Volume 40 — Utah Reports

<p>1. Taxation — Exemptions—Constbuction. While statutes exempting private property from taxation will usually be strictly construed, those statutes exempting property used for educational, religious, and charitable purposes should, just as those providing for poor relief, receive a liberal construction, for both are based on motives of hufhanity and mercy, and hence Const., art. 13, sec. 3, exempting property used exclusively for charitable purposes from taxation should be liberally construed.1 (Page 8.)</p> <p>2. Taxation — Exemptions—Charitable Use oe Property — Exclusive Charitable Purposes. A fraternal order whose object was good fellowship among its members, to, carry out charitable purposes and conduct a social club for the benefit of the members, owned a clubhouse to which members only were admitted. Part of the clubhouse was used as a buffet and dining room wherein meals, cigars, and drinks were served to members at customary prices, the net proceeds therefrom being devoted to charitable purposes, and the rest of the clubhouse was used for social purposes. Held, that the primary purpose of the order being charitable and its charities not being restricted, to its own members, the clubhouse was exempt,, under Const., art. 13, sec. 3, providing that property used exclusively for charitable purposes shall be exempt from taxation, the use of part of the clubhouse as a buffet and café being only incidental to the charitable purpose of the order.2 (Page 15.) Feick, C. J., dissenting.</p>

<p>1. Statutes — Repeal—Implied Repeal. In tbe absence of an express repeal of a statute, to justify tbe presumption of an intention to repeal a statute by a later one, tbe two must be irreconcilable. (Page 52.)</p> <p>2. Elections — Ballots—Statutes—Implied Repeal. Daws 1911, c. 126, providing for tbe nomination at a primary election of candidates for city offices, and providing that tbe two candidates receiving tbe bigbest number of votes at tbe primary shall be placed on tbe general ballot at tbe general election, does not repeal tbe provision of tbe general election laws requiring a blank ticket to be left at tbe right of tbe ballot, and tbe general provisions of the Laws of 1911, that the ballot at tbe general munipical election shall be the same as provided by tbe general election laws where not inconsistent therewith render applicable tbe provisions of tbe general election laws requiring a blank ticket; and the recorder of a city in making up tbe official ballot must leave a blank ticket. (Page 52.)</p> <p>3. Constitutional Law — Statutes—Validity. A provision of a statute which has for many years been applied and given effect without challenge will not be held unconstitutional, except on a compelling belief of its invalidity. (Page 53.)</p> <p>4. Elections — Ballots—Statutes. Tbe provision in Laws 1911, c. 126, that only tbe names of the two candidates receiving tbe bigbest number of votes at a primary election shall be placed on tbe ballot for the general municipal election, refers only to what names shall be placed on tbe ballot by tbe city recorder in preparing the ballots for tbe general election, and does not prevent a voter from voting for another person by writing bis name on tbe ballot. (Page 53.)</p> <p>5. Statutes — Construction—Legislative Intent. The intention of the legislature, as expressed by tbe language of a statute, interpreted according to its fair and obvious meaning and tbe context, is tbe controlling feature in tbe construction of tbe statute. (Page 54.)</p> <p>6. Constitutional Law — Construction in Favor oe Validity. Where tbe language of a statute is equally susceptible to two meanings, one rendering it valid and tbe other invalid, tbe court must adopt the one which renders the statute valid. (Page 55.)</p>

<p>Appeal from District Court, Fifth District; Hon. Joshua Greenwood, Judge.</p> <p>P. Potello was convicted of grand larceny and be appeals,</p>

<p>1. LaRCbny — Evidence—Sufficiency. Evidence held to sustain a conviction of larceny of plumes. (Page 76.)</p> <p>2. Constitutional Law — Legislative Power — Rules oe Evidence. Comp. Laws 1907, sec. 4355, providing that possession of recently stolen property, where tbe possessor fails to make satisfactory explanation, shall be deemed ‘prima facie evidence of guilt, is a valid exercise of the legislature’s power.1 (Page 76.)</p>

<p>1. Coukts — Prior Decisions as Precedents — Courts of Other States. That a statute has been upheld by the court of last resort of a sister state, furnishes a strong-reason why the statute subsequently adopted in Utah should be upheld if attached on the same grounds. (Page 87.)</p> <p>2. Constitutional Law — Due Process oe-' Law — Statutes — ■ Validity. Laws 1909, e. 74, as amended by Laws 1911, c. 53, authorizing the creation of irrigation districts, and providing for the bonding of the districts and the taxing of the property therein, is not invalid as depriving one of property without due process of law in violation of Const., art. 1, sec. 7, since any landowner is given an opportunity to be heard on objections to the inclusion of his lands within a proposed district.1 (Page 87.)</p> <p>3. Eminent Domain — Taking Private Property foe Public Use— Statutes. The purpose for which property may he taken under Laws 1909, c. 74, as amended by Laws 1911, c. 53, providing for the creation of irrigation districts, for the bonding of the districts, and for the levy and assessment of taxes, is for a public, and not a private use.1 (Page 88.)</p> <p>4. Waters and Watek Courses — Irrigation — Assessments — Uniformity According to Value — Constitutional Provisions. Const., art. 13, secs. 2, 3, providing that all property shall be taxed according to value, and at a uniform and equal rate, does not apply to special assessments, and assessments authorized by Laws 1909, c. 74, as amended by Laws 1911, c. 53, authorizing the creation of irrigation districts and the levy and assessment of taxes, are special assessments based on' benefits accruing to-the land assessed. (Page 88.)</p> <p>5. Waters and Water Courses — Irrigation Districts — Bonds. On application for prohibition to prohibit the directors of an irrigation district from disposing of bonds of the district, the court must assume that all the land within the district is similarly situated, and will be capable of irrigation and improvement by the waterworks system owned by the district, to pay for which the bonds are issued. (Page 89.)</p> <p>6. Constitutional Law — Invasion of Judicial Power. Laws 1909, c. 74, as amended by Laws 1911, c. 53, authorizing the creation of irrigation districts, does not confer judicial power contrary to Const., art. 8, sec. 1, providing that the judicial power shall be vested in enumerated courts and such other inferior courts as may be established by law. (Page 89.)</p> <p>7. Constitutional Law — Waters and Water Courses — Statutes —Validity. The defects, if any, in Laws 1909, c. 74, as amended by Laws 1911, c. 53, authorizing the creation of irrigation districts, must be remedied by the legislature, and not by the courts; and such defects afford no ground for holding the statute invalid.2 (Page 90.)</p> <p>8. Waters and Water Courses — Irrigation Districts — Assessments — Validity. The owner of land within an irrigation district created under Laws 1909, c. 74, as amended by Laws 1911, c. 53, may seek redress in the courts resulting from any unjust assessment, and raise issues whether his land is being unjustly assessed or burdened to maintain an irrigation system through which his land cannot be irrigated nor benefited. (Page 90.)</p>

