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the parties who had appeared or whatever other facts upon which it is sought to make the claim that the justice had exceeded jurisdiction, or had not regularly pursued his authority. Upon the service of the writ the return should be responsive to the command of the writ, and should fully answer the allegations of the affidavit or the petition for the writ, and should be full and complete with reference to all essentials of jurisdiction. The record itself, as returned by the inferior tribunal or board, imports verity, and is deemed conclusive as to all matters or things which are required to be recorded and made of record, and may not be aided, contradicted, or controlled by anything dehors the record nor by statements in the return. As to all such matters, the reviewing court on the hearing must confine itself to an inspection of the record as returned. (4 Ency. Pl. & Pr., pp. 218, 224, 277.) But, where jurisdictional facts or the facts upon which the jurisdiction or the regularity of the authority pursued depends do not appear of record and are not required to be made of record, such facts or the evidence of them as may be necessary to determine whatever questions as to the jurisdiction or the authority of the inferior tribunal or board may be involved should be stated in the return and certified to the reviewing court. In other words, since the main office of the writ is to confine. the actions of inferior tribunals and boards within the limits. of their delegated powers, the evidence touching the facts upon which the jurisdiction or the authority of the inferior tribunal or board depends, when a record is not required to be made of such matters, should be returned to enable the reviewing court to examine the same, and determine whether the jurisdiction was lawfully assumed and the authority regularly pursued. (4 Ency. Pl. & Pr., pp. 222-281; Blair v. Hamilton, 32 Cal. 49; City of Los Angeles v. Young, 118 Cal. 295, 50 Pac. 534, 62 Am. St. Rep. 234; State ex rel. Thompson v. Board, 7 Nev. 83.) The return as to such statement of facts is likewise conclusive when made by a tribunal or board composed of the same person or persons be

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fore whom the proceedings took place, and when such statement of facts relates to such things as were presumably within their personal knowledge and were within their jurisdiction to pass upon and determine. But, when such extrinsic facts not required to be of record are set forth in a return made by a tribunal or board not composed of the same person or persons before whom the proceedings were had, or otherwise were not presumably within their personal knowledge, then the return as to such facts is not conclusive, but may be rebutted by the petitioner. (Fairbanks v. Mayor, etc., 132 Mass. 42; Haven v. County Commissioners, 155 Mass. 467, 29 N. E. 1083.) When the inferior tribunal or board is unable to return and certify what the facts and proceedings in such particular were, or the evidence of them, the reviewing court may then hear evidence aliunde the return, not for the purpose of determining the merits of the controversy and of trying it as on an issue of fact, but for the purpose of ascertaining what transpired before the inferior tribunal and what proceedings were had and taken before it. (Conover v. Bird, 56 N. J. Law, 228, 28 Atl. 428.)

In this case the return was made by a tribunal not composed of the same person before whom the proceedings inquired about took place. The case in the justice's court was tried in April, 1901, before one W. N. Thomas, the then qualified and acting justice of the precinct, and a judgment was on that day rendered and entered by him. In January, 1906, he was succeeded in office by the respondent H. A. Pedersen, who, when the writ was issued, was then the qualified and acting justice of the precinct.. The writ was properly directed to him in his official capacity as the incumbent of the office. Now the record of the justice's court as returned by him does not show that notice had been given the defendant of the day set for trial. But, as before observed, the justice was not required by law to make such things appear of record. Nor did the justice in his return show that such a notice was given, nor did he return or certify to the re

