Volume 43 — Utah Reports

<p>1. Teiax — Findings—Conclusion off Law. Where, in an action on a note for money loaned, the evidence without dispute showed that the transaction was effected through agents of both parties, and plaintiff contended at the trial that she did not enter into a corrupt and usurious agreement, as claimed by defendant, knew nothing about it, received none of the fruits thereof, and never ratified the transaction, a finding that the agreement was entered into “between plaintiff and defendant” was not a finding of fact but a conclusion of law and improper; it being the duty of the court to specifically find the facts with regard to the matters and then draw his conclusion from the facts found. (Page 6.)</p> <p>2. Principal and Agent — Money Loaned Through Agent — Usury. Where money was left by a principal with an agent to be loaned, and the agent took usury, but without the knowledge of the principal or her receiving any fruits of the transaction, the principal was not chargeable with the effects of the agent’s misconduct. (Page 6.)</p> <p>3. Usury — Rate off Interest — Reservation in Note. Under the statute permitting any rate of interest not exceeding twelve per cent, per annum, a note calling for interest at the rate of one per cent, per month is not usurious. (Page 7.)</p> <p>4. Usury — Penalties—Forfeiture. Under the usury statute, providing that, whenever it shall satisfactorily appear by admission of the party or by proof that any bond, bill, etc., has been taken or received in violation of the provisions of the act, then, and not otherwise, shall the lender forfeit the whole sum expressed in the contract to the borrower, a forfeiture for usury will not be declared except on evidence clear and convincing that the lender participated in or benefited directly or ini directly by the transaction. (Page 12.)</p> <p>5. Usury — Evidence—Testimony op Borrower’s Agent. Defendant, having acted through her mother as her agent, borrowed $350 from plaintiff through her uncle, with whom she had placed the money to be loaned, and in an action to recover the same claimed that the loan was void for usury. Held, that evidence of defendant’s mother that when she applied to plaintiff’s uncle for the loan he advised her that she needed $350 and that he could let her have the money, but she would have to pay fifty dollars for it for ninety days, was admissible against plaintiff, though such testimony, standing alone, was insufficient to make out a case of usury as against her. (Page 13.)</p> <p>6. Usury — Evidence. In an action on a note evidencing a loan negoiated by plaintiff’s uncle to defendant through her mother, which defendant claimed was usurious, evidence of plaintiff’s uncle that the fifty dollars he received was not only for making the loan of $350 to defendant for ninety days but also for obtaining a loan on a house and lot owned by defendant’s mother was admissible under the rule that where usury is claimed it is always proper to prove the whole transaction to disclose all the circumstances surrounding it. (Page 13.)</p>

M. L. Ritchie, Judge. Action by H. S. Tanner, against the Sinaloa Land & Fruit Company, a corporation. Judgment for plaintiff. Defendant appeals. Statement of Facts. EL S. Tanner, plaintiff herein, and two other parties, C. D. Harding and J. M. Barlow owned and held an option on. a tract of land containing 4,338 acres situate in tbe State of Sinaloa, Republic of Mexico.

<p>1. Appeal and Error — Harmless Error — Striking out Parties. A judgment will not be reversed for technical error in striking out the names of certain plaintiffs where no prejudice results to defendant therefrom. (Page 43.)</p> <p>2. Abatement and Revival — Death oe Partners. It was not error to strike out the names of two deceased partners as plaintiffs and permit the action to proceed to judgment under the names of the surviving partners. (Page 43.)</p> <p>■3. Judgment — Action on — Limitations. Comp. Laws 1907, sec. 3490, provides that an action is pending from its commencement until final determination upon appeal, “or until the time for appeal has passed, unless the judgment is sooner satisfied”; sec. 3307 provides that an appeal from a judgment or order directing the payment of money does not stay execution, unless a written undertaking he given; and sec. 3320 provides for restitution in case judgment is reversed or modified on appeal after its enforce-meat. Meld,, that a judgment became final so as to start the eight-year limitation against an action thereon from the time it was rendered, where no appeal was taken, and not from the expiration of the six months within which an appeal might have been taken; actions remaining pending after judgment only fpr the purpose of enforcing them or to institute proceedings to review.1 (Page 45.)</p> <p>4. Action — Time Pending — “Pending Action.” An action is deemed to be pending at common law so long as a judgment remains unsatisfied. (Page 45.)</p> <p>5. Execution — Judgment—Enforcement—Time of Enforcement. A judgment may be enforced either by execution or action, immediately after rendition, unless execution be stayed. (Page 46.)</p> <p>6. Abatement and Revivad. When the purpose of an action is merely to enforce a judgment, the plea of another action pending cannot be interposed in the action upon the judgment merely because the time to appeal has not passed; the only plea available being that the judgment has been suspended by supersedeas bond. (Page 47.)</p> <p>7. Judgment — Fuld Faith and Credit. The full faith and credit clause of the federal Constitution applies as soon as a judgment is enforceable and not merely after the time to appeal has elapsed. (Page 48.)</p> <p>8. Judgment — Actions—Limitation. Comp. Laws 1907, sec. 2874, requiring an action on a judgment to be commenced within eight years, means eight years from the time the cause of action has arisen. (Page 48.)</p> <p>9. Limitation of Actions' — Time. A cause of action arises the moment an action may be maintained to enforce the legal right so that the statute of limitation then begins to run. (Page 49.)</p> <p>10. Judgment — Evidence. For the purpose of its enforcement, a judgment is evidence of its own existence immediately on rendition and entry as provided by law. ■ (Page 51.)</p>

<p>1. DIVORCE-SETTING ASIDE DECREE-DIRECT ATTACK — EQUITABLE Relief. A suit to set aside a divorce, granted upon service by publication, on tbe grounds that the affidavit for publication of summons fraudulently misstated the defendant’s residence, and that there was unreasonable delay in issuing the order for publication, is a direct attack by a separate and distinct action and not a motion in the original proceedings.1 (Page 55.)</p> <p>2. Divorce — Decree—Equitable Relief — Defects in Service. In a suit to set aside a decree of divorce, it is not necessary for the plaintiff to allege that she had a meritorious defense to the divorce action or to offer to submit to the jurisdiction of the court in that action, where the court had never had jurisdiction of her person or of the marriage relation. (Page 56.)</p> <p>3. Judgment — Setting Aside Defaults — Meritorious Defense— Necessity. Where a judgment debtor under the statute moves to set aside a default judgment, rendered upon constructive service, he must ordinarily - submit himself to the jurisdiction of the court and also allege a good defense to the action.2 (Page 57.)</p> <p>4. Divorce — Service of Summons — Publication. Where an order for the publication of summons in an action for divorce was not made until a month after the affidavit was filed, the affidavit no longer constituted primes facie evidence of the residence of the defendant, and the order was therefore void. (Page 58.)</p>

Action by the State, on tbe relation of L. B. Wight, .against the Park City School District No. 12 of Summit County, Utah, and. others, trustees of said school district, to prohibit defendants from levying a high school tax.

<p>1. Appeal and Error — Review—Findings. A finding upon sharply conflicting evidence will not be disturbed on appeal, where it depended largely upon the determination of the credibility of the witnesses. (Page 71.)</p> <p>2. Corporations — Acts of Corporators — Knowledge Imputed to Corporation. Where the locators of a mining claim, while stockholders and directors in a corporation to which they had transferred their claim, relocated the claim, the corporation paying the expense, but the location being taken in the names of the individuals, and organized a second corporation to which they transferred the new location, the second corporation cannot claim the location as a 'bona fide purchaser, for it appearing that the locators were the principal stockholders therein, and that the corporation had been organized as a cover to shield them from the consequences of their breach of trust, the knowledge of the incorporators will be imputed to the corporation. (Page 73.)</p>