<p>1. Peohibition — Adequacy oe Other Remedy. Under the Constitution and statute authorizing appeals to the District Court from final judgments of the City Court, and from the District Court to the Supreme Court when the validity of an ordinance is involved, and under the statute authorizing prohibition where there is not a plain, speedy, and adequate remedy in the ordinary course of law, prohibition does not lie to restrain a City Court from proceeding with the trial of petitioner, charged in the City Court with violating a city ordinance, on the ground of the invalidity of the ordinance,, in the absence of anything to show wherein the remedy by appeal is not speedy or adequate, or in the absence of any allegation that petitioner is in custody, or that he is unable to give bail, so that he will be held in custody pending an appeal, in case of conviction. (Page 92.)</p> <p>2. Prohibition — Adequacy oe Other Remedy. Where the validity of a statute or ordinance is involved, prohibition will not be granted in advance of the trial in the inferior court, where the question is presented, when a plain remedy by appeal is afforded, though it may be that the higher court will, when the question is presented to it, determine that the statue or ordinance is invalid, and that the inferior court is without jurisdiction, unless it appears that to require petitioner to pursue the remedy by appeal or writ of review will deprive him of some present right, or seriously embarass him in the exercise thereof. (Page 94.)</p>

J. A. Howell, Judge. In a proceeding for tbe disincorporation of tbe City of Huntsville, tbe claims of tbe Utab National Bank and others were allowed. Order refusing to open tbe order allowing sucb claims. Jens Nielson and others appeal.

<p>1. Waters and Water Courses — Irrigation—Use of Another’s Canal — Point of Diversion. In a proceeding to obtain permission to enlarge irrigating canals of another person under Comp. Laws 1907, sec. 1288x22, it is no objection to the maintenance of the proceeding that plaintiff’s right is a right to divert water at a point above the point of diversion of defendants’ canals, where it appears that plaintiff can divert his water at the point where the canals divert water. (Page 113.)</p> <p>2. Waters and Water Courses — Irrigation—Use of Another’s Canal — Who May Maintain Proceedings. A decree in a proceeding under Comp. Laws 1907, sec. 1288x22, to obtain permission to enlarge the irrigating canal of another sufficiently to carry water for the plaintiff, which grants the relief asked for, is not erroneous because it appears that the plaintiff has not an actual and subsisting right to the amount of water he seeks to convey through such canals, where it appears that the applicant has some water and has made application to appropriate other unappropriated water, since all that need be shown in such a proceeding is that plaintiff has water, or has applied in good faith therefor. (Page 113.)</p> <p>3. WATERS AND WATER COURSES-IRRIGATION-USE OP ANOTHER’S CANAL — Who May Maintain Proceedings. A person is not precluded from proceeding under Comp. Laws 1907, sec. 1288x22, to obtain permission to enlarge the irrigation canal of another because his application for unappropriated water was approved by himself in his official capacity as state engineer, since the statute gives the right to any person interested to protest any application, and the courts in a proceeding under section 1288x22 have no power to pass upon and determine the water rights of the plaintiff. (Page 114.)</p> <p>4. Waters and Water Courses — Irrigation Canaxs — Enlargement — Evidence. In a proceeding to enlarge an irrigation canal of another under Comp. Laws 1907, sec. 1288x22, where it is undisputed that defendants have for many years successfully maintained the canals sought to be enlarged and have been able to make them impervious to water, a finding that the canals are such as to admit of enlargement and increased carrying capacity, without detriment or injury thereto, is not unsupported by the evidence, since it is based on actual experience, and not on conjecture or speculation. (Page 116.)</p> <p>5. Eminent Domain — Compensation—Measure and Amount — -Taking Easement. In a proceeding to obtain permission to enlarge the irrigation canal of another under Comp. Laws 1907, sec. 1288x22, it appeared that defendants did not own the land traversed by the canals, but merely owned an easement for the canals. . There were no allegations in the complaint or answer as to the value of the property affected or the amount of damages to defendant by the enlargement of the canals, and no direct evidence of the amount of damages, but there was evidence of the cost of construction and maintenance of the canals, the character of the soil, and the possibility of loss by seepage or percolation, if the sides or bottom of the canal were broken. The court required the plaintiff to give a bond to cover any damages to defendants from the work of enlargement, and fixed defendants’ damages, except such as might arise from defective or insufficient enlargement, at the nominal sum of one dollar. Held, that this did not deprive defendants of their property without compensation, especially in view of the bond protecting them from any damage arising out of the work, since, when property taken for a public use is an easement which can be used only for a particular purpose, the measure of damages is the extent to which the easement is rendered less valuable for the use to which it is devoted, and there was no proof that defendants’ -canals would be any less valuable for the purpose to which they were devoted by reason of the enlargement.1 (Page 116.)</p> <p>6. Eminent Domain — Compensation—Measure and Amount— Burden. In a proceeding to take private property for public use, the burden is on the owner of the property to prove the amount of his damages. (Page 118.)</p> <p>7. Eminent Domain — Compensation—Measure and Amount— Benefit to Party Taking. In a proceeding to obtain permission to enlarge the irrigation canal of another under Comp. Laws 1907, sec. 1288x22, the benefit to plaintiff from the use of defendants’ canals cannot be considered in fixing the amount of damages sustained by defendants. (Page 119.)</p> <p>8. Eminent Domain — Compensation—Elements of Damage. In a proceeding to obtain permission to enlarge the irrigation canal of another under Comp. Laws 1907, sec. 1288x22, the fact that, by reason of the enlargement, defendants will be affected in their control of their canals and in making necessary repairs, does not entitle defendants to substantial damages, where defendants are given exclusive control of the water while in the canals, and plaintiff is given no right to enter the canals, but is compelled to pay his proportion of the cost of making repairs, since defendants are not unduly interfered with in the control of their canals. (Page 122.)</p> <p>9. Eminent Domain — Irrigation Canals — Enlargement—Damages. In a proceeding to obtain permission to enlarge the irrigation canals of another under Comp. Laws 1907, sec'. 1288x22, defendants claimed damages for deprivation of the right to enlarge their canals and appropriate additional water and supply others with such water for profit. The decree provided that in enlarging the canals the plaintiff should maintain the existing irregularity of the banks. Held, that defendants were not entitled to any such damages, since they had no better right than plaintiff to appropriate any unappropriated water, and, if they could appropriate any more water, there was nothing to prevent them from enlarging their canal; the provision respecting tlie maintenance of the irregularities of the banks reserving to defendants the benefit of the wider portions of the banks in case they desired to increase their ca--pacity. (Page 123.)</p> <p>10. Judgment — Trial on Issues — Conformity to Findings and Conclusions Where the findings of fact are supported by the evidence, and the judgment is in accordance with the material findings, it is not erroneous because some of the conclusions of law are not logically correct. (Page 124.)</p> <p>STRAUP, J. (dissenting).</p>

M. L. Ritchie, Judge. Action, by Salt Lake City against tbe East Jordan Irrigation Company. From the judgment the parties bring cross-appeals. appellant’s points. If damage shall result to the individual property or right of a stockholder of the respondent company, by reason of the city’s carrying out the work of enlarging the canal, he will have his remedy and judgment for damages against the city independently of the judgment in this proceeding.

