Volume 4 — Utah Reports

<p>Certiorari — Office of Writ of.--Where defendant in a criminal action before a justice of the peace, has paid the fine adjudged against him; the proceedings before said justice are at an end and have passed beyond review by certiorari.</p>

<p>Original application for a writ of habeas corpus.</p>

The opinion states the facts. The cause was argued at the January term, 1884, and the judgment of the district court was reversed, EmeRson, J., dissenting. Subsequently a rehearing was granted, and, after re-argument, the following opinion was delivered:

The opinion states the facts. It is not within the competence of a legislature, by the exercise of mere legislative power, to grant a divorce. The passage of such an act by the forms of legislation is not the exercise of legislative power.

<p>“Where Under § 4 of Act of Congress Approved June 23,1874. 18 Stat. 254, on the trial of an indictment, the names of the two hundred jurors in the jury box; provided for in that act are exhausted, and the jury is incomplete, the district court may issue an open venire to the United States marshal for the Territory to summon jurors from the body of the district, and the jury may be completed from the persons thus summoned.</p>

<p>Appeal from a judgment of conviction of tbe district court of tbe first district and from an order refusing a new trial. Tbe opinion states tbe facts.</p>

<p>Njsw Trial---Statement — Specification op Particulars. — A statement upon motion for new trial, which does not specify why, in what way, or for what reason, the verdict is against law, should be disregarded.</p> <p>Trial -Rhadino Extkaots from Law Books to Jury. — It was in the discretion of the court, if the jury were instructed that they were to understand that the extract read to them was not to be received by them as the law, as that would be announced to them by the court, to permit an extract from a legal treatise to be read to the jury, counsel stating that it merely expressed his views.</p> <p>New Trial — Statement—Instructions. --Where the statement upon motion for a new trial does not contain any of the evidence given at the trial, the instructions, so far as they pertain to the evidence, cannot be reviewed.</p>

In impaneling tbe jury, tbe names of twelve jurors were drawn from tbe general box, of wbom one was challenged for cause by tbe defendant, tbe challenge sustained by tbe court, and tbe juror excused.

The facts are stated in the opinion. What will this court consider on an appeal from the judgment without a statement? In California the court only looks at the judgment roll, but a comparison of the California statute and ours shows them to be different. It is only when there is a statement that the judgment roll comes up on an appeal from the judgment. Compiled Laws § 1560. Sections 1561 and 1562 of the Comp.

<p>Miner’s Liens. — Foreclosure- Separate Judgments. — Where one action is brought to foreclose two miner’s liens, owned separately, on the same property, a separate decree as to each lien may be rendered.</p> <p>Id.- - When in such action the case is dismissed, as to one plaintiff, the lien of the other foreclosed and the property subject thereto sold, the court is still authorized to vacate the order of dismissal, decree the foreclosure of the second lien and order the sale of the same property to satisfy snch decree.</p>

The complaint referred to in the opinion is as follows: “Now comes the said plaintiff, Linus M. Price, and alleges and shows to the court: “That prior to, and on the 20th day of May, A. D. 1882, The Pacific National Bank of Boston was a national banking association, organized and being a body corporate under the banking laws of the United States by the said name of ‘The Pacific National Bank of Boston,’ and was located at, and doing business in, the city of Boston, county of…

<p>Appeal from a judgment of tlie district court of the third district.</p> <p>The opinion states the facts.</p>

Sections 504 and 505 of tbe Code of Civil Procedure are as follows: “Sec. 504. Upon a trial of a question of fact by tbe court, its decision must be given in writing and filed witb tbe clerk witbin thirty days after tbe cause As submitted for decision. “Sec. 505. In giving tbe decision, tbe facts found and tbe conclusions of law must be separately stated.

Appeals from two orders of the district court of the third district, granting new trials in two cases between the same parties. The appeals were heard together by stipulation: the opinion states the facts. The court had no jurisdiction to grant the new trials. No notice was given, and no statement was filed within the statutory time, nor within the time enlarged.