<p>1. Moetgages- — Consideration—Evidence. In an action upon a mortgage given to secure advances for construction of a building, evidence held to show that the mortgagee did not advance all of the money agreed upon, hut through an arrangement with the builder it received a bonus or gratuity not agreed to by the mortgagor. (Page 81.)</p> <p>2. Mortgages — Enforcement—Failure of Consideration. In an action upon a mortgage given to secure advances for construetion of a building, the mortgagee is not entitled to payment for money not advanced to pay the builder but received bach as sort of a bonus under a contract with the builder not agreed to by the mortgagor. (Page 84.)</p> <p>3. Mortgages — ActioN—Failure of Consideration. Where the purchasers of an equity of redemption did not assume payment of the mortgage but merely took the property subject thereto, the amount of the mortgage not being deducted from the price, they can set up a partial failure of consideration for the mortgage, for a purchaser is estopped from setting up the failure of consideration only on the theory that he assumed payment of the mortgage or that it was deducted from the purchase price.1 (Page 84.)</p> <p>4. Mortgages — Foreclosure. In a suit to foreclose a mortgage given to secure advances for construction of a building, the mortgagee who paid for the building operations as they were conducted cannot collect a charge for overdrafts by the mortgagor ' where at the time of the alleged overdrafts the mortgagor had on deposit thousands of dollars which were not credited to him merely through a fiction of bookkeeping. (Page 87.)</p> <p>5. Tender — Effect. Where defendant tenders a given amount and pleads his tender, it is a conclusive admission that plaintiff is entitled to recover the amount tendered and judgment should at all events be given for that amount. (Page 87.)</p> <p>6. Costs — Effect of Tender — Costs and Attorneys’ Fees. Where the purchaser of an equity of redemption tendered more than the amount due upon the mortgage, costs and attorneys’ fees expended by the mortgagee in foreclosure cannot be assessed against the land. (Page 87.)</p> <p>7. Mortgages — Discharge of Lien of Mortgage — Tender. A tender, by a purchaser of the equity of redemption, of the amount due under a mortgage will not discharge the lien where there was no assumption of the debt, because as between the mortgagor and the purchaser the mortgage debt is part of the consideration for the conveyance and the land becomes the primary fund for' payment. (Page 89.)</p> <p>8. Appeal and Error — Final Determination. On appeal in an action to foreclose a mortgage, the Supreme Court will not finally determine the rights of the parties where issues raised were not disposed of in the court below and evidence was not heard thereon. (Page 90.)</p> <p>9. Mortgages — Foreclosure—Defenses. A purchaser of the equity of redemption, who did not assume payment of a mortgage, may set up failure of consideration where he does so with the consent of the mortgagors. (Page 90.)</p> <p>10. Usury — Defenses. The defense of usury cannot he set up, in an action upon a mortgage, where the contract was entered into before the usury law became effective. (Page 91.)</p>

N.. J. Harris, Judge. Action for an injunction by tbe Commercial National Bank of Ogden against David Eccles and others. Judgment for plaintiff. Defendants appeal. STATEMENT OF FACTS.

M. L. Ritchie,, Judge. Action by' T. D. Simpson against the Denver & Rio Grande Railroad Company, upon two counts. Judgment for plaintiff upon one count, and for tbe defendant upon tbe other. Both parties appeal.

<p>1. Criminal Law — Evidence—Other Defenses. The rule that evidence of separate and similar offenses is inadmissible against accused on trial for a specific offense does not apply where it is material to show motive or a general plan for the commission of the specific offense, or where criminal intent or guilty knowledge of unlawful acts with respect to the specific offense is material, or where the specific offense and other claimed similar or separate offenses constitute part of one transaction or of a general scheme or plan and are so related that a complete account of the entire transaction of the one cannot he ' given without showing the other, or where the proof of the one involves proving the other, in which cases evidence of the separate and similar offenses is admissible. (Page 113.)</p> <p>2. Criminal Law — Evidence—Other Offenses. Where, on a trial for the larceny of a cow, the evidence showed that accused, was a ranchman, and that the hide of the cow of prosecutor was found on accused’s premises, evidence of the finding of other hides on accused’s premises at the same time was inadmissible, in the absence of evidence that the animals from, which the other hides had been taken had been stolen or that accused’s receiving them was a part of the larceny charged. (Page 113.)</p> <p>3. Criminax. Law — Evidence—Declarations—Admissibility. Where,, on a trial for the larceny of a cow, accused showed that a number of cattle on the ranch had been killed by a train and that he. believed the animal in question belonged to a third person and that he wrote a letter to the third person notifying him of the facts, and prosecutor on direct examination testified that the cow in question belonged to him and1 identified the hide of that cow by a brand which he claimed was his brand, and on cross-examination admitted that it was recorded in the name of the third person, it was error to permit him on redirect examination to testify to a conversation between himself and the third person, in the absence of accused, in which the third person admitted prosecutor’s ownership of the brand. (Page 118.)</p>

<p>Appeal from District Court, Second District; Hon. J.. A. Howell, Judge.</p> <p>Action by Joseph Fazio against tbe Corey Brothers Construction Company.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

<p>1. Criminal Law — Preliminary Examination — Advising as to Right to Attorney. The transcript of. the proceedings before an examining magistrate, affirmatively showing that the defendant “waived the service of an attorney,” shows that defendant was apprised of his right.to such services. (Page 139.)</p> <p>2. Criminal Law — Presumptions — Performance of Judicial Duties. In the absence of any showing to the contrary, it must be presumed that the examining magistrate performed the duty, imposed on him by statute, to warn one accused of ■ crime of his right to the assistance of an attorney. (Page 139.)</p> <p>3. Criminal Law — Preliminary Examination — Reducing Testimony to Writing. Const, art. 1, sec. 13, provides that offenses heretofore required to be prosecuted by indictment shall be prosecuted by information after examination and commitment by a magistrate, unless the examination be waived by- accused, with the consent of the state. Comp. Laws 1907, sec. 4670, which was in force before the adoption of the Constitution, provides that the testimony of each witness in cases of homicide must be reduced to writing as a deposition by the magistrate, or under his direction. Held that, where accused with the consent of the state waived the preliminary examination, he must be held to have waived the necessity of the magistrate’s hearing any testimony as to the charge against him, so that there was no testimony to be heard or reduced to writing.1 (Page 139.)</p> <p>4. Criminal Law — Appeal—Review—Discretion of Trial Court —Qualification of Juror. Where it appears on error assigned to the refusal to sustain certain challenges for bias that the court might have found that the jurors challenged were fair, impartial, and conscientious men, the trial court in its discretion was justified in overruling the'challenges.2 (Page 141.)</p> <p>5. Jury — Mode of Impaneling — Peremptory Challenges. Where 12 jurors were called and sworn on their voir dire and examined, and part of them excused for cause, and both the state and the defendant were required to exercise or waive their right to peremptorily challenge the jurors remaining in the jury box, leaving those not challenged to he sworn to try the case before any additional jurors should he called to take the place of those challenged and excused, the procedure was proper.3 (Page 141.)</p> <p>6. Criminal Law — Appeal—Harmless Error — Ruling of Court. Where counsel on a murder trial was given every opportunity to bring all the facts before the jury, and the court in sustaining an objection to a statement by the prosecuting attorney that, of the articles coming into the possession of the chief of police, a cap was the most important, remarked that the assumption implied something that was not of record and not evidence in the case, error, if any, in such remark was not prejudicial. (Page 144.)</p> <p>7. Criminal Law — Evidence—Articles of Wearing Apparel. In a prosecution for murder in the first degree, committed within and as a part of an attempted robbery, articles of wearing apparel and other articles found on or taken from defendant’s accomplice after the attempted robbery were admissible. (Page 145.)</p> <p>8. Criminal Law — Evidence—Presumption of Sanity. There is a legal presumption of sanity. (Page 149.)</p> <p>9. Criminal Law — Capacity to Commit Crime — General Insanity —Test. Where the evidence to establish defendant's insanity could be considered only to show general insanity, the test of responsibility was the capacity of the defendant to distinguish between right and wrong at the time of and with respect to the criminal act.4 (Page 149.)</p> <p>10.Homicide — Homicide in Commission of Robbery — Insanity— Test. Where defendant committed murder to avoid apprehension and conviction for an attempted robbery, and relied upon insanity as a defense, the test of mental responsibility was, not whether he was a confirmed thief and had not the will power to resist theft, .but whether he had the mental capacity to distinguish between right and wrong with respect to the murder. (Page 149.)</p> <p>' 11. Homicide — Appeal—Harmless Error — Instructions. On a trial for murder, defended on the ground of insanity, where the evidence could be considered only to show general insanity, and the court properly defined the test thereof, its failure to enlarge upon different phases of insanity and mental weakness was not prejudicial to defendant. (Page 151.)</p> <p>12. Homicide — Verdict—Power oe Jury — Degree. A jury in any homicide ease has the power, though not the legal or moral right, to disregard the evidence, and find one, who is clearly guilty of first degree murder, guilty of manslaughter, or acquit him. (Page 151.)</p> <p>13. Homicide — Instructions—Second Degree — Statutes. On a trial for murder, under an information framed upon the theory of a deliberate and premeditated murder, and under the statute providing that murder committed in an attempt to commit robbery is murder in the first degree without deliberation or premeditation, where the evidence required a finding that the murder was committed in an attempt to rob, and the court submitted the case upon each theory of the information, there was no error in refusing to charge as to second degree murder; since the statute defined the crime shown by the evidence to be first degree murder, and the court was not required to charge on second degree murder so as to empower the jury to disregard the evidence and return a verdict contrary to law.5 (Page 151.)</p> <p>14. Homicide — Instructions—Second Degree Murder. In such case, the court might have submitted the question of second degree murder without committing error against accused. (Page 151.)</p> <p>15. Criminal Daw — Instructions—Application to Facts — Abandonment op Intention to Kill. On a trial for murder in the first degree, on the theory of its commission during an attempt to rob, where there was no evidence that defendant had voluntarily abandoned the attempted robbery before firing the fatal shot, an instruction that, if defendant had abandoned the intention to rob before he shot deceased, the killing would not have been in an attempt to rob, and unless willful and premeditated, the killing would not have been murder in the first degree, was properly refused. (Page 155.)</p> <p>16. Criminal Law — Presumption—“Good” or “Average” Character — Instructions—Prejudice. In an instruction, that when a person is charged with the commission of a crime the law presumes that he is a man of “average” character and that the failure to call witnesses to prove his general good character raises no presumption against it, the use of the word “average”' in place of the usual adjective “good” was not prejudicial. (Page 155.)</p> <p>17. Cbimínal Law — Instbuctions—Recommendation as to Punishment. In a trial for murder in the first degree, where the court, after calling attention to the statute enabling the jury to recommend life imprisonment in case they found defendant guilty of that degree of homicide, charged that in considering the question they were not restricted by any rule of law or public policy, but were entitled to decide the question from such considerations as might appeal to them, as reasonably entitled to be weighed in determining such recommendation, was not objectionable as in any way directing or controlling, or attempting to control or direct, the judgment of the jury oh the question of recommendation.6 (Page 156.)</p> <p>STEAUP,J., dissenting.</p>

