Volume 39 — Utah Reports

Mandamus by tbe People on tbe relation of Joseph Burt,, against tbe District Court of tbe First Judicial District in and for tbe County of Box Elder, and W. W. Maugban,, judge thereof, and others. Peremptory writ issued against respondent to compel tbe district judge to reinstate and try a certain action dismissed by bim on an appeal from the Justice Court of Box Elder Precinct in Box Elder County, to show cause why he refused to do so.

J. A. Howell, Judge. Action by Maud Boroughs against Drank Peterson and another. Judgment for plaintiff. Defendant appeals. APPELLANTS* POINTS. A jury should not be permitted to determine a case upon its own opinion as to the justice between the parties, without even attempting to follow the evidence or the instructions of the court. (2 Thompson on Trials, sec. 2606, page 1971, and cases cited; Brewery Go. v. Bodeman, 12 Mo.

<p>1. Waters and Water Courses' — Water Supply — Unappropriated Water — Findings. Evidence held, to authorize a finding that a certain lake contained an amount of unappropriated water at the time defendants made and filed their application to appropriate water therefrom in excess of the quantity applied for by them, and that in drawing such quantity defendants would not interfere necessarily with plaintiffs’ rights as prior app.ro-priators. (Page 40.)</p> <p>2. Waters and Water Courses — Appropriation—Amount. Under Comp. Laws 1907, section 1288x20, providing that beneficial use shall be the basis, the measure, and the limit of all rights to the use of water in the state, the rights of prior appropriators of the water of a lake as against subsequent applicants to appropriate water therefrom depends, not on how much the prior appropriators required, but on the amount they have applied to an original and beneficial purpose within a reasonable time after making their appropriation and prior to the time defendants applied for an appropriation. (Page 40.)</p> <p>3. Waters and Wate® Courses — Unappropriated Water — Right to Use. Where a lake contained unappropriated water more than sufficient to supply an appropriation applied for by defendants in addition to the water applied to a beneficial use by prior appropriators, defendants were entitled to the granting of their appropriation, though the withdrawal of the water ^they required might necessitate a change in the methods or means used by the prior appropriators to withdraw the water to which they were entitled so as to permit the use of the surplus and unappropriated water by defendants. (Page 41.)</p> <p>4. Waters and Water Courses — Subsequent Appropriation — Expense. Where the withdrawal of unappropriated water from a lake by subsequent appropriators required a change of methods or means by which prior appropriators were enabled to withdraw their water from a lake, and this entailed additional expense, such additional expense should be borne by the subsequent appropriators as a condition to their right to appropriate the unappropriated water. (Page 48.)</p> <p>Straup, J., dissenting.</p>

Geo. G. Armstrong, Judge, Action by F. W. Little and another, copartners, doing business under the firm name of Little & Little, against Mary A. Gorman and another. Judgment for plaintiffs against defendant Patrick W. Gor-man. He appeals.

Geo. G. Armstrong, Judge. Action by Mike D. Gilbourne against the Oregon Short Line Railroád Company. Judgment for plaintiff. Defendant appeals. STATEMENT OE PACTS. This is an action for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant.

<p>Appeal from District Court, Third District; Hon. T. D. Lewis, Judge.</p> <p>Application for Writ of Prohibition by James Campbell and others against C. F. Durand.</p> <p>.Judgment for plaintiffs. Defendant appeals.</p>

<p>1. Carriers — Live Fish — Care—Duty of Carrier. In a suit against an express company for death, of young trout in transit, it was error to assume as a matter of law that the fish were afflicted with such latent infirmity as to require the shipper to notify the company what to do in caring for them in transit; the necessity for such notice being properly found upon, evidence as a question of fact. (Page 136.)</p> <p>2. Carriers — Actions — Negative Findings — Want oe Evidence. The rule that a negative finding may be made where there is no evidence to sustain an affirmative issue applies where the burden of proof is upon the party against whom the finding is made, but did not apply to a question whether a carrier of live fish negligently cared for them; the burden to show care being on it. (Page 137.)</p> <p>3. Carriers — Live Fish — -Care in Transportation — Burden oe Proof. The burden was on an express company sued for death of young trout to show why it did not deliver the shipment in as good condition as that in which it was received, in the-absence of a special contract limiting the company’s duty. (Page 138.) .</p> <p>4. Carriers — Live Fish — Care in Transit. That an express company’s employee used due care and diligence according to his best knowledge does not excuse liability for death of part of the fish; the company’s duty being fixed by law, and not measurable by the employee’s knowledge. (Page 138.)</p> <p>5. Carriers — Live Fish — Care in Transit. A finding that an ex press company was not negligent in “transporting” live fish does not show that care was used in handling the shipment. (Page 139.)</p>

<p>1. Forgery — Indictment—Variance—Names. Under Comp. Laws 1907, section 4738, making erroneous allegation as to name of a person injured immaterial wliere an offense is definitely identified, in a forgery trial there was no fatal variance between allegation that tbe bank defrauded was “tbe Commercial National Bank” and proof that tbe bank’s corporate name was “Commercial National Bank of Salt Lake City.” (Page 141.)</p> <p>2. Criminal Law — Instructions—Accused’s Good Character. Accused is entitled to an instruction to consider all tbe evidence, including evidence of good character, and to acquit if tbe evidence of good character, alone or with tbe other evidence, creates a reasonable doubt as to accused’s guilt. (Page 160.)</p> <p>3. Criminal Law — Instructions—Accused's Good Character. Instructions that, no matter bow conclusively tbe other evidence considered by itself might point to guilt, proof of good character might create a reasonable doubt, where doubt would not otherwise exist, and might lead the jury to believe, in view of the probabilities, that one of such good character would not be guilty and tbe other evidence was not true, or that tbe witnesses in solne way might be mistaken; that good character is an important fact with every man, and never more so than when be is on trial for an offense rendered improbable by a uniform course of life, etc., were properly refused as being argumentative and otherwise improper.1 (Page 161.)</p>

J. A. Howell, Judge. Hoken Olsen was convicted in tbe municipal court of an unlawful sale of spirituous liquor and be appealed to tbe district court. From a conviction in tbe district court, be appeals.

