Volume 51 — Utah Reports

J. D. Call, Judge. Action by W. H. Evans against Jesse N. Jensen and others. Judgment for plaintiff. Defendants Jensen appeal. APPELLANTS’ POINTS The right of a homestead is superior to the right of a mechanic’s lien upon a forced sale of the premises. Volker v. Vance, 32 Utah, page 74.

A. H. Christenson, Judge. Two actions by Joseph R. Sharp against George C. Whit-more and others and against M. Peterson and others, the actions being consolidated and tried together. From the judgment the defendant Whitmore appeals. STATEMENT OF FACTS Appellant has filed a petition for a rehearing. The questions presented contain merit, and we are of the opinion that the decision heretofore filed should be modified.

<p>1. Witnesses — Cross-Examination—Contradictory Declarations. In a passenger’s action for injuries against a railroad and the Pullman Company, the court erred in sustaining defendants’ objections to questions propounded to their witness by plaintiff on cross-examination as to his previous statements made to plaintiff as to the condition of the doorsill of the car where the accident happened, at or about its time, the witness having testified as to the condition of the car platform, that he had seen the snow swept away, that he did not see any snow or ice there, and that had there been any he would have seen it, plaintiff’s questioning seeking to elicit information as to whether or not the witness had not made statements to plaintiff that there was ice on the sill, etc. (Page 34.)</p> <p>2. Appeal and Error — Harmless Error — Sustaining Objection to Cross-Examination. In view of all the testimony for plaintiff, and the jury’s special findings that plaintiff might have slipped on account of the snow on her shoe, etc., the error was harmless. Page 34.)</p> <p>3. Appeal and Error — Assignment op Error — Waiver. Appellant waives an assignment of error by not contending against the court’s ruling in brief and argument. (Page 35.)</p> <p>4. Trial — Instructions—Inconsistency. In an action for injuries against a railroad and the Pullman Company, instructions held so inconsistent with a preceding instruction that the instructions as a whole could not stand together. (Page 36.)</p> <p>5. Carriers — Carriage op Passengers — Injuries—Bes Ipsa Loqui-tur. Where plaintiff was injured by slipping on the sill of a Pullman car of the latest and most approved type of construction, in perfect repair, the film of ice, if any, on the sill, which caused the fall, being so imperceptible that it could not be observed without getting down on the floor and scraping the sill with a knife, the doctrine of res ipsa loquitur did not apply.1 (Page 37.)</p> <p>6. Carriers — Carriage op Passengers — Duty op Boad and Pullman Company. A railroad and the Pullman Company were required to exercise only reasonable care for the safety of a passenger in acquiring a knowledge of the presence of ice on the sill of a ear, and if the coat of ice could not be seen by an ordinarily reasonable inspection, they were not liable to a passenger who slipped and fell. (Page 37.)</p> <p>7. Appeal and Error — Harmless Error — Inconsistent Instructions. Plaintiff, appellant, may not complain of the court’s instructions, which, though irreconcilable and inconsistent, were prejudicial only to defendants. (Page 37.)</p> <p>8. Appeal and Error — Beview—Verdict on Conflicting Evidence. The verdict of a jury on conflicting testimony is conclusive on the Supreme Court as to the facts. (Page 38.)</p>

J. A. Howell, Judge. Suit by Lovina W. Rosenthyne against the Matthews-McCulloeh Company and others to cancel a deed. Judgment canceling the deed, but adjudging defendant Company to have a lien upon the land. Plaintiff appeals.

J. D. Call. Judge. Proceedings by Ogden, Logan & Idaho Railway Company against Clare D. Jones and others, to condemn land. From the portion of the judgment awarding damages, the named defendant appeals.

<p>1. CRIMINAL Law — Appeal—Scope. The court, on appeal from a conviction, cannot weigh the evidence. (Page 74.)</p> <p>2. Rape — Evidence—Character op Female — Admissibility. • In prosecution for having had camal knowledge of a girl fifteen years of age, the offense being independent of prosecutrix’s chastity, it was not error to exclude questions addressed to prosecutrix, whether she went to an assignation house, since' such act does not impeach her truth and veracity, to which alone, impeachment should relate. (Page 74.)</p> <p>3. Witnesses — Competency op Impeaching Witness — Acquaintance. Though witness was not acquainted with prosecutrix before the offense, she could testify to her general reputation for truth and veracity, when prosecutrix was in her care for a considerable time prior to the trial. (Page 76.)</p> <p>4. Witnesses — Effect of Impeachment by Inconsistent Statements. Evidence of statements made by witnesses out of court, contrary to their testimony, can be considered only as to their credibility, and not as evidence of the facts. (Page 76.)</p> <p>5. Criminal Law — Appeal—Discretion—Argument. In the absence .of abuse of discretion in the latitude allowed an attorney in comment, the court on appeal cannot interfere. (Page 77.)</p> <p>6. Criminal Law — Trial—Argumentative Instructions. Argumentative instructions are properly refused, though they embody correct abstract propositions. (Page 78.)</p> <p>7. Criminal Law — Trial—Repeating Instructions. It is not error to refuse requested instructions covered by the charge given. (Page 78.)</p>

<p>1. Insurance — Health and Accident Insurance — Extent op Liability. Under health and accident policy providing that any loss resulting from septicemia should be regarded as resulting from sickness, and required a payment of only the sick benefit, the beneficiary could recover, for death of the insured from septicemia following upon a sprained ankle, only the sick benefit for the period between the time of the injury and the date of death of the insured. (Page 82.)</p> <p>2. Contracts — Construction. In construing a contract, the true object is to arrive at the intention of the parties, to be ascertained by considering the object and purpose of the parties in making the agreement. (Page 82.)</p> <p>3. Contracts — Construction. Where the parties make a clear and certain contract, the courts cannot do otherwise than apply and enforce its precise terms, regardless of whether they think the contract a good one. (Page 87.)</p> <p>McCARTY and GIDEON, JJ., dissenting.</p>

<p>Appeal and Error — Time for Appeal — Commencement of Period-Motion for New Trial. When the motion for new trial was overruled on June 5, 1916, tlie judgment became final, and the time for appeal began to run on such date, and a notice' of appeal served December 6th following was not timely, in view of Comp. Laws 1907, section 3301, providing that "an appeal may be taken within six months from the entry of the judgment or order appealed from,” and section 2493, providing that "the time within which an act provided by law is to be done is. computed by excluding the first day and including the last, unless the last is a holiday, and then it is also excluded. ’ ’1</p>