Tbe opinion states tbe facts. Mr. Z. Snow, for appellant, cited: Washburn , on Eeal Property, vol. 1, p. 430; Taylor’s Landlord and Tenant, § 345; Washburn on Eeal Property, vol. 1, p. 108, sub. 3, p. 113, sub. 23, 24, 25, pp. 114, 115, sub. 26, 27; Winship v. Pitts, 3 Paige 259. It has been decided in England to be waste to tear down a bouse in order to build a better one out of tbe materials: Kerr on Injunctions, pp. 250-1.

<p>Practice — Notice op Appeal. — An appeal in a criminal case will toe ’ 'dismissed, unless the record shows that the notice of appeal was duly served and no evidence dehors the record will supply its failure. The People, <&e., v. Gough, 2 Utah 69, followed.</p>

<p>Practice on Appeal--Law on the Case.- -The tact that the questions presented by an appeal have been already decided on a former appeal in the same case is no reason for dismissing an appeal from the judgment rendered by the lower court in obedience to the former decision.</p>

PETITION for a rebearing. Tbe opinion states tbe facts. Tbe general government is entitled to tbe possession of and all beneficial interest in tbe public lands, and its grantee takes tbe same, subject to no conditions, except sucb as are expressed in tbe grant. No title to tbe public lands will accrue to any person against tbe general government by prescription, adverse possession, or by estoppel in pais.

<p>Petition for rehearing; post p.</p>

The facts are stated in the opinion of the court. The indictment is bad for the reason that it does not state a case including all the elements of the offense defined in the third section of the Edmunds act. We invoke the rule, which is settled beyond all controversy, that an indictment must allege all the facts necessary to fill every particular of the statutory or common law definition of the offense sought to be charged: 1 Am. Or. L. Secs. 285, 288; 1 Bish. on Or.

United States v. Camion ante p. followed. Appeal from a judgment of tbe district court of the third district and from an order refusing- a new trial. Tbe facts are stated in tbe opinion of tbe court. Tbe remarks made by tbe district attorney prevented defendant from having a fair trial. We refer to the following authorities to show: First. That it was 'a wrong for which we bad tbe right to a new trial. Second. That there is no cure: Peoples.

<p>Habeas Corpus — Prosecution postponing Triar. — A defendant in a criminal action who is not brought to trial at the next term of court after the finding of the indictment and at which it is triable, and whose trial has been postponed against his wish, is not entitled as a matter of right to be discharged on his own recognizance under Sec. 465 of the Code of Criminal Procedure of Utah Territory.</p>

The opinion states the facts. The order in question cannot operate as an equitable assignment of any indebtedness of the defendant to the maker of the order, even if there existed any indebtedness at the time it was given, or subsequently. To have that effect it must have been drawn upon a particular, .specified fund: Attorney General v. Continental Life. Ins. Co., 71 N. Y., ’ 825; Harris v. Clark, 3 N. Y., 93; Cowperthwaite v. Sheffield, 3 N. Y., 243; Shaver v. West, Tin.

<p>Judgment Roll — Affidavit used on Motion. — The affidavits used on a motion to discharge an attachment are no part of the judgment roll, and on an appeal from the order of the court on the motion, such affidavits will not he considered unless properly embodied in a bill of exceptions.</p>

<p>Appeal from a judgment of the district court of the first district, and from an order refusing a new trial. The opinion states the facts.</p>

Tbe facts are stated in tbe opinion of tbe court. There is nothing in tbe answer, either allegation or prayer, by which it can be inferred that defendant is entitled to tbe possession of tbe property, or to authorize a judgment in bis favor for tbe possession of tbe same, or for tbe value thereof.

<p>Conditional Sale. — The plaintiff delivered to P. and F. certain machinery upon the conditions that the title thereto should remain in the plaintiff until.certain notes, taken for the purchase price thereof, were paid and on such payment should rest in P. andF., that the plaintiff could take possession of the machinery on default in the payment of any note or when it deemed itself insecure; could sell the same and credit the proceeds on the notes and hold P. and F. for the residue. P. and F. sold and delivered the machinery to defendant and then failed to pay one of the notes; the contract between plaintiff and P. and F. lacked the statutory requisites of a chattel mortgage; held that the transaction between plaintiff and P. and F. was a conditional sale and that the plaintiff was entitled to the property as against the defendant.</p>

U. S. v. Musser, ante p. 153, followed. Appeal from a judgment of tlie district court of tlie third district and from an order refusing a new trial. The opinion states tlie facts. Tlie plaintiff was guilty of contributing negligence: Bail-road Company v. Jones, 95 U. S. 441, and cases there cited; Wilds v. Hud.