<p>1. CORPORATIONS — STOCKHOLDERS—RIGHT TO INSPECT BOOKS. At common law a stockholder is entitled to inspect the corporate books and records at all seasonable times and for proper purposes, biit-not for a purpose injurious to the corporation. (Page 184.)</p> <p>2. Mandamus — Subjects or RELiE]&wkey;CoRPORATE Relations. Mandamus lies to enforce a stockholder’s right to inspect corporate books and records. (Page 184.)</p> <p>3. Corporations — Stockholders—Right to Inspect Books. The right of a T>ona fide stockholder under Comp. Laws 1907, section 329, and under section 4415 to inspect corporate books, etc., exists regardless of his purpose in inspecting.1 (Page 185.)</p>

<p>1. Principal and Agent — Unauthorized Declaration by Agent— Effect on Principal. A declaration made by an agent not relating to any business then being transacted for the principal and not within the scope of agency, generally, does not bind the principal. (Page 201.)</p> <p>2. Evidence — Admission by Agent — Authority—Sufficiency. Evidence held to show that a railroad division superintendent’s act in giving an employee a service letter showing the cause of his discharge was within the superintendent’s authority, making the letter admissible against the company in an action based on the discharged employee’s negligence. (Page 202.)</p> <p>3. Negligence — Comparative Negligence — Inapplicability. The doctrine of comparative negligence does not prevail in Utah. ' (Page 203.)</p> <p>4. Trial — Instructions—Requests. Requested instructions covered by the charge as given are properly refused. (Page 204.)</p>

<p>1. Homicide — Instructions—“Murder.” Comp. Laws 1907, sec. 4159, defines murder as “tile unlawful killing of a human being with, malice aforethought.” Section 4161 makes a killing committed in an attempt to perpetrate robbery, murder in "the first degree. An information for murder alleged that accused “unlawfully, willfully, feloniously, deliberately, premeditatedly, and of his malice aforethought, and with the specific intent to take the life” of a person named, shot and killed him. The undisputed evidence at the trial showed that the murder was committed during an attempt to perpetrate a robbery, and the evidence of accused was to the effect that the killing was due to an unintentional discharge of his pistol. The state adduced evidence that the killing was willful and intentional, and occurred during the attempt to perpetrate a robbery. Held, that it was not error for the court to instruct that though the killing was done in perpetrating, or in an attempt to perpetrate a robbery, and though the information contained no allegations of the killing under such circumstance, nevertheless, the accused could, under the allegations contained in the information, he convicted of first degree murder. (Page 214.)</p> <p>2. Homicide — Instructions. Under a statute providing that one guilty of murder in the first degree shall suffer death or upon the recommendation of the jury may he imprisoned for life, . in the discretion of the court, and that if no recommendation is made, the court must pronounce the death sentence, it is error to instruct that the jury have the discretion to make or withhold the recommendation without any intimation or direction from the court as to what should control them in reaching a conclusion on the matter. Hence a charge which directs the jury to consider such question the same as any other question submitted to them, and which admonishes them that the object of the law is to punish the offender and to deter others from committing similar violations, and which directs them to consider such objects together with all the facts and circumstances in evidence in reaching a conclusion, is error because of the court’s undertaking to direct them as to what should control or influence the jury in reaching a conclusion. (Page 218.)</p> <p>3. Witnesses — Impeachment oe Memory — Irrelevant Matters. In a prosecution for murder, accused testified that he was not familiar with the action of the gun with which the murder was committed, and that its discharge was unintentional. Held, that it was proper to ask him on cross-examination where he got the gun, to show that he had possession of the gun longer than as testified to by him; but the question, “Under what circumstances did you get the gun?” being irrelevant, to the issue and not a proper test of the memory of the witness or of his credibility or the weight of his testimony unless the question sought to incriminate accused, and it was error, on his refusing to answer under claim and allowance of privilege, to further question him with reference to any crime which he committed in obtaining the gun, and compel him to state that an answer to.the question would incriminate him in the commission of another crime. (Page 221.)</p> <p>4. Witnesses — Cross-Examination oe Accused. Though accused, on becoming a witness, may he cross-examined as other witnesses, and may be asked questions irrelevant and collateral to the issue to test his memory or his credibility and the weight of testimony, when the question relates to incriminating acts or calls for evidence of an incriminating character, separate and distinct from those on trial testified to by him, he may claim his privilege and decline to answer, and the court must determine whether the evidence called for may tend to incriminate the witness. (Page 224.)</p> <p>5. Witnesses — Privilege. While a witness, in order to test his credibility, may be asked if he has not been convicted of a crime, the question whether he has committed a crime is privileged, and he may decline to answer. (Page 226.)</p> <p>6. Witnesses — Impeachment—Accused in Criminal Prosecution. To affect his credibility, accused, testifying as a witness, may not properly be asked questions as to specific acts of a wrongful or incriminating character not amounting to commission of a crime and which are distinct from those on trial and not voluntarily testified to by the witness. (Page 226.)</p> <p>7. Homicide — Appeal and Error — Harmless Error. In a prosecution for murder accused admitted the killing, hut alleged that it was accidentally committed while perpetrating a burglary, the object of accused being to obtain a recommendation from the jury to be sentenced to life imprisonment. On his cross-examination he declined to answer as to circumstances under which he got the gun with which the killing was committed, on the ground of privilege. Held, that it was prejudicial error after the claim of allowance of privilege to allow the prosecuting attorney to further inquire into his reasons for declining to answer and to compel him to state that if he did anbwer his answer would incriminate him in the commission of another crime; the answers thus elicited having a tendency to prejudice accused with the jury, and thus prevent them from recommending that he be sentenced to imprisonment for life. (Page 227.)</p> <p>8. Criminal Law — Misconduct oe Juror — Harmless Error. While the jury in a murder case were at lunch at a hotel in charge of two officers, after the case had been finally submitted to them, one of the jurors and one of the officers went into another part of'the building where the juror talked'to some one over the telephone. Held, that as the conduct was in violation of the court’s directions and was misconduct, it was not necessary for accused to show the nature of the communication or to show that he was prejudiced thereby, as prejudice will be presumed, and the burden is on the state to show what the communication was and that it was harmless. (Page 229.)</p> <p>9. Witnesses — Cross-Examination of Accused. In a prosecution for murder, accused testified that the murder was the result of an accidental shooting while he and others were committing a robbery, ■ and that the pistol with which he was armed and which he pointed at deceased was accidentally fired. Held, that it was proper cross-examination to require accused to take the gun and show how he used it on the occasion in question, but as his sole purpose in defending the suit was to seéure a recommendation from the jury to make his sentence life imprisonment instead of execution, compelling accused to put on a pair of overalls, a hat and a handkerchief used as a mask on the night of the homicide, not to illustrate or explain any material or disputed fact, hut solely to show the accused’s appearance as a highwayman before the jury and to show them how he looked and appeared on the night of the homicide was error. (Page 233.)</p>

<p>Appeal and Error — Judgment on Remand — Conformity. Where the Supreme Court remanded a cause, with directions to enter judgment awarding plaintiff railroad title to a right of way, a decree adjudging that plaintiff was the owner of a right of way (describing it), etc., conformed to the mandate, though it did not adjudge plaintiff to be the owner “in fee simple” of the right of way described. (Page 237.)</p>