<p>Labceny — Recent Possession of Stolen Peopebty — Reasonable Explanation — Question fob Jury. In. a prosecution for cattle theft, defendant claimed to have purchased them irom a stranger and produced a bill of sale for the cattle duly witnessed. The witnesses testified to the execution of the bill, and also corroborated defendant with reference to other statements. Held, that the fact that such reasonable explanation of defendant’s possession of the cattle was not denied, and the witnesses were not impeached, did not entirely overcome the prima facie evidence of guilt established by recent possession, as provided by Comp. Laws 1907, sec. 4355, but required the submission of the question to the jury.</p>

<p>1. CeimiNal Law — Trial—Remarks and Conduct of Judge — Comments on Defense. Before one charged with murder in the first degree was arraigned, his attorney, the county attorney, the sheriff, and others concluded that, if accused would plead guilty to second-degree murder, they would recommend a sentence not exceeding twenty-five years, and accused pleaded guilty of murder in the second degree, but the trial judge refused to concur in the matter of punishment, and said that he was “left with the bald charge and the bald plea to it, which is that the defendant is guilty of maliciously taking the life of another human being, though without premeditation. . . . I do not feel that the malicious killing of a human being would justify me in sentencing a man to imprisonment for such a period as twenty-five years. It seems to me that that is not an adequate punishment.” Held, that the rulings of the court being proper and fair, and accused having been found guilty of the degree of murder to which he had pleaded, there was nothing in the remarks or conduct of the trial judge prejudicial to the accused.1 (Page 172.)</p> <p>2. Homicide — Admissibility oe Evidence — Intent—Threats. Two witnesses testified that, while passing along a street near the store of deceased a short time before the homicide, they saw accused and heard him say to others, “I will get him tonight,” but did not know whom accused was talking about. There was also testimony that accused stated to others that unless his property, which had been attached by deceased, was returned within a short time, he would kill deceased, and testimony as to other statements by accused bearing upon his feelings towards deceased. Held, in view of the other evidence, that, although the threat testified to by the two witnesses was general, it was admissible? it being for the jury to say to whom it referred. (Page 174.)</p> <p>3. Homicide — Admissibility oe Evidence — Character and Habits of Person Killed. Accused testified with regard to special acts and conduct of the deceased, from which the jury could infer that deceased was a quarrelsome and dangerous man, that he was in the habit of carrying a revolver which accused had seen him use threateningly in altercations with others, and that deceased was an oppressive and violent man. Held, that, evidence as to the general reputation of the deceased as a peaceable, quiet, and law-abiding citizen was admissible. (Page 175.)</p> <p>4. Homicide — Evidence—Burden of Peooe — Excuse oe Justification. Under Comp. Laws 1907, sec. 4856, providing that, upon a homicide being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, shall devolve upon accused, unless the proof on the part of the prosecution tends to show that the defendant was justifiable or excusable, the duty or burden is upon defendant to prove justification or excuse, but he is not required to establish either by a preponderance of the evidence, it being sufficient to create a reasonable doubt in the minds of the jury whether the homicide in question was justifiable or not.2 (Page 177.)</p> <p>5. Criminal Law — Trial—Instructions—Burden of Proof — Self-Defense. In a trial for murder, where accused pleaded self-defense, and submitted sufficient evidence thereon to require the submission of that issue to the jury, the court instructed that if the prosecution by the introduction of its evidence had proved the commission of the homicide by defendant beyond a reasonable doubt, and if the proof by the prosecution did not tend to show that the homicide amounted only to manslaughter, or that the defendant was justifiable in committing it, then the burden of proving justification for the homicide devolves upon the defendant — “that is, he must establish such justification by preponderance or the greater weight of the evidence” — and that, if the jury upon considering the entire evidence had a reasonable doubt of the guilt of defendant, they should acquit him. Comp. Laws 1907, sec. 4856, devolves the burden of proving circumstances of mitigation or justification on the accused, but only requires him to create a reasonable doubt as to whether the homicide was justifiable. Held, that as the part of the instruction following the phrase “preponderance of the evidence” defined and limited it so that the jury could not have been misled, as to the quantum of proof necessary to entitle accused to an acquittal, the charge, considered as a whole, was not prejudicial. (Page 183.)</p>

G. W. 'Morse, Judge. Action by August Weiner against Amanda Stearns and others. Judgment for defendant. Plaintiff appeals. appellant’s points. The privity requisite to constitute continuous adverse possession by tacking the possession of the original entry-man to that of another may be effected by any conveyance. agreement, or understanding that has for its object a transfer of possession and is accompanied by a transfer in fact.

<p>1. Appeal and Error — Harmless Error — Immaterial Questions. The error in a finding, because contrary to all the evidence, is immaterial where the judgment corrected the error. (Page 21.3.)</p> <p>2. Appeal and Error — Harmless Error — Refusal to Make Findings. Where additional findings, though proper, if made could not affect the final result, the. defeated party could not complain of the court’s failure to make the additional findings. (Page 215.)</p> <p>3. Trial — Issues—Evidence—Findings. Where, in an action by a bank to foreclose a mortgage to secure a note, the maker claimed that the note and mortgage, though nominally to the cashier of the bank, were in fact for the benefit of the bank to compromise a claim held, by it, that he had delivered to the bank, as collateral, notes against third persons, which the' bank had collected, and had thereby received sufficient money to pay off the mortgage, and the evidence of officers of the bank showed either that the consideration for the mortgage was as testified to by the maker or that it was without consideration, and that the bank had purchased the notes against the third persons, the issues really were the consideration for the mortgage and whether the alleged collateral notes were such in fact or were a straight purchase by the bank, and a mere finding that no part of the indebtedness represented by the note and mortgage had been paid excepting a specified sum, leaving a balance due as principal, was insufficient. (Page 215.)</p> <p>4. Bills and Notes — Bona Fide Holder. An innocent purchaser of a note may recover thereon, though it was without consideration, but where a transferee of the note, shows that it had knowledge of the fact that the maker received nothing for the note, it could not rely on the general presumption that a note imports a consideration so as to recover as an innocent purchaser. (Page 217.)</p> <p>5. Mortgages — Foreclosure—Pleadings—Issues. Where, in an action to foreclose a mortgage, the pleadings raised the issues of the consideration of the nóte, and whether the maker had delivered notes made by third persons as collateral, and it was admitted in the pleadings that the notes of the third persons had been paid, the court properly disregarded the claim that the admission of payment of such notes was inadvertently made, and the claim of the maker that he had deposited with such notes as collateral mining stock of great value which had never been accounted for. (Page 218.)</p> <p>6. Mortgages — Foreclosure—Delay in Prosecution — “Laches.” A delay in the prosecution of a suit to foreclose a mortgage does not prevent the granting of proper relief where either party could have compelled a hearing, but both failed to act, especially since delay unaccompanied by circumstances, which in some way show inexcusable negligence, which will result in-giving the party in fault an unfair advantage, or which will produce injustice in some way, is ordinarily, when standing alone, insufficient to prevent relief on the ground of laches. (Page 218.)</p> <p>7. Mortgages — Foreclosure—Trial. Where the prosecution of an action by a bank to foreclose a mortgage to secure a note was delayed for many years, through the fault of both parties, and during the interval the president of the bank at the time of the acquisition of the note and mortgage had died, the court should permit either party to submit any evidence shedding any light on the issues involved. (Page 219.)</p> <p>8. Trial — Issues—Burden of Proof — Findings. Where the burden of proof cast on one party is not met, or where there is no evidence on a material issue, the adverse party is entitled to a finding which may be either affirmative or negative depending on the circumstances. (Page 220.)</p> <p>9. Limitation of Actions — Cross-Demands—Limitations. Under Comp. Laws 1907, sec. 2971, providing that when cross-demands exist, under such circumstances that if one party had brought an action against the other a counterclaim could have been set up, the two demands shall be deemed compensated so far as they equal each other, claims of a party, though barred by limitations in so far as to prevent a judgment in his favor, may be applied as a set-off. against his adversary’s claims. (Page 220.)</p>