The court of its own motion charged the jury as follows: The plaintiff brings his suit to recover damages for personal injuries to himself while in the employ of the defendant. The facts are all with you, you are the sole judges of them and of the credibility of the witnesses. The law which you are to apply to the facts, as you shall find them, you must receive and take from the court.

<p>CRiminal Law — Polygamy- -Evidence ot? Marriage. — In Utah Territory a marriage is complete when there is a full, free and mutual consent to a present marriage by parties capable of contracting, though not followed by cohabitation, and on an indictment for polygamy such a Marriage may be proved by evidence of the deliberate admissions of defendant.</p>

<p>Appeal from a judgment of tbe district court of tbe second district. Tbe opinion states tbe case.</p>

<p>Petition for a rehearing in a proceeding to disbar an attorney. (1)</p>

<p>Statutory Construction — Vacancy in Office. — The defendant was, in August, 1880, duly elected and qualified as a probate judge in Utah territory, his term of office being two years and until his successor should be elected and qualified; no successor was elected in August, 1882, in consequence of the provisions of section 9 of the act of Congress of March 22,1882, c. 42, 22 stat. 31, vacating the election offices in Utah territory; held, that in September, 1882, a vacancy existed in this office, authorizing the governor of the territory to appoint a successor to the defendant, under the provisions of an act of Congress of August 7,1882, c. 433, 22 stat. 313.</p> <p>Id. — Status of Officer vacating Office. — The defendant was a polygamist at the time of the passage of the act of Congress of March 22, 1882, c. 47, 22 stat. 31; held, that section 8 of this act vacated the office of probate judge then held by him.</p> <p>Title to Office — Collateral Attack. — The title to an office may be determined in an action by the claimant to recover the fees thereof from an intruder.</p> <p>Intruder in Offiof,--Title to Fees. — An intruder into a public office, who has performed all the duties thereof and the reasonable value of whose services has equaled the fees received, has no right to retain any part of such fees from the rightful claimant.</p>

The juror Gabott, challenged both for actual and implied bias, testified on his direct examination on voir dire, that he had heard of the case through the newspapers, and had read what was represented to be the evidence; that he had talked about it since that time; that lie did not think he had ever expressed an opinion on the case, but that he had formed a qualified opinion, that is if the evidence were true and if the reports were true; that he had an opinion of the guilt…

The opinion states tbe facts. The challenge to the panel should have been sustained: Thomas’ Coke, vol. 3, 509, 510; Proffatt on Jury Trials, secs. 150, 151, 152; Thomson & Merriam on Juries, secs. 130, 131, 140; Munshower v. Ration., 10 Serg. & E. 334; Wood v. Rowan, 5 John. 133; Gordon v. Turner, 9 John. 260; Pringle v. Muse, .1 Cowen, 132 and note; Van Aulcen v. Beemer, 4 N. J. L. 364; Cooley’s Const.

Tbe opinion states tbe facts. It is tbe general rule tbat tbe intent of a testator must be found on tbe face of tbe will, and tbat extrinsic evidence is inadmissible to sbow it, tbe only exceptions being where such evidence is needed to remove a latent ambiguity or to rebut a resulting trust: 1 Jarman on Wills, pp. 708-710 and note; 1 Rerlfield on Wills, 539; 1 Greenl.

Appeal fronT’á judgment of the district court of the first district, and from an order refusing a new trial. The appellant requested the trial court to give each of the following instructions: 2. The term “cohabit” means “live with,” or “dwell with,” and in the act under which the defendant is indicted it means to live with as wives. 3.

