Volume 57 — Utah Reports

<p>1: Pleading — Actions—Sueficiency. Under Comp. Laws 1907, section 2986, requiring liberal construction of pleadings, an answer denying upon information and belief that tbe judgment sought to be set aside was obtained by fraud, and denying generally allegations not previously admitted or denied, held sufficient upon plaintiff’s motion for judgment upon the pleadings.</p> <p>2. Judgment — Setting Aside — Gbounds. The technical defense that a corporation lacked legal capacity to sue because not authorized to do business in the state, is not ground for setting aside a judgment obtained by such corporation.</p> <p>3. Abatement and Revival — Legal Capacity to Sue — Waive». Under Comp. Laws 1907, Sections 2962 and 2966, providing that plaintiff’s want of capacity to sue may be raised by demurrer or answer, and section 2967 providing that objections not taken by demurrer or answer are waived, excepting those to the court’s jurisdiction, and that complaint does not state a cause of action, failure to raise the corporate plaintiff’s lack of capacity to sue by answer or demurrer waives such objection.</p> <p>4. Judgment — Setting Aside — Grounds. A judgment will not he set aside because obtained by misstatements regarding the judgment creditor’s right to sue.1</p>

<p>1. Appeal and Error — Review—Weight oe Evidence. The Supreme Court is not authorized by the Constitution to inquire into or consider the weight of evidence.</p> <p>2. Negligence — Contributory Negligence — Instructions. A definition of contributory negligence as want of ordinary care, though abstractly correct, should be specifically. applied to the circumstances of the case.1</p> <p>3. Trial — Instructions—Issues to be Submitted. Each party is entitled to have his theory submitted to the jury if there is any evidence to sustain it. 2</p> <p>4. Trial — Instructions—Contributory Negligence. In an action for injuries, to intending passenger on a street car by movement of the car while he was boarding it where the railway alleged that the car was moving and he attempted to board it while it was in motion, it was error to refuse all instructions requesting submission of such issue.3</p> <p>6. Appeal and Error — Review—Harmless Error. Although intending passenger injured when thrown from the street car alleged only one ground of negligence, instruction that, if he proved one or more acts of negligence, he could recover, was not ground for reversal.</p>

W. Agee, Judge. * Ouster proceedings by the State, on the relation of Margaret Kay and others, against William H. Draney and others. Judgment for plaintiffs, and ^defendants appeal.

<p>1. VENDOR AND PURCHASER-BASEMENT IS AN “INCUMBRANCE.” Where a contract contemplated title free from incumbrance, an easement for a pipe line oyer the premises is an incum-brance.</p> <p>2. Vendor and Purchaser — Purchaser May • Rescind Because of Defective Title. Under Comp. Laws 1917, section 4874, an executory contract with respect to realty may not be rescinded or discharged, unless by act or operation of law, where neither party is in default without a written agreement between the contracting parties, but where the vendor was unable to convey title free from incumbrances as agreed the purchaser may, for that reason, rescind.1</p> <p>3. Specific Performance — Purchaser, Demanding Return of Money, Cannot Obtain. Where a purchaser of land, on finding the vendors unable to convey title free from incumbrance, the property being subject to an easement, notified the vendors of his rescission, and demanded return of the amount paid, he cannot thereafter, on changing his mind, obtain specific performance.</p>

D. Gall, Judge. In the matter of the estate of Wo-gin-up. From a decree of distribution in favor of See-va-pitche, Dick Crum and one Andzi, claiming to be widow of deceased, appeal.

<p>1. Damages — 'Value oe Use oe Automobile May Be Recovered. In an action for damages to an automobile, the reasonable value of the use of the car in plaintiff’s business, of which use he was deprived by the injury complained of, may be recovered.</p> <p>2. Appeal and Eebok — Authorizing Damages not Stjppoeted by Evidence held Cubed by Yebdict. Error in permitting recovery of the use value of an injured automobile, when there was no evidence of such value, does not require a reversal, where the verdict was for less than the damages to the market value as shown by competent testimony,-so that it indicates the jury allowed nothing for loss of the use of the car.</p>

Louis Brown, Judge. Action by James Metcalf, Jr., against J. W. Mellen and another. Judgment for plaintiff against the named defendant, and that defendant appeals.

<p>1. NEGLIGENCE-AUTO DRIVER’S NEGLIGENCE AND PEDESTRIAN’S CONTRIBUTORY Negligence Held Jury Questions. In an action against an automobile owner for injuries to one waiting to board a street car, into whom he backed, questions of defendant’s negligence and plaintiff’s contributory negligence held for the jury.</p> <p>2. Damages — $4,200 in Favor oe Pedestrian Against Automobilist for Crippling Injuries not Excessive. Verdict for $4,200 in favor of seventy-seven year old woman against automobile owner, who injured her, she having expended in two years nearly $1,500 for nursing, medicine, and doctor’s bills, and having been so crippled she was unable to walk, and could move around only on crutches, held not so excessive as to indicate passion and prejudice.</p> <p>3. Trial — Verdict for Injuries not Invalidated by Evidence not Objected to as to Defendant’s Insurance. In attacking verdict against him as excessive, defendant automobile owner cannot rely on the contention that the jury was influenced by testimony admitted without objection that there was an insurance policy which might or might not protect him.</p> <p>4. Appeal and Error — -In Personal Injury Case Question to Witness on Cross-examination Relative to Insurance Held Harmless. In an action against an automobile owner for injuries to an aged pedestrian, defendant cannot complain of the question asked him on cross-examination, to which objection was sustained as immaterial. “You knew you could get the extent of her injury and damages under that insurance policy up to a certain amount?”</p> <p>5. Release — Release Obtained by Fraud not Bar to ’ Action. Where defendant automobile owner, who had injured plaintiff pedestrian, an aged woman, secured her signature to her release for $200 by representing that it was merely a receipt for moneys procured from his insufer, plaintiff was not bound by the release, and could maintain action for her injuries.1</p> <p>6. Release — Right to Avoid Fraudulent Release not Lost by Failure to RetuRn Consideration. Iii personal injury action, plaintiff was not precluded from setting up fraud in defendant’s obtaining a release from her by the fact that the court did not require plaintiff to leave with the clerk the consideration of $200 paid by defendant to plaintiff for the release, which money was tendered to defendant in open court and by him refused, since it was not necessary to return the money.</p> <p>7. Appeal and Error — Presumption Jury Followed Instructions and Allowed Damages 'Without Deduction of Amount Paid tor Release. Where the $200 given defendant by plaintiff for a release procured by false representations was tendered by plaintiff to defendant in court, and the tender was refused by defendant, in the absence of anything to indicate the matter of tender was considered by the jury, the presumption is that it followed the instructions and allowed plaintiff such damages as she suffered in their judgment without deduction.</p> <p>8. Tender — ’Dependant Cast por Damages Entitled to Tendered Consideration por Fradulently Procured Release or to Credit ■ Therefor. Though plaintiff, suing for injuries, was not required to tender back the $200 received by her from defendant for a release fraudulently procured before bringing suit, where she did make the tender, and presumptively was awarded full compensation by the jury, defendant is entitled either to the $200 paid into court or to a credit for the amount.</p> <p>9. Appeal and Error — Failure at Trial to Deduct from Recovery Consideration for Fraudulent Release not Reversible Error. That a deduction on account of money paid into court, being the consideration paid by him for a fraudulently procured release from' plaintiff, was not made in defendant’s favor by the jury, nor by the trial court, does not constitute reversible error, nor deprive defendant of his rights in the premises, as. the money may be paid defendant after his appeal, or may be deducted from the judgment against him.</p> <p>10.Appeal and Error — Court Entitled to Have Erroneous Part of Instruction Pointed Out. The trial court was entitled to have pointed out to it the particular part of a sixteen-line instruction claimed to be erroneous before exception can be considered.</p>

<p>1. CORPORATION S — RIGHT OF PLEDGEE TO SELL STOCK WITHOUT Notice Waived by Indefinite Extension of Time. The right given pledgee of stock to sell it at any time without notice t'o the pledgor is one which can be waived, and which is waived, by granting pledgor an indefinite extension of time within which to sell himself, so that after such extension a sale by pledgee without notice to pledgor is a conversion thereof.</p> <p>2. Corporations — Unauthorized Sale Does Not Defeat Dien of Pledge. Though an unauthorized sale of pledged stock makes the pledgee liable for the full market or actual value of the stock, not merely the sale price, though the sale was in good faith, it does not defeat the lien of the pledgee, so that the s pledgor can recover nothing if the value of the stock was less than the amount secured by the pledge.</p> <p>3. Corporations — Tender by Pledgor Releases Pledged Property. A tender of payment by the pledgor releases the lien of the pledge so that a sale by the pledgee thereafter renders him liable for the full market value of the stock without deduction , of the lien.1</p> <p>4. Principal and Surety — Surety Not Released by Indefinite Extension Without Consideration. A surety is not discharged by an indefinite extension of time granted to the principal debtor without consideration, since such extension does not bind the creditor to refrain from exercising his right to enforce payment at any time.</p> <p>5. Principal and Surety — Surety Not Released’ by Extension Requested by Him. A surety on a note is not released by an extension of time for payment of the note, where he not only knew of the extension, but where it was granted at his own reguest.</p> <p>6. Principal and Surety — Surety has Right of Indemnity. An owner of corporate stock, who permitted it to be pledged to secure a note given by a corporation of which he was president had a right of full indemnity against the corporation in case he was required to pay the note.</p> <p>7. Appeal and Error — Findings in Law Case Supported by Substantial Evidence not Disturbed. A finding by the trial court in an action at law supported by some substantial evidence cannot he disturbed on appeal, though the Supreme Court might find differently.</p>

