Volume 45 — Utah Reports

<p>1. Master and Servant — Death of Servant — Railroad Employs — Contributory Negligence — Walking on Track. Where a railroad employé was killed at night while walking on the track, by a train- of gondola cars approaching without lights, and the track was the only feasible route for him to take, he was not guilty of contributory negligence as a matter of law in walking on the track, on the theory that it in and of itself was a warning of danger. (Page 6.)</p> <p>2. Negligence — Contributory Negligence — Question of Fact or Law. The court cannot pass on the question of negligence or contributory negligence as a matter of law, unless the question is free from doubt, and it appears, considering all the evidence and the inferences that may be deduced therefrom, that reasonable men would not arrive at different conclusions thereon.1 (Page 8.)</p> <p>3. Master and Servant — Death of Servant — Railroad Employes — Contributory Negligence — Question for Jury. Whether decedent, a railroad employe, who was killed by a train at night while walking on the track, looked and listened before going on the track held for the jujry. (Page 8.)</p> <p>4. Death — Wrongful Death — Presumption of Due Care — Instructions. An instruction that there is a presumption of law that every man exercises due care for his own safety when in a place of danger, and that deceased did so at the time and place when and where he met death, so that plaintiff was not required to prove affirmatively that deceased looked and listened for a train, the presumption being that he did so, and that the burden of proof that he did not was on defendant railroad company, which was bound to establish that fact by a preponderance of the evidence, held proper. (Page 9.)</p> <p>5. Negligence — Contributory Negligence. An instruction that where a person injured has proximately contributed to the injury by his want of ordinary care, so that but 'for such want of ordinary care on his part the injury would not have been done, and that contributory negligence is such that except for it deceased would not have been injured, was proper. (Page 11.)</p> <p>6. Jury — Right to Juey Tkial — Demand—Payment of Pees— Objections by Adverse Party. Const. Art. 1, Section 10, provides that the jury in civil cases shall be waived unless demanded, and Comp. Laws 1907, Section 3129, declares that a jury must be demanded in writing prior to the setting of the case for trial, or within such reasonable time thereafter as the court may order, or orally in open court at the time of such setting, and the party demanding a jury must, at the same time, deposit with the Clerk the sum of five dollars. Held, that such provisions are not for the benefit of an adversary, and hence, where a jury is in fact present, so that the trial may forthwith proceed without delay, the adverse party cannot successfully object to a jury trial, on the ground that a jury has not been demanded and the jury fee paid in the precise manner and at the precise time prescribed by the statute, but the court in its discretion may waive an untimely demand or payment of the fee, and hence the fact that the jury fee was not paid until a few minutes before the case was called for trial, a jury being present, was not a valid ground of objection by the adverse party to a trial by jury.3 (Page 12.)</p>

<p>Appeal from District Court, Third District; 1Ion. C. W. Morse, Judge.</p> <p>Suit by Commercial National Bank of Salt Lake City and another against Page & Brinton and the Utah Savings & Trust Company.</p> <p>Judgment for plaintiffs. Defendant last named appeals.</p>

W. W. Maughan, Judge. Action by Abraham Jorgensen against the Gessell Pressed Brick Company. Judgment for plaintiff. Defendant appeals. APPELLANT’S POINTS.

<p>Appeal from District Court, First District; Eon. J. D. Call, Judge.</p> <p>Action by Henry H. Allen against W. F. Garner and others.</p> <p>Judgment for plaintiff. Defendants O. D. Merrill and others appeal.</p>

<p>Appeal from District Court, Third District; Eon. F. C. Loofbourow, Judge.</p> <p>Action by Salt Lake City against tbe Utah Light & Railway Company, a corporation.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from District Court, Third District, Ron. T. D. Lewis, Judge.</p> <p>Action by Denver & Rio Grande Railroad Company against Guy Bolognese.</p> <p>Judgment for defendant. Plaintiff appeals.</p>

<p>Appeal and Eerok — Change oe Theory on Appeal. In an action for goods sold, where defendant set up a breach of warranty and plaintiff made no claim in the court beloyr for recovery on the ground that the goods were of some value and they had not been returned, that claim cannot be asserted on appeal.</p>

<p>1. Evidence — Judicial Notice — Public Lands. Judicial notice is taken of the restoration, in a certain year, to the public domain of the unallotted lands of an Indian reservation.1 (Page 81.)</p> <p>2. Eminent Domain — Rights Which Max be Condemned. The right to run water through defendant’s irrigation canal may be condemned, though defendants had only an easement, and the owners, of the land were not parties. (Page 81.)</p>

<p>Appeal and Eeroe — Time of Notice. Within Comp. Laws 1907, section 3301, requiring notice of appeal to be served and filed within six months from entry of the judgment appealed from, the judgment becomes final, and the six months commence to run, on the overruling of the motion for new trial, made after entry of judgment.1</p>

<p>Appeal from District Court, Third District, Ron. T. D. Lewis, Judge.</p> <p>‘ Action by the Utah Copper Company against George E. Chandler and others. •</p> <p>Judgment for defendants. Plaintiff appeals.</p>

<p>1. Negligence — Inference erom Facts. It is enough to show that while defendant’s employs was shoveling a load of coal from a wagon on a roadway, on the side of a mountain, near the edge of a sharp incline, a piece of coal rolled down such incline, injuring plaintiff, negligence being inferable therefrom. (Page 92.)</p> <p>2. Negligence — Failure to Obviate Dangerous Condition. ' The principle that where a dangerous condition is easily obviated or rendered harmless, failure to do one or the other may be considered in determining the question of negligence applies where one, on a road on a mountain side, shovels coal from a wagon near the edge of a steep incline, without placing any barrier to prevent any pieces going down the incline.2 (Page 94.)</p> <p>3. Trial — Instructions—Requests. A requested charge in a negligence case that one is only required to “exercise ordinary care,” or “reasonable care,” in “doing a thing,” though abstractly correct, not being applied to the facts, so that it could .impart no practical information to the jury, its refusal is not error. (Page 96.)</p> <p>4. Negligence — Proximate Cause — Natural and Probable Consequences. One who permits a piece of coal to roll down a steep mountain side at the foot of which, 200 feet below, are a number of inhabited dwellings, is liable for injury to one of such inhabitants as a natural and probable consequence of his act; it being unnecessary that the particular injury could have been anticipated.2 (Page 97.)</p>

Geo. G. Armstrong, Judge. In the matter of the estate of Maria Loomis Dewey, deceased. Contest by Alma Andrews and others against Am-mon Tuttle, administrator, as to distribution. Judgment sustaining demurrer to objections and order' distributing estate. Objectors appeal.

J. A. Sowell, Judge.. Action by John A. Boyle, administrator of Jane N. Pierce, deceased, Caroline P. Dinsdale, George T. Pierce and another. Judgment for defendants named. Plaintiff appeals.

Joshua Greenwood, Judge. Action by Orson Cazier against J. D. Stack. Judgment for plaintiff. Defendant appeals. appellant's points. “Where before the time arrives for the performance of the contract by one party, the other absolutely and un-qualifiedly announces that he will neither receive such performance by the former nor perform on his own part, the former may, if he desires, consider himself as absolved from his duty to perform.

