ESTOPPEL LIMITATIONS.--The owner of land inclosed it upon what
he supposed to be the boundaries thereof. He then conveyed
the north half, reserving to himself and his grantees a perpetual
alley-way, five feet wide, along the south side of said north half,
and also conveyed an alley-way five feet wide along the north
side of south half retained. Said grantee of owner conveyed said
north half and said alley-way to defendants, and said owner con-
veyed said south half and said alley-way to plaintiff. The par-
ties entered into possession and such boundaries were ac-
quiesced in by adjoining proprietors for fifteen years, before com-
mencement of suit; held, that plaintiff was not estopped from
showing true boundaries as against defendant. Switzgable v.
Worseldine, 315.
NON-SUIT. Where the evidence for plaintiff, the servant, showed
negligence on the part of the defendant, the master, and con-
tributory negligence on the part of the servant, does not appear
affirmatively from the testimony of plaintiff, contributory negli-
gence is an affirmative defense, and the burden of showing it is
upon the defendant. Reddon v. Railway Co., 344.
CERTIORARI. See PROHIBITION, 6.
CHARTER. See MUNICIPAL CORPORATIONS, 1, 3; CORPORATIONS,
Under section 5, Chap. 21, Laws of Utah, 1884, a mortgage on chat-
tels made in good faith to secure a bona fide debt, although the
property was found in the possession of the mortgagor ninety
days after the maturity of the obligation, but where notice of lis
pendens of a suit to foreclose the chattel mortgage, was filed
on the day preceding the expiration of the said ninety days, a
decree of foreclosure and sale made in said suit will prevail
against the purchasers with notice, under an execution issued
and levied on the next day after the expiration of said ninety
days. Armstrong v. Broom, 176.
CHECK. See BANKS AND BANKING, 4.
CHURCH OF JESUS CHRIST, ETC. See CORPORATIONS, 3.
COHABITATION. See UNLAWFUL COHABITATION.
COMMISSIONER. See BAIL BOND, 2, 5; PROHIBITION, 5.
1. COMMISSIONERS OF SUPREME COURT, JURISDICTION OF.
tion 7 of Act of Congress of March 3, 1887 (Edmunds-Tucker
Law), a commissioner of the supreme court exercising the powers
of the justice of the peace at any particular place or precinct, has
only the same powers and jurisdiction as a justice of the peace
for the same place or precinct. People v. Hills, 410.
2. POWER OF COMMISSIONER TO TAKE BOND. Commissioner of Su-
preme Court, under 18 Stat., 255, has authority to take recog-
nizance of defendant held to answer to charge of unlawful co-
habitation. United States v. Eldredge, 161.
3. COMMISSIONERS OF SUPREME COURT -POWER TO PUNISH FOR CON-
ᎢᎬᎷᏢᎢ . A commissioner of the supreme court has no power to
punish for contempt a person who publishes in a newspaper, and
circulates in that way certain articles concerning such commis
sioner's court. People v. Carrington, 531.
CONDITIONAL ACCEPTANCE.--Under section 780, Code of Civil Proced.
providing that "If the defendant at any time before trial, offer
in writing to allow judgment to be taken against him for a speci-
fied sum, the plaintiff may immediately have judgment therefor,"
where defendant offered to pay $75, but plaintiff offered to take
$100, rather than proceed to judgment, which offer defendant
refused; held, that it was error to allow plaintiff, after the above
correspondence, to take judgment for $75, although, before the
trial, he sent defendant a notice of acceptance of the former
offer. Orth v. Mercantile Institution, 419.
CONFESSION. See EVIDENCE, 1, 2, 3, 10; UNLAWFUL COHABITA-
TION, 5.
CONGRESS, POWER OVER TERRITORIES. See CORPORA-
TIONS, 3, 4, 5.
CONGRESSIONAL GRANT. See PUBLIC LANDS.
CONSIDERATION, FAILURE OF. See FORECLOSURE.
CONSTRUCTION, STATUTORY.
RETROACTIVE EFFECT.-A statute will not be given a retrospective
effect, unless its terms show clearly a legislative intention that
it should operate retrospectively, and where an act, amending an
act relating to the terms of County Treasurers substituted the
words two years for the words four years, a person elected to the
office before the term of the incumbent who was elected and had
CONSTRUCTION (Continued).
served almost two years before the passage of the amendatory
act, had expired, will not be entitled to the office as against the
incumbent. Farrel v. Pingree, 443.
VIOLATION OF INJUNCTION.-Where injunction contained in decree
appealed from, enjoining appellant and its agents from entering
upon, or digging in or extracting ores from a certain mining
claim, and it appeared that appellant was simply remaining in
same situation as when the decree was rendered, even if in the
actual occupancy of certain drifts in said claim, and that appel-
lant was not digging in or extracting ores from said claim and
was not preventing respondents from entering therein, held, that
appellants and its agents were not guilty of a contempt. Min-
ing Co. v. Mining Co., 151.
CONTINUANCE. See PRACTICE, 1.
CONTRACT. See CORPORATION, 3; DAMAGES, 1; DESCRIPTION, 1, 2.
1. CONSTRUCTION OF. "Original cost" in contract was intended to
mean actual cost, where E. agreed to deliver to C. mining stock
to the value of five thousand dollars at its original cost, and ad-
vances or loans made to the corporation by E., which have been
repaid to him by the corporation out of its own funds, cannot
be regarded as a part of such cost, and E. is estopped from
charging such loans to C. as a part of the cost. Egan v. Clas-
bey, 154.
