Volume 38 — Utah Reports

— Hon. Geo. G. Armstrong, Judge. Thomas Vance appeals from a conviction of murder. APPELLANT’S POINTS. Where an indictment charges death to have been caused by two causes there can be no conviction on evidence that it was caused by one of them singly.

<p>1. Exemptions — Extraterritorial Effect op Statutes. Exemption laws of a state have no extraterritorial effect. (Page 61.)</p> <p>2. Gabnishment — WaiveR op Personal Jurisdiction by Garnishes —Eppect on Dependant. Waiver by a garnishee of personal jurisdiction by voluntarily appearing is not a waiver of defendant’s rights in so far as jurisdiction over his property, the debt, is concerned. (Page 62.)</p> <p>3. Railroads — Foreign Corporations — Service op Process on Agent. Comp. Laws 1907, section 2948, provides that if neither the president, secretary, treasurer, or other officer of a foreign corporation, nor the person designated by it as one upon whom process may be served, is within the state, and the corporation holds itself out as having an office or place of business in the state, or does business in the state, service of process upon it may be had upon the person doing such business, or in charge of such office, or place of business. A foreign railroad corporation maintained in Utah an office in charge of a “general agent.” The business conducted by the agent required an assistant, and the income therefrom amounted to about forty thousand dollars a year. The agent issued no bills of lading and sold no passage tickets, but obtained from prospective shippers “routing orders,” which were signed by shippers, and by the agent sent to the respective offices of the corporation, so that the freight might be routed over its lines. Held, that such agent was directly connected with the business of the corporation, and process against the corporation could be served on him. (Page 69.)</p> <p>4. Corporations — Foreign Corporations — Service oe Process— Legislative Control. It is within the province of the Legislature to designate the person or persons who represent a foreign corporation upon whom legal process may be served. (Page 69.)</p> <p>6. Garnishment — Debts Attachable. A debt that may be enforced in any jurisdiction by a person against his debtor may also by a creditor of such, person he attached hy garnishment in any jurisdiction where the debtor of such person may be found and served with process. (Page 74.)</p> <p>6. GabnishmeNt — Pleading. Comp. Laws 1907, section 3095, requires a garnishee to answer in writing and under oath. Section 3099 provides that plaintiff may take'issue on any facts stated in the garnishee’s answer, but that unless he does so within ten days the answer will be deemed true. Belli, that if a garnishee desires to make the defense that the 'debt, if any exists in defendant’s favor, is payable at any particular place or upon special conditions by virtue of a contract between the garnishee and his creditor, the garnishee must set forth such facts in his answer, so as to give plaintiff an opportunity to take issue upon any one or more of the facts contained in the answer. (Page 74.)</p> <p>7. Constitutional Law — Enckoachment on Legislatuke. It is the duty of the Supreme Court to declare the law as it finds it. (Page 76.)</p>

— Hon. O. W. Morse, Judge. Action by M. Kimball against the Success Mining Company and others. Judgment dismissing complaint. Plaintiff appeals. APPELLANT'S POINTS.

<p>Appeal from District Court, Third District; Hon. G. W. Morse, Judge.</p> <p>Action to quiet title by tbe Rio Grande Western Railway Company against Thomas B. Stringham and others.</p> <p>Judgment for defendant. Plaintiff appeals.</p>

Joshua Greenwood, Judge. Action by Rasmus Nelson against Henry Matsch. Judgment dismissing the action. Plaintiff appeals. STATEMENT OF FACTS. This is an action for an accounting of partnership funds.

<p>1. Appeal and Ekrok — Review—Peesumptions—Findings. Idl the absence of objections to findings, they are presumed to have been sustained by the evidence. (Page 134.)</p> <p>2. Appeal and Ebrob — Review—Peesumptions—Findings. In the absence of a request for additional findings, the findings made are presumed to be as broad as the evidence warranted. (Page 134.)</p> <p>3. Appeal and Brbob — Rulings Renewable. The Supreme Court cannot on appeal from a judgment for defendant review action in not specially finding on a question of negligence when the pleadings support tbe judgment on another theory, and where there is no complaint that the findings are not supported by the evidence, or that the court failed to find on a material issue. (Page 134.)</p> <p>4. Cabreebs — Freight—Right to Limit Liability. A carrier of freight by a fair and reasonable contract can limit his common-law liability as an insurer.1 (Page 135.)</p> <p>5. Contracts — Failure to Read — Effect. One may be bound by the terms of a contract which he did not read. (Page 135.)</p> <p>6. CaRkiebs — Freight—Value. A valuation of five dollars per hundredweight, to wliicli tlie liability of a carrier of household goods, “consisting of a roll of carpet, including one feather bed, four pillows, and three boxes of other household goods,” was limited, was not so inadequate as to be fraudulent on its face, or show valuation below actual value. (Page 137.)</p> <p>7. Carriers — “Household Goods.” Wearing apparel is not necessarily included within the term “household goods,” when the question of good faith or fraud in fixing the value of such goods in a contract for carriage is involved. (Page 137.)</p> <p>8. Carriers — Freight—Federal Statute — Applicability. Act February 4, 1887, c. 104, sec. 20, 24 Stat. 386 (U. S. Comp. St. 1901, p. 3169), as amended by Act June 29, 1906, c. 3591, sec. 7, 34 Stat. 593 (XT. S. Comp. St. Supp. 1909, p. 1163), making carriers liable for freight lost in interstate shipment, does not prevent a reasonable contract limiting a carrier’s liability for injury to freight to a particular valuation per hundredweight in consideration of a reduced freight rate. (Page 137.)</p>

