Volume 6 — Utah Reports

Hearing upon tbe Return of a Writ of habeas corpus original in tbe Supreme Court of Utab Territory. Tbe facts are stated in tbe opinion of tbe Court.

In the-matter of an original application in the Supreme Court of certain school trustees in Salt Lake County, Utah Territory, to be allowed to intervene in this action.

<p>Cbiminal Law. — Larceny.—Felonious Taking. — The defendant stated to the pound-keeper that a certain animal which he pointed out, then confined in the pound, belonged to himself, and sold it to the pound-keeper for eleven dollars, and the pound-keeper then took the animal out of the pound and turned it out on the range, where it was shortly afterward found by the owner, and claimed. The defendant never owned the animal nor had it in his possession; held that there was no trespass nor asportation and hence no larceny.</p>

<p>Mandamus. — Quo Warranto. — Title to Office. — In* an action brought by W. against C. as auditor for a mandamus compelling C. to issue to W. a warrant for salary as public officer, where O. has already issued warrant for such salary to N., but N. at the time of instituting the action of mandamus was not in possession of the office; held, that while quo warranto is the proper proceeding in which to try title to office, and that it cannot be tried in mandamus, yet in a case like the above quo warranto could not be resorted to.</p> <p>Id.- — Id.—Office de Facto. — In an action as above it was not a good objection to mandamus to compel the auditor to issue the warrant for plaintiff’s salary as Superintendent of Schools that such salary had already been paid to N., now out of office, who claimed such salary as officer de faeto, and that hence the title to the office being involved, quo warranto was the proper remedy.</p> <p>Id. — Id.—Adequate Remedy. — In an action as above it was not a good objection to the mandamus that the plaintiff had a plain, speedy and adequate remedy against N., which will defeat the mandamus', the remedy must be against the defendant in man- ' damus and not third persons.</p> <p>Id. — Id.—-De Facto Ofpb er. — Parties.—In an action as above, N., the alleged de faeto officer, but out of office when mandamus was instituted, was not a necessary party, since payment to N. could be no defense.</p> <p>Id. — Disbursing Officer.- — De Jure Officer. — The officer de jure having presented his oath and bond to the Territorial Auditor, and the latter having refused to receive or file the same, although the law required him to file them, the Auditor could not object to the mandamus that the oath and bond were not filed.</p> <p>Title to Office. — Officer de Facto. — N., during the year 1886, when it was claimed he was an officer de facto, was in hiding, had no place of business, could not be found after diligent search and could not be communicated with through the postoffice; held that he was not an officer de faeto.</p> <p>Annullment of Statute by Congress. — Implied Approval. — The fact that a Territorial enactment has never for many years been disapproved by Congress, when the la;w itself was contrary to the Organic Act, does not weigh in favor of its validity, nor does the fact that the Territorial enactment was afterwards annulled, establish its former validity.</p>

Part of the evidence is stated in the opinion; from the record appears other evidence tending to support the verdict, which is not noticed by the Court in its opinion.

The facts are stated in the opinion of the Court, except the following: The indictment was as follows : The said William L. Eobinson on… Held: the same being a deadly weapon, in and upon one James Hair, then and there being, wilfully, feloniously and of his malice aforethought did make an assault, and the said William L. Eobinson did • then and therefore wilfully, feloniously and of bis malice aforethought, discharge and shoot off one of the bullets, with which said pistol…

<p>CRIMINAL Law. — “ Copper Act.” — Deduction .op Imprisonment.— § 5268 subd. 2, Comp. Laws Utah, 1888, vol. 2, provided that “ each convict, etc., shall be entitled to a reduction of the period of sentence as hereinafter provided. ” § 52c'9 subd. 3, (lb.) provided that from the term of sentence of three months, fifteen days; from a term of six months, thirty days, and for longer terms, a larger number of days shall be deducted. § 5270 subd. 4, (lb.) provided for reduction for all terms of sentence terminating intermediately between the terms before specified; held, that a prisoner sentenced for less than three months was entitled to no deduction.</p>

Tbe opinion states tbe facts. Wben tbe entry of tbe land was made, tbe price paid t.o and received by tbe government, tbe contract between tbe government and those interested in tbe purchase was complete and tbe rights of parties fixed at that date. Such is tbe general law of contracts, and such also is tbe law in cases of this kind. Cofield v. McLeland, 16 Wall., 331; Asliby v. Hall, 119 U. S., 526; Stringfellow v. Cain, 99 U. S., 610; Denver v. Kent, 1 Colo., 337.

