Volume 8 — Utah Reports

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

The opinion states the facts except the following: The proceedings supplementary to execution are under the Utah statute a substitute for a creditor’s bill. By the Poland Bill, June 23d, 1874, the district courts are given original exclusive jurisdiction in all suits or proceedings in chancery. The point is not argued by counsel, and therefore not noticed by the court, but how could the United States Commissioner obtain jurisdiction in such a proceeding ?

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

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

<p>Equity. — Receiver.—Laborers’ Liens. — Appellant, under a trust deed, took possession of the property of a street railway company on October 8th, 1890, and continued to operate the same until December 22d, 1890, when the property under order of the court went into the hands of a receiver, and afterwards on January 2, 1891, respondents filed their petition for wages during the 60 days next preceding the appointment of the receiver and on January 9th, 1891, no answer having been filed to the petition, it was referred to the receiver to ascertain the amounts due the respondents, which amounts the receiver reported and the court upon the receiver’s report, allowed the claims; held that in this action the court committed no error.</p> <p>Id. — Id.—OPERATING Expenses. — First Lien. — Where a receiver had been in pos‘ession of the railway property for eleven .days, and respondents filed their petition for wages for operating the property for sixty days preceding the appointment of the receiver, and where the proceeds of the property and its continued use and operation, which were the result in part of respondent’s labor, had gone to the owners of the property and the mortgagees in possession under a trust deed; held that such wages for operating expenses prior to the appointment of the receiver, were a first lien on the property.</p>

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

The opinion states the facts, except the following: Section 5253 of compiled laws, 1888, applies only to corporations, but section 5258 (for which 5253 is probably a mistake and hence in this - report the change is made) provides as follows: ‘Tn all cases of criminal prosecution * * * * ap persons found guilty of crime upon trial shall pay the costs except where the party is insolvent, in which case the county court may authorize the payment of said costs, out of county…

The opinion states the facts, except the following: The complaint in. the action was based upon the idea that the postmaster general under the law had the right to fix the compensation of fourth class postmasters, and that if the government had upon the quarterly accounts of any postmaster made him a credit for compensation upon the basis of his returns, and afterwards the postmaster general should become satisfied that those returns were fraudulent, he could withhold the…

<p>Criminal Law. — Extortion.—District Laws. — Mining Recorder. —Where the statute of the Territory fixes the fees to be allowed mining recorders, and the by-laws of the mining district fix the fees at a larger amount, under the congressional enactment, section 2324 Rev. Stat., which provides: “The miners of each mining district may make regulations not in conflict with the laws of the United States, or the law of the state or territory in which the mining district is situated, governing the location and manner of recording,” the territorial statute must govern.</p> <p>Id. — Mining Recorder. — Ignorance of Law. — Where a mining recorder is indicted for charging illegal fees, it is no defense to the indictment that he honestly believed the law to be that he could charge fees under the by-laws of the mining district.</p>

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

<p>INSURANCE. — Conteact to Insure. — Pleading,—Where the complaint alleges a contract of insurance already executed, and the evidence tends to show an agreement to execute an insurance policy in futuro, the plaintiff cannot recover, although had the complaint alleged a contract to insure and facts been shown sufficient to authorize it, the court would have decreed specific performance of such a contract.</p> <p>Id. — Evidence.—Conclusion op Witness. — Where a witness was asked in reference to a contract of insurance, “how long was the insurance to be,” and objected to on the ground that the question called not for what was said but the conclusion of the witness from what was said, and such objection was overruled; held that this was error.</p> <p>Id. — Id.—Admission op Agent. — The admission of an agent in order to bind his principal must be both part of the res gestee and authorized by the principal by the admission being in regard to a matter or thing within the scope of the agent’s authority.</p> <p>PRINCIPAL AND AGENT. — AGENT OP BOTH PARTIES. — Where one man, who was agent of a mercantile company and at the same time agent of an insurance company, is told by the manager of the mercantile company to renew certain insurance policies with the insurance company of which he is • agent; and was authorized to use the funds of the mercantile company to do so, but negligently fails to do so, after having agreed to do it, no contract of insurance in prcesenti exists, although he had authority to issue the policies.</p>

