Volume 41 — Utah Reports

<p>Boundaries — Establishment — Recognition and Acquiescence. Where adjoining landowners have occupied their respective premises up to a certain line, which they and their predecessors in interest have recognized and acquiesced in as the boundary line between their lands for over forty years, neither they nor their grantees or privies in estate will he permitted to deny that such boundary line is the true division line.1</p>

M. L. Ritchie, Judge. Condemnation proceeding by the Telluride Power Company aginst Moses Brtmeau. Plaintiff appeals from judgment assessing defendant’s damages. APPELLANT’S POINTS. In eminent domain proceedings, the general rule of damages obtains, which is, that damages to be recoverable must be certain and direct. Contingent, speculative and remote damages are excluded from the consideration of the jury. (Postal Tel.

<p>1. Justices of the Peace — Appeal—Time to Appeal — Waiver of Notice oe Entry of Judgment. A defendant, who attacks by certiorari an adverse judgment of a justice’s court, waives notice of the entry of judgment, within Comp. Laws 1907, sec. 3744, authorizing an appeal within thirty days after notice of entry of judgment; and an appeal, not taken within thirty days after certiorari proceedings, is not taken in time, though thereafter plaintiff served notice of entry of judgment, and defendant appealed within thirty days after such notice.1 (Page 19.)</p> <p>2. Justices of the Peace — Appeal—Time to Appeal — Waiver of Notice of Entry of Judgment. The purpose of Comp. Laws 1907, sec. 3744, authorizing an appeal from a justice’s judgment within thirty days after notice of entry of judgment, is to apprise the defeated party of judgment against him, so as to permit him to take an appeal; but the notice is waived where he appeals without notice, or by some other direct attack seeks to modify or annul the judgment. (Page 20.)</p> <p>3. Justices of the Peace — Appeal—Time to Appeal — Waiver of Notice of Entry of Judgment. A defendant, against whom a default judgment in justice’s court has been rendered, may wait until notice of the entry ■ of judgment has been served on him and appeal within thirty days, as provided by Comp. Laws 1907, sec. 3744; or he may, by certiorari, assail the proceeding for want or excess of jurisdiction. (Page 21.)</p>

Geo. G. Armstrong, Judge. Actions by E. J. Lichtenberger, E. E. Howson and another, and Auguste Mathez against Samuel Newhouse. Judgment for plaintiff in each case. Defendant appeals. STATEMENT OE PACTS.

<p>Appeal from District Court, Third District; Hon. F. 0. Loofbowrow, Judge.</p> <p>Dora B. Topbam was convicted of pandering. She appeals.</p>

Joshua Greenwood, Judge. U. Gustaldi was charged with murder in the first degree. The state appeals from an order and judgment discharging, defendant from custody.

<p>1. Municipal Corporations — Imposition or Taxes — Ordinances— Modification. Where an ordinance is necessary to authorize a municipality to impose a tax, either general or special, an ordinance imposing a tax can only he amended or repealed by the adoption of another ordinance with same formalities required to adopt the original. (Page 75.)</p> <p>2. INTOXICATING LIQUORS-LICENSE FEES — RATES-STATUTORY AUTHORITY. Comp. Laws 1907, see. 511, subd. 11, authorizing the county commissioners to fix the rates of license taxes, is general, and applies to all occupations and callings on which a license tax may be imposed; but section 1244, requiring the board of county commissioners to determine the amount of a liquor license tax after the filing of a petition for a license, statement, and bond, controls the fixing of a liquor license tax. (Page 76.)</p> <p>3. Municipal Corporations — Licenses — Statutory Authority. Where Comp. Laws 1907, sec. 1244, requiring the board of county commissioners to fix a liquor license tax at not less than $400 for a year after the filing of a petition, statement, and bond in proceedings for the granting of a liquor license, was amended and re-enacted by Laws 1907, chap. 74, after the commissioners of the county had adopted an ordinance fixing the amount of a liquor license fee at one hundred dollars per quarter, the commissioners must thereafter impose a license fee as provided by the statute as amended, and not as provided by any ordinance; and, after the filing of a petition for a liquor license, statement, and bond, the commissioners could fix the amount of the fee, subject to the statutory limitation. (Page 77.)</p> <p>4. Intoxicating Liquors — License Fees — “Payment Under Protest” — Statutes. Where a liquor license fee was not imposed without authority or contrary to law, a payment of the fee under protest was not within Comp. Laws 1907, sec. 2684, authorizing the recovery of licenses unlawfully imposed. (Page 78.)</p> <p>5. Intoxicating Liquors — License Fee — Payment Under Protest— Statutes. Evidence held to support a finding that a payment of a liquor license fee was not made under protest, within Comp. Laws 1907, sec. 2684, authorizing the recovery of license fees paid under protest. (Page 78.)</p>

<p>Appeal from District Court, Fifth District; Hon. Joshua Greenwood, Judge.</p> <p>Action by J. W. Hardy and another against Beaver City and others.</p> <p>Judgment for defendants. Plaintiffs appeal.</p>

<p>1. Appeal and Eerok — Review—Findings—Conclusiveness. The trial court’s findings in a law case will not be disturbed on appeal, if sustained by substantial evidence. (Page 95.)</p> <p>2. Account, Action on — Evidence—Sufficiency. In an action against a meat storage corporation on an open account, evidence held to sustain findings that tbe goods were purchased by defendant’s general business manager, and were resold for defendant’s benefit. (Page 95.)</p> <p>3. Evidence — Documentaey Evidence — “Books oe Original Entky.” Mere order slips or shopbooks, in which orders for goods are entered as received, are not “books of original entry,” within the rule under which shopbooks of original entry are admitted in evidence to prove the account, when the entries contained therein are properly proved or established. (Page 96.)</p> <p>4. Sales — Delivery—Evidence. An account for goods sold was properly proven by plaintiff’s salesman testifying that he sold the goods on orders received from defendant’s manager, that the orders were placed on slips, and when the goods were shipped out the items were compared with items on the order slips and cheeked, and after being so compared and checked the order slips were placed as loose leaves in a book, and then treated as original entries, and by the salesman’s testimony identifying all the orders and stating that he personally knew that the goods were all delivered to defendant, especially in connection with further testimony that he afterwards went over all the items with defendant’s manager, and found the goods had been delivered. (Page 96.)</p> <p>5. Evidence — Preceding Transactions — Admissibility. In an action against a corporation on an open account for goods sold, it was proper to receive in evidence record of transactions occurring before the sales to show that defendant always conducted business in its corporate name on the property described in its articles of incorporation, and that all the proceeds of the business were deposited in its name and applied to its use, where defendant denied that he was engaged in business a part of the time during which the goods were delivered. (Page 98.)</p>

<p>1. RAILROADS — INJURIES TO STOCK — SUFFICIENCY OF EVIDENCE — NEGLIGENCE. Evidence in an action against a railroad company for killing torses on the track held not to sustain a finding that defendant’s engineer was negligent in that lie could have seen the horses on the track before they were struck. (Page 108.)</p> <p>2. Negligence — Inference. While negligence may he inferred, there must be some facts from which the inference may he deduced. (Page 109.)</p> <p>3. Negligence — Sufficiency of Evidence — Inferential Negligence. Inferential evidence of negligence is overcome by defendant’s undisputed testimony negativing negligence, so that, if plaintiff’s case rests wholly on inferential evidence, the case should be taken from the jury.1 (Page 109.)</p>

J. A. Howell, Judge. Action by Mettie C. Armstrong, Administratrix of the Estate of Isaac Armstrong, deceased, ¿gainst the West Coast Life Insurance Company. Judgment for plaintiff, for partial relief and she appeals.