<p>1. LARCENY-EVIDENCE — POSSESSION OE RECENTLY' STOLEN PKOPERTY. Under Comp. Laws 1907, section 4355, providing that the possession of property recently stolen, when the party in possession fails to make a satisfactory explanation, shall he deemed prima facie evidence of guilt, the State, to make a prima facie case, in the absence of direct evidence of the taking, must prove the larceny, recent possession by accused, and an unsatisfactory explanation.1 (Page 132.)</p> <p>2. Larceny — Evidence—“Possession oe Recently Stolen Pbop-eety.” Where, on a trial for larceny of a cow, the State proved that a hide in defendant’s possession was that of the stolen cow, and that defendant stated that it was the hide of a cow belonging to him which he had slaughtered for beef, there was sufficient evidence of the possession of the cow, within Comp. Laws 1907, section 4355, making possession of recently stolen property, without a satisfactory explanation, prima facie evidence of guilt. (Page 132.)</p> <p>3. Laboeny — Trial—Questions oe Law or Pact. What is such a recent possession of stolen property as to raise a presumption of guilt, under Comp. Laws 1907, section 4355, must depend upon the nature of the property and the circumstances of each case, and hence is ordinarily a question of fact,- but the possession may be so remote as to require the court to say, as a matter of law, that it is not sufficiently recent to raise the presumption. (Page 133.)</p> <p>4. Laboeny — Trial—Questions oe Law or Pact. Where a stolen • cow was last seen on the range in September, its hide was found in defendant’s possession in January, and the exact time between those dates when the cow was taken was uncertain, and defendant made conflicting claims concerning his possession, in support of which he produced no proof, and which the State offered evidence to disprove, whether the possession was too remote, within Comp. Laws 1907, section 4355, making the possession of property recently stolen, without a satisfactory explanation, prima fade evidence of guilt, was for the jury. (Page 133.)</p> <p>5. Ckiminal Law — Instructions—Curb by Other Instructions. On a trial for larceny of a cow, the hide of which was found in defendant’s possession, instructions that, before the jury could convict, they must find beyond a reasonable doubt- that defendant not only had possession of the hide, but that the animal was in his possession at a time when it had been stolen, and that such possession had not been satisfactorily explained, that the mere unsatisfactorily explained possession of the hide was not sufficient evidence upon which to find a verdict', but that there must be other and independent evidence of his possession of the cow, before they.could infer that he was ever in possession thereof, were not erroneous as authorizing a conviction, if the jury found that defendant was in possession of the cow without any finding of a felonious taking by him, where they were preceded by instructions that it must be established beyond a reasonable doubt that he feloniously, etc., stole, took, and drove away the cow, that possession of property recently stolen, when the party in possession failed to make a satisfactory explanation, was prima facie evidence of guilt, and that such possession, when not reasonably and satisfactorily explained, was a circumstance in arriving at their verdict. (Page 134.)</p>

<p>1. Samss — Coiítbact—Buyer's Breach — Verdiot. In an action for a buyer’s breach of a contract to purchase onions to be grown and delivered, evidence held to sustain a verdict for plaintiff. (Page 137.)</p> <p>2. Triad — Instructions—Verdict. Where, in an action for a buyer’s breach of a contract to purchase onions which were to be fully matured, defendant sought to justify by proof that the onions were not fully matured, which was a contested issue, and the court charged that the fact that some of the onions were matured before they were taken from the ground was not a compliance with the contract, and that plaintiffs must prove, by a preponderance of the evidence, that they raised for the defendant substantially three acres of the kind and quality specified in the contract, a verdict for plaintiffs for much less than plaintiffs claimed they were entitled to recover did not necessarily show that the jury found that the onions were not fully matured, and that they therefore did not follow the charge of the court, since it was equally inferable that the jury found the onions were fully matured but did not award plaintiff full compensation. (Page 138.)</p> <p>3. Appeal and Error — Questions Reviewable — Objections in Teiai. Court. A charge requested by defendant and not complained of by plaintiff by a cross-assignment of error is not reviewable. (Page 139.)</p> <p>4. Appeal and Eeeoe — Right to Allege Error — Request to Charge. One who induces the trial court to give an improper instruction cannot complain of it on appeal. (Page 139.)</p> <p>5. Sales — Contract—Construction. Where plaintiffs contracted to grow three acres of onions for defendant, the onions tó be fully matured and cured with tops on, and then cleanly topped and run over a screen with 1%-inch mesh, properly assorted and sacked, etc., defendant was bound to take all the onions grown on the quantity of land specified, and was not entitled to refuse to take any of the onions because substantially all of those grown on the three acres were not fully matured. (Page 139.)</p>

<p>1. TRESPASS-INJURY TO CROPS-BREAKING FENCES — COVERING IRRIGATION Ditch- — Independent Contractor — Evidence. Where in an action for trespass on land, destroying crops and covering an irrigation ditch, defendant railroad company pleaded that the trespasses were accomplished, if at all, hy defendant construction company, doing work for the railroad under contract, mere proof of the contract between the railroad and the construction company, without evidence that the acts of trespass were done by any of the construction company’s officers or employes, was insufficient to sustain a recovery against it. (Page 143.)</p> <p>2. Appeal and Error — Rulings—Necessity oe Exception in Trial Court. The granting of a motion for a nonsuit cannot be reviewed, where no exception was taken thereto in the trial court. (Page 143.)</p> <p>3. Judgment — Nonsuit—Joint Defendants. Where a nonsuit was properly granted as against both defendants, the only judgment permissible was a judgment dismissing the action. (Page 144.)</p> <p>4. Costs — Cost Bill — Filing—Time. Where judgment is regularly and timely entered, a cost bill filed within five days after entry of judgment is in time; the time to file bill beginning to run when the final decision or judgment is filed or entered. (Page 144.)</p>

A. H. Ghrisfensen, Judge. Application by Carbon County and its County Commissioners for a writ of mandamus against the Carbon County High School District, C. C. MeWhinney, its1 clerk, and A. Hunter, its treasurer, to compel respondents to deliver to petitioners the books of account kept by respondents as officers 'of the high school district, for inspection and audit. Judgment sustaining a general demurrer and dismissing the proceeding. Petitioners appeal.

<p>1. CORPORATIONs — Corporatb Powers — Soope. Corporations have and may exercise only such powers as are expressly or by necessary implication- granted, and such as are necessary to effect those powers which are granted. (Page 160.)</p> <p>2. Corporations — Corporate Powers — Construction oe Statute and Charter. In determining whether a corporation is exceeding its charter powers, both the statute and the charter should be given a fair and reasonably liberal construction. (Page 160.)</p> <p>3. Building and Loan Associations — Statutory Provisions — Definition. A foreign corporation, whose charter gives it very broad powers with reference to loaning money to its members or others upon any security, and authorizes it “generally to engage in any business or transaction which might seem to the company directly or indirectly conducive to the interests or conveniences of the company, members, or ticket holders, or their friends, or any section thereof,” is authorized to enter, into a building and loan contract within the meaning of Laws 1911, e. 129, section 7, providing that a foreign building and loan association shall include all foreign corporations doing a savings and loan or investment business. (Page 160.)</p> <p>4. Building and Loan Associations — Foreign Associations — Certificate of Authority — Mandamus to Compel Granting. In any event the right of the company to a certificate to do business in the state, without making the deposit required of foreign building and loan associations by Laws 1911, c. 129, section 1, or filing the statement required by Comp. Laws 1907, section 397, is not So free from doubt that the court will issue mandamus to compel the Secretary of State to grant such certificate, since the right of the applicant and the duty of the officer are not reasonably clear.1- (Page 162.)</p> <p>5. Constitutional Law — Equal Protection of the Laws — Foreign Corporations — Power to Restrict. Laws 1911, c. 129, section 1, requiring a deposit to be made by a foreign building and loan association before it shall be permitted to do business within the state, does not violate Const. U. S. Amend. 14, Sec. 1, providing that no state shall deny to any person within its jurisdiction the equal protection of the laws, since the corporation is not within the state’s jurisdiction until it is authorized to do business there. (Page 162.)</p> <p>6. CONSTITUTIONAL LAW-PRIVILEGES OB CITIZENS — FOREIGN CORPORATIONS — Power to Restrict — “Citizen.” Nor does that act violate Const. U. S., article 4, section 2, granting to the citizens of each state the privileges and immunities of citizens of the several states, since corporations are not. citizens, within the meaning of that article, and any recognition of their existence, outside the sovereignty which created them, is a matter of comity, not of right. (Page 163.)</p>

<p>Original application for writ .of mandamus by John Kyrimes and another against Nick Kyrimes. and another.</p>

<p>1. Municipal Corporations — Public Impeovements — Special Taxes Powee to Levy. Laws 1911, c. 123, section 302x11, authorizes towns to levy taxes for general corporate purposes, but limits the amount of such tax to one and one-half per cent. Section 302x12 authorizes towns.to lay out, construct, pave, and otherwise improve streets. And section 302x18 authorizes them tp make ordinances and regulations not in conflict with the state laws to carry into effect the powers granted. Held, that these statutes do not expressly or impliedly authorize a town to levy a special tax to pay for the paving of a street, even though the amount which can be raised under the general tax is admittedly insufficient for that purposel1 (Page 175.)</p> <p>2. Municipal Coepoeations — Public Impeovements — Special Tax— Oonstkuction oe Statutes. In determining whether the Legislature has granted to a municipal corporation the power to levy and collect special taxes, the statutes under which such power is claimed are to he strictly construed. (Page 177.)</p> <p>3. Municipal Corporations — Public Improvements — Special Taxes — Statutory Authority. Comp. Laws 1907, section 279, as amended hy Laws 1911, c. 122, which authorizes towns to levy special taxes for waterworks, lighting, sewers, and for the construction and paving of sidewalks, does not authorize the levying of such taxes for the paving of a street. (Page 179.)</p> <p>FRICK, J., dissenting in part.</p>

A. B. Morgan, Judge. Action by Mrs. H. M. Bolitho against Henry East, Sheriff of Utah County, and others. Judgment for defendant. Plaintiff appeals. RESPONDENTS ’ POINTS.