<p>Master and Servant. — Personal Injury. — Negligence.—Where it appeared that the defendant’s railway track descended from Eureka to Ironton two hundred and ten feet per mile, a distance of five miles; that the train upon which deceased was injured consisted of an engine, tender, five cars and a caboose; that the valves of the engine were out of repair; that one of the cars had no brake, and that the brake on another was defective; that all five cars were loaded; that the engineer was inexperienced and on his first trip over that line; that the engineer started the train down hill; that the steam brakes failed to act; that the engineer deemed it safer not to reverse his engine; that on account of a defective frog the train left the track, and deceased was in consequence killed, and no contributory negligence of deceased was shown; held that a finding of negligence in defendant was warranted by the evidence.</p> <p>Id. — Id.—Wrongful Death. — Suit by Administrator. — In a suit by the administrator for wrongful death of decedent, caused by negligence of defendant, for the benefit of the heirs, under the statute giving such an action, evidence is admissible of the number of children of deceased and of the treatment of his family by deceased.</p> <p>Id.— Id.— Id. — Instructions.—The court charged the jury that they might take into consideration in assessing damages in suit by administrator, for the wrongful death of deceased, the benefits from association, comfort and pleasure the family of deceased would have received from him had his life been spared, as well as the number and ages of deceased’s children; held that this was not error.</p> <p>Id. — Id.—Id.—Collateral Attack Upon Appointment op Administrator. — The order appointing an administrator of deceased canfiot be collaterally attacked in a suit brought by administrator for the wrongful death of his decedent.</p>

<p>Pleading. — Cubed by Verdict. — Promissory Note. — Notice to Indorser. — Where the defendant is sued as indorser, under a complaint which did not allege notice to him of protest and non-payment, and he had answered alleging affirmatively want of notice of protest or non-payment, and evidence was taken upon such issue joined, and a verdict rendered against the defendant and appellant; held that the defect in allegation was cured by verdict.</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>

<p>Appeal. — New Trial. — Discretion op Trial Court. — Where the court that tried the cause has granted a new trial after verdict, and one of the grounds for the motion was that the evidence was insufficient to sustain the verdict, such a ruling of the court will not be disturbed on appeal unless there has been a clear abuse of discretion.</p>

The opinion states the facts generally but the following summary of the abstract is given in this cause: The abstract in the case states the record as follows: The complaint alleged that on March 5, 1890, appellant McEvoy made his promissory note for 8300, payable to appellant Alma S. Kendall twelve months after date, with interest payable quarterly; that said McEvoy, to secure the payment thereof, executed the mortgage, exhibit “A,” attached to complaint; that the note and…

The opinion states the facts except the following: The pleadings are stated in the opinion, as is also the general effect of the evidence.

The statutes were passed at different times. The first statute was passed January 3, 1853, and provided: “Annually on the first Monday in August there shall be a general election held in each precinct in the several counties for choosing all officers not otherwise provided for.” This section was inserted with sections 2018 and 2020 in a statute passed February 22, 1878, from which place they were inserted in the Compiled Laws of 1888, volume I.

<p>Libel.— Damages. — Excessive.—Although the court may think that a smaller verdict would have been more just, yet where-the jury have given §1,500 damages for a libel denouncing the respondent as a “prevaricator and liar,” the verdict was not so excessive as to indicate that the jury found their verdict under the influence of passion or prejudice.</p> <p>New Trial.— Newly Discovered Evidence. — When the newly .discovered evidence adduced as a ground for a new trial would not be decisive of the case upon another trial, the judgment will not be reversed by the appellate court.</p>

The pleadings in this case were as follows: The complaint alleged that plaintiffs father appropriated from American Fork river in 1851 enough water to irrigate fifty acres of land, and in 1869 appropriated water for ten acres additional.

The opinion states the facts except the following: The charge of the court to the jury was as follows: “You are the sole judges of the testimony .in, the case, the character of the witnesses and of the force and effect of their statements, whether they are to be believed or not to be believed; and if there is a conflict in the testimony, you will judge between the parties in reference to' the matter, and decide that which is true and that which is not true; and in…

The facts appear from the opinion. It is not noticed by counsel upon either side, but the statute quoted only relates to the trial for murder.