<p>Appeal and Erroü — Haemless Ebkob — Institutions. In an action against a municipality for personal injuries alleged to have resulted from snow and ice on- a crosswalk, where there was evidence for defendant that the walk was in good condition, that there was some ice as a result of thawing and freezing, hut that there was no obstruction on the walk on that account, the refusal of a requested instruction on defendant’s theory of the case that defendant was not liable for plaintiff’s injury from ice or snow on the walk unless it was rough and uneven or the walk was so maintained as to create an obstruction to travel, and that defendant was not liable for such injury resulting from mere slipperiness caused "by the ice on the walk, was reversible error.</p>

<p>1. Boundaries — Evidence—Presumption—Field Notes op Second Survey. The presumption that corners have been established at the places indicated by the field notes relates to the field notes of the controlling survey, and has no application where the question is what was the corner of a lot as established by an original survey, and the field notes in evidence are those of a second survey by another surveyor; but the only presumption as to such field notes is that what is recited in them is prima facie correct. (Page 131.)</p> <p>2. Boundaries — Evidence—Presumption—Field Notes op Second Survey. From the fact that the field notes of a second survey recite that certain monuments were found, one at the intersection of certain streets, and another at a certain corner of a certain lot, a statement by the surveyor making such notes that the monuments are the originals, or that they were placed by an official surveyor, or that they are precisely where they were placed by the original surveyor, cannot be assumed. (Page 132.)</p> <p>3. Boundaries — Evidence—Presumption—Field Notes op Second Survey. Even if from the recital of the field notes of a second survey, that certain monuments were found, one at the intersection of certain streets, and one at a certain corner of a certain lot, an inference may be deduced that the monuments were placed there by some one in authority, and that the field notes of the original survey if found would show that the monuments were where they were placed, tlie inference is weaker than is the presumption founded on field notes of the original survey, and so requires less to overcome it. (Page 133.)</p> <p>4. Appeal and Error — Review—Question op Fact or Law. Where findings are based merely on a presumption of fact, and the presumption is entirely dissipated, they are unsupported by evidence, and the question becomes one of law.1 (Page 134.)</p> <p>5. Boundaries — Evidence—Presumption—Field Notes op Second Survey. Any presumption as to the original location of a boundary, arising from the recital of the field notes of a second survey as to certain monuments being found, held entirely dissipated by the other facts and circumstances in evidence. (Page 134.)</p> <p>6. Appeal and Ekkor — Review—Evidence—Equity Case. A suit to quiet title being an equity case, the judgment of the Supreme Court on the whole evidence may be invoked, and the findings being, in its judgment, clearly against the weight of evidence, it will vacate them and substitute others. (Page 137.)</p>

<p>Appeal from District Court, Third District; Son. M. L. Ritchie, Judge.</p> <p>Action by Elleu Fitzpatrick against Aaron A. Brown.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

M. L. 'Ritchie, Judge. Action by Neis Johnson against tbe Utah Consolidated Mining Company. Judgment- for defendant. Plaintiff appeals. STATEMENT OF FACTS. Plaintiff brought this action to recover damages for personal injuries alleged to have been sustained by him on May 28, 1909, while employed as a miner in defendant’s mine in Bingham Canyon, TJtah.

Stbaup, J., dissenting. Appeal from District Court, Fourth. District; Hon. J. E. Booth, Judge. Joseph Lindsay was convicted of selling intoxicating liquors in violation of city ordinances, and he appeals.

<p>Appeal from District Court, Fourth District; Hon. J. E. Booth, Judge.</p> <p>Theodore Nicholes was convicted of selling intoxicating liquors contrary to- an ordinance of American Fork City, and he appeals.</p>

Steaup, J., dissenting. Appeal from District Court, Third District; Hon. Geo. G. Armstrong, Judge. Action by Nevada Exploration and Mining Company against Cyrus H. Spriggs and others. Judgment for defendants. Plaintiff appeals. APPELLANT’S POINTS.

N. J. Harris, Judge. Action bj Ogden Valley Trout and Resort Company against T. J. Lewis. Judgment for defendant. Plaintiff appeals. APPELLANT^ POINTS. Proof of fraud in a transaction with one person is not even presumptive proof of fraud in another and different transaction with another person, and is inadmissible. (Simpkins v. Bergren, 2 Ill. App. 101; McKay v. Bussell, 3 Wash. 378, 28 Pao. 908, 28 Am. St. Rep. 44; Somes v. Skinner, 16 Mass. 348; Levy v. Lee, 13 Tex. Civ.

<p>1. Triai — Findings—Amendment. Comp. Daws 1907, sec. 3005, confers jurisdiction on the court under certain circumstances to relieve a party from a j'udgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect on such terms with reference to costs as may be proper, etc., and section 3168 provides that, on the trial of a question of fact by the court, its decision must be given in writing and filed with tlie clerk within thirty days after the cause is submitted for decision, but that the court at any time before notice of appeal is served or filed, or before motion for a new trial is ruled on, may add to or modify the findings in any respect so as to make the same conform to the issues presented by the pleadings and to the evidence adduced at the trial, but that no such additions to or modifications of the findings shall be made,. unless notice in writing, specifying generally the additions or modifications desired, shall have been served on the adverse party or his attorney. Held that, independent of such sections, the court, after the expiration of the term at which an action was tried and determined, notwithstanding the pendency of a motion to retax costs, had no jurisdiction to modify the findings on its own motion. (Page 204.)</p> <p>3. LICENSES — Use of Real Property — Easement Distinguished. Where intervener constructed and used a canal over plaintiff’s land for a millrace and irrigation ditch to furnish water for motive power for the mill, and to irrigate certain lands, and such canal, though originally constructed by consent of plaintiff's grantor, had been used and maintained ■ for such purposes for more than twenty years when plaintiff purchased the same, intervener’s right to maintain, protect, and improve it was not a mere license, but an easement acquired by prescription. (Page 206.)</p> <p>3. Easements — Water Canal — Maintenance. Where intervener had acquired a prescriptive easement to maintain a water canal over plaintiff’s land, intervener was entitled to enter on the land to clean out and make necessary repairs to the canal, doing no unnecessary injury to the servient estate. (Page 208.)</p> <p>4. Master and Servant — Injuries to Third Persons — Trespass by Servants. Where defendant, having an easement to maintain a water canal over plaintiff’s land, sent workmen to clean out and repair the canal, a finding that they trespassed on ground not necessary for their work was insufficient to warrant a recovery against intervener, since in so trespassing the workmen acted beyond the scope of their employment, rendering themselves, and not intervener,- liable for their acts. (Page 210.)</p>

J. A. Howell, Judge. Action by William S. Smoot against Joseph Checketts- and another, doing business under the name of Checketts & Bradeson, and others. Judgment for plaintiff. Defendants appeal.

