Volume 42 — Utah Reports

<p>1. Judgment — Pleadings to Support — Counterclaim—Issues. Tbe complaint alleged tbat plaintiff and defendant were partners, and tbat defendant retained tbe profits, and demanded an accounting. Defendant denied tbe partnership, and set up a counterclaim for money loaned. Tbe court . found tbat no partnership was entered into, but found tbat defendant was indebted to plaintiff for commissions earned in purchasing property for defendant, but made no finding as to tbe counterclaim, and rendered judgment for plaintiff. HelcL, tbat, in tbe absence of cross-appeal or cross-assignment of errors, tbe court, on defendant’s appeal, could not review tbe finding on tbe question of partnership, but tbat finding must stand, so tbat tbe judgment was not sustained by tbe pleadings. (Page 3.)</p> <p>2. Appeal and Error — Actions at Law — Findings. Where, in a suit for a firm accounting, defendant denied tbe partnership, and set up a counterclaim for money loaned to plaintiff, tbe counterclaim was an action at law, and tbe trial court must make findings of fact; and tbe Supreme Court, on appeal from a judgment rendered without findings on tbe counterclaim, cannot make findings, but must remand tbe case, witb directions to make findings and render judgment tbereon. (Page 4.)</p>

<p>1. Witnesses — Competency—Childeen. A child who has the mental capacity to understand the obligations of an oath and who is capable of receiving just impressions of the facts of which he is to testify is competent to testify. (Page 8.)</p> <p>2. Ceiminal Law — Discretion oe Trial Court — Competency oe Witnesses — Review. Whether a child possesses the necessary qualifications to testify is for the trial court in the exercise of its sound discretion, and, in the absence of an abuse of discretion, its ruling will not be disturbed on appeal.1 (Page 2.)</p> <p>3. Witnesses — Competency—Children. Under Comp. Laws 1907, sec. 3413, providing that children under ten years of age, incapable of receiving just impressions of facts respecting which they aré examined, cannot be witnesses, the action of the court in holding that a boy six years old, who knows what it is to tell the truth and to tell a lie, and that he will be punished if he tells a lie, and that God wants him to tell the truth, and who shows capacity to receive impressions pf facts, is competent to testify is not an abuse of discretion. (Page 10.)</p> <p>4. Sodomy — Evidence—Sueeiciency. Evidence held to support a conviction of assault with intent to commit the crime against nature. (Page 10.)</p> <p>5. Ceimustal Law — Evidence — Cautionary Instructions. On a trial for assault with, intent to commit crime against nature on a boy six years old, an instruction that the testimony of the hoy should be examined with caution because of his age and unfamiliarity with the subject-matter under investigation, and that children are susceptible of impressions oftentimes erroneous, etc., is sufficient to safeguard the rights of accused as to the weight to he given to the testimony of the boy. (Page 14.)</p> <p>6. Criminal Law — Demonstrative Evidence — Admissibility. On a trial for an assault with intent to commit crime against nature on a boy, evidence of the substance found on the underwear worn by the boy at the time was admissible. (Page 14.)</p>

T. D. Lewis, Judge. Action, by Charlotte A. TIomer against the Oregon Short Line Railroad Company. Judgment for plaintiff. Defendant appeals. APPELLANT^ POINTS. A common carrier, in the absence of statutory regulation to the contrary, may by an express contract which is just and reasonable and fairly entered, into with the shipper, limit its common law liability for the loss of or damage to property consigned 'to it for transportation.

<p>Appeal from District Court, Fourth District; Son. J. E. Booth, Judge.</p> <p>Judicial settlement of the estate of Serena Evenson Gardner.</p> <p>Neil L. Gardner and others appeal from an order distributing the estate.</p>

<p>1. Ceiminal Law — Evidence—Statement oe Co-Conspirator. In the trial of two parties for murder, the admission of evidence of a statement made by a third party already convicted for the same offense was not error, where the evidence showed that the statement was made within the hearing of both defendants, and the court instructed that it should not be considered against the defendants, unless made in their presence and hearing, or acquiesced in by them. (Page 56.)</p> <p>2. Criminal Law — Harmless Error — Admission of Evidence. The improper admission of a false statement by one jointly charged with the defendants, but separately tried, as to where he was at the time of the homicide, is harmless where there is no controversy as to where he was at such time. (Page 57.)</p> <p>3. Criminal Law — Appeal—Objection Below — Evidence. In the absence of an objection or request to restrict the application of testimony admissible only against one of two defendants jointly tried for murder, error cannot be predicated upon its admission. (Page 57.)</p> <p>4. Criminal Law — Instruction—Confessions. Though the evidence was conflicting as to whether the defendants understood the full purport of their confessions, the court properly refused to instruct where their confessions were in evidence, that confessions are a doubtful species of evidence, and are rarely sufficient to warrant a conviction, and that, when freely made, they are the weakest of all testimony, and seldom remembered with due precision; such charge being argumentative and invading the province of the jury as to the weight of evidence. (Page 58.)</p> <p>5. Criminal Law — Evidence—Confessions. Confessions and admissions, when made deliberately and voluntarily, and precisely understood, and correctly remembered and related, constitute evidence of the most satisfactory character.1 (Page 59.)</p> <p>6. Criminal Law — Evidence—Self-Servino Statements. The self-serving part of an entire statement admitted in evidence should be duly considered and weighed with the unfavorable part, but all parts of the statement are not necessarily to be regarded as worthy of equal credit. (Page 61.)</p> <p>7. Cbiminal Law — Instruction. In 'the joint trial of two defendants for murder, an instruction reguested by one defendant who claimed he was not actually present “that while one who aids, abets or assists another in the execution of the commission of any crime, yet mere presence or even acquiescence is not alone sufficient to charge one as an accessory, before one can be held guilty as an accessory, some affirmative acts or conduct must be proved beyond a reasonable doubt,” being incomplete and ambiguous, was properly refused. (Page 62.)</p> <p>8. Criminal Law — Instruction—Codefendants. The rights of such defendants were sufficiently guarded by an instruction that, if one defendant killed the deceased as an independent act, the other defendant could not be held for the killing, unless he advised, aided, abetted, assisted, or encouraged the one who did the act. (Page 62.)</p> <p>9. Criminal Law — Instruction—Presumption of Innocence. It was improper to instruct that the presumption of innocence is not intended to aid any one who is in fact guilty to escape, but is a humane provision intended to guard against the danger of an innocent person being unjustly punished; its effect being to indicate the court’s belief in the defendant’s guilt, and fear of an acquittal. (Page 63.)</p> <p>10. Criminal Law — Harmless Error — Instruction. Such instruction was harmless, however, where the court correctly charged on the presumption of innocence and burden of proof, and it appeared that the result would have been the same had the erroneous portion of the charge not been given. (Page 63.)</p> <p>11. Criminal Law — Instruction—Circumstantial Evidence. An instruction which enlarged upon the proposition that circumstantial evidence is competent, and in many cases quite as conclusive in its convincing power as direct and positive evidence, though it unduly emphasizes the probative effect of such evidence, was harmless, where from the whole charge the jury could not have been misled, and there was direct evidence to show both the commission of the offense and the defendants’ connection therewith. (Page 65.)</p> <p>12. Criminal Law — Instructions—Circumstantial Evidence. When all of the evidence is circumstantial, the court should charge the rules applicable to that kind of evidence.2 (Page 66.)</p> <p>13. Criminal Law — Instruction—Penalty. In a homicide case it was error to instruct that, if there are “circumstances in the case which to the minds of the jury would justify a recommendation” that the defendants be imprisoned for life in case of a verdict of murder in the first degree, the jury can make such recommendation; the discretion of the jury in making or withholding a recommendation being an absolute power to be exercised by them without direction from the court as to the reasons that shall govern them. (Page 66.)</p> <p>14. Criminal Law — Harmless Error — Instruction. Such instruction was harmless, however, though it was calculated to convey the idea that a recommendation of life imprisonment would be justified only upon sufficient circumstances, where it appeared that a charge with the objectionable features eliminated would not have produced a different result.3 (Page 66.)</p> <p>16. Criminal Law — Harmless Error — Verdict. Failure of the court' in a homicide case in giving the forms of verdict to the jury to give a form recommending life imprisonment in case of a verdict of murder in the first degree was harmless, where-the court instructed and explained that the jury had a right to make such recommendation. (Page 68.)</p>