<p>Corporations. — Promoters.—Liability op Corporation. — Semble a corporation cannot be held liable for anything done by promoters before its existence.</p> <p>Id. — Banks.—Certificate Issued Before Organization. — A bank is not liable to an innocent purchaser for value upon a certificate of deposit issued before its incorporation, and signed as cashier by the person whom the promoters of the bank contemplated as cashier, and who afterwards became the cashier, when it appears that the bank never received any part of the consideration.</p> <p>Id. — Promoters.—Liability for Acts of One. — Promoters and subsequent officers of the bank when established cannot be held liable for the act of one of the promoters who became subsequently cashier, in issuing a certificate of deposit purporting to be of the banking corporation, but before its incorporation, without showing that by fraud or negligence they assisted in giving the certificate currency.</p> <p>New Trials. — Newly Discovered Evidence. — Cumulative.— Where new trial is asked on the ground of newly discovered evidence which is of the same general character as that already admitted, the new trial is properly denied.</p>

Tbe opinion states tbe facts, except tbe following: § 1060, 2 Comp. Laws, 1888 (wbicb was in force when tbe labor was performed),, provided that if tbe persons wlio caused tbe building, improvement, or structure to be constructed, altered, or repaired, owned less than a, fee-simple estate in such land, then only his interest therein is subject to such lien.

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

<p>Appeal from an order discharging an attachment of the district court of the third district. The opinion states the facts.</p>

The facts in regard to the question of evidence, shown by the record, are as follows; Witness, Roswell Rogers, testified on his direct examination, as follows; “My father took the water out of the main ditch when the water first came over the hill at a. point about fifty yards from Mr. Moore’s house. It ran from there down in an old road. Have taken it out myself. Took out nearly the whole stream; sometimes used it one day and a night, sometimes two days.

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

<p>INSURANCE. — Policy oe Pire Insurance. — Limitation oe Action. —Where the policy of fire insurance provided that no suit upon the policy should be begun or sustainable until after an award should have been made, nor unless such suit or action should be commenced within twelve months from the date of the fire, and no time was limited within which the award should be made, and suit was begun over one year after the fire occurred; held that such suit was not barred, because the twelve months’ limitation did not begin to run until after the award was made.</p>

The opinion states the facts. The grounds of divorce under the old statute of March 6, 1852, were the following: “ Impotency of the defendant at the time of the marriage; adultery committed by the defendant subsequent to the marriage; willful desertion of his wife by the defendant, or absenting himself without a reasonable cause for more than one year; habitual drunkenness of defendant subsequent to marriage; conviction of defendant for felony subsequent to marriage; inhuman…

Appeals by William Garland and appeals by the Bear Lake, etc., Irrigation Company from judgments and from orders refusing new trials of the district court of the first district. The opinion states the facts, except the following: The record in the case of William Garland v. John McMartin shows suit brought to foreclose a chattel mortgage given by McMartin to Garland, with the necessary allegations for foreclosure.

<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 defendant’s answer denied the ouster and denied that he had ever entered into the possession of the property described in the complaint, or that he ever withheld the possession thereof from the plaintiffs. The charge of the court to the jury was as follows: “Under the proof in this case, the only question to be submitted to the jury is, whether the defendant is in possession or is making any claim to the property of these plaintiffs. The defendant denies possession.

<p>Railroads. — Passengers.—Ejection.—Good Faith. — Whether or not a person who was attempting to ride on an expired railroad ticket believed, in good faith, that he had such a right, can in no way affect the right of the railroad company to eject him from the train.</p> <p>Id. — Id.—Id.—Place.—Where there is no statute of the state or territory where the ejection is made, in regard to putting off passengers, the railroad company has the right to expel a passenger, who is riding on an expired ticket and refuses to ' pay his fare, from the train at any place, so that, however, the passenger is not unreasonably exposed to danger.</p> <p>Comity Between States. — Presumption as to Statute. — Semble that the presumption of law is, when a right is claimed to have been violated by an act committed in another state, that the law of that state is the common law and not the law of the forum.</p>

<p>Oeiminal Law. — Fencing Public Lands. — Where appellants had erected a fence entirely upon their own lands, which fence enclosed a portion of the public lands of the United States; held that they had committed the offense of unlawfully enclosing the public lands. '</p> <p>Id. — Id.—Intent.—The intent which the law requires as necessary to the commission of an offense, is the intent to commit the act, which is defined as illegal and punishable, but not the having of an evil purpose to commit a crime.</p>

The opinion states the facts, except the following section of the statute: § 3402, 2 Comp. Laws, 1888. If the motion is to be made on a statement of the case, the moving party must, within ten days after the service of the notice (of motion for new trial) prepare a draft of the statement and serve the same on the adverse party. The opposite party has the like time to propose and serve amendments upon the moving party.