<p>1. Jury — Mode op Impaneling — Challenges. Under Comp. Laws 1907, sec. 4826, providing that before a juror is called defendant must be informed that if he intends to challenge an individual juror he must do so when the juror appears and before he is sworn, and section 4828, providing that the challenge must be tafeen when the juror appears and before he is sworn to try the ease, though the court may for cause permit it to be taken after the juror is sworn and before the jury is completed, after the challenges for cause to the first twelve jurors are passed on, before others are called to take the places of those excused for cause, right to peremptorily challenge those remaining in the jury box must be exercised or waived by the state and defendant.1 (Page 229.)</p> <p>2. Criminal Law — Change oe Venue — Impossibility oe Pair Trial — Discretion. Under Comp. Laws 1907, sec. 4799, providing that a criminal action may be removed to another county on application of defendant, on the ground that a fair and impartial trial cannot be had in the county where the action is pending, section 4800, requiring the application to be supported by affidavit, and section 4802, providing that if the court is satisfied that the representations of the applicant are true, it must order the removal, the application is addressed to the sound discretion of the court, and, unless it clearly appears that it abused its discretion in denying the change, that it ought to have been satisfied from the showing that a fair and impartial trial could not be had in the county where the ease was pending, its action will not be disturbed.2 Page 230.)</p> <p>3. Criminal Law — Trial—Taking Exhibits to Jury Room. Though Comp. Laws 1907, sec. 4881, provides merely that the jury, on retiring for deliberation, may take certain papers with them, they may, with permission of the court, take with them exhibits other than papers. (Page 235.)</p> <p>4. Criminal Law — Appeal—Harmless Error — Deliberation oe Jury. That a revolver and overalls, properly admitted in evidence, were, on retirement of the jury, taken to the jury room without permission or knowledge of the court was not prejudicial. (Page 238.)</p> <p>5. Criminal Law — Trial—Misconduct of Juror — Remark in Jury Room. The remark of one of the jurors, relative to a revolver properly admitted in evidence, but taken to' the jury room without the permission of the court, that it “was a murderous loking instrument, and that it showed conclusively the intent” • of defendant, did not constitute misconduct. (Page 239.)</p> <p>ON APPLICATION FOR REHEARING.</p> <p>6. Criminal Law — Appeal—Review—Exceptions. An exception to the whole of an instruction, when part of it contains a correct statement of the law, is not good.3 (Page 240.)</p> <p>7. Cbiminaí Law — Appear—Assignments oe Error — Abandonment. An assignment of error neither referred to in appellant’s brief, nor mentioned in his oral argument, will he treated as waived.4 (Page 242.)</p> <p>8. Criminar Law — Appear—Rehearing—Exceptions. A rehearing in a capital case, on the ground of error in an instruction, will not he denied because of insufficiency of the exception to the part of the instruction complained of. (Page 242.)</p> <p>9. Criminar Law — Appeal—Rehearing—Abandoned Assignments oe Error. Though to the rule that ordinarily a rehearing will not he granted to review a question presented hy an assignment of error not urged or considered on. the hearing, especially where it was intentionally abandoned, exception is made when it is apparent that denial thereof will wort manifest injustice, rehearing for considering an assignment, shown hy the record to have been deliberately and intentionally abandoned, to an instruction, erroneous' because of undertaking to direct the jury how they should consider the question of recommending life imprisonment in a murder case, will not be granted on the bare possibility that on a retrial the jury might, notwithstanding the absence of any mitigating fact or circumstance^ make such a recommendation, and the court might possibly follow it. (Page 242.)</p>

<p>1. Adultery — Marriage—Admissions. On a prosecution for adultery, the voluntary and deliberate admissions of accused are sufficient proof that he was a married man at the time the crime was committed.1 (Page 248.)</p> <p>2. Criminal Law — New Tbial — Newly Discoveeed Evidence — Diligence. After two trials of a criminal case, a new trial for newly discovered evidence to establish an alibi was properly denied for lack of diligence, where the only excuse given by accused for not procuring such evidence earlier is that he had forgotten that on the night the crime was committed he was attending a social party. (Page 250.)</p> <p>3. Cbiminal Law — New Trial — Newly Discovered Evidence — Materiality. The granting of a new trial, in a prosecution for adultery, on the ground of newly discovered evidence showing that at the time the prosecuting witness testified the crime was committed accused was not at the place where she testified it was committed, where such evidence would have been merely cumulative, and where testimony that accused admitted the commission of the crime although not on the date testified to, was uncontradicted, was in the discretion of the trial court, and its denial was not error, since, time not being material because neither descriptive nor of the essence of the offense, such new evidence would not have raised a reasonable doubt of accused’s guilt. (Page 250.)</p>

<p>Appeal from District Court, Seventh District; Hon. A. II. Christensen, Judge.</p> <p>Action by John A. Walker and others against the Consolidated Wagon and Machine Company.</p> <p>Judgment for plaintiffs. Defendant appeals.</p>

J. A. Howell, Judge. Action by Sarah. E. Gams against C. O. Rollins, Plaintiff appeals from a judgment granting insufficient relief. STATEMENT OE EAOTS. This is an action involving the title and tbe right to use certain waters which accnmnlate upon plaintiff’s land. The appeal is on the judgment roll alone.

<p>Mechanics’ Liens — Enfobcement—Liability of Owneb. Where-lessees, with the consent of the owner, employed a contractor to make alterations in the leased premises at their own expense, according to specifications furnished hy the owner’s architect, one performing work and furnishing materials for the alterations could not enforce a lien against the owner.</p>

<p>1. Infants — Capacity to Take Title to Land. The mere fact that a grantee in a deed is an infant does not prevent the title from passing. (Page 283.)</p> <p>2. Cbrtiobap.i — Pbocbedings—Review. Where a district court has taken prohate jurisdiction of an estate, the Supreme Court, on certiorari to determine whether it had jurisdiction therein, cannot inquire into the irregularity of the proceedings, or whether the court may have erred id matters of law, when the acts constituting the alleged irregularities were not in excess of jurisdiction. (Page 284.)</p> <p>3. Bastaeds — Who Abe Illegitimate. Under the common law a child not conceived or born in lawful wedlock was denominated fllius nullis — a bastard. (Page 284.)</p> <p>4. Bastards — Legitimation—Statutes. Const, art. 3, effective January 4, 1896, forever prohibits polygamous or plural marriages. Comp. Laws 1907, sec. 1184, makes plural marriages void, and section 1185 provides that the issue of all such marriages, if contracted in good faith, are legitimate issue of both parents if horn or conceived before it was discovered that the marriage was void. Section 2833 provides that an illegitimate child is the heir of his mother. Section 10 provides that the father of an illegitimate child, by publicly acknowledging it as his son, receiving it into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it, and such a child is deemed for all purposes legitimate from the time of its birth. Sections 2833 and 2834 relate to inheritances by and from illegitimate children. Section 2850 legtimates the issue of polygamous marriages heretofore contracted between members of the Church of Jesus Christ of Latter Day Saints, born on or before January 4, 1896, the date of the beginning of the state government, and entitles them to inherit from both parents and to all rights and privileges to the same extent and in the same manner as though born in lawful wedlock. Reid, in view of the constitutional and statutory provisions as to plural marriages and legitimacy, that section 2850, was intended to apply only to the issue of Mormon or plural marriages, and not to children illegitimate at common law. (Page 284.)</p> <p>5. Bastards — Property—Inheritance by Bastards. Under the common law an illegitimate child had no inheritable rights and could not inherit property. (Page 288.)</p> <p>6. Bastards — Property—Transmission by. Under the common law an illegitimate child had no inheritable blood and could not transmit property except to the heirs of his body. (Page 288.)</p> <p>7. Bastards — Property—Transmission by Bastards — Statutes. Comp. Laws 1907, sec. 2850; which legitimatizes the issue of polygamous marriages between members of the Church of Jesus Christ of Latter Day Saints, born on or before January 4, 1896, the date of the commencement of the state government, and entitles them to inherit from both parents and to all rights and privileges, to the same extent and in the same manner as though born in lawful wedlock, was intended to remove the stigma of bastardy, including the disability to transmit property, and thereunder the father of a child born of a plural marriage, who has publicly acknowledged the child and cared for him in his own family as his son, may inherit from such child. (Page 288.)</p> <p>8. Certiorari — Existence of Remedy on Appeal — Discretion. Where an application for a writ of certiorari to the district court acting in a probate proceeding, in which its jurisdiction was denied, was presented at a time when an appeal might have been taken and was pending for a time within which the right to appeal lapsed, the existence of the right to appeal was not jurisdictional, and the court had a discretion in granting or refusing the right. (Page 292.)</p>