M. L. Ritchie, Judge. Action bj John A. Christensen and another against the Hamilton Realty Company and the Salt Lake Security and Trust Company. Judgment dismissing complaint against Salt Lake Security and Trust Company. Plaintiffs appeal.

<p>Appeal from District Court, Third District; Son. C. W. Morse, 'Judge.</p> <p>Action by Arnold G. Giauque against Salt Lake City and another.</p> <p>Judgment for plaintiff. Defendants appeal.</p>

<p>1. Negligence — Automobile Accident — Death of Guest — Speed— Evidence. In an action for the death of an invited guest riding in defendant’s automobile, as the result of the machine skidding and turning over into a ditch, evidence held to require a finding that the machine was not running at a greater speed than fifteen to eighteen miles an hour at the time. (Page 102.)</p> <p>2. Negligence — Automobile Accident — Death of Guest — Speed. Under Laws 1909, chap. 113, limiting the speed of automobiles in the highways outside of incorporated cities to eighteen miles an hour, evidence that at the time decedent, an invited guest of defendant, was killed by the turning over of defendant’s automobile it was being driven on a country highway, described by plaintiffs as in good condition and smooth, and by defendant as somewhat rough, with chuck holes in it, at from fifteen to eighteen miles an hour was insufficient to justify a finding of actionable negligence. (Page 102.)</p> <p>3. Tkial — Instructions—Applicability to Pleadings. In an action for the death of a guest by the turning over of defendant’s automobile while being driven along a country highway, the complaint charged negligence solely in that the machine was being run at a dangerous rate of speed. Held, that instructions authorizing a verdict for plaintiffs, not only on a finding of the negligence alleged, but also if the evidence showed negligent or careless operation, or failure to preserve a reasonable lookout for obstructions or dangers in the road, were erroneous, as beyond the issues. (Page 103.)</p> <p>4. Negligence — Imputed Negligence. Where decedent accepted an invitation by defendant to ride in defendant’s automobile, and decedent sat in the back seat, exercising no control over or direction of the operation or handling of the machine prior to the time it was thrown over an embankment, and decedent was killed, defendant’s negligence, if any, in operating the machine could not be imputed to decedent. (Page 104.)</p>

•Appeal from District Court, Third District: Hon. T. I).. Lewis, Judge. Petition of Martha E'. Vallery for the settlement and allowance of her final account as executrix of Eliza Emily . Pickard, deceased. Petitioner appeals from the final order.

<p>2. Negligence — -Defective Premises — Place of Business Open to Public — Injury to Property of Customer. Plaintiff, a customer of defendant gas company, approached the cashier’s window to pay her gas bill as one of a line of several customers, and when she reached it placed her bag in ink that had been spilled on the counter, which dripped down onto and ruined her gown. There was no evidence that the ink was negligently spilled. Defendant’s cashier thereafter took steps to have it removed. Held, that the facts did not raise a presumption of negligence under the rule res ipsa loquitur, and were insufficient to show actionable negligence. (Page 117.)</p> <p>1. NEGLIGENCE-DEFECTIVE PREMISES-PLACES OPEN TO PUBLIC. A gas company maintaining an office to which, the public was invited to pay gas bills owed to customers while so engaged only the duty of exercising ordinary care and diligence to provide and maintain a reasonably safe place for ingress and egress, and to exercise the same degree of care to prevent injury to them and to their property while lawfully in its place of business or on its premises; the company not being an insurer of the safety of its customers, nor required to avoid all accidents to them or to their property at its peril. (Page 117.)</p>

<p>1. Principal and Agent — Undisclosed Agency — Action by Principal — Complaint. Allegations, in an action on a written contract, that defendant entered upon plaintiff’s land and removed gravel therefrom under the express agreement to pay for it at a certain rate, were sufficient to admit proof of the express agreement and that it was made with the plaintiff’s agent for her benefit, though she was not mentioned. (Page 125.)</p> <p>'2. Pleading — Defect—Waiver. Where a complaint stated a cause of action and was sufficient to admit evidence of a written agreement without formal allegation thereof, the defect therein, if any, was waived by failure to object by special demurrer, being in the nature of a defective statement rather than the omission of a material averment of fact.1 (Page 125.)</p> <p>3. Principal and Agent — Undisclosed Agency — Right op Action by Principal. A contract, although in writing, if not under seal, when made in the name of the person signing it, may he sued upon by the one in whose behalf it was made. (Page 126.)</p> <p>4. Evidence — Parol Evidence — Undisclosed Principal. Parol evidence is admissible to show that the person who made and signed a written contract was acting as the agent of the undisclosed principal by whom action thereon is brought; such evidence being explanatory of, and not contradictory to, the written contract. (Page 126.)</p> <p>5. Principal and Agent — Rights of Undisclosed Principal — Equities or Defenses of Third Person Against Agent. Where an undisclosed principal may sue in his own name upon a contract made in the name of his agent, the other party thereto may set up any counterclaim or defénse he may have against the agent, arising out of the contract, and which existed before he had notice that the contract was made for an undisclosed principal. (Page 127.)</p> <p>6. Appeal and Error — Review—Harmless Error — Submission of Issues. Any error in not submitting to the jury the question whether a written contract was the contract of the one by whom it was made or of his undisclosed principal, in an action where there was no dispute upon the question of agency and where defendant was protected against any claim of the agent, was harmless. (Page 127.)</p>