<p>1. Larceny — Evidence—Sueeiciency. Evidence held, insufficient to sustain a conviction of grand larceny. (Page 239.)</p> <p>2. Criminal Law — Evidence—Demonstrative Evidence. In a prosecution for the larceny of wheat, samples of wheat received by a witness for the state from the sons of the prosecuting witness, as taken from the granary and shed where the larceny was committed, was incompetent as evidence, in the absence of evidence that the sample was.in fact taken from the wheat stored on the premises of the prosecuting witness. (Page 244.)</p>

<p>1. Street Railroadsi — Regulation's—Construction of Municipal Obdinance. An automobilist injured by violation of an ordinance making it unlawful to run any street car without having in charge a motorman and conductor, provided that cars may he run with only one man stationed at the front end of such car when it is in motion, could rely thereon as an act of negligence. (Page 248.)</p> <p>2. Street Railroads — Injuries1—Jury Question — Negligence. In an action against a street car company for injury to an automobile by a collision, whether defendant was negligent held a jury question. (Page 248.)</p> <p>3. Negligence — “Contributory Negligence.” A plaintiff who fails to do what the law requires, or what one of prudence would ordinarily do under the same or similar circumstances, is negligent, barring recovery. (Page 249.)</p> <p>'4. Street Railroads — Injuries — Jury Question' — Contributory Negligence. The requirement that a traveler look and listen for approaching cars before attempting to cross the track does not apply to a street railroad to the same extent as in crossing a steam railroad; the question of contributory negligence in the former case being generally left to the jury, while in the latter it is usually held a matter of law. (Page 250.) '</p> <p>5. Negligence — Contributory Negligence — Question for Court. When the conduct is such that reasonable minds may not differ as to what a prudent person would ordinarily have done under the circumstances, the question of contributory negligence is for the court. (Page 250.)</p> <p>6. Street Railroads1 — Injuries—Contributory Negligence. While plaintiff looked toward the track upon approaching a street car track in her automobile, she testified that she only saw a black object on'the track, which was in fact an electric engine some fifty or sixty feet away, though there were also several flat cars in front of the engine, and she was unable to tell what the object was and whether it was standing or moving, and that she did not see the flat cars until they were about two feet from the automobile. Held, that plaintiff was negligent, preventing recovery for injuries to the automobile by collision. (Page 251.)'</p>

<p>Appeal from District Court, Fourth District; Hon. J. ■E. Booth, Judge.</p> <p>Action by the Town of Mapleton and others against T. E. Kelly.</p> <p>Judgment for plaintiffs, entered on the pleadings. Defendant appeals.</p>

<p>1. Negligence — Proximate Cause. Where pláintiff who was delivering a parcel tó an occupant of defendant’s apartment building became frightened at a horse standing in the rear of the building, and in endeavoring to avoid the horse was injured by falling into an open cellarway, defendant was not liable, as the unguarded cellarway was not the proximate cause. (Page 257.)</p> <p>2. Negligence — Question for Juey. The question of proximate cause is one of law only where but one deduction can be drawn from the evidence. (Page 259.)</p>

T. D. Lewis, Judge. H. F. Robinson was convicted of violating an ordinance of Salt Lake City prohibiting the sale of intoxicating liquor after twelve o’clock at night, and he appeals.

<p>1. Libel and Slander — Question foe Juey. In an action for libel, evidence held to render the question of justification one for the jury. (Page 279.)</p> <p>2. Libel and Slandeb — Bubden oe Peooe. Where a communication was qualifiedly privileged, the burden of proving express malice was on plaintiff. (Page 280.)</p> <p>3. Libel and SlandeR — Pbivilege. Where plaintiff in libel had been an employee of defendant and of another, and was engaged with both in separate lawsuits in which his conduct and dealings with them were involved, communications by defendant to the other were privileged if made in good faith and without malice. (Page 280.)</p> <p>4. Appeal and Ebroe — Review. Rulings on questions to witnesses are not reviewable unless proper objections were made at the time. (Page 280.)</p>

<p>Appeal from District Court, Second District; Hon. J. A. Howell, Judge.</p> <p>Action by Martin H. Peck against Barlow B. Wilson, Sheriff of Weber County.</p> <p>Judgment for plaintiff. Defendant apppeals.</p>

<p>1. Tbial — Findings op Tbial Court — Sufficiency. A finding of fact, in a suit involving the ownership and use of the waters of springs, that plaintiff has no right, title, or interest in or to the waters is a mere conclusion, and is insufficient.1 (Page 287.)</p> <p>2. Trial — Findings—Uncertainty. A finding that the allegations of the complaint of plaintiff contrary to the findings are untrue is objectionable as too general and uncertain. (Page 287.)</p> <p>3. Appeal and Ebrok — Harmless Error — Findings. Where issues are not expressly found, but are necessarily negatived by specific findings, or where it clearly appears from the specific findings that issues not found would necessarily be adverse to the defeated party, had findings thereon been made, a failure to find on such issues is not reversible error, provided the findings made support the judgment. (Page 288.)</p> <p>4. Waters and Watercourses — Springs—Issues—Findings. Where in a suit involving the ownership and the use of the waters of springs, plaintiff showed an appropriation of the waters in 1895, by the construction of ditches, by means of which he diverted the waters and made a beneficial use of them until interfered with by defendant, and defendant showed that in 1904 he constructed a ditch and thereby diverted and used all the waters of the springs for beneficial purposes, hut did not show that the waters were then unappropriated, the findings that defendant, in 1904', constructed a ditch from his land to the springs, which were then unappropriated waters, and appropriated and diverted all the waters to his land for irrigation and domestic purposes, and- that plaintiff had no right to the waters, or any part thereof, and that the allegations of his coihplaint contrary to the findings were untrue, were not in conflict with plaintiff’s claim, especially since they did not necessarily negative a prior appropriation of the waters by plaintiff, and did not sustain judgment for defendant. (Page 288.)</p> <p>5. Trial — Findings—Requisites. 'The court, in a suit in equity, should, make specific findings of fact which respond to and dispose of the material issues. (Page 290.)</p> <p>6. Appeal and Ebbob — Appeal in Equity Suit — Findings. Where the trial court in an equity suit failed to make specific findings which responded to and disposed of the material issues,, the court on appeal could either reverse the judgment and remand the case, or determine the facts and direct the entry of judgment accordingly. (Page 290.)</p> <p>On Application por Rehearing.</p> <p>7. Appeal and Ebbob — Appeal in Equity Suit — Findings. Where, in a suit in equity, the specific findings did not respond to and dispose of the material issues, and the matters involved might not have been fully litigated by the parties because of erroneous rulings of the trial court, the court on appeal will not itself determine the facts and direct the entry of a proper judgment, but will reverse the judgment and remand the case, with directions to grant a new trial. (Page 291.)</p>