<p>1. Eminent Domain — Change oe Grade of Streets — Liability to Abutting Owners. A city lawfully and properly changing an established grade of a street is liable for damages to abutting owners.1 (Page 223.)</p> <p>2. Limitation of Actions — Limitation Applicable — Change of Grade of Streets — “Statutory Liability.” The right of an abutting owner to recover for damages caused by a change of street grade is given by Const., art. 1, sec. 22, providing that private property shall not be damaged for public use without compensation, and not by Comp. Laws 1907, sec. 282, authorizing the recovery of damages to abutting property by change of an established grade of a street, so that a cause of action for such damages is not based on a statutory liability within section 2877, subd. 1, limiting the time "for bringing actions for statutory liability.2 (Page 223.)</p> <p>3. Limitation of Actions — Limitation Applicable — Change of Grade of Street — Damages—Actions. An action for damages to abutting property, caused by the change by a city of an established grade of a street, is within Comp. Laws 1907, sec. 2883, limiting actions not otherwise provided for to four years from the time of the accrual of the cause of action.3 (Page 225.)</p> <p>4. Eminent Domain — Change of Grade of Street — Damages— Actions — Limitations. An action by an abutting owner for injuries to his property, caused by a change in the established grade of a street, is not barred by Comp. Laws 1907, sec. 312, providing for the- filing of claims against a city within thirty days after the injury arose, where the abutting owner filed a claim within thirty days after the completion of the street improvement. (Page 225.)</p> <p>5. Appeal and Error — Questions Reviewable — Harmless Error. Errors in the admission and exclusion of evidence will not be considered on appeal, where they are harmless. (Page 225.)</p> <p>6. Emminent Domain — Change op Grade op Streets — Damages. A city proceeding lawfully and properly in changing an established grade of a street owned by it in fee is not liable in damages for the removal of shade and ornamental trees planted by the abutting owner and growing in the street; the removal being unavoidable in changing the street.4 (Page 226.)</p>

<p>Tbusts — Establishment—Evidence. Evidence in a suit to have it. adjudged that defendants held in trust for plaintiff an undivided interest in certain fire clay claims, located in their names, held insufficient to show the parol agreement as to discovery and location, under which this was claimed.</p>

<p>Usury — Notes—Consideration. Plaintiff in Colorado where any agreed rate of interest may be charged loaned defendant one hundred dollars and received from him within less than a year $157, principal and interest. Plaintiff then caused defendant to give a new note for $240 with interest at the rate of one per cent, per month, on which defendant, between May 31 and October 23, 1909, paid plaintiff the further sum of ninety dollars, defendant at the time of suit brought having paid in all on account of the loan $278.10. He Id, that the second note, based on an unconscionable consideration, was against public policy and good morals and unenforceable in Utah.</p>

<p>Appeal from District Court, Third District; Hon. G. W. Morse, Judge.</p> <p>Action by Louis F. Liebhart against Franklin Lawrence.</p> <p>Judgment dismissing complaint. Plaintiff appeals.</p>

<p>Appeal from District Court, Third District; Ron. G. W. Morse, Judge.</p> <p>Action by Julia W. Phillips against Franklin Lawrence.</p> <p>Judgment dismissing the complaint. Plaintiff appeals.</p>

<p>Appeal from District Court, Third District; Hon. Geo. G. Armstrong, Judge.</p> <p>Action by Elias Cohn against Franklin Lawrence.</p> <p>Judgment dismissing the complaint. Plaintiff appeals.</p>

<p>1. Evidence — Admissions—Pleadings. An answer or other pleading which has not been superseded by amendment or substitution cannot be used as evidence for the jury by way of admissions without consent of the parties; the effect and meaning of the pleading with respect to admissions being a question for the court.1 (Page 275.)</p> <p>2. Evidence — Admissions—Pleadings. Where an amended or substituted pleading is put in evidence as an admission, the party against whom it is used may explain the admissions under oath, and the jury must consider both the admissions and explanation in determining the question involved. (Page 277.)</p> <p>3. Pleading — General Denial. A denial of the “material allegations” of a complaint is sufficient as a general denial. (Page 278.)</p> <p>4. Appeal and Error — Harmless Error — Admission of Evidence. Error in an employee’s action for personal injuries while blasting in admitting a paragraph of the answer in evidence as an admission that the place where plaintiff was was dangerous, when the answer had not been superseded as a pleading, was harmless to defendant, where the evidence conclusively showed that the place in which plaintiff was was dangerous. (Page 279.)</p> <p>5. Master and Servant — Injuries—Sufficiency of Evidence. Evidence in an employee’s action for personal injuries while blasting rock held to show that the place at which plaintiff and his foreman stood when setting off the blast was dangerous by reason of flying rock. (Page 279.)</p> <p>6. Master and Servant — Injuries—Negligence. A quarry owner was negligent where it required its employees in setting off blasts to stand so close to the rock as to be struck by flying fragments when they could have discharged the blast from a place of safety had a longer electric wire been furnished for exploding blasts. (Page 281.)</p> <p>7. Master and Servant — Contributory Negligence — Acting Under Orders. A servant injured while working pursuant to orders of his master is not negligent in so doing, unless the danger from the work was so obvious 'and imminent that a reasonably prudent person with the knowledge of his danger would not have undertaken it.2 (Page 282.)</p> <p>8. Master and Servant — Injuries—Jury Question — Contributory Negligence. In an employee’s action for injuries while blasting rock, whether the danger from being struck by flying rock at the place where plaintiff set off the charge pursuant to his foreman’s orders was so obvious as not to justify him in following his foreman’s orders held a jury question.3 (Page 283.)</p> <p>9. Master and Servant — Injuries—Jury Question — Assumption oe Risk. Whether an employee injured while firing off a blast by flying fragments of rock assumed the risk of injury by remaining at the battery and assisting in firing the blast held a jury question. (Page 284.)</p> <p>10. Master and Servant — Assumption oe Risk — Ordinary Dangers. An employee engaged in blasting rock assumed the usual dangers incident thereto, and also the risk of injury from any extraordinary dangers of which he knew or which were obvious. (Page 284.)</p> <p>11. Trial — Instructions—Theory oe Parties. While a party is entitled to have his case submitted on the theory of his own evidence as well as upon the theory of the whole case, and the court could charge in separate instructions plaintiff’s and defendant’s theories under the evidence, it was not bound to do so, but could cover the question in a single instruction. (Page 285.)</p> <p>12. Appeal and Error — Harmless Error — Instructions. .In an employee’s action for personal injuries by flying rock from a blast set off by him, plaintiff’s theory was that he remained at the place where the blast was set off by reason of his foreman’s assurance that it was not too close to b’e dangerous, made when plaintiff was about to send another employee to get a longer wire to set off the blast, while defendant’s theory was that no such assurance was given. The court gave defendant’s requested instruction, as modified by inserting the quoted part, that if the jury find that plaintiff upon his own judgment, “uninfluenced by any assurance of safety on tbe part of defendant’s foreman” as to whether the place he was standing when he fired the shot was safe, or that plaintiff selected it, hut fired the shot without directions of the foreman, defendant would not be liable. Held, that defendant was not prejudiced by the modification; defendant’s theory of the evidence having been sufficiently covered by the instructions. (Page 286.)</p> <p>13. Master and Servant — Injuries—Negligence of Foreman. Even though a quarrying company selected a competent foreman, and the foreman used his best judgment in selecting a location for firing off blasts, the company would still be liable for injuries resulting therefrom if the foreman did not use ordinary care and prudence in selecting a location from' which employees should fire the blasts. (Page 285.)</p>