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

The opinion states the facts, except that the part of the order referred to by the -court, is as follows: Now, therefore, it is hereby ordered, adjudged and de■creed, that the said Campbell S. Brown, defendant, as such officer, forthwith release and surrender to the plaintiff Metz, all of said trunks and contents thereof, except trunk No. 3, B. B. & Co., and contents, and that the said Brown, as such constable, proceed to sell said trunk No. 3, and contents as provided by…

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

The opinion states the facts, but § 3310, 3 Comp. Laws, 1888, is as follows: “Before issuing the writ (of attachment) the clerk must require a written undertaking on the part of tbe plaintiff in a sum not less than two hundred dollars and not exceeding the amount claimed. by the plaintiff, with sufficient sureties that if the defendant recover judgment, or if the attachment be wrongfully issued, the plaintiff will pay all costs that may be awarded to the defendant, and all…

Appeal írom a judgment of the district court of the first district and from an order refusing a new trial. The- opinion states the facts.

Tbe opinion states tbe facts except the following: Tbe abstract in this case shows tbe pleadings, which were- a complaint in ejectment, an answer and cross-complaint alleging a right to tbe specific performance of a contract to purchase, an answer to tbe cross-complaint with specific denials of every allegation thereof. Trial was bad before a jury, verdict entered and judgment thereon December 9, 1891, and a notice of appeal and undertaking thereon filed December 18, 1891.

<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 opinion states the facts except that the note sued upon was as follows: “Provo, Utah, June 24, 1890. “Twelve months after date without grace I promise to pay to the order of G-oodhue and Van Meter, for value received, Four Hundred Dollars, payable at Provo, without defalcation, or discount, interest 8 per cent, per annum, from December 2o, 1890, before and after judgment.

The opinion states the facts, except the following: The complaint was not objected to on the ground of misjoinder of parties defendant. The rules and regulations prescribed by the Territorial act are stated in the opinion.

The opinion states the facts. Appellant was entitled to the value of the school house. The United States v. Land in Monterey Go., 47 Cal. 515; Graham v. R. R. Go., 36 Ind. 463, s. c. 10 Am. Rep. 56; Searl v. School District, 133 H. S. 553; Hendry v. R. R. Go. (Tex.), 24 Am. and Enq.

<p>Municipal Corporations. — Improvements.—Liability oe City.— A private action cannot be maintained against a municipal corporation for mere failure to construct improvements or for injuries from inadequate improvements built according to plans made by competent persons and adopted by municipal officers in good faith, but if injury results from a wrong method of carrying out such improvements or if they are unskillfully or improperly executed, or if the improvements, when made, are found to be defective or inadequate, and the municipal authorities neglect to use reasonable care and diligence to remedy the defects, where discovered, an action will lie at the suit of the person injured.</p> <p>Id. — Id.—Sewers.—Want oe Notice. — A municipal corporation is liable for a defect in a sewer caused by an obstruction placed in the sewer by workmen of the city, under the direction of the city engineer; knowledge on the part of the city is presumed, because it was chargeable with its engineer’s knowledge.</p> <p>Id. — Id.—Id.—Notice oe Defect. — If an obstruction remained in a sewer for a sufficient length of time for the city’s officers under the circumstances in the exercise of reasonable ca,re and diligence to have known of the defect, then notice of such defect to the city was presumed.</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>

<p>PERSONAL Property. — Dog.—A dog is “property” in the United States, within the meaning of the fifth amendment to the constition, which forbids any person being deprived of his property without due process of law.</p> <p>Constitutional Law.— Due Process oe Law. — Dog Regulations. — Provisions of the charter of a city authorizing a city to tax, regulate or prohibit the keeping of dogs, and to authorize the destruction of the same, when at large, contrary to the ordinance, and provisions of the ordinances requiring a registry of dogs, and the issuance of a certificate of registration, requiring the wearing of a collar by the dog with his registered number thereon and providing that all dogs “not so registered and collared,” shall be liable to be killed by any person, are valid and are not in violation of the fifth amendment to the constitution.</p>