<p>1. ADVERSE POSSESSION — NECESSITY OE INOLOSURE — CULTIVATION OR Improvements. Under Comp. Laws 1907, section 2864, providing that where there has been an actual continued occupation of land under claim of exclusive title not founded upon a written instrument, judgment, or decree, the land so actually occupied and no other shall be deemed held adversely, and section 2865 providing that for the purpose of constituting an adverse possession in such a case, land is deemed to have been possessed and occupied only where it has been protected by a substantial inclosure, where it has been usually cultivated or improved, or where labor or money has been expended upon dams, etc., for the purpose of irrigating the lands, where defendants’ claim of title was not founded upon a written instrument, but was based upon actual possession, an open, notorious, peaceable occupation under claim of right was not sufficient without actual cultivation or improvement, or money expended for irrigation or an inclosure. (Page 114.)</p> <p>2. ADVERSE Possession-AIolor of Title — Contracts of Sale— "Conveyance." A contract by T. for the sale of land described as lands of a railroad company to which it was or should become entitled, which provided that upon certain payments being made and upon the issuance of a patent from the United States, a deed for the conveyance of the land would be executed and delivered, was not a "conveyance" constituting color of title, under Comp. Laws 1907, section 2862, providing that when the occupant of land or those under whom he claims entered into possession under claim of exclusivo title founded upon a written instrument, as being a conveyance of the property, and there has been a continued occupation and possession for seven years, the property so included shall be deemed to have been held adversely. (Page 115.)</p> <p>3. Adverse Possession — Possession by Executory Purchaser— Adverse Character of Possession. The purchaser’s right to claim adversely to T. and the railroad company began only when he had performed all the conditions of such contract and became entitled to a conveyance of the property. (Page 118.)</p> <p>4. Vendor and Purchaser — Constructive Notice — Becitals in Contract. Assuming that the purchaser’s ignorance of the railroad company’s claim of title to the property affected the question of adverse possession, he was conclusively presumed to know that the railroad company owned the land or had an interest in it and that his vendor did not have title, as the contract, which was signed by his authority and which he read a few days after it was executed, referred to the land in plain language as lands of the railroad company. (Page 119.)</p> <p>5. Adverse Possession — Continuity'—Becoqnition of Title of Former Owner. Where before the purchaser under such contract had adverse possession for seven consecutive years he brought suit against the railroad company for specific performance of the agreement, on the theory that T. was its agent, thereby recognizing and admitting its legal title, this broke the continuity of his adverse possession. (Page 120.)</p> <p>6. Adverse Possession — Presumption and Burden of Proof — Payment of Taxes. Under Comp. Laws 1907, section 2866, providing that in no case shall adverse possession be considered established unless it shall be shown that the land has been occupied and claimed for seven years continuously and that the party or persons, their predecessors and grantors, have paid all taxes levied and assessed upon such land according to law, the burden of proof rested on one claiming by adverse possession to show that taxes were not levied and assessed if such was the fact or that they were paid if they were levied and assessed. (Page 121.)</p> <p>On Application for Rehearing.</p> <p>7. Adverse Possession — Payment op Taxes — Duration and Continuity. Comp. Laws 1907, section 2866, requiring the payment of taxes levied and assessed for seven years continuously to establish adverse possession, is mandatory, and the failure to pay the taxes levied and assessed for one year of the seven defeated the claim of title. (Page 124.)</p>

<p>1. Boundaries — Acquiescence. Evidence held to sustain a court finding that of two surveys marking the boundary between plaintiff's and defendant’s lands the later was definite and certain, was agreed to, and had been acquiesced in and treated as the true boundary lino for more than four years. (Page 128.)</p> <p>2. Boundaries — Acquiescence in Boundary — Estoppel. Where, in reliance upon an agreement of plaintiff that the division line of a later survey should be treated as the true boundary between lands of plaintiff and defendants, defendants at the request of plaintiff moved the fence from the line on the prior survey at a cost of $75, and plaintiff thereafter occupied and used all the lands west of such line and petitioned and permitted the county commissioners to change the course of the public road so that it would occupy the land acquired by him west of the new boundary line, plaintiff was estopped from claiming that the line of the later survey was not the true divisional line.1 (Page 128.)</p>

<p>1. Usury — Remedies—Recovery oe Pledged Property. Comp. Laws 1907, section 1241x2, provides that every person who shall pay or deliver any greater sum for any loan or forbearance of money than that permitted by statute or pay the principal or any part thereof may recover the amount so paid both as principal and interest if such action be brought within one year after such payment. Section 1241x8 provides that, whenever any bond, pledge, etc., has been taken or received in violation thereof, the court shall declare it void, enjoin any prosecution thereon, and order it to be surrendered and canceled, and any property embraced within the term of such contracts or securities delivered up. Held,, that one pledging property to secure the payment of a usurious loan and making payments aggregating more than the money borrowed had a right of action under section 1241x8 to recover the pledged property. (Page 134.)</p> <p>2. Usury — Recovery of Pledged Property — Limitations. An action under Comp. Laws 1907, section 1241x8, to- recover property pledged to secure a usurious loan if subject to any limitation, is not governed by section 1241x2, requiring actions to recover payments on usurious contracts to be brought within one year, but by the general statute of limitations. (Page 134.)</p> <p>3. Limitation oe Actions — Accrual op Cause oe Action — Recovery oe Personal Property. In August, 1912, plaintiff pledged certain diamond rings to defendant to secure usurious loans. Thereafter payments were made on the loans from time to time until October, 1914, at which time defendant gave plaintiff a ticket certifying that one of the loans was extended to May, 1914, and the other to July. In February, 1915, defendant wrote plaintiff that he had the rings and would keep them for plaintiff. Held, that an action brought in February, 1916, to recover the rings was not barred by limitations, whether, governed by the limitation of three years or that of four years, as limitations did not run as long as defendant was accepting payments, extending the time for future payments and promising to keep the property for plaintiff. (Page 134.)</p>

<p>1. Corporations — Powers op Directors. In view of Comp. Laws 1907, section 324, requiring the powers of a corporation to be exercised by the board of directors, where the board of directors refused to order the president and secretary to transfer shares of stock, their act in transferring such shares was illegal, although the stockholders had voted in favor of the transfer.1 (Page 141.)</p> <p>2. Corporations — Stockholders ’ Action — Application to Directors. Where the board of directors was adverse to bringing suit, and an application to them to institute the suit would have been of no avail, and the stockholders had been damaged by the acts upon which the suit was based, they could bring the action in their own names and in behalf of the corporation. (Pago 143.)</p>

J. A. Howell, Judge. Creditor’s suit by Max Daniels against Emory A. Smith and Ethel Blickensdorfer Smith. Judgment for plaintiff. Defendants appeal. APPELLANTS’ POINTS Tbe court found that defendants had filed no homestead exemption claim.

