Volume 5 — Utah Reports

The opinion states the facts. I. The cross-complaint does not state a case within the statute relating to such, complaints: Laws 1884, p. 207, sec. 305. The plaintiff’s action is trespass for damages, and for an injunction to prevent a continuance of the wrong. The complaint charges that the defendants tortiously entered upon and extracted ore from the Bullion Mining Claim, the property of the plaintiff, which is described by metes and bounds.

<p>Petition for rehearing. For opinion in case see 4 Utah, 413.</p>

<p>On petition for rehearing. Eor opinion in the case see 4 Utah, 506.</p>

<p>Original application for a writ of prohibition. The opinion states the facts.</p>

The opinion states the facts. There is no statute prescribing the method of dedications to public uses, and the common law rule must be resorted to. By this rule no particular form of dedication or acceptance is necessary. A dedication does not rest upon prescription or supposed grant. It is solely a question of intention to dedicate, followed by acceptance.

<p>Construction op Wilt. — Power to Administrate as Incidental thereto. — Act of Congress, approved June 23, 1874, Section 3, gives to probate courts exclusive original jurisdiction of all matters pertaining to settlement of estates, but district courts may take cognizance of equitable suits for construction of wills, but when the will is construed, it is left to the probate court to execute, and district court will not proceed with administration.</p> <p>Id — Discretion op Executors. — A clause in a will stating that “it is my further desire that out of the proceeds of said estate, leaving same to the best judgment and discretion of said exeputors hereinafter named, to pay” certain sums per month to testator’s mother and aunt, gave to the administrator cum testamento annexo a reasonable discretion to fix the amount at what he deemed sufficient, to be paid out of any part of said estate in his hands.</p>

<p>Appeal from a judgment of the district court of the first district. The opinion states the facts.</p>

<p>Criminal. Law — Perj ury - Indictment. Unclor section 1(51, Code of Crim. Proced., an indictment for perjury alleging that the grand jury before whom the false testimony was giveu was duly im-lianeled and in session according to law, and engaged in the investigation of the matter in which the false testimony was given, that the foreman was duly appointed and acting as such, and was duly authorized to administer the oath, and that it was material to the matter under investigation whether certain facts, of which the testimony was given, existed, need not go further and make further allegations of the jurisdiction of the grand jury over the subject-matter of the investigation.</p> <p>Id.--Id.- -Materiality on False Testimony.- When a grand jury was investigating- as to whether a libel had been published, it is proper for them to investigate whether the matter charged to be libelous is true or false, and whether it was published with good motives for justifiable ends, and if false testimony is given before the grand jury in regard thereto, the witnesses testifying falsely are liable for perjury.</p>

<p>Forcible Entry and Detainer. — Under sections 1033 and 1046 Code Civil Proc. if the entry upon real estate was forcible and disseisee peaceably in the actual possession at the time of the forcible entry, the right to recover is complete.</p> <p>Id. — Scrambling Possession. — Where evidence showed that respondent had for along time prior to appellant’s entry been in the possession of certain lands, and that appellant took possession in his absence under circumstances indicating that some one was in possession, and the re-entry of respondent was not forcible and not violent, although he used rough and vulgar language, held, that possession of appellant was a mere scrambling possession and not peaceable and actual and that he could not recover.</p>

<p>Evidence. — Confession befoee Geand Juey. — Under section 141 of the Code of Criminal Proced. requiring that a grand juror must keep secret whatever he himself or any other grand juror may have said, or in what manner he or any other grand juror may have voted on a matter before them, but may however be required by any court to disclose the testimony of a witness examined before the grand jury, for the purpose of ascertaining whether it is consistant with that given by the witness before the court, or to disclose the testimony given before them by any person, upon a charge against such person for perjury in giving his testimony, or upon trial thereof, held, that empowering the court to require the grand juror to disclose testimony for the two purposes specified, does not deprive it of the power to require disclosure for any other purpose, and that a grand juror may testify to a confession of defendant before the grand jury.</p> <p>Id. — Confession undee Oath. — If. a defendant voluntarily appears before the grand jury, and after being warned by the prosecuting attorney, still voluntarily was sworn and confessed the charge, held, that upon his trial for such offense, his confession so made could be given in evidence against him.</p>