Original proceeding in prohibition by R. B. Cutler against the Board of Education of Beaver County School District to prohibit defendant from selling bonds of the par value of certain amount. On demurrer to petition. Demurrer overruled as to bonds in excess of specified amount, and sustained , as to' bonds to such amount, and

<p>1. Statutes — Ordinary Meaning of Words Sometimes Expanded’ ob Restricted to Reconcile Conflicting Provisions. The same words, especially if found in different statutes, may not always have the same effect, and in order to determine the purpose and intention of the lawmakers and to harmonize conflicting provisions where such occur, it at times becomes necessary for the courts to expand or to restrict the ordinary and usual meaning of words, phrases, or clauses found in a particular section or statute.</p> <p>2. Statutes — Eveey Word ob Phrase Must be Given Some Effect. Every word and phrase must he given some force and effect if possible, though the effect of the particular section or statute may thereby be enlarged or restricted as the case may be.</p> <p>3. Statutes — History of Statute and Purpose of Enactment Considered. When the language is ambiguous and doubtful, and there is doubt whether it should he applied in accordance with its ordinary meaning, or whether it should receive an enlarged or restricted construction, it is the court’s duty to look beyond the statute if by doing so it can better determine the intention and purpose of the lawmakers, and if necessary, to inquire into the history of the particular statute and consider the general purpose of the lawmakers in passing laws on a particular subject, particularly where different sections or provisions relating to the same subject-matter are conflicting or ambiguous.</p> <p>4. Schools and School Districts — Tax for School District ,oe First Class not Limited to 7 Mills on Dollar. Laws 1911, chapter 135, providing that the tax for the “support and maintenance” of schools shall not exceed five and one-half mills on the dollar, and shall not exceed one and one-half mills additional on the dollar to be used exclusively for the purchase of school sites and erection of school buildings, but that board of education in county school district of the first class shall, on specified date, furnish board of county commissioners an estimate in writing of school funds needed for ensuing year for payment of teachers, expenses of county institute, and compensation of superintendent of schools, to serve as basis for county school tax levy, did not limit school tax for districts of the first class to seven mills on the dollar, in view of the legislative history of such statute and practical construction placed thereon, and Comp. Laws 1917, sections 4597 et seq. and 4624.1</p>

H. Bramel, Judge. Action by the Western Securities Company against the Silver King Consolidated Mining Company of Utah and others. Judgment for the plaintiff against the named defendant and one other, and the named defendant appeals, and plaintiff files a cross-appeal.

C. Evans, Judge. Proceedings by Julia C. Rushton for compensation for the death of Louis J. Rushton, the employé, opposed by the Utah Copper Company, the employer. Compensation was awarded by the Industrial Commission, the award affirmed by the district court,* and the employer appeals.

<p>1. Certiorari — Application por Prohibition Treated as One eor Writ op Review, Where Pacts Admitted. The facts all being admitted, the Supreme Court may treat application for writ of prohibition against the judge of the district court of a county as one for writ of review, under Comp. Laws 1917, sections 7376, 7377.1</p> <p>2. Elections — District Court had no Jurisdiction to Order Correction op Ballots by Election Judges, Instead op County Clerk. The district court exceeded its jurisdiction or authority, under Comp. Laws 1917, section 2108, in ordering correction of the name of a candidate on the ballots to be made by the election judges, instead of the county clerk, though it was physically impossible for the clerk to make correction of the ballots within time to deliver them to the election judges on or before noon of the day preceding election; as required by statute.</p> <p>3. Elections, — Impossibility that County Clerk Correct Ballots Misnaming Candidate not Prejudicial to Her. In view of Comp. Laws 1917, section 2113, requiring that all provisions of the election laws shall be liberally construed, where correction of ballots misnaming a candidate cannot be made by the county clerk, or under his immediate supervision, in time for their delivery to the election judges on or before noon of the day preceding election,, as required by statute, no prejudice can result to the cahdidate misnamed from the ballots being cast in their incorrect form, as ballots cast for ■ her may be counted for her despite the misnomer.</p>

Tobin, Judge. Action by Margaret E. Sandall against John Eugene San-dall. Decree for plaintiff. From an order denying motion to vacate an order modifying tbe decree, tbe defendant appeals.

<p>1. Waters and Water Courses — Springs May Be Appropriated. The waters from flowing springs may be appropriated by applying the same to beneficial use just as any other unappropriated waters, 1</p> <p>2. Waters and Wateb Courses — Complaint and Evidence Should Cleably Show Appropriation. Where plaintiffs asserted that they were the original appropriators of the waters of a spring, and sought to enjoin defendant from operating an artesian well on his adjacent property on the theory that the flow of the well reduced ■ that of the spring, although the complaint sufficiently alleges appropriation as against general demurrer, the evidence should clearly show the appropriation, and whether the rights were acquired by adverse user or by appropriation while defendant’s property was still a part of the public domain.</p> <p>3. Waters and Water Courses — Prior Appropriators Should Be Protected, but Development of New Sources Should Not Be Interfered Witi-i. While prior appropriators of water should be protected, efforts to develop new and additional source of water supply should be encouraged by the courts, rather than discouraged.</p> <p>4. Waters and Water Courses — Evidence Insufficient to Establish That the Operation of Well Interfered With Plaintiffs’ Spring. Though plaintiff’s were the original appropriators oí the waters of a flowing spring which was fed by an artesian water basin, evidence of observations as to the flow of the spring and a well drilled hy defendants in adjacent property held insufficient to show that the operation of the well interfered with the flow of the spring, and additional measurements and fluctuations should he made, and the question whether other wells might cause fluctuations considered.</p> <p>5. Costs — Division of Costs on Appeal. Where a judgment for plaintiffs, the original appropriators of the waters of a spring against defendant who drilled a well in the same artesian well basin, was reversed because of the insufficiency of the measurements made by the commissioners appointed by the court, costs should be divided.</p>

<p>Appeal from District Court, Fifth District, Millard County; D. II. Morris, Judge.</p> <p>Action by Minor W. Pittman against the Delta Land & Water Company and others. From order or judgment of dismissal, plaintiff appeals.</p>

<p>Costs — Allowance of Costs for Brief Excessive in Size. On affirmance of a judgment, where respondent has filed a brief containing 46 printed pages, when a brief of 20 pages would have been ample, costs will not be allowed for the brief in excess of 20 pages.</p>

Tobin, Judge. Proceedings for mandamus by C. S. Goddard against the General Reduction & Chemical Company and others. From a judgment granting the relief prayed for, defendants appeal.

Proceeding by Martin G-roen under tbe Workmen’s Compensation Act to obtain compensation for tbe death of bis son, Dirk Croen, opposed by tbe Globe Grain & Milling Company, tbe employer, and tbe Continental Casualty Company, insurance carrier. There was an award of compensation, and the employer and insurance carrier appeal.

<p>1. Costs — Delay of Defendant in Applying- fob Security- From Nonresident Plaintiff Does Not Affect Privilege if Not Prejudicial. If defendant’s inexcusable delay in making demand for security for costs from a nonresident plaintiff under Comp. Laws 1917, § 7051, 7052, operates to the prejudice or disadvantage of plaintiff, the privilege or right should be denied; but, if the requirement of security will not be prejudicial nor operate to the disadvantage of plaintiff, mere lapse of time will not be held to interfere with exercise of the privilege accorded defendant by the statute, no matter at what state of the proceedings the application may be made.1</p> <p>2. Costs — Defendant’s Demand fob Security From Nonresident Plaintiff Held Timely. Defendant’s demand for security for costs from the nonresident plaintiff when made March 29, 1920, held clearly as to time within the right and privilege accorded defendant by Comp. Laws 1917, §§ 7051, 7052, though the action was begun January 21, 1918, and in the meanwhile had been remoyed by defendant from the state to the federal court and remanded back to the state court.</p> <p>3. Costs — Dismissal for Noncompliance With Demand bob Security When Plaintiff Indicated it Would Fübnish Bond Improper. Where the nonresident plaintiff, after service with notice that defendant would move the trial court for dismissal of the action for noncompliance with defendant’s demand for security for costs, desired to question and did question the right of the court to award judgment of dismissal, and indicated to the court, if it should rule against plaintiff, that plaintiff desired to furnish the security applied for, the court erred in summarily dismissing plaintiff’s action before affording her opportunity to provide defendant with security bond for costs.</p> <p>4. Appeal and Error — Costs—Matter oe Dismissal oe Nonresident Plaintiee’s Action fob Failure to Furnish Security foe Costs Discretionary. The matter of dismissing the non-resident plaintiff’s action for failure to furnish security for costs on defendant’s application under Comp. Laws 1917, § 7052, rested in the sound discretion of the trial court, and was not to be interfered with by the Supreme Court except in case of abuse.</p>

Action by the Spring Canyon Coal Company, the employer, and others, against the Industrial Commission of Utah, to review its award of compensation under the Industrial Act in favor of Irvin Wimber, the employé. Tbe authorities cited in plaintiff’s brief were: In re Maranovitch, 65 Ind. App. 489, 117 N. E. 530; Stefan v. Red Star Mill & Elev.