<p>1. Cotjets — Decision—“Dictum.” A “dictum’’ is an opinion expressed by the court, which, not being necessarily involved in the action,, lacks the force of an adjudication. (Page 305.)</p> <p>2. Munich*al Corporations — Torts—Independent Contractor-Liability. Where the work required by a street paving contract was such as to necessitate constant supervision with • reference, not only to the preparation, but to the laying of the materials, that the contract provided that the city should have authority to inspect the work, order necessary changes, and require the contractor to discharge any incompetent or disobedient employee, etc., did not confer on the city any right to interfere with the methods the contractor employed to do the work, or to do more than see that it was properly executed; and the contractor was an independent contractor, and not the servant of the city, which was not therefore liable for injuries to the property of third persons by the contractor’s alleged negligence. (Page 305.)</p>

1 District; Son. J. A. Sowell, Judge. Action by Nellie Bennett Stuart against John D’ouglas Pederson. Judgment for plaintiff. Defendant appeals. STATEMENT OP PACTS. In the year 1901 the defendant Pederson, having invented a repeating shotgun containing pateptable improvements, and being then engaged in perfecting such improvements and the drawings therefor, entered into an agreement with one A. L. Bennett, who was a gun expert and a traveling salesman of sporting goods.

<p>1. Embezzlement — Evidence—Admissibility, In a prosecution, for embezzlement, where accused defended on the ground that he had openly and notoriously appropriated the property under a claim of title, evidence that he had in good faith offered to sell the same was admissible. (Page 323.)</p> <p>2. Ceiminal Law — Evidence—Self-Serving Declarations. In a prosecution for embezzlement of property, where accused defended upon the ground of open' and notorious appropriation under claim of title, he was competent to testify as to his offers to sell the property; such testimony not being incompetent as self-serving declarations. (Page 323.)</p> <p>3. Criminal Law — Appeal—Harmless Error. In a criminal prosecution, erroneous exclusion of evidence on behalf of defendant was harmless, where it was- brought out by the state on cross-examination. (Page 324.)</p> <p>4. Criminal Law — Trial—Arguments of Counsel. In a prosecution for embezzlement of property, where accused defended on the ground of open and notorious taking under claim of title, and there was no evidence tending to show that he attempted to escape, a statement by special counsel for the state that accused was sneaking round and trying to get away was improper, and the court should have admonished the jury to disregard it. (Page 324.)</p> <p>5. Witnesses — Cross-Examination—Scope. Cross-examination of a witness in a criminal trial on purely collateral matters, not touched on in the direct examination, and which have no bearing, direct or indirect, on the issue, is improper. (Page 324.)</p> <p>6. Witnesses — Contradiction—Collateral Matters. A witness cannot be impeached as to matters that are wholly collateral and tend in no way to prove any issue of fact in the case. (Page 325.)</p> <p>7. Criminal Law — Witnesses—Trial—Cross-Examination—Discretion of Trial Court. The latitude of the cross-examination of a witness rests largely in the discretion of the trial court, whose ruling will not be disturbed unless an abuse of its discretion appears. (Page 325.)</p> <p>8. Criminal Law — Appeal—Prejudicial Error. Where the state was allowed to cross-examine accused as to wholly collateral matters, not referred to in his direct examination, and was later permitted to call witnesses to disprove statements made by him on such cross-examination, it was an abuse of discretion constituting prejudicial error as tending to discredit accused with the jury. (Page 325.)</p> <p>9. Criminal Law — Issues—Instructions. In a prosecution for embezzlement, where the evidence as to accused’s open appropriation under claim of title was conflicting, accused was; under Comp. Laws 1907, sec. 4383, providing that it is a sufficient defense to an indictment for embezzlement that the property was openly appropriated under claim of title in good faith, even though such claim is untenable, entitled to an instruction to that effect. (Page 325.)</p> <p>10. Embezzlement — Prosecution—Instructions. In view of Comp. Laws 1907, sec. 4848, providing that a defendant in a criminal action shall be presumed innocent until the contrary is proved, and in case of a reasonable doubt as to his guilt he shall be acquitted, an instruction, in a prosecution for embezzlement, that if it appeared beyond a reasonable doubt that accused had the property in his possession at the time and place set forth in the information, and that he converted it openly under a claim of title preferred in good faith, he should be acquitted, though the claim of title was untenable, does not sufficiently submit the defense of conversion under claim of title; the burden being erroneously placed on accused. (Page 325.)</p>

<p>1. Quo Warranto — Nature of Proceeding — Parties Entitled to Sue. The proceeding in the nature of quo warranto, regulated by Comp. Laws 1907, sec. 3609 et seq., authorizing an action against one usurping a public office, or against a corporation to forfeit its privileges and franchises, and requiring the Attorney-General, when directed by the Governor, to commence such action, and providing that when on complaint or otherwise he has good reason to believe that any case can be established, he shall commence an action, and that he may on leave of court bring the action on the relation of another, is to determine and vindicate rights of a public nature only, and in all cases the Attorney-General must bring the action in the name of the state on his own relation, or on leave of court on the relation of another, except that one claiming to be entitled to a public office unlawfully exercised by another may bring an action in quo warranto in the name of the state. (Page 331.)</p> <p>2. Quo Warranto — Nature of Proceeding — Parties Entitled to Sue. Where a statute authorizes an individual claiming a right to a public office to bring quo warranto, he alone may control the action.1 (Page 333.)</p> <p>3. Schools and School Districts — Action to Test Validity of School District — Bight of Citizen or Taxpayer. A citizen and resident taxpayer of an alleged high school district has no such interest in the validity of the organization of the district as to authorize him to sue in the name of the state to test the validity of the organization of the district. (Page 333.)</p> <p>4. Schools and School Districts — Corporations—Validity— Right to Question. A school district is created by law, and is an arm of the state, and the state alone may attack the validity of its organization. (Page 336.)</p> <p>5. Schools and School Districts — Organization—Validity— Right to Question — Remedies. A resident and taxpayer of an alleged high school district may, under Comp. Laws 1907, sec. 914 et seq., contest an election to determine the question of the organization of the district, but the remedy is not exclusive, but cumulative with the remedy by quo warranto. (Page 336.)</p> <p>6. Quo Warranto — Parties Entitled to Attack — Estoppel. The state, unless estopped for special reasons, may assail the organization of any public corporation by quo warranto, and others haying the necessary interest in the subject of the action may in a proper manner also assail such organization. (Page 337.)</p> <p>7. Quo Warranto — Parties Entitled to Sue. Where there is a union of public and private interest, an individual in whom the private interest is vested may file an information setting forth the facts, including the nature of his interest, and present it to the Attorney-General, or state’s attorney, who may bring such action to determine the rights of the individual, and, where the Attorney-General or state’s attorney refuses to sue, the individual may present the information to a court having jurisdiction to hear actions in quo warranto to require the Attorney-General or state’s attorney to show cause why he should not bring the action on the relation of the individual, and, on such application, the Attorney-General or state’s attorney may show good cause why the action should not be instituted, and the court, if satisfied with the reasons, may refuse the application, but otherwise it may order the bringing of the action on the relation of the individual, and on a hearing render judgment granting proper relief. (Page 337.)</p>

Geo. G. Armstrong, Judge. Action by Helen M. Holman against the Deseret Savings Bank and another, and John N. Eslinger and another, inter-venors. Judgment for defendants. Plaintiff appeals.