<p>Pardon. — Juror.—Under section 6 of the Act of Congress, approved' March 22,1882, a “pardon’’ granted to an offender has the effect of amnesty and such offender stands before the law precisely as if he had committed no offense and when summoned as a juror cannot be challenged under section 5 of the above act.</p> <p>Evidence. — Husband and 'Wife in Criminal Action. — Under section 1156 of the Codo of Criminal Proced. in a prosecution for polygamy, the wife is a competent witness against her husband, notwithstanding his objection, since polygamy is a crime against her.</p> <p>Polygamy. — Proof of Marriage. — In a prosecution for polygamy, the polygamous marriage may be proven by the confessions of the defendant and by circumstances tending to corroborate the confessions.</p> <p>Criminal Law. — Appeal.—Instructions.—In construing a charge it should be considered all together and not by separate and detached sentences.</p>

from an order refusing a new trial. Court erred in overruling defendant’s objection, because such damages are special and must be alleged: Nunan v. San Francisco, 38 Cal., 689; Huser v. Loomis, 47 Mich., 16; Bracket v. Edgerton, 14 Minn., 174, 189; Taylor v. Monroe, 43 Conn., 36; Low v. Archer, 12 N. Y., 277, 282. The ruling was erroneous, because the supposed depreciation was not a proximate consequence of the breach.

Appeal of respondent from judgment and appeal of appellant from order granting a new trial of first district court. The opinion states tbe facts.

<p>Appeal. — Effect of an Injunction. — Tlie taking of an appeal and the giving of supersedeas bond did not suspend the judgment or the injunction contained therein, but suspended all affirmative action looking to execution of the terms of the decree.</p> <p>Contempt. — Violation of Injunction. — Where injunction contained in decree appealed from, enjoined appellant and its agents from entering upon, or digging in or extracting ores from a certain mining claim, and it appeared that appellant was simply remaining in same situation as when the decree was rendered, even if in the actual occupancy of certain drifts in said claim, and that appellant was not digging in or extracting ores from said claim and was not preventing respondents from entering therein, held, that appellants and its agents were not guilty of a contempt.</p>

<p>Contract — Construction on — “Original cost” in contract was intended to mean actual cost, where E. agreed to deliver to C. mining stock to the value oí five thousand dollars at its original cost, and advances or loans made to the corporation by E., which have been repaid to him by the corporation out of its own funds, cannot be regarded as a part of such c^st, and E. is estopped from charging such loans to C. as a part of the cost.</p>

<p>Appeal from a judgment of tbe district court of tbe third district and from an order refusing a new trial. Tbe opinion states tbe facts.</p>

<p>Chattel Mortgage. — Under section 5, Chap. 21, Laws oí Utah, 1884, a mortgage on chattels made in good faith to secure as bona fide. debt, although the property was found in the possession of the mortgagor ninety days after the maturity of the obligation, but where notice of lis pendens of a suit to foreclose the chattel mortgage, was filed on the day preceding the expiration of the said ninety days, a decree of foreclosure and sale made in said suit will prevail against the purchasers with notice under an execution issued and levied on the next day after the expiration of said ninety days.</p>

<p>Injunction, WRIT or — When Void — When Set Aside. — A restraining order made -without jurisdiction, is void, and may be set aside though made at the term preceding the making of a motion to set aside.</p> <p>Id. — Jurisdiction or Supreme Court or Territory to Make. — An appeal from the supreme court of Utah Territory to the supreme court of the United States must be taken in the same manner and under the same regulations as from the circuit courts of the United States. The supreme court of the territory, therefore, posseses the power to make an order of injunction, preserving the staUis quo, until a decision be made in the supreme court of the United States.</p>

<p>Appeal from a judgment of tbe district court of tbe third district and from an order refusing a new trial. The opinion states the facts.</p>

<p>Appeal from a judgment of tbe district court of tbe third district and from an order refusing a new trial. The opinion states the facts.</p>

<p>Appeal from a judgment of tbe district court of tbe first district and from an order refusing a new trial. • The opinion states tbe facts.</p>

sustaining a motion for non-suit. This was an action in ejectment. The complaint alleged title in fee in plaintiff and right to possession, unlawful entry and withholding by defendant. The answer took issue upon the allegations of the complaint. Plaintiff offered in evidence a deed from the Central Pacific Bailroad Co. to plaintiff, which was duly acknowledged and recorded but not witnessed.