T. D. Lewis, Judge. Action by Salt Lake City against tbe Salt Lake Investment Company. Judgment sustaining a demurrer and dismissing tbe complaint. Plaintiff appeals. APPELLANT'’S POINTS. Where tbe steps by which a court is supposed to have acquired jurisdiction are all shown by the record, and it appears from an examination of the same without recourse to extraneous matter, that the court acted without jurisdiction, the judgment may be attacked and set aside.

N. ■J. Harris, Judge. Action by A. C. Larsen against S. W. Richards and wife. From an order directing the re-payment of a deposit made to discharge an attachment, plaintiff appeals.

N. J. Harris, Presiding Judge. Action to quiet title by Christina J. Larsen against Jens C. Gasberg. Judgment for plaintiff. Defendant appeals. STATEMENT OK EACTS. Held: in tbe opinion rendered on tbe former appeal, tba.t Gasberg was a necessary party to tbe action brought against Carrington for tbe cancellation of tbe deed, and, not baying been made a party, be was not concluded by tbe judgment.

<p>1. Ceimiwal Law — Waiver or Error in Appellate Court. Assignments of error, which are not discussed by the appellant, are deemed waived and will not be considered. (Page 212.)</p> <p>.2. Animals — Marks and Brands — Criminal Prosecutions — Evidence. In a prosecution for altering and defacing a wool brand on sheep with intent to steal them and prevent their identification by the owner, evidence held insufficient to show that accused and his partner were not the owners of the sheep. (Page 212.)</p> <p>•3. Animals — Marks and Brands — Criminal Prosecutions — Evidence. On a trial for altering and defacing a wool brand on sheep, where the evidence showed affirmatively that one of the defendants took no part whatever in the branding, evidence that he purchased the paint for the other defendant was not sufficient to justify the court in submitting the question of his guilt to the jury. (Page 216.)</p>

<p>Appeal from District Court, Third District; Hon. George G. Armstrong, Judge.</p> <p>Action by Erank W. Newton, against Oregon Short Line-Railroad Company.</p> <p>Judgment for defendant. Plaintiff appeals.</p>

<p>1. Intoxicating Liquors — Ordinances—Validity. Under Laws 1911, c. 108, section 68, providing that nothing in the act shall prohibit any city council from enacting regulations of the liquor traffic in addition to, hut not in conflict with, the provisions of the act, and Comp. Laws 1907, section 206, as amended hy Laws 1911, chap. 120, empowering city councils to license and regulate, or to prohibit the sale of intoxicating liquor, and to pass ordinances necessary to carry into effect the powers conferred, a city may pass an ordinance prohibiting the sale ■ of liquor within the city, and punishing acts prohibited and punished by state law, and' may impose the same penalties as are imposed by state laws, if within the jurisdiction of the municipal court.1 (Page 234.)</p> <p>2. Constitutional Law — Equal Pbotection oe the Laws — ORDINANCES — Validity. An ordinance of a city which makes it unlawful for any person, directly or indirectly, to sell intoxicating liquor, or keep the same for sale, and which declares that any person violating the same shall be guilty of a misdemeanor, and shall be punished by fine or imprisonment, or both, is not invalid as discriminatory because containing no provision punishing corporations violating the law, for all the acts prohibited by the ordinance are punishable in the same manner and to the same extent. (Page 237.)</p> <p>-3. Corporations — Organization—Retail Liquob Traffic. A corporation cannot be legally organized to sell liquor at retail, but may be organized to manufacture or sell liquor at wholesale, and a sale of liquor by a corporation other than at wholesale is ultra vires. (Page 237.)</p> <p>4. Corporations — Criminal Offenses — Punishment. A corporation is a mere artificial legal entity which may neither be arrested nor imprisoned, though it may be indicted or informed against, and by special process brought into court, and'tried and convicted of certain offenses, and be fined in a specific sum of money, and the fine collected on execution, provided there is any corporate property. (Page 237.)</p> <p>5. Cbiminal Law — Agents—Criminal Responsibility. The agents of a corporation who violate state laws or municipal ordinances may he arrested and punished like other individual offenders, and for ultra vires acts the agents responsible for them are usually the only ones who may he punished, and for acts not ultra vires the agents may be punished, though the corporation-may also be punished as a joint offender. (Page 237.)</p> <p>6. Intoxicating Liquors — Ordinances—Validity—Omission of Words. The word “natural” in an ordinance, making it unlawful for any person to sell intoxicating liquor in a city, and punishing any “natural” person violating the ordinance, is without effect; and the omission thereof does not affect the validity of the ordinance as authorizing the punishment of persons violating it. (Page 241.)</p> <p>7. Intoxicating Liquors — Ordinances—Punishment—Validity, A city may fix a minimum fine for the violation of ordinances, so long as the fine imposed is within the limits fixed by the charter or special statute, and is not unreasonable or excessive, and the minimum fine of fifty dollars, imposed by an ordinance punishing the illegal sale of liquor, is not unreasonable or excessive. (Page 241.)</p> <p>8. Criminal Law — Judicial Notice — Facts of Common Knowledge. The courts will take judicial notice of the fact that an election was held in June, 1911, under the mandatory provisions', of the local option act as amended. (Page 242.)</p> <p>ON APPLICATION FOR REHEARING.</p> <p>9. Criminal Law — Appeal—Presumptions—Validity of Ordinances. The court, on appeal from a conviction for a violation of an ordinance of a city punishing the illegal sale of intoxicating-liquor, must presume that'a local option election was held under the mandatory provisions of the statute, and that the ordinance was passed pursuant to law or the power vested in the authorities of the city until the contrary is shown, and, where accused offers no evidence, the presumption prevails against him, and the conviction will be affirmed, with costs, in favor of the city for printing brief on appeal. (Page 249.)</p> <p>10. Municipal Corporations — Questions in Lower Court — Validity of Ordinance. Where a city is given general power to pass an ordinance on a given subject, the presumption is-that an ordinance passed on that subject is valid, and the burden of showing-its ivalidity is on the one assailing it. (Page 250.)</p> <p>11. Criminal Law — Ordinances—Validity—Burden of Proof. One charged with violating an ordinance of a city punishing the illegal sale of liquor, who desires to assail the power of the city to pass it by reason of the result of a local option election, should do so in the local court or in the district court on appeal, where the case is tried.de novo; and he cannot raise the question for the first time in the Supreme Court on appeal, unless, perhaps, where it appears on the face of the ordinance that the city exceeded its power. (Page 251.)</p> <p>Straup, J., dissenting in part.</p>

<p>Appeal from District Court, Fourth District; Hon. J. E. Booth, Judge.</p> <p>Lawrence H. Briggs was convicted of violating an ordinance of American Fork City. He appeals.</p>

F. 0. L'oofbourow, Judge. ' Suit by Gustavus S-. Holmes against. Salt Lake City and others to compel the city to issue a liquor license to plaintiff and to restrain the city and its officers from enforcing a certain ordinance, regulating restaurants, as against plaintiff. Decree in favor of defendant. Complainants appeal.