<p>1. Masteb and Servant — Injuries to Servant — Operation of Machinery — Negligence—Contributory Negligence — Question for Jury. In an action for injuries to an inexperienced servant while assisting in moving timbers by a hoisting engine by bis arm becoming crushed between a timber and the hoist drum, evidence held to require submission of the questions of defendant’s negligence and plaintiff’s contributory negligence to the jury. (Page 132.)</p> <p>2. Master and Servant — Injuries to Servant — Assumed Risk. Where plaintiff, an inexperienced servant, was directed to assist in unloading timbers from a car by means of a hoist, and his arm was crushed by the engineer negligently drawing a timber against the drum of the hoist when he had been directed to lower the timber onto a truck, after it had once come to rest to enable plaintiff to adjust the truck so as to balance the timber, plaintiff did not assume the risk as a matter of law. (Page 135.)</p> <p>3. Master and Servant — Injuries to Servant — Fellow Servants —“Superintendence or Control” — “Same Grade of Service.” Comp. Laws 1907, section 1343, provides that all persons who are engaged in the service of the same employer, and in the same grade of service, and working together at the same time and place and to a common purpose, neither being intrusted with any superintendence or control over his fellow employees, are fellow servants; otherwise not. Held that, since the term “superintendence or control” covers every question of authority, the term “same grade of service” does not relate to superintendence or control or refer to the power of one servant to direct or control the actions of another, but refers, instead, to the particular kind of work or duty which the different servants of a common master are regularly engaged in doing; and hence, where a mucker in a mine was called to assist in removing certain timbers from cars by means of a hoisting engine, he was not a fellow servant of the engineer by whose negligence he was subsequently injured. (Page 136.)</p> <p>4. Master and Servant — Fellow Servant Rule — Modification. The legislature has power to modify the fellow servant rule or to abolish it altogether. (Page 139.)</p>

Geo. G. Armstrong, Judge. Action by John Moore against Harriet G-. Moore. Judgment for defendant. Plaintiff appeals. STATEMENT OE EACTS., Tbis is an action for the specific performance of an agreement for tie sale of real estate. Tie appeal is taken on tie judgment roll.

F. C. LoofbouroWj Judge. Action by George Yance and another against J. A. Heath and others. Judgment for plaintiffs. Defendants appeal. STATEMENT OP PACTS.

Geo. 'G. Armstrong, Judge. Action by Horace M. Cummings and wife against Christion Nielson and others. Judgment for defendants. Plaintiffs appeal. APPELLANTS POINTS. . It has been held repeatedly by this court that in a motion for a nonsuit, the moving party must, in his motion specify particularly the points relied on for such nonsuit, and thereby call the attention of the court and the opposite party to .the points of his objection.

J. A. Howell, Judge. Action by Butb P. Mlatbews against Hiehard T. Berrett and tbe Nice Creek Irrigation Company. Judgment for defendants. Plaintiff appeals. appelxanNs points. If the particular thing contracted for is desired, or if the party desiring it or the other circumstances of the case, are such that money damages would not be an adequate compensation for its loss, equity will decree its delivery to him. (4 Pomeroy [3 Ed.], sec. 1402; 26 Am. and Eng. Ency.

<p>Attorney and Client — Disbarment—Grounds. A colored attorney, wlio for several months kept a house of ill fame at which white girls consorted with negroes and smoked opium with his knowledge, and to which he took heer and served to the inmates and patrons, is morally unfit to he a member of the bar, and will be disbarred.</p>

<p>1. Contempt — CRIMINAL “Contempt" — Affidavits. Affidavits charging that defendant newspaper, well knowing that certain publications were calculated to greatly prejudice and bias the minds of the drawn and summoned jurors and other persons against a defendant then on trial, caused copies containing such publications to be delivered to such veniremen and others, and that such publication did prejudice and bias many of them, making it difficult to obtain qualified jurors, showed contempt; an attempt to influence and interfere itself being contemptuous. (Page 197.)</p> <p>2. Contempt — Constructive Contempt — Denial Under Oath— Statutes. The old rule that a constructive criminal contempt was purged by a denial under oath is changed, and the matter is regulated by statute. (Page 199.)</p> <p>3. Contempt — Criminal Contempt — Tp.ial—Evidence. One charged with criminal contempt committed out of the presence of the court must he given a hearing and evidence he tafeen, unless his answer is or amounts to a plea of guilty, under Comp. Laws 1907, secs. 3360, 3366, and 3367, prescribing the proceedings in such cases. (Page 199.)</p> <p>4. Contempt — -Intent—Evidence. In a prosecution for criminal contempt for publishing matter which tended to interfere with judicial action, evidence that there was no intent to interfere, and that there was no harm done in fact, is admissible in mitigation of punishment. (Page 200.)</p> <p>®. Contempt — Newspapers—Interfering with Judicial Action— “News.” Although a newspaper can publish anything that is said or done in the court while attempting to impanel a jury in 'a criminal action, it cannot go beyond this, and print facts and conclusions and evidence and a confession by an alleged confederate which would not be admissible on the trial, where such facts had been published fully at the time of the crime, without committing at least a technical contempt as interfering with judicial action; such matters, not being news, which is fresh information concerning something that had recently taken place, recent report or account of an event, fresh tidings, or recent intelligence. (Page 202.)</p> <p>f6. Contempt — Appeal—Theory on Trial. A judgment of conviction of contempt cannot he rendered on pleadings on the theory that intent, motive, and circumstances of a publication were wholly immaterial, and then be defended on the theory that the burden of proof to such matters was on the accused. (Page 205.)</p> <p>'7. Contempt — Criminal Contempt — Intent—Burden op Proof. Where one is charged in an affidavit for contempt with intent to interfere with judicial action, the burden is on the state to show such intent. (Page 205.)</p> <p>.‘8. Contempt — Pleadings. Where a newspaper charged with constructive criminal contempt by its answer shows that it is guilty of only a technical contempt without intent to interfere with judicial action, a judgment of conviction thereon that it was guilty “as charged in the affidavit,” which charged wrongful intent and knowledge of harm, etc., was erroneous. (Page 208.)</p> <p>5. Contempt — Judgment—Recitals—Hearing. The recital in a judgment that the accused “having stated that they had no legal reason to give why judgment should not be pronounced against them,” etc., does not show that they were given an opportunity to be heard, the right which an accused has to he heard on the merits being before, not after, he is condemned. (Page 210.)</p> <p>10. Contempt — Judgment—-Recitals—Waive» of Hearing. A recital in a judgment of conviction for constructive contempt that “the matter is submitted upon its merits upon the affidavit and answers/’ etc., does not show a waiver of a trial or hearing; such submission having hut invoked the action of the court to determine the sufficiency of the pleadings, hut not to render a. final judgment, unless no defense whatever was tendered, either by way of denial, excuse, or in mitigation, and unless what was tendered constituted a plea of guilty to- the offense as charged. (Page 210.)</p> <p>11. Contempt — Certiorari—Appeal—Review. Where the Supreme Court allows an application for certiorari to review a conviction for contempt to he filed at a time when an appeal might have-been taken, the court will review the proceedings though Comp. Laws 1907, sec. 3630, allows a writ of certiorari where-there is no appeal; it being the policy of the court to enlarge, rather than restrict, such remedy. (Page 211.)</p>

F. 0. Loofbourow, Judge. Action by Selma Stanford, attorney in fact for Belle Hansen, on behalf of Bobert Schroyier, against B. B. Gray and another. Judgment for plaintiff. Defendants appeal. STATEMENT OE FACTS. This is a habeas corpus proceeding involving the right to the control and custody of a child bom to respondent, Belle Hansen, out of lawful wedlock.

