” is an equitable doctrine originally applied to prevent an advantage to be taken of strict legal rights, and the equities of the particular facts must control in applying it. (Page 374.)</p> <p>6. Action — Equitable Defense — Estoppel—Dower. In view of Const., art. 8, sec. 19, providing that there shall be but one form of action for the administration of both law and equity, an equitable estoppel may be pleaded as a defense in a legal action for dower. (Page 374.)</p> <p>7. Dower— Conveyance by Husband — Bona Fide Purchasers. Ordinary a claim of dower cannot be defeated by a claim of a tona fide purchaser of the land from the husband. (Page 378.)</p> <p>8. Estoppel — Equitable Estoppel. When one of two innocent purchasers must suffer by the acts of a third person, he who has enabled the latter to cause the loss must sustain it. (Page 379.)</p> <p>9. Dower — NATURE of Eight. Dower is merely an inchoate right which may never become a vested interest. (Page 379.)</p> <p>10. Dower — Defenses—Estoppel. The wife’s right to dower is not affected hy the husband’s representations upon selling the land that he is unmarried unless she permits innocent persons to deal with him in good faith as an unmarried man with actual or constructive knowledge of his representations. (Page 379.)</p> <p>11. Estoppel — Equitable Estoppel — Persons Entitled — Grantees. One purchasing land from another who was entitled to invoke an estoppel as against claimants thereto may himself rely on the es-toppel, though he had knowledge of facts-when purchasing which would have prevented his grantor from invoking the estoppel had the latter known them. (Page 383.)</p>

<p>1. Judgment — Conclusiveness—Third Persons. Where the law provides a proceeding to establish an individual’s status upon giving notice prescribed by law, a judgment in a proceeding solely for that purpose, declaring the status of the individual, is admissible in evidence against a stranger in any subsequent suit to prove such status, being evidence of that fact against all the world; but where the action is between individuals, and the status of an individual is merely incidentally in issue, the judgment therein is not admissible against strangers to that judgment, so that a judgment in an action to recover dower in land conveyed by the husband in which the widow’s marriage was in issue and established is not admissible in a subsequent action against strangers to that judgment to prove the marriage; the establishment of the widow’s status as a married woman being merely incidental to the main purpose of the suit. (Page 388.)</p> <p>2. Judgmment — Conclusiveness. In an action against an estate to have plaintiff declared the widow of decedent under a valid marriage and to have dower awarded her, grantees of decedent were not bound by the judgment therein, establishing the marriage, the adjudication of plaintiff’s status being merely incidental to the action to establish dower, so that, in an action against such grantees by the widow to establish dower in the land conveyed to them, the judgment was not admissible to prove her marriage. (Page 389.)</p> <p>3. Dower — Actions to Establish — Burden of Proof — Marriage. In an action for dower, the burden is upon the widow to establish a valid marriage; the validity of her marriage being put in issue. (Page 390.)</p> <p>4. Dower — Findings—Negative Findings. In an action for dower, a finding that plaintiff must fail because she failed to establish the existence of a lawful marriage between herself and decedent is in effect a negative finding, and is sufficient to support a judgment for defendant on that ground. (Page 390.)</p>

<p>Appeal from District Court, Third District; Hon. T. D. Lewis, Judge.</p> <p>Action by Nose O. Sargent, as administratrix of the estate of George Lorenzo Sargent, deceased, against the Union Fuel Company.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from District Court, Second District; Hon. J. A. Howell, Judge.</p> <p>Action by Emma Maud Terry against Frank Peterson and Charles Creighbaum doing business as tbe St. Louis Gambling Hall, under tbe name of Peterson & Company.</p> <p>Judgment for defendants. Plaintiff appeals.</p>

<p>Appeal from District Court, Seventh District; Son. J. F. Ghidester, Judge.</p> <p>Action by L. H. Erickson against Moroni Childs.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from District Court, Fifth District; Hon. Joshua Greenwood, Judge.</p> <p>Action by Edward Patterson, as administrator of John Patterson, deceased, against John Eyan.</p> <p>Judgment for defendant. Plaintiff appeals.</p>

Certiorari by tbe State, on tbe relation of Henry Newell, against tbe District Court for tbe Third Judicial District, Salt Lake County, and others to review an order of such court setting aside an order of sale in attachment proceedings.