<p>Appeal from an order refusing a new trial and from a judgment of conviction of the district court of the first, district. The opinion states the facts.</p> <p>Cited 1 Greenleaf Ev. sec. 259; 2 Wharton Crim. Law,, sec. 1317; Wharton Crim. Ev. sec. 387; 2 Bishop Crim. Law, sec. 1044; Swartz v. Corn, 21 Am. Rep. 366; Freeman v. State, 4 Am. Crim. Rep. 470; State v. Williams, 30 Mo. 364; Or user v. State, 10 Ohio 259; People v. Evans, 40 N. Y. 1, Lawson Presump. Ev. 433, 453 and cases cited.</p>

The opinion states the facts. Cohabitation between husband and wife is a question of fact. It is not conclusively presumed from lawful marriage. It is only an incident, not an essential. MurpJi ij v. Ramsey, 114 U. S. 13. Cohabitation may cease between husband and wife and in some cases it will not be renewed even by acts of sexual intercourse between the parties. Stewart on Marriage and Divorce, Sec. 252. 87 Ill., 250, 254.

<p>Attachment. — Lew—Stoppage in Transitu. — Under a Montana Statute providing that “personal property capable of manual delivery shall be attached by taking it into custody,” two barrels of whisky consigned to B. at Butte, Montana, were in defendant’s warehouse at Butte, September 1st, where a writ of attachment and notice of garnishment were served on defendant’s agent, but no manual delivery was had until September 9th. On September 5th, B. became insolvent. On September 6th, plaintiff served notice of stoppage in transite on defendant’s agent at Ogden, Utah, which reached defendant’s agent at Butte, Montana, on September 8th. No claim was made that goods were not capable of manual delivery. Held that the right of stoppage in transitu prevailed over the attempted levy by an attachment.</p>

The following facts do not appear in the opinion of the court, but are part of the record. When the demurrer was overruled defendant’s attorney applied for leave to answer and the leave was granted upon his motion.

The evidence in this case is set out at length in the bill of exceptions. It was admitted that defendant was a married man. The evidence for the prosecution tended to show that the girl, Emma Bapty, with whom the adultery was alleged to have been committed, had been delivered of a child. The birth of the child was shown by several witnesses. It was testified by the witness, Emma Bapty, that defendant had taken liberties with her and had intercourse with her on four occasions.

<p>■Chattel Mortgage. — Validity.—As between the mortgagee named in a chattel mortgage and subsequent creditors of the mortgagor, the chattel mortgage under which claim is made is not invalidated by the fact that it recognizes the validity and precedence of a former chattel mortgage which is void, and possession is taken for the benefit both the mortgagee in the first, and the mortgagee in the second, mortgage.</p>

This action arose in tbe following manner: George L. Corey registrar of voters for Ogden City refused to register a certain voter by his municipal ward, but stated… Held: upon a matter recently before it, that Section 14 of Article I referred to cities already existing, and not incorporated or re-incorporated under the act; that it was -the duty of the common council to take the steps necessary to ascertain the class to which the respective cities in the territory belong.