<p>Executoes and Administrators. — Evidence. — Section 3877, 3 Comp: Laws 1888, provides that parties or persons in whose behalf an action or proceeding is prosecuted, or assignors of parties to an action or proceeding against an executor or administrator upon a claim or demand against the estate of a deceased person, as to any matter of fact occurring before the death of such deceased person and equally within the knowledge of both the witness and the deceased person, are not competent witnesses; held that this section applies to suits brought by as well as suits brought against an executor or administrator.</p>

<p>PRACTICE. — Equity.—Findings Unsupported. — Where the evidence in an equity cause is too indefinite to support the findings of the trial court, the cause will be remanded to the trial court to take further testimony and the findings will be set aside.</p>

<p>Banks and Banking.— Stock.— Liability of Officer Issuing.— A party, who issues a certificate of bank stock before tbe bank is formed, to a person who, by means of the stock, obtains a loan from a third party, who has no notice of any of the circumstances, is liable to such third party for the amount of the loan.</p> <p>Id. — Id.— Id.— Defense.— It is no defense to an action brought against a party who has wrongfully issued bank stock upon which a loan has been obtained from a third party who had no knowledge of the circumstances, that the stock was issued in order to obtain a loan from a party who was cognizant of all the circumstances, and that the stock was issued solely for that purpose.</p>

The opinion states the facts, except that all the sections of the' statute quoted in the opinion were passed on February 22, 1878, except section 2039, which was an amendment passed March 13, 1884.

The defendant requested the following instruction which was not given except as covered by the portion of the charge upon reasonable doubt which is quoted in the opinion: A reasonable doubt is an actual substantial doubt; such a doubt as would dispel an abiding conviction of guilt, and which arises out of the evidence.

The opinion states the facts. The representation that the second deed embraced no more land than the first deed was actual fraud. Cooley on Torts, 474, Story, Eq. Jur. § 186. The deed must be a free and voluntary act. If, therefore, the grantor is induced by fraud * * * to make a conveyance which he would not otherwise have made, the deed is voidable. Tiedeman on Eeal Property, § .796; Am. and Eng. Enc. Law, Yol. Y. p. 430.

<p>Judgment. — Vacating.—Excusable Neglect. — Where the real defendant and his counsel were absent, caused by excusable neglect and misunderstanding between counsel, and a judgment was given and entered against the defendant, and application to vacate the judgment was made within thirty days after its rendition; held that the court did not abuse its discretion in granting a.n order vacating the judgment upon terms.</p> <p>Id. — Id.—Id.— Remedy. — The remedy for a party against whom judgment is taken through his inadvertence is not by motion for a new trial, but' by application to set aside and vacate the judgment under the statute permitting the court to relieve a party from a judgment or order taken against him through his mistake, inadvertence or excusable neglect.</p> <p>Id. — Id.—Substitution op New Party. — Abatement.—Where another party has succeeded to the interest of the defendant, but has not been substituted on the record or his attorneys appeared, and judgment is taken against the original defendant, the real defendant who has succeeded to the nominal defendant’s rights may apply to set the judgment aside, because the suit does -not abate.</p> <p>New Trial. — Relief Against Judgment. — Inadvertence.—The remedy where a judgment has been taken through excusable neglect against a defendant is not by a motion for a new trial, which applies only where the aggrieved party was present at the trial, but by motion to vacate the judgment.</p>

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

Original proceeding in the supreme court upon exceptions to the report of the master in chancery. The case now comes before this court on exceptions to-the master’s report. The questions presented are interesting and of great importance.

Tbe evidence in tbe record showed that tbe horse was killed in a thickly settled region, fully occupied, except in places which were rendered unfit for cultivation by tbe overflow of tbe river. But at tbe particular point where the horse was, found .dead there was no house or cultivated land nearer than a quarter of a mile. .

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. Cited 2 Shearman é Redfield, Neg. § 704, Bennett v. Railroad Company, 102 U. S. 577, Heaven v, Pender, 11 L. B. (Q. B. D.) 503.