<p>1. Assignments — Garnishment—Unearned Salary — Cities. Id the absence of statute, unearned salary of a public officer may not be assigned, nor a city garnished for salary of an officer.1 (Page 155.)</p> <p>2. Assignments — Unearned Salary — Statute. The Legislature by expressly changing, by Comp. Laws 1907, section 3113x, the law that a city may not be garnished for salary of an officer, did not intend to change the law that unearned salary of an officer may not be assigned; but the express mention of the one implies the exclusion of the other.1 (Page 156.)</p> <p>3. Constitutional Law — Power of Legislature — Public Policy. Power of the Legislature to determine what shall be public policy is limited only by state and federal Constitutions. (Page 158.)</p>

<p>1. Teusts — Constructive Trust — Stolen Property — Evidence. To establish a trust in money received by H. from K., as part of that stolen by K. from plaintiff, the particular pieces of money need not be identified, but it is enough that among those taken by K. there is enough of each kind to make up those received by H. from K. (Page 163.)</p> <p>2. Judgment — Bes Judicata. — Pendency op Appeal. Judgment of city court is not res judicata pending appeal therefrom to district court, entitling both parties to trial de novo on the issues.1 (Page 164.)</p> <p>3. Witnesses — Competency—Certainty op Knowledge. That a witness is not absolutely certain defendant was the person with whom he had a conversation does not warrant exclusion of his testimony in respect thereto, but merely goes to its weight. (Page 164.)</p>

<p>Appeal from District Court of Weber County, Second District ; Hon N. J. Harris, Judge.</p> <p>Suit by George F. Cave and others against Ogden City and others.</p> <p>Decree for defendant. Plaintiffs appeal.</p>

<p>1. Appeal and Error — Judgment Roll — Statute. Under Comp. Laws 1907, section 3197, providing that immediately after entering the judgment, the clerk must attach together and file the following papers, which shall constitute the judgment roll, specifying such papers, among them all orders deemed excepted to, orders which are not and cannot be made until some time after judgment, and which were not made in the- course of the proceedings leading up to the judgment, such as orders extending the time within which to settle bills of exceptions, though made ex parte, are not made a part of and cannot be incorporated with the judgment roll without special sanction by some legislative act.1 (Page 175.)</p> <p>2. Exceptions, Bill op — Orders Extending Time to Settle Bills op Exceptions — Attachment to Bill. The better practice is to attach the orders extending the time within which to settle bills of exceptions to the proposed bill, so that the adverse party may be advised when and by whom the orders, if any, were made; an order granted out of time being just as fatal to the jurisdiction of the court or judge as though no order were made at all. (Page 175.)</p> <p>3. Appeal and Error — Motion to Strike Bill op Exceptions — Late Signing. Where the record does not show that appellant obtained timely orders extending the time within which to- propose and serve his bill of exceptions, and does show that the bill was in fact signed long after the judge had lost power or jurisdiction to do so, appellee’s motion to strike must be sustained, and the appeal considered on the judgment roll alone. (Page 176.)</p> <p>4. Appeal and Error — Questions Reviewable — Absence of Bill of Exceptions — Support of Judgment by Pleadings. In the absence of bill of exceptions, the only question the Supreme Court is authorized to consider under the assignment that the trial court erred in directing judgment for appellee is whether the judgment is sustained by the pleadings. (Page 176.)</p> <p>5. Judgment — Support of Judgment for Defendant in Action on Indebtedness. In an action on an indebtedness, where defendant’s answer not only denied any indebtedness, but averred that an account was stated by the parties, and defendant found not to be indebted to plaintiff in any form, and that defendant was not indebted to plaintiff in any form, defendant’s pleadings supported judgment for him. (Page 176.)</p> <p>6. Appeal and Error — Presumptions Favoring Court Below — Judgment. Every presumption must be indulged on appeal in favor of the correctness of the judgment below, and in the absence of anything in the record to the contrary the Supreme Court must presume that the trial court properly directed judgment for defendant. (Page 176.)</p>

Geo. G. Armstrong, Judge. Action by the William J. Lemp Brewing Company against P. J. Moran, Incorporated. Judgment for defendant. Plaintiff appeals.

T. D. Lewis, Judge. Action by Mrs. Hattie Tremelling, administratrix, against the Southern Pacific Company. Judgment for plaintiff. Defendant appeals. APPELLANT’S POINTS Since this action was brought under tbe Federal Employer’s Liability Act, it should be borne in mind that the rights and obligations of the parties hereto depend upon such act and applicable principles of the common law as interpreted and applied in Federal courts. (Southern R. Co. v. Gray, 336 Sup. Ct.

<p>1. MASTER AND SERVANT-INJURIES TO SERVANT — DUTY TO MAKE Place Safe. Though one employed to operate á drilling machine in a mine was required to inspect his place of work, he did not, on the theory that he was bound to make the place of work safe, assume the risk of injury from rock falling from the roof of the mine in a place other than his immediate place of work.1 (Page 209.)</p> <p>2. Master and Servant — Injuries to Servant — Actions—Negligence. Where an injured servant alleged several acts of the master’s negligence, he may recover on proof of less than all of them. (Page 209.)</p> <p>3. Trial — Instructions—Refusal. The refusal of the requests covered by the charge given is not error. (Page 209.)</p> <p>4. Trial — Instructions—Refusal. The refusal of instructions not justified by the evidence, though reflecting a party’s theory, is not error. (Page 209.)</p>

Geo. G. Armstrong, Judge. Action by James A. Murray against Stephen Hays, Mary Hays and the Phelan Fund. From an order fixing and allowing counsel fees, the defendants Hays appeal.