<p>Witness. — Fni-s.— When Right Vests. — On the 27th day of February, 1888, the clerk of the third district court issued to relator’s assignor a certificate for fees as a witness in a Territorial criminal case. The statute then in force provided that witness fees in such case should be 81.50 per day, and 20 cents per mile for travel. On March 8th, 1888, the Territorial Legislature passed two acts, one appropriating money for the payment of jurors and witnesses in Territorial criminal cases for the years 1888 and 1889, the other providing a method for making out certificates and certifying them, and also naming court commissioners to pay them, and prescribing as fee for witness from January 1st, 1888, to April 1st, 1890, $2.00 per day, and 12 cents per mile for travel; held, that witness’ right to fee was fixed by the statute in force at the time the service was rendered, and that so far as the last named act above undertook to change the compensation for services theretofore rendered, it was void.</p> <p>Id. — Id.—Fund for Payment. — Under the circumstances of the above case, the Legislature, by making the appropriation above mentioned, meant to provide a fund for the payment of all fees' of witnesses accruing after January 1st, 1890, and to commit the payment thereof to the court commissioners.</p> <p>Id. — Id.—Refusal to Pay. — WheD the court commissioner refuses in good faith to pay, it is error to impose upon him the costs of' the proceeding compelling him to pay the claim.</p>

<p>Habeas Corpus. — Conclusiveness op Record. — Upon an application for a writ of habeas corpus founded upon the record of two convictions, which, it is claimed, were for the same offense and that imprisonment under the second conviction is therefore illegal, only the facts appearing in the record will he considered.</p> <p>Id. — Id.—Identity op Name. — The fact that a defendant was convicted of unlawful cohabitation with two women, and also was convicted of adultery for a date included within the period for which the conviction for adultery was had, and that one of the women named in the indictment for unlawful cohabitation has the same name as the woman with whom the adultery was alleged to have been committed, is not sufficient to show that the same woman is intended by both indictments, without proof dehors the record.</p> <p>Id. — Id.—Former Convictíon. — Must Be Pleaded. — If a defendant desires to rely upon a former conviction it is his duty to plead it, and if he fails to do so, and is convicted, it cannot be tried upon habeas corpus.</p>

The opinion states most of the material facts, except the following: The complaint, except as to the defendant’s incorporation, was charged thus: That heretofore, to-wit: On the first day of November,.

<p>Treaties — Public Lands — Chippewa Scrip — The treaty with the Chippewas of Lake Superior, dated September 30th, 1851, provided in the seventh clause of the second article, that each head of a family, or single person over twenty-one years of age, at that time, of the mixed bloods belonging to the Chippewas of Lake Superior, should be entitled to eighty acres of land, to be selected by them under the direction of the President of the United States; to be secured to them by patent in the usual form. A certificate for eighty acres of land was thereafter issued to C. Thereupon C. located said scrip on seventy-nine and eighty two one-hundredths acres of land in Utah, and a patent therefor was. on the 10th day of October, ¡870, issued to C; held, that such patent was rightfully issued, and that the treaty-making power of the United States has authority to dispose of the public domain without the consent of or ratification by Congress.</p> <p>Id. — Id.—Id.—Ratification by Congress. — In 1871 the Secretary of the Interior, in accordance with a resolution of the House, transmitted to that body a report of the grants under this treaty, among which appears the grant in question, as well as other matters connected with land certificates issued under the treaty, and thereafter, on 3'une 8th, 1872, Congress passed an act requiring the Secretary of the Interior to “ permit the purchase with cash or military bounty land warrants of such lands as may have been located with claims arising under the seventh clause of the second article of the treaty of September 30, 1854, at such price per acre as he deemed equitable and proper;” held, that such action of Congress was a ratification of the action of the executive officers in theretofore issuing patents for lands located with the land certificates under the seventh clause of the second article of the treaty, if such ratification was necessary.</p> <p>Mining Claims — Principal and Agent — Adverse Possession — ■ When the agent of the plaintiff located a valid mining claim for plaintiff, and did the assessment work for the five succeeding years, and received pay from plaintiff therefor, and early in the sixth year (1882) resigned his agency and took adverse possession of said premises, and while so holding adversely did the assessment work for the three succeeding years on his own behalf; and thereupon (1885) executed a quit claim deed to the defendant company, which said defendant held adverse possession thereafter until June 9th, 1888, where the plaintiff company did not know of such adverse possession, a finding that in 1882 the plaintiff company abandoned the mining claim and omitted thereafter to do the assessment work, is contrary to the evidence.</p> <p>Id. — Adverse PossnssroN — Assessment Work. — -Where adverse possession of a mining claim is taken and held wrongfully, the rightful owner or locator is excused from doing the assessment work during the continuance of such adverse holding.</p>