<p>Appeal from District court, Third District; Hon. M. L. Ritchie, Judge.</p> <p>Action by Agnes M. Coaltsr against Salt Lake City.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

J. A. Howell, Judge. Action by Julia C. Blair against Preston A. Blair. Judgment for plaintiff. Plaintiff appeals from that part of the decree relating to the amount of alimony, attorney’s fees and tbe appointment of a trustee.

<p>Appeal from District Court, Second District; Hon. J. A. Howell, Judge.</p> <p>Action by P. DeMiehele against the London & Lancashire Pire Insurance Company.</p> <p>Judgment for plaintiff, defendant appeals.</p>

J. B. Booth, Judge. Action by Elizabeth H. Coray, as administratrix of the estate of Don R. Coray, deceased, against LaFayette Hol-brook and W. B. Searle, in which defendant W. B. Searle filed a counterclaim against defendant Holbrook. Judgment for defendant Holbrook. Plaintiff and defendant Searle appeal.

Appeal froom District Court, Fourth District; Hon. J. H. Booth,, Judge. Tabby W. White was convicted of murder in the first degree and he appeals. STATEMENT OE PACTS.

<p>Appeal from District Court, Second District; Hon. J. A. Howell, Judge.</p> <p>Action by Alice E. Kislingbury against Joseph E. Evans, as administrator of the estate of Joseph D. Carroll, deceased.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

Geo. G. Armstrong, Judge. Action by Jens S. Hansen against Michael Mauss and the Miller-Cahoon Company. Judgment against Miller-Caboon Company after dismissing tbe action against defendant Mansa. Miller-Caboon Company appeals. APPELLANT'S POINTS.

<p>1. Pleading — Sufficiency on Demurrer. The test of the sufficiency of a complaint on demurrer is not whether it is so deficient as not to sustain a judgment for plaintiff upon proof of its allegations. (Page 376.)</p> <p>2. Pleading — Conclusions of Law. Allegations of the complaint, in an action for damages for wrongfully transferring corporate stock on the company’s books, that the transfer was “wrongful and without lawful authority,” were insufficient on demurrer as mere conclusions.1 (Page '376.)</p> <p>3. Corporations — Stock—Transfer—Entry on Books — Necessity. Corporate by-laws providing that no transfer of stock shall be valid except between the parties, until entered on the corporate books, are for the benefit of the corporation, and, between the owner and his transferror, will not invalidate a transfer by oral order or otherwise of the owner’s right to stock without entering it on the corporate books; no stock having been actually issued to the stockholders. (Page 377.)</p> <p>4. Corporations — Stock—Transfer—Entry on Books — Necessity. A stockholder may transfer his equitable title to shares by delivery of the certificate without complying with the by-laws for transferring shares, though the certificate provides that the shares are transferable only on the surrender of the certificate. (Page 378.)</p> <p>5. Sales — Effect of Death of Parties. If a transfer of personal property is complete as between the parties before the death of the transferror, his death will not affect the rights of the transferee, though third persons interested may not be bound without a record of the transfer. (Page 379.)</p> <p>6. Corporations — Stock—Wrongful Transfer — Remedy of Stockholder. A corporation which, without authority or willfully transfers stock on its books, is liable in an action for its conversion by the stockholder, and, if the stock has not passed to an innocent purchaser for value, the stockholder may either recover the value of the stock or he reinstated as a stockholder in an action against both the corporation and the transferee. (Page 379.)</p> <p>7. CORPORATIONS — Stock—Wrongful Transfer — Actions for Damages — Parties. Where a corporation, sued for damages for •wrongfully transferring stock, alleged that a third person was the real owner, by the authorized substitution of his name as stockholder, as well as by limitations and estoppel, such third person should have been made a party defendant before further action was taken in the suit so as to protect the rights of all parties in one action. (Page 380.)</p> <p>8. Trial — Findings—Conclusions. A finding that an action by an administrator was not barred by the statute of limitations was in the nature of a conclusion; the proper finding being to find when the cause of action accrued, when the action was commenced, and if the owner of the cause of action died before its commencement, when the legal representative was appointed. (Page 381.)</p> <p>9. Executors and Administrators — Actions—Limitations. Under Comp. Laws 1907, section 2890, providing that if one entitled to sue died before the expiration of the time limited for the commencement of the action, an action may be commenced by his representatives after the expiration of that time and within a year from his death, a right of action existing in decedent at his death must be brought within a year from his death by his administrator. (Page 381.)</p> <p>10. Witnesses — Competency—“Person Interested.” Where a corporation was sued by an administrator for damages for wrongfully transferring stock belonging to intestate, the secretary was not disqualified from testifying as to the transfer as a “person interested in the event,” within Comp. Laws 1907, section 3413, providing that any person directly interested in the event of an action shall not be a witness when the adverse party sues or defends as administrator as to any transaction equally within the knowledge of his witness and decedent. (Page 382.)</p> <p>11. Witnesses — Cross-Examination. A witness, in an action for damages for the wrongful transfer of corporate stock, who was shown on direct examination to have made the entry of transfer at a certain time, was properly asked on cross-examination as to the circumstances under which the entry was made and the authority under which witness acted. (Page 383.)</p> <p>12. Witnesses — Competency—Actions by Administrator — “Person Interested.” Where a corporation was sued by an administrator for damages for wrongfully transferring stock, a third person, claimed by the corporation to be the owner of the stock by transfer from intestate and by estoppel, was precluded, though.' not a party to the suit, from testifying as to liow his claim to ownership arose, under Comp. Laws 1907, section 3413, providing that any person directly interested in the event of the action shall not he a witness when the adverse party sues as administrator as to any transaction with decedent or matter of fact which was equally within the knowledge of witness and decedent; the facts as to witness’ claim being equally within decedent’s knowledge. (Page 383.)</p> <p>13. CORPORATIONS — STOCK—WRONGFUL TRANSFER — ACTIONS—BURDEN of Proof. The burden of showing that defendant corporation wrongfully and without authority transferred corporate stock is upon plaintiff in an action for damages for such wrongful transfer. (Page 384.)</p>