<p>Wills — Probate—Nature of Paper. Decedent wrote a letter to petitioner, discussing in a general way tlieir plans after tliey were married, stating therein that he would make petitioner his sole heir whether they were married or not,, and if he died before they were married would make her his legal heir, but “I hope I will enjoy your company and association before that, now this is only talk. I don’t expect to die, but I am just telling you what I mean.” Held, that the letter was not intended as a present disposition of decedent’s property.but merely expressed an intention to dispose of it at some future time, and was not admissible to probate as a will. (Page 430.)</p>

W. W. Mtmghan, Judge. Action by Samuel K. Evans, and another administrator of Jesse J. Price, against tbe Oregon Short Line Railroad Company. Judgment for plaintiffs. Defendant appeals. appellant’s points. This court has uniformly held that the pecuniary loss arising from various elements of damage, is the sole measure of the damages recoverable in such an action as this.

<p>1. Pkocess — Substituted Service — Eeeect—“Personal Service.” Substituted service of summons if properly made by leaving copy at defendant’s usual place of abode with some suitable person of at least fourteen years of age, as authorized by Comp. Laws 1907, sec. 2948, subd. 8, constitutes personal service. (Page 454.)</p> <p>2. Evidence — Presumptions—Place oe Abode. The presumption that a man’s place of abode is prima facie where his family lives is one of fact, and not of law, and may be overcome by evidence to the contrary. (Page 454.)</p> <p>3. Process — Substituted' Service — “Place oe Abode” — “Domicile.” Plaintiff in May, 1884, was married to A., and, while she was still his wife, during the same month he married E., she being his plural wife. Thereafter he went to England as a missionary, and took with him his wife E. and her children, and resided and worked there. During his absence in England, his wife A. built a house in Salt Lake City with money furnished by plaintiff, and during plaintiff’s absence lived therein. • Plaintiff never saw the house nor lived in it until after his return from England, during which time summons was attempted to be served on him in an action brought by defendant by leaving a copy at such house with his wife A., on which judgment was rendered against him by default, concerning which he had no knowledge until he returned from England. Held, that such house was not plaintiff’s “usual place of abode” within Comp. Laws 1907, sec. 2948, subd. 8, authorizing substituted eer-vice by leaving a copy of the process at the defendant’s usual place of abode with a suitable person at least fourteen years of age; the term “place of abode” as so used being the place where defendant lives or abides, his “then present residence,” and is not synonymous with “domicile.” (Page 456.)</p>

O. W. Morse, Judge. Action by Bingham Livery & Transfer Company, a corporation, against B>. D. McDonald. Judgment for plaintiff. Defendant appeals. STATEMENT OE FACTS.

M. L. Ritchie, Judge. Action by J. W. Cromeenes against the San Pedro, Los, Angeles & Salt Lake Railroad Company. * Judgment for plaintiff. Defendant appeals. APPELLANT'S POINTS. The appellant’s claim is that all the rulings of the trial court on the question of contributory negligence were wrong, for the reason that the deceased should have been held guilty of contributory negligence as a matter of law.

<p>Appeal from District Court, Third District; Hon. •Geo. G. Armstrong, Judge.</p> <p>Action by William L. Bills against Salt Lake City.</p> <p>Judgment for defendant. Plaintiff appeals.</p>

<p>1. Chiminal Law — New Tbial — Disceetion or Cotjbt. In granting or refusing motions for new trials, discretion is vested in the trial courts. (Page 517.)</p> <p>2. Ckiminal Law — Appeal and Error. Where there is substantial evidence to support a verdict, the appellate court cannot interfere with it. (Page 517.)</p> <p>3. Criminal Law — Appeal and Error — Discretion or Trial Court. The appellate court may not usurp the functions of the trial court in exercising their discretion on a motion for a new trial. (Paga 517.)</p> <p>4. Criminal Law — New Trial — Newly Discovered Evidence. On a motion for a new trial newly discovered evidence held cumulative, and not “so conclusive in its character as to raise a reasonable presumption that the result of a second trial would be different from the first.” (Page 520.</p> <p>5, Criminal Law — New Trial — Newly Discovered Evidence. In order to authorize a new trial on the ground of newly discovered evidence it must he so conclusive in its character as to raise a reasonable presumption that the result of a second trial would be different from the first. (Page 520.)</p>