<p>Application by tbe State of Utah, on tbe relation of Louis Grant, or a writ of prohibition against tbe First Judicial District Court and others.</p>

<p>Appeal from District Court, Sixth District; Son. John F. Chidester, Judge.</p> <p>Phil R. Lay was convicted of adultery, and appeals.</p>

<p>Appeal from District Court, Second District; Hon. J. A. Howell, Judge.</p> <p>Action by D'. A. Smyth for a writ of mandamus to T. U. Butters and others, as County Commissioners of Morgan County.</p> <p>Judgment for plaintiff. Defendants appeal.</p>

Geo. G. Armstrong, Judge. Action by the Utah National Bank of Salt Lake City, Utah, against Joseph Nelson. 0 Judgment for plaintiff. Defendant appeals. STATEMENT OE PACTS. Plaintiff, a corporation organized and existing under the laws of Congress, brought this action to recover from defendant upon a promissory note.

<p>Appeal from District Court, Third District,- Son. George G. Armstrong, Judge.</p> <p>Judgment dismissing the complaint. Plaintiff appeals.</p>

<p>1. Mandamus — Purposes op Relief — Performance of Official Duty. To authorize a writ of mandamus against a public officer, relator must show a clear right to the performance of the act demanded with the corresponding duty upon the officer to perform such act. (Page 238.)</p> <p>2. Mandamus — Purposes' of Relief — Acts of Public Officers— Discretionary Acts. The action of a public officer which requires the exercise of discretion will not be reviewed by mandamus, unless he is guilty of a clear and willful disregard of duty or acts capriciously or with partiality. (Page 238.)</p> <p>3. Mandamus — Subjects of Relief — Act®' of Public Boards'— School Trustees. Comp. Laws 1907, section 1816, requires the trustees of a school district to maintain schools or change or discontinue. Section 1824 provides that, if a petition is signed by persons charged with the support of fifteen or more children of school age, the trustees may maintain a school, and section 1825 requires them to fix the terms of the school, and so arrange the terms as to furnish school privileges equally to all pupils of school age, and permits the discontinuance of any school when the average attendance for twenty consecutive days is less than eight. A school district which was situated upon a desert was, in order to procure a sufficient number of pupils, divided into three divisions, each of which was so far from the other that the children in one division could not attend school in either of the other divisions. The number of pupils in the smallest division hardly exceeded three, those in relator’s division numbered nine, while the third division had as many pupils as both of the others. Heretofore a term of school was held each year in each division, but the trustees only required school to be held in the largest division during the current year, and refused to hold a term in relator’s division, though sufficient funds were available for that purpose. Held, that the circumstances stated did not authorize the granting of mandamus to compel the trustees to hold a term of school in relator’s district. (Page 241.)</p>

<p>1. Rauííoads — Duties to Stop to Receive and Discharge Passengers — Statutes. The duties imposed on carriers by Comp. Laws 1907, section 449, requiring every railroad to furnish sufficient accommodations for the transportation of persons and property at any station or stopping place established for receiving and discharging passengers and freight, must be discharged by a carrier at depots or stopping places duly established, and it does not require a carrier to stop its cars at any particular place to discharge or receive passengers. (Page 250.)</p> <p>2. Railroads — Duties to Establish Stations1 — Power oe Courts. The statutes do not confer on the courts power to determine whether a carrier should or should not establish and maintain a depot or stopping place for the reception and discharge of passengers or freight, or either, at any particular place or places along its line of road. (Page 250.)</p> <p>3. Mandamus — Performance oe Common-Law Duty. Where the common law imposes on a person a duty and the right of another to require performance thereof is clear and reasonably free from doubt, mandamus lies to compel such person to discharge that duty. (Page 251.)</p> <p>4. Railroads — Regulation—Depots. The Legislature may, within limits, direct where a carrier shall maintain depots or stopping places for the convenience of the public, and it may require a carrier to stop its trains or some of them at such depots, or stopping places, or it may confer the power to determine whether a carrier shall do so on some board, and, in either case, the courts may coerce a defaulting carrier by mandamus to comply with the legislative edict or with an order of the board. (Page 251.)</p> <p>5. Railroads — Regulation—Depots. Under ordinary circumstances, no inherent power is vested in the courts to control a carrier in its determination of the number of depots or stopping places that it will establish or maintain, or in the selection of the places where it will establish and maintain them along its line of railroad, but the matter is for legislative regulation. (Page 253.)</p> <p>6. Carriers — Regulation—Discrimination. The courts may prevent discrimination by a carrier. (Page 253.)</p> <p>7. Mandamus — Regulation—Discrimination. Where the duty of a carrier to receive a particular person at a particular place is clear, the courts may by mandamus compel the carrier to discharge the duty. (Page 253.)</p> <p>8. Courts — Jurisdiction. A court is an agency of the state by means of which justice is administered, and it may not exceed the powers vested in it for the sole reason that in its judgment it is necessary to exercise the power in the administration of justice.1 (Page 254.)</p> <p>9. Carriers — Train Service — Discrimination. The court in determining whether an interurban railway company is guilty of discrimination because it stops its cars to receive and discharge passengers at resorts along its line and refuses to do so at another resort may not consider the fact that it stops its cars at one resort, where such stop is by virtue of a special contract executed by it for a valuable consideration. (Page 255.)</p> <p>10. Railroads — Train Service — Discrimination—Statutes. Under Comp. Laws 1907, section 455, providing against discrimination from the same place under like conditions, and independent thereof, an interurban railway which stops its cars to receive and discharge passengers at resorts along its line of road and which refuses to do so at another resort is not guilty of discrimination, in the absence of evidence that any person stopped off at the former resorts simply because he could not do so at the latter resort, though the carrier refuses to stop at the latter resort merely out of ill will,' and though there is no ground for its refusal to receive and discharge passengers there. .(Page 255.)</p> <p>11. Railroads — Mandamus—Discrimination—Remedy. Where a carrier refuses permission to one person to enter or alight from its cars at a place where under similar circumstances it extends the privilege to others, the carrier is guilty of discrimination against the former, and the court may by mandamus prevent it. (Page 257.)</p>