<p>1. Appeal and Error — Scope—Conclusiveness op Verdict. A verdict, rendered upon substantial evidence, is conclusive. (Page 219.)</p> <p>2. Courts — City Courts' — Jurisdiction—Construction op Statutes. Comp. Laws 1907, section 686x10, subd. 2, declaring jurisdiction-of city courts, and section 688, subd. 2, declaring jurisdiction of justices of the peace, being word for word the same, authorities relating to jurisdiction of justices of the peace are in point on the jurisdiction of the city courts.1 (Page 220.)</p> <p>3. Courts — City Courts — Jurisdiction—False Imprisonment. Comp. Laws 1907, section 686x11, stating limitations on jurisdiction of city courts, having failed expressly to deprive such courts of jurisdiction of civil actions for false imprisonment, is persuasive of the fact that such courts have jurisdiction of such actions. (Page 221.)</p> <p>4. Boundaries — "Bank” op Stream — Construction. A city boundary calling for the bank of a stream does not extend merely to the high-water mark on the bank of the stream, but goes to the mean water level, regardless of droughts or freshets. (Page 222.)</p> <p>5. Appeal and Error — Harmless Error. In an action for false imprisonment by arrest by landowner for trespass in alleged violation of city ordinance, instruction that city boundary calling for bank of stream extended to high-water mark was prejudicial in the absence of evidence as to where such mark is with reference to the point where the alleged trespass occurred. (Page 222.)</p>

<p>1. LimitatioN of Actions — Statute of Limitations — Absence of Defendant. Comp. Laws 1907, section 2888, providing that if, when the canse of action accrues against a person, he is out of the state, the action may be commenced within the term limited after his return to the state, and if, after the cause of action accrues, he departs from the state, the time of his absence is not part of the time limited for the commencement of the action, applies .though the debtor has a place of abode or residence within the state so that process might have been served notwithstanding his absence. (Page 228.)</p> <p>2. Constitutional Law — Construction of Statute — Judicial Function. To construe the meaning of the language of a statute is a judicial function; to add words to those used by the lawmaking body is a legislative function. (Page 233.)</p> <p>3. Limitation op Actions — Statute op Limitations — Absence op Debtor. Under Comp. Laws 1907, section 2888, the statute of limitations runs only while the debtor is openly in the state, and immediately on his leaving it the statute again ceases to run until his return, and in computing the time of absence all the periods of absence must be considered and added together'. (Page 233.)</p>

J. A. Howell, Judge. Action by T. B. Budge against Ashmer Cecil Barron. Judgment for plaintiff. Defendant appeals.

<p>1. Statutes — Title—Sufficiency. Laws 1913, c. 100, entitled "An act to provide for the indeterminate sentence of persons convicted of crime,” does not violate Const, art. 6, section 23, restricting acts to one subject to be clearly expressed in the title, although it impliedly supersedes certain portions of the Penal Code.1 (Page 248.)</p> <p>2. Constitutional Law — DISTRIBUTION of Powers — Indeterminate Sentence Law. Indeterminate sentence law (Laws 1913, c. 100) does not violate Const, art. 5, section 1, prohibiting one department of the government from encroaching on the powers of another, because transferring the power of fixing duration of sentences from trial courts to an executive body. (Page 250.)</p> <p>3. Criminal Law — Indeterminate Sentence — Power of Court. Under indeterminate sentence law (Laws 1913, c. 100), section 2, providing that persons sentenced for a definite period shall nevertheless be subject to its provisions, a trial court cannot fix the length or degree of punishment. (Page 251.)</p> <p>McCARTY, J., dissenting.</p>

<p>1. Municipal Corporations — Injuries on Streets — Instructions. In an action for the death of a person struck by an automobile, the court charged that, if the jury believed from the evidence that deceased, after he knew defendant’s automobile was approaching, could and should, in the exercise of ordinary care, have stopped and permitted it to pass in safety, but chose to go on and run the risk of collision, then plaintiffs must abide the risk he took, and the verdict would be for defendant. Held, that this was open to' the construction that it denied a recovery if deceased might have avoided the accident by stopping and allowing the car to go by, though he was not negligent in failing to stop and permit it to have the right of way. (Page 263.)</p> <p>2. Municipal Corporations — Injuries on Streets — Instructions. In an action for the death of a person struck by an automobile, the court charged that, unless the jury found from a preponderance of the evidence that the alleged negligence of defendant actually existed and was the sole proximate cause of the injury to deceased, and that deceased was free from any negligence proximately contributing to the injury, then plaintiff was not entitled to recover, and the verdict should be for defendant. Held, that this instruction was erroneous, as the only fair, natural, obvious, and ordinary meaning of the language of the instruction was that the jury were required to find from a preponderance of the evidence that deceased was free from negligence before they could find for plaintiffs. (Page 264.)</p> <p>3. Trial — Instructions—Cure of Errors by Other Instructions. The error in such instruction was not cured by other instructions, correctly stating the rule respecting the burden of proof, where the evidence was conflicting, and such that more than one conclusion was permissible, and the record left it in doubt whether the jury followed the proper instruction or the improper one. (Page 264.)</p>

N. J. Harris, Judgé. Action for partition by John F. Stephens against Olive Ethel Stephens and Merlin H. Stephens, a minor, by Olive Ethel Stephens, his guardian. Harriet 0. Shaw was made a party at the instance of the defendants. Judgment of partition and accounting. Defendants appeal.

<p>1. Mandamus — State Auditob — Maintaining Action. Comp. Laws 1907, section 2421, subd. 15, empowering the state auditor to bring suits for official delinquencies in tax matters, authorizes mandamus proceedings against county officials to enforce the proper assessment of coal lands. (Page 276.)</p> <p>2. Mandamus — Public Offtotals — Time fob Action. Mandamus cannot be maintained against a delinquent public official if Ms functions regarding the matter involved are ended. (Page 276.)</p> <p>3. Mandamus — Tax Assessments — Time eob Suit. Mandamus to compel county officers to properly assess coal lands cannot be maintained after the assessment had been completed, taxes equalized, rate established, funds apportioned, and the assessment roll had passed beyond defendants’ control, although Comp. Laws 1907, section 2545, confers certain powers regarding property which had escaped taxation.1 (Page 276.)</p> <p>4. Taxation — Assessment—Coal Lands. Const, art. 13, sections 2-4, and Comp. Laws 1907, sections 2504, 2506, requiring coal lands secured from the United States to be assessed at purchase price and other coal lands at actual value, prohibits a blanket assessment of all coal lands in the county at a flat rate. (Page 278.)</p> <p>5. Evidence — Judicial Notice — Value of Coal Lands. Judicial notice will be taken that coal lands secured from the United States wei-e not purchased at a uniform price, and that those purchased from the state are not of a uniform value. (Page 278.)</p>