<p>1. Criminal Law — Evidence—Corroborating Testimony — Accomplices. Evidence that accused rode a bare-footed horse, whose tracks were like those leading from the place where the steer was killed to a point not far from accused’s house, where they were lost in other tracks, and that accused thereafter got beef from one who admitted he participated in the theft, is not sufficient to justify a conviction on the accomplice’s testimony under Comp. Laws 1907, Sec. 4862, declaring that a conviction shall not ■ be had on the testimony of an accomplice, corroborated by other evidence which in itself tends to connect accused with the commission of the offense, for none of the evidence in itself connected accused with the offense.1 (Page 196.)</p> <p>2. Criminal Law — Trial—Instructions. In a prosecution for cattle theft, where the only direct evidence against accused was the testimony of a confessed accomplice, the court charged that all persons concerned in the commission of a crime, whether they directly aided or not, were principals, that it was the claim of the State that accused committed the offense jointly with the witness, that a conviction could not he had upon the testimony of an accomplice unless he was corroborated, that the fact that the witness was an accomplice did not make him incompetent, and that if he was corroborated a conviction might be had upon his testimony. Held, that the instruction was misleading in failing to define an accomplice and allowing the jury to proceed on the theory that the witness, being a principal, did not need corroboration. (Page 199.)</p>

<p>Appeal from District Court, Third District; Hon. M. L. Ritchie, Judge.</p> <p>Action by W. Ferrell against Frederick A. Wiswell and others.</p> <p>Judgment for defendants. Plaintiff appeals.</p>

<p>1. Vendor and Purchaser — Options—New Agreements. Where an agreement was made between' landowners and a broker giving the broker an option to purchase the land within thirty days at a specified price, and, after the expiration of such thirty days, a new agreement was made giving him an option to purchase for a further period, the second agreement superseded the first, and the rights of the parties were to be measured thereby in so far at least as they contained different provisions. (Page 212.)</p> <p>2. Appeal and Error — -Record—Matters Presented eor Review. The setting aside of a default judgment could not be reviewed on appeal, where there was nothing in the record from which it could be determined whether or not the court abused the discretion vested in it, as the presumption is that there were sufficient facts presented to the court to authorize its action. (Page 212.)</p> <p>3. Contracts — Construction—Ascertaining Intention. Where the parties to a contract differ with regard to its meaning, and the terms are doubtful or ambiguous, the first duty of the court is to ascertain the actual intention of the parties when the contract was entered into. (Page 213.)</p> <p>4. Contracts — Construction —• Intent — Surrounding Circumstances. The intention of the parties to a contract must be determined from the language used' when applied to the subject-matter and the surrounding circumstances and conditions. (Page 213.)</p> <p>5. Contracts — Construction—Giving Effect to Whole Instrument. In construing a contract all the words and expressions used by the parties must be given full force and effect, unless to do so leads to an absurdity or is contrary to the manifest purpose or intention of the parties. (Page 213.)</p> <p>6. Cootbacts — Construction—Necessity op Construction. Where the language of a contract is clear and all of its terms are explicit anti, certain, it is not open to construction. (Page 213.)</p> <p>7. Contracts — Construction—Implied Provisions. A contract may be so drawn or worded that certain terms may be inferred, and a term which can be inferred from a consideration of the entire instrument is as much a part of the contract as if expressly set forth therein. (Page 214.)</p> <p>8. Evidence — Parol Evidence — Construction op Contract. Where the terms of a contract are ambiguous or uncertain, parol evidence is admissible to define the nature and qualities of the subject-matter, the situation and relation of the parties, and all of the circumstances, in order that the court may put itself in the place of the parties, see how the terms of the instrument affect the subject-matter, and ascertain the signification which ought to be given to any phrase or term which is ambiguous or susceptible of more than one interpretation, even though the result of such evidence contradicts the usual meaning of terms and phrases used.1 (Page 215.)</p> <p>9. Evidence — Extrinsic Evidence as to Construction op Contract. Where an agreement between landowners and a broker gave the broker an option to purchase within thirty days, and after the expiration of such thirty days a new agreement was made giving him such option for a further period, though this superseded the first agreement, as they covered the same subject-matter, and the one was apparently a continuation of the other, the terms of the first might be considered in construing the second, for the purpose of throwing light upon the intention of the parties. (Page 215.)</p> <p>10.Brokers — Construction .op Contract — Option to Buy with Privilege on Commission. An agreement between landowners and a broker gave the broker an option to purchase the land at a specified price within 30 days, and provided that in case a bona fide sale was on, an extension of fifteen days would be allowed, and further that a commission of five per cent for selling ,the property would be paid. A second agreement executed after the expiration of the first granted a similar option for a further period, and contained a similar provision as to paying commissions, but contained no provision as to extending the time of the option. Held, that the second agreement, especially -when construed in connection with the first agreement, was intended to give the broker not only an option to purchase at the price specified, but also the right to sell the property to others on a commission at the price and within the time specified in the agreement.2 (Page 215.)</p> <p>11. Brokers — Right to Commissions — Sale by Ownee Direct. Where a broker who was given an option to purchase, land at a specified price or to sell the land to others on commission at such price within a time specified entered into, negotiations for a sale of the property, and would have effected a sale had not the owners induced the prospective purchaser to buy direct from them, ho was entitled to the specified commission.3 (Page 217.)</p> <p>12. Brokers — Amount of Commissions — Payment for Option. Where an agreement between landowners and a broker gave the broker an option to purchase the land at a specified price or to sell on commission for such price, the receipt of fifty dollars of which price paid for the option was acknowledged, he was not entitled, where a sale was effected, to recover the fifty dollars so paid in addition to the commissions, as this was the consideration for the privilege he obtained by the contract, and he could only apply it on the purchase price by purchasing the property himself. (Page 217.)</p>

<p>CONSTITUTIONAL LAW — VESTED RIGHTS-OBLIGATION OF CONTRACT-Amending Articles of Incorporation — Preferred Stock. Under Comp. Laws 1907, Sec. 338, providing that articles of incorporation may be amended, in any respect conformable to the laws, by a majority vote of the outstanding stock, and section 335, providing that the articles may provide that the stock may be divided into kinds and classes, and define the rights and privileges of each, such majority may amend the articles to authorize an issue of preferred stock, which shall take precedence in rights over prior issued preferred stock, and division of the whole stock into classes with such preferential rights; no vested right being invaded, or obligation of contract impaired.</p>

<p>1. Deeds — Delivery—Evidence. Evidence held to show the delivery of a deed by a father to his daughter, though the instrument was not recorded until after the father’s death, and up to that time he exercised acts of ownership over the property.1 (Page 230.)</p> <p>2. Gifts — “Gift Inter Vivos.” If the donor mates unconditional delivery and parts with all present and future control and dominion over the property, there is a consummated and valid “gift inter vivos,” though present enjoyment be postponed. (Page 231.)</p> <p>3. Gifts — Gifts Inter Vivos — Delivery. To. constitute a yalid gift inter vivos, delivery need not be made to the donee personally, but may be made to a third person as agent or trustee for the use of the donee.2 (Page 231.)</p> <p>4. Gifts — Gifts Inter Vivos' — Evidence—Sufficiency. Evidence, in an action for corporate stock, held, to show that deceased made a valid gift inter vivos of the stock to his daughter, delivering it to a hanker to hold for her. (Page 231.)</p> <p>5. Executors and Administrators — Actions by Administrators— Evidence — Damages. In an action by an administrator to recover the value of furniture belonging to his intestate which the intestate’s daughter gave to defendant, evidence held not» to show that an award of seventy-five dollars was insufficient. (Page 233.)</p>

Geo. G. Armstrong, Judge. Action by Orphir Rouleau against the Continental Life Insurance and Investment Company. Judgment for plaintiff. Defendant appeals. APPELLANT'S POINTS. Where a life insurance company offers to extend the time for the payment of a premium on a life insurance policy or to reinstate the same after forfeiture upon conditions named by it, a waiver will not be construed as created unless the conditions of the offer are complied with. (Fidelity Mutual Ins.