<p>1. Appeal and Error — Proceedings for Transfer of Cause — Time for Taking Proceedings. Under Comp. Laws 1907, sec. 3301, providing that an appeal may he taken within six months from the entry of judgment or order appealed from, and section 3329, providing that the time for taking an appeal may not he extended, a judgment becomes final for the purpose of an appeal on the overruling of a motion for a new trial.1 (Page 292.)</p> <p>2. Appeal and Error — Proceedings for Transfer of Cause. — Time for Taking Proceedings. The rule prescribed by Comp. Laws 1907, secs. 3286, 3294, that, where a case is tried to the court without a jury, the time for preparing and serving a bill of exceptions and for service and filing a notice of motion for new trial begins to run only from the ‘time of the service of notice of the decision does not apply by analogy to the six-month period prescribed by section 3301, within'which to take an appeal, even where a notice of the overruling of a motion for a new trial, not required by statute, was actually served subsequent to the’date of the overruling of the motion. (Page 293.)</p>

<p>Appeal from District Court, Third District. Hon. M. L. Ritchie, Judge.</p> <p>Action by H. F. Rugg against D‘. H. Tolman, doing business as Union Credit & Investment Company.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

<p>1. Animats — Ownership op Stock — Evidence. A steep tirand recorded under Comp. Laws 1907, section 39, is not prima facie evidence of ownership in the person procuring the record, on an issue of ownership. (Page 308.)</p> <p>2. Trial — Invading Province op Jury — Weight op Evidence. While the legislature may, within certain limits, declare what prima facie shall be sufficient to establish a given fact, the courts, in the absence of statute, cannot, as a matter of law, declare what effect shall be given any particular act or circumstance where the evidence is conflicting. (Page 312.)</p> <p>3. Trial — Instructions—Weight oe Evidence. The court, in submitting a case in which the effect of marks or brands of animals is involved, should not single out any particular mark or brand and tell the jury what its effect as evidence is, but should submit to them all the marks and brands, whether recorded or not, to be considered in connection with all the other evidence of ownership and of identification, to be given such weight as in their judgment they deem them entitled to. (Page 314.)</p>

ill. L. Ritchie, Judge. Proceedings by Frank Armoura, alias Frank Arima, to quash an execution issued against him on a judgment recovered against him by C. V. Finnell and another, as Finnell & Hutchins. Judgment quashing the execution. Judgment creditors appeal.

J. A. Howell, Judge. Action by California Pine Box and Lumber Company against tbe Wasatch Orchard Company. Prom a judgment granting partial relief, plaintiff appeals, and defendant appeals and presents cross-assignments.

T. D, Lewis, Judge. Matt Mattivi was convicted of having carnal knowledge of a female under the age of eighteen years, and appeals.

<p>1. PARTNERSHIP-DISSOLUTION-NOTICE — FAILURE TO GIVE, Where the public was not given notice in any way of the dissolution of a firm, though the remaining partner was directed to give such notice, the partnership relation continued to exist as to third persons dealing with the firm. (Page 353.)</p> <p>2. Partnership — Liabilities as to Third Persons — Managing Partner. A contract by the managing partner witbin the scope of the partnership business bound the other partner, though he had no actual knowledge thereof. (Page 353.)</p> <p>3. Specific Performance — Actions—Sufficiency of Evidence— Approval of Contract. In an action for specific performance of an agreement to convey land on another’s approval of the contract, evidence held to show that such other approved the contract by another contract made by himself and wife. (Page 353.)</p> <p>4. Appeal and Error. ■ A part of a judgment of which none of the parties complained will not be disturbed on appeal. (Page 354.)</p>

<p>1. Animals — Action's—Title to Support — “Occupant.” Under Comp. Laws 1907, section 20, providing that if any cattle shall trespass or do damage upon the. premises of another,, the aggrieved party, whether he be the owner or occupant, may re cover against the owner of the cattle, plaintiff, who purchased lucerne seed from the owner of land and left it in an inclosed field to dry, was an “occupant” within the purview of the statute, and might support an action against the owner of cattle which trespassed upon the field, and ate and ruined the seed, without pleading or proving negligence; the statute apparently warranting a recovery for injury to personalty, as well as to real estate. (Page 355.)</p> <p>2. Trespass — Actions — Subject Matter. Personal property may he the subject of a trespass. (Page 357.)</p>

T. D. Lewis, Judge. Action by Hewlett Brothers against E. J. Mallett and another. Judgment setting aside a judgment against a garnishee and releasing the garnishment. Plaintiff appeals. APPELLANT'S POINTS.

George G. Armstrong, Judge. Action by Mary Fowler against tbe Union Portland Cement Company. Judgment for plaintiff. Defendant appeals. APPELLANT'S POINTS. . Proof of defect in an appliance in itself does not give a right of recovery. It must appear affirmatively that the defect alleged was the proximate cause of the- accident, and that the master w.as chargeable with knowledge of it. (.Moriariy v. 8chwarzschild, 133 Mo. App.

<p>Appeal from District Court, Second District; Hon. J. A. Howell, Judge.</p> <p>Action by Anna Stewart against tbe Oregon Short Line Railroad Company.</p> <p>Judgment for defendant. Plaintiff appeals.</p>

<p>1. Trover and Conversion — Actions—Instructions. In an action against a real estate agent for the conversion of plaintiff’s household goods, which were placed in a building by the authority of the agent, the case was not tried on the theory that a receipt given by the agent to the plaintiff for payment of rent operated as a lease, but the evidence tended to show that defendant entered with the agent’s permission. Held, that the refusal of the court to instruct that the receipt did not constitute a lease was not error. (Page 379.)</p> <p>2. Appeal and Error — Error Waived in Appellate Court. Appellant’s exception to the refusal of a requested instruction will be deemed waived in the appellate court, where his brief does not mention that assignment of error. (Page 381.)</p> <p>STRAUP, J., Dissenting.</p>

<p>1. Covenants — Defenses. Tbe grantor in an action for breach of a covenant of warranty against incumbrances by tbe existence of taxes on tbe land conveyed cannot complain that tbe assessor segregated tbe part of tbe land purchased from tbe part retained by it where such action was- taken at tbe grantor’s suggestion. (Page 397.)</p> <p>2. Covenants — Covenants Against Incumbrances — Beeaoh— Taxes. In view of tbe statutes providing, in effect, that a lien for taxes attaches as of tbe second Monday in January of each year, a tax lien was an incumbrance within a covenant against incumbrances upon realty purchased after that date; and a contention that there was no breach of covenant until tbe tax became delinquent and tbe property was sold was untenable. (Page 398.)</p> <p>3. Covenants — Covenants Against Incumbrances — Breach—Time. Tbe grantee, to protect tbe warranted title, could pay an outstanding tax .against tbe conveyed land after tbe grantor bad refused to pay it, and was not bound to wait until tbe property bad been sold for delinquency in order to sue for breach of covenant against incumbrances. (Page 398.)</p> <p>’ 4. Covenants — Actions — Damages — Covenants Against Incum brances — Attorney’s Pees. As a rule, in an action for breach of covenants against incumbrances, where plaintiff has extinguished tbe incumbrance, be may recover a reasonable price necessarily paid for that purpose with interest if this does not exceed tbe amount paid tbe covenantor or tbe value of tbe property, but cannot recover an attorney’s fee incurred in an action against tbe grantor for tbe breach. (Page 399.)</p>