<p>PRACTICE — Amendment as to Parties. — The plain tiff sued three persons as partnors, and on the trial, by leave of court, amended his complaint by striking out the name of one of them, and dismissed as to him; held, that the other defendants were not prejudiced by this amendment.</p> <p>Pleading — -Variance.—Variance as to the date of the consideration for which a negotiable instrument was given, is immaterial.</p> <p>Superseded Answer — Admission in--An answer which has been superseded as a pleading by an amended answer is still admissible in evidence against the defendant who made it, as an admission of the facts alleged therein.</p>

The opinion states the facts. This indictment includes the year 1884. The defendant plead the conviction for 1885 in bar,'and a demurrer to the plea was sustained. I. This ruling we assign as error: Shir gis v. Spofford, 45 N. Y., 446; Fisher v. lY. Y. & H. R. By, 46 N. Y., 644; four cases like tbe last, 49 N. Y., 654; State v. Eg-gleston, 20 Am. Hep., 612; Mayor of N. Y. v. Ordrenan, 12 Johns., 134; State v. Nutt, 28 Yt., 598; Citation from 2 Murphy (S. C.), 5 Parker Or.

<p>Edmunds Act — Purpose op Stated. — The purpose and aim of the act of Congress of March 22, 1882, ch. 47, 22 stat. 31, commonly called “the Edmunds act,” considered and the same conclusions arrived at as in the preceding cáse. <</p>

Tbe opinion states tbe facts. A ditcb constructed and used as this was, is private property, belonging to those wbo constructed it, and tbeir successors in interest: it is not public property: U. S. Rev. Stats., sec. 2339; Atchison. v. Peterson, 20 Wall., 507; Basel] v. Gallagher, 20 Wall., 670; Jennison v. Kioto, 98 U. S.', 453; Broiler v. Water Co., 101 U. S., 274; Trippe y. Overacher, 1 West Coast Rep., 352. The ditch, with the right to its use, is not a mere casement.

Tbe opinion states tbe facts. Appellant is improperly joined as a party defendant with Kyner. “Principal and guarantor'cannot be sued as co-defendants, their obligations are distinct — not arising upon tbe same instrument — and this, even though the guaranty be written upon tbe same paper with tbe note it secures:” Carman v. Plass, 23 N. Y., 286; Harris v. Kldrige, 5 Abb.

<p>National Banks. -Implied Powers. -The business of collecting commercial paper is a part of the regular business of national banks, and is within the powers implied by the creation of such an institution.</p> <p>Negligence in Collecting Dbaft. -The defendant bank received from the plaintiff for collection a sight draft on B. & S., the draft was accepted and the plaintiff notified thereof; the defendant, without further notification or taking any steps to collect the draft, held it for forty-seven days and then returned it as uncol-lectible; during all of this time B. & S. were known by defendant to be insolvent, but had property worth more than the amount of the draft which was covered by an invalid deed of trust. Two days after the return of the draft B. & S. made an assignment for the benefit of creditors, to L. the vice-president and a director of defendant, preferring a debt due defendant; held that defendant was guilty of such neglect of duty in respect to the draft as to render it liable for the amount thereof.</p>

<p>Practice — Confession op Judgment — Statute to be strictly Construed. — A confession of judgment must strictly pursue the statute, and a judgment entered therein without the sworn statement required by section 1015 of the Code of Civil Procedure (Laws of Utah, 1884, p. 331) is void as to creditors of the defendant not made parties to the action.</p> <p>Id. — Suit on Note Secured by Mortgage — Mortgage, Waiter op by Attachment. — R. holding T.’s note and mortgage securing the same, brought suit on the note, not asking a foreclosure of the mortgage, and obtained a writ of attachment of T.’s property on an affidavit that the mortgage had become nugatory by the act ofT.; an attachment when the debt claimed is seoured by a mortgage, being only obtainable on the filing of such an affidavit under section 1348 Compiled Laws of Utah Territory; held, that such action was a waiver of the mortgage lien.</p> <p>Id. — Note Secured by Mortgage but One Cause op Action. — R. holding T.’s note secured by a mortgage on real estate, brought suit on the note without asking a foreclosure of the mortgage; held, that the pendency of this suit was a bar to an action to foreclose the mortgage under section 606 of the Code of Civil Procedure (Laws of Utah, 1884, p. 268.)</p>

Sections 718 and 723 of the laws of Utah of 1884 are as follows: “Sec. 718. The time specified in the summons for the appearance of the defendant must be as follows: “1. If an order of arrest is endorsed upon the summons, forthwith. “2.