N. J. Harris, Judge. Action by J. A. Smith and another against the Orpheum Amusement Company and others. Judgment for plaintiffs against defendant J. H. Garrett alone. He appeals.

<p>Appeal from District Court, Sixth District; lion. J. F. Ghidester, Judge.</p> <p>William Chynoweth was convicted of larceny and he ap-</p>

<p>1. Trial — Directed Verdict. The propriety of directing a verdict for defendant is tested by the question whether all reasonable men would draw the same conclusions from the evidence, and whether that conclusion requires a verdict for defendant. (Page 366.)</p> <p>2. Mines and Minerals — Leases—Interference with Operations —Jury Questions. In an action by a lessee of a block of mining ground for damages in being prevented from operating under his lease through defendant lessors working the block immediately above, causing the ground to cave and cover up plaintiff’s ore, whether the caving was caused by defendant’s act, and whether the working of the upper block was necessarily a nuisance and an interference with plaintiff’s operations, held, under the evidence, jury questions. (Page 366.)</p>

<p>1. Railroads — Persons on Track — Action foe Collision — Evidence — Admissibility. In an action against a railway company for injury to the child of an employee, who was struck by a train, evidence, not only that she and members of her family had customarily crossed the track at that point in going from a depot to a water tank at which the company supplied the family with water for domestic use, but that other persons had crossed on similar occasions and under similar circumstances, was admissible under the complaint, which alleged substantially, though inartifically, facts imposing "a legal duty on the company to use ordinary care to maintain a lookout for persons who might be expected to be about the track at that point, and to give timely signals. (Page 374.)</p> <p>2. Railroads — Duty to Pedestrians. "Where persons customarily crossed a railroad track in going to a water tank, where they were provided by the railroad company with water for domestic use, the company in operating its trains was bound to use ordinary care to maintain a lookout to discover the presence of such persons as might naturally be expected to be at that point, and give them timely warnings or signals of the approach of a train. (Page 376.)</p> <p>3. RAILROADS — INJURY TO PEDESTRIAN — NEGLIGENCE — EVIDENCE — ■ Sufficiency. In an action against a railroad company for injury to a child, struck by a train while crossing the trade at a point customarily used by pedestrians, evidence held to warrant a finding of negligent failure to maintain a lookout and give timely warnings or signals. (Page 376.)</p> <p>4. Railroads — Injury to Pedestrian — Contributory Negligence— Jury Question. In an action against a railway company for injury to a child while crossing a track, whether she was guilty of contributory negligence held, under the evidence, a jury question. (Page 376.)</p> <p>5. Negligence — Contributory Negligence — Children. The question whether a ten and a half year old child was guilty of negligence contributing to her injury is to be determined by consideration of the care that an ordinary child of her age, intelligence, and experience would have used. (Page 376.)</p> <p>6. Railroads — Injury to Pedestrian — Licensees. The child of a railway employee was not a trespasser or bare licensee in crossing a track to procure water for use of her family, provided by the railway company at a tank. (Page 377.)</p> <p>7. Railroads — Injury to Pedestrian — Last Clear Chance. In an action against a railway company for injury to a child, who was struck by a train, existence of a duty to maintain a reasonable lookout to discover persons who might be near the track, and a clear view of the track in advance of the moving train, rendered applicable an instruction on the last clear chance doctrine. (Page 377.)</p>

<p>1. Taxation — Assessment—Designation of Owners. Under Comp. Laws 1907, section 2529, providing that unpartitioned property of deceased persons may be assessed to tbeir heirs, guardians, etc., or any one of them; evidence that unpartitioned property was assessed to “S. P. R. et al." S. P. R. being one of the heirs of the deceased owner, was sufficient to sustain a finding that the property was properly assessed, and the taxes properly levied so as to create a lien thereon. (Page 382.)</p> <p>2. Taxation — Tax Deed — Attack—Payment oe Taxes as Condition Precedent. A tax deed will not he set aside as a cloud on the title for mere irregularities, not affecting the substantial justice of the tax, without requiring the payment to the holder of the tax title of all taxes and costs paid by him which were a just and legal charge on the land, with interest. (Page 383.)</p> <p>3. Taxation — Tax Titles — Interest Acquired by Holder oe Certificate oe Sale. Under Comp. Laws 1907, section 2597, providing that a tax on real property is a lien thereon, and section 2595, providing that such lien is in legal effect a judgment continuing in force until the taxes are paid, a person purchasing the property at- a tax sale and receiving a certificate of sale acquires by subrogation a lien on the property. (Page 384.)</p> <p>4. Eminent Domain — Proceedings—Parties. Under Comp. Laws 1907, section 3595, providing that in an eminent domain proceeding any person claiming an "interest in the property sought to be condemned may appear and defend, the person who has - purchased the property at a tax sale and received a certificate . of sale may be made a party to the proceeding, or may voluntarily intervene and have his lien established and the amount thereof ascertained. (Page 384.)</p> <p>5. Eminent Domain — Concltjsiveness oe Judgment — Persons Concluded. A purchaser of land at a tax sale, who has received a certificate of sale, is not deprived of his lien on the property or his right to redress by a proceeding to condemn such property, where he is not made a party and does not voluntarily intervene. (Page 384.)</p> <p>6. Eminent Domain — Incumbrances—Subject-Matter to Which Lien Attaches. Ordinarily liens against property, of which a portion only is condemned, 'are shifted to the portion not condemned, to the extent, at least, that the portion condemned is held only for the deficiency in case the proceeds from a sale of that not condemned are insufficient to pay the liens. (Page 385.)</p> <p>7. Eminent Domain — Incumbrances—Rights and Liabilities of Purchaser of Property. Where a portion of a lot which had previously been sold for taxes was condemned, but the holder of the tax title was not made a party, and no provision for payment of his lien out of the award was made, and there was nothing to show that the uncondemned portion of the lot was not ample security for its proportionate sliare of the taxes, it was improper, in a subsequent suit to quiet title, to adjudge that the whole amount of the taxes was a lien on the property condemned; and only its proportionate share of the taxes should have been adjudged to be such lien. (Page 385.)</p>

<p>1. Tenancy in Common — Purchase by Cotenant — Rights Acquired. Where the interests of tenants in common in real estate are segregated, as where the interest of one is separately assessed and sold for delinquent taxes, or where an execution is levied on such interest, based on a judgment against one for his individual debt, or where there is an outstanding title against the property from some source other than the one under which the tenants hold, one tenant may become a purchaser of such interest or title, and may ordinarily, acquire an interest in the premises as against his cotenant. (Page 394.)</p> <p>2. Tenancy in Common — Payment of Taxes — Purchase at Tax Sale. A tenant in common may not acquire title as against his cotenant by purchasing at a tax sale. (Page 394.)</p> <p>3. Tenancy in Common — Rights of Tenants — Ouster. Where one enters avowedly as a tenant in common with others, his possession is the possession of the cotenants, so long as the tenancy in common is not openly disavowed; and, before adversa possession bv one tenant, against a cotenant can hfisim — the one in possession mnsiuJby j).pjen-and_nntorio.us-acts^-Gleai?l-y.-show that his possession is intended to be exclusive, but hejieed not give actual notice'to ThUcotenant. (Page" 396.)</p> <p>4. Tenancy in Common — Rights of Tenant — Ouster. Where real estate owned by tenants in common is assessed in the name of one of the tenants, or in the name of all, without stating the interest of each, it is the duty of each to pay all the taxes; and the one who pays does so for the benefit of himself and cotenants, and his right against the cotenants is that of contribution only. (Page 399.)</p> <p>5. Tenancy in Common — Rights of Tenant — Ouster. Where a tenant in common purchased outstanding tax certificates before a sale for nonpayment of taxes had ripened into an indefeasible legal title, and paid subsequent taxes and obtained a tax deed, which was void, and thereafter conveyed the title to the whole property, limitations did not begin to run, as against the cotenant at least, until the conveyance; and the eotenant suing to quiet title within seven years after the conveyance was entitled to relief. (Page 399.)</p> <p>6. Tenancy in Common — Tax Title — Purchase by Cotenant— Remedy. Where a tenant in common has the legal title to an undivided interest in real estate, subject to claims against him for taxes paid by the cotenant and bis grantee, the court, at the suit of the tenant in common, may quiet his title on condition that he pays his part of the taxes and accrued interest; and in ease of default the premises must be sold, and out of the tenant’s share the taxes and interest must be deducted, and the balance, if any, paid to him. (Page 401.)</p>