<p>1. Specific Pebfobmance — Parol Contracts — Evidence—Sufficiency. Plaintiff seeking the specific performance of a parol contract must establish the terms thereof with a greater degree of certainty than is required in an action at law, and he must show a clear, mutual understanding and a positive assent of both parties to the terms of the contract.1 (Page 387.)</p> <p>2. Appeal and Error — Findings—Conclusiveness. Where, in a suit for the specific performance, plaintiff positively testified to the contract, and defendant positively denied entering into any contract, and there were circumstances supporting both parties, the court, on appeal, will not disturb the refusal of the trial court to grant relief on the ground of a failure to sufficiently establish the contract. (Page 388.)</p>

<p>1. Highways — Law of the Road — Negligence. Where a statute required motorists to reasonably turn to the right and give a team one-half of the way, and to take other precautions, if reasonably necessary, a motorist is not guilty of negligence if, in his judgment, he adopts those precautions which, under the circumstances, seem to him most reasonable, though he does not take all of the precautions suggested by the statute; the question of negligence being for the jury. (Page 393.)</p> <p>■2. Tbtal — Btjbden of Pboof — Instbuctions. In an action for neg1 ligence, an instruction that plaintiff must prove that defendant was negligent in some respect as alleged, and “if, upon any of these issues, you find that the evidence is equally balanced, or the preponderance is in favor of defendant, you must find for him,” was not erroneous; for the word “any,” in the second sentence, refers to the issues mentioned above, and does not extend the burden to the whole case.1 (Page 394.)</p> <p>3. Pleading — Denial—Mode of Denial. In an action for injuries caused by defendant’s negligence, where defendant in his answer described the occurrence, and followed that statement by a general denial, all of the allegations of the complaint were denied. (Page 395.)</p> <p>On Application foe Rehearing.</p> <p>4. Highways — Law of Road — Negligence. Under Laws 1909, chap- . ter 113, providing that, if a horse or other draft animal shall appear to be frightened, the person operating a motor vehicle shall immediately stop, the motorist’s failure to stop is negligence per se.2 (Page 396.)</p>

<p>Appeal from. District Court, Second District; Hon. N. J. Harris, Judge.</p> <p>Action by C. M. Beason against Western Meat Company.</p> <p>Judgment for defendant. Plaintiff appeals.</p>

<p>1. Evidence — Declarations—Self-Serving. Where one oí tbe parties to an action produces in evidence a part only of a conversation or writing, bis adversary may offer tbe remaining portions, if tbey qualify or explain those already introduced, though they may be self-serving. (Page 414.)</p> <p>2. Evidence — Declarations—Self-Serving. Where, in an equitable proceeding instituted by an heir against other heirs and others to declare and enforce a trust in property of the estate, the defendants conceded that a trust had been created, there would be no necessity of qualifying or explaining their answers in other actions alleging that such a trust was created and placed in evidence by the plaintiff, by admitting excluded portions which alleged that the plaintiff had received a sum as satisfaction of his share of the property in suit; and such a paragraph was inadmissible as self-serving. (Page 416.)</p> <p>3. Trusts — Pleading. In an action by an heir against other heirs to declare a trust in property of the estate, that the plaintiff had received his distributive share of the estate is a matter of affirmative defense, which must be pleaded. (Page 416.)</p> <p>4. Appeal and Error — Harmless Error. Possible error in refusing to admit excluded portions of answers made by defendants in former actions, other portions of which had been admitted on behalf of plaintiff, was harmless, where the defendants testified to the same facts as the answers alleged without proper objection. (Page 416.)</p>

W. T7. Maughan, Judge. Paul Hansen was convicted of adultery and be appeals. STATEMENT OE FACTS. It is charged in the information that the defendant, a married man, on the 21st day of May, 1910, at Cache County, Utah, committed the crime of adultery by then and there having carnal knowledge of the body of a certain unmarried woman therein named, hereinafter referred to as the prose-cutrix.

<p>1. Homicide — Evidence—Res Gestae. Where a person, after holding up a pawnshop; was pursued hy several persons, fired several shots at his pursuers, and when caught by the deceased turned and shot him, evidence of the robbery, flight, and pursuit were admissible as illustrating and characterizing the act of the defendant in a prosecution for the homicide. (Page 434.)</p> <p>2. Homicide — Evidence—Res Gestae — Purpose of Admission. Such testimony was admissible not only to' evidence the intent, but also to show the motive of the shooting. ■ (Page 435.)</p> <p>3. Homicide — Tkial—Instructions—Language of Statute. Where a court in its charge defined first degree murder, in the language of the statute (Comp. Laws 1907, sec. 4161), as murder perpetrated in one of several ways, though the allegation of the information alleged and the state’s .proof tended to prove that the defendant willfully, maliciously, etc., shot and killed the deceased, the instruction was proper, as the different kinds of first degree murder enumerated were so connectedly set forth as to render it difficult to state one in the language of the statute without stating the others. (Page 437.)</p> <p>4. Criminal Law — Trial—Instructions-t-Gharge as a Whole. A charge as to murder in the first degree in the language of the statute was not erroneous, where' the court also told the jury that the defendant could not be convicted for the commission of all or any of the “unlawful. acts immediately prior or subsequent to the killing” of the deceased; that, “in this case, the state does not rely for a conviction on the theory that the homicide charged in the information .was committed in the perpetration of or attempt to perpetrate a burglary or robbery;” that a finding of the previous commission of a robbery or burglary would not change the degree of murder or manslaughter; and also charged a conviction only on the ground that the jury found beyond a reasonable doubt that the killing was unlawful, willful, deliberate, and premeditated with malice aforethought, and with a specific intent to take the life of the deceased, clearly defining the terms used. (Page 437.)</p> <p>5. Criminal Law — Trial—Instructions—Credibility of Witnesses —Province of Jury — “Liberty.” An instruction that the jury, if they believed “any witness had willfully testified falsely as to any material fact in the case,” were “at liberty to disregard the whole of the testimony of such witness, except as he may have been corroborated by credible witnesses or credible evidence,” was not improper as requiring the jury to reject or accept any portion of the testimony of such a witness, as the word “liberty,” as used in the charge, implies freedom and choice. (Page 438.)</p> <p>6. Criminal Law — Trial — Instructions — Credibility of Witnesses. The instruction on the credibility of witnesses was not improper as implying that, if a witness were corroborated, the jury could not reject all or a part of his testimony, where in other portions of the charge the court expressly told the jury that they were the “sole judges of the weight of the evidence, the credibility of the witnesses, and of the facts;” that they were “not bound to believe all that the witnesses may have testified to, nor are you bound to believe any witness;” that “you may believe one witness as against many, or many as against one;” that it was their duty to reconcile conflicts in testimony; and properly instructed them on the proving power and the credibility to be given the testimony of the defendant. (Page 438.)</p> <p>7. Criminal Law — Appeal and Error — Harmless Error. The giving of an instruction on the credibility of witnesses was harmless, where the defendant was the only witness in his own behalf, and the only material point in controversy was as to whether the shooting was intentional or accidental, as the verdict of the jury could not have been reached under a belief that a witness for the state willfully testified falsely to a material fact not in dispute. (Page 441.)</p> <p>8. Homicide — Imposition of Penalty — Discretion of Jury. Under the statute which gives a jury rendering a verdict of first degree murder discretion to make a recommendation that the defendant be imprisoned for life and vesting in the court the right to use its discretion in acting thereon with no alternative but to impose the death penalty, where no recommendation is made, where the court, in a prosecution for a homicide, advised the jury that the making or withholding of the recommendation was entirely within their discretion, and gave them no intimation or direction as to. what should control or influence in reaching a conclusion, the imposition of the death penalty upon a verdict of murder in' the first degree without a recommendation was proper.1 (Page 442.)</p> <p>9. Homicide — Evidence. Evidence, in a prosecution for homicide, held to sustain a conviction for murder in the first degree. (Page 442.)</p>

