law, are void for want of jurisdiction in the trial court.
State v. Beddo, 432.
8. The intendments of the law are that the judgments of courts
of general jurisdiction are valid, and that he who attacks
them must conclusively show their validity. Mining Co. v.
Eureka City, 447.
1. Under Sec. 3129 R. S. 1898, providing that in a proper case, a
jury may be demanded "orally in open court at the time of
setting," and where such a case is called for setting three
days before the commencement of a term, and a jury is de-
manded and the fees paid, the statute has been complied
with, and notwithstanding a rule of court requiring such
demand, at least five days before the commencement of a
term, the party making such demand is entitled to a jury,
for a rule of court imposing limitations and requirements not
imposed by statute is null and void. Nichols v. Cherry, 1.
2. In a criminal case tried before an unlawful jury, all proceed-
ings, after plea entered, are wholly void because of a lack of
jurisdiction in the court, and a sentence and judgment
therein are mere nullities and may be so treated by every one
at any time. State v. Bates, 65.
3. A written objection, by a juror, to serving on a jury with
another certain juror on account of the color of the latter,
although frivolous, unwarranted and unworthy, forms no
basis for an action at law for damages, especially where the
objection was not accompanied by either abusive language
or assault, or defamation of character. McPherson v. Mc-
Carrick, 232.
4. Color is not a test of one's right to render jury service under
Sec. 1297 R. S. 1898. Id.
5. "A reasonable doubt is not a mere imaginary, captious, or
possible doubt, but a fair doubt, based upon reason and com-
mon sense, and growing out of the testimony in the case. It
is such a doubt as will leave the juror's mind, after a careful
axamination of all the evidence, in such a condition that he
cannot say that he has an abiding conviction, to a moral cer-
tainty, of the defendant's guilt." State v. Williamson, 248.
22 Utah-35.
6. Where the facts are undisputed an instruction to the jury to
find for the plaintiff in the amount shown is proper. Mining
Co. v. Juab County, 395.
Where interest is recoverable, not as a part of the contract,
but by way of damages, the giving or withholding of interest
is largely in the discretion of the court and laches of parties
may be considered in the award. Culmer v. Caine, 216.
Section 16, of Chap. 64, Session Laws of 1899, does not make it
the duty of the State Board of Land Commissioners to select
and contract land applied for, nor to fix a uniform price for
all lands selected. Miles v. Wells, 55.
1. The legislature may legislate upon any subject, as to which
there is no constitutional restraint, or, as to which the para-
mount law does not speak. Nichols v. Cherry, 1.
2. Section 3129 R. S. 1898, providing how, when and where a
jury may be demanded, is not in violation of Sec. 10, Art. 1,
of the constitution, but is a proper exercise of legislative
power and valid.
3. The legislature is not restricted in its appropriation of public
moneys by legislative enactment to cases where a legal
demand exists against the county or state. The same power
which it may exercise over the revenues of a state it may
exercise over the revenues of a county or city for any purpose
connected with its present or past conditions, not repugnant
to the organic law, and where a moral obligation exists, the
legislature may give it legal effect. Civic Federation v. Salt
Lake County, 6.
4. When a portion of an act is unconstitutional and such por-
tion can be rejected, and the remaining portion is properly
indicated by the title and forms a complete enactment in
itself, capable of being executed according to the manifest
intention of the leglslature, independently of the part stricken
out, such portion must be sustained. State v. Beddo, 432.
Technically speaking every order appointing or denying the
application for the appointment of a receiver, is interlocu-
tory, and the question of the right to appeal from such an
order must be determined by the law of the forum. Popp
v. Mining Co., 457.
Under the provisions of Secs. 3498 and 3517 R. S. 1898, an action
to determine adverse claims cannot be maintained against
the holder of the legal title by one who has a mortgage lien;
and such an action once commenced, cannot be converted
into a foreclosure proceeding, so as to allow of the entry of a
decree, in effect a decree of foreclosure. Fields v. Cobbey,
415.
The construction of a notice of a mining location should be
liberal and not technical, and the sufficiency of a notice with
reference to natural monuments or permanent objects is a
question of fact. Fissure Mng. Co. v. Old Susan Mng. Co.,
438.
1. Any change or limitation of a remedy which does not mater-
ially abridge the right, does not impair the obligation of the
contract. Kirkman v. Bird, 100.