T. D. Lewis, Judge. . Action by TIolman Lawhom, an infant, by bis guardian ad litem, J. W. Lawborn, against tbe Denver and Rio Grande Railroad Company. Judgment for plaintiff. Defendant appeals.

<p>1. Chattel Mortgages — Agister’s Lien — Priority. Comp. Laws 1907, sec. 1401, provides that any livery stable keeper to whom a horse shall be intrusted for feeding shall have a lien thereon for the amount due therefor, and shall be authorized to retain possession until the amount is paid. Held, that such lien is. not prior in right to a prior recorded, valid chattel mortgage on the animal. (Page 257.)</p> <p>2. Chattel Mortgages — Validity—Term—Renewal—Affidavit and> Statement — Piling—Failure to Pile — Effect. Comp. Laws. 1907, sec. 155, provides that a chattel mortgage, duly filed, shall' be void as against creditors, and the mortgagee or subsequent purchasers or mortgagees in good faith, after a year from the' filing thereof, unless within thirty days after the expiration of' the year the mortgagee, his agent or attorney, shall file an affidavit and statement containing specific facts with reference to the debt, etc.; and section 156 declares that if the affidavit is made and filed before any purchase of the property shall be made or other mortgage or lien thereon it shall be valid to continue the mortgage in effect as if the same had been made and filed within the period prescribed. Held, that the affidavit and statement required by section 155 may be filed at any time subsequent to the expiration of the thirty days, provided they are filed before any rights have attached to the mortgaged property; time not being of the essence of the right, except where rights; exist or are acquired on the mortgaged property before the thirty day period has expired. (Page 260.)</p> <p>Z. Chattel Moetgages — Filing—Renewal—Necessity. Where a chattel mortgage on a stallion was duly filed, and before the expiration of a year and thirty days after such filing the mortgagee took possession to foreclose his mortgage, plaintiff was not required thereafter to file an affidavit and statement required by Comp. Laws 1907, secs. 155 and 156, in order to keep the mortgage in force after the expiration of a year and thirty days, in order to render the mortgage enforceable as a prior lien on the horse to that of a livery stable keeper for board of the horse, subsequent to the recording of the mortgage. (Page 261.)</p>

<p>1. Insukance — Pibe Insurance — Conditions—Additional Risk. Where a fire policy issued upon a building described as a water power woolen mill provided that it should be void if the hazard was increased by any means within the control or knowledge of the insured, the policy became void upon the insured’s beginning the exclusive manufacture of cotton bats, which was much more likely to cause fire than manufacture of woolen goods. (Page 265.)</p> <p>2. INSURANCE — Conditions—Waiver. A condition in a fire policy that it should become void if the risk be increased by any means within the control or knowledge of the insured, being for the benefit of the insurer, may be waived. (Page 267.)</p> <p>3. Insurance — Pire Insurance — “Waiver”—What Constitutes. A waiver of a condition in a fire policy operates as an estoppel on the party who waives, and it is not essential that the party in whose favor it is made must prove all the elements of an estoppel in pais, consequently a condition in an insurance policy that it should be void if the hazard was increased by any means within the knowledge of the insured is not waived because the agent of the insured inspected the property which was described as a woolen mill about a year before the fire, and before the insurer had begun the manufacture of cotton bats which caused the conflagration.1 (Page 267.)</p> <p>4. Appeal and Error — Review—Harmless Error. In an action on a fire policy, where the evidence was not in conflict, and the jury could have rightfully returned only one verdict, the verdict is equivalent to a directed verdict, and any errors committed are harmless. (Page 269.)</p>

<p>1. Damages — Instructions—Injuries to Chop. An instruction that the measure of damages for injuries to growing lucerne seed would be the market value at the time 'and place of injury was not objectionable as leaving out of view the expense of threshing the seed, as its market value as it stood at the time of the injury was the measure of damages contemplated by plaintiff by the instructions. (Page 272.)</p> <p>2. Appeal and Error — Harmless Error — Instruction. Any error in such instruction must be regarded as harmless, where the jury allowed but $400, when, under the evidence, they might have allowed from $1,200 to $1,400. (Page 272.)</p> <p>3. Constitutional Law — Legislative Powers — Delegation—Sub-' mission to Vote in Localities. Comp. Laws 1907, sec. 18, providing that any county, or precinct thereof, by a majority vote at a called election, might declare in favor of fencing farms and allowing domestic animals to run at large, was complete as a law as framed by the legislature; and a submission thereof to voters of particular localities was not unconstitutional as a delegation of legislative power. (Page 273.)</p> <p>4. Statutes — Special or Local Laws — Unieormitt op Operation. Comp. Laws 1907, sec. 18, enabling any county or precinct thereof, by majority vote at any general or special election called for that purpose by county commissioners, to declare in favor of fencing farms and allowing domestic animals to run at large, since it applied °to all localities and to all counties, and might become operative throughout the state, was not objectionable as lacking uniformity in operation. (Page 274.)</p> <p>5. Statutes- — Special ob Local Laws — Adoption by Counties. Comp. Laws 1907, sec. 18, allowing any county, or precinct thereof, in the state, by a majority vote at any called election, to declare in favor of fencing farms and allowing domestic animals to run at large, was not local or special legislation simply because it might he in force in only a part of the counties or their precincts. (Page 274.)</p>

N. J. Harris, Judge. Action by Henry W. Eddington against Union Portland Dement Company. Judgment for defendant. Plaintiff appeals. appellant's points. The duty to provide a reasonably safe place, as well as reasonably safe machinery in which and with which the servants are employed rests upon the employer or master and is one which cannot be delegated to an agent or servant so as to escape responsibility for their negligent performance.

Petition of D'avi-d Evans and Lindsay R. Rogers for a rebearing and a review and re-examination of the record and judgment in proceedings for their disbarmfent.