<p>1. Animals — Trespassing Cattle — Bight to Becover. Comp. Laws 1907,.<section 20, giving right of action for trespass by cattle, permits recovery for trespass only when willfully permitted or when permitted with knowledge of the location of the lands owned by the aggrieved party.1 (Page 282.)</p> <p>2. Animals — Trespassing Cattle — Unfenced Lands — Notice. Permitting cattle to run at large on wild unfeneed lands part of which is owned by another and upon which part are located springs of water charges the owner of the cattle with knowledge that, unless restrained, they will trespass in going to water. (Page 283.)</p> <p>3. Animals — Trespassing Cattle — Questions por Jury. Evidence held to make jury question whether trespassing by cattle belonging to defendant entitled the landowner to recover, under Comp. Laws 1907, section 20. (Page 283.)</p> <p>4. Animals — Trespassing Cattle — Instruction. Instruction that, if plaintiff were lawfully in possession of lands involved with boundary lines marked by posts, monuments, or other signs, so that defendant could ascertain by reasonable investigation where such lands were, or that defendant knew or should have known where the lands were, or that he was notified to keep his cattle off of such lands, but permitted them to trespass, plaintiff could recover, fairly-submitted facts constituting notice of location and boundaries of plaintiff’s land. (Page 284.)</p>

<p>Appeal from District Court of Weber County, Second District ; Hon. A. W. Agee, Judge.</p> <p>Action by W. H. Goan against tbe Ogden, Logan & Idaho Railway Company.</p> <p>Judgment for defendant. .Plaintiff appeals.</p>

A. H. Christensen, Judge. Action by R, A. Snyder and another against Frank Allen and another. From a judgment for plaintiffs and from an order denying motion for a new trial. Defendants appeal.

A. H. Christensen, Judge. Action by the Denver & Rio Grande Railroad Company against Grand County. Judgment for plaintiff. County appeals.

<p>1. Exceptions, Bill op — Settling, Signing, and Piling — Stipulation. The provision of Comp. Laws 1907, section 3286, providing that, where the adverse party suggests amendments to the proposed bill of exceptions which are not excepted by the party who proposed the bill, the bill together with the suggested amendments must, within ten days, be presented to the judge for settlement, applies only where the judge must act as an arbiter respecting what the bill shall contain the judge merely authenticates the bill, and the date on which the bill is presented to the clerk is the material date, so that the judge may sign any time thereafter when the bill is presented to him by the clerk. (Page 306.)</p> <p>2. Appeal and Error — Bindings op Court — Review. Bindings of the trial court supported by substantial evidence will not be disturbed on appeal. (Page 310.)</p> <p>3. Sales — Breach op Contract by Buyer — Damage. Where the evidence showed that horses were worth at least twenty dollars a head more than the contract price, the seller could not recover any substantial damages for failure of defendants to receive and pay for the horses according to contract, as plaintiff could only, in any event, recover the difference between the contract price and the market price. (Page 311.)</p> <p>4. Principal and Agent — Undisclosed Principal — Liability to Third Person — Release op Agent. Where plaintiff knew there was an undisclosed principal, but nevertheless settled with the agent for the breach of contract and released him, he could not thereafter recover from the principal. (Page 312.)</p>

<p>1. Appeal and Error — Review—Findings of Lower Court. Where, in case the record were alone looked to, different minds might arrive at different conclusions respecting the ultimate facts, the Supreme Court should not interfere with the lower court’s finding.1 (Page 315.)</p> <p>2. Appeal and Error — Reversal—Sufficiency of Competent Evidence to Sustain Findings. When a case is tried by the court without a jury, judgment will not be reversed for the admission of incompetent evidence, if there is sufficient competent evidence to sustain the findings.2 (Page 316.)</p>

<p>Taxation — Mines—"Net Annual Proceeds.” Under Const, art. 13, section 4, and Comp. Laws 1907, sections 2566-2568, as amended by Laws 1909, c. 63, relating to taxing of net annual proceeds of mines, whore ore, thrown in the dump during previous years, is shipped and reduced, the net to be taxed is the gross received less the cost of handling for the particular year for which taxed, and the mining company cannot be credited with the cost of mining it and placing it in the dump in prior years, the question not being whether the business as a whole was paying, but what was the net proceeds for that particular year, arrived at by subtracting from the gross receipts for the year the amount of expenses actually incurred during such year.1</p>

A. W. Agee, Judge. Action by William J. Lynch against the Standard Publishing Co., Frank A. Francis and Roscoe C. Glassman. Judgment dismissing the complaint. Plaintiff appeals.

<p>1. Replevin — Actions—-Demurrer. A complaint alleging that defendants wrongfully took into their possession on or about December 22, 1913, two horses and two blankets which they have since wrongfully withheld and retained, notwithstanding plaintiff’s demand, states a good cause of action, and is not subject to objection for uncertainty or ambiguity. (Page 337.)</p> <p>2. Replevin — Actions—Conditions Precedent — Demand. Where a person comes lawfully into possession of another’s property, a demand by the person entitled thereto must first be made before an action can be brought for its recovery, unless other facts and circumstances are shown which obviate demand, and hence, where defendants’ attitude showed that a formal demand for return of plaintiff’s horses which they had taken up as trespassing animals would have been unavailing, it appearing when plaintiff requested return of the animals defendants asserted a feed bill against the only animal which, remained alive, and told the .sheriff to direct plaintiff to bring an action, the necessity for formal demand was waived. (Page 338.)</p> <p>3. Replevin — Demands—Sufficiency. Where plaintiff, whose two horses had been taken up by defendants as trespassing animals, demanded the return of the team, though he was informed that one of the horses had died, such demand is a sufficient demand for the remaining horse to support an action of replevin. (Page 338.)</p> <p>4. Replevin — Demand—Necessity. Where defendant son discovering trespassing horses on their property took up the animals, but failed to impound them as estrays and deliver them to the poundkeeper, as required by Comp. Laws 1907, tit. 3, e. 1, which provides for impounding and advertising of estrays, defendants by their conduct became trespassers from the beginning, and no demand by the owner was necessary in order to enable him to maintain replevin for the horses. (Page 339.)</p> <p>5. Replevin — Actions—Maintenance. In replevin for two- horses, where plaintiff knew that at the time of the institution one of the animals had died, the value of the animal which died while in defendant’s possession, cannot be recovered. (Page 340.)</p> <p>6. Replevin — Action—Evidence. In replevin for • horses, where defendants, while in possession of the animals, worked one of them, no damages for use of such animal can be awarded; there being no evidence as to the rental value of horses at the place of defendants’ residence, or that plaintiff could have used the horses at any time during the period of their wrongful detention. (Page 342.)</p>

II. M. Stephens, Judge. Mandamus by R. M. Stinson & Co., a copartnership, to compel Frank Godbe, City Treasurer of Salt Lake City, to issue a warrant for the payment of interest on paving warrants. Judgment granting the writ. Defendant appeals.