<p>1. Pleading — Allowance os' Trial Amendment Proper. Where defendants requested no continuance, and no prejudice appeared, it was not an abuse of the trial court to allow plaintiffs at commencement of trial to amend the complaint by changing the averment as to tender.</p> <p>2. Costs' — Vendor and Purchaser — Where Defendants Repudiated Contract, There Can be no Recovery oe Loss or Interest. Where defendants refused to accept payment pursuant to an agreement for the sale of land, etc., and if defendants had accepted there would have been no claim for interest and no costs incurred, defendants cannot, in an action by plaintiff, recover costs or interest.</p> <p>3. Vendor and Purchaser — Where Defendants Repudiated Contract, Formal Tender is Unnecessary. Where defendants re- ■ pudiated a contract for the sale of lands, and announced that they would not accept, such conduct was a waiver of formal tender.1</p>

Original proceeding by Ogden City against the Industrial Commission of Utah to review an award under the 'Workmen’s Compensation Act in favor of John Smalley and Alice Smalley, his wife, on account of the death of their minor son, Albert G. Smalley, a special policeman employed by Ogden City.

<p>1. ADULTERY-PROOF OE MARRIAGE Held Sufficient. While a stricter proof of marriage is required in criminal than in civil cases, testimony in an adultery case by the woman as to the place and date of marriage, of living with her husband, etc., and to his absence 'and return, held, sufficient.</p> <p>2. Cbimibai Law — Testimony oe Accomplice Need Not Be Corroborated on Every Material Point. While proof of marriage is material in a prosecution for adultery, it is not necessary, where the woman testified as to her marriage, that she be corroborated as. to that point, although she was an accomplice, and conviction could not be based on her uncorroborated testimony; for it is not essential that the corroborating testimony be sufficient of itself to support a conviction, or that the testimony of an accomplice be corroborated on every material point.</p> <p>3. Criminal Law — Evidence Held to Soeeiciently Corroborate Female Accomplice. In a prosecution for adultery, where the woman testified, held that in view of the inculpatory statements of the defendant there was sufficient corroboration so as to warrant conviction, notwithstanding Comp. Laws Utah 1917, § 8992, declaring that a conviction shall not be had on the testimony of an accomplice unless she is corroborated.1</p> <p>4. Marriage — Marriage oe 16 Year Old Female Not Void. Under Comp. Laws Utah 1917, § 2967, a marriage of minors, where the license is issued without the written consent of the parents or guardians, is not void unless the male is under 16 or the female under 14, hence the marriage of a female minor of 16 is not void, and the fact of her nonage is not defense in a prosecution for adultery.</p> <p>5. Criminal Law — New Trial on Ground oe Newly Discovered Evidence Refused, Where no Continuance Requested. In a prosecution for adultery, where the stepfather of prosecutrix testified as to the alleged inculpatory statements made by defendant in a conversation with him, a new trial will not be allowed on a motion supported by the affidavit of one present at such conversation, who denied the statements testified to, notwithstanding accused claimed that he was surprised hy such testimony; it appearing that though he knew such person was present, and such person was within 30 miles of the place óf trial, there was no request for a continuance or postponement on the stepfather giving his testimony.</p>

II. Morris, Judge. Frank Talarico was convicted of assault with a deadly weapon, with intent to commit bodily harm, and he appeals.

B. Gall, Judge. Action by W. D. Fitzgerald, doing business under the name Sevier Real Estate Agency, against Margaret Boyle and another. From a judgment of dismissal, plaintiff appeals.

<p>Appeal from District Court, Third District,. Salt Lake County; P. G. Evans, Judge.</p> <p>Action by Agnes M. Merrill against Charles Eugene Coon and wife. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Second District, Weber County; A. W. Agee, Judge.</p> <p>Action by Dan B. Bozo against the Central Coal & Coke Company. Judgment for defendant, and plaintiff appeals.</p>

Proceeding before tbe Industrial Commission by Clyde L. Knighton, employee, opposed by tbe Utab Fuel Company, employer, and its own insurer. An award was made, and tbe employer brought this original proceeding against tbe Industrial Commission to review the award.

<p>1. Bbokers — 'Evidence Held to Prove Compensation ‘Agreement Claimed by Broker. In action for services rendered by plaintiff in tbe sale of defendant’s cattle, evidence held to sustain a finding that defendant agreed to pay plaintiff a difference between tbe purchase price and the original cost of tbe cattle living at tbe time of tbe contract, with expenses to date of sale, and that tbe cost of tbe cattle that bad previously died was not to be considered, as claimed by defendant.</p> <p>2. Payment — Indorsement oe Check Not Cashed Held Not an Acceptance as Payment. Where a creditor received tbe debtor’s check for a portion of tbe amount claimed, but indorsed thereon tbe words, “Received on account of commission,” and was unable to cash it by reason of such indorsement, be did not accept tbe check in full payment.</p>

Proceedings under tbe Workmen’s Compensation Act by Louis Littsos for additional compensation from tbe Hansen Live Stock & Feeding Company. Petition denied by the Industrial Commission, and applicant brings certiorari.

<p>1. LICENSES-INSTRUMENT CONSTRUED AS GRAZING PERMIT, AND NOT Lease. An instrument, whereby plaintiffs agreed to “lease a grazing permit” to defendant for defendant’s sheep, was not a lease of the land itself, but simply a permit to graze certain sheep on the land.</p> <p>2. Licenses — Grazing Permit Not Necessarily Exclusive. A grant of the right to graze sheep on lands of the grantor is not, as a matter of law, an exclusive permit, but may be a right in common with others, or an exclusive right according to the conditions existing at the time and the circumstances attending the granting of the permit.</p> <p>3. Pleading — Reply that Grazing Permit Sued on was not Exclusive Held Proper. "Where, in an action for the agreed consideration under a grazing permit, defendant alleged that the lands covered by the' permit were occupied by other parties, and defendant was thereby prevented from occupying them, a reply, alleging defendant’s knowledge of the granting of a permit to other parties, and that the permit to defendant was subject to such prior permit, was proper under Comp. Laws 1917, '§ 6590, stating when there may be a reply.</p> <p>4. Pleading — Defendant Entitled- to Disprove Allegations of Reply Without Pleading Thereto. Defendant, without pleading to the reply, has a right to controvert it and circumvent its effect by any competent and material evidence within his ability to furnish.</p> <p>5. Appeal and Error — Denial of Motion to Strike Reply not Prejudicial in View of Defendant’s Proof. Defendant was not prejudiced by the denial of his motion to strike plaintiff’s reply, where he was permitted to prove every fact that he could have proved if the same matter had been pleaded in the complaint.</p> <p>6. EVIDENCE — GRAZING PERMIT HELD AMBIGUOUS AS TO EXCLUSIVENESS so as to Authorize Parol Evidence. Where an instrument whereby plaintiffs leased a grazing permit to defendant for a band of sheep contained a latent ambiguity as to whether the permit was exclusive or in common with other parties, evidence as to the understanding of the parties at the time it was executed was admissible, as it did not vary or alter the meaning, but tended to explain the sense in which the terms of the instrument were understood.1</p>

<p>1. Evidence — on Issue Whether Seller Retained Title that He Retained Title in Prior Dealings not Admissible. Testimony of furniture salesman that seller in prior dealings with buyer retained titles held not admissible to prove retention of title in subsequent sale to such buyer; there being no necessary or logical connection between the prior dealings and the later sales.</p> <p>2. Sales — Buyer’s Signature to Delivery Slips Held Insueei-oient to Establish Conditions oe, Sale. /Buyer’s signature to delivery slips containing words: “Conditional sale. • Title retained by W. [seller] until paid in full” — held insufficient to establish a conditional sale in absence of proof that buyer read the delivery slip or that his attention was called to the stipulation that title should remain in seller; such delivery slip not constituting the contract between the parties.</p> <p>3. Sales — 'Minds Must Meet to Create Conditional Sale Contract. An undisclosed intent of the seller is not of itself sufficient to make delivery conditional, and in order that there may be a conditional sale and the title retained by the seller, the minds of the parties, must meet, unless the contract be executory for an article to be manufactured, in which case, under Uniform Sales Act, Comp. Laws 1917, §§ 5114, 5123, and 5129, title does not pass prior to the appropriation of the goods to the contract, and at the time of the appropriation the seller may reserve the right to possession or the right of property until certain conditions have been fulfilled.</p>

<p>Appeal from District Court, Third District, Salt Lake County; J. Louis Brown, Judge.</p> <p>Action by R. G-. Wilson against the Salt Lake County Corporation. Judgment for plaintiff, and defendant appeals.</p>

Proceedings under the Industrial Act to recover compensation for the death of Gaetano Parone, employé, opposed by the Utah Consolidated Mining Company, employer, and the Bankers Trust Company, as receiver for the Guardian Casualty & Guaranty Company. An award was made to For-tunata Parone, decedent’s widow, a rebearing was denied, and the employer and the receiver bring writ of review. Awabd vacated and commission directed to deny petition for compensation.