<p>1. Habeas Corpus — Questions Reviewable — Validity of Commitment to Prison. Where petitioner for habeas corpus admitted the legality of his commitment to the state prison under a ten years’ sentence for burglary, but asserted that his commitment under a life sentence for murder was invalid, the court would determine the legality of the life sentence and dispose of the petitioner as justice might require, as required by Comp. Laws 1907, section 1088, and thereby enable petitioner on the court adjudging the life sentence invalid to apply for a reduction of the ten years’ sentence, as authorized by section 1686x13, and thereby enable the state to prosecute petitioner on the charge of murder. (Page 260.)</p> <p>2. Statutes — Amendment—Validity. Laws 1899, e. 56, is void in so far as it authorizes the district attorneys to sign and file informations in criminal prosecutions instead of the county attorneys, because of an attempt to amend statutes contrary to Const., article 6, section 22, providing that no law shall be amended by reference to its title only.1 (Page 262.)</p> <p>3. Indictment and Information — Invalid Information — Conviction-Effect. A conviction based on an information signed and filed by the district attorney, pursuant to Laws 1899, c. 56, invalid in so far as it authorizes district attorneys to sign and file informations instead of the county attorneys, is of no force. (Page 262.)</p> <p>4. Habeas Corpus — Conditional Discharge. Where petitioner in habeas corpus admitted the legality of his commitment to the state prison under a ten years’ sentence for burglary, but insisted that his commitment under a life sentence for murder was illegal, and there was probable cause to believe that a murder . was committed and that petitioner probably was connected with the offense, the court on adjudging the invalidity of the life sentence would remand petitioner to the custody of the warden under the sentence for burglary to be held on that sentence until released by law, and the discharge from the life sentence must he conditional only so that at the expiration of the burglary sentence, or, at, any time when legally required to do so petitioner must be delivered into the custody of the sheriff to be dealt with according to law under the charge of murder. (Page 263.)</p>

<p>Appeal from District Court, Third District; Hon. O. W. Morse, Judge.</p> <p>Action by Fred Halverson against David F. Walter.</p> <p>Judgment for plaintiff, defendant appeals.</p>

T. D. Lewis, Judge. Neal McMillan obtained a writ of certiorari to review tbe proceedings of Charles F. Durand, a Justice of tbe Peace, and to annul a judgment rendered against petitioner. Judgment of tbe justice’s court was affirmed. Petitioner appeals.

<p>MUNICIPAL CORPORATIONS-SPECIAL ASSESSMENTS'-PROPERTY EXEMPT' —Statutes. Under Comp. Daws 1907, sec. 1933, providing that, all property held by the board of education shall be exempt from general and special taxation, and from all local assessments for any purpose, etc., lands owned by the board are-exempt from local assessment or special taxation for the construction of a public sewer, and the city could not impose the-payment of a reasonable charge before it was required to permit, the board to connect with or use the sewer.1 (Page 280.)</p>

J. A. Howell, Judge. Petition by E. J. Manning for the apppintment of a guardian of the person and estate of his father John R. Manning, an alleged incompetent. Judgment appointing Sarah Roylanee as such guardian. John R Manning appeals.

W. W. Mcmghan> Judge. Application by Niels Peterson for a writ of mandate requiring Mae Benson, as Recorder of Logan City, to draw a warrant in favor of applicant. Judgment dismissing petition. Applicant appeals. STATEMENT OE PACTS.

Geo. G. Armstrong, Judge. Action by E. A. Midgley and another against the Campbell Building Company. Judgment for plaintiffs. Defendant appeals. APPELLANT'S POINTS. The rule is well settled that where one undertakes to supply an article to the approval of the purchaser, no court or jury may substitute its approval for that of the purchaser. (6 Cyc. 617-618; Tatum v. Geist [Wash.], 89 Pac. 547; Stottes v. Miller [Iowa], 105 N. W. 127; Inman Mfg.

Action by the Sale Lake Investment Company against Jesse M. Fox. On application by the defendant an alternative writ of mandate was issued requiring the district court to make findings and to render judgment in the cause.

C. W. Morse, Judge. Action by George Naylor and another against Joseph U. Jensen, John T. Rich, and another, in which Rich counterclaimed and filed a cross-complaint against W. S. Naylor and others. Judgment for plaintiffs. Rich appeals. APPELLANT’S POINTS. An order entered by a court of law upon a feigned issue is not reviewable even though it is called a judgment, and so the whole case is open for review in this court.