<p>Appeal from District Court, Third District; Hon. T. D. Lewis, Judge.</p> <p>Action by Culmer Paint & Glass Company against John T. Gleason and others.</p> <p>Judgment for plaintiff. Defendant, P. W. Gorman, appeals.</p>

Geo. G. Armstrong, Judge. Action by Frank Hoffman and others, against Tooele City .and others. Plaintiffs appeal from a judgment granting insufficient relief and defendants appeal from the part of the judgment granting relief.

<p>1. PRINCIPAL AND AGENT-PROOF OF RELATION- — DECLARATIONS OF Agent. In an action against a fraternal insurance society, tiie declarations of a person that he was the secretary of such society were inadmissible, since the declarations of an agent are incompetent, and not merely insufficient, without other proof to establish the fact of agency. (Page 364.)</p> <p>2. Evidence — Declarations of Agent. In an action against a fraternal insurance society, the declarations of a person, claimed to be its supreme secretary, that it had taken over the books of another society were inadmissible, in the absence of any evidence except his own declarations to show that he was such secretary. (Page 364.)</p> <p>3. Insurance — Actions—Sufficiency of Evidence. In . an action against a fraternal insurance society evidence held, insufficient to support the allegation that it had assumed the debts and obligations of the society which issued the benefit certificate sued on. (Page 364.)</p>

George G. Armstrong, Judge. Action by Gottsegan Cigar Company against J. R.. Levy, and H. S'. Levy, doing business as J. R.. Levy & Brother, and Btah Savings & Trust Company. .Judgment for plaintiff against defendants J. R. Levy and H. S. Levy. Judgment for defendant Utah Savings & Trust Co.

<p>1. Bills and Notes — Actions—Burden of Proof. Under Comp. Laws 1907, sec. 1576, providing that every negotiable instrument is deemed prima facie to bave been issued for a valuable consideration, tbe production of the note and proof of the signature make a prima facie case of a valuable legal consideration, placing the burden on defendant of producing evidence to overcome such case, but, when such evidence is produced, the burden is on plaintiff to show by a fair preponderance of all the evidence a legal and valuable consideration. (Page 380.)</p> <p>2. Pleading — Reply—-Construing in Connection with Complaint. The complaint and reply should be taken together in determining the cause of action stated. (Page 381.)</p> <p>3. Bills and Notes — Answer—Matters in Avoidance. In an action on a note, allegations in the answer that the consideration was an illegal one, growing out of a gambling transaction, was mot new matter by way of confession and avoidance. (Page 381.)</p> <p>4. Bills and Notes- — Actions—Burden of Proof. While a party suing on a negotiable instrument need not allege a specific consideration, where he does particularly allege the consideration, it must be proved as alleged.1 (Page 382.)</p> <p>5. Gaming — Note and Mortgage — Validity. Plaintiff, through defendant as broker, sold stock short, to be delivered within thirty days. The broker, without authority from plaintiff and before the stock had increased in price, delivered stock to- the purchasers. Thereafter, and before the expiration of the thirty days, the stock almost doubled in value. The broker then settled with plaintiff on the basis that it would be necessary to purchase stock at the then price for delivery to the purchasers, and took a note and mortgage from plaintiff for his loss on this basis. Held, that the note and mortgage were void for want of consideration; there being no necessity to purchase stock, as the purchasers had already received their stock, and the effect of the transaction being to enable the broker as against his principal to make a profit amounting to the difference in the market price. (Page 385.)</p> <p>6. Gaming — Gambling Contracts — Speculative Transactions. A short sale of stock by a customer to a broker without any de- ' liveries being made or intended, the intention being to receive or pay the difference between the contract price and the future market price, was illegal, and a note and mortgage given to cover such difference in price were void. (Page 390.)</p> <p>7. Contracts — Effect of Illegality — Recovery of Taxes. Where a mortgage was void because based on no consideration or on an illegal consideration, the mortgagee was entitled to recover taxes paid by him on the property. (Page 391.)</p>

<p>Boundabies — Acquiescence—Estoppel. Where owners of adjacent lands occupied their respective premises to a fence, recognized as on the boundary line for more than twenty years, and during that time they claimed the land to the line, they and their grantees may not deny that the line is the true division line.1</p>

<p>Appeal from District Court, Fifth District; Hon. Joshua Greemuood, Judge.</p> <p>Pete Potello was convicted of an assault with' a deadly weapon with intent to do bodily barm. He appeals.</p>

F. G. Loofbourow, Judge. B. F. Doran was convicted of violating a gambling ordinance of Salt Lake City and be appeals. APPELLANT^ POINTS. A Yaluable consideration must be paid,, directly or indirectly, for a cbance to draw a prize by lot, to bring tbe transaction within the class of lotteries or g¿ft enterprises that the law prohibits as criminal. (Buckalew v. State, 62 Ala. 334, 34 Am. Eep. 22; State v. Bryant, 74 N. 0. 207; Commonwealth v. Wright, 137 Mass. 250, 50 Am.

<p>1. Appeal and Error — Presentation oe Grounds oe Review in Court Below — Sueeiciency. In a personal injury action against a street railway company, where plaintiff requested an instruction telling the jury that a violation of a municipal ordinance fixing the rate of speed of the car was negligence per se, and the court modified that instruction hy making it read that it was evidence of negligence and by adding a phrase at the end, an exception to the refusal of the court to give the requested instruction and to the giving of the same as modified, sufficiently informed the lower court and the defendant of the objection to warrant review on appeal. (Page 420.)</p> <p>2. Street Railroads — Injuries to Persons on Tracks — Negligence- — -Violation oe Ordinance. Where a municipal ordinance fixes the rate of speed at which street cars may be operated and provides for a system of signals, a violation of the ordinance constitutes negligence per se.1 (Page 421.)</p> <p>3. Street Railroads — Injuries to Persons on Tracks — Instructions. In a personal injury action by one run down by a street car, an instruction that the operation of the car in excess of the speed fixed by the ordinance was evidence of negligence cannot be justified on the ground that all the evidence showed a violation of the ordinance; it being apparent that the instruction did not enunciate the true rule that such a violation constituted negligence per se. (Page 423.)</p> <p>4. Street Railroads — Operation—Duty Towards Pedestrians. The granting of a franchise to operate street cars upon a public street does not withdraw the street from public use and travel, and, except as to the preferential right of passage, the rights of the public, even as to the portion occupied by street car tracks, are equal to that of the street car company, and so the servants of a company cannot assume, as a matter of law, that travelers will not go- upon the tracks or go dangerously near them, but must maintain a continual watch for travelers. (Page 423.)</p> <p>•5. Trial — Instructions—Applicability to Evidence. A charge must state the law applicable to the facts in evidence of the particular case. (Page 424.)</p> <p>•6. Street Railroads — Injuries to Persons on Tracks — Actions— Instructions. In an action by one run down by a street car which was being operated in excess of the speed fixed by ordinance and without the signals required, a charge that the motorman had a right to assume, as a matter of law, that travelers in the street would avoid the street ■ car tracts and not go dangerously near them, or if upon them or in a place of danger would leave them in time to avoid accident, is erroneous; it not only appearing that plaintiff was endeavoring to move mail hags from a place of danger near the tracks, hut that the operatives of the street car were themselves violating the law. (Page 424.)</p> <p>7. Street Railroads — Injuries to Persons on Tracks — Duty to Look and Listen. A traveler crossing a street car track is not hound, as a matter of law, to look and listen, hut is merely required to use ordinary care which is such a degree of care as careful and prudent persons would use under like circumstances, consequently in an action hy one run down hy a street car operated at a great rate of speed, while plaintiff was attempting to move mail hags from the tracks to a place of safety, a. charge that he was required to use his senses of sight and hearing to ascertain whether a car was approaching, and it was his-duty to use them continuously, was improper as imposing a, higher degree of care than the law required.2 (Pag'e 425.)</p>