M. L. Ritchie, Judge. Action by Matthew W. Mansfield, as administrator of the estate of John Haslam, deceased, against Ann Eliza B. Neff, and others, and proceedings by Ann Eliza B. Neff, and' others for the distribution of the real estate of said decedent, which actions were consolidated and tried together. Judgment for the said Ann Eliza B. Neff, and others. Matthew W. Mansfield appeals. APPELLANT'S POINTS.

<p>1. Appeal and Error — Harmless Error — Overruling Demurrer. Under Comp. Laws 1907, sec. 3008, providing that no judgment shall he reversed for error which does not affect the substantial rights of the parties, a defendant in an action to quiet title cannot, on appeal, attack the ruling on a special demurrer for misjoinder of parties and causes of action, without showing that it was injuriously affected thereby, since the demurrer admitted the allegation that it had no interest in the property, and therefore its substantial rights could not be affected. (Page 280.)</p> <p>2. Action — Joinder of Causes — Quieting Title and Cancellation of Judgment. In an action to quiet title to real estate the plaintiff may seek to have a judgment against him, which affects his title, canceled on the ground of fraud in procuring it, without thereby improperly uniting different causes of action. (Page 281.)</p> <p>3. Judgment — Equitable Belief — Form of Bemedt — Action to Quiet Title. In such a case the attack on the judgment is a direct and not a collateral attack.1 (Page 281.)</p> <p>4. Trial — Objection to Evidence — Bight to Object — Party in Default. While in some actions for unliquidated damages a party in default may participate in the trial in so far as the damages are concerned, a defendant in an action to quiet title, whose demurrer to the complaint, admitting that it had no interest in the subject-matter, had been overruled, and who had refused to plead further, and was in default for want of an answer, was not entitled to object to the introduction of evidence. (Page 282.)</p>

<p>1. Corporations — Subscription Contract — Requisites — Liability oe Subscbibers. Comp. Laws 1907, secs. 314, 315, 316, and 332, providing for the organization of business corporations, does not require that the subscribers to a subscription for the capital stock shall sign the articles of incorporation or that the subscription contract shall be incorporated into the articles in order to be enforceable; it being perfectly competent for the subscribers to make a separate specific agreement to take and pay for a specified amount of the stock of the corporation to be issued when the corporation is organized, which will be valid and enforceable whether the subscribers sign the articles of incorporation or not. (Page 288.)</p> <p>2. Corporations — Subscription Contract — Statutory Provisions. Comp. Laws 1907, sec. 316, providing that at least ten per cent, of the stock subscribed by each stockholder in the corporation must be paid in before the corporation is authorized to commence business, is a condition imposed for the protection of creditors of the corporation; and hence the fact that a subscriber had failed and refused to pay ten per cent, of his subscription did not entitle him to successfully contend that he was not a stockholder in defense of an action to recover his subscription. (Page 291.)</p> <p>3. Corporations ■ — Subscription Agreement — Validity — Effect. Whoever subscribes to an unconditional agreement to take a given number of shares of a corporation thereby becomes a shareholder in respect to that number, subject to any valid conditions named in tlie subscription paper and to those' imposed by the general law. The act of subscribing fixes the subscribers’ liability to the corporation and creditors, though he has not paid into the treasury of the corporation any part of his subscription or done any act in his character as a stockholder. (Page 293.)</p> <p>4. Corporations — Stock Subscription Contract — Amount. Where-a corporation to construct and operate a hotel was organized in strict conformity to law, it was no defense to a subscriber’s agreement to take a stock in the corporation that the whole amount intended to be raised and specified in the subscription contract had not been subscribed; a corporation being authorized by Comp. Laws 1907, sec. 316, to begin business when ten per cent, of the subscription of each subscriber has been paid in. (Page 295.)</p> <p>5. Corporations — Stockholders—Subscription Contract — Action —Defense. In an action on a stock subscription contract, it was no defense that defendant refused to sign the articles of incorporation. (Page 295.)</p> <p>6. Corporations — Stock Subscription — “Bona Fide Subscribers.”' One signing a subscription binding him to take stock in a corporation to be organized is a “bona fide subscriber” within Const, art. 12, sec. 5, providing that corporations shall not issue stock except to bona fide subscribers. (Page 296.)</p> <p>7. Corporations — Issuance of Stock — Bona Fide Subscriber. Const, art. 12, sec. 5, providing that no corporation shall issue stock except to bona fide subscribers, deals with fictitious issues of stock and has no application to the question whether a subscriber may be held to a compliance with his agreement to take stock in a corporation. (Page 296.)</p> <p>on application for rehearing.</p> <p>8. Corporations — Stock Subscription — Action—Defenses—Tender-In an action on a stock subscription contract, it is not essential that plaintiff allege and prove a tender of the stock subscribed' for. (Page 301.)</p> <p>9. Corporations — Stock Subscription Contract — Delivery of Stock. Where, in an action on a stock subscription contract, plaintiff introduced the articles of incorporation from which it affirmatively appeared who were stockholders and how much each one had taken, together with the total amount of stock authorized to be issued, and this showed that all of the authorized stock had not been issued, it appeared prima facie-that the corporation had in its possession the amount of stock necessary to fulfill defendant’s subscription to be delivered to him on payment of his subscription. (Page 301.)</p>

<p>1. APPEAL AND ERROR — TIME TO APPEAL-MOTION FOE NEW TRIAL. The six months allowed in which to appeal dates from the denial of the motion for new trial, if notice of such motion is filed and served, as required hy Comp. Laws 1907, sec. 3294, within five days after the verdict in a jury case; hut where the notice is not served* and filed in time, the time to appeal dates from the judgment. (Page 304.)</p> <p>2. Appeal and Error — Presumptions—Notice of Motion foe New Trial. Where an appeal was taken within six months after the order denying a new trial hut not the judgment, and the record shows that notice of the motion for a new trial was not given in time, making the time to appeal date from the judgment, there is no presumption that the court extended the time to give notice of the motion for a new trial. (Page 306.)</p> <p>3. Appeal and Error — Time to Appeal — Motion for New Trial. Where the notice of motion for a new trial is not given within the time prescribed hy Comp. Laws 1907, sec. 3294, an extension of time to give such notice must be made before the expiration of the statutory time, in order to make the time to appeal date from the order denying a new trial.1 (Page 306.)</p> <p>4. Appeal and Error — Time foe Appeal — Recitals in Record— Dismissal. Where the record affirmatively shows that the appeal was not taken in time, in the absence of a showing that for some good and sufficient reason the appeal was nevertheless taken in time, the facts given in the record are controlling, and the appeal must be dismissed.2 .(Page 306.)</p>

<p>Appeal from District Court, Third District; Hon. George G. Armstrong, Judge.</p> <p>Action for personal injuries by E. A. Sweet against Salt Lake City.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

<p>1. Intoxicating Liquors — Criminal Prosecution — Complaint — Place as Element of Offense. While, under Laws 1911, c. 106, sec. 36, providing that, in all prosecutions for the unlawful sale of liquors under the act, it shall he necessary to state the time and place of sale, hut not necessary to state the hind of liquor sold, nor to describe the place where sold, the place of sale should be stated in general terms, yet a failure to do so is not jurisdictional and not an essential ingredient of the offense and hence does not vitiate the judgment of conviction. (Page 329.)</p> <p>2. Habeas Corpus — Errors and Irregularities — Defects in Complaint. Unless the complaint fails to state some jurisdictional fact or some essential ingredient constituting the offense whereby the court is left without jurisdiction, a judgment of conviction will not be reviewed on habeas corpus, but the error, if reviewed at all, must be done on appeal. (Page 330.)</p>

W. W. Maugham., Judge. Action by William P. D'opp and another against Ralph 0. Richards. Judgment for plaintiffs. Defendant appeals. RESPONDENTS'’ POINTS. To be potential and controlling that a stated sum is liquidated damages, that sum must be fixed as tbe basis of compensation, and substantially limited to it. (Sutherland on Damáges, pages 478-9-80-1; 3 Parson Oont. 6th Ed. p. 156, Rinard v. Gardner, 31 P’ac. 134; Kelly v. Fejervary, 83 N. W. 791; Western Gas, 0.