Original application for writ of mandamus, by the Utah Association of Credit Men against J. M. Bowman, Judge of the Civil Division of the City Court of Salt Lake City, and against B. S. Rives, ex officio clerk of such court, to compel entry of a default judgment by the clerk under Complied Laws 1907, section 3179, made applicable to city courts by Laws 1901, chapter 109, section 28 (Comp. Laws, 1907, sec. 686x29).

<p>Appeal from tbe District Court, Second District; Son. W. W. Maugham,, Judge.</p> <p>Action by R. B. Leavitt against Ima Tburston,</p> <p>Judgment for defendant. Plaintiff appeals.</p>

<p>Application by tbe H. L. Griffin Company for a writ of mandate against Hon. J. A. Howell, Judge of Second District Court, in and for Waber County, Utab.</p>

<p>1. Bills and Notes — Consideration—Presumption. ."When a noté-is negotiable, it is presumed to be based on a good and valid consideration. (Page 370.)</p> <p>2. Fraud — Presumptions. A court of equity cannot presume that, corporate officers were guilty of fraud in issuing notes and trust deeds to themselves and other servants for money advanced and for services, where their acts are open to a reasonable explanation. (Page 371.)</p> <p>3. Corporations, — Fraud—Evidence. In an action on notes and to-foreclose a trust deed given for money advanced and for services to employees and officers of a corporation, evidence held insufficient to show such fraud on the part of the payees as to-vitiate the notes and trust deed. (Page 372.)</p>

J. E. Booth, Judge. Action by James S. Murdock against Lavina Murdock, Treasurer of Wasatch County, and others, to recover certain taxes paid under protest. Judgment for plaintiff. Defendant, Heber City, appeals.

<p>Certiorari by tbe People, on the relation of Brigham U. Kobinson, to require the Judge of the District Court of Weber County to certify the record of certain proceedings.</p>

<p>Appeal from District Court, Third District; Son. T. D. Lewis, Judge.</p> <p>Action by W. C. Carter against Mrs. E. E. West.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from District Court, Third District; Hon. T. D. Lewis, Judge.</p> <p>Action by James A. Luke, assignee of Joseph P. Newman, against George Coleman.</p> <p>Prom a judgment of the District Court reversing a judgment of the City Court of Salt Lake City, plaintiff appeals.</p> <p>Appeal dismissed, AND judgmeNT oe Distbiot Coubt</p>

<p>1. Adultery — Marriage oe Accused — Sufficiency of Evidence. In a prosecution for adultery, evidence held to justify a finding that accused was a married man. (Page 395.)</p> <p>2. Adultery — Marriage of Accused — Evidence—Admissions-. In a prosecution for adultery, where proof of the marriage of accused is essential, the fact may he proved by his admissions.1 (Page 395.)</p> <p>3. Adultery — Elements—Marriage of Parties. Under Oomp. Laws 1907, section 4210, punishing adultery, and providing that, when the act is committed between a married woman and an t@married man, both parties shall be deemed guilty of adultery, aid that, when the act is committed between a married man and an unmarried woman, the man shall be deemed guilty of adultery, proof that accused was married to a woman other than prosecutrix, and that he had sexual intercourse with the latter, was sufficient to show him guilty of adultery, whether prosecutrix was married or not. (Page 395.)</p> <p>4. Criminal Law — Evidence—Admissions. In a prosecution for adultery, an affidavit signed by prosecutrix to the effect that she was the mother of a child, that accused was its father, that she was unmarried, and had had sexual intercourse with accused at divers times, and which was shown to accused when he was ■ arrested, whereupon he stated that he had had sexual intercourse with prosecutrix, but did not believe the child was his, was admissible in evidence, not as primary evidence of the facts therein declared, but to show his admissions respecting the statements contained in it. (Page 396.)</p> <p>-5. Adultery — Corpus Delicti — Sufficiency of Evidence. In a prosecution for adultery, the corpus delicti was sufficiently shown by proof that prosecutrix, an unmarried woman, gave ibirth to a child, and accused’s admission that he had sexual intercourse with her was sufficient to connect him with the offense. (Page 397.)</p> <p>6. Criminal Law — Appeal—Review—Harmless Error. Where there was sufficient competent evidence to show that a witness whose testimony was taken at a former trial was on a subsequent trial beyond the jurisdiction of the court, whether other evidence bearing on such fact was properly received was immaterial. (Page 397.)</p> <p>7. Criminal Law — Right to Confront Witnesses — Constitutionality. Comp. Laws 1907, section 5013, authorizing the admission in a criminal case of testifony taken at a former trial, where the witness is dead or beyond the jurisdiction of the court, etc., does not conflict with Const., art. 1, section 12, giving accused the right to be confronted by witnesses against him. (Page 398.)</p> <p>8. Adultery — Venue—Sufficiency of Evidence. In a prosecution for adultery, evidence held sufficient to show that the offense was committed in the county charged. (Page 398.)</p> <p>9. Criminal Law — 'Venue—Evidence. In a criminal case, the venue may be inferred from circumstantial evidence as well as proved by direct evidence. (Page 398.)</p> <p>10. Witnesses — Competency—County Attorney. Under Comp. Laws 1907, section 3412, providing that all persons without exception, other than is specified in the next two sections, who, having organs of sense, can perceive, and, perceiving, can make known their perceptions to others, and section 3413 specifying as persons who cannot be witnesses those of unsound mind, children under ten years of age, and parties to transactions with deceased persons, the county attorney, who was of counsel in behalf of the state in a criminal case and participated in the trial thereof after his term of office expired, and to whom accused made certain admissions, was a competent witness. (Page 400.)</p> <p>11. Criminal Law — Admissions—Voluntary Character. Evidence held to show that certain admissions by accused were voluntarily made. (Page 401.)</p> <p>12. Criminal Law — Evidence—Part of Conversation. Under the rule that, where a part of a conversation or transaction relative to a subject under judicial investigation is admissible, all that forms a part of such conversation or transaction together with the circumstances surrounding the persons engaged in it are competent to go to the jury to enable them to assign the proper and just effect of admissions made in the course of the conversation or transaction, where, in a prosecution for adultery, it appeared that, after accused had admitted to the county attorney that he had had sexual intercourse with prosecutrix, he manifested a willingness to plead guilty to fornication and pay a fine, and, on being informed that the judge and district attorney had to be parties to such an arrangement, accepted the profféred assistance of the county attorney to interview the judge and ascertain his views, what the county attorney told accused as the result of the interview was competent as a part of the transaction. (Page 403.)</p> <p>Oír Application fop. Rehearing.</p> <p>13. Indictment and Information — Issues, Proof, and Varíanos— Time of Offense. "Where time is not an essential ingredient of the offense, the state need not prove the offense and the transaction out of which it arose at or about the particular time stated in the information, but may prove them at any other and prior time within the statutory period of limitations. (Page 428.)</p> <p>14. Criminal Law — Trial—Election Between Offenses — Instructions. In a prosecution for adultery, where the state’s evidence was directed only to the single transaction alleged in the information, a charge, which, after stating that the offense was alleged to have been committed on or about July 18, 1906, etc., instructed that “the exact time alleged in the information as to the commission of the crime charged need not be proved, for it is sufficiently established under the law if you believe that the unlawful act was committed within four years next prior to the filing of the information,” etc., was not open to the objection that the jury could have assumed that there was evidence in the case of several or different offenses similar to that charged and that they were at liberty to convict accused of any one of them if committed within the statutory period of limitations.2 (Page 428.)</p> <p>McCarty, X, dissenting.</p>