There were certain writings offered in evidence of which the following are copies: The Rockawat, ) A. C. Reno, Proprietor, > Ogden City, Utah, Sept. 17, 1887. ) M. H. Beardsley, Esq. : Dear Sir — I will take the house as per agreement, and at your figures, five thousand dollars. If you desire anything to bind the bargain, let me know. I now await only your answer, and your recommendations from the company. I remain very respectfully, A. 0. Reno.

Tbe notice of motion for new trial specified as one of the grounds for new trial tbe fact that the evidence was insufficient to justify tbe decision and proceeded to specify tbe particulars in which the evidence was insufficient to justify tbe decision. Tbe statement upon motion for new trial did not contain any specification of particulars in which tbe evidence was insufficient, nor any assignment of errors.

The following was the message sent: Form No. 2. The Western Union Telegraph Company. All Messages taken by this Company are subject to the following rules: To guard against mistakes or delays, tbe sender of a message should order it BEPE ATED; that is, telegraphed back to the originating office for comparison. For this, one-half the regular rate is charged in addition.

The opinion states the facts. Cited Boone on Mortgages, sec. 156; McMillan v. Richards, 9 Cal., 409, Stuart v. Gay, 127 U. S., 518; Camden v. May hew, 129 U. S., 73. The following opinion was rendered at the June term, 1889.

The plaintiff’s complaint in each case contained two causes of action. The first charged the killing of the horse, according to a complaint good at common law, for the killing of the animal by the negligence of the defendant.

<p>Aliens. — Naturalization.—Who Eligible. — Under section 2169 Revised Statutes U. S. only free white persons and persons of African nativity are eligible for naturalization, and this includes only members of the Caucasian or white race, and of the African races.</p> <p>Id. — Id.—Hawaiians.—A native of the Sandwich Islands, belonging to the Hawaiian race, is a Polynesian, belonging to the Malay races, and as such is not eligible to citizenship.</p> <p>Id. — Id.—Proof op Competency. — A person who had lived in the United States for six years, but could not read or write the English language, who did not know the name of the President of the United States, but spoke of George Washington as President, who had read the constitution of the United States in his own language and who promised to obey all the laws of the United States, does not show under. Sec. 2165 Revised Statutes U. S., that he is competent to become a citizen of the United States.</p> <p>Construction op Statutes. — Implied Repeal.. — -Legislative Construction. — The statute declaring that hereafter no Chinese should be naturalized, and that all acts conflicting therewith were repealed, was not an implied repeal of section 2169 Revised Statutes, and did not such a legislative construction of said section, as would be binding on the court.</p> <p>Aliens. — Naturalization.—Discretion op Court. — The third division of section 2165, Revised Statutes U. S., imposes upon the court the duly of determining from his conduct in evidence and from his statements, whether he is a man of good moral character, attached to the principles of the constitution of the United States, and in doing so the court may consider whether the applicant has sufficient intelligence and knowledge to assume understandingly the duties of citizenship.</p>

<p>Criminal. Law. — Former Conviction. — Pleading.—Habeas Corpus. — If a defendant relies upon a former conviction as a bar, he must plead it, when arraigned. He cannot plead guilty to the charge and after sentence, by habeas corpus raise the question of a former conviction.</p> <p>Id. — Practice.—Sentence.—The pronouncing of a sentence within six hours after conviction on plea of guilty is a mere irregularity which cannot be reviewed upon habeas corpus.</p>