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

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

<p>Waters.— Irrigation.— Decree. — Certainty.—In a suit over contested water rights and appropriations of water for useful purposes, the share and interest of each claimant as ascertained by the evidence should be declared and settled.</p> <p>Id.— Id. — Id.—Uncertainty.—Where the court found that the defendant J. was the prior appropriator of a portion of the-water in dispute and found as a conclusion of law that he was entitled to the use of the water to the extent of his prior-appropriation, but did not ascertain how much the appropriation was, because unable to do so from the evidence; held that the findings and decree thereon were erroneous as they did not settle the rights of the parties.</p> <p>Constitutional Law. — Jurisdiction.—District Courts op Territory. — Under the acts of Congress granting to the district courts of the Territory exclusive original chancery jurisdiction, since the jurisdiction of a court comprises the powers it may-lawfully exercise, and since the courts of chancery have the-inherent power to refer a cause to a master to take the testi--mony and report findings, the district courts of the Territory-have this power exclusive of the statute upon the subject of" reference, §§ 3383 to 3390, 2 Comp. Laws, 1888.</p>

The opinion states the facts, except the following: This case differs from West v. Child, in the particular that the intestate ancestor of the plaintiffs made the claim in the probate court not in his own name, but in the name of Kimball and Lawrence.

<p>Ceiminal Law. — Peoceduee.—Opening Statement. — Under the statute of Utah Territory, which provides that after the reading of the indictment and statement of plea by the clerk, the prosecuting attorney or other counsel for the people must open the cause and offer the evidence in support of the indictment, it is not error for the trial court to permit the introduction of evidence by the prosecution without a statement being made of what facts counsel for the people intends to prove.</p>

The opinion states the facts, except the following: The findings in both cases were precisely similar except as to the name of the plaintiff, and were as follows: That on and prior to October 7, 1872, the plaintiff was the owner of two hundred and fifty shares of the capital stock of the Eureka Mining Company of Utah, and that on and prior to said date, Joab Lawrence, deceased, was the owner of more than fifteen hundred shares of said capital stock.

The opinion states the facts except that § 9 of the organic act, 1 Comp. Laws of 1888, p. 44, provides the jurisdiction of district courts shall be as limited by law.

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

<p>Criminal Law. — Homicide. — Indictment. — Murder in First Degree. — An indictment which charges a willful, felonious assault of deliberately premeditated malice with a revolver, and a beating and bruising then and there, which is also charged to be willful, felonious and of deliberately premeditated malice, followed by the infliction then and there of a mortal wound of which the deceased instantly died, charges murder in the first degree.</p>

<p>MASTER AND SERVANT.— NEGLIGENCE.— FELLOW SERVANT. — The foreman of a crew employed in switching cars in the yards of a railway company, who received general orders from the yardmaster before commencing work, and afterwards directed his crew in their execution, is not a fellow servant of a . member of another crew switching in the same yards under the direction of another foreman, nor a fellow servant of his own immediate foreman.</p>

<p>•Statutory Construction. — Implied Repeal. — Substitution. — Where a law is passed as a substitute for a prior enactment, covering the whole subject of the former law, the latter is repealed without express words of repeal.</p> <p>.Id.— Id.— Inconsistent Laws. — Where a subsequent statute is so repugnant to a former one that the two cannot be construed reasonably together, the former statute is repealed by implication.</p> <p>Id. — Express Repeal.— A clause of an act which by general words repeals all acts and parts of acts which provide for holding elections otherwise than as in the said act stated, repeals the former act or acts in regard to elections by express words and not by implication.</p> <p>Elections. — Selectmen. — Holding Over. — Statutory Construction.— Section 177, 1 Comp. Laws, 1888, provided that at the general election in 1889, and biennially thereafter, two selectmen should be elected. In 1892, a statute'was passed providing for a general election in November, 1892, for all territorial, county and precinct officers, and that the officers so elected should take office on the first day of January after -election; that the terms of incumbents should extend to January 1, 1893; two selectmen were elected in 1891, and at election under new law in 1892 two other selectmen were elected; held (1) That the second act repealed the first; (2; That the second act shortened the term of selectmen in office; (8) That the selectmen elected in 1892 were entitled to the office on January 1, 1893; (4) That the second act applied not only to extend the terms of incumbents whose terms ceased before January 1, .1893, but also to curtail the terms of those incumbents who held beyond January 1.</p>

