or bill of exceptions, we would have no hesitancy in permitting the correction to be made nunc pro tunc. But the defect is not of such character. It is one that goes to the very substance of the bill of exceptions. As will be seen by a reference to counsel's notice, they considered it a matter of substance, and hence served notice that they would ask the district court to "settle and sign a bill of exceptions in this cause in the form now proposed." This, in effect, made it a new bill of exceptions. True, it was, in a particular sense, but an amendment to a bill already existing. The amendment, however, was not a mere correction of something defectively done; it was adding matters of substance to the bill as originally settled and signed. If matters of substance may thus be incorporated into a bill of exceptions after the statutory time has expired, then the statute is annulled, and there is no time limit within which a bill of exceptions must be settled and signed. The statute is exceedingly liberal in allowing the time to be extended, and, if good cause exists for doing so, the trial courts are generous in extending the time for settlement of a bill of exceptions, and in allowing amendments thereto. In order to avoid confusion, and to require the appealing party to proceed with some degree of diligence to bring such matters as he may desire into the record on appeal, some time limit is necessary. This limit is imposed by the statute, and the courts are as powerless to disregard it as are the parties who invoke the aid of the statutes in making a record for the purposes of an appeal. The proceedings had during and after the trial are 3, 4 not a part of the court's record, but must be made so as provided by statute. The record constituting the judg ment roll is the record of the trial court, and, when properly certified to by the clerk and transmitted to this court, is conclusive upon the parties and upon this court. If there is an omission or mistake in this record, the clerk may at any time supply the omission, or correct the mistake, when, upon suggestion of counsel, this court requests the clerk to do so. In such a case, however, the clerk does not create a record; he simply corrects errors or supplies omissions in the transcript of an existing record so that this court may have the 5 record before it as it in fact exists. The district judge, however, in settling a bill of exceptions, makes a record of the proceedings had before him during and after the trial, which are not a part of the record certified to by the clerk. The statute prescribes how and when this record shall be made up. The trial judge, in making this record, has such powers only as are conferred upon him by statute, and this court is as powerless as the trial court to enlarge these powers. If, therefore, the statutory time has elapsed within which the trial court may settle and sign a bill of exceptions, and if no extension of time has been given as provided by statute, the judge is without authority to allow and sign a bill of exceptions, and his act after such time is a mere nullity, and the pretended bill of exceptions so signed is of no force or effect as a record. (Butter v. Lamson, 29 Utah 439, 82 Pac. 473; Bryant v. Kunkel, 32 Utah 377, 90 Pac. 1079. 6 7 If the district judge has no legal power or authority to allow and sign a bill of exceptions, except within the time and extensions thereof, as as fixed by statute, it would seem to logically follow that he cannot amend a bill of exceptions with respect to matters of substance after the time to settle a bill has expired. To this effect are the following authorities: Michigan Ins. Bank v. Eldred, 143 U. S. 293, 12 Sup. Ct. 450, 36 L. Ed. 162; Perry v. Central R. R., 74 Ga. 411; Bridges v. Kuykendall, 58 Miss. 827; Dreyfus v. Gage, 62 Miss. 605; Busby v. Finn, 1 Ohio St. 409; Posey v. Beale, 69 Ala. 32; Arvilla v. Spaulding, 121 Mass 505. Both the California Supreme Court and the Court of Appeal of that state have also, inferentially at least, passed upon the question quite a number of times, as appears from the following cases, where the other instances are referred to: Satterlee v. Bliss, 36 Cal. 521; Mendocino County v. Peters, 2 Cal. App. 24, 82 Pac. 1122. In some of the foregoing cases the distinction between supplying an omission or correcting a defect in the clerk's record, or what is termed the "judgment roll" in this state, and of amending or adding to the bill of exceptions, is clearly pointed out. The courts, as may well be expected, are not in harmony with respect to how, when, and to what extent a bill of exceptions may be amended, or what defects may be supplied by adding an amendment after the bill is settled, signed, and filed and the record is filed in the appellate court. The following cases, in which amendments were permitted after the original settlement, and in some instances after the cases were appealed, to some extent discuss and illustrate the foregoing questions: C., M. & St. P. Ry. v. Walsh, 150 Ill. 607, 37 N. E. 1001; Pollard v. Rutter, 35 Ill. App. 370; Churchill v. Hill, 59 Ark. 54, 26 S. W. 378; Elliott App. Pro., sections 825, 826. There are other cases that might be cited, and which are often referred to in support of the right to amend a bill of exceptions after the case has gone to the appellate court, but in so far as we have had time to examine them we have not found any that passed upon the precise question involved in this case. Nor is it disclosed in the cases we have examined whether