<p>Supreme Court op United States. — Appellate Jurisdiction. — In a cause where plaintiff recovered judgment for the sum of 85,000 in the court below, which was affirmed upon appeal to the Supreme Court of Utah Territory, and where the statute provides that the judgment shall draw interest at the rate of ten per cent, from the date of entry, held, that the Supreme Court of the United States had no appellate jurisdiction.</p> <p>Supreme Court op Utah Territory. — Jurisdiction.—Writ op Error. — In the case above, where the appellant had sued out a writ of error and filed a supersedeas bond, and had taken all the steps necessary to remove the cause to the Supreme Court of the ' United States, held, that the Supreme Court of Utah Territory had not lost jurisdiction to remit its judgment to the lower court</p>

<p>Witness. — Fees.—Claiming Attendance. — Section 5447, Compiled Laws of Utah, 1883, providing that witness fees shall not be taxed unless the witness appear before the clerk within two days after the trial and claim his fees, gives to any witness who has appeared without his fees and mileage being paid in advance, a personal right to have his fees and mileage taxed in his favor as a part of the costs in the case, provided he appears and claims them within two days, and if he does not so appear, they will be deemed to have been waived.</p> <p>Id. — Id.—Memorandum of Costs.— Under Section 3965, Compiled Laws, 1888, the party who has paid the fees and mileage of his witnesses is entitled to have the same taxed and included m the judgment, and it is not necessary that the witnesses who have already been paid should appear before the clerk within two days, and claim their fees and mileage.</p>

<p>Contract. — Rescission.—Condition Precedent. — A party to a contract, upon the failure of the other party to perform a condition precedent to his further performance, may rescind and abandon the contract, and recover the amount due for work already done under the contract.</p> <p>Id. — Id.—Id.—Construction op Contract. — Respondent contracted to excavate a tunnel 1,200 feet in length at a cost of $12 per foot, and the appellants agreed to receive the tunnel 100 feet at a time and pay the respondent $10 per foot therefor, or $1,000 upon the completion of each 100 feet, and pay the remaining $2 per foot at the completion of the contract, held, that the payment of' $1,000 for each hundred feet when completed was a condition precedent to the further work by respondent.</p>

The verdict was rendered and judgment entered at the December term, 1887, and the amendment was allowed at the March term, 1888. The record in the case was destroyed by fire in the year 1888, and the record that came up was fragmentary in regard to the pleadings and the instructions of the court. It does not appear whether defendant set up a counter claim or not, or asked for affirmative relief, but it seems tbat be did. Tbe remaining facts are found in tbe opinion.

<p>School Districts. — Boundaries.—Taxation.—Seo. 1912, 1 Comp. Laws, 677, gives the county court powér to divide the county into school districts, and to change the boundaries of such districts, and also provides that taxes shall be assessed in each district for school purposes. A county court extended the boun daries of a school district fifteen miles westward taking in certain of defendant’s property twenty-five miles away from the school house; the intervening country'was mountainous and difficult to cross; held, that the defendant’s property was liable for the tax assessed upon it for school purposes.</p>

<p>■Criminal, Law. — Malicious Mischief. — Proof of Malice. — On a trial for maliciously maiming a pig in violation of Sec. 4708, 2 Comp. Laws Utah, 1888, which makes it a misdemeanor to maliciously maim an animal, the property of another, it is necessary to prove malice against the owner of the animal, but this malice maybe inferred from the circumstances under which the act was committed, and an instruction which states that if a man recklessly and wantonly should kill an animal, not caring who the owner is, malice can be inferred, correctly states the law.</p> <p>Id. — Id.—Cooperation of Defendants. — The rule that where it is certain that one of two persons did the criminal act, but it is uncertain whether the one or the other was the guilty agent, neither of them can be convicted, is the true rule of law where the two persons have no necessary connection with each other in committing the crime, but not where the two persons had a common purpose and the guilt of tbe one is consistent with the guilt of the other.</p> <p>Id. — Id.—Sufficiency of Evidence. — When it appears that two persons were riding together in a wagon, one of them shot a pig, but which one is unknown, whereupon one of them shouted “ Skedaddle,” and they drove rapidly away, but did not know who the owner of the pig was, and neither-defendant disclaimed any complicity, nor testified on the trial, held, that the conviction was proper.</p>