<p>1. APPEARANCE — General Appearance — Piling oe General Demurrer to Complaint. Under the express provisions of Comp. Laws 1907, section 3334, the filing of a general demurrer to a complaint constitutes a general appearance, sufficient to confer jurisdiction over the person.1 (Page 446.)</p> <p>2. Certiorari — Grounds. Under Comp. Laws 1907, section 3630, providing that when an inferior tribunal, or an officer, exercising judicial functions, has exceeded its jurisdiction, and there is no appeal, nor in the judgment of the court or judge a plain, speedy, and adequate remedy, certiorari may be granted to review the proceedings, the writ will be granted by the Supreme Court only to correct the usurpation or abuse of authority, and when there is neither an appeal nor other speedy and adequate remedy, by which such usurpation can be corrected.2 (Page 447.)</p> <p>3. Certiorari — Grounds. -When service of summons is assailed as insufficient to confer on the district court jurisdiction over the person, the question as to the sufficiency of service must be submitted to the court in which the action is commenced for decision, it having jurisdiction for such purpose, and as mere errors or irregularities of such court, where jurisdiction exists, cannot be reviewed except on appeal, if the court erred in holding that the service conferred jurisdiction, or in holding that certain conduct or statements of the person served or his counsel in open court constituted a general appearance whereby ■ the court acquired jurisdiction over such person, such errors cannot be reviewed by certiorari. (Page 448.)</p> <p>4. Certiorari — Grounds—Review "of Jurisdiction — General Appearance. While a special appearance may he sufficient to preserve the right to a review on appeal, though a general appearance has also been made, the special appearance cannot operate to prevent the court from acquiring jurisdiction over the person thus to preclude a review of the question of jurisdiction by certiorari. (Page 449.)</p> <p>5. Certiorari- — Grounds—Review of Interlocutory Ruling. Cer-tiorari cannot be employed to review merely interlocutory orders or rulings, nor to prevent threatened wrongs, but under statutes similar to Comp. Raws 1907, section 3630, allowing the writ when an inferior tribunal or officer exercising judicial functions has exceeded its or his jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the judgment of the court or judge, the office of the writ is merely to annul acts which are clearly without or in excess of jurisdiction. (Page 461.)</p>

<p>1. Dimitatioit off Actions — Actions Founded on “Written Instruments.” The obligation of one of several persons uniting in the purchase of corporate stock under a contract stipulating that each of them shall he interested in the proportion that the number of shares subscribed for by him bears to the total number, and that each shall share in the profits and losses in the same proportion, is contractual, and where the stock is purchased in accordance with the contract and within the time specified, his obligation to pay his proportionate share is founded on a written instrument, within Comp. Laws 1907, section 2875, subd. 2, limiting actions founded on written instruments. (Page 456.)</p> <p>2. Joint Adventures — Construction oe Contract — Rights of Parties. A contract whereby several persons unite in the purchase and sale of corporate stock, for a period of three months, whereby each shall be interested in the proportion that the number of shares subscribed for by him bears to the total number of shares, and whereby each shall share in the profits and losses in the same proportion, and whereby the managers may sell the shares for default of payment of the proportionate share, authorizes the managers to sell the interest of a defaulting person, and thus cut him off from further participation in the profits, but the right to sell is for the benefit of the managers who may carry the account of any defaulting person and thereby permit him to continue his interest, and where this is done he must pay for his proportionate share of the stock purchased, not exceeding the amount subscribed by him. (Page 458.)</p> <p>3. Joint Adventures — Construction of Contract — Rights of Parties. The managers purchased stock during fifteen days after -the date of the agreement, and within the three months they ■sold a part of the shares. The stock declined but it could not "he foreseen that the decline would continue. Before the expiration of the three months, the managers gave the members ;a statement of the condition of the business, and the amount ■due for stock previously purchased. Held, that the relation 'between the managers and the members was that of stockbrokers purchasing stock on the order of the members on a broker’s margin, and the members were liable for their proportionate share of stock purchased and not paid for. (Page 460.)</p>

