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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