<p>Appeal from District Court, Second District; Hon. J. A. Howell, Judge.</p> <p>Action by Andrew Bingham against the San Pedro-, Los Angeles and Salt Lake Railroad Company.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal form District Court, Third District; Son. George G. Armstrong, Judge.</p> <p>Action by Lorenzo Rowbottom against the Union Pacific Coal Company.</p> <p>Judgment for defendant. Plaintiff appeals.</p>

Appeal .from. District Court, Third District; Hon. M. L. Ritchie, Judge. Action, by Jane James against J. E. Robinson. Jndgment for plaintiff. Defendant appeals. APPELLANT^ POINTS. “In order that a decision of fact may be exempt from disturbance for not being’ supported, on tbe ground tbat thei’e is evidence on both sides, there must be substantial evidence on both sides — in other words, there must be a substantial conflict.

<p>1. Appeal and Error — Presumptions. Tbe Supreme Court must assume that tbe jury followed the instructions, unless the verdict and record show the contrary. (Page 442.)</p> <p>2. MASTER AND SERVANT-INJURIES-ACTIONS' — 'SuPPICIENCY OP EVIDENCE. In an employee’s action for personal injuries by having his arm caught in a wheel after he had become dizzy from the fumes of gasoline used in dry cleaning, evidence held to sustain a finding that the foreman Knew of the dangers incident to gasoline fumes as" used by defendant. (Page 442.)</p> <p>3. Master and Servant — Similar Facts. In an employee’s action for personal injuries by having his arm caught in a revolving wheel, after he had become dizzy from gasoline fumes, and had fallen against it, in which the answer denied knowledge of the effect of gasoline fumes, and that it had the effect claimed by plaintiff, evidence was admissible as to the effect of gasoline fumes upon witnesses. (Page 442.) •</p> <p>4. Evidence — Opinion Evidence — Nonexpert Testimony. Nonex-perts who had witnessed the effect of gasoline fumes on persons working in a room could testify that its effect in the instances they had seen was to cause dizziness. (Page 443.)</p> <p>5. Evidence — Presumptions—Unipormity op Natural Phenomena. It is presumed that individuals of both sexes are normal as to natural functions of the body or organs until the contrary appears; so that, if gasoline fumes are shown to cause dizziness to a number of persons coming in contact therewith under certain conditions, it may be presumed, in absence of contrary evidence, that,all persons, irrespective of some difference in age, will be similarly affected under similar circumstances. (Page 444.)</p> <p>6. Appeal and Error — Verdict—Conclusiveness. If there is . any substantial evidence to support every fact essential to a recovery, the Supreme Court cannot interfere with the verdict. (Page 446.)</p> <p>7. Appeal and Error — Findings—Conclusiveness—Weight op Evidence. The Supreme Court cannot determine what, if any, weight should be given to the evidence of a particular witness. (Page 447.)</p>

<p>MORTGAGES-EXECUTION-FRAUD-DURESS-EVIDENCE. In a SUÍt to foreclose a mortgage, evidence held, to warrant a finding that defendant had not been induced by fraud or duress to execute the same.</p>

<p>1. Appeal and Error — Scope op Assignment op Error — Pleading— Dismissal. Where defendant has obtained a ruling sustaining objections to any evidence on the ground that the' complaint did not state facts sufficient to constitute a cause of action, and the complaint was dismissed, the sufficiency of the complaint is the only question before this court on appeal; and hence the allegations of the answer are not available to defendant for any purpose. (Page 466.)</p> <p>2. Pleading — Construction — Objection Raised at Trial. ‘As against defendant’s objection to the introduction of any evidence on the ground that the complaint did not state a cause of action, the allegations of the complaint are to be deemed true. (Page 467.)</p> <p>3. Counties — County Boards — Statutory Provisions. Comp. Laws 1907, secs. 527, 529, relating to the advertising for bids for books and stationery for a county’s use, and for the publication of county reports, notices, and advertisements, sec. 511, subd. 7, requiring the county auditor to examine claims for such publication, and sec. 2620, requiring the county treasurer, under the direction of the board, to publish a list of delinquent taxes, are mandatory provisions and should be at least substantially followed. (Page 467.)</p> <p>4. Evidence — Presumptions—Official Acts. In an action against a board of county commissioners and their bondsmen to enforce a personal liability for allowing a claim against the county, and ordering it paid, where there is no charge of fraud or collusion, the presumption is that the board, in allowing the claim, acted in good faith. (Page 467.)</p> <p>5. Officers — Liability, for Official Acts — Error or Mistake. Quasi judicial officers cannot be held personally liable for errors or mistakes, while honestly exercising, within their jurisdiction, the judicial functions of their offices, however erroneous their judgment may be. (Page 468.)</p> <p>6. Counties — County Boards — Official Bonds — -Liability—Statutory Provisions. Comp. Laws 1907, sec. 506, provides that when any board of county commissioners shall, without authority of law, order any money paid, and such money shall have been actually paid, the county attorney shall sue such commissioners and their bondsmen to recover the money so paid. Sections 527, 529, provide that the board shall advertise for bids for books and stationery, and for the publication of county notices and advertisements, and shall award the contract to the lowest competent bidder, or may reject all bids and readvertise. Section 511, subd. 7, provides that the board shall settle and allow all claims against the county after examination by the auditor; and section 2620 requires the county treasurer, under direction of the board, to publish an annual list of delinquent taxes. The complaint, in an action under section 506, alleged that the board, without authority of law, allowed and ordered payment of. a claim for the publication of the list of delinquent taxes, without having first invited bids for such publication or awarded a contract therefor, but there was no charge of corruption, fraud, or bad faith in allowing the claim. Held, that the hearing and determination by the board of the validity of the claim required the exercise of judicial or quasi judicial functions, and that, as the claim was allowed for a purpose authorized by law, though made erroneously and in an irregular manner, the members of the board were not personally liable for the amount of the claim. (Page 468.)</p>