<p>Action — Pleading—Joining op Causes op Action. A complaint founding recovery on damages for conspiracy of an apartment building oivner, his lessee and an agent, held not to join separate causes of action, although it grouped fraudulent acts of each which might have otherwise been grounds of a separate action, and stated facts which would otherwise have been ground for rescission of an exchange of property with the lessee.</p>

Joshua Greenwood, Judge. Iii the matter of the estate of Enoch W. Tripp, deceased. Appeal from an order of the district court sitting as a court of probate approving and settling an account between the administrators of the estate of the decedent and C. L. Tripp, a surviving partner.

<p>1. Frauds, Statute op — Contracts—Employing Agent to Purchase Realty. Where plaintiff employed defendant to purchase real estate, defendant to get half of personalty going with the farm, not exceeding $300 and the real estate was transferred, the defendant could not set up the Statute of Frauds (Comp. Laws 1907, section 2467, subd. 5, as amended by Laws 1909, c. 72), requiring agreements authorizing agents to purchase real estate to be in writing, in an action by plaintiff for personalty obtained by defendant in excess of $300, because the part of the contract employing defendant to purchase real estate which had to do with real estate had been fully executed. (Page 366.)</p> <p>2. Appeal and Error — Harmless Error — Instructions. A statement in the instructions outside the issues, which clearly does not prejudice an appellant, is not reversible error. (Page 368.)</p>

<p>1. Master and Servant — -Workmen’s Compensation Act — Constitutionality. Workmen’s Compensation Act (Laws 1917, c. 100), empowering the Industrial Commission to- fix rates of insurance, is not unconstitutional because it interferes with plaintiff employer’s right to procure from a private insurance company a policy at a rate not approved by commission. (Page 374.)</p> <p>2. Constitutional Law — Delegation of Power. The Legislature had the constitutional power to enact the Workmen’s Compensation Act, delegating to the Industrial Commission the power to regulate rates for state and other workmen’s compensation insurance. (Page 374.)</p> <p>3. Master and Servant — Fixing Kates oe Insurance — Power oe Industrial Commission. Workmen’s Compensation Act, section 53, subd. 2, providing for stock corporation and mutual associations engaged in the business of workmen’s compensation insurance, and subdivision 3, providing that all stock corporations or mutual associations transacting the business of workmen’s compensation insurance under the terms of subdivision 2 “shall be subject to the rules and regulations of the commission with respect to the rates to be charged, and methods of compensation to be used,” gives the Industrial Commission power to fix the rates to be charged by stock corporations or mutual associations transacting lousiness of workmen’s compensation insurance. (Page 375.)</p> <p>4. Master and Servant — Fixing Rates of Insurance — Power of Industrial Commission. Under Workmen’s Compensation Act, section 37, providing that the commission shall determine the hazards of the different classes of insurance, and fix the rates of premiums therefor based upon the total pay roll and number of employees in each of certain classes of employment at the lowest possible rate consistent with the maintenance of a -solvent state insurance fund, and for such purpose may adopt a system of schedule rating, when the Industrial Commission establishes a rate for state insurance, the rate so established becomes the rate to which other workmen compensation insurers must conform. (Page 376.)</p> <p>5. Master and Servant — Workmen’s Compensation Insurance— Rejection of Policy. The Industrial Commission by virtue of its power to fix and regulate insurance rates under Workmen’s Compensation Act, sections 37, 53, has authority to reject a policy issued to an employer by a private insurance company where it provides in general terms for participation by the employer. (Page 378.)</p>

<p>Appeal from District Court of Salt Lake County, Third District; Hon. W. H. Bramel, Judge.</p> <p>Action by W. S. Naylor and another against Nicholas Floor.</p> <p>Judgment for plaintiffs. Defendant appeals.</p>

P. C. Evans, Judge. Action by L. G. Skliris against Nick Melis and the Pan-hellenic Grocery Company, garnishee. Judgment for plaintiff, and judgment releasing garnishee. Plaintiff appeals.

<p>1. Bills and Notes — Want of Consideration — Sufficiency of Evidence. Evidence in action on a note given by city contractor to city engineer held to support verdict for defendant, on the theory of the note being without consideration, and exacted under threat. (Page 400.)</p> <p>2. Bills and Notes — Purchaser aeter Maturity — Defenses. Defense of note being without consideration and part of a transaction against public policy is available against purchaser after maturity. (Page 400.)</p>

<p>1. Intoxicating Liquors — Regulation—Powers op Municipalities. Sess. Laws 1917, e. 2, Section. 40, repealing all acts in conflict with such act, which was in effect a "bone-dry law,” did not repeal Laws 1915, e. 120, sections 206x41 and 206x49, in so far as they empowered municipalities to prohibit the manufacturo, sale, or disposition in any manner of intoxicating liquors. (Page 402.)</p> <p>2. Intoxicating Liquors — Regulation—Powers op Municipalities. The mere fact that the state by the enactment of Sess. Laws 1917, c. 2, section 40, assumed jurisdiction of the subject of intoxicating liquors, did not impliedly remove the right of cities to prohibit the sale and use of liquors 'within their limits.1 (Page 407.)</p> <p>3. Intoxicating Liquors — Regulation—Powers on Municipalities. The Legislature by enacting Sess. Laws 1917, c. 2, section 40, and expressly repealing acts in conflict therewith, did not repeal Laws 1915, c. 120, sections 206x41 and 206x49 in so far as they empowered cities to prohibit intoxicating liquors in view of the rule that the expression of one thing excludes all others; there being no conflict between such statutes. (Page 407.)</p> <p>4. Intoxicating Liquors — Regulation—Powers oe Municipalities. In view of Laws 1917, e. 2, section 20, providing that, on conviction of any person in any city for violation of any city ordinance relating to liquors, notice shall be sent thereof to the Attorney General, the Legislature did not by such act, generally prohibiting sale, beeping and use of liquors, repeal Laws 1917, c. 2, section 40, empowering cities to prohibit sale and keeping of intoxicating liquors, (Page 407.)</p>

<p>1. Wills — Testamentary Capacity — Evidence—Review. Though a testator was eighty-three years old, suffering with hardening of the arteries and a disease of the kidneys, and his physical health had been failing for some time, and his mind was more or less affected, and at times he had spells of unconsciousness lasting several hours at a time, the testimony of the subscribing witnesses that his health and mind were good at the time the will was executed, and he knew what he was doing, and was in sound mind, made a prima facie case of mental capacity, and was such substantial evidence in support of the trial court’s finding of mental capacity as precluded the Supreme Court from disturbing the judgment, however strong the evidence of testamentary incapacity.1 (Page 421.)</p> <p>2. Evidence — Opinion' Evidence — Mental Capacity — Competency and Weight op Evidence. Laymen who speak from facts within their knowledge are competent to testify on the question of the mental capacity of a testator, and their testimony can stand and may be considered by the court, though contradicted by the testimony of medical experts, that the testator was suffering from senile dementia, and that such disease deprives a person of testamentary capacity. (Page 425.)</p> <p>McCARTY, J., dissenting.</p>