The complaint in this action alleged that on or about the 15th day of May A. D. 1885, defendant indorsed to plaintiff a certain promissory note in writing made by one A. Case, dated January 1st, A. D. 1884, that said note became due on January 1st, A. D. 1885, and was presented for payment on the 6th day of July, 1885, and payment refused.

<p>Appeal from a judgment .of tbe district court of tbe first district, and from an order refusing a new trial. Tbe opinion states tbe facts.</p>

Tbe court should not have admitted tbe testimony objected to. It was a mere opinion expressed in earnest political discussion, and was simply an exercise of tbe right of free speech. But its admission in evidence was calculated to prejudice defendant with tbe jury. Tbe court should not instruct upon matters of fact, and this includes tbe ascertaining of tbe existence of a fact, tbe presumption of one fact from another and their weight and sufficiency in every respect.

<p>Appeal from a judgment of the district court of the third district, and from an order refusing a new trial. The opinion states the facts.</p>

<p>Appeal from a judgment of the district court of the third district, ‘and from an order refusing a new trial.</p>

<p>Appeal from a judgment of the district court of the third district and from an order refusing a new trial. The opinion states the facts.</p>

The opinion states the facts. The complaint stated no cause of action, or any matter entitling the plaintiff to equitable relief. According to its allegations tbe judgments, and all proceedings based thereon, including the deed to Jennings and Clark were utterly void, not even creating a cloud upon the title alleged to be in the plaintiff.

<p>Appeal from a judgment of the district court of the first district, and from an order refusing a new trial. The opinion states the facts.</p>

<p>On petition for a rehearing, ante p. 197.</p>

<p>On petition for a rebearing, ante p. 232</p>

<p>On petition for rebearing, ante p. 201</p>

<p>Appeal from a judgment of tbe district court of tbe second district, and from an order refusing a new trial. The facts are stated in the opinion.</p>

<p>Appeal from a judgment of the district court of the third district. The opinion states the facts.</p>

<p>Cbiminat., Law. — Larceny.—Ownership op Property. — Under an indictment charging that the property stolen belonged to the husband, proof that the property was money furnished by the husband to the wife and in her hands when stolen supports the indictment and is not a variance.</p>

Tbe opinion states tbe facts. Under common law, in absence of statute, justices of tbe peace have no authority whatever to bear, try, and determine causes: Wells on Jurisdiction of Courts, secs., 388, 65-68 and notes; Hawes on Jurisdiction of Courts, sec. 32 and notes; Way’s Case, 41 Mich., 303; Dillard v. R. R., 58 Mo., 74; 36 Am., Dec., 693. > Tbe authorities cited above show conclusively that the jurisdiction to bear, try, and determine any cause is wholly a statutory…

<p>Appeal from an order of the district court of the first district overruling a motion for a new trial. The opinion states the facts.</p>

<p>MOTION to dismiss an appeal from a judgment. The opinion states the facts.</p>

<p>Appeal from a judgment of the district court -of the third district, and from an order refusing a new trial. The opinion states the facts.</p>

<p>Boundaries. — Estoppel.—Limitations.—The owner of land inclosed it upon what he supposed to be the boundaries thereof. He then conveyed the north half, reserving to himself and his grantees a perpetual alley-way, five feet widej along the south side of said north half, and also conveyed an alley-way five feet wide along the north side, of south half retained. Said grantee of owner conveyed said north half and said alley-way to defendants, and said owner conveyed said south half and said alley-way to plaintiff. The parties entered into possession and such boundaries were acquiesced in by adjoining proprietors for fifteen years, before commencement of suit; held, that plaintiff was not estopped from " showing true boundaries as against defendant.</p>