<p>1. TaxatioN — Sale eok Taxes — Validity oe Deed. A deed which in reciting the name of the purchaser under Rev. St. 1898, section 2629, making it prima facie evidence of facts recited, also recited that .the property was offered to the highest responsible bidder for cash and sold to the county for a certain sum, that being the highest and best bid, shows the county to have been a competitive bidder and voluntary purchaser, contrary to section 2623, and renders it void on its face. (Page 246.)</p> <p>2. Taxation' — Sale eok Taxes — Validity oe Deed. Where, in connection with required recitals, a deed recites that the treasurer offered to sell the property, or sufficient thereof to pay taxes and costs, it shows that he offered the whole property for sale, and not sufficient to pay taxes and costs as required by Rev. St. 1898, section 2621, and thereby affirmatively shows want of authority to issue the deed, and it is void on its face. (Page 262.)</p> <p>3. Taxation — Sale fob Taxes — Validity of Deed. ■ A deed, to be good, must recite enough of the previous proceedings to show authority to sell the land and make the deed. (Page 253.)</p> <p>4. Taxation — Sale fob Taxes — Cebtificate as Evidence of Title. In a certificate of sale, stating that the treasurer sold the property in the manner prescribed by the laws of the state, and that the property described was the smallest parcel that could be sold for taxes and costs, the phrase “in the manner prescribed by the laws of the state,” and the statement that it “was the smallest parcel,” etc., are mere conclusions, and amount to nothing as evidence of a tax title claimed thereunder. (Page 253.)</p> <p>5. Taxation — Sale fob Taxes — Certificate as Evidence of Title. A certificate of sale, which merely recites that the treasurer sold the whole of the property to the county for delinquent taxes and costs, is consistent with' recitals in the deed that the county was a competitive bidder and a voluntary purchaser, and does not show a valid sale to the county or any right in it to be any kind of a purchaser. (Page 254.)</p> <p>6. Taxation — Sale fob Taxes — Certificate and Deed — Recitals of Authority. On a sale of land to the county for delinquent taxes, enough of the proceedings must be recited in the certificate or deed to show authority to sell the land and to Issue a certificate to it. (Page 254.)</p>

<p>1. Limitation or Actions — New Action After Dismissal. Under Comp. Laws 1907, section 2893, providing that if any action he commenced within due time, and if plaintiff fail in such action otherwise than upon the merits, he may commence a new action within one year thereafter, where a nonsuit is granted the action fails otherwise than upon the merits, and the reason for which the nonsuit is granted is immaterial. (Page 261.)</p> <p>2. Pleading — Separate Counts — “Cause of Action.” Under the code system of pleading, where there is but one promise, agreement, obligation, or imposed duty, there is but one primary right, one primary duty, and one delict, and these three combined constitute one “cause of action”; and though the pleader states the facts in different ways because of a doubt as to the ground upon which he will be entitled to judgment, or a doubt as to the facts which the evidence in the possession and under the control of his adversary may develop, this constitutes a duplicate statement of one right of action, and these different statements are not separate causes of action. (Page 261.)</p> <p>3. Pleading — Separate Counts — Election. Where plaintiff states his cause of action in different ways because of a doubt as to the ground upon which he will be entitled to judgment, or a doubt as to the facts which the evidence may establish, it is error to require him to elect upon which count he will rely for a recovery, and the complaint should be considered in its entirety, the evidence applied to the whole pleading, and such relief granted as the pleadings support and the evidence justifies1 (Page 261.)</p> <p>4.BROKERS-ACTIONS BOB COMMISSIONS-ISSUES, PEOOE, AND VARIANCE. A complaint alleged that defendant employed plaintiff to sell certain mining claims, and agreed to pay plaintiff a commission of ten per cent, for the sale thereof, when the sale was made, and that such claims were sold through plaintiff’s efforts. It was then alleged, as a so-called second cause of action, that defendant employed plaintiff to assist him in selling such mining properties, and to do and perform services for defendant in finding a purchaser; and that defendant agreed to pay plaintiff for such services ten per cent, of the price for which the property might he sold, whether the sale was made through defendant’s efforts, or the efforts of plaintiff, or the joint efforts and labors of both. It was contended that the first cause of action relied upon an express promise, and the second upon an implied promise. Plaintiff testified that he had at one time heen interested in the mining claims in question; that defendant asked him to help to sell them, stating that he could be reimbursed partly for what he had lost on the claims; that they would try and sell them and if they were successful he would give plaintiff a commission, and that whenever the property was sold he would pay ten per cent, commission for whatever services plaintiff had rendered; and that he performed services in bringing about a sale. Held, that there was, in legal effect, no substantial difference between the two so-called causes of action, and the evidence was admissible and justified a recovery under either count, it being immaterial so far as plaintiff’s right to compensation was concerned, whether it was termed a commission or compensation.2 (Page 263.)</p> <p>5. Action — Joinder. Parties may incorporate into one contract as many conditions and promises as they may desire, and may declare upon and enforce all such conditions in one cause of action, unless they are so repugnant as to destroy each other. (Page 263.)</p> <p>6. Limitation of Actions — New Action After Dismissal of Former Action. A complaint in an action in which a nonsuit was granted, and which was commenced before the action was barred by limitations, alleged that defendant employed plaintiff to sell certain mining claims, and agreed to pay him a commission of ten per cent, on the selling price, and that a sale was brought about hy plaintiff. The complaint, in an action commenced within one year after the granting of the nonsuit, alleged that defendant employed plaintiff to assist him in selling such mining claims and to perform services in finding a purchaser, and agreed to pay plaintiff for such services ten per cent, of the selling price when the sale was made, whether made through the efforts of plaintiff or defendant, or hy the joint efforts and labors of both. Held, that the causes of action in both complaints were the same; and hence the second action was not barred by limitations, under Comp Laws 1907, section 2893. -(Page 263.)</p>

G. W. Morse, Judge. Action by the Commercial National Bank of Salt Lake City and another, against David B. Brinton and others. Judgment for plaintiff for partial relief. Plaintiffs and defendants appeal. plaintiffs’ points.

<p>1. APPEAL AND ERROR — PRESENTATION OE GROUNDS 03? REVIEW IN Court Below — Sueeiciency. Objections that testimony as to the contents of an account book was irrelevant, incompetent, and immaterial, and wholly collateral and hearsay as to plaintiff, were sufficiently specific to entitle plaintiff to a review of the ruling admitting the evidence. (Page 801.)</p> <p>2. Witnesses — Impeachment—Immaterial Matters. Where a witness, having testified to his presence at the place of the accident, stated on cross-examination that he was at that time hauling lumber to another town which he delivered the next day, the fact whether the witness delivered lumber is material, and he may be contradicted and impeached on that matter. (Page 302.)</p> <p>3. Witnesses — Impeaching Evidence — Account Books — Admissibility — Hearsay. In an action by one injured by a train, where a witness accounted for his presence at the place of the accident by stating that he was hauling a load of lumber which was delivered at a store the next day, the manager of the store cannot testify that its books showed no delivery of lumber by the witness at that time; for the books which related to transactions between third persons, were res mfer alios acta and hearsay, and the manager by testifying to their contents was not merely refreshing his memory, but was putting the books in evidence. (Page 304.)</p> <p>4. Appeal and Error — Review—Harmless Error. The erroneous admission of testimony as to the contents of an account book, offered to contradict the explanation of plaintiff’s witness as to why he was at the place of the accident, is prejudicial error. (Page 306.)</p> <p>On Motion for Rehearing.</p> <p>5. Evidence — Account Books — Admissibility. Entries made in a record book or document by one in the ordinary course of his business, employment, or profession, having personal knowledge of the fact, may be received in evidence, where the entrant is dead, insane, beyond the jurisdiction of the court, or, if living, is unable to recall the facts, or refresh his memory by referring to the books, although able to testify as to the authenticity of the entries. (Page 317.)</p> <p>McCARTY, C. J., dissenting.</p>