<p>1. Insurance — Termination or Policy — Mistake—Estoppel. Defendant company issued a policy of insurance to plaintiff to expire September 25, 1907, and in October, 1907, a person acting as plaintiff’s agent obtained from defendant’s agent, a reduction of tbe amount of tbe policy and of the premium, nothing being said as to an extension, and the agent in granting the reduction on a slip attached to the policy inadvertently wrote “1909” for “1907” as tbe time when the policy expired. In May, 1907, tbe plaintiff received the policy with the slip attached, and in February, 1907, was given permission to'remove the goods covered by tbe policy, on which there was a loss occurring in November, 1907. Held, that the defendant was not estopped by its conduct or laches from asserting that the indorsement was a mistake, and that it did not intend thereby to extend the term of insurance. (Page 470.)</p> <p>2. Insurance — Actions—Evidence—Findings. Evidence in an action on a fire policy held insufficient to support findings favorable to plaintiff. (Page 471.)</p> <p>3. Insurance — Action on Policy — Evidence—Burden oe Proof. Plaintiff declared on a policy of fire insurance alleged to have been made for one year to September 25, 1907, and to have been modified in October, 1907, by reducing the insurance and extending the policy for two years until September 25, 1909, and that it was in force at the time of loss November, 1907, which allegations were denied by the defendant. Plaintiff introduced the policy, in the body of which the date of expiration was stated as September 25, 1907, and on the back of which it was stated that it expired September 25, 1907, and that the premium was forty-one dollars and seventy cents. A slip attached to the policy showing a reduction of the policy and the premium stated: “Insurance under this policy is hereby reduced to two thousand five hundred dollars. Premium reduced to thirty-four dollars and seventy-five cents” — and on the margin of the slip were indorsements, “Extra Premium, $Nil, Return Premium, six dollars and ninety-five cents, Amount of Policy, three thousand dollars, and Date of expiration, Sept. 25, 1909.” The date of expiration thus shown was an apparent clerical error made at the time the policy was reduced: Held, that the plaintiff had not sustained the burden of proof, since the words in the margin of the slip were merely words and figures descriptive of the policy, and not a substantial modification of it. (Page 472.)</p>

<p>Mandamus — Alternative Writ — Effect of Compliance. A municipal judge having complied with an alternative writ of mandamus issued by tbe Supreme Court, by permitting tbe city attorney and bis assistants to prosecute cases in bis court, tbe Supreme Court will not review tbe previous denial of sueb permission. (Page 474.)</p>

<p>1. LIMITATION OF ACTIONS-INJURIES TO REAL PROPERTY-“TRESPASS'” —Statute—Construction. Comp. Laws 1907, sec. 2877, subd. 2, providing that actions for trespass on real property shall be commenced within three years, refers to the common-law action of trespass, which was the remedy for a wrongful entry on lands, and not to trespass on the ease, and hence does not include an action against a railroad company for injuries to the house of one living near the road by the jar of the trains and the emission of smoke and cinders; the limitation applicable to such actions being four years under, section 2883, as an action not otherwise provided for. (Page 479.)</p> <p>2. Eminent Domain — Subjects of Compensation — Injuries to Property — Smoke anb Vibration. Except for the provisions of Const., art. 1, sec. 22, forbidding damage to private property for public use, no action would lie against a railroad company for mere consequential injury to real property by the jar of passing trains and the smoke and cinders, where the road was carefully and properly built and operated. (Page 479.)</p> <p>3. Eminent Domain — Injuries to Real Property — Damages—Evidence. In an action for injuries to plaintiff’s house by the jar of defendant’s passing trains and by the smoke and cinders, evidence was admissible for plaintiff of the cracking of the walls, the settling of the floors, and of other specific effects, though there was expert evidence as to the diminution in value of the property, especially where the experts differed widely in their evidence as to value, as the jury could better weigh the expert testimony in the light of actual results; and this notwithstanding that the cause of action was single, for which all damages must be recovered in one action, to be assessed as of the time when the first injury to the property occurred, however slight. (Page 481.)</p> <p>4. Appeal and Error — Harmless Error! — Admission of Evidence. In such action, the admission of evidence that branches of a tree on plaintiff’s premises had been cut by linemen in constructing a telegraph line on defendant’s right of way, without connecting their acts -with defendant, though error, was harmless, where no damages were claimed therefor, and, under the charge, none could have been allowed, especially as any damage from such acts would be so slight as not to call for reversal. (Page 483.)</p> <p>5. Eminent Domain — Injury to Real Property — Damages—Evidence. Nor was there error in admitting evidence that plaintiff had to pay a higher rate for fire insurance because of the proximity of the engines, since the defendant would only be liable for setting fire to plaintiff’s house in case of negligence, and, in the absence of negligence, an insurance company would have no recourse to defendant for a loss which it had paid, so that there might well be an increase of rate to fall on plaintiff. (Page 483.)</p> <p>6. Appeal and Error- — Harmless Error — Admission oe Evidence. ' Any error in overruling an objection to the question whether plaintiff had to pay a higher rate for fire insurance because of the proximity of the engines, in that the particular hazard was not mentioned from which alone an increase could result, was harmless, where no evidence of the rates of premium was shown, so that no damages could have been awarded on that ground. (Page 484.)</p> <p>7. Eminent Domain — Injury to Property — Damages. In an action for damages to plaintiff’s property by the jar of passing trains on defendant’s road, and from smoke and cinders, the construction and operation of the road being conceded to be careful and proper, damages for negligent operation cannot be recovered, but only those which are the proximate result of careful and proper operation of the road. (Page 484.)</p> <p>8. Trial — Instructions—Cure oe Error. There was no available error in failing to expressly limit the jury to the proper measure of damages where plaintiff’s counsel repeatedly disclaimed during the trial any damages except on specified and proper grounds, and where the court, in effect, also properly limited the jury as to the measure and extent of damages to be allowed. (Page 484.)</p>