<p>Declaration op Trust — Rents, Issues and Promts. -A. declaration of trust given as security for sums of money advanced as purchase money for mining property, and to be satisfied out of the rents, issues and profits of the mine, without qualifying words, creates a lien upon the property itself and it maybe sold to satisfy the lien.</p> <p>Id. — Statute oe Limitations. — Where a declaration of trust provided for the payment of the money advanced out of the rents, issues and profits of a mine, and further provided for the obtaining of the rents, issues and profits, primarily, by working the mine, the indebtedness was not due immediately, and the statute did not begin to run until the trust was closed.</p> <p>Id. — Parol Evidence — Parol evidence is admissible in an action to foreclose the deed of trust to show for whom the trustee was acting and who furnished the money, explaining what did not appear on the face of the declaration of trust, but what its language indicated to exist.</p> <p>Practice — Continuance.—The granting of a continuance is in the sound discretion of the court, and unless that discretion has been abused, the case will not be reversed, because a continuance was refused.</p>

The allegations of the complaint appear sufficiently from the opinion, also the grounds of demurrer. The demurrer was overruled on the 20th day of February, 1886. Default was entered on the 1st day of July, 1886. Findings were made and filed, and decree rendered on the 23d day of October, 1886. On the 10th day of February, 1887, the defendants moved to set aside the decree and open the default, which was overruled on the 12th day of February, 1887.

The seventh instruction given was as follows: 7. You are further charged, gentlemen of the jury, that the defendant was not the insurer of the safety of the plaintiff in its employ.

<p>Criminal Law. — Commutation op Sentence:. — Petitioner was imprisoned upon a sentence rendered in the year 1884. He applied to be released upon habeas corpus on the ground of a statute approved March 11,1886, Laws of Utah, 1886, p. 6; held, that the right to discharge was controlled by statute in force at the time of sentence.</p>

” The bill contained the allegations, which are stated at length in the opinion, and prayed a discovery from defendants, who were the trustee and twelve assistant trustees, the appointment of a receiver, a decree annulling the charter and dissolving the corporation, and other relief. To this bill the defendants demurred on the following grounds: 1.

<p>Petition for rebearing; ante p. 243.</p>

<p>Petition for rehearing; ante p. 315.</p>

<p>Appeal from a judgment on demurrer of tbe district court of the first district. The opinion states the facts.</p>

<p>Appeal from a judgment of tbe district court of tbe first district, and from an order refusing a new trial. Tbe facts appear in tbe opinion.</p>

<p>Appeal — What ORDERS are Appealable prom Supreme Court op Utah. — Under section 692"Rev. Stat., an order appointing a receiver is not a “final decree,” and cannot be appealed from to the supreme court of the United States.</p>

<p>BeheaRing Denied. — Petition for rehearing is a pleading and should not be an argument. If points and authorities are submitted it should be in a separate instrument.</p>

<p>Appeal from part of a decree of tbe district court of tbe third district. The opinion states tbe facts.</p>

<p>ARBITRATION. — Title to Beal Estate. — Under section 1135, Code of Civil Proced., a submission of “certain matters in controversy in relation to the title of a certain piece of land” is invalid, because it was an attempt to submit to arbitration a question as to the legal title to real estate.</p>

<p>Original petitions for writs of prohibition. Tbe opinion states the facts.</p>

The opinion states the facts. The letter is too indefinite to show what it refers to. Even if it does refer to this account, the new promise is barred. The reading of our statute clearly indicates that the purpose of the legislature was merely to change a rule of evidence to require the acknowledgment or promise to be in writing, which but for this provision, would have pre-cisefy the same effect, if made orally.