<p>1. Homicide — Criminal Responsibility — Defenses—Self-Defense. While a person need not have actually been armed to justify another in shooting in self-defense, the shooting must not have been without apparent cause, and a mere showing that a person shot made a motion toward his hip pocket will not necessarily excuse his assailant from criminal liability for his act. (Page 446.)</p> <p>2. Criminal Law — New Trial — Newly Discovered Evidence — Cumulative Evidence. Where, in a prosecution for assault with intent to murder, in which the defendant was convicted of an assault with intent to do bodily harm, the shooting, which was the basis of the charge, was shown to have taken place in broad daylight, and the facts thereof were testified to by eight or nine witnesses, the granting of a motion for new trial on the ground of newly discovered evidence is not justified by affidavits showing evidence which merely corroborates the defendant’s version and to some extent contradicts or modifies the statements of some of the state’s witnesses; such testimony being merely cumulative. (Page 447.)</p>

<p>Appeal from District Court, Third District; lion. T. D. Lewis, Judge.</p> <p>L. P. Robinson was convicted of selling intoxicants without a license. He appeals.</p>

<p>Appeal from District Court, Fifth District; Hon. Joshua Greenwood, Judge.</p> <p>A. P. Springer ivas convicted of adultery and appeals.</p>

A. R. Christensen, Judge. Action by Susie Lewis and another, by her guardian ad litem, Susie Lewis, against Rio Grande Western Railway Company. Judgment for plaintiffs. Defendant appeals. APPELLANT'S POINTS. We believe it is both fundamental and elementary as a rule of evidence that one cannot presume a fact from a mere presumption. In other words, a presumption cannot be based up,on a presumption.

<p>Municipal Cobpobations — Defective Stbeets — Negligence—Question fob Juey. In an action for injuries to a traveler on a defective street, evidence held to justify a verdict that an employee of the waterworks department of the city, lawfully digging an excavation in the street, negligently failed to fill it in a proper manner, and that the unsafe condition was due to his act, and not to the act of a trespasser.</p>

Geo. G. Armstrong, Judge. Action by Granville Deming against Josephine Moss, ad-ministratrix of the estate of E. H. Moss, deceased. Judgment for plaintiff. Defendant appeals. APPELLANT^ POINTS.

<p>Appeal from District Court, Seventh District; Hon. A. H. Ghrisiensen, Judge.</p> <p>Action by E. J. Cook against the Green River Mutual Irrigation Company.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from District Court, Third District; Hon O. W. Morse, Judge.</p> <p>Action by Carmine Hirabelli against Max Daniels.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

<p>1. ASSIGNMENTS FOB BENEFIT OF CREDITORS — ACCOUNTING BY ASr signee. In an action hy the stockholders of an assignor against an assignee for creditors for an accounting, evidence held to sustain a finding that the property of the assignor was sold by the manager of the assignee for $15,000, rather than $18,000, as claimed by plaintiffs. (Page 522.) .</p> <p>2. Judgment — Stipulations—ConclusiVeness—Evidence— Proceedings in Another Cause. A corporation which was a defendant in. an action against it as assignee for creditors, brought by stockholders of insolvent corporation to recover a balance claimed to have been collected on a sale of the res and not paid over, after the submission of the action, commenced an action against its manager and the purchaser to determine the amount of the sale price. A judgment fixing the amount was entered in the latter case, and by stipulation of the parties to the first action the court files, evidence, verdict, and judgment were introduced in evidence. Held, as a judgment rendered by a court having jurisdiction is, in the absence of fraud or collusion, conclusive as to the relation of debtor and creditor and the amount of the indebtedness as to third parties in a subsequent suit, the stipulation being sufficient to bring the adjudication into the present suit, it concludes the parties; and a supplemental answer, setting up the judgment as a bar, was properly allowed to be filed.1 (Page 523.)</p>

<p>1. Homicide — Evidence—Sufficiency. In a prosecution for murder in the first degree, evidence held to support a conviction. (Page 527.)</p> <p>2. Geiminal Law — Evidence—Admissibility. While an accused cannot he compelled to give evidence against himself by submitting to a comparison of his foot with prints found at the place of the commission of a crime, at the solicitation of a sheriff, he voluntarily places his foot in the tracks left by the criminal or surrenders his shoes to the sheriff for such comparison, he cannot object to testimony as to the comparison. (Page 536.)</p> <p>3. Criminal Law — Confessions—Voluntary Confessions. Where after the arrest of one accused of murder he was asked to make a statement, though warned that it would be used against him, a confession then made is admissible, though accused was still suffering from the effects of chloroform taken with suicidal intent, he being in possession of his faculties. (Page 537.)</p> <p>4. Criminal Law — Trial—Arguments of Counsel. In a prosecution for homicide, where the schedule time of a car on which accused claimed to have ridden was material, a statement by the district attorney in his argument that as he recalled the evidence the car left Main street at a certain hour, coupled with a further statement, when accused made objection that the time had been misstated, that he would leave it to the memory of the jurors, was not a prejudicial misstatement of evidence. (Page 538.)</p> <p>5. Criminal Law — Arguments of Counsel — Objections. Improper argument of counsel cannot be reviewed where objection was not made at the time. (Page 539.)</p> <p>6. Homicide — Deliberation of Jury — Viewing Premises. Comp. Laws 1907, sec. 4870, provides that when it is proper that the jury should view the place of the offense the court may order the jury to be conducted there in the custody of an officer, and section 4882 provides that if the jury desire to be informed on any point of law they must require the officer to conduct them into court where the information must be given them in the presence of or after notice to the district attorney and the accused or his counsel. Held, that a request by the jury made after they had retired to deliberate that they be permitted to view the place where the homicide was committed; was properly denied, where notice had not been given to the district attorney or to accused or his counsel. (Page 539.)</p> <p>7. CniMmAL Law — New Trial — Newly Discovered Evidence. In a prosecution for homicide, though the time at which defendant boarded a street car was material to corroborate or discredit. his statement that he left the place where the homicide occurred a few minutes before the killing, evidence alleged to be newly discovered that the power was off during the trip of the car which defendant claimed to have boarded, and defendant’s testimony that the power was off while he was on the car, was not ground for a new trial, not being of such a character as to probably alter the verdict, and defendant having omitted to testify as to the stoppage of the car at the trial. (Page 540.)</p>