<p>1. New Trial — Decision of Court Without Jury Dates Prom Piling, as Affecting Time to Move tor New Trial. Comp. Laws ÍL917, § 6980, requires motions for new trial to be made within five days after decision of court or referee in a npn-jury case, and there is no decision in such case until the findings of fact and conclusions of' law are signed by the judge and lodged with the clerk for filing, unless the same are expressly waived, and notices served on counsel before such filing were premature.</p> <p>2. New Trial — Notices of Presentment of Findings and Judgment for Signature Held Insufficient as Notices of Judgment. A notice that on a certain day plaintiff would present his findings of fact and conclusions of law and judgment to the judge for approval and signature, and a later notice that the findings and judgment were with the judge and had not been filed with the clerk, were insufficient as notices of a judgment rendered.</p> <p>3. New Trial — Notice of Judgment Must be Written and Positive That Decision Has Been Rendered. While no particular form is required for notice of judgment, it must he in writing and positive as to the fact that a decision has been rendered; otherwise it is insufficient.1</p> <p>4. New Trial — Where no Notice oe Decision was Given, Defendants Could Move for a New Trial at ant Time Before Appeal Right Expired. Where notices of judgment served on defendant were illegal and of no effect, so that there was no notice of decision, the defendants could move for new trial at any time before their right of appeal expired.2</p>

<p>1. Bills and Notes — Method oe Transfer oe Note Through Foreign Corporation Which Has Failed to Comply With State Law Immaterial. ]¡n determining whether Comp. Laws 1917, § 947, relating to the right of a foreign corporation which has failed to comply with the state law to hold title to property, applies to a note, it is immaterial whether plaintiff has received the note through indorsement hy such a corporation, or whether he has received it hy delivery, for the method or medium of transfer will be disregarded in determining plaintiff’s right to recover on an instrument transferred to him by such a corporation.</p> <p>2. CORPORATIONS-STATUTE AS TO RIGHT OF NONCOMPLYING FOREIGN Corporation to Sue or Acquire Title to Property Must be Given Effect. Comp. Laws 1917, § 947, providing that a foreign corporation which has failed to comply with section 945 shall not be entitled to benefit of the laws relating to corporations, and shall not be allowed to sue,, or acquire or hold title to property, and that every contract or transfer made by it shall be wholly void, as to the corporation or its assigns, etc., is susceptible of only one construction, and, the statute being self-construing, the court has no other duty than to give it effect.1</p> <p>3. Bills and Notes — Holder of Note Through Indorsement by Foreign' Corporation Failing to Comply With State Law Held not Entitled to Recover. Where a defendant had executed certain notes payable to himself, indorsed them in blank, and delivered them to a foreign corporation, which has failed to comply with Comp. Laws 1917, § 945, requiring the filing of articles of incorporation and designation of an agent, for service of process, and such corporation before maturity for a valuable consideration transferred the notes by indorsement to plaintiff, plaintiff held not entitled to recover thereon in view of section 947, forbidding a corporation failing to comply with the state law from holding title to property, and making its transactions void as to persons deriving title therefrom, notwithstanding Negotiable Instruments Law (Comp. Laws 1917, § 4091), relating to the right of a holder in due course, and section 4094, providing that the maker of an instrument engages that he will pay it according to its tenor admitting payee’s then capacity to indorse.</p> <p>4. Statutes — Apparent Conflict Between Two Statutes Must be Harmonized if Possible — Otherwise Later Enactment Will be Regarded as Exception to First. When there is an apparent conflict between two statutes, the court must, if pos- ' sible, harmonize or reconcile such conflict, but if that cannot he done, the later statute will he regarded as an exception to or qualification of the prior' enactment.</p>

<p>Original prohibition proceeding by George B. Brinkerhoff against V. Emery King and others, as the School Board of Wayne County, Utah.</p>

Original proceeding by tbe Bonneville Irrigation District for mandamus to compel Joseph Ririe, Auditor of tbe State of Utab, to certify certain bonds authorized and issued by plaintiff.