<p>1. Mortgages — Fobeolosure—Actions. Under Comp. Laws 1907, section 3498,, declaring there can he but one action for the recovery of any debt secured by a mortgage, no personal judgment is authorized in such an action until after the mortgaged property has been sold and the proceeds derived from the sale applied to the payment of the debt and then only for the deficiency.1 (Page 323.)</p> <p>2. Mortgages — Foreclosure—Assessment oe Attorneys’ Fees. In a suit to foreclose a mortgage, the court, in determining what is a reasonable attorney’s fee may, whether he has or has not sufficient data, call to his assistance attorneys engaged in the practice and take their judgment under oath respecting what would be a reasonable amount.2 (Page 323.)</p> <p>3. Mortgages — Foreclosure—Attorneys’ Fees — “Reasonable Attorney’s Fee.” Comp. Laws 1907, sections 3504, 3505, declare that in all cases of foreclosure when an attorney’s fee is claimed no amount shall be allowed greater than the sum which shall appear by the evidence to be actually charged by and to be paid to the attorney, and that the attorney’s fee shall be fixed by the court in which the proceedings are had, any stipulation in the mortgage to the contrary notwithstanding. A note secured by a mortgage provided for a ten per cent attorney’s fee, while the mortgage provided for a reasonable attorney’s fee. Held, that under the statutes only a “reasonable attorney’s fee” should be allowed, by which is meant one reasonable under all the facts and circumstances, and it is error for the court to fix a ten per cent attorney’s fee without determining whether it is a reasonable one.3 (Page 323.)</p> <p>4. Mortgages — Construction'—Lien. Where a mortgage provided that in case of foreclosure the mortgagor should be liable for a reasonable attorney’s fee, the attorney’s fee allowed, becomes a lien on the property secured by the mortgage. (Page 327.)</p> <p>5. Exceptions, Bill oe — Time oe Filing. Comp. Laws 1907, section 3286, provides that a party desiring to have exceptions settled in a hill may within thirty days after service of notice of the entry of judgment serve the hill upon the adverse party. Plaintiff who recovered served notice of entry of judgment, and defendant thereupon served a copy of the proposed hill of exceptions. As defendants incorporated in their hill only so much of the proceedings material to their appeal, plaintiff who objected to a portion of the judgment attempted to perfect a second hill of exceptions. Held, that plaintiff was not entitled to notice of entry of judgment in order to start limitations against the filing of his hill. (Page 329.)</p> <p>0. Bills and Notes — Construction. Where a note provided that if interest should remain unpaid for thirty days then the principal sum and accrued interest shall at once he due and payable at the option of .the holder of the note and shall draw interest at the rate of twelve per cent, the holder of the note is not, upon the maker’s default in the payment of interest, entitled, where he did not declare the entire sum due, to recover twelve per cent interest. (Page 331.)</p> <p>7. Bills and Notes — Interest. Where a note provided for payment of interest in regular installments and the maker defaulted, the maker became liable for interest on the sums in default at the rate of eight per cent, as fixed by Comp. Laws 1907, section 1241. (Page 333.)</p>

<p>1. Gontp.agts — Actions for Breach — Findings—Damages. Defendant sold to plaintiff, in exchange for a tract of land at an agreed price, a flock of sheep, which he agreed to have registered before a fixéd date. Before that date plaintiff sold the sheep to others, with an agreement to have them registered. Some of the sheep were not registered by defendant, and plaintiff compromised the claims of his buyers against him for failure to register the sheep, and then brought action for the breach of the contract by defendant. The court found that the registering of sheep adds to their market value, and that, by the failure of defendant to have the sheep registered, plaintiff’s actual damages were a sum equal to the amount for which he compromised with his buyers, but there was no finding as to the number of sheep which were not registered or the market value of unregistered sheep of the -kind and quality sold. Held, that the finding was insufficient for not stating facts from which it appeared that plaintiff suffered the amount of damages therein stated or any damages. (Page 337.)</p> <p>2. Sales — Breach of Contract — Measure of Damages. The legal measure of plaintiff’s damages in that action was the difference between the agreed value of the land given in exchange for the sheep, and the reasonable market value of the sheep unregistered, though plaintiff may have paid his buyers more than that'in his voluntary settlement with them; but, if the amount of his settlement was less than the legal measure of damages, he could recover only that amount. (Page 338.)-</p> <p>3. Appeal and Error — Review—Findings by Supreme Court. In an action at law the Supreme Court cannot examine the evidence to determine what the findings should have been on a particular question upon which no findings were made by the trial court. (Page 339.)</p>

<p>1. Gaminq — Offenses—What Constitutes. Under Comp. Laws 1907, section 4261, as amended by Laws 1911, chap. 134, providing that every person who deals, carries on, or conducts any game of faro or any game played with cards for money or thing of value shall be guilty of felony, it is not necessary to a conviction to prove that accused was conducting or had conducted a regular gambling house or was habitually engaged in gambling; the offense being complete if accused conducts or carries on the game in any place. (Page 341.)</p> <p>2. Criminal Law — Appeal—Harmless Error. In a prosecution for violating Comp. Laws 1907, section 4261, denouncing the offense of conducting games of chance, accused cannot complain that the court and the prosecuting attorney treated the prosecution as one for conducting a regular gambling house and required proof to that effect; the error being harmless under section 4975, requiring the disregarding of errors not affecting the substantial rights, because imposing on the state a greater burden than imposed by statute. (Page 341.)</p> <p>3. Criminal Law — Appeal — Presentation of Errors Below. Accused cannot on appeal complain of the admission of testimony received without objection. (Page 345.)</p> <p>4. Gaming — Pbosecution — Evidence — Sueetciency. Whether accused was the owner and was carrying on a game of chance Tielcí a question for the jury. (Page 345.)</p> <p>STRAUP, C. J. dissenting.</p>

F. G. Loofbouroiu, Judge. Complaint by Salt Lake City against Seymour B. Young, Jr., for the violation of a city ordinance prohibiting the pollution of a stream. Complaint dismissed on defendant’s demurrer. Plaintiff appeals. APPELLANT’S POINTS. The Supreme Court of Utah has held that a right to pollute a stream cannot be acquired by prescription. (Joint Con. Irr.

<p>1. Homicide —- Cbiminai, Pbosecutions — Veedict — Sueeiciency. Assuming that an information, charging an assault with a sharp instrument with intent to murder, charged as an included offense an assault with a deadly weapon with intent to do hodily harm, a verdict thereunder, finding accused guilty of an assault with a deadly weapon, as charged in the information, but not finding that the assault was with intent to do bodily harm, would not support a conviction under Comp. Laws 1907, section 4195, providing that every person who, with intent to do bodily harm, commits an assault upon another with a deadly weapon, instrument, or other thing, is punishable as therein provided, since the verdict must, either in itself or by reference to the information or indictment, contain all the elements constituting the crime, and while a verdict of guilty, as charged in the information, is sufficient to support a conviction of the principal offense, it is not sufficient as to an included offense, especially as there were a number of other included offenses.1 (Page 374.)</p> <p>2. Indictment and Ineobmation — Oeeense Included in Chabge. An information for assault with intent to murder does not include a charge of assault with a deadly weapon with intent to do great bodily injury, under Comp. Laws 1907, section 4195, unless it alleges that the assault was with a weapon named or described, the name or description of which characterizes it as deadly, or with a deadly weapon or deadly instrument, .the name or precise character of which is unknown, as an assault with intent to murder is not necessarily committed with a deadly weapon; and an allegation that an assault was with a “sharp instrument” was insufficient, as a sharp instrument is not necessarily a deadly weapon or instrument. (Page 378.)</p> <p>3. Assault and Batteey — Ceiminal Pbosecutions — Sueeicienoy oe Evidence. On a trial for assault with a deadly weapon with intent to do great bodily harm, the character of the weapon may be inferred from the wounds or other indicia, if shown by the evidence, though the name or precise character of the instrument cannot be proved. (Page 380.)</p>