6,7

viewing court the facts or the evidence of them, of the giving of such a notice, or what the proceedings were in such particular. If the affidavit for the writ had been sufficient, and the justice to whom the writ was directed having failed to return what the facts and the proceedings were with respect to the giving of the notice, the reviewing court could. properly have required a return made of them. If the justice had been unable to respond to the rule, the court then could properly have received evidence to ascertain what proceedings in that regard were had before the justice's court. This course was not pursued by the district court. It heard evidence of the merits of the controversy and tried it as an issue of fact, and determined it on the merits. In so doing the court committed error. But the error was harmless, for the reason that the affidavit for the writ was insufficient to authorize the issuing of the writ. Nowhere in the affidavit is it stated wherein or in what particular the justice exceeded or acted without jurisdiction, or did not regularly pursue his authority. An allegation of that kind. was essential. To merely state, as is stated in the affidavit, that the justice in rendering and entering judgment exceeded his jurisdiction, without specifying wherein or in what particular jurisdiction was exceeded is a mere conclusion. There being no allegation in the petition or affidavit that the justice proceeded to trial without first notifying the parties of the day fixed for trial, the justice was not called upon in his return to certify to the reviewing court the proceedings in such particular, nor was the petitioner entitled to have such proceedings reviewed. The certiorari proceedings ought, therefore, to have been dismissed. Whether the petitioner was entitled to amend his affidavit in respect of such a matter of substance-such an amendment necessarily calling for a new return—we need not decide, for leave to amend was not asked. Nor, in view of our holding, is it necessary to decide the questions with respect to the petitioner's delay and laches in not making a more timely application for the writ.

The case is remanded to the district court, with directions to dismiss the proceeding. Costs to the respondent.

FRICK and MCCARTY, JJ., concur.

C. H. WARREN, Appellant, v.

JOHN F. SMITH,

Respondent.

No. 1949. Decided March 23, 1909 (100 Pac. 1069).

1. BILLS AND NOTES-BONA FIDE HOLDER. While the robber or finder of a negotiable instrument can acquire no title against the real owner, still if it be indorsed in blank or payable or indorsed to bearer one acquiring it from a robber or finder bona fide for a valuable consideration, and before maturity without notice of the loss, may retain it against the true owner. (Page 459.)

2. TROVER AND CONVERSION-DEMAND. Trover lies without previous demand and refusal against one improperly possessing himself of a negotiable instrument stolen from the owner, or against one receiving payment even in good faith of such instrument under a forged indorsement. (Page 459.)

3. BILLS AND NOTES. Under Comp. Laws 1907, section 1611, providing that every holder is deemed prima facie to be a holder in due course, but, when it is shown that the title of any person who negotiated the instrument was defective, the burden is on the holder to prove that he or some one under whom he claimed acquired title as a holder in due course, where plaintiff proved that a check was stolen from him, the burden shifted to defendant, an indorsee, to prove that he or some one under whom he claimed acquired title as a holder in due course. (Page 460.)

4. BILLS AND NOTES. Under Comp. Laws 1907, section 1575, providing that, where a signature is forged, it is wholly inoperative and no right to retain the instrument or to enforce payment thereof against any party thereto can be acquired under such signature, even a bona fide holder without notice acquires no title to a negotiable instrument under a forged indorsement. (Page 460.)

APPEAL from the Second District Court, Weber County.Hon. J. A. Howell, Judge.

Action to recover money. The opinion states the facts. From a judgment for the defendant, the plaintiff appealed. REVERSED.

P. L. Williams, Geo. H. Smith, John G. Willis and H. B. Thompson for appellant.

A. R. Heywood for respondent.

APPELLANT'S AUTHORITIES.

Title to the check never passed out of the plaintiff. (Randolph on Commercial Paper, sec. 1893; Anderson v. Bank, 20 N. Y. Suppl. 511; Palm v. Watt, 7 Hun 317; sec. 1575, Compiled Laws of Utah 1907; Bank v. Bank, 1 Hill 387; Anderson v. Bank, 20 N. Y. Supp. 511; Compiled Laws 1907, sec. 1575; Beattie v. Bank, 174 Ill. 571, 43 L. R. A. 655; Foltier v. Schroder, 19 La. Ann. 17, 92 Am. Dec. 521; Roach v. Woodall, 91 Tenn. 206, 30 Am. St. Rep. 883; sec. 1611, Compiled Laws of 1907.

STRAUP, C. J.

The plaintiff alleged in his complaint that on March 1, 1904, the Southern Pacific Company, for services rendered, issued and delivered to him its pay check, payable to his order, and drawn on the treasurer of the Southern Pacific Company, in the sum of $63.20; that on March 20th the check was stolen from or lost by the plaintiff and his indorsement forged thereon; that the check afterwards came into the possession of the defendant, who collected thereon the sum of $63.20; that the plaintiff received no part of the money evidenced by the check; and that the defendant, by reason of the premises, became indebted to the plaintiff in such sum, no part of which had been paid. The defendant