2. Although when adjoining owners and their predecessors in
interest, occupy land to a given line, and treat such line as a
boundary between their respective lots for twenty years,
neither can thereafter claim beyond such line; and although
a parol agreement long acquiesced in to settle a boundary
between adjoining owners, being the result of an honest
attempt to fix the true boundary line according to which the
parties and their predecessors have actually occupied and
made improvements with reference thereto, though the time
has not been sufficient to establish a bar under the statute of
limitations, will work an estoppel; yet a recent parol agree-
ment between parties, fixing the boundary line between un-
patented mining claims, is void under the Statute of Frauds,
and under the circumstances shown could not bind the gov.
ernment. Strickley v. Hill, 257.
LIMITATIONS-STATUTE OF--Continued.
3. A new promise made after a cause of action is barred does not
revive the former obligation, but creates a new one, which in
its turn, is subject to a bar by lapse of time as an original
promise. Ireland v. Mackintosh, 296.
4. Although the bar of the statute of limitations may be waived
unless plead, yet until the bar is waived by some act of the
party in whose favor it has accrued, the right to interpose it
as a defense exists and once having accrued it becomes a
vested right which cannot be taken away by legislative
enactment. Id. 296.
5. When a party pays an unlawful tax under protest, a cause
of action, under the provisions of Sec. 180 of the Revenue
Act 1896 (Sec. 2684 R. S. 1898) at once accrues in favor of
such party to recover such tax; the statute of limitations
begins to run from the date of such payment and section 2883
R. S. 1898 fixes the limitation in such cases at four years,
Mining Co. v. Juab County, 395.
1. Mandamus will only lie where a board or officer, exercising a
quasi judicial function, has refused to act and not after
action to reverse or review the judgment or discretion of the
board or officer. Civic Federation v. Salt Lake County, 6.
2. Where a board of county commissioners has rejected a claim
against the county, appeal and not mandamus is the proper
remedy. Id. 6.
3. A court has no jurisdiction to direct, by mandamus, how the
discretionary power, vested in the State Board of Land Com-
missioners by chapter 64, Session Laws of 1899, shall be exer-
cised. Miles v. Wells, 55.
1. Under the provisions of Chap. 30, S. L. 1890, a notice of
mechanic's lien containing a notice of the intention to claim
a lien, a description of the property to be charged, an
abstract of indebtedness showing the whole amount of the
debt and credit, and the balance due, or to become due, with
a verification by one of the claimants is sufficient, and under
Sec. 14 of said chapter an incorrect statement of the amount
due does not invalidate the claim unless made in bad faith.
Culmer v. Caine, 216.
MECHANIC'S LIEN-Continued.
2. Under the provisions of Sec. 17, Chap. 30 S. L. 1899, where
the work was continuous the lien attached even if the work
was done or materials furnished under separate contracts.
Id. 216.
3. In a mechanic's lien foreclosure, cross-complainants must be
held as concluded by their claim as set up in their pleading
and they cannot recover more than they asked, but the lien
may relate back to the commencement of work or first fur-
nishing of materials. Id. 216.
1. Where it appears in a protest and adverse suit that one of
two locators of a mining claim was a native born citizen; that
the other although of foreign birth had resided in various
states of the Union for many years; that he had served as a
soldier in the volunteer army of the United States from 1863
to 1866, and had been honorably discharged therefrom; that
he had exercised the right of franchise and had voted at sev-
eral territorial elections, and in 1887 had taken and subscribed
an oath to the effect that he was over 21 years of age, a resi-
dent of Utah, a naturalized citizen of the United States, and
that he would support the Constitution thereof; that he was
awarded and drew a pension from the government for dis-
abilities received while in the military service, a finding that
the first party was a citizen, and the second party a natural-
ized citizen, will not be disturbed. Strickley v. Hill, 257.
2. If a citizen and an alien jointly locate a claim, not exceed -
ing the amount of land allowed to one locator, such location
is valid as to the citizen, or to one who has declared his inten-
tion to become such, and a conveyance by him, through an
alien, to another citizen, conveys a complete title to the claim
located, provided all other provisions of the law were com-
plied with, and there be no intervening rights. Id. 257.
3. The consent of an owner of an undivided interest in mining
ground to the establishing of a certian line as a boundary,
cannot bind his co-owner not consenting. Id. 257.
4. An alien who has declared his intention to become a citizen
by enlistment in the United States Army, under Sec. 2166 R.
S. of U. S. may, under the provisions of Sec. 2319, locate
mineral lands upon the unoccupied public domain. Id. 257.
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