<p>1. Caeeiers' — Carriers of Live Stock — Duty as to Food, Water, and Rest — Statutory Provisions. Under 34 Stat. 607 (U. S. Comp. St. Supp. 1909, p. 1178), which provides that every railroad company carrying an interstate shipment of live stock shall, at intervals of not less than twenty-eight hours, unload it into properly equipped pens for rest, water, and feeding, for a period of at least five consecutive hours, unless prevented by storm or other accident or unavoidable cause which cannot be averted by due diligence, the carrier is not made an absolute insurer of the safety of sheep in transit, but its duty is fully performed by providing pens properly equipped, unless it has notice, or by reasonable diligence could bave discovered, that tbe surrounding conditions were such that injury to the sheep, while in the pens, from dogs or wild animals, might be expected, in which case it would be bound to make reasonable provision for their safety. (Page .478.)</p> <p>2. Cabbiebs — Cabbiebs of Live Stock — Actiojst—Bubden of Pboof. In an action for injury to an interstate shipment of sheep while in pens for rest, water, and feeding, by dogs or wild animals, which broke into the pens and killed and worried the sheep, held, that the shipper had not sustained the burden of proving that the carrier, in providing the pens for such purposes, as required by 34 Stat. 607 (IT. S. Comp. St. Supp. 1909, p. 1178), was negligent in not protecting the sheep from such injury. (Page 481.)</p>

<p>1. ATTORNEY AND CLIENT — EMINENT DOMAIN-COUNTY CHARGES-EX-TENSES in Judicial Proceedings — Attorney Fees. Neither Const., art. 1, see. 12, providing that every accused shall have the right to appear and defend in person and by counsel, nor section 22, providing that private property shall not be taken or damaged for public use without just compensation, would make a county liable for the services of an attorney appointed by the court to defend an indigent accused. (Page 486.)</p> <p>2. Constitutional Law. Const., art. 1, sec. 7, providing that no person shall be deprived of his property without due process of law, would not apply to make a county liable for the services of an attorney appointed by the court to defend an indigent accused. (Page 486.)</p> <p>3. Attorney and Client — Charges Against County — Expenses in Judicial Proceedings — Attorney’s Fees — Deeense oe Indigent Accused — “Support”—“Costs.” Comp. Laws 1907, sec. 538, subd. 3, makes the necessary expenses incurred in the support of persons charged with or convicted of crime and committed to the county jail charges against the county. Section 4806 provides that the cost of trial shall be paid by the county wherein the offense was committed, and section 539 provides that costs accruing before removal shall be charged against the county which the prosecution originated. Held, that the statutes did not raise an implied liability by a county to pay for services of an attorney appointed by the district court to defend an indigent accused, the term “support” used in section 538 not including such charges, and the word “costs” as used in the other sections not including attorney’s fees in a criminal case. (Page 487.)</p> <p>4. Morey Received — Right of Action. As a rule, where a person or corporation obtains another’s money or property under circumstances making it unjust to retain it, or where a public corporation incurs an obligation authorized by statute, but contrary to the form thereof, the law implies a promise to pay such money so as to authorize an action for its recovery. (Page 488.)</p> <p>5. Municipal Corporations — Contbacts—Poweb. Where a municipal corporation is not given power to contract upon a particular subject, or the statute provides a specific manner of contracting, there is no implied power in the corporation to contract except as expressly authorized. (Page 488.)</p> <p>6. Criminal Law — Trial—Right to Attorney — Indigent Accused— Constitutional Law. Const., art. 8, sec. 10, providing for the election of county attorneys, and that, where a county attorney fails to prosecute according to law, the court may appoint an attorney for the time being, does not authorize the court to appoint an attorney to defend an indigent accused. (Page 488.)</p> <p>7. Attorney and Client — Defending Indigent Accused — Compensation. Comp. Laws 1907, sec. 489, provides that the powers of a county can be exercised only by the board of county commissioners or agents acting under its authority or authority of law, and the statute also provides that the board shall control and direct the prosecution and defense of all suits to which the county is a party, and shall emplpy counsel to assist the county attorney in' conducting such suits when necessary. Held, that a county, through the board of county commissioners, only had power to employ counsel to prosecute or defend actions to which the county was a party, and was not a party to a criminal case so as to make it liable for services of an attorney appointed by the district court to defend an indigent accused pursuant to section 4767, which merely authorizes the court to assign counsel to defend an accused who desires, but is unable, to employ counsel. (Page 489.)</p> <p>8. Attorney and Client — Compensation—Appointment by Court —Defending Indigent Prisoner. An attorney appointed by the court to defend an indigent accused pursuant to Comp. Laws 1907, sec. 4767, is not entitled to recover compensation for his services from the county. (Page 491.)</p> <p>9. Counties — Public Debts — Limitation of Amount. Comp. Laws 1907, sec. 492, taken from Const., art. 14, sec. 3, provides that no county shall incur -any liability for any purpose exceeding in any one year the taxes for the current year without the assent of a majority of the electors, and that a liability incurred contrary to such provisions shall be void. Section 493 provides that all contracts and liabilities to pay made in violation of the title shall be absolutely void,' and no basis for a claim against the county treasury. Held that, in the absence of a showing that the county taxes for the year 1910 were sufficient to pay a claim against a county for legal services defending an indigent accused in that year, no recovery therefor could be had, even if it were otherwise recoverable. (Page 495.)</p>

<p>Laeceny — Owneeship op Propeety — 'Felonious Taking — Evidence. Evidence on prosecution for larceny of a cow held insufficient to show she was the property of the person alleged, or to show a felonious taking.</p>

<p>1. Deaiks — Purposes—Public Health. Promotion of the public health need not be involved to make valid a law for reclamation of swamp or overflowed lands, by organization of a drainage district and taxation of the lands therein for the improvement. (Page 505.)</p> <p>2. Constitutional Law — Drains—Due Process — Hearing Before Competent Tribunal. The drainage áct (Comp. Laws 1907, secs. 760-779) is unconstitutional, as permitting private property to be taken without due process; owners of land included in a drainage district not being given a right to a hearing, before some competent tribunal, prior to the time the tax lien is irrevocably established, or the lands can be sold for delinquent assessments, on the question whether their lands are benefited by the drainage district, and, if so, whether the assessments are just and equitable, when compared with the assessments of other lands in the district. (Page 507.)</p>