<p>1. JUDGMENT — Formal Requisites. Where there is no statute requiring a judgment to be in any particular form, it is sufficient if by the use of proper language it is stated what the prevailing party shall receive and what the losing party is required to do, pay,, or discharge. (Page 523.)</p> <p>2. Trial — Nonsuit—Hearing on Motion. On a motion for a nonsuit, .nothing is before the court except the question whether, in view of the evidence before the court, the case is one which should be determined as a question of law, and, if the motion is granted, the only judgment that is permissible is one dismissing the action, and such a judgment arrests any further proceeding in that action except on appeal. (Page 523.)</p> <p>3'. Judgment — Bar—Judgment oe Nonsuit. On sustaining a motion for nonsuit, the judgment rendered is not a bar to a future action upon the same cause of action.1 (Page 523.)</p> <p>4. Teial — Motion fob Nonsuit — Judgment. A judgment roll after giving the title of the cause, reciting that the cause came on regularly for trial, that a jury was duly impaneled, that witnesses were sworn and examined on behalf of plaintiff, that plaintiff rested, that counsel for defendant moved for judgment of nonsuit and dismissal, stated that, “the court having considered and now being fully advised in the premises, it is ordered that the motion be and the same is hereby granted and the within case dismissed.” Held to constitute a judgment sufficient to arrest all further proceedings. (Page 524.)</p> <p>5. Appeal and Error — Appealable Obdees — Nonsuit. Such judgment was a final one and appealable. (Page 524.)</p> <p>6. Appeal and Eeeoe — Entry in Judgment Book. — “Judgment Boll.” Comp. Laws 1907, sec. 3195, provides that the clerk must enter judgments in a book “called the judgment book.” Section 3197 provides that, immediately after entering the judgment, the clerk must attach and file certain papers including “a copy of the judgment,” which constitutes the judgment roll. Section 3301 provides that an appeal may be taken within six months from the entry of the judgment appealed from. Held that, before an appeal can be taken from a judgment, it must be entered in the judgment beek. (Page 525.)</p> <p>7. Appeal and Eeeoe — Time foe Proceedings — Entry of Judgment. The time from which an appeal may be taken dates from the entry of the judgment. '(Page 525.)</p> <p>8. Appeal and Eeeoe — Presumptions—Performance of Duty by Clerk. Comp. Laws 1907, sec. 3195, provides that the clerk must enter judgments in a book “called the judgment book.” Held, that it would be presumed on appeal, where nothing appears in the judgment roll to the contrary, that the clerk entered the judgment in the proper book before the judgment- roll was made up, and this presumption will not yield to a collateral, attifbk by affidavit, but can only be overcome by an amendment to the record.2 (Page 525.)</p> <p>9. Municipal Corporations — Injuries from Defects in Street— Actions — Question for Jury. In an action against a city for injuries caused by an excavation in a street, evidence held sufficient to present a case for the jury on the question of defendant’s negligence. (Page 527.)</p> <p>10. Trial — Nonsuit—Questions of Law. Where plaintiff’s evidence and the inferences therefrom would authorize reasonable men to arrive at different conclusions as to whether all the essential facts were proven, the question is one of fact, although the evidence on some points may be very unsatisfactory.3 (Page 527.)</p> <p>11. Municipal CORPORATIONS — Injuries from: Defects in Street— Notice of Defect — Question for Jury. Where, in an action against a city for injury resulting from an excavation in a street, the jury find that some stranger made the excavation, the question of whether the city had notice of its existence and character is one of faet.4 (Page 527.)</p>

M. L. Ritchie, Judge. Action by A. E. Snow against E. M. West, in which M. R. Brothers, as assignee, was substituted as plaintiff. Judgment allowing defendant to set off judgments. Brothers appeals.

Appeal by Emil S. Rolapp', trustee, against tbe Ogden & Northwestern Railroad Company and others. Erom the judgment the plaintiff appeals. appellant's points. Did the court err in overruling the demurrer of the plaintiff to the affirmative answer of defendant Smith? Or, in other words, was the court authorized to give defendant Smith the relief given under it, or under the first part of his answer ?