<p>TERRITORIES. — Legislative Powers . —Unreasonable Law . - -The territories being mere dependencies of the United States, exercising delegated powers, and their governments being temporary - agencies, the capacity of their legislatures is regarded more rigorously by the courts, and their enactments construed less liberally than the laws made by the sovereign, and they will be held void with less hesitation, when they are clearly unreasonable, oppressive and unjust.</p> <p>Id. — Organic Act. — Rightful Subject of Legislation. — Under the Organic Aet providing that the legislative power of a territory shall extend to all rightful subjects of legislation, municipal charters and taxation, and boundaries of cities and villages, are rightful subjects of legislation, but the extent of the legislative 1 discretion with respect to those subjects, .though not expressly limited, must have a reasonable limit.</p> <p>Id.--Rightful Legislation. — Municipal Taxation. — The rule applicable to municipal charters that where power is given to legislate but the mode of its exercise not prescribed, then the legislation in pursuance thereof must be a reasonable exercise of the "power, is applicable to the acts of congress organizing the territories, and a law extending the limits of a city so as to include ranches, farms and unoccupied lands fifteen or twenty miles, away would be unreasonable.</p> <p>Id. — Constitutional Law. — Taking Property for Public. — The fifth amendment to the constitution of the United States, declar- • mg that private property shall not be taken for public use without just compensation, should be applied to the appropriation of private property to public use in the form of money under the right of taxation, as well as the appropriation of real estate or other property to such use under the right of eminent domain.</p> <p>CONSTITUTIONAL Law. — Municipax, Taxation. — The United States issued under the “ Town site act ” a patent for 640 acres for Moroni City, to which tract the city is confined so far as indicated by buildings, streets or other improvements. The Utah legislature incorporated Moroni City with 16,000 acres of land within its corporate limits. Defendant owned a farm of 160 acres, included within the limits of the city as defined by the legislature, but two and a half miles from the town site or any improvements indicating a city. He had made his own road, and received no benefit from municipal taxation beyond any other farmer adjacent to a oity. He was indicted for not returning a list of his property for municipal assessment; held, that his conviction must be reversed.</p>

<p>Appeal from a judgment of the district court of the first district and from an order denying a motion for a new trial. The opinion states -the facts. ■</p>

<p>Statute op Limitations. — Public Lands. — Final Entry. — The statute of limitations begins to run against one who claims public lands as grantee of the United States in favor of one in possession, claiming to have acquired the title thus acquired by the patentee, from the date of the patentee’s certificate of final proof and payment.</p>

<p>Appeal. — New Tbial. — Extension of Time. — Section 3635, 2 Comp. Laws Utah, 1888, provides that an appeal from an order granting or refusing a new trial may be taken within sixty days from the entry of such order upon the minutes of the court or filing the same with the clerk; held, that the court cannot grant additional time beyond the sixty days for filing notice of appeal.</p>

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

The findings of the court below were that Joseph A. West had possession of the premises' from May 13th, 1887, until he delivered it to defendant Kiesel; that on May 11th, 1887» West purchased said premises and receivéd a good and sufficient deed therefor and held the legal title until he delivered it to Keisel; that West in purchasing acted for Maxfield, the plaintiff, but Maxfield never at any time paid any money; that West within two days after his purchase leased the…

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

The section of the Poland bill to which reference is made is as follows: “From all final judgments of justices of the peace an appeal shall be allowed to the district courts of their respective districts, in the same manner as is now provided by the laws of said Territory for appeals to the probate courts, and such appeal shall vacate the judgment appealed from and the case shall be tried cle novo in the appellate court.” The sections of the Utah Statutes then in force on…

Original motion of respondents to strike tbe statement upon motion for new trial from tbe record. Tbe opinion states tbe facts.

