10. Under Sec. 655 R. S. 1898, when a demurrer interposed to the complaint in the court below is overruled, and the plaintiff elects to stand upon his complaint and the defendant elects to stand upon his demurrer without filing an answer, and judg- ment is entered for the defendant with execution, on appeal to this court, the facts being admitted, and it appearing that no request was made to file an answer in case the demurrer was overruled, or to withdraw the demurrer, Held, that this court has power to order judgment entered for the plaintiff on the demurrer in the court below. Gammon v. Bunnell, 421.
11. The election to stand upon a demurrer is equivalent to a refusal to plead over, and to abide by the final result, even to judgment. Id. 421.
When facts showing the commission of a felony under Sec. 4175 R. S. 1898 are related to the members of a sheriff's posse, Sec. 4638 R. S. 1898, subdivisions 2 and 3, is sufficient warrant for the members of such posse although private citizens and non-residents of the county, to follow and capture the per- sons who committed the crime, using sufficient force to accomplish such capture. State v. Morgan, 162.
An execution creditor is not entitled to possession and rents of the property levied upon, before sale and before the time for redemption has expired. McLaughlin v. Bank, 473.
1. A prescriptive right to an easement can only arise after use and enjoyment for a period of twenty years. Funk v. Ander-
2. A prescriptive right can only arise by analogy to the statute when the facts attending the use and enjoyment are such as the statute requires. Id. 238.
1. When the evidence is not before the appellate court it will be presumed that the findings are supported by the evidence. Culmer v. Caine, 216.
2. Under Sec. 2861 R. S. 1898 the presumption is that one hold- ing the legal title has been possessed of the land within the time required by law unless it appears that the property was held and possessed adversely to him for seven years. Funk v. Anderson, 238.
3. Where a cause is tried before a judge sitting without a jury and a clear preponderance of competent, relevant and material evidence supports the findings, the appellate court will not reverse because of errors in the court below in admitting in- competent, irrelevant or immaterial evidence, for the pre- sumption in such case is that it was wholly disregarded. Wells v. Davis, 322.
1. A testator having exercised the right given him by Sec. 2731 R. S. 1898 to dispose of his personal estate by will, and the widow having renounced the will, she cannot claim interest in the personalty as distributee under Sec. 2828. In re Little, 204.
2. Under Sec. 2826 R. S. 1898, the estate being solvent, and out of debt, the value of such part of the homestead as may be set aside to the widow should be deducted from her distribu- tive share provided for in such section; she cannot have both unless such design on the part of the testator clearly appears from the will. Id., 204.
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 there- in are mere nullities and may be so treated by every one at any time. State v. Bates, 65.
The withdrawal of a demurrer cannot be compelled by the court, and while it remains it is an admission of the facts alleged in the complaint demurred to. Gammon v. Bunnell,
Where, as in this case; an officer is bound to take notice of his want of authority to assess, levy or collect a certain tax, and such tax is paid under protest, a statement in the protest that the demand is illegal, would be useless and is not required of the party making such protest. Mining Co. v. Juab County,
Even though it be admitted that respondent was negligent in some things, still if the evidence introduced by appellant in attempting to prove his case, shows that his own negligence contributed to and was the proximate cause of the injury, the question of negligence becomes one of law for the court. Silcock v. R. G. W. Ry., 179.
The real object of a building and loan association being the mutual and equitable benefit of all its members; and every member being entitled to share equally with every other member, in proportion to his holdings, in the profits of the enterprise, he is equally bound to stand his proportion of the expenses and losses incident to its management; and where a stockholder has, by proxy, voted for a resolution which re- sulted in charging his and other outstanding stock with a loss, he is effectually estopped from denying that the action of the directors, taken in obedience to the will of the stock- holders, was warranted. Betz v. Building, etc., Assn., 149. PUBLIC POLICY.
1. It is not against public policy for an attorney to loan his client money with which to pay costs of suit, nor to advance the money necessary to carry on the suit, as needed, when such advances are made as a loan, with the express under- standing or agreement for its repayment, and there is no con- tract of indemnity against the clients' liability to pay costs. Potter v. Ajax Co., 273.
2. An attorney who, in the pursuit of his profession, makes an agreement which is against public policy, is guilty of a fla- grant breach of professional duty. In re Evans & Rogers, 366.
PUBLIC POLICY- Continued.
3. A party employed to act as agent in securing the services of attorneys, cannot contract to receive a portion of the fees himself as assistant attorney; he cannot be both principal and agent for such a transaction is against public policy and void. Id., 366.
In an action to quiet title to real estate and for damages for the removal of a division fence, a finding that the fence in dis- pute was built by plaintiff and defendant's grantor in 1884 or 1885 and ever since was "maintained as the agreed, estab- lished and undisputed division fence and line, until October 11, 1898, when it was torn down by defendant without con- sent of plaintiff and against his will; and that thereby the plaintiff's otherwise enclosed premises were left open, exposed and unprotected against trespassing animals," clearly shows that the plaintiff was entitled to some damages, and to costs under Sec. 3339 R. S. 1898, and a decree, which after quieting plaintiff's title, dismisses his claim for damages and divides the costs between plaintiff and defendant, will be set aside as to such dismissal and division of costs. Swenson v. Snell, 191.
1. The rule, that in a case of rape, the declarations of the injured female, made immediately or soon after the injury was inflicted, are competent testimony as part of the res gestæ, not to prove the commission of the offense, but in cor- roboration of the evidence of the prosecutrix applies with equal force to a prosecution for assault with intent to rape. State v. Imlay, 156.
2. In a prosecution for rape, it is not necessary, under our statute, to show in the information that the person ravished was not the wife of the defendant. State v. Williamson, 248. RATIFICATION.
A partner without special authority can bind the firm only within the scope of the business, and the firm, in the absence of ratification, is not bound by any transaction of a partner outside the real or apparent scope. Cavanaugh v. Salisbury,
1. An unlawful trial and a conviction therein followed by an absolutely void judgment on such conviction, does not have the effect of putting a defendant once in jeopardy, and upon his release from custody under such void judgment, he may be rearrested under the same indictment and upon the same charge; and no plea of once in jeopardy can be a bar to a law- ful trial notwithstanding his former conviction stands unre- versed. State v. Bates, 65.
2. When a decision by the Supreme Court of the United States renders absolutely void, convictions and judgments in certain cases which have never been appealed, on account of certain similar defects in procedure, a defendant released from sen- tence under such a void judgment may be rearrested and tried for the same offense, and the doctrine of the law of the case does not apply. Id. 65.
"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 examination of all the evidence, in such a condition that he cannot say that he has an abiding conviction, to a moral certainty, of the defendant's guilt." State v. Williamson, 248.
1. Technically speaking every order appointing or denying the application for the appointment of a receiver, is interloc- utory, 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.
2. Where a receiver is appointed pendente lite, under Sec. 3114 R. S. 1898, and a sufficient undertaking is also filed under the provisions of Sec. 3116 R. S. 1898, even although the appoint. ment was made ex parte, the order appointing is not a final order from which an appeal will lie under Sec. 9, Art. 8 Const. Id. 457.
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