<p>Original application by Steele arad Company for a writ of prohibition against the Third District Court and another.</p> <p>Peremptory writ issued.</p>

<p>Appeal from District Court, Third DistrictRon. Geo. G. Armstrong, Judge.</p> <p>Action by Ferd. J. Fabian against the Wasatcb Orchard Company.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from District Court, Third District; Hon. F. G. Lo'ofbourow, Judge.</p> <p>Action by the Pembroke Stationery Company against Mrs. M. Rogers.</p> <p>Judgment for defendant. Plaintiff appeals.</p>

<p>Appeal from District Court, Third District; Hon. T. D. Lewis, Judge.</p> <p>Harry Thorne was convicted of murder and he appeals.</p>

<p>Appeal from District Court, Fifth District; Hon. Joshua Greenwood, Judge.</p> <p>Henry Forrest was convicted of violating an ordinance of Nephi City, and he appeals.</p>

Geo. G. Armstrong, Judge. Action by Lester PÜano Company against George Romney. Judgment for defendant. Plaintiff appeals. RESPONDENT'S POINTS. A guaranty is a contract, which, after the intention of the parties has been ascertained, must be construed strictly in favor of the guarantor. (Daly v. Old, 35 Utah, 74, 99 Pac. 460; Groolcs v. Propp, 66 N. Y. Sapp. 753; Acme Mfg.

<p>1. Physicians and Surgeons — Relation of Physician and Patient. There was the relation of physician and patient, where defendant called on and examined plaintiff for the purpose of determining the character and extent of his injury, and after the. examination prescribed for him, and gave directions to his mother, who was caring and nursing him, regarding the treatment he should receive at her hands.1 (Page 452.)</p> <p>2. PHYSICIANS AND SURGEONS-LIABILITY FOR NEGLIGENT TREATMENT —Employment by Third Person. Liability of a physician for negligent or unskillful treatment being founded on tort, not contract, it is immaterial that the physician was employed, not by the patient, or any one authorized to act for him, but by one who had injured him. (Page 452.)</p> <p>S. Physicians and Surgeons — Negligent Treatment — Evidence. Evidence in an action for negligent treatment held, to make a question for the jury whether defendant used ordinary care and skill in his diagnosis and treatment of plaintiff’s injury. (Page 453.)</p>

<p>1. Boundakies — Acquiescence. Where the owners of adjoining lands occupy their respective premises up to a certain line which they mutually recognize as the boundary line for a long period of time, they and their grantors may not deny that the boundary thus recognized is the true one.1 (Page 457.)</p> <p>On Application fob Rehearing.</p> <p>2. Boundaries — Evidence—Sufficiency. Evidence in ejectment held to sustain findings in plaintiffs favor as to the existence of surplus land in a block and acquiescence in a boundary line. (Page 460.)</p>

<p>1. Bills and Notes — “Holder eor Value” — Collateral Security. Under Negotiable Instrument Law (Comp. Laws 1907, section 1577), which provides that an antecedent or pre-existing debt may constitute value, whether the instrument is payable at demand or at a future time, section 1578, which provides that, where value has at any time been given for the instrument, the holder is deemed a holder for value as to all parties who became such prior to that time, and section 1579, which provides that, where the holder has a lien on the instrument, he is deemed a holder for value to the extent of his lien, an indorsee of negotiable paper who received it before maturity as collateral for a pre-existing debt, without any further consideration, and without notice of equities or infirmities, is a holder for value, and will be protected against payments made to the original payee before maturity, and before the note was indorsed and delivered. (Page 464.)</p> <p>2. Bills and Notes — Holder for Value — Collateral Security. An indorsee of a note transferred as security for a debt is not rendered other than a holder for value by Comp. Laws, section 1606, which provides that when a transferee receives notice of any infirmity in the instrument, or defect in the title of the person negotiating the same before he has paid the full amount agreed to be paid therefor, he will be deemed a holder in due course, only to the extent of the amount theretofore paid by him, as that section is intended merely to limit the indorsee’s recovery to the amount he had advanced before obtaining notice of some infirmity, and not to affect his fundamental relation to the debtor. (Page 468.)</p>

<p>1. Master and Servant — Jury Question — “Fellow Servants”— Existence or Relation. Comp. Laws 1907, section 1343, provides that all employees who, while at work, are in the same grade of service, and are working together at the same time and place and to a common purpose, neither of such persons being intrusted with any superintendence over his fellow employees, are fellow servants. Held that, where the facts are undisputed, whether co-employees are fellow servants under the statute is a question of law for the court; but if they are in dispute, or conflicting inferences "may be drawn therefrom, the court should construe the several clauses of the statute defining the relation, and charge that if the jury find the facts to be as stated they must find for or against the relation, as the hypothecated facts establish.1 (Page 473.)</p> <p>2. Master and Servant — “Fellow Servants” — “Working Together at the Same Time and Place.” Comp. Laws 1907, section 1343, provides that all persons who, while engaged in the service of ■ a common employer, are working together at the same time and place and to a common purpose, etc., without being intrusted with superintendence, are “fellow servants.” The court instructed that the term “working together at the same time and place” does not mean that the employees were working at the exact spot and doing exactly the same kind of work, but means whether, in the discharge of their duties, they are thrown in such contact with each other that they may have a fair opportunity of observing the habits and demeanor of each other,, so as to form a conclusion as to the carefulness of the habits of the other. Held, that the instruction was erroneous, as it was not essential to constitute two employees fellow servants that they should have been thrown in contact for such time as to enable them to observe the habits of each other. (Page 476.)</p> <p>3. Master and Servant — Fellow Servants — Nature oe Common-Service. In a railroad employee’s action for personal injuries, the court instructed that the term “same grade of service,” as used in Comp. Laws 1907, section 1343, defining fellow servants, does not mean whether they earn the same amount of money, or whether they are doing exactly similar work, but means whether they are on the same level, so far as the exercise of an authority over each other is concerned, and also instructed that the term “working to a common purpose,” as used therein, meant whether their work may fairly be said to be within some division or department of the employer’s business, and directed to some end within such division or department. Held, that the definitions given of the statutory terms were incorrect.2 (Page 477.)</p> <p>4. Appeal and Error — Prejudicial Error — Instructions. The error in the instructions defining the phrases “same grade of service,” “working together at the same time and place,” and “working to a common purpose,” was prejudicial to plaintiff. (Page 479.)</p>

<p>Appeal from District Court, Third' District; Hon. O. W. Morse, Judge.</p> <p>Quo warranto by the State, on the relation of Carl M. Morek, against Charles H. White, to try title to office.</p> <p>Judgment for relator. Defendant appeals.</p>