The facts are stated in the opinion. The application for a writ of prohibition is the commencement of an original action, which must be tried and determined as other actions are. Issues of fact dehors the record may be presented and issue joined thereon: See Chapter 3, page 326, statutes 1884, and secs. 968-977, therein referred to. This being so, the affidavit or complaint must state facts sufficient to constitute a cause of action.

Appeals from judgments of the district court of tbe first district, ordering peremptory writs of prohibition. In the case of People ex rel. Huns alter v. House, the alternative writ of prohibition was served on July 20,1885, and required House to appear July 23, 1885, to show cause why it should not be made absolute; on the last named date the writ was made absolute, House not appearing. , In the case of the People ex rel.

<p>Pbohibition — Power in Supreme Court in aid op Appellate Jur-isdiotion. — The issuance of a writ of prohibition by the supreme court of Utah Territory, arresting proceedings already commenced in an inferior court, is in aid of the appellate jurisdiction of the supreme court and within its authority.</p> <p>Id. — Supreme Court original Jurisdiction to issue Writs oe.— The supreme court of Utah Territory has original jurisdiction to issue writs of prohibition under section 20,.Code of Civil Procedure (Laws of Utah, 1884, p. 158).</p> <p>Id.- -In wiiat Cases Issued. — A writ of prohibition is properly issued from the supreme court to arrest the proceeding of an inferior tribunal, when such tribunal is acting without, or in excess of its jurisdiction, and there is no plain, speedy and adequate remedy in the ordinary course of law.</p> <p>Justices oe the Peace — Jurisdiction oe in Criminal Cases. — The organic act of Utah Territory (9 stat., 453, section 9) vests in justices of the peace a part of the judicial power of the territory, without specifying their jurisdiction in criminal cases; held, that the legislature of the territory could confer on justices of the peace no jurisdiction in criminal cases except that usually exercised by such justices at the date'of the passage of said organic act.</p> <p>Id. — Id.—Authority to impose a fine in any sum less than S300, and an imprisonment for a term not exceeding six months, is in excess of the jurisdiction which the legislature could confer on justices of the peace under the organic law of Utah Territory.</p> <p>Appeal, when not an Adequate Remedy. — When a justice of the peace is proceeding to try a case of which he has no jurisdiction, a writ of prohibition from a superior court arresting such proceeding is a proper remedy, although an appeal would lie from the judgment of the justice; in such a ease an appeal is neither a speedy nor an adequate remedy.</p> <p>Grounds eor Rehearing — When not Sufficient. — A rehearing denied for the reasons stated in the opinion.</p> <p>Practice — New Trial in Supreme Court. — A motion for a new trial of a proceeding originally commenced in the supreme court will be entertained under section 988 Code Civ. Proc. (Laws of Utah 1884).</p>

The opinion states the facts. There were no findings of the facts put in issue by the pleadings in this case. The court never made or filed any findings of the facts upon which judgment was rendered. Section 505 of the practice act requires, in trials of issues of fact by the court, that findings of fact and conclusions of law must be separately stated, and judgment upon the decision must be entered accordingly.

The opinion states tbe facts. Tbe evidence shows that the officers of the law connived with their decoy, Toland, to entice defendants into committing a crime. This is a complete defense: People v. Saunders, 25 Mich., 119; Peoples. Harry Saunders, 38 Mich., 218; Williams v. State, 1 Am. Crim. Rep., 413; Johnson v. State, 3 Tex. App. Rep., 590; Peoples. Hampton, 9 Pacific Reporte!, 508 Utah. Wardleigh, the owner, consented.

On the trial evidence was introduced which tended to show that the defendant took the property in question under a mistaken belief of title in himself thereto. The other facts sufficiently appear in the opinion. The instruction asked by defendant’s counsel should have been given. It is an elementary principle that ignorance or mistake in point of fact is in all cases of supposed offense a sufficient excuse: 1 Bishop Or. Law, sec. 801; 1 Wharton Or. Law, sec. 884.