<p>Railroads — Injuries to Animals on Track — Liability—Failure to Fence. A railroad company was not liable for injuries to stock caused by its failure to construct a fence between its depot grounds and adjoining private land, where the fence would have been but thirteen and one-half feet from the freighthonse, and would necessarily have interfered with free access to the freight-house and with the loading and unloading of freight between the fence and the freighthouse, under Comp. Laws 1907, section 456x, requiring railroad companies to maintain a fence on each side of its railroad where it passes over land owned and improved by private owners, and connect them at public crossings with cattle guards, especially where such fence would have been useless, because of the absence of any fence between the private lands and a street which intersected the depot grounds, since notwithstanding the statute the company is not required to fence such depot grounds as the necessities or convenience of the public and the proper conduct of the business of the road- at such places require to be left -open and unobstructed, and public convenience at such places requires unobstructed access to the buildings and tracks.</p>

<p>In the matter of tbe disbarment of Arthur A. Platz.</p>

District; Han. O. W. Morse, Judge. Action by H. J. Smith against the Sinaloa Land and Fruit Company. Judgment for defendant. Plaintiff appeals. APPELLANT'S POINTS. Tbe charter of a private corporation, as the defendant is, incorporated under general laws, consists of the articles of agreement, and the laws of the state.

<p>1. Negligence — "Attractive Nuisances.” A thing may be attractive to children and inherently dangerous without being an attractive nuisance, within the doctrine of the turntable cases, which requires that the thing be in an unprotected condition, as well as attractive and dangerous.1 (Page 464.)</p> <p>2. Negligence — Actions—Sufficiency of Evidence — Attractiveness of Nuisances. Evidence, in an action against a' city for the death of a child by being drowned in a stream conducted through a ditch by the city, held not to sustain a finding that the child was attracted by the warm water in the ditch. (Page 465.)</p> <p>3. Negligence — Actions—Sufficiency of Evidence — Proximate Cause. Evidence, in an action against a city for the death of a young child by falling into warm mineral water conducted into a ditch by the city, held not to sustain a finding that the attractiveness of the water was the proximate cause of the child’s death. (Page 465.)</p> <p>4. Negligence — 'Proximate Cause. To bring a case within the doctrine of the turntable cases, the attractiveness of the alleged nuisance must have been the proximate cause of the injury. (Page 465.)</p> <p>5. NegligeNce — Attractive Nuisance. A small stream of warm mineral water conducted into a ditch and through a culvert by a city, after it had been used for bathing and medicinal purposes, would not constitute an attractive nuisance, so as to make the city liable for a child’s death therein, under the doctrine of the turntable cases. (Page 467.)</p> <p>6. Evidence — Judicial, Notice. The Supreme Court will take judicial notice of the fact that there are many miles of small streams that flow in ditches or flumes in the state which may be more or less attractive to children. (Page 468.)</p>

<p>Waters and Water Courses — Diversion—Damages. An appropriator and owner of all tlie water of a creek and of springs which fed the creek, who had conveyed it to his home ranch by a main and a branch pipe line, where it was used for irrigation of a garden and orchard, and for culinary, domestic, and stock raising purposes, though having no market value because there were no sales by reason of its scarcity, in his action for a wrongful diversion was entitled to pecuniary damages measured upon a consideration of the different uses to which he had applied it, not including the value of the pipe line, rendered useless by the diversion, its value being represented in the enhanced value of the water by being carried therein in a continuous flow from the springs to the ranch, unimpaired in quantity or quality.</p>

<p>1. Waters and Watercourses — Canals—Liability for Injuries. Where the state constructed an irrigation reservoir and a canal, and the work was done in such a manner that it was more than adequate to take care of any ordinary floods, an adjoining landowner cannot recover damages against the engineers or the hoard in charge of the work for damages to his land resulting from a break in the canal caused by unprecedented floods.1 (Page 488.)</p> <p>2. States — Actions Against — Right to Maintain. In the absence of a constitutional provision or statute, a private individual cannot maintain an action against a sovereign state. (Page 492.)</p> <p>3. States — Actions Against — What Constitutes. An action against the board of land commissioners for damages resulting from a break in an irrigation canal is, in effect, an action against the state, where the judgment was directed to be paid out of state funds. (Page 492.)</p> <p>4. States — Actions Against — Right to Maintain. Const, art. 7, sec. 13, constituting the Governor, Secretary of State, and Attorney General the board of examiners with power to examiné all claims against the state, and providing that no claim shall be passed upon by the Legislature without having been considered and acted upon by the board of examiners, is an inhibition upon the maintenance of an action directly against the state, although it does not prohibit actions against state agencies, or even the board of examiners.2 (Page 493.)</p> <p>5. States — Actions Against — Judgment. In an action against the state for damages caused by the breaking of an irrigation canal, the district court cannot determine the funds out of which the judgment shall be paid and assess the judgment as a charge against the trust fund available for reservoir purposes given to the state by act of Congress. (Page 496.)</p>

<p>Appeal from District Court, Sixth District; Hon. A. H.. Christensen, Presiding Judge.</p> <p>Action by S. H. Dali, against the State of Utah, the State-Board of Land Commissioners and others, and Caleb Tanner and Freeman Tanner.</p> <p>Judgment for plaintiff: Defendants appeal.</p>

Geo. G-. Armstrong, Judge. Action by Frank L. Butterfield against the Consolidated Fuel Company. Judgment for defendant. Plaintiff appeals. APPELLANT'’S POINTS. Where a principal dealing through a broker goes behind the broker procured by him, revokes the agent’s authority and deals directly with the customer, the rule of law is clear’ that the payment of a commission to the broker upon the sale thus effected cannot be evaded.