<p>Appeal from District Court, Fourth District; Hon. A. B. Morgan, Judge.</p> <p>"William J. Smith was convicted of non-support of his wife and child, and he appeals.</p>

<p>Estoppel — Gbottnds—Disclaiming Title. A purchaser of two lots, who disclaimed any title to two adjacent lots, though included in the deed to him, and who admitted that the adjacent lots were included by mistake, and who never exercised any right over them, and who saw that permanent and valuable improvements were put on the adjacent lots by a third person acquiring title from the same grantor, and who made no objection thereto and did not assert any claim, was estopped to deny the title of the third person to the adjacent lots.</p>

<p>Appeal from Distinct Court, Fourth. District; Hon. A. B. Morgan, Judge.</p> <p>Action by George N. Kipros, administrator of the estate of Christ M. Kipros, deceased, against the Uintah Railway Company.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

<p>1. Indictment and Information — Variance from Preliminary Examination. Under Const., art. 1, section 13, providing for tlie prosecution of offenses by information after examination and commitment by a magistrate, and Comp. Laws 1907, sections 4604, 4610, 4615, defining a criminal complaint and prescribing its requisite, and sections 4657 and 4665, authorizing the issuance of a warrant and requiring the magistrate to read to accused the complaint before proceeding with the examination, and sections 4675 and 4692, declaring where it appears from the examination that a public offense has been committed, and that there is sufficient cause to believe accused guilty, the magistrate must hold him for trial, and that where one has been examined and committed the district attorney must file an information charging the offense for which accused is held to answer, or any other offense disclosed by the testimony, whether charged in the complaint or not, a criminal prosecution must be begun by a complaint containing the statutory requisite, and accused can only be held for trial after a preliminary examination for the crime charged in the complaint or one included therein. (Page 415.)</p> <p>2. Statutes — Construction—Leoislative Intention. The court, to harmonize conflicting statutory provisions and to effectuate the intention of the Legislature, must either restrict or enlarge the ordinary meaning of the words in the statutes, and this rule has special force where the statutes must be made to conform with the Constitution. (Page 422.)</p> <p>3. Criminal Law — Preliminary Examination — Rishts of Accused. The right of accused to a preliminary examination is a substantial one and refers to the charge stated in the complaint.1 (Page 422.)</p> <p>4. Criminal Law — Preliminary Examination — Waivee. Accused may waive his right to a preliminary examination. (Page 423.)</p> <p>5. Criminal Law — Preliminary Examination — Complaint — Requisites. The complaint need not state the offense charged in technical language, nor in such specific terms as is required in an information, and is sufficient where the jurisdictional facts appear and the crime is stated in ordinary language. (Page 424.)</p> <p>6. Criminal Law — Preliminary Examination — Commitment. Where on a preliminary examination it develops that the crime charged in the complaint has not been committed, but that some other crime has probably been committed, the magistrate may direct the county attorney to prepare a new complaint'and direct the rearrest of accused and give him opportunity to either waive or insist on an examination on the new charge. (Page 424.)</p> <p>7. Indictment and Information — Motion to Quash — Want of Proper Examination. Where the information charges an offense different from that stated in the complaint on which accused had a preliminary examination, the accused may, before pleading to the merits, move to quash the information on that ground. (Page 425.)</p>

<p>1. Indictment and Information — Preliminary Examination— Necessity. A preliminary examination, unless waived by accused with tbe consent of tbe State, is a prerequisite to a prosecution by information. (Page 432.)</p> <p>2. Criminal Law — Prosecution — Institution — Verified Complaint — Affidavit. A verified complaint or an affidavit before a magistrate, charging accused with a public offense, is essential to a preliminary examination, since without it the magistrate’s jurisdiction to act is not judicially invoked. (Page 432.)</p> <p>3. INDICTMENT AND INFORMATION — APPLICABILITY TO COMPLAINT. An information must charge the same offense alleged in the complaint and for which accused has been held to answer, or for one embraced or included therein, and must recite the fact that accused was committed or bound over by a magistrate, and must have indorsed thereon the names of the witnesses testifying for the State on such examination, as required by Comp. Laws 1907, section 4695.1 (Page 432.)</p> <p>4. Indictment and Information — Description of Offense — Time —Proof of Different Time. Comp. Laws 1907, section 4737, provides that the precise time at which the offense shall have been committed need not be stated in the information, but it may be alleged to have been committed at any time before the filing thereof, except where time is a material ingredient in the offense. Held that, where an information charged accused with an adulterous act with W. on August 23, 1913, it was competent for the State to prove such an act committed on August 16, 1913, within the venue laid and the jurisdiction of the court and to rely on such act for a conviction.2 (Page 432.)</p> <p>5. Indictment and Information — Motion to Quash. Under Comp. Laws 1907, section 4771, authorizing a motion to quash an information on specified grounds before plea and trial, a motion to quash an information charging an adulterous act alleged to have been committed on August 23, 1913, could not be sustained on the trial on proof of a different adulterous act committed on the 16th of that month and on the State’s election to rely thereon for a conviction. (Page 439.)</p> <p>6. Indictment and Information — Variance from Preliminary Examination. That accused was informed against for adultery alleged to have been committed by him with W. on August 23, 1913, which offense alone was shown on his preliminary examination, did not deprive the State of the right to abandon the offense committed on that day and prove and rely on a similar offense committed by accused with the same woman on the 16th of the same month for a conviction. (Page 439.)</p> <p>7. Criminal Law — Evidence — ’Admissions — Confession. In 'a prosecution for adultery, alleged to have been committed by accused with W. on August 16, 1913, accused’s mere admission of sexual intimacy with her, not amounting to an acknowledgment of guilt of the act relied on for conviction or of any other specific similar act within the period of limitations, was not a confession of guilt. (Page 440.)</p> <p>8. Criminal Law — Corpus Delicti — Proof—Concession. A confession of accused is not alone sufficient to prove the corpus delicti. (Page 440.)</p> <p>9. AdulteRY — Evidence. In a prosecution for adultery, evidence held insufficient to sustain a conviction for committing such offense on the date and time elected hy the State for a conviction. (Page 441.)</p>

<p>Appeal from District Court, Third District; Hon. C. W. Morse, Judge.</p> <p>Action by Nettie V. Boyd against the San Pedro, Los An-geles & Salt Labe Railroad Company.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

<p>1. Appeal and Error — Time Within Which to Appeal — Denial oe Motion for New Tbial. The time within which an appeal ' must be taken begins to run from denial of motion for new trial, as that makes the judgment final and appealable. (Page 460.)</p> <p>2. New Trial — Motions—Time for Motions. The district court may not, without a sufficient application and showing, allow the filing of a second notice of motion for new trial setting forth a new ground after the expiration of the statutory time for the filing of motion for new trial.1 (Page 460.)</p> <p>3. New Trial — Application—Grounds. A party applying, under Comp. Laws 1907, section 3005, for leave to file a motion for new trial after the expiration of the statutory time, must produce evidence on which the court can base findings that through no fault of the party he was prevented from filing a notice of motion for a new trial within the statutory time, and why he did not apply for an extension of time within the statutory limitation.2 (Page 462.)</p> <p>4. New Trial — Application—Findings. Where an application, under Comp. Laws 1907, section 3005, for leave to file a notice of motion for new trial after the statutory limitation is made, the court, to protect the rights of the parties, should make findings and base its action thereon, so that a party aggrieved may have court’s action reviewed. (Page 463.)</p>

A. E. Christensen, Judge. Action by B. R. McDonald against Price, a municipal corporation, and others. Judgment overruling a demurrer to the complaint and granting the relief prayed for. Defendants appeal.