<p>Appeal from a judgment of tire district court of the first district. The opinion states the facts.</p>

<p>Clerks oe District Courts — Limit oe Compensation. — Neither section 1883 of the Revised Statutes of the United States nor section 7 of “an act in relation to courts and judicial officers in the Territory of Utah,” approved June 23, 1874, fixes a limit on the aggregate of the fees to be retained by clerks of the district courts of Utah Territory, or provides for payment into the treasury of the United States of any portion thereof.</p> <p>Statutory Construction. — In case of doubt as to the construction of a statute regarding the compensation of an officer of the government, the constructien most favorable to the officer should be adopted.</p>

<p>Appeal from a judgment of the district court of the third district ousting appellant from the office of auditor of public accounts.</p> <p>The complaint is insufficient: Cooley’s Const. Lim., 226 and note; Sanbury, etc., B. B. ■ Co. v. Cooper, 83 Pa. St., 278; JEx parte, Newman, 9 Cal., 502; People v. Draper, 15 N. Y., 545; Wright v. Defrees, 8 Ind., 302; Doyle v. Continental Ins. Co., 94 N S., 535.</p> <p>The only allegation which asserts the defendant’s present possession of the office is in these words: “And ever since that time, he has and does still hold and exercise the functions of said office, without authority of law therefor.” This averment asserts no fact except possession; “without authority of law,” is a legal conclusion. The facts necessary to a good title in the incumbent to the office should have been denied: St. v. Missmore, 14 "Wis., 120; Groves v. Tollman, 8 Nev., 178; Flynn v. Abbott, 10 Cal., 632; People v. Jackson, 24 Id., 633; Stokes v. Geddes, 46 Id., 17; People v. Williams, 35 Id., 671; Bellows, Ex parte, 1 Mo., 115; Smith v. Loolcwood, 13 Basb., 209, 216; Laws 1884, p. 204, sec. 286, sub. 2.</p> <p>As the complaint states a long possession, and no fact rendering it wrongful, it should be deemed rightful and evidence of title: People v. Olds, 3 Cal., 175; State v. Boonefield, 44 Mo., 154; State v. Hunter, 28 Pt., 595; People v. Lacoste, 37 N. Y., 192.</p> <p>When the construction of the organic act is doubtful, the act of the legislature will not be declared null and void after so long an acquiescence and recognition by the people of Utah, and the Congress of the United States: Romney v. People, 19 N. Y., 41; People v. Maynard, 15 Mich., 470; Banning v. Carpenter, 20 N. Y., 447; Steioart v. School Dish, 30 Mich., 73; Wells v. Nickles, 104 U. S., 444; People v. Dayton, 55 N. Y, 577.</p> <p>Another act, passed under precisely the same conditions, has twice been decided to be valid by the supreme court of the United States: Clinton v. Englebrecht, 13 Wall., 446; Snow v. ü. S, 18 Id., 317.</p> <p>If the act prescribing the mode of filling these offices is void for conflict with the organic act, then the offices do not exist: Comp. Laws, p. 90; Laws 1878, p. 27; Morris v. Carter, 46 N. J. L., 260; Quinton v. Rogers, 12 Mich., 168; State v. Neio Brunswick, 38 N. J. L, 322; Lath-rop v. Mills, 19 Cal., 513; State v. Wheeler, 25 Conn., 290; Campan v. Detroit, 14 Mich., 276, 286; Mishmuir v. State, 11 Ind., 482; Cooley’s Const. Lim., 214-219; State v. •Donsmcm, 28 Wis., 541, 547.</p> <p>It was erroneous to try Pratt’s title to the office ex parte: Laws 1884, p. 283, secs. 692-3-5.</p> <p>The governor had no power to appoint Pratt nor a*ny power of appointment, except in the cases mentioned in sec. 1858, U. S. Rev. St.; Comp. L. Utah,'p. 39; People v. Bissell, 49 Cal., 407; People v. Tilton, 37 Id., 614.</p> <p>The complaint is sufficient: High’s Extra. Legal Rem, secs. 710 to 713, both inclusive; also, secs. 716 and 626; The People ex rel. Palmer v. Woodbury, 14 Cal., 43; Flynn v. Abbott, 16 Cal., 358; The People ex red,. Jud-sori v. Thacher, 55 N. Y., 525; Slate of Nevada v. Hashed, 14 Nev., 209; State v. Harris, 3 Ark., 570; Same case, 36 Amer. Decis. 460; State v. Evans, 3 Ark., 585; Same case, 36 Amer. Decis. 468; 30 American Decisions, note at pp. 51-52.</p> <p>Tbe defendant by bis- answer bas recognized tbe rule of law in sucb cases, tbat be must either disclaim or justify, and bas attempted to justify. But tbe answer fails to show any legal title to tbe office.</p> <p>It is, in effect, a confession of tbe usurpation charged, and hence tbe judgment of ouster thereon was properly rendered.</p> <p>The law providing for tbe election of this officer by the people, is in conflict with sec. 7 of the Organic Act of Utah, (see Comp. Laws, p. 30), and with sec. 1867 Bev, Laws U. S., (see Comp. Laws, p. 39): Compiled Laws of Utah, p. 90; Session Laws of Utah, 1878, p. 27; Taylor v. Stevenson, Sup. Court of Idaho, Yol. IX. Pac. Be-porter, p. 642; Duncan v. McAllister, 1 Utah, 81; High’s Extra. Legal Bern., sec. 719.</p> <p>•The court below properly denied appellant’s claim to litigate tbe alleged title of Pratt and correctly proceeded ex parte to determine Pratt’s right to be admitted into said office: High’s Extra. Legal Bern., sec. -712; Flynn v. Abbott, 16 Cal., 358; People, ex red. Fallcenberq v. Miles, 2 Mich., 348.</p> <p>An officer’s right to bold over until a successor is only elected, or otherwise chosen, and qualified, only exists when be bas been legally in the exercise of tbe office, in such a case he holds over as an officer de jure. But if the incumbent bas never been legally invested with tbe office, he is nothing more than an officer de facto, there is in legal contemplation in sucb case, a vacancy in the office: .People v. Stratton, 28 Cal., 382; State v. Tloice, 25 Ohio State, 588; same case, 18 Amer. Bepts., 321; People v. Tilton, 37 Cal., 614; People v. Wells, 2 Cal., 198; Compiled Laws of Utah, p. 92, sec. 8.</p>