<p>1. Tbial — Motion for Nonsuit Should Be Specific. A motion ior a nonsuit should be specific, and a motion stating that the evidence fails to show negligence or carelessness is too general to be considered.1</p> <p>2. Appeal and Error — Motion for Nonsuit Treated as Sufficient When so Treated by Parties. Where both parties treated a motion for nonsuit as sufficient, the Supreme Court will treat it as sufficiently specific.</p> <p>3. • Trial — Testimony Viewed Favorably to Plaintiff on Motion for Nonsuit. For the purposes of a motion for a nonsuit, the testimony must be viewed in the light most favorable to plaintiff.</p> <p>4. Carriers — Permitting Loose Gravel on. Platform Held to Make Question for Jury as to Negligence. In an action against a railroad company for injuries to a passenger caused by gravel on the platform slipping under her foot, evidence that loose gravel had been placed on the platform next to the track shortly before the accident made a question for the jury as to the company’s negligence whether or not the platform itself without such gravel, was reasonably safe.</p> <p>5. Carriers — Contributory Negligence of Alighting Passenger . Held Question for Jury. Whether a passenger who was injured when gravel on a platform slipped under her foot as she was alighting was negligent was a question of fact for the jury, though she had bundles in her arms, stepped down without asking for help, and did not take hold of the railing, where she testified that, because of her dress, she could not see the loose gravel on the platform. 2</p> <p>6. Carriers — Alighting Passenger not Required to Search for ' Obstacles. Unless a railroad platform was obviously dangerous, an alighting passenger had a right to assume it to be safe, and was under no obligation to search for loose gravel or articles on which she might step and fall.</p> <p>7. CARRIERS-CONFLICTING EVIDENCE AS TO CONDITION OF PLATFORM Does not Justify Directed Verdict. In an action for injuries sustained by an alighting passenger, evidence for defendant that no loose gravel had been deposited on the platform as claimed did not justify a directed verdict when in conflict with the testimony for plaintiff.</p> <p>8. Carriers — Evidence of Prior Use of Stool for Alighting Passengers Held Admissible for Limited Purpose. In an action for injuries to an alighting passenger, evidence of the use. of a footstool on prior occasions held admissible, when limited to its bearing on whether defendant in exercise of ordinary care was under the duty of providing such stool.</p> <p>9. Evidence — Opinion as to Whether it was Safer for Passenger to Alight With or Without Footstool Held Inadmissible, In an action for injuries to an alighting passenger, testimony of a railroad conductor as to whether it was safer to discharge passengers by having them step a distance of 17 inches or step upon a footstool, and whether in the use of a footstool there was danger of the stool tipping and throwing the passenger down, was properly excluded, as these questions were peculiarly within the province of the jury to decide.3</p> <p>10. Carriers — Similar Accident not Admissible to Show Notice. In an action for injuries to an alighting passenger whose evidence showed the deposit of loose gravel on the platform, evidence that another passenger nearly fell, or that the gravel was loose and slid from under her foot, was not admissible to show notice, as it was the duty of the carrier to know the condition of the platform and it was not entitled to notice.</p> <p>11. Carriers — Similar Accident Held Admissible to Describe and Characterize Condition of Platform. In an action. for injuries to an alighting passenger caused by loose gravel slipping under her foot, the testimony of another passenger that on the same occasion the gravel slid from under her foot, and she almost fell, was admissible to describe and characterize the condition of that part of the platform where plaintiff fell at the time.4</p> <p>12. Carriers — Absence of Similar Accidents Subsequent to In-juey not Admissible. In. an action for injuries sustained hy an alighting passenger when loose gravel slipped under her foot, evidence that during the 16 months following the injury over 50,000 passengers alighted at such platform without injury was properly excluded, as, aside from the dissimilarity of conditions, it would have had no tendency to prove that there was no loose gravel that slipped under plaintiffs foot, resulting in a fall and injury.5</p> <p>13. CAEBIEES — INSTBUCTION DESCRIBING ACT AS CARELESSLY AND Negligently Done not Misleading. An instruction that if defendant stopped its car for the purpose of permitting passengers to alight, and if it had “carelessly and negligently permitted loose gravel and earth to be placed and remain below the steps of the car,” etc., was not misleading, as describing the permitting the loose gravel and earth to remain on the platform as negligence and carelessness.</p> <p>14. Trial — Instructions to be Considered Together. The instructions must be considered and interpreted together, and the singling out of a particular instruction or a particular sentence or phrase from its context for the purpose of giving it a meaning that cannot be gathered from the instructions when considered as a whole is not allowable.</p> <p>io. Carriers — Surrounding Circumstances Properly Considered in Determining Whether Reasonably Safe Place to Alight was Furnished. In an action for inquries to an alighting passenger, where the evidence regarding plaintiff’s age and weight and the bundles she was carrying and the height of the step from the ground was without conflict, it was proper for - the jury to consider such matters and all circumstances and conditions as they found them to be at the time and place of the accident, in determining whether defendant furnished a reasonably safe place to alight.</p> <p>16. Trial — Instruction to Consider Passenger’s Age and Condition in Determining Sake Place for Alighting Held not on ■Weight of the Evidence. In a passenger’s action for injuries, an instruction that in determining whether defendant furnished plaintiff a reasonably safe place to alight the jury should consider plaintiff’s age and condition, what bundles she was carrying, if any, the distance of the lower step from the ground, and the condition of the ground at the place of alighting, was not objectionable as a charge on the weight of the evidence.</p> <p>17. CARRIERS-INSTRUCTIONS NOT ERRONEOUS AS SUBMITTING MATTERS not in Dispute. In a passenger’s action for injuries, an instruction that she had a right to assume, in alighting, unless she was notified or observed, or by ordinary care would have observed the contrary, that defendant had exercised reasonable care, etc., was not erroneous as submitting to the jury uncontradicted matters as to what plaintiff observed, where, though she' testified to all of the conditions, she also testified that before alighting her dress prevented her from seeing the platform.</p> <p>18. Appeal and Error — Carriers—Instructions Omitting Qualifying Words Held not Misleading or Ground for Reversal. In a passenger’s action for injuries, an instruction requiring defendant to exercise the reasonable diligence, care, skill, etc., that a careful, prudent man would exercise was not misleading or ground for reversal, even assuming that the .words “careful, prudent man’’ should' have been qualified by the word “ordinarily” or “reasonably.”</p> <p>19. Carriers — Duty - as to Keeping Platforms and Approaches Safe Stated. Railroad companies are bound to keep in a safe condition all portions of their platforms and approaches thereto, to which the public do or naturally would resort.</p> <p>20. Damages — Instruction Including Element of Which There was no Evidence Held not Misleading. In an action for injuries, an instruction to allow plaintiff all reasonable and necessary expenses paid or incurred for nursing and medical expenses, etc., was not misleading, though there was no evidence of anything paid for nursing, and though technically the court erred in referring to such matter, as the jury knew What the evidence was and knew that nothing had been paid for nursing, 6</p> <p>21. Damages — Evidence of Payment Prima Facie Evidence of Reasonableness of Physician’s Charges. Evidence that services of physicians were necessary for the treatment of an injured person, and that their bills had been paid, made a prima facie case that their charges were reasonable.</p> <p>22. Damages — Evidence of Amount Paid Some Evidence of Reasonableness of Automobile Hire. The amount paid for hire of an automobile to carry an injured person to her home was some evidence of reasonable value, and absence of direct evidence as to the reasonableness of the charge of $8 did not require a reversal of a judgment for $2,999.</p> <p>23. Trial — Counsel’s Reference to Element oe Damages Ex-OLXJDEO BV COURT HELD CUBED BY INSTRUCTION AND REPRIMAND. Though in an action for injuries of such a nature as to necessarily prevent plaintiff from following her usual vocation for some time counsel should have accepted the court’s ruling that impairment of plaintiff’s means of earning a livelihood was not in issue because not pleaded, the act of counsel in again referring to such element of damage was not such flagrant misconduct as called for anything more than an instruction to the jury not to consider such element of damage and a reprimand to counsel.7</p>

<p>1. Brokers — Stockbroker Who Sold Customer’s Stock and Advanced Price to Him: Cannot Recover Therefor From Purchaser. Where plaintiff stockbroker was solicited to sell stock by a customer, and did so to defendant’s agent, selling the customer’s stock and not his own, he cannot recover from defendant the price of the stock because he advanced the price less his commission to his customer, plaintiff broker not having purchased his customer’s stock, the doctrine applying that in an action hy an agent for an undisclosed principal on a contract, made by an agent in his own name, any defense good against the principal is available against the agent.</p> <p>2. Brokers — Stockbroker in Making Sake eor Customer Can Act Only as Agent. In making sale of a customer’s stock, a stockbroker legally can act only in one capacity, that of agent, though whenever the agency has been executed the relationship of agent ceases.</p> <p>3. Frauds, Statute oe — Statute Applies to Transactions Involving Stocks. The statute of frauds applies to transactions involving the purchase and sale of stocks.1</p> <p>4. Frauds, Statute oe — By-law oe Stock Exchange not a “Waiver” by Broker oe Right to Set up Statute. By-law of stock exchange, in which both plaintiff and defendant brokers acted, providing it was the duty of the seller of shares to deliver them to the purchaser or such other broker as he might designate at his office, etc., held not to have constituted a waiver by defendant stockbroker of right to set up the statute of frauds as a defense when sued for the purchase price of stock sold him by plaintiff broker; “waiver” being the Voluntary relinquishment of a known legal right implying an election to dispense with something of value or forego some advantage which the party waiving might have insisted upon (citing Words and Phrases, Second Edition, Waiver) 2</p>

<p>1. Adverse Possession — Facts Held not to Snow That Defendant Obtained and Retained Land by Fraud. In ejectment, plaintiff’s contention that defendant, claiming by adverse possession under a tax deed, had obtained and retained possession of the land by fraud, held not sustained by the record.</p> <p>2. Mortgages — Rule of Possession and Improvement by Mortgagee not Applicable, Where He Claims by Adverse Possession Under Tax Deed. The administrator’s contention that mere possession and improvement by the defendant mortgagee,. who took possession before breach of condition and with permission, cannot constitute adverse possession until after maturity or breach of condition, does not apply where defendant relies solely on adverse possession, founded on a county tax deed.</p> <p>3. Adverse Possession — Defective Tax Deed Gives Color of Title. A tax deed, even though defective, is sufficient to give color of title.1</p> <p>4. Limitation of Actions — Appointment and Discharge of Administrator Insufficient to Set Statute in Motion. Where an administrator was appointed, and discharged without filing an inventory or taking any steps to protect the interests of the heirs, as the statutes require, the administration is a nullity, and is insufficient to set the statute of limitations in motion against those interested in the estate in favor of one holding land adversely.</p> <p>5. Limitation of Actions — Title not Obtained as Against Heirs Under Disability. A record disclosing that defendant purchased tax deed from the county and immediately entered into possession, and has paid taxes each year since for the required time and made valuable improvements, holding openly and notoriously, held to establish title by adverse possession against all parties except those under disability, not attaining their majority at a date more than two years prior to the com-meneement of the action, in view of Comp. Laws 1917, § 6463; defendant being entitled to have title quieted, except as to heirs under disability.</p> <p>On Rehearing.</p> <p>6. Executors and Administrators — Claim and Expense of ADMINISTRATION PAYABLE OUT OF ESTATE RECOVERED AS BELONGING to Minor Heirs. In an administrator’s ejectment action, where title was quieted in defendant, holding by adverse possession under tax deed as against all heirs except those under legal disability, whose shares passed to the administrator, held, that a claim against the estate, as well as the necessary expenses of administration, should be paid out of the estate.</p> <p>7. Ejectment — Defendant Chargeable With Reasonable Rental Value, not Income Received. In an administrator's ejectment action, where title was quieted in defendant, except as to the shares of certain minor heirs, the defendant is chargeable on such shares with the reasonable rental value during such possession, and not the income actually received.</p>

W. Agee, Judge. Action by J. P. Russell against the Bothwell & Swaner Company and others to foreclose a mechanic’s lien. Judgment for plaintiff, and defendants appeal. Remanded to the district court, with directions to correct its findings of fact and judgment, and in othee respects

<p>Application for writ of mandamus by tbe Silver City Mercantile Company against the District Court of Utah County and others.</p>

N. Hayes, Judge. Action by Joseph Van Natta against David L. Heywood, administrator of the estate of Joseph McCullough, deceased, and others. Judgment for plaintiff;, and defendants appeal.