<p>1. Bankruptcy — Evidence. In an action by a bankrupt’s trustee for value of personal property transferred to a creditor as an alleged preference, evidence held insufficient to justify a finding that the bankrupt’s wife was a partner in his business as a matter of law. (Page 523.)</p> <p>2. Bankruptcy — Insolvency. In determining whether an alleged bankrupt was insolvent at the time of an alleged preferential transfer, all his property which has value must be included, including property exempt under the state law or transferred in payment of or as security for a just debt, irrespective of whether it constitutes a preference or not, but not property transferred in fraud of creditors. (Page 524.)</p> <p>3. Bankruptcy — Insolvency—Value of Property. Where nearly a year prior to bankruptcy a bankrupt conveyed bis real estate to bis wife, it was error, in an action by tbe bankrupt’s trustee to recover an alleged preference, to permit tbe bankrupt to testify as to tbe value of sucb real estate, and to consider its value in determining tbe question of tbe bankrupt’s solvency at tbe time of tbe transfer, since tbe wife could not be deprived of any right she bad in the property in that proceeding, to which she was not a party. (Page 525.)</p> <p>4. Bankruptcy — Preferences—Insolvency—Question for Jury. In an action by a bankrupt’s trustee to recover an alleged preference, evidence held, to require submission of tbe question of tbe bankrupt’s solvency at the time be made tbe transfer to tbe jury. (Page 525.)</p> <p>5. Bankruptcy — Preferences — Creditor’s Knowledge. Under Bankr. Act, July 1, 1898, c. 541, section 60, 30 Stat. 544 (U. S. Comp. St. 1901, p. 3418), prohibiting preferences, it is not necessary that tbe creditor, receiving a preference, actually knew or believed that tbe bankrupt was insolvent in order to justify its recovery;, it being sufficient if tbe receiving creditor bad reasonable cause to believe that tbe bankrupt was insolvent. (Page 626.)</p> <p>6. Bankruptcy — Preferences—Recovery—Insolvency—Schedules. In a suit by a bankrupt’s trustee to recover an alleged preference, tbe bankrupt’s schedules filed with tbe trustee are admissible on tbe issue of insolvency. (Page 527.)</p> <p>7. Bankruptcy — Res Judicata — Claims in Bankruptcy — Allowance — Preferences. Where a bankrupt while insolvent returned certain property to a creditor and received' credit therefor, tbe fact that tbe creditor thereafter filed a claim for tbe balance of bis account which was allowed did not constitute an adjudication of tbe fact that tbe transfer of sucb assets for credit did not constitute a preference, and was not therefore res judicata of sucb issue against tbe trustee. (Page 528.)</p> <p>8. Bankruptcy — Relevancy—Other Similar Transactions. In a suit by a bankrupt’s trustee to recover, an alleged preference consisting of a return of merchandise to a creditor while tbe bankrupt was insolvent, evidence that on prior occasions tbe bankrupt bad returned merchandise to defendant for which credit bad been given was irrelevant. (Page 529.)</p> <p>9. Evidence — Conclusions. In an action to recover a preference, a question asked of tbe bankrupt concerning tbe amount of bis indebtedness to a particular creditor at a particular time, and whether be paid him all be owed him, was not objectionable as calling for a conclusion. (Page 530.)</p> <p>10. BANKRUPTCY-PREFERENCES-ACTION TO RECOVER-EVIDENCE — Bankrupt’s Books. In a suit by a bankrupt’s trustee to recover an alleged preference, either party may have recourse to the bankrupt’s books if he has kept any, and, if the bankrupt’s memory is at fault with respect to any matter or item disclosed by the books, they will control if shown to be correct. (Page 530.)</p> <p>11. Bankruptcy — Preferences—Right to Recover. In order that a bankrupt’s trustee may recover an alleged preference, he must show that the transfer was made within four months of the filing of the bankrupt’s, petition, that the' bankrupt was insolvent at the time that the preferred creditor knew or had reasonable cause to believe that the bankrupt was insolvent, and that such transfer was intended as a preference, and that the effect of the transfer was to give the creditor a greater percentage of his claim than other creditors of the same class would obtain if the transfer was permitted to stand. (Page 531.)</p>

<p>1. Justices oe the Peace — New Trial — Time of Filins Mottos'— “Within Ten Days After.” In an action tried in the justice court, a motion for a new trial for insufficiency of the evidence was filed after verdict, hut before judgment. The statute (Comp. Daws 1907, section 3742) provides that a new trial may be granted by the justice on motion made within ten days after the entry of judgment. Held, that the words, “within ten days after,” fixed only the limit beyond which the motion might not be filed, and that the motion was not prematurely made. (Page 535.) • '</p> <p>2. New Trial — Grounds—Insufficiency of Evidence. Insufficiency of evidence to justify the judgment is not ground for new trial. It is insufficiency of the evidence to justify the verdict on which a new trial must be asked,† (Page 536.)</p>

<p>1. Contracts — Breach—Issues and Proof. Plaintiff alleged that defendants agreed that if plaintiff would render certain services in aiding defendants to acquire “certain coal property” in C. county and in the organization of a company to handle the same, and would extend defendants’ credit, and do all things necessary for the organization of the company, defendants would give plaintiff 1000 shares of the capital stock of the company to’ he organized; that plaintiff fully performed all terms of the agreement; that defendants organized a company to take over the lands, and later reorganized another company to succeed the original; and that the plaintiff had demanded the shares and been refused. Held, that, though the lands referred to in the complaint were not definitely identified, the complaint referred to particular lands that the parties had in mind, and in the absence of proof that the defendants and others identified with them acquired those particular lands, or that plaintiff rendered the services promised in acquiring the same, and did assist in organizing the alleged companies to handle such lands, and extended necessary credit therefor, etc., the court properly granted a nonsuit. (Page 540.)</p> <p>2. Appeal and Error — Pleadings—Amendment—Prejudice. Where plaintiff was not entitled to recover under the proofs, he was not prejudiced by the erroneous denial of a motion for leave to amend the complaint to conform to the proofs. (Page 543.)</p>

<p>1. Trial — Issues of Pact and Law — EiNniNGS of Pact — Judgment. In replevin for an automobile, defendant pleaded that the machine had been delivered to him for repair, and that the value of. the repairs was $281, and that he had a lien for such amount conferred by Comp. Laws 1907, section 1404, and was entitled to the possession until his lien was satisfied. The court found as facts only that plaintiff was the owner of the machine; that its value was $750; that defendant wrongfully withheld it after demand; that plaintiff had been damaged by the detention in the sum of ten dollars; that all the allegations of plaintiff’s complaint and reply were true; and that all the allegations and denials of defendant’s answer and cross-complaint were untrue. Held, that such findings were mere conclusions, and insufficient to dispose of defendant’s affirmative defense, and insufficient to sustain a judgment for plaintiff. (Page 546.)</p> <p>On Application for Rehearing.</p> <p>2. Appeal and Error. — 'Equity Suit — 'Scope of Review — Pindings on Appeal. Under Comp. Laws 1907, sections 2968, 2969, providing that an answer may contain a statement of any new matter constituting a defense or counterclaim, and defining a counterclaim, where plaintiff brought replevin for an automobile and defendant denied plaintiff’s right to possession, claiming a lien for repairs,, the case thereby became an equitable one, so that on appeal the Supreme Court could make findings in accordance with the evidence and direct what judgment should be entered, or might remand the cause with directions to make findings of fact and conclusions of law in accordance with its directions. (Page 55p.)</p> <p>3. Liens — Laborer’s Lien — Repairs on Personal Property. Comp. Laws 1907, section 1404, provides that any person who shall repair or bestow labor on any personal property at the request of the owner shall have a lien thereon for his. labor and for any materials furnished in making such repair. Held, that, where plaintiff’s agent took plaintiff’s automobile to a garage for repairs, believing that the repairs would be made by S., but the repairs were made by defendant, S. testifying that he had no interest therein, the implied contract to pay defendant for the repairs was sufficient to sustain defendant’s lien; no express contract for the repairs being necessary. (Page 554.)</p>