<p>Constitutional Law. — Right to Office. — People v. Clayton, ante p. 421, followed and the defendant held to have no right to the office of territorial treasurer,</p>

Tbe sections of tbe Code of Civil Procedure bearing on tbe question are as follows: “Section 904. Costs are allowed of course to tbe plaintiff, upon a judgment in bis favor in tbe following cases: * * * * * * “2. In an action to recover tbe possession of personal property when tbe value of the property amounts to one hundred dollars or over, such value shall be determined by tbe jury, court or referee, by whom the action is tried. “3.

<p>Practice — Intervention -Burden op Puoop. -Where a person, having an interest adverse to the plaintiff in an action, has been permitted to intervene therein and has taken issue with the material averments of plaintiff’s complaint, the burden is on the plaintiff to prove such averments, although the defendant' in the action has made default.</p> <p>Id. — Motion for New Trial — Statement.—The notice of motion for new trial designated as one of the grounds of the motion the “insufficiency of the evidence to justify the verdict,” the only specifications in the statement on such motion were of particulars in which the court erred; held, that such specifications would not be considered as of particulars wherein the evidence was insufficient.</p>

Applications to the supreme court of the territory to allow an appeal from its judgment in the case of People etc. v. Clayton, ante p. 421, and in tlie case of People, etc. v. Jack, ante p. 438, to the supreme court of the United States.