<p>'1. Trial — Instructions Already Given. Where the substance of a requested charge was fully given by the court, the requested instruction was properly refused. (Page 571.)</p> <p>2. Action — Splitting Causes op Action. An action based on the breach of a different agreement from that on the breach of which the present suit is based was a different cause of action, so that there could be no question of splitting of a cause of action. (Page 571.)</p> <p>3. Appeal and Error — Harmless Error — Admission op Evidence. Any error in excluding the answers to certain questions was not prejudicial to defendants where they got such evidence before the jury at different times during the trial. (Page 573.)</p> <p>4. Witnesses — Appeal and Error — Discretion op Trial Court— Cross-Examination. Considerable discretion is vested in trial courts as to the questions allowable on cross-examination to test the memory or credibility of witnesses; and, in the absence of prejudicial abuse of such discretion, a judgment will not be reversed for error in unduly restricting or extending the scope of cross-examination.1 (Page 573.)</p> <p>5. Witnesses — Examination—Redirect Examination. In an action, for damages for failure to deliver three hundred sheep, where a witness was asked on cross-examination whether defendant had not sold certain rams which did not include the rams in controversy, a question on redirect examination as to how much defendant got for a certain lot of sheep was not proper redirect examination, and was properly excluded. (Page 578.)</p> <p>6. Appeal and Error — Harmless Error — Exclusion of Evidence. Any error in excluding such question could not have injured defendant. (Page 573.)</p> <p>7. Appeal, and Error — Scope op Review — Reason for Ruling — Exclusion of Evidence. If a ruling excluding answers to certain questions was correct for any reason whatever, no error was committed in excluding them. (Page 573.)</p> <p>8. Pleading — Pleading by Reference. An answer by referring to pleadings in a former action made such pleadings a part of it by reference. (Page 576.)</p> <p>9. Trial — Argument—Comment on Pleadings — Property. If pleadings in a former action are made a part of the answer in the present action by reference thereto, counsel can comment thereon in argument in the same manner as on the answer in the present action. (Page 576.)</p> <p>10. Appeal and Error— Verdict — Conclusiveness. Where, though the jury could have found a larger verdict for plaintiff than it did, they were also justified in finding for defendant, the verdict for plaintiff, under proper instructions, cannot be disturbed on appeal, though the appellate court might have decided differently. (Page 577.)</p> <p>11. Trial — Findings by Court — Conformity to Evidence — Hearsay,' Hearsay evidence could be ignored by the court in making findings on questions of fact. (Page 577.)</p> <p>12. Witnesses — Subpoena—Service—Persons Authorized to Serve. A subpoena may be served by any person. (Page 578.)</p> <p>13. Witnesses — Mileage Fees. Comp. Laws 1907, sec. 994, entitles every witness legally required to attend the district court to one dollar and one-half for each day’s attendance, and twenty cents for each mile necessarily traveled in going, and section 3419 provides that service of a subpoena is made by showing the original and delivering a copy to the witness personally, or by leaving a copy of the same with some suitable person at the place of his abode. Eeld, that where a witness leaves his home pursuant to a subpoena or is served while away from home and returns to his home in due course of business before going to testify, he may claim mileage fees, and witnesses who were notified at tlieir homes hy telephone hy the sheriff that he had subpoenas for them, and, pursuant to such telephone communication, came to the place of trial, were entitled to mileage fees from their homes to such place. (Page 579.)</p> <p>14. Witnesses — Mileage Pees — “Legaixy Required to Attend.” A witness may waive the manner of service and accept service in some other form though not in strict compliance with the statute, and he will be required to obey a subpoena so served, so that such witnesses were “legally required to attend,” within Comp. Laws 1907, sec. 994, so as to he entitled to mileage fees from their home to the place of trial. (Page 580.)</p>

J. A. Howell, Judge. Action by Mary R. Schuyler and others against the Southern Pacific Company. Prom a judgment 'for plaintiffs and an order overruling a motion for a new trial, defendant appeals.

<p>1. Carriers — Injury to Passenger — Question for Jury. Where paintiff’s decedent, an empoyee of defendant carrier, having a free pass, entered defendant’s train, and was rceived as a passenger and permitted to ride, and there was no evidence that the employees of the train did not know that decedent was riding on a free pass or that they were deceived as to his status on the train, it was not error to fail to submit to the jury the question as to whether defendant’s trainmen knew that decedent was riding on a free pass •while not on duty. (Page 614.)</p> <p>2. Appeal and Error — Presentation of Questions in Trial Court— Change of Theory. Where appellant adopted a definite theory in the trial court as to the facts established by the evidence, he would not be permitted to change that theory on appeal and to assert that such facts were not established, and that he was entitled to a new trial. (Page 614.)</p> <p>3. Appeal and Error — Review—Questions of Fact. While the appellate court will not pass on the weight of the evidence, it will not ignore self-evident conclusions from undisputed facts. (Page 615.)</p> <p>4. Removal of Causes — Grounds for Removal — Construction of Pleadings. Where the Supreme Court construed the complaint in an action against the carrier for the death of a passenger and held that it did not present a federal question under the Hepburn act (Act June 29, 1906, e. 3591, see 1, par. 4, 34 Stat. 584 [TI. S. Comp. St. Supp. 1909, p. 1151]), as the complaint did not show on its face that deceased’s, right to transportation was derived from the federal statute, or that his cause of action was based on such statute, a further remark by the court that under the allegations of the complaint it did not constitute a fatal variance under the state statute for plaintiff to prove that deceased was a gratuitous passenger at the time of the accident was. insufficient to negative the construction made by the court, and to introduce a federal question into the cause. (Page 615.)</p>