<p>1. Executors and Administrators — Allowance and Payment op Claims — Persons in Family Relations — Implied Contracts. While the services rendered by a child while living with his parents are usually presumed to be gratuitous, and a promise to pay for them will not be implied from their mere rendition, yet such promise to pay may be implied from all the circumstances under which the particular services were rendered. (Page 562.)</p> <p>2. Executors and Administrators — Allowance and Payment op Claims — Persons in Family Relations — Implied Contracts — Evidence — Sufficiency. In an action by a daughter against her mother’s estate for services to the mother during her last illness, evidence held to support a finding that the mother agreed to pay for such services. (Page 566.)</p>

Joshua Greenwood, Judge. Action by the First National Bank of Nephi against B. Christensen, County Treasurer of Juab County, and others. Judgment for defendants. Plaintiff appeals. appellant's points. Taxing by a uniform rule requires uniformity not only in the rate of taxation, but also uniformity in the mode of the assessment upon the taxable valuation.

<p>1. Action — Right of Action. To state a good cause of action, there must be shown a primary legal right in plaintiff, a corresponding duty upon defendant, and a breach of such duty. (Page 582.)</p> <p>2. Negligence — Proximate Cause. The alleged negligent act or omission must be shown to have been the direct or proximate cause of the injury. (Page 583.)</p> <p>3. Contracts — Actions—Sufficiency of Complaint. The complaint in a contract action need only show the making of the contract, the obligation assumed thereby, and its breach. (Page 583.)</p> <p>4. Municipal Corporations — Stbeets—Obstructions—Excavations —Failure to Guard. To state a cause of action for injuries by falling into an unguarded excavation in a sidewalk, the complaint must affirmatively show that the excavation makes the sidewalk dangerous, that signals or guards, or both, were required to warn the public, and that the absence of such signals or guards proximately caused the injury. (Page 583.)</p> <p>5. Negligence — Presumptions. Negligence is never presumed. (Page 584.)</p> <p>6. Negligence — Proximate Cause — Allegations of Complaint. The complaint need not allege in terms that the negligence relied on was the proximate cause of the injury; it being only necessary that it show from the facts alleged that such negligence caused such injuries. (Page 584.)</p> <p>7. Negligence — Pleading—Cause of Injury. It is sufficient in an action for personal’ injuries by falling into an excavation if facts are alleged from which it may be clearly, inferred that the place was dangerous, and that guards were necessary and that the failure to have them caused the injury; it not being essential that such facts .be directly alleged. (Page 585.)</p> <p>8. Municipal Corporations — Defective Sidewalks — Pleading— Cause of Injury. The complaint alleged that defendants were engaged in constructing an areaway beneath the sidewalk, and had excavated the space entirely across the sidewalk, and carelessly and negligently failed to erect any guards to prevent persons from falling into the way, and negligently and carelessly failed to place any warnings of the existence of the excavation, and that plaintiff while walking along the sidewalk, failing to observe the excavation because- his attention was otherwise attracted, and he was looking in another direction, and not knowing or having reason to know of the existence of the excavation, fell into it and was injured without his fault or negligence. Held, that the complaint did not sufficiently allege as against general demurrer that the failure to erect warnings or guards was the proximate cause of plaintiff’s falling into the excavation. (Page 587.)</p> <p>9. PleadiNG — Construction—Inferences. Since an- inference from the facts alleged in a pleading takes the place of a positive allegation, it must naturally and necessarily arise out of some fact positively alleged therein. (Page 587.)</p> <p>10. Municipal Corporations — Defects in Street — Allegations of Complaint — Contributory Negligence. The complaint is not objectionable as showing that plaintiff was guilty of contributory negligence. (Page 588.)</p> <p>McCARTY, J. (dissenting).</p>

<p>1. Carriers — Actions—Suetcciency op Evidence — Setting Down Passenger Before Station. Evidence, in an action for being wrongfully and negligently ordered off a train and put off at a place not a station, and before her destination was reached, held, sufficient to sustain a verdict for plaintiff. (Page 597.)</p> <p>2. Carriers — Action—Instructions—Conformity to Pleadings and Issues-. Where the complaint, in an action against a carrier, averred the purchase of a ticket entitling plaintiff to ride between certain points, that her ticket was taken on the train, and that before the train reached her destination the defendant refused to carry her further, and stopped the train at a place other than a station, and in a rude manner ordered her off the train, and upon her refusal, with reckless disregard of the rights, health, and safety of the plaintiff and her two children, wrongfully put them and their baggage from the train,, well knowing that the plaintiff was an invalid, and there was evidence in support of such allegations, instructions submitting the case on the theory of whether the plaintiff, “before reaching her station, was caused to alight from the train” by defendant’s, agents, as she claimed, whether she was a passenger, as alleged, and whether, “before her destination was reached, she was caused to leave the train” are consistent with allegations of the complaint, and not erroneous as a submission oo instructions not in conformity to the pleadings and issues. (Page 599.)</p>

<p>1. Homicide — Instructions'—Evidence—Objections. A conviction for assault with intent to murder under an information charging murder will not be set aside on the ground that the court erred in submitting the issue of murder because of insufficiency of the evidence to present the question. (Page 605.)</p> <p>2. Indictment and Information — Conviction of Offenses Included in Offenses Charged. Under Comp. Laws 1907, sec. 4893, authorizing the jury to find accused guilty of any offense the commission of which is necessarily included in the offense charged, or of an attempt to commit the offense, one charged with murder by the combined effects of kicking, beating, and bruising decedent, and from the administration of poison, may be convicted of assault with intent to murder, though in a charge of murder by poison without violence an assault is not included. (Page 605.)</p> <p>3. Cbiminal Law — Law of the Case. • A decision of the Supreme Court on appeal in a criminal case is the law of the case on a subsequent trial. (Page 608.)</p>

Geo. G. Armstrong, Judge. Action by Janet A. Reid against tbe San Pedro, Los Angeles & Salt Lake Railroad Company. Judgment for plaintiff. Defendant appeals. Statement oe Pacts. This action was brought by respondent to recover damages for the killing of certain cattle by the trains of appellant. Pour separate and distinct causes of action are set forth in the complaint.