<p>1. Criminal Law — Verdict—Construction. In ascertaining the intent of the jury, the language used in the verdict should he given its fair and obvious meaning. (Page 473.)</p> <p>2. Assault and Battery — Trial—Verdict—“Assault”—Assault with a Deadly Weapon. Comp. Laws 1907, section 4190, defines an “assault” as an unlawful attempt coupled with a present ability to commit a violent injury on another, while section 4195 declares that every person who, with intent to do bodily harm and without just cause, commits an assault on another with a deadly weapon, shall be punished, etc. The first count of an information charged that accused unlawfully, willfully, feloniously, deliberately, with malice aforethought, and with intent to take the life of another, shot him with a .loaded revolver, inflicting grievous wounds, while the second count charged that accused, without just cause, made an assault upon another with a loaded revolver. The cause was submitted on both counts and upon the included offenses of battery and simple assault. The verdict was: Guilty of the crime of assault with a deadly weapon as charged. Held that the verdict authorized a sentence for assault with a deadly weapon, that being the obvious intention of the jury.1 (Page 473.)</p> <p>3. Assault and Battery — Self-Defense—Great Bodily Harm. While ordinarily a battery committed with the fists would not place a person, in danger of great bodily barm, authorizing recourse to a deadly weapon, the parties’ inequality of size and strength might be such ás to justify the one assaulted in repelling the attack with a deadly weapon; the question whether the injury inflicted or threatened is great bodily harm being ordinarily for the jury. (Page 476.)</p> <p>4. CbimiNai, Law — Trial—Instructions—Applicability to Evidence. Where the theory of the State was that accused, without any provocation,, struck and shot the complaining witness, and accused’s contention was that the complaining witness, a man of known bad reputation who had been making threats against his life, assaulted him and was about to draw a revolver when accused shot, an instruction that great bodily harm meant something more than injuries ordinarily resulting from a battery inflicted by hand or first without a weapon was improper, having no basis in the evidence. (Page 476.)</p> <p>5. Criminal Law — Review—Harmless Error — Instruction. The giving of such instruction was. harmless. (Page 476.)</p> <p>6. Witnesses — Cross-Examination—Scope. Where a witness called *by one accused of assault with a deadly weapon testified to the bad reputation of the prosecuting witness and. his threats, the State could not on cross-examination inquire whether the witness knew of accused drawing knives or guns on others. (Page 477.)</p> <p>7. Criminal Law — Evidence—Withdrawal erom Jury. Though accused did not object to improper questions, the court should, where the questions themselves might influence the jury, withdraw them at accused’s request if they tended to prejudice him. (Page 477.)</p> <p>8. Criminal Law — Appeal—Harmless Error. A witness called by one accused of assault with a deadly weapon testified to the bad character and threats of the' prosecuting witness. On cross-examination the witness was asked whether he1 knew of accused drawing knives or guns on third persons. Held, that, as the witness denied knowledge of any such occurrences, the refusal of the court to charge the jury to disregard the incompetent questions was not prejudicial. .(Page 477.)</p> <p>9. Criminal Law — Trial—Evidence—Use oe. Where evidence is competent for only one purpose, the State should not be allowed to use it for others. (Page 480.)</p> <p>10. Criminal Law — Trial—Argument oe Counsel. In a prosecution for assault with a deadly weapon, the officer who arrested accused, being called to identify the pistol, in response to a question as to how he secured possession of it, stated that he had a warrant for accused’s arrest for threatening to kill. The prosecutor then asked whether that was some other case, and the officer answered in the affirmative. Seld, that such testimony did not show that accused was arrested for threat ening to kill, and argument to that effect was improper. (Page 480.)</p> <p>11. Criminal Law — Argument of Counsel — Propriety. In such' case, where accused admitted that the gun in evidence was the one with which he shot the prosecuting witness, the prosecutor, though the incompetent testimony of the officer was received without objection, could not argue to the jury that accused had been arrested for threatening to kill, for the testimony of the officer could be considered only on the question of the identification of the pistol. (Page 480.)</p> <p>12. Criminal Law — Appeal—Exceptions. Errors in a charge, when not excepted to or assigned as error, will not be considered on appeal. (Page 484.)</p> <p>13. Criminal Law — Prosecution-—Burden of Proof. Accused, who relies on self-defense, is not bound to establish his defense by a preponderance of the evidence, but should be2 acquitted if on the whole evidence the jury have a reasonable doubt whether he acted in self-defense2. (Page 484.)</p> <p>14. Criminal Law — Instructions—Burden of Proof. Where accused relied on self-defense, instructions that he should be acquitted if the jury found he was justified in assaulting the prosecuting witness, that it should appear to the jury’s reasonable satisfaction that at the time of the shooting accused had reasonable cause to believe that he was about to be killed, and that, before his assault could be justified, it must appear to the reasonable satisfaction of the jury that he was justified, were improper as casting upon the accused the burden of establishing self-defense by a preponderance of the evidence. (Page 484.)</p>

<p>1. Justices of the Peace — Record—Conclusiveness. On appeal to the district court, the transcript of the justice’s record as to all matters or things required to he, and which are, recorded therein, is conclusive, and may not he aided, contradicted, or controlled hy anything dehors the record. (Page 489.)</p> <p>2. Stipulations — Security for Costs — Date of Order. In view of Comp. Laws 1907, section 3757, not requiring a record of a justice’s order requiring security for costs, which order was not in fact recorded, it was competent for the parties to stipulate that the order was made on a certain date. (Page 489.)</p> <p>3. Costs — Security for Costs — Time for Filing — Statutes. Under Comp. Laws 1907, section 3769, providing that justices of the peace may require a deposit or security for costs of court, security is not required to he furnished within twenty days after demand therefor, hut within twenty days after order requiring it to he furnished. (Page 490.)</p>

<p>Negligence — Liability—Use of Pboperty. Defendant, wlio built its wooden flume along tlie side of a steep mountain above tbe plaintiff’s canal, and who had used the flume for twelve years, was not negligent in failing to foresee and guard against rocks above its flume, started by strangers, rolling down and breaking its flume, so as to cause water to flow down to, and wash debris, etc., into, the canal.1</p>

Geo, G. Armstrong, Judge. Action by David Kennison, Jr., against Granville E. Lundy and another. Judgment for plaintiff. Defendant Lundy appeals. appellant’s points.

A. B. Morgan, Judge. Action by Nicholas Andrews- against J. S. Free and E. A. Taylor, partners doing business under the firm name of Free & Taylor. Judgment for plaintiff. Defendants appeal.

<p>1. Divokce — Pleading—Cruelty. A complaint for divorce for cruelty, causing great mental distress, alleging that the wife was unduly familiar with other men, bestowing and receiving attentions from them, especially receiving and bestowing affections upon N., and that the wife refused to live longer with complainant, and left him and moved to S., where she has since resided, and where she is constantly in company with N., and that complainant gave her no cause for her conduct, is insufficient, within the Code, requiring the statement of facts constituting the cause of action to be in ordinary and concise language. (Page 518.)</p> <p>2. Divokce — Relief as to Property — Pleading. A complaint for divorce, alleging that complainant conveyed his property to his wife in trust for the children, and that he “verily believes that defendant will transfer said land and dissipate the proceeds,” is insufficient to authorize any relief as to the property. (Page 519.)</p> <p>3. Divorce — Judgment—Relief as to Property on Denial of Divorce. Where cause of action for divorce for cruelty fails either because of want of.proof or because no cause of action is stated, judgment may not award cancellation of a conveyance from complainant to his wife in trust for the children prayed for incidentally. (Page 519.)</p>

<p>1. Evidence — Parol Evidence to Vary Written Instrument — Admissibility. Where a written assignment of a lease expressly provided that the original lessee should remain liable for the rent, parol evidence, that at the time the assignment was made it was agreed the original lessee should no longer be liable is inadmissible. (Page 526.)</p> <p>2. Trial — Instructions—Applicability to Evidence. The' charge should not submit an issue not raised by the evidence. (Page 528.)</p> <p>3. Trial — Abstract Instructions. In a suit on a lease, instructions which abstractly defined surrender by operation of law and by reason of abandonment and acceptance, leaving to the jury the question of whether the faets showed an acceptance, are incorrect, being abstract and not submitting the law applic* able to the particular facts of the case. (Page 528.)</p>