2. RIGHT TO RESCIND.-Respondent sold and conveyed to appellant
two parcels of land for $3,150, no part of which was paid, and at
the same time loaned him $850, and took note of appellant and
wife for $4,000, secured by mortgage on said two parcels of land
and a third parcel belonging to said wife, and respondent brought
suit to foreclose, and appellants filed answer and cross-complaint
claiming right to rescind as to one parcel purchased, having dis-
posed of the other parcel purchased, held, that the whole trans-
action of sale and note and mortgage was one contract, and could
not be rescinded in part, even though respondent had consented
to the sale by appellant of the one parcel disposed of. Kelly v.
Kershaw, 295.
3. POSSESSION OF PREMISES.-In the case below a finding as to
whether the vendee surrendered possession of the premises,
where the contract is silent as to the possession is immaterial,
and refusal to find thereon is not error. Orr v. Rich, 519.
4. RESCISSION OF.--Where defendants agreed to sell to plaintiff land,
for which he agreed to pay in live-stock and give his note for any
balance remaining unpaid at a certain time, and payment was
made of a part and at the time above a balance remained un-
paid, and no note was given at that time and the balance never
paid or tendered, and subsequently the plaintiff gave notice to
the defendants that the contract was rescinded and demanded
repayment of the amount he had paid, on the ground that de-
fendants had failed to convey and on the same day that the no-
tice of recission was given, the defendants tendered a deed which
was refused; held, that a finding of the trial court that the con-
tract was not rescinded was justified by the evidence. Orr v.
Rich, 519.
5. WAIVER OF CONDITION. --A party to a contract may dispense
with a condition in his favor, and when this is done, it is the same
as though the thing dispensed with had been done. Mining Co.
v. Mining Co., 623.
CONTRIBUTORY NEGLIGENCE. See MASTER AND SERVANT, 2.
"COPPER ACT." See CRIMINAL LAW, 21.
CORPORATIONS. See ASSIGNMENT, 1, 2; RECEIVER.
1. WHAT DOMESTIC--ATTACHMENT. A corporation organized under
the laws of the United States, and doing business in the Terri-
tory of Utah, is a domestic corporation of Utah and a writ of
attachment issued out of a district court of the said territory,
was rightfully served on said corporation in such district. Losee
v. McCarty, 528.
2. PROOF OF POWER TO HOLD REAL ESTATE. In case above, it is
not necessary to prove by the laws of the state where organized
that said corporations were authorized to hold or transfer real
estate, such power is determined by the laws of the government
in which they are doing business. Tarpey v. Salt Co., 494.
3. CONTRACT, LAW IMPAIRING OBLIGATION OF.--An act of the terri-
torial legislature of Utah, approved January 19, 1855, incorporat-
ed the Church of Jesus Christ of Latter-day Saints, and con-
ferred upon the corporation extraordinary powers, some of which
the legislature possessed for the purposes of government; held,
that the charter was accepted, subject to the right of Congress
to disapprove of the law, and such disapproval was not a law
impairing the obligation of a contract. United States v. Church,
361.
4. IMPLIED APPROVAL.-An act of Congress approved July 1, 1862,
repealed portions of the act of the territorial legislature above;
held, that this was not an implied approval of the remainder of
the act, and that the remainder did not become a law of Con-
gress. United States v. Church, 361.
CORPORATIONS (Continued).
5. CHARTER-POWER OF CONGRESS TO ANNUL CHARTER AND TO
DISSOLVE CORPORATION.-Congress had power by an act in force,
March 3, 1887, to annul the remainder of the law incorporating
said church, and the power to dissolve the said corporation nec-
essarily follows therefrom. United States v. Church, 361.
6. FORFEITURE OF PROPERTY HELD IN VIOLATION OF LAW, Prop-
erty acquired and held by said church in violation of the
act of Congress, approved July 1, 1862, is subject to forfeiture,
and the escheating thereof does not interfere with any vested
right. United States v. Church, 361.
7. GRANT FROM ONE TO ANOTHER. The articles of amalgama-
tion and consolidation incorporating the consolidated com-
pany, contained a grant as follows: The said Central Pacific
Railroad Company "hereby sells, assigns, transfers, grants, bar-
gains, releases and conveys" to the said consolidated company
"all its property, real, personal and mixed" and "all rights, privi-
leges and franchises," etc., held, that the articles conveyed the
lands granted to the former company by the government under
the act of July 1, 1862. Tarpey v. Salt Co., 494.
8. PROOF OF EXISTENCE. -Where title is traced through corpora-
tions, which are not parties to the record and with which de-
fendant has no privity, proof of their existence as corporations
de facto by their articles of incorporation duly made, is sufficient
prima facie. Tarpey v. Salt Co., 494.
9. LIEN FOR ADVANCES.- Plaintiff brought suit to declare a deed
absolute in form a mortgage and for an accounting, and alleged
that the summonses issued in the cases that resulted in the
judgments and sales under which defendants claimed title were
not served on a proper person; that after the sale on execution
and before the time for redemption had expired, the plaintiff
agreed that if J. and C. would redeem the property and protect
the interest of the company and advance the money to redeem,
such advance would be treated by plaintiff as a preferred debt
and that J. and C. should hold the deed given on sale as security
and should hold title until the money was refunded, and that J.
and C. did so; held, that complaint showed in J. and C. an equit-
able claim on the property until advances were paid back, unless
the transaction was within the statute of frauds. Mining Co. v.
Jennings, 243.
10. CONSTRUCTIVE TRUST IN DIRECTORS.-Where two directors ob-
tain tile and absolute deed as above, they are in possession
as trustees for the corporation and should account, though
it were conceded that the advance was not a loan to the company
and that the deed was not obtained by actual fraud. Mining
Co. v. Jennings, 243,
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