W. W. Maughan, Judge. Action by Mary B. Rohwer against George E. Burrell and Martin V. Bowher. Judgment for defendants. Plaintiff appeals. APPELLANT'S POINTS. A release or discharge of a mortgage obtained through mistake or fraud, will, as between the parties be held inoperative and no defense to a foreclosure. (2 Jones on Mortgages (6 ed.) pages 966, 967, note 540; 27 Cyc. page 1431; 27 Cyc. page 1432, note 73, collecting cases; Southern Kansas Arm. Otd.

<p>1. Appeal and Ebeob. — Ciebk’s Cebtificate of Appeal Bond — Conclusiveness. The clerk’s certificate that an. undertaking on appeal in due form has been properly filed, made in compliance with the statute, is conclusive evidence that the appellant has complied with the law respecting the filing of an undertaking on appeal. (Page 521.)</p> <p>2. Mechanics’ Liens — Action to Enfoece — Bubden of Peoof. Claimant, in an action to foreclose a mechanic’s lien, whose allegations were denied by answer,' had the burden of proving that he was entitled to a mechanic’s lien and that he had complied with the statute. (Page 522.)</p> <p>3. Appeal and Ekbok — Findings—Evidence to Suppoet. The trial court should not make a finding of fact where there is no evidence to support it, and its judgment thereon will be reversed. (Page 522.)</p> <p>4. Appeal and Eeeoe — Review—Remand. Where (the evidence did not establish a mechanic’s lien, but would support a judgment for a specified sum, the court on appeal from a judgment for claimant will not enter judgment where claimant may be able to establish a lien and where the case was tried in the absence of defendant’s counsel, but will remand for a new trial. (Page 523.)</p> <p>5. 'Costs — On Appeal — Appellant Failing to Appeae at Tbial. Where -counsel for appellant in an action to foreclose a mechanic’s lien was personally served with notice of trial, but did not appear, the court on reversing the judgment for claimant will deny appellant his costs on appeal. (Page 523.)</p> <p>Straup, J., dissents in part.</p>

<p>Appear from District Court, Fifth District; Son. Joshua Greenwood, Judge.</p> <p>Action by Dave Greenhalgh to foreclose a mechanic’s lien against the United Tintic Mines Company.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

<p>Trover and Conversion — Actions—Evidence—Sufficiency In an action for the conversion of an automobile, evidence of conversion held insufficient to go to the jury.</p>

<p>Appeal from District Court, Third District; Hon. T. D. Lewis, Judge.</p> <p>Action by Ned McKenzie against George Canning.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

T. D. Lewis, Judge. Action by the Utah Foundry and Machine Company against the Utah Gas & Coke Company, which counterclaimed. Judgment for defendant for difference between amount of its counterclaim and plaintiff’s demand. Plaintiff appeals.

<p>1. Statutes — Classification of Counties. Laws 1907, c. 144, as •amended by Laws 1909, c. 110, and Laws 1911, c. 54 (Comp. Laws 1907, sec. 720x42), providing that on recommendation of the juvenile court commission the hoard of county commissioners in all counties containing cities of the first and second class shall establish detention homes for delinquent children, and that such county may recover from the cities a reasonable sum for the support and maintenance of the delinquent children from such cities, does not violate Const, art. 11, sec. 4, providing that the legislature shall establish a system of county government uniform throughout the state, for the act has nothing to do with county government, but merely imposes upon the counties and municipalities one of the governmental duties of the state. (Page 553.)</p> <p>2. Statutes — -Special Laws — Taxation—Officeks. Nor is the law in violation of Const, art. 6, sec. 26, subsecs. 8, 11, and 18, respectively, prohibiting the legislature from enacting special laws for the assessment of taxes, regulation of county and town- ■ ship affairs or the creation or increase of fees of officers, for the law in question in no way relates to those subjects, merely relating to a governmental duty of the state. (Page 554.)</p> <p>3. Statutes — Delegation oe Authority — What Constitutes. Neither is the law in violation of Const, art. 6, sec. 29, providing that the legislature shall not delegate to any special commission, corporation, or association any power to interfere with any municipal improvement, money, property, or effects, for the juvenile court commission in no way interferes with the municipality, and the law establishing the detention home merely imposes upon the municipality the performance as an arm of the state of part of the state’s governmental duties. (Page 554.)</p> <p>4. Counties — Municipal Corporations — Municipal Taxation— Power oe State. Laws 1907, c. 144, as amended by Laws 1909, c. 110, and Laws 1911, e. 54 (Comp. Laws, secs. 720x42, 720x48), requiring counties containing first and second class cities to establish detention homes for delinquent children, and that the cities shall reimburse the counties for the reasonable expense in caring for delinquent city children, is not in violation of Const, art. 13, sec. 5, declaring that the legislature shall not impose taxes for the purpose of any county or municipal corporation, but may vest in the corporate authorities power to collect and assess taxes for all purposes of such corporation, since the law in question in no way violates the provisions for municipal self-government not applying to the city as a corporate body, but imposing upon it as an arm of the state some of the state’s governmental functions. (Page 555.)</p> <p>5. Municipal Corporations — Disbursements. As a municipal corporation is part of the county in which it is located, and the county supervisors are liable to the inhabitants of the corporation, Comp. Laws, secs. 720x42, 720x48, providing for the establishment by the county supervisors for detention homes for delinquent children and for payment by cities for the support of their own delinquent children, is not an interference with the taxing power of the cities in permitting their funds to be disbursed by irresponsible officials. (Page 557.)</p> <p>6. Judgment — Collateral Attack — Juvenile Courts. Under constitutional provisions expressly authorizing the legislature to create courts inferior to the Supreme Court, judgments of the juvenile court, although a court of special and limited jurisdic- ■ tion, have the same effect as those of any other court, and a resident of a city 'which may become liable for the support of delinquent children cannot collaterally attack them on the ground that they affect his rights as a taxpayer. (Page 558.)</p> <p>7. Constitutional Law — Power oe Judiciary. The wisdom of laws providing for detention homes for .delinquent children is for the legislature, and its determination cannot be interfered with. (Page 558.)</p> <p>Straup, J., dissenting.</p>

<p>Appeal from District Court, Third District; Hon. O. W. Morse, Judge.</p> <p>Action by L. Quealy, prosecuted on his behalf by P. J. ■Quealy, administrator, against J. D. Sullivan.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

<p>1. Peincipal and Agent — Evidence. Declarations of the alleged agent are not admissible to prove his agency. (Page 579.)</p> <p>2. Pbincipai, and Agent — Evidence—Sufficiency. In an action to recover the value of alfalfa seed alleged to have been purchased by defendants’ agent, evidence held insufficient to establish the agency. (Page 579.)</p>

Geo. G. Armstrong, Judge. Action bj David It. Wheelwright, as Receiver of the Me-Griff Orchard! and Canning Co. against the- National Copper Bank of Salt Lake City, Utah, in which the Bend Lo-mond Orchard Company attempted to intervene. Judgment sustaining the demurrers to the complaint in intervention. Intervener appeals.