<p>1. Railroads — Sheep Herdek Help Guilty or Contributory Negligence PRECLUDING RECOVERY EOE INJURIES TO ANIMALS. A herder in charge of a flock of 2,000 sheep grazing on the public domain, who attempts to drive the sheep across a railroad at a place other than a public crossing, when he knows a fast passenger train is overdue, is guilty of contributory negligence proximately causing injury to the animals, so as to preclude recovery therefor hy the owner.</p> <p>2. Railroads — Not Required to Keep Lookout for Sheep Crossing Track on Public Domain. Though sheep grazing on the public domain are not trespassing when they cross a railroad track at a place other than a crossing, the railroad company has the exclusive right to the use of its tracks at that point, and the herder is at most a mere licensee to whom the company owes no duty to keep a lookout.</p> <p>3. Appeal and Error — Defendant Cannot Complain Verdict Was for Less Than Evidence Would Justify. Defendant cannot complain that the verdict for plaintiff was for little more than half the amount which the evidence as to the value of the sheep killed would justify, though there was no evidence on which the particular verdict could be based, so that it indicated an attempt hy the jury to divide the loss.</p>

<p>1. Frauds, Statute of — -Evidence Held not to Show Written Agreement. In an action for specific performance of a contract for the sale of the land, evidence held neither to show that the sale agreement was signed by the owner, nor that the party acting as agent had written authority to contract for the sale as required by the statute of frauds.</p> <p>2. Specific Performance — Not Granted Where Contract Invalid Under Statute of Frauds. In view of Comp. Laws 1917, §§ 5811, 5817, relating to employment of real estate brokers, and section 5813, making contracts void unless in writing and subscribed by vendor or his lawful agent, in the absence of evidence showing written authority of an agent or proof that the writing was signed by vendor’s lawful agent, and also in the absence of equities taking the case out from under such statute of frauds, specific performance cannot be granted.1</p>

G. Evans, Judge. Suit by the State, on the relation of Eoy M. Bennett, for recovery of an award of compensation under the Workmen’s Compensation Act by the Industrial Commission, against the American Express Company. From a judgment for defendant, plaintiff appeals.

W. Agee, Judge. Action by the Pingree National Bank of Ogden, Utah, against Archie McFarland and R. D. Rogers and others, co-partner® doing business under the firm name of the Western Live Stock Commission Company. From judgment for plaintiff, defendant McFarland appeals.

<p>Appeal from District Court, Third District, Salt Lake County; P. C..Evans, Judge.</p> <p>Action by Elizabeth D. Pettit and others against John Neels Clawson, as administrator of the estate of Spencer Clawson, deceased. Judgment of dismissal, and plaintiffs appeal.</p>

<p>1. Evidence — Matter oe Common Knowledge That Hundreds or Farmers Use Water From Streams or State. It is a matter of common knowledge that on the various streams of the state there are hundreds of farmers and others using water therefrom, many of them with rights recognized without question for more than a half century.</p> <p>2. Waters and Water Courses — First Appropriator Has Better Bight Than Subsequent Appropriator. The first appropriator of any unused or unappropriated waters of the streams of the state has a better right than any subsequent appropriator.</p> <p>3. Watebs AND Water Courses — Applicant por Appropriation op Waters not Required to Establish Fact as to Existing Rights. Persons claiming water in stream cannot be affected by any decision of the state engineer on application for an appropriation of alleged unappropriated waters when they are not before the engineer and have asserted no claim adverse to the interests of the applicant, and hence the applicant cannot be required by the state engineer to go into court and judicially establish the fact that there are unappropriated waters every time there may be a conflict or question between the applicant and the state engineer upon such fact, under Laws 1919, c. 67, Comp. Laws 1917, §§ 3454, 3455, 3451, 3542, 3543, and where the state engineer rejected an application merely because he was of the opinion that there were no unappropriated waters in the stream in question, the applicant could proceed against him by petition under Laws 1919, c. 67, § 65, without making other users of water on the stream parties; no protests having been filed.</p> <p>4. Action — Form or Name oe, Action Immaterial. The form or the name of an action is wholly immaterial.</p> <p>5. Courts — District Courts Have Original Jurisdiction in All Matters not Excepted by Constitution. Under Const, art. 1, § 11, and Comp. Laws 1917, § 1667, district courts have original jurisdiction in all matters civil and criminal not excepted by the Constitution, and not prohibited by it, and are open to all litigants for the redress of grievances, or the enforcement of rights.</p> <p>6. Waters and Water Courses — Applicant Entitled as Matter oe Legal Right to Have Application Approved ie Unappropriated Water Exists. An applicant to the state engineer for an appropriation of unappropriated water of a stream, who complied with Comp. Laws 1917, §§ 3542, 3543, 3451, 3454, 3455, 3459, and Laws 1919, c. 67, is entitled as a matter of legal right to have his application approved and allowed if unappropriated water exists.</p> <p>7. Waters and Water Courses — Applicant eor Appropriation Held Entitled to be Heard in District Court. Where an applicant to the state engineer for appropriation of alleged unappropriated water complied with Comp. Laws 1917, §§ 3542, 3543, 3451, 3454, 3455, 3459, and Laws 1919, c. 67 and alleged that there was unappropriated water in the stream in question, and the. state engineer without any hearing rejected the application merely by reason of his opinion that there was no unappropriated water, the applicant had a right to petition the district court under Laws 1919, c. 67, § 65, to require the engineer to approve the application, on showing that there existed unappropriated waters.</p>

Tobin, Judge. In the matter of the estate of Henry. Reiser, deceased, wherein the estate seeks to withhold from the estate of Albert S.' Reiser, deceased, a distributive share. From judgment adverse to the claimant estate, it appeals.

<p>1. Attachment — By Giving Redelivery Bond, Defendant Does not Waive Right to Damages fob Wrongful Attachment.' Under Comp. Laws 1917, §§ 6704, 6706, 6707, 6725, 6726, by giving redelivery bond, and thus repossessing himself of his property, a defendant does not waive his right to damages if the attachment was wrongfully sued out and he was wrongfully dispossessed.</p> <p>2. Attachment — Counsel Fees Incurred in Successfully Defending Attachment Suit not Recoverable. Under Comp. Laws 1917, §§ 6704, 6706, 6707, 6725, 6726, in an action against principals and sureties in a certain undertaking in attachment to recover damages for an alleged wrongful suing out of the attachment against plaintiff and for wrongfully attaching certain of its property, plaintiff could not recover counsel fees incurred in successfully defending the attachment suit; it not having been required to pay such fees or other costs in having _ the attached property released from the attachment.</p> <p>3. • Malicious Prosecution — Damages Recoverable foe Attachment Instituted Maliciously Without Probable Cause. If a plaintiff is actuated by malice and acts without probable or any cause in bringing an action, and is guilty of oppression in suing out attachment, defendant may obtain relief in a proper. proceeding against such malice and oppression, and may recover not only his actual damages, but exemplary damages as well.1</p> <p>4. Costs — Costs Should not be Allowed, Except Where Provided by Statute and Permitted by Long Usage. Courts should refrain from allowing the imposition of costs and expenses on the losing party, except such as are provided for by statute and such as by law and usage have been allowed in certain cases as necessary for the protection of legal rights.</p> <p>5. Attachment — Court in Action for Wrongful Suing Out did not Err in Allowing Legal Interest. In an action on the undertaking to recover damages for wrongful, suing out of an attachment, the district court did not err in allowing legal interest.2</p>

<p>Application by Marie Purcell for a writ of mandate to Hon. W. H. Wilkins, as Judge of the City Court of Salt Lake City, Utah, and others.</p>

Tobin, Judge. In the matter of the estate of Charles W. Listman, deceased. Petition by Bertha L. Listman for order requiring John P. J. Schneider, decedent’s executor, to render an account and report of his administration of the estate, petitioner and others objecting to the account as rendered. From judgment for petitioner and others, the executor appeals.

Proceedings under the Workmen’s Compensation Act (Comp. Laws 1917, tit. 49, as amended by Laws 1919, c. 63), by George 'Doscolos, employé, against the Standard Coal Company, employer, and the State Insurance Fund, insur-anee carrier. From an order of the Industrial Commission refusing further'compensation to the employé, the employé appeals.