<p>1. -PHYSICIANS AND SURGEONS PRACTICING WITHOUT LICENSE— Prosecution — Instructions—-Definitions of Terms. In a prosecution for practicing medicine without a license in violation of Laws 1911, chap. 93, which after denouncing the offense provides that the sale of “domestic family remedies” is not thereby prohibited, the court should have instructed on the meaning of the phrase quoted. (Page 538.)</p> <p>2. Physicians and Surgeons — Practicing Without License— Prosecution — Refusal of Instruction. Since, in a prosecution for practicing medicine without a license in violation of Laws 1911, chap. 93, which, after denouncing the offense, provides that the sale of domestic family remedies is not thereby prohibited, the question whether various herbs sold by defendant were domestic family remedies was a mixed question of law and fact, the court properly refused to instruct that such herbs were domestic family remedies. (Page 540.)</p> <p>3. Criminal Law — Instructions—Duty to Request. Where defendant in such case excepted to the charge on the ground that it was the court’s duty to define “domestic family remedies,” he should have proposed an instruction embodying the defini- • tion desired. (Page 540.)</p> <p>4. Physicians and Surgeons — Practicing Without License— Prosecution — Domestic Family Remedies — Sufficiency of Evidence. Evidence, in a prosecution for violating Laws 1911, chap. 93, prohibiting practicing medicine without a license, but excepting ,the sale of domestic family remedies from its terms, held insufficient to show that the herbs sold by defendant were domestic family remedies. (Page 540.)</p> <p>5. Physicians and Surgeons — Practicing Without License — -Defense. Where, in a prosecution for practicing medicine without a license in violation of Laws 1911, chap. 93, it appears that defendant diagnosed, treated or advised for some physical ailment or condition of another for compensation, it is no absolute defense that he administered or advised a domestic family remedy. (Page 541.)</p> <p>0. Physicians and Surgeons — Practicing Without License— Prosecution — Sufficiency of Evidence. Evidence, in a prosecution of a defendant claiming to be a Chinese herb doctor, held to show that he practiced medicine without a license, in violation of Laws 1911, chap. 93. (Page 542.)</p> <p>7. Criminai Law — Harmless Error — Instructions. Where, in a prosecution for practicing medicine without a license, in Violation of Laws 1911, chap. 93, the evidence conclusively showed defendant’s guilt, and that the herbs sold by him were not domestic family remedies, the court’s failure to define “domestic family remedies,” being error in defendant’s favor, was harmless. (Page 543.)</p>

T. D. Lewis, Judge. Action by Eric Dahl against Salt Lake City, a municipal corporation. Judgment for plaintiff. Defendant appeals. STATEMENT OF FACTS. Plaintiff brought this action to recover damages for injuries to his crops alleged to have been caused by seepage water from defendant’s canal arising on his land and on other lands farmed by him. The complaint, which contains several causes of action, was filed August 21, 1912.

<p>1. Marriage — Sufficiency or Evidence. In a habeas corpus proceeding to obtain release of juvenile delinquent from the custody of the superintendent of the State Industrial School, evidence held insufficient to establish any legal marriage between the delinquent and plaintiff. (Page 559.)</p> <p>2. Infants — -Juvenile Delinquents — Marriage. The operation of the law governing juvenile delinquents is not suspended merely because a delinquent enters into the marriage relation. (Page 560.)</p> <p>3. Habeas Corpus — Custody oe Juvenile Delinquent — Statute. Under the juvenile statute, as amended and re-enacted by Laws 1913, chapter 54, giving the juvenile court jurisdiction over delinquents under’ the age of eighteen, and making its judgments operative until the delinquent reaches the age of twenty-one years, and providing that all orders of the court shall be under its control until the delinquent reaches such age, the delinquent or anyone in her behalf may apply for a modification of the judgment, and determination of the right of her custody 'with a right of appeal as provided in section 11, so that the rights of delinquents may be enforced without recourse to habeas corpus proceedings. (Page 560.)</p> <p>4. Infants — Juvenile Delinquents — Jurisdiction. Under the juvenile delinquent statute providing that the juvenile court may order that the juvenile be committed to the State Industrial School, that the court may commit a juvenile to the care of a probation officer, subject to return to court for further proceedings, or may dispose of the matter in any way deemed for the best interests of the delinquent, the act of the juvenile court in making an order of commitment upon the first hearing, and then conditionally suspending it hy an order of probation, and, after violation of the conditions of probation, ordering that she be committed, while somewhat irregular, was not void. (Page 561.)</p> <p>5. Infants — Juvenile Delinquents — Pkoceedings—Notice. Where the juvenile court, after notice of proceedings to the mother of a delinquent, and a finding of her unfitness, which was not disputed or appealed from, made an order of commitment, and ■ suspended it by an order of probation, and having control of the delinquent and authority to modify its orders, it might on a showing of the delinquent’s violation of the probation conditions, order her commitment without further notice to the mother.1 (Page 562.)</p> <p>STRAUP, C. J., dissenting.</p>

<p>Appeal from District Court, Third District; Hon. F. C. Loofbourow, Judge.</p> <p>Action by P. H. Lannan against T. C. Waltenspiel and others.</p> <p>Judgment for defendants. Plaintiff appeals.</p>

<p>Appeal from District Court, Third District; Hon. C. W. Morse, Judge.</p> <p>Suit to quiet title by Franklin Lawrence against C. E. Murphy.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from District Court, Third District; Eon. Geo. G. Armstrong, Judge.</p> <p>Action by Frederick H. Weight against John H.. Bailey.</p> <p>Judgment for defendant. Plaintiff appeals.</p>

F. G. Loofbourow, Judge. Action by Arthur Busse against the Murray Meat & Live Stock Company. Judgment for defendant on nonsuit. Plaintiff appeals. APPELLANT'S POINTS. ■ A nonsuit should be granted only when the evidence wholly fails to support the demand of the plaintiff. ■ (Admns v..

<p>Appeal from District Court, Second District; Hon. J. A. Howell, Judge.</p> <p>Action by the Volker Lumber Company against the Utah & Oregon Lumber Company and the Flewelling Building Company.</p> <p>Judgment for plaintiff. Defendants appeal.</p>

<p>Appeal from District Court, Third District; Hon. Geo. G. Armstrong, Judge.</p> <p>Suit to quiet title by Samuel P. Warren against Joseph Mazzuchi.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

<p>1. Statutes — Title—Subticiency. The title of Laws 1913, chap. 105, entitled “An act permitting any public officer having public funds in his custody to deposit same in banks; * * * requiring the collection of interest and security from depository banks,” is sufficient within Const., art. 6, section 23, providing that no bill containing more than one subject, clearly expressed in the title, shall be passed, to justify provisions authorizing the deposit of public funds in banks at interest, and providing that the cost of any official bonds required by any public treasurer shall be paid out of funds in the respective treasury provided the interest received shall be placed in the general fund, though construed to require payment of interest into the general fund before cost of an official bond may be paid out of the funds in the treasury. (Page ■ — .)</p> <p>2. Counties — County Treasurer — Official Bonds — Payment of Cost — Statutory Provisions. Under Laws 1913, Chap. 105, authorizing the deposit of public funds in banks at interest, and' declaring that the cost of any official bond furnished by any public treasurer shall be paid out of the funds, provided that interest received shall be placed in the.general fund, county commissioners are required to cause to be paid the premium of the official bond of a county treasurer out of funds in the treasury to the amount of interest collected by the official on public funds deposited in banks at interest and placed by him in the general fund, but the commissioners may not direct payment of the premium until the amount of interest has been collected and placed in the general fund by the official. (Page —.)</p>

<p>1. Criminad Law — Evidence—Opinion—Hypotheticae Question — • Embodiment oe Entibe Evidence. In a prosecution for homicide it was no objection to the admission of an insanity expert’s testimony that the hypothetical question which elicited it did not embody the whole theory of- the case as exhibited in evidence, since counsel for the prosecution is not limited to the theory of the defense, but may adopt a theory of his own and base his question on it, provided he embodies sufficient evidence to enable the expert to give an intelligent and practical opinion.1 (Page 623.)</p> <p>2. Ceiminai, Law — Motion eob New Triad — Newly Discovered Evidence — Character. Where the affidavits in support of a motion for new trial for newly discovered evidence did not contain-specific'statements of evidence, the denial of the motiop was proper. (Page 623.)</p> <p>3. Criminal Law — Motion tor New Trial — Newly Discovered Evidence — Nonresidence of Witnesses. . Where affiants, in support of a motion for new trial in a prosecution for homicide, were all nonresidents of the state, it not being made to appear that their testimony would be available in legal and proper form for use upon a second trial, the denial of the motion was proper. (Page 623.)</p>

<p>Appeal from District Court, Third District; Hon. C. W. Morse, Judge.</p> <p>Suit for divorce by J. B. Buzzo against Elizabeth Buzzo.</p> <p>From an order reducing allowance of alimony, defendant appeals.</p>