N. J. Harris, Judge. Action by Elias Bakka. against tbe Kemmerer Coal Company. Judgment for plaintiff; defendant appeals. appellant's points.

; Hon. George G. Armstrong, Judge. Action by the Tooele Building Association against Tooele High School District No. 1, and others, to enjoin the erection of a high school building. Judgment dismissing the action. Plaintiff appeals. STATEMENT OE PACTS.

N. J. Harris, Judge. Application by Catherine Lambing Hummel for a wri,t of habeas corpus against Samuel J. Parrish and Caddie K. Parrish to obtain the custody of her minor child. Prom an order awarding the custody of the child to the defendants, plaintiff appeals. APPELLANT'S POINTS.

<p>Appeal from District Court, Third District; Hon. M. L. Ritchie, Judge.</p> <p>Action by Gerard a C. Lomme Kool against J. W. Lee,</p> <p>Judgment for plaintiff. Defendant appeals.</p>

<p>1. Appeal and Error — Setting Aside — Discretion. An order denying a motion to set aside a judgment rendered on a bearing in defendant’s absence, and to grant a new trial on alleged grounds of mistake, inadvertence, surprise, or excusable neglect, cannot be interfered with on appeal, unless an abuse of discretion is shown.1 (Page 410.)</p> <p>2. Judgment — Review—Discretion of Trial Court — Abuse—Setting Aside — Judgment. Facts field not to show an abuse of discretion, in denying a motion to set aside a judgment rendered on a hearing in defendant’s absence, and to grant a new trial on alleged grounds of mistake, inadvertence, surprise, or excusable neglect, so as to authorize interference with the order. (Page 410.)</p>

Abpisal from District Court, Seventh District; Hon. J. E. Booth, Judge. Action by Elizabeth Eoberts and others against William H. Gribble. Judgment for defendant. Plaintiffs appeal. STATEMENT OE PACTS. This is an action to restrain defendant from interfering with certain underflow or subterranean waters which pass beneath the surface of and through the defendant’s land' in Sanpete County, Utab, and to quiet tbe title of tbe waters in plaintiffs.

<p>Appeal from District Court, Third District; Hon. O. W. Morse, Judge.</p> <p>Action by M. W. Mansfield against tbe Sinaloa Land & Fruit Company.</p> <p>Judgment for defendant. Plaintiff appeals.</p>

<p>1. SHERIFFS AND CONSTABLES-ACTIONS FOR CONVERSION-EVIDENCE. In an action against a sheriff for converting an automobile on which plaintiff had a chattel mortgage, evidence held sufficient to support a finding that the deputy sheriffs were notified that plaintiff had a mortgage thereon when they levied thereon under a writ of attachment. (Page 423.)</p> <p>2. Sheriffs and Constables — Actions for Conversion — Evidence. In an action against a sheriff for converting an automobile, upon which plaintiff had a chattel mortgage, by levying thereon under a writ of attachment, evidence that the automobile when levied upon was in the barn of plaintiff’s son-in-law, that shortly after the levy, with plaintiff’s knowledge, though without his consent and against his protest, it was replaced in such barn, would not support a finding that it was abandoned and not left in the possession of any one. (Pafe 423.)</p> <p>3. Sheriffs and Constables — Action for Conversion — Evidence. In an action against a sheriff for converting an automobile, upon which plaintiff had a chattel mortgage, by levying thereon under a writ of attachment, evidence held insufficient to support a finding that it was returned to the place from which it was taken without plaintiff’s knowledge but sufficient to support a finding that he did not demand or consent to its return. (Page 423.)</p> <p>4. Sr~mus'rs AND CONSTABLES-WRONGFUL ATTAcHMENT-LIABILITY. Although the statute provides that, before mortgaged property may be taken on attachment, the officer must pay or tender the mortgagee the amount of the mortgage debt or deposit tho amount thereof with the county recorder, the taking of the property without complying therewith does not render the officer liable to pay the debt but makes him liable in tort for the damages sustained thereby; the levy being unauthorized and the seizure a trespass. (Page 425.)</p> <p>5. Taovjm AND CONVERSION-DAMAGES-VALUE OF PROPERTY. Ordinarily in conversion, when the property is not returned, the value thereof at the time of the conversion is the measure of damages. (Page 426.)</p> <p>6. TROVER AND CoNv]IaSI0N-MITIGATI0N OF DAMAGRS-RzTURN OF PROPERTY. In an action for conversion, a return of the property to plaintiff and an acceptance of it by him may be shown in mitigation of damages, if the property when returned was in the same condition as when taken and plaIntiff has suffered no special damages. (Page 426.)</p> <p>7. SHERIFFS AND CONSTABLES-CONvERSION--MITIGATION or DAMAGES-RETURN OF PROPERTY. Where a levy on mortgaged personal property under a writ of attachment without paying or tendering the mortgage debt, as required by statute, was made and the property seized in good faith and not oppressively, the property was unused and stored at the time of the levy, was retained but five days, and then returned in the same condition as when taken and left in the place from which it was taken, where it remained subject to the mortgagee's control and dominion, the mortgagee, in the absence of any proof that he had sustained any loss, was entitled to recover only nominal damages, although the mortgagee refused to accept the return of the property, especially as he could not convey title to the property to defendant upon satisfaction of a judgment for its value and did not offer to transfer his lien. (Page 426.)</p>

<p>1. Paetnership — Action for Accoijnting. Where a partnership contract itself was not entered into for any fraudulent, wrongful, or unlawful purpose, the fact that the partners had practiced fraud in a partnership deal in obtaining quitclaim deeds from the heirs of an estate was not a defense by one partner to a demand for an accounting by the other. (Page 438.)</p> <p>2. Appeal and Error — Review—Equity Case. While, in an equity case on appeal on questions of both law and fact, the court can set aside, and direct, or malee other findings, it is a power which has been, and ought to be, sparingly exercised on evidence which is in conflict. (Page 438.)</p> <p>3. Partnership — Representation of Firm by Partner. Though one partner can contract for and pay reasonable compensation to obtain a bond, if necessary to effect and accomplish a partnership transaction or deal, he cannot, as compensation for obtaining a bond, take a person in as partner, or give him an undivided interest in the partnership. (Page 439.)</p>

<p>Quieting Title — Findings—Review. In. a suit to quiet title, evidence held to sustain findings that; during the time of complainant’s occupancy of the premises in question, deceased, under whom complainant claimed by a parol gift, exercised acts of exclusive ownership over the premises, and that the improvements placed upon the land hy complainant and her husband were not permanent improvements, increasing the value of the freehold, but rather those conducive to comfort of occupancy.</p>