there was a statutory limit within which a bill of exceptions had to be settled and signed or not. In most of the cases cited by us in support of our conclusions it will be found that the decisions are based upon the statutory limitation, and, when the time within which a bill of exceptions may be settled and signed is passed, it is held that the time for adding any matter of substance has likewise passed, and that the trial court is without power to add thereto, and that the appellate court cannot confer power where none exists as a matter of law. The temptation is always great to permit amendments of this character, since it is usually alleged that they amount to nothing more than adding something which appears from the minutes of the trial court. Our authority, however, is not always co-extensive with our inclinations, and, unless the law authorizes an act to be done, our desires must yield to the law, regardless of the consequences. From what has been said it follows that the motion to dismiss the appeal should be, and it accordingly is, granted, and the appeal is dismissed at the cost of appellant. It is so ordered. STRAUP, C. J., and MCCARTY, J., concur. A. E. CRANNEY, N. W. KIMBALL, JOSEPH E. CARDON, MELVIN J. BALLARD, LOUIS S. CARDON, ROBERT MURDOCK, L. C. FARR, A. H. PALMER and W. G. DAVIS, Respondents, v. JOHN A. McALISTER, Appellant. No. 1959. Decided May 4, 1909 (101 Pac. 985). 1. TRUSTS-CONSTRUCTIVE TRUST-BREACH OF DUTY BY AGENT-EXISTENCE OF AGENCY. Plaintiffs and defendant had bought stock in a company to be organized to operate mining claims, on which one W. claimed an option. Afterwards defendant discovered that W's option was unenforceable because not in writing, and that other persons had a written option on the claims, and he demanded and received the money which he had paid. He had no authority to represent plaintiffs. The holders of the written option had offered to give W. twelve thousand shares in the proposed corporation in settlement of his claims if he would give them the money he had collected from plaintiffs, who would also be given stock, and collect an additional sum. W. had refused the offer, and defendant contracted with him to settle the differences between him and the option owners in consideration of five thousand shares of the twelve thousand W. would receive. As a result W. and the option owners contracted that plaintiffs' funds held by W. and the sum returned to defendant should be placed in bank until the corporation was organized, when upon delivery of stock to the bank for defendant or persons he should designate the money should go to the corporation, and twelve thousand bonus shares should go to W. for services in raising funds and in settlement of his claims. The money was given to defendant and deposited in the bank. Before the agreement was executed, defendant fully informed plaintiffs of the entire transaction, including the twelve thousand shares W. was to receive. Plaintiffs decided to take the stock and remain in the company. Held, that defendant was not acting as plaintiffs' agent in the transaction, but merely in accordance with his contract for settlement of the differences between W. and the option owners, and hence could not be held a trustee of plaintiffs for the five thousand shares of stock he received from W. (Page 562.) 2. CORPORATIONS—ORGANIZATION-ACTS OF PROMOTERS—Donation of STOCK TO SETTLE CLAIMS. Promoters of a mining corporation could give a person stock in the corporation in settlement of his claims against the mining property sought to be developed and as a bonus for his services in raising funds. (Page 563.) 3. CORPORATIONS-ORGANIZATION-BONUS STOCKS-EVIDENCE. Evidence held to support a finding that bonus stock was given by promoters of a mining corporation partly in consideration of the receiver's forbearance in pressing a claim to mining property on which the promoters had an option. (Page 563.) 4. CORPORATIONS-ORGANIZATION-ACTS OF PROMOTERS-RATIFICA TION. Where, after persons had subscribed for stock in a proposed mining company, it was discovered that the promoter's option on the claims was unenforceable, and a deal was made by him with the owners of another option, whereby he was to be given bonus stock in a company to be organized in settlement of his claim and for compensation for obtaining the subscriptions, and the subscribers to the other proposed company were given the option to receive back their money or take stock in the other company, and they took the stock, they ratified the act of the promoters in giving the bonus stock. (Page 566.) APPEAL from District Court, First District; Hon. W. W. Maughan, Judge. Action by A. E. Cranney and others against John A. McAlister. Judgment for plaintiffs and defendant appealed. REVERSED AND REMANDED WITH DIRECTIONS TO DISMISS. Moyle & Van Cott for appellant. Nebeker, Hart & Nebeker for respondents. RESPONDENTS' AUTHORITIES. The facts of this case, as shown by the record, constituted appellant the constructive trustee of respondents. (Pomeroy's Equity, secs. 1044, 1049, 1052; Sweet v. Jacocks, 6 Paige Ch. Rep., 355; Cushing v. Danforth, 76 Maine 114, 4 Kent [12 Ed.], 307; Davone v. Fanning, 2 John Ch. Rep., 252; 1 Storey Eq. Jur., sec. 361; Joor v. Williams, 38 Miss. 546; Sanford v. Sanford, 139 U. S. 642; Henninger v. Heald, 29 Atl. Rep. 192; Stiner v. Stiner, 58 Barb. 643; Hamilton v. Dooly, Lathrop v. Brampton, 31 Cal. 22; Bennell v. Diffell, 4 De Gex, M. & G., 388; Everart v. Searle, 71 Pa. St. 256, 17 Am. and Eng. Enc. Law [2 Ed.], |