<p>1. Appeal and Error — Dismissal and Nonsuit — Review—Discretion of Trial Court — Vacating Judgment op Nonsuit before Trial. The question whether plaintiff made a showing sufficient to entitle him to an order setting aside the judgment of dismissal, entered pursuant to a nonsuit, before trial, was a matter within the sound discretion of the trial court with which the Supreme Court cannot interfere unless an abuse of such discretion clearly appears from the record. (Page 589.)</p> <p>2. Appeal and Error — Review—Harmless Error — Vacating Judgment of Nonsuit before Trial. Error, if any, in vacating a judgment of nonsuit and dismissal obtained by plaintiff before trial was not prejudicial to defendant, in view of the practice permitting the commencement of a new action upon the same cause of action at any time within a year after the nonsuit was entered. (Page 589.)</p> <p>3. Trial — Findings of Fact — Conformity to Pleadings. Upon a complaint alleging that plaintiff had furnished material and labor and rendered services to defendant in the execution of a contract whereby plaintiff was to erect certain cottages for an agreed contract price, and that, after payment of a part, the parties "stated an account showing that defendant was indebted to plaintiff in the balance of $1,200, which defendant agreed to pay with interest, and his failure to pay any of the principal, findings that, after the cottages were completed and after certain payments thereon, there had been an agreement that defendant pay the balance, with interest, amounting to $1,200, with interest to judgment, were in conformity to the pleadings. (Page 589.)</p> <p>4. Appeal and Error — Necessity of Objection — Defective Pleading. Defendant, who made no objection before trial to the form in which the facts were stated in the complaint, could not for the first time on appeal object to any prolixity of statement or mingling of causes of action, if any. (Page 590.)</p> <p>5. Appeal and Error — Questions of Fact — Conclusiveness. The Supreme Court is bound by findings of facts in cases where there is any substantial evidence to sustain them. (Page 591.)</p> <p>6. Judgment — Trial of Issues — Conformity to Findings. Findings that defendant and plaintiff agreed upon the balance that was owing to the plaintiff for the erection of cottages at a specified contract price, and that the defendant had agreed to-pay such amount to plaintiff, were sufficient to support a judgment in favor of the plaintiff. (Page 591.)</p>

<p>1. Appeal and Error — Findings—Review. In an equity case appellant is entitled to the judgment of the court on appeal on questions of fact, as well as on questions of law. (Page 596.)</p> <p>2. Deeds — Delivery—Acts Constituting. Where one never legally obtained possession of a deed containing a blank for the grantee and never obtained authority from the grantor to insert his name as grantee, he acquired no right by obtaining possession of the deed and inserting his own name as grantee. (Page 596.)</p> <p>3. Appeal and Error — Questions Reviewable — Questions Not Raised in Trial Court. Propositions discussed in the brief of counsel, but not mentioned in the assignment of errors, cannot be considered. (Page 596.)</p>

O. W.. Morse, Judge. Action by Tooele City against Drank Hoffman for violation of municipal ordinance. Defendant’s demurrers were overruled in the Justice Courtbut were sustained on appeal to the District Court. The City appeals.

<p>1. CORPORATIONS — RIGHT OB' ACTION BY MINORITY STOCKHOLDERS. Minority stockholders of an irrigation corporation could not restrain the corporation from diverting from a stream for irrigation purposes water which was running to waste without appropriating it as prescribed by statute, even assuming that the state could do so. (Page 606.)</p> <p>2. Corporations — Right op Action by Minority Stockholders. A stockholder in a corporation has a remedy in equity against the directors to prevent acts amounting to a violation of tlie charter ' or to prevent any misapplication of the capital or profits which might lessen the value of the shares, if the acts would amount to a breach of trust or duty. (Page 606.)</p> <p>3. Corporations — Directors—Fraud—Corporate Policy. The purchase and installation of a pumping plant for lifting water from a river for irrigation purposes was not violative of the charter of an irrigation corporation or of the laws of the state, nor was it an ultra vires act, hut on the contrary it was purely a question of policy for the determination of the hoard of directors with which a court of equity would not interfere at the suit of minority stockholders. (Page 607.)</p> <p>4. Corporations — Directors—Fraud—Corporate Policy. In the absence of usurpation, fraud, or gross negligence, courts of equity will not interfere at the suit of a dissatisfied minority to overrule and control the discretion of corporate directors on questions of management, policy, or business, but will allow the majority to rule, leaving the minority to redress their grievances through ordinary corporate methods; the distinction with respect to interference by the courts being between acts in excess of the powers of the directors and in breach of their trust, and acts within their powers merely involving an exercise of the discretion committed to them. (Page 608.)</p>

<p>1. Trusts — Establishment—Evidence—Sufficiency. In an action to quiet title, where plaintiff traced his title through a purchase on foreclosure, evidence held, insufficient to show that he held the instrument foreclosed and purchased the property at foreclosure sale as the agent of defendants’ grantor. (Page 612.)</p> <p>2. Quieting Title — Evidence to Establish — Sufficiency. In an action to 'quiet title, where it appeared that the record title was in plaintiff, evidence of an offer by plaintiff to purchase the interest of defendants’ grantor, particularly when denied by plaintiff, is insufficient to divest his record title. (Page 612.)</p> <p>3. QuietiNG Title — Findings—Effect. In an action to quiet title tried to the court, a finding that all claims, of the plaintiff were barred by the provisions of certain statutes and the right of defendants was perfected by limitations is a nullity, where no facts were found on which to base it. (Page 615.)</p> <p>4. Adverse Possession — Adverse Title — Payment of Taxes. Payment of taxes, though for more than seven years, coupled with open and notorious possession for only two or three years, will not give title by adverse possession. (Page 615.)</p> <p>5. Limitation of Actions — Time of Accrual of Action. Where plaintiff purchased vacant and unimproved property at foreclosure sale, receiving a deed therefor, the law presumes that he was in constructive possession and entitled to actual possession in the absence of evidence to the contrary; therefore defendants’ possession of the land for two or three years prior to the commencement of an action will not bar plaintiff’s right under Comp. Laws 1907, sec. 2859, providing that no action for the recovery of real property can be maintained unless it appear that plaintiff was seized within seven years before commencement of the action.1 (Page 615.)</p> <p>6. Vendor and Purchaser — Reliance Thereon. That an abstract óf title erroneously showed defendants’ grantor to be the record owner and defendants relied thereon is no defense to an action by the true owner. (Page 616.)</p> <p>7. Quieting Title — Improvements and Taxes. Where the record owner of land permitted others to pay the taxes thereon and to enter into possession and make valuable improvements in good faith, he cannot, having delayed his action for several years after such improvements, take them without compensation, but must compensate the possessors for such improvements and also reimburse those who paid the taxes. (Page 616.)</p>