<p>Taxation — Certifícate of Sale — Time fob Issuance. Comp. Laws 1907, see. 2623, provides that' on a sale of land for taxes, the treasurer shall execute and deliver to the purchaser a certificate of sale, and by section 2621 the treasurer is required to keep a book in which he shall enter the matters enumerated in a certificate of sale. Held, that, where land was sold for taxes for the year 1901, a tax certificate issued therefor was not invalid because issuance of it was delayed, so that it was upon a form not printed until 1904. (Page 492.)</p>

<p>Appeal from District Court, Third District; Hon. T. D. Lewis, Judge.</p> <p>Action by George Saxton, executor of George Shearn, deceased, against Frank B. Dindorff.</p> <p>Judgment for defendant. Plaintiff appeals.</p>

<p>1. STREET Railroads — Contributory Negligence of Person Injured — Crossing in Front or Approaching Car — Duty to Use Senses and Faculties. Where a person attempts to cross a street car track on a dark night at a point which is not a public crossing, nor a place where people are accustomed to cross or to use the track, and where there is nothing to distract or confuse his attention, and exercises no care whatever before going upon the track and makes no use of his senses and faculties to ascertain whether a car is approaching and to avoid a collision, such person is guilty of contributory negligence as a matter of law, and cannot recover for resulting injuries. (Page 508.)</p> <p>2. Street Railroads — Actions for Injuries — Questions for Jury— Persons Crossing Track — Proximate Cause. Where the facts in an action for personal injuries against a street railroad are undisputed, and the inferences therefrom make it self-evident to all reasonable minds that the only acts of negligence complained of were not the proximate cause of the injury, it is the duty of the court to instruct a verdict for the defendant. (Page 510.)</p>

<p>1. Guaranty — Nature of Liability of Surety. .Where one guarantees the note of a third person, there is no special trust or confidence involved, and the guaranty follows the note, and may he enforced by any one entitled to collect it. (Page 519.)</p> <p>2. Guaranty — Nature of Liability of Surety — Cause of Action. Where a cause of action has accrued upon a guaranty, it may be assigned, though the guaranty is a special one, which cannot be assigned before the cause of action arose. (Page 520.)</p> <p>.3. Husband and Wife — Guaranty—Requisites and Validity — Notice to Principal. Where a wife guaranteed certain notes ■of her husband, the fact that he was ignorant of her action «does not invalidate the contract; privity of contract between the debtor and the guarantor being unnecessary. (Page 520.)</p> <p>4. G-uaRANty — Validity—Consideration. Extension of time of payment of the note of another is a sufficient consideration to support a guaranty. (Page 521.)</p> <p>5. Guaranty — Instructions—Applicability to Evidence. Where a complaint on 'a guaranty set up no consideration save that expressed in the contract, which was an extension of time, and issue was joined on the defendant’s plea of lack of consideration, an instruction that if plaintiff agreed to and did forbear to enforce the debt as specified in the contract, or if plaintiff extended credit to the defendant in consideration of the guaranty, the jury should find for plaintiff, was erroneous, as the existence of a consideration other than that of extension of time was outside the issues raised by the pleadings. (Page 523.)</p> <p>6. Trial — Instructions — Issues. In an action on a guaranty, where the only consideration alleged was an extension of time, which was denied by defendant, the mere fact that defendant’3 counsel on cross-examination brought out that there was another and different consideration did not authorize the court to instruct as to the existence of that consideration. (Page 523.)</p> <p>7. Guaranty — Remedies oe Creditors — Issues. In an action on a guaranty, where the only consideration alleged was an extension of time, and the parties had joined issue on its existence, evidence as to another consideration is not admissible. (Page 524.)</p>