<p>Foreclosube — Gross-Complaint,—In an action to foreclose, where a cross-complaint alleges that a deed to certain land for the purchase money of which the mortgage sought to be foreclosed is given, professed to convey certain lands, but nowhere alleges that the deed did not convey what it professed to convey, or that the land lost was part of the land conveyed by the deed, and there is no allegation of mistake in the deed, or of any eviction or of breach of warranty; held, that relief could not be granted on the warranty: See Kelley v. Kershaw, ante p. 295.</p>

Tbe opinion states tbe facts. If tbe offer is not accepted there is no contract, and tbe court will not render judgment: Code, sec. 780, 872; 1st. Parsons, on Contracts, 475, and all other works upon tbe subject. If a failure to accept would deprive tbe plaintiff of tbe benefit of tbe defendant’s offer, then certainly a rejection would have tbe same effect, and this'is -vvbat tbe plaintiff did.

Tlie opinion states the facts. Defendant’s written request for a stay of proceedings was a waiver of any possible necessity that plaintiff mightbe under of giving notice of the decision of the court:… Held: “That it is not enough that the party have knowledge of the judgment or order; that no oral communication nor presence in court and bearing the decision announced or the order or judgment declared by the court is sufficient: Fry v. Bennett, 16 How. Pr., 402.

<p>Criminal Law. — Unlawful Cohabitation. — The crime of unlawful cohabitation is proved by showing that as to the legal wife, she lives in defendants vicinity and bears his name, that he maintains and supports her household and visits her for that purpose, the cohabitation with the ¿polygamous wife being admitted.</p> <p>Id. — Id.—Presumption as to Legal Wipe. — If a man visits his legal wife while she lives in his vicinity and bears his name and her household is maintained by him, the presumption of law is conclusive that the man visits the wife as her husband and in no other character.</p> <p>Appeal. — Conflict in Testimony. — Where there is a substantial conflict in the testimony, the appellate court will not reverse the judgment on the ground that the verdict is contrary to the evidence .</p>

The facts found by the court are as follows: 1st. That at the general election held in Weber County, in August, 1884, E. P. Harris was duly elected county treasurer of Weber County, Utah. That he thereafter, and about the first of September, 1884, duly qualified and entered upon the discharge of his duties as county treasurer. 2d. That on the 14th day of February, 1887, E. P. Harris died.

<p>Appeal from a judgment of the district court of the second district, and from an order refusing a new trial. The opinion states the facts.</p>

<p>Appeal from a judgment of conviction of murder in tbe first degree of tbe district coxirt of tbe second district. The opinion states the facts.</p>

<p>Bale — CORRESPONDENCE with Sample — Finding.—Where there was evidence tending to show that in an action for the price of brick delivered, the pile of rejected brick had been examined, and that over half the pile was of the quality of the examined brick, and two of the bricks from the rejected pile were produced in court, and found to be of the quality of brick to be delivered; held, that a finding of the trial court that half of the rejected pile were of the quality agreed to be delivered, is not so clearly unwarranted by the evidence, as to demand a reversal of the judgment on the ground that the evidence was insufficient to support the finding.</p> <p>Id. — Quantity Delivered. — Evidence of receipts given by the appellant to the respondent’s teamsters, showing the number of brick delivered, is admissible in evidence, where the quantity of brick delivered is in dispute, and evidence offered by defendant to explain the receipts as not being an acceptance where the controversy is simply over the number of brick delivered.</p> <p>Id. — Evidence.—In an action for price of brick delivered, after testimony as to the number of brick delivered, it is competent for plaintiff to testify that shortly before the trial, he, in company with another person, went to appellant’s premises for the purpose of examining the rejected brick, and was driven away by defendant’s agent, and was refused the privilege of further examining said bricks.</p>

This cause was tried before the court and a jury and a verdict given for the plaintiff. Upon motion for new trial, the verdict was set aside and a new trial granted, which ruling was affirmed on appeal, 4 Utah, 455. The cause was then tried a second time before the court and a jury and another verdict found for the defendant. Thereupon a motion for new trial was overruled, and the cause came to this court on appeal. The evidence was practically the same on both trials.

court of tlie first district, and from an order refusing a new trial. Action in ejectment.