<p>1. Mortgages — Foreclosure — .Personal Liability. Under Comp. Laws 1907, Sections 3498, 3499, 3503, as to sales on foreclosure, the court can impose a personal liability on the mortgagor only after having ordered a sale of the property, and after the sale has been had according to law and a deficiency appears.1 (Page 469.)</p> <p>2. Mortgages — Foreclosure — Personal Liability. Tho remedy pointed out by such statutes cannot be said to bo merely cumulative so as to warrant a court of equity in granting any relief known.to the courts, since Comp. Laws 1907, Section 2489, provides that the Revised Laws establish the law respecting their subjects; such statutes being mandatory. (Page 470.)</p> <p>3. Mortgages — Jurisdiction—Lands in Other State — Foreclosure. Where lands in Utah and in Idaho were mortgaged, a Utah court, having decreed forelosure and the sale having been made under an erroneous description, had the power, on proper petition, to reform the deed and mortgage so as to properly describe the lands and to vacate the former sale and satisfaction, but could not foreclose the mortgage on the Idaho lands and order tho Utah sheriff to sell the Idaho lands. (Page 471.)</p> <p>4. Contempt — Disobedience—Void Court Order — Effect. Where a Utah court made a void order for foreclosure of mortgage on lands in Idaho, and further ordered the mortgagor to make a deed to such lands, Ms refusal to make such deed did not place him in contempt of court, since he was entitled to wait until there had been a legal sale of the mortgaged premises, and the court order was absolutely void. (Page 474.)</p> <p>5. Mortgages — Sale by Mortgagor — Purchaser’s Liability. Clause in deed, reciting that the purchaser bought subject to all liens, mortgages and incumbrances, did not constitute upon his part an agreement with the mortgagee to pay the mortgage. (Page 475.)</p>

<p>1. Appeal and Error — Findings—Review. A finding of the trial court in a mortgage foreclosure proceeding contrary to appellant’s contention is conclusive unless there is a clear preponderance of evidence against such finding. (Page 478.)</p> <p>2. Mortgages — Foreclosure—Parties. Prior lienors are proper, but not necessary, parties to an action to foreclose a mortgage.1 (Page 479.)</p>

<p>1. Evidence — Expert—Matter op Common Knowledge. That railway spike heads will fly off when struck too hard or, when struck a slanting blow is so self-evident that it was error to admit expert testimony to that effect. (Page 482.)</p> <p>2. Appeal and Error — Harmless Error — Evidence. Such error was not alone sufficient to require reversal. (Page 482.)</p> <p>3. Master and Servant — -Negligence—Evidence. In section hand’s action for loss of eye when hit by head of spike, driven by fellow servant, evidence held insufficient to show negligence of the master or fellow servant. (Page 484.)</p> <p>4. Master and Servant — Assumption op Risk. In section hand’s action for loss of eye when hit by head of spike driven by fellow servant, evidence held to show that the injury was one usually incident to the service, and the risk of which was assumed by plaintiff. (Page 484.)</p>

M. L. Ritchie, Judge. Suit by William H. Swanson against H. A. Sims. Judgment for plaintiff. Defendant appeals.

<p>1. Appeal and Error — Record—Abstract—Bill op Exceptions. Where the printed abstract showed an extension of time to file a bill of exceptions, and such statement was challenged, the court must examine the record to determine whether the bill was in fact filed as stated within the required time. (Page 502.)</p> <p>2. Appeal and Error — Judgment Roll — What Constitutes. An unsigned order purporting to extend the time for filing a bill of exceptions is not a part of the judgement roll, and cannot be considered for any purpose when it appears in the judgment roll alone.1 (Page 502.)</p> <p>3. Appeal and Error — Scope op Review — Record—Sufficiency. Orders extending time for filing bill of exceptions are of no force or .effect unless properly certified by the trial court as a part of the bill of exceptions. (Page 503.)</p> <p>4. Appeal and Error — Scope op Review — Record—Binding Effect. In determining whether the bill of exceptions has been filed within the required time, the court on appeal is bound by what the record shows in regard thereto. (Page 503.)</p> <p>5. Appeal and Error — Scope of Review — Record—Sufficiency. Where the record affirmatively shows that bill of exceptions was not filed within the time originally specified, and no valid order extending the .time appears, the appeal must be considered on the judgment roll alone. (Page 503.)</p> <p>6. Appeal and Error — Scope op Review — Record—Sufficiency— Presumptions. In the absence of proper bill of exceptions the court must presume that the evidence justified the findings, and the findings must be sustained. (Page 504.)</p>

<p>Master and Servant — Contributory Negligence. A servant, working near an o-pen elevator shaft guarded only by a channel iron 36 inches from the floor, who went on his hands and knees into a cylindrical iron tank to smooth its edges, and in the process rolled it into the shaft, was negligent.1</p> <p>GIDEON, J., dissenting.</p>

<p>Appeal and Error — Time for Taking — Jurisdiction of Supreme Court — DiSMissAL-nSTATUTE. Under Comp. Laws 1907, Section 3301, providing that an appeal may be taken within six months from the entry of the judgment or order appealed from, appeal from a judgment entered May 28th, notice of appeal having been filed and served December 8th, was taken at least eleven days late, the Supreme Court is without jurisdiction, and the appeal will be dismissed.1</p>

<p>Appeal from District Court of Salt Lake County, Third District; Hon. J. Louis Brown, Judge.</p> <p>Howard De Weese was convicted of murder in the first degree. He appeals.</p>

<p>Appeal from District Court of Salt Lake County, Third District; Hon. T. D. Lewis, Judge.</p> <p>Action by Interstate Trust Company, a corporation, against J. A. Headlund.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