<p>Appeal — Error not Presumed. — A.n order granting a new trial will not be reversed on appeal unless error therein be made affirmatively to appear.</p>

The ninth finding of fact made by the trial court is as follows: “(9) That on th'e twenty-second day of September, 1883, Barney McManamon, co-plaintiff with the plaintiff Thomas Yenard, in this action, obtained and received judgment against the Old Hickory Mining & Smelting Company, for the sum of $403.09 damages, and for costs of suit; and a decree of foreclosure, and order of sale; that the Old Hickory Lode or Mining Claim, hereinbefore described, the property of the…

The opinion states the facts. Appeal from a judgment of the third district court and from an order refusing a new trial. The opinion states the facts.

<p>NjiGUHicNCE.--Exarcssi.vro Dahagjob.--New Trial. — Extent of injuries rosulting from negligence is a question for the jury. Where evidence is conflicting, and oven if damages awarded are large, tho verdict will not be set aside unless palpably against evidence, or obviously the result of passion or prejudice.</p> <p>Instructions. — Specific Instructions.-Where instructions, in general terms, state the law correctly, but a party desires more specific instructions, he should ask the court to instruct the jury specifically upon the point.</p>

<p>Appeal. — Judgment upon remittitur, directing demurrer to be sustained, plaintiff having elected to stand upon complaint, leaves no error to be considered.</p>

Tbe facts, except tbe following, are stated in tbe opinion of tbe court: Tbe charge of tbe court to tbe jury was as follows: “1. Gentlemen of tbe jury: Tbe court charges you that tbe employer owes to bis servant tbe duty of furnishing him a safe and proper place in which to prosecute bis work, so far as be is able to do so by tbe exercise of ordinary care and diligence.

<p>PROHIBITION. — Jurisdiction or Supreme Court op Utah. — New trial denied.</p>

<p>Justicie op the Peace. — Jurisdiction.</p>

<p>Petition for rebearing, ante p. 382.</p>

<p>COURTS. — Jurisdiction Under City Ordinance. — District courts have no original jurisdiction of an offense involving the violation of a city ordinance, and where record does not show how the case came into the district court, the appeal will be dismissed.</p>

The evidence touching the qualifications of Philip Grill, one of the trial jurors, was brought up by a bill of exceptions, which was settled and signed by the trial judge; the record was silent as to… Held: notwithstanding this fact, that the offense may be segregated into any number of distinct periods of time. If this be true then time becomes of the essence of the offense and the prosecution are confined in their proof to those times or periods of time alleged.

<p>Rehearing Denied. — On petition for rehearing ante p. 446.</p>

<p>Unlawful Cohabitation. — Affirmed on the authority of United States v. Groesbeck, ante p. 487.</p>

<p>Cbxminal Law — Marrying Witness to Render Her Incompetent. ' W. after liis indictment and prior to trial thereon contracted a valid marriage with a witness for the prosecution, for the purpose of preventing her testifying on such trial; held, that she was not a competent witness without his consent.</p>

<p>Negligence — Locomotives—Injury at Crossing. — The failure to ring the bell or sound the whistle at crossing of highways are required by section 2350, Compiled Laws, Utah, 1888 (section 494 Compiled Laws 1876) is such statutory negligence as will in the absence of contributory negligence, render the railroad company liable for injuries resulting from a collision to a person in a wagon crossing the track.</p> <p>Damages — Personal Injury. — A verdict of §5000 damages for injuries to a middle-aged man of previous good constitution, where he would probably suffer more or less from injuries during life, is not excessive.</p>

The opinion states the facts, except the following: The instructions given by the court upon the subject of the burden of proof, are as follows: The statute of this territory provides that “Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to…

“Exhibit E” referred to in the opinion was the findings of fact of the trial court in the second suit for a divorce instituted by respondent against her husband as follows: “This cause was tried before the court, and the court makes the following findings of fact and conclusions of law: “1. That plaintiff and defendant were legally married October 19th, 1864, in the kingdom of Italy, and ever since then have been husband and wife. “2.

The facts are fully stated in the opinion of the court on the rehearing. Held: his title passed: Loe v. Wilson, 23 How., 457. The language of the acts reserving sections 16 and 36 to the territory, effectually withdrew said lands from sale, and on the admission of the territory, it would become the owner absolutely: Higging v. Houghton, 25 Gal., 260; Thompson v. True, 48 Cal., 601.