<p>1. Statutes — Partial Invalidity. Laws 1911, chap. 62, relating to bastardy, is not invalid as a whole for failure to define bastardy, or the procedure to be followed is vague and uncertain. (Page 452.)</p> <p>2. Bastabds — Natuee of Pboceeding — Civil ob Criminal — Conviction — Evidence. A bastardy proceeding under Laws 1911, chap. 62, is civil and not criminal; and hence the state is only required to establish accused’s guilt by a preponderance of the evidence and not beyond a reasonable doubt. (Page 452.)</p> <p>3. Bastabds — Evidence—Testimony of Pbosecutbix — Sufficiency. Where, in a bastardy proceeding, the testimony of accused and prosecutrix was diametrically opposed as to the sexual intercourse, it was for the jury to determine which was the more worthy of belief; they being entitled to find for the state on prosecutrix’s uncorroborated testimony. (Page 454.)</p> <p>•4. Bastabds — Instbuctions — Witnesses — Corroboration. An instruction that, if the jury believed from the evidence that nny witness who had testified in the case had knowingly and willfully testified falsely to any material fact in tlie case, the jury might disregard the whole testimony of the witness or they might give such weight to the witness’ testimony on such other points as they might think it entitled to was not erroneous as omitting the usual qualifying clause “unless the witness is corroborated by other credible evidence,” since the-instruction contained such limitation in substance. (Page 455.)'</p> <p>5. Bastards — Trtal—Verdict. Where, in a bastardy proceeding,, the evidence was positive and unquestioned that there was only one act of sexual intercourse, an instruction as to the form of' the verdict: “Your verdict in this case must he either guilty of having sexual intercourse with - (the prosecutrix) and. being the father of her bastard child as charged in the information, or not guilty of having sexual intercourse with - (the prosecutrix) and being the father of her bastard child, as charged, in the information, as your deliberations may result” — was not fatally defective as requiring the jury to find, not only that accused was not guilty of such sexual intercourse but that he was not the father of prosecutrix’s child in order to find for defendant. (Page 456.)</p> <p>6. Bastards — Nature of Proceeding — Accomplice. A bastardy proceeding being civil in character, it was not error for the court to refuse to submit the case to the jury on the theory that prosecutrix was an accomplice and that her testimony with reference to the act of intercourse must be corroborated in order to convict. (Page 457.)</p> <p>7. Witnesses — Cross-Examination— Questions Tending to Degrade. Where, in a bastardy proceeding, prosecutrix claimed, that the sexual intercourse occurred immediately after an automobile ride on which she accompanied accused, who drove-the car, and testified to misconduct of accused on the way home, whereupon accused introduced a witness, a married man,, who was riding in the back seat of the machine with prose-cutrix’s sister at the time, and he testified that during the ride he neither saw nor heard anything improper between prosecu-trix and accused, a question asked witness on cross-examination if during the ride he had not placed his own arm around, prosecutrix’s sister, which he was compelled to answer in the affirmative over objection, was improper as tending to degrade the witness in violation of Comp. Laws 1907, section 3431, providing that a witness need not answer a question which will have a direct tendency to degrade his character; the same having no relevancy to the issue.1 (Page 458.)</p> <p>8- BastaRds — Appeal—Rulings on Evidence — Prejudice. The statements of prosecutrix and those of accused as to the question of intercourse being in direct conflict, error in requiring witness to answer such question was prejudicial to accused as the jury would he likely to place stress on the fact that accused’s witness admitted that he too was guilty of questionable, if not improper, conduct and therefore would not give to his testimony the same credit that they might otherwise have done, when as a matter of law the witness’ conduct could in no way affect his credibility. (Page 461.)</p> <p>9.Bastards — Instructions—Testimony oe Prosecutrix. In a bastardy proceeding, the jury is entitled to consider prose-cutrix’s evidence in accordance with all the facts and circumstances of the case and determine its credibility under the same rules that apply to other witnesses; and hence it was not error to refuse to charge that the jury should consider or weigh her testimony “with caution.” (Page 461.)</p> <p>10. Bastards — Instructions—Witnesses—Credibility. Where, in a bastardy proceeding, the court had fully charged on the maxim “Falsus in uno, falsus in omnibus,” as applied to the witnesses in general, it was not error to refuse to charge that if the jury believed from the evidence that the only evidence tending to prove accused’s guilt was the testimony of prose-cutrix, and that her testimony on any material point was untrue, then they were at liberty to disregard her whole testimony. (Page 462.)</p> <p>11. Bastards — Constitutional Law — Judgment—Bond—Commitment to Jail. Laws 1911, ch. 62, see. 8, relating to bastardy, provides that, if accused shall refuse or neglect to give security after conviction as ordered, he shall be committed to jail, to remain until he shall comply with such order or shall be otherwise discharged, and that any person so committed may be discharged for insolvency or inability to give bond, provided that such discharge shall not be made within one year after commitment. Held, that such latter provision, requiring imprisonment of an insolvent defendant for at least a year for inability to give bond, was unreasonable and grossly oppressive, and for that reason void, but the invalidity thereof did not affect the balance of the act; and hence an insolvent so convicted, on proving his inability to perform the judgment, should not be incarcerated in the first instance, or if he had been incarcerated he should be discharged without reference to the period of his imprisonment. (Page 462.)</p> <p>12. Bastards — Judgment—Security—Statutes:—Reasonableness. Bastardy Act (Laws 1911, ch. 62), providing that accused, if convicted, may be compelled to give bond for tbe payment of a specified sum for tbe support of tbe illegitimate child, payable in installments covering a period of seventeen years, but authorizing a compromise with tbe mother after judgment by paying her any sum she might be willing to accept, in no event less than $500, was not unreasonable as requiring security for an unreasonable time. (Page 465.)</p> <p>13. Bastards — Punishment—Support of Child — Amount. "While it is the duty of the court in bastardy proceedings under Laws 1911, ch. 62, on conviction of accused, to fix the amount in each case which accused shall be required to pay for the support of the child within the limit fixed by the statute, such amount should be fixed in accordance with the circumstances of each case, taking into consideration the means of accused, his ability to earn money, the lack of means of the mother, and the health and condition of both; the court taking testimony after verdict relative to the means, health, condition, and ability of the putative father to earn money and fixing such an amount, under all the circumstances, as is just and fair. (Page 466.)</p> <p>14. Bastards — Issues—Evidence. In a bastardy proceeding, the sole issue is who is the father of the child in question; and hence other evidence of conduct of the parties occurring more than a year prior to the sexual intercourse in question is inadmissible. (Page 467.)</p> <p>15. Witnesses — Cross-Examination of Accused. Where, in a bastardy proceeding, accused denies having had sexual intercourse with prosecutrix, evidence to show his conduct and inclination toward her for a reasonable time prior to the time in question is only proper on cross-examination as showing the probability of the intercourse alleged. (Page 467.)</p> <p>16. Bastards — Evidence—Prior Immorality. Before accused can be found guilty in a bastardy proceeding, the state must prove by a preponderance of the evidence that he had sexual intercourse with prosecutrix within the period of gestation, and, unless this is done, evidence of his conduct and that of prose-cutrix outside such period is irrelevant. (Page 467.)</p>

<p>Appeal from District Court, Third District; Hon. George-G. Armstrong, Judge.</p> <p>Ejectment by N. E. Miller against C. E. Johnson and others, and Mary Ellen Slater Butler and others.</p> <p>Judgments in favor of plaintiff. Defendants appeal.</p>

<p>1. Waters and Water Courses — Underground Streams — Evidence. Evidence held, to show that an underground stream flowed in a well-defined natural channel and the water thereof was subject to appropriation for beneficial uses.1 (Page 486.)</p> <p>2. Waters and Water Courses — Appropriation to Beneficial Use —Vested Rights. Under Const, art. 17, sec. 1, providing that all existing rights to the use of any of the waters of this state for beneficial purposes are recognized and confirmed, an appropriator for a beneficial use of water from a natural stream acquires a vested right in the stream to the extent of his appropriation, and the right carries with it an interest in the stream to the source from which the supply is obtained.2 (Page 487.)</p> <p>3. Waters and Water Courses — Appropriation of Water — Proceedings Before State Engineer — Jurisdiction. Comp. Laws 1907, sec. 1288x5, providing for proceedings before the state engineer to appropriate water, but limiting the rights conferred to rights to the use of any unappropriated water in the state, limits the jurisdiction of the state engineer to unappropriated waters only, so that he may not entertain proceedings or make any order respecting any water rights already acquired, and a certificate to an appropriator may not prejudice the rights of a prior appropriator. (Page 487.)</p> <p>4. Waters and' Water Courses — Diversion of Water of Subterranean Channee — Evidence. Evidence held to shovi a diversion by defendants of water from a subterranean channel appropriated by plaintiff for irrigation purposes, justifying relief. (Page 488.)</p> <p>5. Waters and Water Courses — Diversion—Appropriation—Evidence. Evidence held to show that plaintiff, appropriating water in a subterranean channel, acquired the right to at least 225 gallons per minute, entitling him to restrain another from reducing the volume of the water so as to interfere with his rights. (Page 495.)</p> <p>LEWIS, Distkict Judge, dissenting.</p>

<p>1. Appeal and Ereoe — Review—Pbejudicial Eeeoe. Where a demurrer was sustained to defendant’s answer, and an amended answer was filed, the original went out of the record, and hence the improper refusal of the motion to strike the answer was not prejudicial. (Page 498.)</p> <p>2. Exceptions, Bill of — Allowance. Notice of the decision was served on defendant’s attorney the 6th of January, 1913. March 31st leave was given to prepare and serve a bill of exceptions on or before April 10th. Held, that where no bill was presented for settlement until May the court was without jurisdiction to settle and allow the proposed bill of exceptions.1 (Page 498.)</p> <p>3. Appeal' and Eeeoe — Bill of Exceptions — Necessity. In the absence of a bill of exceptions embracing the testimony, the only question which can be determined on appeal is whether the pleadings are sufficient to sustain the findings of fact and judgment. (Page 499.)</p>