Tbe following is tbe charge of tbe court to tbe jury: Gentlemen of tbe jury, tbe court charges you that tbe relation of a bank and its depositor is one simply of debtor and creditor, and tbe depositor is not chargeable with any payments except such as are made in conformity with his orders; and if yon believe that tire endorsement of Dunbar’s name on tbe check .in question was forged, then the defendant, in paying such check, paid its own money, and discharged no part of its…

Tbe opinion states tbe facts, except tbe following, which are tbe 3rd, 4th and 5th findings of fact: 3rd. That tbe defendants were and at all times have been and still are ready and willing and able to give to plaintiff a good and sufficient deed, conveying a good title to tbe land in question. 4th.

<p>Appeal from a judgment of tbe district court of tbe first district and from an order refusing a new trial. The opinion states the facts.</p>

The appellant in Idaho territory is like a non-resident of Utah territory: 12 U. S. Statutes at Large, p. 492, section 1; p. 498, section 8; A. & A. on Cor., sec. 164; 92 Am. Dec., 688. The appellant being a non-resident of Utah, without money in its possession, or to be paid, in Utah, to defendant Beam, would not be subject to garnishment in this case: Drake on Attachment, sec. 474, and notes; Tingley v. Bateman, 10 Mass., 343; Lovejoy v. Albee, 33 Me., 414, (54 Am.

<p>Petition for rehearing, ante p. 443.</p>

<p>Original application for a writ of prohibition. The opinion states the facts.</p>

Original petition in supreme court brought by the receiver of the Church of Jesns Christ of Latter Day Saints asking that certain property be required to be turned over to him. The petition was brought in the original case. The facts appear from the opinions. For the original case see ante p. 861.

<p>Appeal from a judgment of the district court of the third district, and from an order refusing a new trial. The opinion states the facts.</p>

Action npon a promissory note, setting forth note, request for payment and non-payment.

Tbe complaint alleges title in tbe plaintiff, describing tbe alternate sections by number, township and range, that tb.e_.said lands above described comprise in all more than three hundred and fifty thousand (350,000) acres, and extend over an area of forty miles in a northerly and a southerly direction, by about thirty-six miles in aD easterly and westerly direction; that said lands are very valuable for the pasturage and grazing of stock and are of little or no value for…

ORIGINAL proceedings in mandamus against Nepbi ~VY. Clayton, auditor of tbe territory of Utab; defendant moved tbe court to quasb tbe alternative writ of mandamus.

<p>Criminal Law. — Wife as Witness against Husband. — Under section 1156, Code oí Civil Procedure, permitting a husband or wife to testify in a criminal action for a crime committed by the one against the other, the wife is a competent witness against her husband before a grand jury which indicted him for polygamy.</p> <p>Id . —Quashing Indictment. — Under Code of Criminal Procedure the fact that an indictment is found solely on the testimony of an incompetent witness is not ground for quashing the indictment.</p>

<p>Master and Servant — Negligence and Contributory Negligence. — Plaintiff, acting as switchman of defendant, under the direction of his foreman, was moving flat cars in the yard, and as train was moving at rate of eight or ten miles an hour was directed to throw open a switch; in doing so, he went back to the rear of the car, got down upon a step, and stood with one foot resting on some part of the truck. While in that position the switch-stand, which was nine or ten inches from the track, struck him and knocked him off, and he sustained injuries. One of defendant’s rules stated that no building would be allowed nearer than six feet to the main track, and five feet to any side track. Plaintiff knew of this rule, but did not know of the switch stand. Held, that the question of negligence and contributory negligence, were properly left to the jury, and their finding would not be disturbed.</p> <p>Id. — Assumption of Risk by Servant. — The danger of the switch-stand above was not one of the ordinary risks incident to plaintiff’s employment and was not a risk assumed by plaintiff upon entering the defendant’s service.</p>

<p>Appeal from a judgment of conviction of the district court of tbe third district, and from an order 'refusing a new trial. The opinion states the facts.</p>

The opinion states the facts, except the findings of the court, which found that it was the intention of both parties to include the omitted premises in the deed sought to be reformed, and that the said premises were omitted through mistake and inadvertence. The complaint does not state a case for relief, because it shows that the Wasatch Mining Company was not required to make a deed until the purchase price was paid.