<p>Appeal from District Court, Second' District; Hon. J. A. Howell, Judge.</p> <p>Action by George Geanakoules against tbe Union Portland Gement Company.</p> <p>Judgment for plaintifh Defendant appeals.</p>

<p>1. Election of Remedies — Lien—Waiver. Comp. Laws 1907, section 1403, gives one who keeps and stores personalty for . another a lien for bis reasonable charges. Section 1405 provides that such lien may be enforced without an action, by advertisement and sale. Section 1406 provides that nothing in the chapter shall take away the right of action of a lienor for his charges, or any residue thereof after sale. Section 3851 provides that claims against estates arising under contracts, whether due or not, must be presented to the administrator within the time limited in the notice to creditors, provided that nothing therein shall prohibit the foreclosure of liens or mortgages as thereinafter provided. Section 3858 permits an action to be brought without notice by any lienholder to foreclose the lien against property of the estate, where all recourse against any other property is expressly waived in the complaint. Held, that a warehouseman by presenting to the executor a claim against an estate for storage charges, without mentioning his lien, and, after rejection of the claim, by suing thereon to recover the amount thereof without mentioning the lien, which action was dismissed, did not make an election of remedies so as to bar the assertion of his warehouseman’s lien by way of counterclaim, in a subsequent action by the executor to recover the property. (Page 493.)</p> <p>2. Warehousemen — Foreclosure of Lien — Equitable Action. A warehouseman’s lien may be foreclosed in an equitable action.1 (Page 494.)</p> <p>3. Election of Remedies — General Doctrine. Where there is a duty to elect as to a particular remedy, the bringing of an action based upon one remedy constitutes an irrevocable election, except in case of mistake of fact or other legal excuse. (Page 495.)</p> <p>4. Words and Phrases — “Election.” “Election,” says Judge Story, “is the obligation imposed on a party to choose between two inconsistent or alternative rights or claims, in cases where there is a clear intention of the person from whom he derives one that he should not enjoy both.” (Page 495.)</p> <p>5. Statutes — Construction. In construing and applying statutes, the courts must keep in view the language of the statute and the actual conditions to which it is intended to apply. (Page 499.)</p> <p>6. WAREHOUSEMEN — LlENS—ASSERTION IN REPLEVIN ACTION, A warehouseman’s lien may be enforced to the extent of the amount found due, by way of counterclaim in a replevin action to recover the property. (Page 500.)</p>

M. L. Ritchie, Judge. Action by Walter G. Tuttle and others against Helen Sowadzld and another. From the judgment defendants appeal and plaintiffs cross-appeal in part.

J. A. Howell, Judge. Action by George W. Swan (against the Salt Lake and Ogden Railway Company and others. Judgment for plaintiff. Defendant named appeals. RESPONDENT'S POINTS. Appellant was negligent both in placing its high tension wire in suck dangerous proximity to the telephone pole and in its continued maintenance thereafter, and was not only-liable for the original wrong in so placing it, but was equally liable for permitting it to so remain.

<p>1. Municipal Cobporations — Liability foe Injuey — Failure to Exercise Coepoeate Functions. A city is not liable for any injury which does not result from a negligent discharge of some duty within the scope of its corporate powers, and ministerial in its nature, or unless it itself, or its agents or officers, acting within the scope and in pursuance of its corporate powers or functions, negligently or wrongfully caused the injury. (Page 537.)</p> <p>2. Municipal Corporations — Liability fob Obstructing Watercourses. A city is under no duty to keep a stream which, courses through it in a safe condition and free from obstruction. (Page 537.)</p> <p>3. Municipal Corporations — Liability for Injury — Acts of Police. Where police officers of a city extended netting across a stream in an endeavor to recover the body of a drowned boy, the act was not in the discharge of any corporate power or function of the municipality, or on account of any municipal benefits, but in the discharge and in pursuance of a mere governmental duty, so that the city could not be held liable for the negligent and wrongful discharge of such duty, whereby a portion of the wire remained in the stream and caused an obstruction of the flow.1 (Page 537.)</p>

<p>1. Homicide — First Degbee Murder — Evidence—Sufficiency. Evidence field to sustain a conviction of first degree murder. (Page 543.)</p> <p>2. Criminal Law — Instructions—Refusal. In a murder trial, refusal to instruct that accused could not be convicted if he did not intend to shoot, and if the shooting was accidental, and caused by decedent’s attempt to take the gun from him, was not justified by the giving of abstract instructions that an accidental homicide is excusable, etc. (Page 543.)</p> <p>3. Cbiminal Law — Concrete Instructions — Right to. Accused is entitled to concrete instructions, if they are requested, though abstract ones have been given.1 (Page 543.)</p> <p>4. Criminal Law — Harmless Error — Instructions—Effect of Drunkenness. Under Comp. Laws 1907, sec. 4070, which provides that an act is no less' criminal because committed while accused was intoxicated, but that his intoxication may be considered on a question of motive, it was prejudicial error to instruct, in a murder trial, that evidence of drunkenness was admissible only on the question of premeditation, followed by instructions that in cases of premeditated murder drunkenness is immaterial. (Page 545.)</p> <p>5. Homicide — Murder—Burden of Proof. Though Comp. Laws 1907, sec. 4856, provides that on proof of a homicide accused has the burden to show mitigation, justification, or excuse, it was error to instruct that “presumptively every killing is murder,” since the burden to prove malice and intent to kill was on the prosecution; the statute merely requiring accused to produce sufficient evidence of justification or excuse to create a reasonable doubt as to whether the homicide was justified or excusable.2 (Page 550.)</p> <p>6. Homicide — Murder—Intent and Malice — Proof. To convict of murder, it is not essential that intent and malice be shown by direct evidence. They may be presumed from the fact of the killing where no attendant and explanatory facts and circumstances are shown, and where the attendant facts and cir- ' cumstanees of the killing are shown they may be inferred. . (Page 550.)</p> <p>McCarty, J., dissenting in part, and concurring in part.</p>

<p>Appeal from District Court, Fifth, District; Hon. Joshua Greenwood, Judge.</p> <p>Action by James Morgan against Child, Cole & Company..</p> <p>Judgment of nonsuit. Plaintiff appeals.</p>

<p>Gaming — Statutes—Construction—Felony—Seizure. Laws 1911, chap. 134, amending Comp. Laws 1907, sec. 4261, provides that a person who runs a gambling game shall be guilty of a felony, and requiring all sheriffs, etc., on learning that any person has in his possession specified gambling devices, to seize them, and requiring the judge to inquire, and, if he determines that the same are used or kept for use at any game or game of chance described in this act, to destroy them. Held, that it is not necessary that the property of a person charged with and prosecuted for gambling should be seized, but the offense of gambling within the statute may be shown, and the statute enforced wholly independent of the seizure of the property or the constitutionality of that portion of the statute.</p>

<p>Cancellation of Instktjments — Actions—Admission of Evidence. A complaint alleged that in 1899 defendant owned a tract in Idaho, which he conveyed to his father, then plaintiff’s husband, by unrecorded deed, and that plaintiff’s husband died in 1902, devising his realty to plaintiff; that after his death defendant fraudulently took the deed of the Idaho property from decedent’s papers and destroyed it, and refused to return it to plaintiff on request; that in 1904, to avoid litigation to quiet title in herself, plaintiff conveyed realty owned by her in S. to defendant, upon agreement that he would return to her the deed of the Idaho property, which he had then destroyed; and that defendant thereafter sold such property and converted the proceeds to his own use, and took possession of the S. property, and conveyed it to his wife without consideration. The answer alleged that defendant’s deed of the Idaho property to his father was only to enable the latter to take the hay on the land and not to convey title, and that the deed was redelivered to defendant by his father for the purpose of vesting defendant with title, and that he destroyed such deed in good faith; that plaintiff conveyed the S. property to defendant of her free will and without any agreement by defendant, but in consideration of services he had rendered to plaintiff and her father, Plaintiff offered in evidence the pleadings, findings, and judgment in a former action between the parties, which showed the facts as to defendant’s taking the deed from his father’s papers, the agreement under which the plaintiff conveyed the S. Property to defendant, defendant’s refusal to return the deed, etc., and the other facts put in issue by the pleadings herein. Held, that the offered evidence was material and properly received.</p>