<p>Guaranty — Guarantors Held Liable tn Direct Suit Without Making the Principal a Party. Where defendants guaranteed payment for goods sold to another and agreed that on failure to make payments plaintiff should be entitled to bring action directly against the guarantors without exhausting remedies against the debtors, a direct action without making the debtors parties was warranted, particularly in view of Comp. Laws 1917, § 6511, providing that persons severally liable may all, or any of them, be included in the same action at the option of plaintiff.</p>

<p>Railroads — Coupon Notes Held Seoueed by Teust Indentuee, and so Enforceable Only by Foreclosure. Convertible improvement notes of a railroad company, together with attached interest coupons, held, in view of trust agreement therein referred to, secured by trust indenture referred to in the agreement, so that under Comp. Laws 1917, § 7230, as well as hy provision of the indenture, the debt evidenced by the coupons could be enforced only by foreclosure proceedings.1</p>

<p>1. Bawks and Banking — Certificate of Deposit Subject to Same Rules of Law as Other Written Instruments. A certificate of deposit, being an instrument in writing evidencing a transaction between tbe parties, must be considered in tbe light of tbe same rules of law and evidence as other written instruments.</p> <p>2. Banks and Banking — -Interest Held not Recoverable on Certificate of Deposit After Maturity. Where a certificate of deposit for six-month period expressly provided that interest should not be payable after maturity, interest could not be recovered after expiration of such six-month period.</p> <p>3. Banks and Banking — -Time for Which Interest was Payable Under Certificate of Deposit Held Question for Court. In an action against a bank to recover interest on certificate of . deposit, the question of whether the certificate of deposit limited the time for which interest should he paid to specified period held a question for the court, and not the jury.</p> <p>4. TbIAL-LEGAL EFFECT OF WRITTEN InSTRUMETNS IS TO BE DETERMINED by the Court and not a Juey. The legal effect of written instruments is a question of law to he determined hy the court, even where the facts respecting the terms of the written instruments are in dispute, as where the instruments had been lost, in which case the jury may find what the terms of the instrument were, but the legal effect of the terms so found should be determined by the court.</p> <p>5. Banks and Banking — Submission of Issue Whether Bank Held Money in Readiness for Withdrawal Held Error. Where there was no claim that money was withheld after demand therefor was made, the submission of whether the bank held the money in readiness to pay plaintiff, and whether plaintiff could have withdrawn the money at any time after the expiration of the term specified in the certificate of deposit, held, error.</p> <p>6. Contracts — Not Implied Where Express Contract Exists. A contract may not be implied where an express contract exists.</p> <p>7. Banks and Banking — Interest not Recoverable on Deposits Except by Agreement or After Demand. Interest is not recoverable upon bank deposits except by special agreement or after demand and refusal to pay.</p> <p>8. Trial — Submission of Issue of Implied Promise in Action on Express Promise Held Error. In action against bank to recover specified rate of interest after expiration of specified .period, submission of whether there was a subsequent agreement, “either express or implied,” that the money should remain for an additional period after the expiration of the specified period, held reversible error, the action being on the theory of an express agreement.</p> <p>9. Appeal and Error — Supreme Court Cannot Sustain Verdict Unless Evidence Supports Allegations of Complaint. In a law case the verdict cannot be sustained on appeal if the evidence d.oes not support the allegations of the complaint, even though the evidence might have supported findings in plaintiff’s favor, if the allegations of the complaint had been different, and were subject to amendment after introduction of evidence, since the Supreme Court has not original jurisdiction in such cases, and cannot enter judgment merely because it thinks one or the other of the parties entitled to prevail.</p> <p>GIDEON, J., dissenting.</p>

<p>1. Physicians and Surgeons — Legislature May Prescribe Qualifications or Practitioners. In the exercise oí the police power and for the protection of the health and safety of citizens, the Legislature may determine and prescribe the qualifications necessary to practice medicine, surgery, or obstetrics, and, unless the legislative regulations are clearly un-resonable, discriminatory, or deprive a citizen of some constitutional right or privilege, the courts cannot interfere.1</p> <p>2. Constitutional Law — Whether Qualifications fob Practice of Medicine abe Justified not a Question fob. the Coubt. Whether the qualifications for the practice of medicine, etc., defined and required by statute are justified by the facts is not a question for the courts to determine.</p> <p>3. Physicians and Surgeons — in Suit to Enjoin Chiropractor Without License, Results of Chiropractic Treatment Immaterial. In an action under Comp. Laws 1917, § 4449, to enjoin a chiropractor from practicing medicine without a license, the court is not concerned with the good or bad results that may follow treatment by chiropractors, but solely with the question whether defendant is practicing medicine without a license</p> <p>4. Constitutional Law — 'Physicians and Surgeons — Statute Authorizing Injunction Against Unlicensed Practice Does not Grant Privileges or Immunities. As the right given the Board of Medical Examiners by Comp. Laws 1917, § 4449, to bring suit to enjoin the practice of medicine without a license is conferred for the protection of the health of the community, and not for the protection of members of the so-called medical fraternity, the act does not grant any privilege, immunity, or franchise to an individual, association, or corporation in violation of Const, art. 6, § 26, subd. 16.</p> <p>5. Courts — Judicial Construction of Statute Regarded as Approved by People When There Has Been no Amendment Following Construction. Where the Legislature has twice met and is in session a third time since a decision of the Supreme Court holding that the treatment of physical ailments by chiropractors constitutes the practice of medicine as defined in Comp. Laws 1917, § 4450, and no amendment of the statute has been made, it must be concluded that the law as so construed has the approval of the people, and, unless clearly prohibited by the Constitution or unreasonable or discriminatory, it must be enforced.</p> <p>6. Injunction — Jury—Statute Authorizing Injunction Against Unlicensed Practice of Medicine not Invalid. As Comp. Laws 1917, § 4449, authorizing injunctions against the practice of medicine without a license, is designed to enforce regulations looking to the health of the community, it is not invalid as authorizing an injunction against an act made criminal by section 4451, or as denying the right to a jury trial in criminal prosecutions guaranteed by Const, art. 1, § 12.</p> <p>7. INJUNCTION — IMPRISONMENT FOR VIOLATION IS NOT PUNISHMENT for Violation of Statute, but fob Violation of Obdeb of Couet. One imprisoned for violating an injunction under Comp. Laws 1917, § 4449, restraining the practice of medicine without a license, is not punished for the violation of the statute, but for violation of the order of the court.</p> <p>8. Injunction — Not Issue to Restrain Unlicensed Practice of Medicine if Violation or Its Continuance is Doubtful. In issuing injunctions against the practice of medicine without a license under C'om'p. Laws 1917, § 4449', the courts are controlled by the usual rules that influence or control courts of equity in granting injunctions, and the writ should not issue if there be a doubt or uncertainty as to the violation of the statute or that there will be a continued violation of it if the injunction is not issued.</p> <p>9. Constitutional Law — Statute Authorizing Injunction Against Practice of Medicine Without License not Violative of Right to Obtain Employment. As Comp. Laws 1917, § 4449, authorizing the Board of Medical Examiners to institute civil actions to enjoin the practice of medicine without a license is intended to protect the public from treatment by those who have not by experience or study acquired the necessary knowledge, it does not violate Const, art. 12, § 19, providing that every person shall be free to obtain employment, etc.</p> <p>10. Constitutional Law — Unreasonableness of Requiring Chiropractors to Have Knowledge of Medicine is for. Legislature. The claimed unreasonableness of requiring a knowledge of medicine by a chiropractor who does not use medicine in his system, of treatment is a matter to be addressed to the Legislature.</p> <p>11. Constitutional Law — Doubts as to Validity of Statute to be Resolved in Favor of Statute. It is only where the invalidity or unconstitutionality of a statute is clear and beyond cavil that the courts may declare a law or any part of it invalid, and any reasonable doubt as to the validity of a statute must be resolved in favor of validity.</p> <p>12. Constitutional Law — Propriety of Requiring License to Pbactice Medicine .Only When Fee is Taken is Matter eor Legislature. The propriety of requiring a license for the practice of medicine for a fee or consideration when any one may without such license treat the sick and afflicted when no fee or consideration is received is a matter for the Legislature.</p>

<p>Original application by Louis Nicolo for a writ of mandate against P. G. Evans, Judge of tbe District Court of Salt Lake County, and another.</p>

Original proceedings by S. S. Dickinson against Salt Lake City and others for a writ prohibiting the City from issuing certain bonds.