<p>Appeal from a judgment of conviction and from an order theretofore made refusing a new trial of the district court of the first district. The opinion states the facts.</p> <p>In California, under similar code provision, oral charges without express consent of defendant is ground of reversal, as the statute requiring the' charge is mandatory. The People v. Beeler, 6 Cal. 246; People v. Payne, 8 Cal. 341; People v. Demont, 8 Cal. 423; People v. Ah Pong, 12 Cal. 346; People v. Woppner, 14 Cal. 437; People v. Antonio Chares, 26 Cal. 79; People v. Trim, 37 Cal. 274; People v. Sanford, 43 Cal. 29; People v. Prospero, 44 Cal. 186; People v. Max, 45 Cal. 254; People y. Mersey, 53 Cal. 574. Section 1093 of the penal code of California is the same as subdivision 6 of § 5033 of criminal code of Utah, and said § 1093 is held to be mandatory in the case of People v. Ilersey, 53 Cal. 574. Consent to oral charge is not presumed from failure to object. People v. Antonio Chares, 26 Cal. 79; People v. Trim, 37 Cal. 274; People v. Sanford, 43 Cal, 29; People v. Prospero; 44 Cal. 186. Oral instruction in absence of reporter is error per se. People v. Mersey, 53 Cal. 574.</p>

The record in this cause came up without a motion being made for a new trial. Judgment was entered on the 28th day of April, 1892, and a bill of exceptions was filed on the- day of July, 1892, and a notice of appeal on the Oth day of August, 1892. The record showed the complaint wherein the policy of insurance was pleaded in hac verla. The answer denied that the death was accidental, but averred that it was suicidal.

The opinion states tbe facts, except tbe following: Tbe record in this case shows no notice of appeal or undertaking on appeal. Tbe only document filed in the supreme court was a copy of the statement upon motion for new trial. No objection, however, was made on this account and no motion was made to dismiss the appeal.

Motion to recall remittitur of the supreme court. The opinion states the facts. Section 3 of the act herein alluded, to provided that the justices of the supreme court might be assigned to hold the district courts, and where two judges were assigned to the same district they might hold separate hearings or sit and act together.

<p>ORIGINAL Application for a writ of certiorari in the supreme court. The opinion states the facts.</p>

The opinion states the facts, except the following. The whole charge of the court was as follows: It now becomes my duty, gentlemen of the jury, to charge you as to the law of this case. This defendant is charged with murder — what is called murder in the first degree. Now, listen to the definition the statute gives: “ Murder is' the unlawful killing of a human being with malice aforethought.

The opinion states the facts, except that so far as the abstract in the case showed, there was no judgment to appeal from, only an order sustaining the demurrer.

Appeal írom a judgment of the district court of the fourth district, and from an order refusing a new trial. The facts are stated in the opinion, except the following; The testimony of Thomas H. Carr as to his purchase was as follows: “I bought the property of George W. Carr. . I was to pay $4,500. I paid him $250 in cash. I was to pay $40 a month until it was paid for. I after-wards sold one-half to Jeremiah T. Callahan. He was to pay me $2,400 for that half.

<p>Water Rights. — Pipe System. — Property.—The water of a system of pipes for supplying water to a city for the purpose of selling the citizens thereof water for domestic and irrigating purposes, is personal property and not an appurtenance to land.</p> <p>Id. — Id.—Taxation.—Under a statute exempting from taxation water rights, which provides “ all rights to the use of water and means of diverting water, shall be exempt from taxation in all cases where the land or other property upon which the water pertaining to such right [is used] is assessable for taxation,” a water system for selling water to the inhabitants of a city and used in conveying water from'a river to such city, is not exempt from taxation.</p>

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

<p>Telegraph Companies. — Negligence.— Contract.— A telegraph company which stipulates in the contract upon the back of the telegram that it will not be responsible for the negligence of its agents unless the message is repeated, cannot escape liability for the negligence of its agents on the ground of the contract.</p> <p>Damages. — Negligence.— Profits. — 'Where the evidence tended to show that by reason of a negligent mistake of the operator in sending a telegram, the plaintiff lost profits upon a bargain, which was shown by the telegram, semble that the loss of such profits was the reasonable, and proximate effect of defendant’s negligence.</p> <p>Appeal from a-judgment of tbe district court of tbe first district and from an order refusing a new trial. Tbe opinion states tbe facts, except tbe following:</p> <p>Tbe evidence as to damages was tbat the price agreed upon by tbe telegram was $4,000 for a certain piece of land, $1,000 in cash and tbe balance of tbe purchase price payable in six months. Tbe evidence showed that tbe land was worth on the market at tbe time, $5,500. Tbe owner of tbe land testifiéd tbat be would have accepted tbe terms offered by tbe telegram.</p>