<p>Motion by respondent to dismiss the appeal and motion to strike out part of the record.</p>

The opinion states the facts except that it may be worthy of notice that Section 4030 above mentioned is tbe same as Section 1355, California Civil Procedure Code, from wbicb it is copied. That section is punctuated very differently from our section in the Compiled Laws, quoted in the opinion.

<p>Criminal Law. — Suspending Sentence. — A court.has power to suspend sentence after a defendant has been convicted, for stated periods from time to time for good reasons, but it is no doubt the duty of the court where the remedies known to the law are exhausted, to proceed to sentence within a reasonable time.</p> <p>Criminal Law. — Mandamus..—District Judge. — On an application for a mandamus to compel the district judge of the first district to proceed to sentence a defendant theretofore convicted in that court, upon whom sentence had been indefinitely suspended, where it appears that the said defendant was convicted of voluntary manslaughter, and when called for sentence, the judge had suspended sentence upon him indefinitely, and the punishment prescribed by statute was not exceeding five years, held that it would be presumed that the judge in suspending sentence intended to impose only a nominal penalty, making the passing of sentence a mere form, and that mandamus would not issue'to compel a judge other than the one who had tried the case and suspended sentence, to proceed to sentence the defendant.</p>

Tbe court below found tbat tbe materials furnished were furnished at tbe defendant’s request, tbat a lien therefor was properly filed and still remained a valid lien.

Obiginal APPLICATION for a writ of mandamus. The petition alleged that on Monday, February lOtb, 1890, a municipal election was to be beld in Salt Lake City, and that there should be chosen on that day one mayor, fifteen councilmen, three from each of the five municipal wards, and other city officers, but that the said Page had given notice for the election of one mayor, five aldermen and nine councillors and other city officers, and prayed that he might be required to give…

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

Tbe answer of the defendants Dee and Stanford was joint, but they separately pleaded a misjoinder of defendants as to themselves.

Tbe demurrer to tbe complaint was general, that tbe complaint did not state facts sufficient to constitute a cause of action. Tbe demurrer was sustained and plaintiff electing to stand thereon, judgment was entered and plaintiff appealed.

Tbe opinion states tbe facts. cited Fallon v. Butter, 21 Cal. 31. Sec. 4181 is declaratory of common law, except as to making return and confirmation by the court. In absence of prohibition discretion given to executors permits them to sell with or without notice. 2 Perry .on Trusts, Sec. 780. Burr v. McEwin, Baldwin C. C. Bep. 164; Minuse v. Cox, 5 Johns. Ch. 445; Crane v. Reeder, 22 Mich. 339; Colton v. Colton, 127 TJ. S. 321.

<p>Waters. — -Decree.—Uncertainty.—A decree in an action to determine rights to water in a stream adjudged that defendant should have the use of one good irrigation stream of water of the creek sixty hours out of every sixteen days, to be measured out, distributed to him and his use thereof regulated by the watermaster; held, to be void for uncertainty.</p>

<p>Watebs. — Decree.—Uncertainty.—This case reversed on account of the reasons stated in Smith v. Phillips ante p. 376.</p>

Petition for a rehearing of this cause. Tbe opinion in the cause is found at p. ante. The findings must precede the judgment and are the foundation for the judgment. Russell v. Armador, 2 Cal., 305; Vermule v. Shaw, 4 Cal., 214; Brown v. Brown, 3 Cal., Ill; Lyons v. Lyons, 18 Cal., 448, holds that the same rule applies to equity causes. A judgment cannot stand unless there are full findings which respond to all the material issues.

Tbe evidence in tbis case showed tbat tbe defendant was arrested while traveling from southern Utah to Salt Lake City. He bad a woman with him in tbe wagon, and stated that tbe woman with him was bis second wife. He then stated that be was guilty of tbe crime of unlawful co-habitation.