<p>1. Divoece — Appeal—Time for ’Taking — Final and Interlocutory Decrees. An appeal from a final decree of divorce, based solely on the findings of fact and conclusions of law on which the interlocutory decree was based, taken more than six months after the interlocutory decree, but within six months after the final decree, does not bring up for review the proceedings resulting in the interlocutory decree, or findings of fact and conclusions of law on which it is based.1 (Page 576.)</p> <p>ON APPLICATION FOR REHEARING.</p> <p>2. Divorce — Grounds—Desertion—Adultery. In an action by a wife for separate maintenance on the ground of desertion, the husband filed a counterclaim for divorce on the ground of her desertion, and she counterclaimed by charging the husband with adultery. The court granted an interlocutory decree of divorce in favor of the husband on findings that the' wife, without cause, deserted him and lived apart from him for several years, when she married another man and cohabited with him, and that the husband, believing, in good faith, the information received by his daughter and son-in-law that the wife had obtained a divorce and had married another man, married another woman and cohabited with her. The court, after the filing of the interlocutory decree, filed a finding that there was no evidence that since the commencement of the action the husband had cohabited with the other woman, but he had lived with her as his wife prior thereto, and .thereafter granted the husband a final decree of divorce. Held, that the finding filed after the interlocutory decree was not inconsistent with the findings on which the interlocutory decree was granted; and on an appeal taken more than six months after the rendition of the interlocutory decree, but within six months of the rendition of the final decree, the findings on the interlocutory decree, on which the final finding was based, cannot be reviewed. (Page 577.)</p>

<p>1. ElectioNs — Nominations by Group. Daws 1911, chap. 126, sec. 825, provides that nominations of candidates may be made by a group of voters by a certificate of nomination, designating the name and emblem which the signers shall select, which certificate shall contain a statement that the names therein will not be printed upon the official ballot of any party ticket as the nominees of any particular party, and will not be printed upon the official ballot under the name or device adopted in the certificate, and requires the officers making up the official ballot to erase from the certificate dny names of nominees contained therein that will otherwise appear printed upon the official ballot. Section 822 defines a convention as an organized assemblage of voters representing a party which cast at least two per cent, of the entire votes in the district at the last election, and forbids any number of voters or convention to nominate more than one group of candidates or more than one ticket by adopting any names other than the regular name or the party represented by the voters. Comp. Laws 1907, sec. 824, provides that certificates of nomination, with certain exceptions, shall be filed with the Secretary of State. Section 832 provides that the officer with whom the original certificate is filed shall finally pass upon the objections to the certificate. Section 829 provides that the Secretary of State immediately upon the expiration of the time to file certificates of nomination shall certify to the county clerk the name and description of each candidate, with other details mentioned in the certificate of nomination. Held, that a group of voters nominating hy certificate may have the names of such nominees placed on the official ballot under the political name and emblem designated in the certificate only when the names of the nominees do not elsewhere appear on the official ballot, so that candidates for district judge and district attorney whose names appeared on the official ballot under the name and emblem of the Democratic Party which at the last preceding election cast more than two per cent, of the entire vote of the district could not also compel the county clerk to place their names on the official ballot under the name and emblem of the Progressive Party, designated and selected by a group of voters in their certificate of nomination. (Page 582.)</p> <p>2. Elections — Ballots—Statutory Provisions. The legislature has power to provide that the name of a nominee or candidate for political office shall he placed hut once on the official ballot, and provide the conditions under which the name of a nominee may appear more than once thereon.1 (Page 586.)</p> <p>3. Statutes — Construction—Legislative Intent. The legislative intent must govern in construing a statute, and it should he construed so as to effectuate such intent as ascertained by the language of the statute. (Page 588.)</p>

<p>Divokce — Review—Interlocutory and Intermediate Judgments and Orders. Where an. appeal from both the interlocutory and final decrees of divorce was taken within six months after the final decree, but not within six months after the interlocutory decree, the validity of the final decree, but not the proceedings leading up to tlie interlocutory decree, were open to review, and lienee where the assignments only attacked the findings and conclusions upon which the interlocutory decree was based, but did not attack their sufficiency to support the final decree, there was nothing for review on appeal.1</p>

M. L. Ritchie, Judge. Action by Charles. G. Bolton and others against James B. Murphy and another. Prom the decree, plaintiffs appeal and defendants assign cross-errors.

<p>1. Pleading — Reference—Instrument Attached to Complaint. Plaintiff may make the instrument which, is the foundation of his action a part of his complaint by reference, and when this is done, and the instrument is attached to the complaint, the statements contained therein may for some purposes be considered in connection with the allegations of the complaint. (Page 611.)</p> <p>2. Contracts — Modification and Merger — Merger in Subsequent Contract. Where the parties to an existing agreement subsequently enter into a new one completely covering the same subject-matter contained in the first, and the later agreement contains terms inconsistent with the first so that the two cannot stand together, the later agreement rescinds and supersedes the former, and constitutes the only enforceable agreement on the subject; but a new agreement with reference to the subject-matter of a former agreement does not supersede the former and destroy its obligation, except in so far as the new agreement is inconsistent therewith, when it appears from the two agreements and from the circumstances that the parties intended the new agreement to supplement, and not to supersede the old. (Page 612.)</p> <p>3. Contracts — Modification or Merger — Extension of Time. An agreement by which defendant was to construct and equip á theater building within a specified time, to be leased by plaintiff, and by which plaintiff agreed to lease the building, when completed and equipped, for a term of ten years at a rental of $60,000, was not merged or superseded by a contemporaneously executed lease in which, before delivery, the date of completion and the date from which rent should be payable were extended for three months, hut the two are to be construed and enforced as one contract, since such construction preserves the manifest intention of the parties, and since the lease thus supersedes only such terms of the original agreement as were incorporated into the lease itself. (Page 612.)</p> <p>4. Landlord and Tenant — Covenants as to Construction and Improvements — Action by Tenant — Waiver of Rights Under Covenants. A lessee under an agreement for the lessor’s erection of a theater, with covenants for its completion and equipment by a certain date, and for its lease for a term of ten years at a rental of $60,000 according to a formal lease contemporaneously executed and placed in escrow until completion of the building, who agreed to an extension of the time for completion from October 1st to November 30th, and who on December 25th when it was not completed or furnished according to the covenants, and in order to avoid a forfeiture of $2,500 to a third party, under protest and without waiving any of his rights under the agreement, took possession and accepted a lease in which the beginning of the term had been extended until the January 1st following, thereby waived only its right to object to the sufficiency of the equipment so far as completed, and did not waive its right to insist that the lessor had entirely omitted to furnish certain things required by the agreement, and was entitled in an action for its breach to recover at least nominal damages. (Page 614.)</p> <p>5. Pleading — Objection to Intboduction op Evidence — Admissions. An objection to the introduction of any evidence in support of a complaint upon the ground that the facts stated therein are insufficient to constitute a cause of action is in legal effect a demurrer, and admits the allegation of the complaint. (Page 618.)</p>