<p>1. Limitation of Actions — Statute of Limitations — Dismissal— New Action — Statute. Where plaintiff’s first cause of action for false imprisonment, brought within the year limited by Comp. Laws 1907, Section 2879, was dismissed because after a jury was impaneled it was discovered that the copy of the complaint which defendant’s counsel had obtained from the clerk’s office was not a copy of the original complaint filed and verified by plaintiff, such dismissal was not a trial on the merits, and a second action, instituted within a year 'after the order of dismissal was not barred by section 2879, in view of section 2893, providing that if any action be commenced within duo time, and plaintiff fail otherwise than on the merits, and the time limited for the same shall have expired, plaintiff may commence a new action within a year after the failure.1 (Page 555.)</p> <p>2. Appeal and Error — Harmless Error — -Instruction. In an action for false imprisonment, where there was no evidence indicating defendant was guilty of restraining plaintiff by personal violence, an instruction, correctly defining intentional restraint, and referring to restraint by personal violence, was harmless to défendant. (Page 556.)</p> <p>3. False Imprisonment — Evidence—Reasonable Value of Services. Where an agreement is made as to the price to be paid for dental work, such agreement controls, and the reasonable value of the dentist’s services, if otherwise competent, is immaterial in an action by the patient for false imprisonment by him to make her pay what he claimed she owed. (Page 556.)</p> <p>4. False Imprisonment — Enforcement of Contract Rights. Where a dentist did work for a patient for an agreed price of $33, and she claimed that the agreed price was $22, he had no right to take the law into his own hands and imprison plaintiff in his office to force her to pay the amount due him under the agreement, or to enforce any lawful rights to which he was entitled. (Page 556.)</p> <p>5. False Imprisonment — Unlawful Bestkaint. Where a dentist, claiming his woman patient owed him $33 for plate work, while she claimed that she owed only $22, kept such patient in his office, locking the door, to force her to return the plate or to pay what he claimed, he falsely imprisoned her by unlawfully restraining her liberty, and was liable therefor. (Page 557.)</p>

A. E. Pratt, Judge. Action by Ralph Hirsh and another against the Ogden Furniture & Carpet Company. Judgment granting plaintiff’s motion to strike defendant’s cost bill. Defendant appeals.

<p>Appeal from District Court of Salt Lake County, Third District; Hon. J. Louis Brown, Judge.</p> <p>Action by Bertha C. Walters against the United Grocery Company.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

A. E. Pratt, Judge. Proceedings by the State against certain intoxicating liquors, wherein Otto Meek claimed the liquors. On the appeal from the municipal court, the District Court dismissed the action. The State appeals.

<p>1. Evidence — Parol Evidence — Explaining Writings — Admissibility. In view of the fact that a deed in the form prescribed by Comp. Laws 1907, section 1981, conveys whatever appurtenances pertain to the land, where such a deed conveyed land and part of the water "flowing from a certain spring belonging to and used on the land of said grantors, ’ ’ was silent as to whether there was a ditch or right of way for ditch across grantors’ land for the spring water when the deed was executed, there was a latent ambiguity which either party could explain by parol. (Page 582.)</p> <p>2. Evidence — Evidence Admissible to Controvert Similar Evidence op Other Party — Parol Evidence — Explaining Writings. In such case, after grantee had introduced parol evidence to show the existence of a ditch and right of- way as appurtenant to his land, grantors could show a parol agreement that the right of way was for a pipe line and not a ditch.1 (Page 582.)</p> <p>3. New Trial — Affidavit—-Time to Pile. Where new trial was moved for on March 26th, it was within the discretion of the court to exclude evidence in' support thereof, where the affidavits were not filed until April 26th. (Page 583.)</p> <p>4. Appeal and Error — Error Waived by Eailure to Argue. Alleged error in overruling motion for new trial, if not argued, is waived. (Page 584.)</p> <p>5. Appeal and Error — Scope of Review — -Preservation of Exceptions. Rule of Practice 26 (33 Utah, xiii, 97 Pac. x), requiring the evidence to be set out if alleged to be insufficient, and the particulars of insufficifency to be specified being mandatory, exception, reciting, "The court erred in rendering the following finding of fact,” and setting out the finding, is insufficient, since it fails to indicate whether the error was of law or sufficiency of the evidence.2 (Page 584.)</p>

M. L. Ritchie, Judge. Action by the Calder’s Park Company against John S. Gorless, Sheriff of Salt Lake County, Wandemere Amusement Company, Mildred Smith, and Peter Smith,' her guardian ad litem, and the Utah Equipment and Storage Company. Judgment for defendants. Plaintiff appeals.

<p>1. Insurance — Life Policy — Notice or Claim of Creditor — Effect. Mere fact that general creditor of deceased served notice on insurer that assignment of policy to claimant was fraudulently made to avoid payment of the debt did not constitute any lien, claim, or right against the moneys payable under the policy nor against the insurer. (Page 597.)</p> <p>2. Indemnity — Bond — ‘‘Valuable Consideration.” Where insured’s creditors filed claim against insurer on ground that policy assigned was fraudulent, payment of the policy proceeds by the insurer was not a valuable consideration for an indemnity bond for the benefit of creditors exacted from the assignee; the filing of such claim by the creditors having created no liability against the insurer, and mere fear not being valuable consideration. (Page 598.)</p> <p>3. Action — Indemnity Bond — Suit in Equity or Law. Where insurer required bond indemnifying- it against claims of insured’s creditors who alleged that assignment of policy to- plaintiff was fraudulent the adequacy of plaintiff’s remedy at law, either as a defense in any action on the indemnity bond or in proceedings by her to recover the money deposited to secure the bondsman, did not preclude her maintaining action to cancel the bond; there being no distinction between equity and law.1 (Page 598.)</p> <p>4. Cancellation op Instruments — Restoration op Consideration. Where insurer required assignee of life policy to give indemnity bond against claims of creditors of insured, to do -which $800 of the policy was deposited as security, and the assignee sued to cancel the bond, she was not bound to restore what she had received from the policy, since if successful she would be entitled, not only to what she had received, but to the balance of the policy. (Page 599.)</p> <p>5. Cancellation op Instruments — Lack op Consideration. Where general creditors of insured filed notice with insurer that assignee of policy was fraudulent and the insurer before paying the policy required a bond indemnifying it against such claims, to secure which the assignee deposited part of the proceeds of the policy, since in fact there was no consideration for the bond, equity would intervene and afford the assignee relief by canceling the bond, though a court of equity will not inquire into the quantum of the consideration. (Page 600.)</p>

Original application for writ of mandate by the Industrial Commission of the State of Utah to compel the Daly Mining Company to furnish security for payment of compensation to employees.

A. B. Morgan, Judge. Action by Alice Furlong and others against Alma C. Tilley and others. Judgment for defendants. Plaintiffs appeal.

<p>Original proceedings in mandamus by the Denver & Rio Grande Railroad Company against the Public Utilities Commission of Utah.</p>