<p>1. CRIMINAL Law- — Disqualification—Prejudice. Comp. Laws 1907, section 5132, relating to criminal procedure in justices’ courts, provides that a change of place of trial may be had before the trial commences, sections 239, 240, make the general Code of Criminal Procedure relating to justices’ courts applicable to city justices, and section 242 provides that, where any city justice is disqualified, the mayor shall appoint some other justice of the peace residing within the county. Held, that a showing of prejudice of a city justice was a disqualification within the meaning of the statute, and that defendant in a criminal case was required to proceed under section 242, and. not under section 5132! (Page 503.)</p> <p>2. Criminal Law — Prejudice—Ouster op Jurisdiction. Whether-considered under Comp. Laws 1907, section 5132, relating to-criminal procedure in justices’ courts, and granting a change of venue on affidavit that defendant believes that he cannot have a fair and impartial trial before the city justice, or under section 242, allowing such affidavits against justices of a city-court, the filing of an affidavit in the language of the statute, did not oust the justice of jurisdiction. (Page 503.)</p> <p>3. Criminal Law — Certiorari—Proceedings—Question Presented-por Review. On certiorari to review the overruling by the district court of defendant’s motion to dismiss on the ground, that the city justice below was ousted of jurisdiction of a. prosecution for selling liquor by the filing of an affidavit of prejudice, so that the district court itself was without jurisdiction on appeal, proceedings in a similar case against relator, and his conviction and satisfaction of the judgment against him, could n.ot be considered when in the instant case such, proceedings were not pleaded as former jeopardy. (Page 505.).</p>

<p>X Btjeglaby — Sufficiency of Evidence. Evidence field, not sufficient to connect accused witb the offense so as to sustain a conviction for burglary. (Page 507.)</p> <p>2. Criminal Law — Evidence—Opinion Evidence — Voice. While evidence of the sound of voice is admissible for identification purposes, it should be reasonably positive and certain, and based upon some peculiarity of the voice, or upon sufficient previous knowledge by the witness thereof. (Page 511.)</p> <p>3, Cbiminal Law — Trial—Province of Juby. While the jury are the judges of the facts and the weight of the evidence and credibility of the witnesses, and evidence tending to prove an. issue, however slightly, is admissible, it is a preliminary question for the court, and not the jury, to decide in every case whether the evidence will justify a verdict for the party adducing the evidence. (Page 513.)</p> <p>4. Cbiminal Law — Proof—Reasonable Doubt. The accused must be proven guilty by the evidence beyond a reasonable doubt. (Page 515.)</p>

<p>1. Justices of the Peace — Appear—Notice of Judgment — WRITTEN Notice. Under tbe general rule that a written notice is contemplated where a statute requires notice without stating the manner of notification, Comp. Laws 1907, section 3744, requiring notice of the entry of a justice’s judgment to be given by the successful party, either personally or by publication, contemplates a notice in writing. (Page 519.)</p> <p>2. Justices of the Peace — Appear—Notices of Judgment — Sufficiency. Only a substantial compliance with Comp. Laws 1907, section 3744, requiring notice of entry of a justice’s judgment to be given by tbe successful party, either personally or by publication, is required. (Page 519.)</p> <p>3. Notice — Sufficiency and Form. Mere informalities in a notice ■which do not mislead will not vitiate it; and, while a particular form of notice required by statute must usually be followed with reasonable strictness, it is generally sufficient if the notice proceeds from an authentic source and fully informs the party to be notified of the substance of the matters required to be noticed. (Page 520.)</p> <p>4. Justices of the Peace — Appeal—Notices of Judgment — Sufficiency. Plaintiff’s attorney wrote defendant’s attorney that he desired to say that in the case of E., a corporation, which he represented as plaintiff, against the T. Company, in which defendant’s counsel represented the defendant, before a justice named, judgment was entered in said court in favor of plaintiff and against defendant for the amount stated, and that an abstract of judgment was issued and filed in the district court on a date named, and that the judgment, with interest, would amount to the sum named. Held, that the letter was sufficient as a notice of entry of judgment required by' Comp. Laws 1908, section 3744, to be given by the successful party on rendition of a judgment. (Page 520.)</p> <p>5. Justices of the Peace — Appeal—Entry of Judgment — Notice to Attorney. Under Comp. Laws 1907, section 3335, providing that, where a party has an attorney, the service of papers, except of process, must be upon the attorney instead of the party, notice of entry of judgment for plaintiff in a justice’s court was properly served upon the attorneys of defendant. (Page 521.)</p> <p>6. Justices of the Peace — Appeal—Notice of Judgment. Comp. Laws 1907, section 3744, requiring notice of entry of a justice’s judgment to be given to the losing party, should receive a reasonable construction and application.1 (Page 521.)</p> <p>7. Justices of the Peace — Notice of Judgment — Filing in Justice Court — Necessity. Comp. Laws 1907, section 3744, providing that notice of entry of a justice’s judgment must be given to the losing party, either personally or by publication, and the time of appeal shall date from its service, requires such notice ' and proof of its service to be filed in the justice’s court, where judgment is entered, and made a part of the record, since any question of the sufficiency of the notice must be determined from the record. (Page 522.)</p> <p>■ 8. Justices of the Peace — Appeal—Recobd. The appellate court on appeal from a justice’s judgment should be able to determine its jurisdiction from an inspection of the record.2 (Page 522.)</p>

<p>1. PLEADING-PREFERENCES-ACTIONS TO RECOVER — ALLEGATIONS OF Complaint — Conclusions. An allegation of the complaint, in an action to recover a preference under the federal Bankruptcy Act (Act July 1, 1898, ch. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3418]), that the effect of the transfer was to enable defendant to obtain a greater percentage of Ms debts than any of the other creditors of the same class, was not objectionable as a conclusion of law; having substantially followed the. language of the bankruptcy act. (Page 526.)</p> <p>2. BANKRUPTCY-RECOVERY OP PREFERENCES-“INSOLVENT.” A person is deemed “insolvent” whenever the aggregate of his property, exclusive of that which may be conveyed, concealed, or removed with intent to defraud creditors, and all property exempt to him under state laws, shall not at a fair valuation be sufficient to pay his debts. (Page 527.)</p> <p>3. Appeal and Error — Harmless Error — Admission op Evidence. Any error, in an action to recover preferences under the federal Bankruptcy Act (Act July 1, 1898, ch. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3418]), in admitting in evidence schedules, filed in the bankruptcy proceedings as evidence of the bankrupt’s assets and liabilities, was not prejudicial to defendant, where they were not considered by the appellate court on the question of insolvency, and the trial court’s finding thereon is. sustained. (Page 529.)</p> <p>4. Appeal and Error — Law op Case — Ruling on Former Appeal. A ruling as to the admissibility of evidence made on a former appeal is the law of the case on a second appeal. (Page 529.)</p> <p>5. Appeal and Error — Harmless Error — Admission op Evidence. Any error in admitting in evidence, in an action to recover preferences under the bankruptcy law, the schedules filed by the bankrupt as evidence of his assets and liabilities, was not injurious to defendant so far as the statements therein were confirmed by the bankrupt’s testimony for defendant at the trial. (Page 529.)</p> <p>6. Witnesses — Impeachment—Contradictory Statements. In an action to recover a preference given by an insolvent contrary to the Bankruptcy Act (Act July 1, 1898, ch. 641, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3418]), the schedules of assets and liabilities filed in the bankruptcy proceedings are admissible in evidence on the issue of insolvency, to contradict evidence for defendant given by the bankrupt; his attention having been first called to the conflict. (Page 529.)</p> <p>7. Trial — Instructions—Construction. Instructions should be. considered together. (Page 530.)</p> <p>8. Bankruptcy — Preferences. Where the inevitable result of a transaction between a debtor and creditor is to create a preference, it is presumed that the creditor as well as the debtor intended to bring about that result. (Page 530.)</p> <p>9. Bankruptcy — Purpose of Bankruptcy Law. The object of the bankruptcy law is to enforce equality among the bankrupt’s creditors. (Page 53L)</p> <p>10. Bankruptcy — Preferences—Notice of Insolvency. One of the officers of defendant corporation, which received a part of a bankrupt’s stock of goods originally purchased from it, inspected' the stock before it was transferred and was told the amount of the bankrupt’s unsecured liabilities, and that there were mortgages amounting to a certain sum on the real estate, and could have ascertained the exact condition of such real estate from the county records, which would have shown that the bankrupt had conveyed all of his interest in the realty subject to the mortgages thereon. Held, that a finding was authorized that defendant’s officer had or could have had full information concerning the bankrupt’s- insolvent condition. (Page 531.)</p> <p>11. Bankruptcy — Preferences—Evidence—Similar Transactions. In a suit to recover an alleged preference consisting of a return of purchased merchandise to the seller while insolvent, evidence that on previous occasions the bankrupt had returned merchandise to defendant and received credit therefor was not admissible. (Page 532.)</p> <p>12. Bankruptcy — Preferences—Interest. Upon recovering a preference made contrary to the federal Bankruptcy Act (Act July 1, 1898, ch. 541, 30 Stat. 544 [U. S. Comp. St. 1901» p. 3418]), interest should be allowed from the time a demand is made upon defendant for the return of the preference, and, if no formal demand is made, from the time suit is instituted to recover the property; the commencement of the action constituting a demand. (Page 532.)</p>

M. L. Ritchie, Judge. Action, by W. D. B'ailey against the Spalding-Livingston Investments Company. Judgment for plaintiff. Defendant appeals. RESPONDENTS POINTS. The services of' a realty broker are fully performed and his commission fully earned when the sale of the property is •completed or when he has procured a purchaser ready and willing to enter into a valid contract of sale upon the terms fixed by the owner.