<p>Contract. — Good Will. — Damages.—Proof of special damage under an allegation of general damages, if not objected to when offered, cannot be ruled from tbe jury after tbe case is closed, and fur-. nishes no ground for a new trial. Failure to object at the time is deemed a waiver of tbe objection.</p> <p>Id . —Id . —Special Damages. — ii a suit to secure damages for breach of a contract not to engage in tbe hotel business, evidence of loss of customers without specifying the individuals and general damage'in decrease of profits does not show special, but general damages.</p> <p>Id. — Id.—Excessive Damages. — When a verdict of $5,000 is returned ■ as damages for a breach of a contract not to engage in the hotel business, where the evidence is general, showing a considerable loss of business afid decrease in profits, and it not appearing that the jury were influenced by passion or prejudice, held that the verdict was not excessive.</p>

a judgment of the district court of the first district and from an order refusing a new trial. The opinion states the facts. The respondents had no actual notice of the unrecorded deeds. Actual notice is required by our statute. Possession by itself is simply constructive notice. The statute of Utah recognizes no constructive notice outside of the record. Pomeroy Eq. Juris., Secs. 614, 615, 616 and 664 and cases cited.

<p>Municipal Corporations. — Negligence.— Sidewalks. — In an action against a municipal corporation for damages for a personal injury caused to a pedestrian by a pile of bricks placed upon a sidewalk by the employees of the city, it is not error for the court to refuse to charge the jury that it must be shown that the city had notice of the defect, or that it had existed for such a length of time as to imply notice.</p> <p>Id. — Id.—Negligence oe Agents. — In an action like the above it is not error for the court to instruct the jury that it was for them to say whether or not the placing and leaving of a pile of bricks upon the sidewalks by the agents of the city was negligence in the city, for when the action is for the positive misfeasance of the defendant itself, no allegation of notice or want of reasonable care is necessary.</p>

<p>Courts. — Jurisdiction op Territorial Court. — Claims Against United States. — A claim of a United States Commissioner for fees against the United States may be sued on in a territorial district court, under Sec. 1910, Rev. Stat. U. S., and an appeal may be had from a judgment of such territorial court to the territorial supreme court.</p> <p>Id. — Id.—Succeeding Statute. — The statute conferring upon Territorial district courts jurisdiction in all cases arising under the Constitution and laws of the United States the same as is vested in district and circuit courts of the United States extends the jurisdiction of such Territorial courts to all cases wherein jurisdiction is conferred upon circuit and district courts of the United States by laws subsequent to that which provides for the jurisdiction of Territorial courts.</p>

ORIGINAL petition for a write of mandate against Jobn C. Cutler, clerk of tbe county court of Salt Lake county. The opinion states the facts.

The sections of the statute are as follows: “The order must direct the publication to be made in a newspaper to be designated, as most likely to give notice to the person to be served, and for such length .of time as maybe deemed reasonable, at least once a week; but publication against a defendant residing out of the Territory or absent therefrom, must not be less than one month.

<p>Trespass. — Owner. —Attorney. —Liability.— Exemplary Damages. — The claimant of premises who instituted suit and his attorney who obtained a judgment by default, and a writ of restitution which was void (affirming People v. Hill, 5 Utah, 410), and directed a constable to execute the writ of restitution, and who had no further connection with the trespass neither by way of instigation or ratification, and where there is neither malice nor bad faith shown are liable for the damages that actually occurred through service of the writ, and not for exemplary damages for acts of the constable unauthorized by the writ.</p> <p>Id. — Evidence.—Immaterial Testimony. — Where testimony that is immaterial as against the other defendants is admitted for the purpose of implicating another defendant as to whom a non suit is granted by the court, the testimony so admitted should be by the court excluded from the jury, and they should be told to disregard it.</p> <p>Id. Measure op Damages. — Destruction op House — Where the property destroyed is of such a nature that it can readily be reproduced, the measure of damages is what it would cost to reproduce it, and the value of its use while it was being done.</p>

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

Appeai! from a judgment of tbe district court of the first district and from an order refusing a new trial. The opinion states the facts.

Tbe pleadings in tbe case were as follows: Plaintiff filed an ordinary complaint to quiet title under tbe staute averring title and ownership in fee, and deraigning tbe title by a .series of deeds from tbe patentee of tbe United States.