<p>Appeal from District Court, Fifth District; Hon. Johma Greenwood, Judge.</p> <p>Dudley Gillies and Stanley Puffer were jointly convicted of the larceny of a cow. Both appeal.</p>

<p>Appeal from District Court, Fourth District; Hon. J. E. Booth, Judge.</p> <p>Donald Chipman was accused and convicted' of fornication. He appeals.</p>

<p>1. Taxation — Refund—Statutes. A claim for a refund of taxes collected on property not subject to taxation is not within Comp. Laws 1907, sec. 511, subd. 7, authorizing the board of county commissioners to settle accounts chargeable against the county, nor within sections 531 and 533, providing for the presentation of claims to the board of county commissioners and for appeals from the action of the board rejecting claims.1 (Page 566.)</p> <p>2. Taxation — Refund—Actions—Limitations. An action for a refund of taxes collected on property not subject to taxation is barred by the four years’ statute of limitations, and not by Comp. Laws 1907, sec. 583, limiting the time to sue on claims against a county rejected by the county commissioners. (Page 567.)</p> <p>3. Taxation — Refund—Actions—Complaint. A complaint in an action against a county to recover taxes illegally collected, which alleges that the taxes were levied on real estate mortgages, that plaintiff paid the taxes to prevent a sale of his property, and that he had notified the board of county commissioners in writing that the taxes were on real estate mortgages and were void, and had demanded a refund, and that the board had refused to make a refund, does not state a cause of action within Comp. Laws 1907, sec. 2684, authorizing a party deeming taxes unlawful to pay the same under protest and sue for the taxes paid, but states a cause of action within section 2642, providing that taxes paid more than once, or erroneously or illegally collected, may be refunded by order of the board of county commissioners. (Page 567.)</p> <p>4. Appeal and Error — Questions Reviewable — Theory of Cause in Trial Court. The rule that an appellant may not on appeal depart from his theory in the trial court does not apply to an appeal from a judgment of dismissal rendered on sustaining a demurrer to the complaint; and the question on appeal is whether the complaint states a cause of action so as to entitle plaintiff either to the relief prayed for or to any substantial relief. (Page 568.)</p> <p>5. Statutes — Construction—Meaning of Language. The court in construing a statute must give its language its ordinary and usual meaning, unless restricted by other statutes. (Page 568.)</p> <p>6. Taxation — Recovery of Taxes Paid — Statutes. Comp. Laws 1907, sec. 2684, authorizing a party deeming a tax unlawful to pay the same under protest and sue therefor, permits a taxpayer to contest the right of a county to collect a tax by paying it under protest and then suing to recover it, but a taxpayer must indicate the tax he deems unlawful, and pay it under protest to lay a foundation for an action to contest its legality, and, before the board of county commissioners may order a refund thereof, the illegality of the tax must be established in a court of competent jurisdiction.2 (Page 568.)</p> <p>7. Taxation — Recovery of Taxes Paid — Statutes. Comp. Laws 1907, sec. 2642, providing that any taxes paid more than once or erroneously or illegally collected may be refunded by order of tlie board of county commissioners, refers to such taxes only which a county has no authority to collect, and in case of collection has no legal right to retain, and a payment of such taxes need not he made under protest to compel a refund. (Page 569.)</p> <p>8. Taxation — Recovery of Taxes Paid — Statutes. A taxpayer who pays taxes illegally collected within Comp. Laws 1907, sec. 2642, authorizing a refund of taxes illegally collected, must notify the hoard of county commissioners that the county receiving the taxes has no authority to collect them nor right to retain them, and must demand a refund thereof, and on such a demand the commissioners must adjust the matter and order a refund. (Page 569.)</p> <p>9. Taxation — Recovery of Taxes Paid — Actions. A taxpayer who pays illegal taxes may recover them, in an ordinary action for money had and received, from the officer to whom he has paid them, or, where such officer has paid them over to the county, then from the county. (Page 573.)</p> <p>10. Taxation — Recovery of Taxes Paid — Pleading. A complaint in an action against a county for taxes illegally collected which alleges that the taxes were levied on real estate mortgages, that the taxes were illegal, that they were paid to avoid a sale of the property, and that at various times plaintiff notified in writing the board of county commissioners that he had paid the taxes on real estate mortgages and demanded that they be refunded', and that the commissioners had refused to refund them, sufficiently alleges a demand for a refund within Comp. Laws 1907, see. 2642, providing that any tax illegally collected may be refunded by order of the board of county commissioners, and action for money had and received lies to recover the taxes. (Page 574.)</p> <p>11. Pleading — Demurrer—Admissions. A demurrer to a complaint admits the facts alleged therein. (Page 574.)</p>

J. E. Booth, Judge. Actions by Charleston Co-op. against A. W. Allen and Bros, a partnership, consisting of A. W. Allen and others, and by Louis Sweat against A. W. Allen and others, co-partners doing business under the firm name of A. W. Allen and Bros., in which attachments were issued. Judgment for plaintiff in each ease. Defendants appeal.

<p>Appeal from District Court, Third District; Hon. Goa. G. Armstrong, Judge.</p> <p>Action by M. E. Smith ag’ainst the Columbus Buggy Company, the Consolidated Wagon & Machine Company, and another.</p> <p>Judgment for plaintiff against the Consolidated Wagon & Machine Company, and it appeals.</p>

<p>Appeal from District Court, Third District; Hon. O. W. Morse, Judge.</p> <p>Action by Jennie B. Parsons against 0. 0. Parsons.</p> <p>Judgment for defendant. Plaintiff appeals, and defendant moves to dismiss the appeal.</p>

J. A. Howell, Judge. Action by Elibu G. Neighbor against the Pacific Realty Association. ■ Judgment for plaintiff. Defendant appeals. APPELLANT'S POINTS. The appellant had an. option on the property and had a right to buy it from Bertha A. Dailey.