<p>1. Railboads — Injuries to Persons on or near Tracks — Care Required. While a railroad company is not bound to exercise ordinary care to prevent injury to a bare licensee, yet where a building, with the acquiescence of the company, had been erected upon its right of way, and.used continuously for more than forty years, the relationship existing was more than bare licensor and licensee, and the railroad company was bound to use ordinary care to prevent injuring the occupant and his property.1 (Page 547.)</p> <p>'2. Negligence — Nature and Elements of Negligence. Where the law imposes the' duty of ordinary care, there is no distinction between negligence arising from negative acts of omission and positive acts of commission. (Page 550.)</p> <p>3. Railroads — Injuries to Persons on or near Tracks. Where a railroad company permitted a house to be erected upon its right of way, the duty imposed upon it to exercise ordinary care to prevent injury to the occupant is not limited to an injury occurring on its track. (Page'551.)</p> <p>-4. Railroads — Injuries to Persons on or near Tracks — Admissibility of Evidence. In an action against a railroad company for an injury to an occupant of a house located on its right of way, evidence as to the use and occupation of the right of way by other persons near the house in question was properly admitted to show the character and extent of the use and the relationship of the parties. (Page 553.)</p>

<p>1. Appeal and Error — Questions Presented eor Review — Record. As Utah Comp. Laws 1907, sec. 3197, as amended by Laws 1911, ch. 94, providing what shall constitute the judgment roll, does not include motions to quash the summons and service and to transfer the cause, the rulings of the trial court thereon cannot be considered, where they were not incorporated in the bill of exceptions, although they were improperly included by the clerk in the transcript of the judgment roll. (Page 557.)</p> <p>2. Appeal and Error — Review—Presumptions. It is presumed on appeal that rulings of the trial court are correct, until the contrary is shown by the record. (Page 557.)</p> <p>3. Appeal and Error — Review—Harmless Error. Where the trial court improperly received hearsay testimony which was very brief and direct, and becoming convinced of his error ordered it stricken from the record, and directed the jury not to consider it, the improper admission of the evidence was not prejudicial error.1 (Page 558.)</p> <p>4. Evidence — Opinion Evidence — Examination of Experts. Hypothetical questions to an expert witness may be based either upon all the facts of the case or upon such facts in evidence which are sufficient in themselves to reflect the examiner’s theory of the case, since each party has the right to propound hypothetical questions on his own theory.2 (Page 559.)</p> <p>5. Pleading — Complaint—Sufficiency. As Comp. Laws 1907, secs. 60, 61, and 62, giving a right of action for the commingling of diseased animals with those not infected, do not make the right of action dependent upon a willfully, commingling, an allegation that defendant willfully and negligently drove his diseased sheep with a herd of plaintiff’s alleges more than is necessary, and the allegations of willfulness will be disregarded as sur-plusage. (Page 560.)</p> <p>6. Appeal ane Error — Record—Matters Included. Under Comp. Laws 1907, sec. 3151, providing that all instructions requested or given shall become part of the judgment roll, requests to charge are part of the record, even though not incorporated in the bill of exceptions. (Page 560.)</p> <p>7. Appeal and Error — Assignments of Error — Sufficiency. While, in order to properly present for review the action of the court in giving an instruction, the precise language given must he set out in the assignments of error, that is unnecessary where the assignment is based on the refusal of the trial court to charge as requested; it being sufficient to refer to the request refused by number. (Page 561.)</p> <p>3. Appeal and Error — Presentation of Grounds for Review in Court Below — Necessity. The reason for requiring specific objections in case of complaint of the charge given is to give the trial court an opportunity to correct his error, and, unless such exceptions and objections are made, the error will not be reviewed on appeal.3 (Page 561.)</p> <p>9. Trial — Instructions—Refusal. Where requests to charge were covered by the instructions given, their refusal is not error. (Page 562.)</p> <p>10. Appeal and Error — Trial—Special Interrogatories — Discretion of Trial Court. While Comp. Laws 1907, sec. 3163, authorizes the trial court to direct the jury to make special findings upon all or any of the issues, the question whether special findings shall he submitted rests in the sound discretion of the trial court, which will not be disturbed unless abused.4 (Page 562.)</p> <p>11. Trial — Special Verdict — Submission. In an action for damages for commingling diseased sheep with plaintiff’s healthy animals, it was not an abuse of discretion on the part of the trial court to refuse to submit special issues to the jury because there were different items of damages. (Page 563.)</p> <p>12. Appeal and Error — Review—Harmless Error. Where the charge fully protected defendant’s rights, the improper inclusion of two immaterial sections of the statute was harmless. (Page 563.)</p> <p>13. Appeal and Error — Review—Findings. A verdict will not be disturbed on appeal, where there is substantial evidence in its favor.5 (Page 564.)</p>

<p>1. Master and Servant — Personae Injuries — Actions—Question por Jury. Evidence, in an action against the owner of a private ferryboat for the death of plaintiff’s intestate, who was drowned while assisting the owner across with the boat, held not sufficient to take to the jury the question whether defendant was negligent in fastening the slack end of a rope, which was attached to a wire cable extending across the stream, to the down-stream south side of the boat, causing the boat to tilt. (Page 572.)</p> <p>2. Master and Servant — Injuries—Actions—Question eor Jury.. Evidence, in an action against the owner of a private ferryboat for the death of plaintiff’s intestate, who was drowned while assisting the owner across with the boat, held not sufficient to take to the jury the question whether defendant was. negligent in commanding the deceased to hold onto a rope. (Page 572.)</p> <p>3. Master and Servant — Proximate Cause — Concurrent Causes. Though the premature release of the snubbing rope was a concurring cause with the failure of the man at the rear to release the rope, the owner would still be liable, in the absence of contributory negligence on the part of the deceased. (Page 574.)</p> <p>4. Master and Servant — Question for Jury — Contributory Negligence. Whether it was contributory negligence for plaintiff’s interstate, who was assisting the owner of a ferryboat across a stream, to keep holding to a rope until he was pulled overboard, and after he saw other men letting it go, was a question for the jury. (Page 574.)</p> <p>5. Negligence — Taking Case or Question from Jury — Nonsuits. Where there were several different acts of negligence charged in a complaint, either of which would support a recovery, and there was evidence tending to support one of such allegations, the court could properly refuse defendant’s motion for a non-suit and direction of verdict. (Page 575.)</p> <p>6. Trial — Instructions. Where there was evidence tending to support a theory of defendant, it was error for the court to refuse to submit the case on such theory. (Page 575.)</p> <p>7. Master and Servant — Actions—Question for Jury. Evidence, in an action against the owner of a private ferryboat for the death of plaintiff’s intestate, who was drowned while assisting-.the owner across with the boat, held not sufficient to take to the jury the question whether defendant was negligent in prematurely ordering the release of the snubbing rope. (Page-577.)</p> <p>STRAUP, J., dissenting in part.</p>

G. W. Morse, Judge. Proceedings by Salt Lalce City against the Utah & Salt Lake Canal Company and others to deternpiine whether eer-tain improvements were necesary to -be made in a river to protect water rights awarded to the parties by the original decree. Decree ordering certain improvements to be made, and prorating the costs. The Utah & Salt Lake Canal Company, the Telluride Power Company, and the East Jordan Irrigation Company appeal. APPELLANTS'’ POINTS.