<p>1. Appeal and Error — Review. Where evidence which may or not be material and relevant, depending on whether other evidence is introduced, is admitted provisionally on such other evidence being introduced, it is necessary to convict the court of error to move to strike it out on such other evidence not being introduced, and, the motion being denied, to except to such ruling. (Page 530.)</p> <p>2. Tbial — Instructions—Requests. Refusal of requested instructions, either too broad or too restricted, is not error, though the court might well have charged on subjects suggested thereby. (Page 530.)</p> <p>3. New Trial — Newly Discovered Evidence — Diligence. A showing of diligence to produce the evidence on the trial is necessary to entitle one to new trial for newly discovered evidence. (Page 531.)</p> <p>4. Replevin — Sueeiciency oe Evidence. Judgment for defendant in replevin on a hill of sale unconnected with plaintiffs title is unjustified, there being uncontradicted evidence that plaintiff had previously bought the property, and no evidence that it had parted with its title. (Page 532.)</p>

Action by Adclie B. Loftis, administratrix of Thomas J. Loftis, deceased, against tbe Pacific Mutual Life Insurance Company of California. Judgment for plaintiff. Defendant appeals. APPELLANT’S POINTS. Tbe rule is that when a party relies upon a waiver of the. performance of an act upon which his right of action depends, such waiver must be specially pleaded.

<p>Application by the State of Utab on the relation of A. W. Horsley, for prohibition against Carbon County and others.</p>

<p>1. Raimoads — Crossing Accident — Duty of Traveler. It is not sufficient for a traveler in attempting to cross a railroad track to look in one direction. It is his duty to look in both directions, and he must select a position from which an effective observation can be made, and he must look out for all trains, and cannot assume that trains will pass only at specified times. (Page 573.)</p> <p>2. Railroads — Crossing Accident — Question of Daw. While ordinarily the question whether under all the circumstances a traveler has exercised due care in attempting to cross a railroad track is for the jury, where the facts are not in dispute and reasonable men cannot differ upon the proposition that, if the traveler had looked or listened, he must have discovered the approaching train in time to have avoided a collision, the question of his negligence is one of law. (Page 573.)</p>

<p>1. Master and Servant — Injuries to Servant — Defect in Locomotive — Evidence. la aa action by a brakeman to recover for injuries alleged to have resulted from a defect in the brakes on the engine, by reason of which the engineer was unable to stop the engine so as to avoid injury to plaintiff, evidence held insufficient to show that the brakes were defective. (Page 583.)</p> <p>2. Appeal and Error, — Harmless Error — Instructions. In an action by a brakeman against a railroad company for injuries, an -instruction presenting the last clear chance rule, though erroneous in predicating plaintiff’s right of recovery on his showing that he was “himself in the exercise of due care,” was not prejudicial, where the evidence clearly showed that plaintiff’s injury resulted from the negligence of his fellow servants. (Page 586.)</p> <p>3. Master and Servant — Injuries to Servant — Instructions— Last Clear Chance. In an action by a brakeman for injuries alleged to have resulted from the inability of the engineer to stop the engine owing to defects in the brakes, an instruction that, if the braking apparatus was defective and that after plaintiff fell from the pilot, the engineer received a stop signal, and that thereupon the engineer endeavored to obey it, and that he was unable to stop the train in time to prevent injury to plaintiff’s arm because the braking apparatus was defective, or out of repair, and if the braking apparatus had been in proper condition the engineer would have been able to stop, and would have stopped, in time to avert the injury, then the condition of the braking apparatus was the proximate cause of the injury, and, if the evidence shows that such condition of the braking apparatus was due to negligence of defendant, the plaintiff, “if shown to have been himself in the exercise of due care,” is entitled to recover, was an instruction on the last clear chance doctrine, and was not rendered misleading by the use of the quoted words, since such words referred to plaintiff’s conduct after he fell from the pilot, 'and not to his previous conduct in placing himself in a position of danger on the pilot. (Page 589.)</p> <p>4. Master and Servant — Injury to Servant — Proximate Cause. In an action by a brakeman for injuries by being run over by an engine after falling from the pilot of the engine, evidence held not to warrant a finding that the defect in the braking appliances on the engine was the proximate cause of the injury. (Page 590.)</p> <p>5. Master and Servant — Injuries to Servant — Contributory Negligence. Where a brakeman violated a riile of the master in going upon the pilot of the engine with which he was working, he cannot recover for injuries resulting from his falling from the pilot and being run over by the engine, unless the injury could have been avoided after his peril was discovered. (Page 591.)</p> <p>6. Master and Servant — Injuries to Servant — Contributory Negligence. Where plaintiff, a brakeman, without any necessity therefor, rode on the pilot of the engine with which he was working, he was guilty of negligence and could not recover for injuries resulting from his falling from the pilot and being run over by the engine. (Page 592.)</p> <p>7. Master and Servant — Injuries to Servant — Contributory Negligence. Where a brakeman, without necessity therefor, rides on the pilot of the engine with which he is working, and such act is not only negligence, but is in violation of a rule of his employer, the employer owes him no higher duty than he owes to a trespasser. (Page 593.)</p> <p>8. Master and Servant — Injuries to Servant — Appliances—Duty oe Master. The master’s duty in respect to appliances for his servants is satisfied, where he provides appliances that are suitable and in such condition that his servants can, with reasonable safety to themselves, perform the duties required of them. (Page 593.)</p> <p>9. Master and Servant — Duty to Servant — Injury to Servant. The master must exercise due care to prevent injury to an offending servant after his perilous position is discovered, but he cannot be held negligent because he has not prepared to obviate every injury that may result from extraordinary emergency, brought about by the violation of the master’s rules. (Page 594.)</p> <p>STRAUP, X, concurring in result.</p>