<p>Appeal from District Court, Seventh District, Carbon County; Geo. Christensen, Judge.</p> <p>Action by Minerva Stewart Hanks against Edwin R. Lee. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Appeal and Error — Credibility op Witnesses Cannot Be Reviewed. An action for claim and delivery is tried as a law case, and hence the Supreme Court cannot weigh the evidence nor pass on the credibility of the witnesses, but can only determine whether there is substantially competent evidence to support the findings of fact and whether the conclusions of law are supported by those findings.</p> <p>2. Appeal and Error — Record Held not to Show Trial Judge Considered Incompetent Evidence. In an -action for claim and delivery for an automobile, tried to the court, where testimony by defendant’s predecessor in title as to her claim to the car adverse to that of plaintiff’s intestate was received subject to motion to strike, and thereafter the court excluded all the testimony of that witness', with the exception of a few isolated statements, but the record was not clear as to which statements were stricken and which ones were not, or whether testimony to which no objection was made was included in that stricken, the Supreme Court cannot say that the trial judge considered incompetent evidence.</p> <p>3. Appeal and Error — Mere Admission of Incompetent Evidence in Trial to Court Does Not Require Reversal. In an action tried# to the court, the mere admission of incompetent evidence does not authorize the reversal of the judgment, if there is sufficient competent evidence supporting the findings.</p>

<p>1. Pleading — Demurrer Admits Facts Pleaded. A demurrer to the complaint admits facts pleaded therein.</p> <p>2. Constitutional Daw — Every Reasonable Dotjbt Solved in Favor of Constitutionality of Statute. Before the court can declare an act of the Legislature unconstitutional, it is its duty to solve every reasonable doubt in favor of the act.</p> <p>3. Counties — Complaint Help to Show Unconstitutional Attempt of Legislature to Define Boundary Line Between Counties. The complaint in an action between counties held to sufficiently allege that Sess. Laws 1917, c. 113, passed pursuant to Comp. Laws 1907, § 487, attempting to define the boundary line between Summit and Rich counties, is in violation of Const, art. 11, § 3, which provides that no territory shall he stricken from any county except upon a vote of a majority of the voters in such territory as well as of the county to which it is annexed.1</p> <p>4. Counties — Legislature in Fixing Disputed Boundary Line Must Follow the Statutory Description as Nearly as Possible. In defining the boundary, line between two counties, where there is a dispute, it is the duty of the Legislature, under Comp. Laws 1907, § 487, to follow the statutory description as nearly as practicable; and, if it finds it impracticable to follow it as to some particular point,' then to establish a new line, hut the fact that some parts of the boundary line may be ambiguous and unascertainable by engineering skill does not justify it in ignoring altogether that which is clear and unmistakable, ’in view of Const, art. 11, § 3.</p>

<p>1. Sales — Evidence Held to Support Finding of Rescission by Agreement. In an action on a note for the purchase price of an automobile, evidence held to support a finding that the contract of sale was rescinded by agreement.</p> <p>2. Sales — Rescission of Contract of Sale of Automobile Held not Without Consideration. Where the buyer of an automobile asked the seller to declare the deal off, and the seller assented and told thé buyer to put the automobile in his (the seller’s) barn, and the buyer did return it to the seller’s premises, the contract of rescission was not without consideration.</p>

<p>1. PARENT AND CHILD-It IS THE DUTY OF A FATHER TO SUPPORT His Minor .Children. It is the duty of a father to support his minor children, and it is, under Comp. Laws 1917, § 8112, a criminal offense to willfully fail to support children under the age of 16.1</p> <p>2. Death — Pecuniary Loss Basis of Recovery. Under the Utah statutes, recovery for wrongful death must he founded upon a pecuniary loss, and the loss must he such that in contemplation of law it amounts to the deprivation of some service, attention or care that has in it the element of pecuniary value.</p> <p>3. Death — Loss of Society Element of Damages. A loss of the society and companionship, as well as the habits of deceased in regard to his family and what he might be expected to do in the future, may be submitted to the jury as .an element of' damages for death.2</p> <p>4. Death — Inheritance Element of Damages to Heirs. The right of inheritance based on the probability or improbability of deceased acquiring an estate which his heirs would inherit may be considered, in determining the damages for death.</p> <p>5. Death — Damages Left to Jury’s Discretion. There is no hard and fast rule as to the measure of damages to minor children, for their father’s death, hut, under Comp. Laws 1917, § 6505, the jury may award such damages' as under all the circumstances of the case may be just.</p> <p>6. Death — Minor Children Deserted Entitled to Damages foe Loss of Support. A father being legally bound to support his minor children, and the law providing means by which they can compel him, to support them, they are entitled to damages for his wrongful death, though he did not recognize his legal obligation, to support them; and this obligation and their prospective inheritance are proper questions to be considered by the jury in fixing the damages.</p> <p>7. Trial — Incorrect Instruction on Damages for. Death not Cured bv Subsequent Correct One. Where one instruction incorrectly informed the jury that there could be no recovery for wrongful death unless decedent had recognized his obligation to support his minor children, the error was not cured by a subsequent instruction correctly stating the measure of damages, for, unless the jury found that decedent recognized the obligation, they would have no occasion to consider the subsequent instruction on damages.</p> <p>8. Appeal and Error — Erroneous Instruction on Right to Recover for Death Prejudicial Error Regardless oe Yerdict. In an action for the wrongful death of a motorman, brought for the benefit of minor children, where the court incorrectly charged that, unless he recognized his obligation to support them, there could be no recovery, such instruction cannot be deemed harmless because the jury found all of the issues for defendant, for as the instruction went primarily to the right of recovery, and not to the measure of damages, the ordinary rule that, where there is a verdict for defendant, error in instruction on damages is harmless, does not apply.</p> <p>FRICK, J., dissenting.</p>

Original application by tbe Twin Peaks Canning Company and tbe London Guarantee & Accident Company, Limited, for a writ of review to tbe Industrial Commission to review an award under tbe Workmen’s Compensation Act in favor of Editb Bobling on account of tbe death of ber minor son, Charles Brandley.

<p>1. Habeas Corpus-Errors, not Specifically Assumed, Mat Be Considered on Appeal. Notwithstanding the general rule that specific rulings, acts, or omissions relied on as error must he pointed out in the assignment of errors, the Supreme Court, in a habeas corpus proceeding, having original concurrent jurisdiction with the district courts in such proceedings, would consider questions fairly raised by appellant and argued by counsel for both sides, although not specifically assigned.</p> <p>2. EXTRADITION-AUTHENTICATION OF PAPERS ANNEXED TO REQUISITION Held Sufficient. Where the requisitioning Governor, in his requisition, certified, “Whereas it appears from the annexed papers, duly authenticated in accordance with the laws of this state, that” accused “stands charged,” after which a statement followed, showing the crime with which accused was charged, and the requisition was duly signed by the Governor of the requisitioning state, and the so-called “annexed, papers,” attached to the requisition by means of brass fasteners, were all duly authenticated by the proper officials, with the official seals attached, held that the authentication by the Governor of the annexed papers was sufficient, although the Governor did not in terms certify the genuineness of the papers, nor identify them by marking them as exhibits by number or letter in their order.</p> <p>3. Extradition — Complaint Chabging Accused With Chime Held Sufficient Compliance With Egdebal Statutes. Complaint, charging accused with highway robbery, making the charge positively and directly, not by an official who had no personal knowledge respecting the facts, but by the very person against whom the offense was committed, held sufficient in extradition proceedings; it taking the place and answering the purposes of the affidavit referred to in the federal statutes.</p> <p>4. Extradition — Venue of Complaint Held Sufficient. Where the complaint in extradition proceedings was made “in the probate court of the county of” B. in the demanding state before the “probate judge,” and was certified to by said judge under the seal of said court, and the complaint on its face showed that it was taken and sworn to in said B. county, the venue sufficiently appeared on the face of the complaint to render the complaint sufficient in extradition proceedings.</p>

<p>1. Cexminal Daw — Right to “Public Trial” Held Violated. In view of Const, art. 1, § 12, as to the right to a public trial, in a prosecution for having carnal knowledge of a female under 18 the ruling of the trial court excluding not only the public generally but every friend and relative of the accused, including his mother, although the prosecutrix and her father were permitted to stay in the courtroom, held a denial of the right to “public trial,” not justified by Comp. Laws 1917, §§ 1788, 1789.1</p> <p>2. Criminal Law — Denial of Public Trial Presumed Prejudicial. Where accused has been denied a public trial, within the meaning of Const, art. 1, § 12, the law presumes accused was prejudiced, and he need not show prejudice.</p> <p>3. Witnesses — Contradictory Statement Contained in Letter Held Admissible. In a prosecution for having carnal knowledge of a female under 18, where a witness for accused gave testimony tending to prove that accused’s visit to prosecutrix’s home, when the offense charged was alleged to have been committed, was at a date later than that fixed and testified to by the state’s witnesses, on his cross-examination the court properly admitted a letter written by him in which accused’s visit was referred as to being on an earlier date.</p> <p>4. Rafe — Requested Instruction as to Prosecutrix’s Attempt to Shield Another Held Proper. In a prosecution for having carnal knowledge of a female under 18, where there was evidence that prosecutrix gave birth to a child as a result of the act charged as having been committed December 1st, and prosecutrix admitted an act of sexual intercourse with another person during the preceding October, and accused denied intercourse on the date charged, accused was entitled to have the theory that prosecutrix was endeavoring to shield another submitted by an instruction that the jury could consider the admitted intercourse with another in October together with other evidence in determining whether defendant committed the act charged, and in weighing any motive which prosecutrix' might have in accusing deféndant.</p>

<p>Appeal from District Court, Third District, Salt Lake County; John F. Tobin, Judge.</p> <p>R. R. Lake was convicted of involutary manslaughter, and he appeals.</p>

<p>Waters and Water Courses — Evidence Held to Sustain Plaintiff’s Claim of Priority of Water Rights. In an action involving the priority of appropriation of the waters of a creek, evidence held to sustain a judgment for plaintiff.</p>