a jury must consist of 12, and a very few that the action of the jury must be unanimous in civil cases. But we think the reasoning of the supreme court of the United States in the case of Hurtado v. People, 110 U. S. 516, 4 Sup. Ct. Rep. 111, 292, upon the phrase, “due process of law," is equally applicable to the case at bar. Mr. Justice Matthews said in that case: "The constitution of the United States was ordained, it is true, by descendants of Englishmen, who inherited the traditions of English law and history; but it was made for an undefined and expanding future, and for a people gathered and to be gathered from many nations and of many tongues. And while we take just pride in the principles and institutions of the common law, we are not to forget that in lands where other systems of jurisprudence prevail the ideas and processes of civil justice are also not unknown. There is nothing in Magna Charta, rightly construed as a broad charter of public right and law, which ought to exclude the best ideas of all systems and of every age; and as it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and varied experiences of our own situation and system will mold and shape it into new and not less useful forms." And again: "Restraints that could be fastened upon executive authority with precision and detail might prove obstructive and Injurious when imposed on the just and necessary discretion of legislative power; and while, in every instance, laws that violated express and specific injunctions and prohibitions might, without embarrassment, be judicially declared to be void, yet any general principle or maxim, founded on the essential nature of law, as a just and reasonable expression of the public will and of government, as instituted by popular consent and for the general good, can only be applied to cases coming clearly within the scope of its spirit and purpose, and not to legislative provisions merely establishing forms and methods of attainment. Such regulations, to adopt a sentence of Burke's, "may alter the mode and application, but have no power over the substance of original justice." This reasoning, we believe, is decisive of the case. "Administration and remedial proceedings must change, from time to time, with the advancement of legal science and the progress of society." Rowan v. State, 30 Wis. 129. One of the signs of progress is the provision for a verdict by three-fourths of a jury in a civil cause. Wherever this provision has been tried, it has been found to be a distinct benefit. Such a provision is simply a change in the procedure of applying legal remedies. It is general in its application; it is fair and just to all. No man's property rights are injured by it, and no man can be said to have a vested right in the unanimous action of a jury any more than in the fact that a juror was anciently required to be a freeholder. All litigants could waive in civil trials at common law and under our constitution this unanimity of verdict. If they could waive it, then it was not one of the requisites which must be preserved in order to preserve a jury trial in civil actions. For these reasons, because society progresses, and modes and legal procedure must change with that progress, because this enactment is a "just and reasonable expression of the public will," because it is calculated to be a great benefit to all classes of litigants, because it reaches justly and fairly and impartially all classes of men, because it is claimed only to be an infringe ment of a broad and general statement in the constitution which ought not to be so narrowly construed as to be a bulwark against progress, we hold that this law was a rightful subject of legislation, and this judgment should be affirmed. ZANE, C. J., and MINER, BARTCH, and SMITH, JJ., concur. (9 Utah, 81) STERLING v. PARSONS.1 Where the statement on a motion for & new trial, on the ground that the evidence is in sufficient to justify the verdict, does not contain the specification of errors or particulars on which the moving party relies, as required by Comp. Laws 1888, § 3402, subd. 3, the motion will be denied. Appeal from district court, Salt Lake county; C. S. Zane, Justice. Action by H. L. Sterling against E. H. Parsons to recover damages for wrongful conversion of personal property. A verdict was rendered in favor of plaintiff, and on defendant's motion an order was made granting a new trial. From this order, plaintiff appeals Reversed. Samuel H. Lewis and C. Ira Krebs, for appellant. McDowall & Lyles, C. K. Gilchrist, and Stephens & Schroeder, for respondent. MINER, J. It appears from the record in this case that Lindquist Bros., who are doing business at Thistle, Utah, were indebted to divers persons, and, being unable to pay their debts in full, made an assignment of their property to the plaintiff, H. L. Sterling, for the benefit of certain creditors. Mr. Fyler, one of the creditors, commenced suit by attachment against Lindquist Bros. after such assignment, and the defendant E. H. Parsons, as United States marshal, took possession of the assigned goods under such writ as the property of Lindquist Bros., and sold them at auction at Salt Lake City, claiming 1 Rehearing denied. ་ there was no sale for them at Thistle. The plaintiff thereupon brought this action against the defendant for the wrongful conversion of the property, claiming damages in the sum of $1,810.95. On the trial before a jury the plaintiff recovered a verdict in the sum of $1,625. The defendant moved for a new trial on a statement of the case. The notice of intention to move for a new trial was based upon the ground of insufficiency of the evidence to justify the verdict, and other statutory grounds. The statement on motion for new trial did not specify the particulars in which the evidence was alleged to be insufficient to justify the verdict, and no specification of errors or particulars was assigned in the statement. The court, upon hearing, made an order granting the respondent a new trial on the ground that the jury erred in finding the value of the goods and chattels too great under the evidence, from which order the plaintiff appeals to this court, and relies for a reversal upon the facts: (1) The statement on motion for new trial does not specify the particulars in which the evidence is alleged to be insufficient to justify the verdict. (2) It does not specify the particular errors upon which the (3) defendant would rely for a new trial. The statement contains no assignment nor specification of errors whatever. (4) The court erred in not disregarding the statement. (5) The court erred in granting motion for new trial, as the evidence shows that the market value of the goods at Thistle was $1,800." Subdivision 3, § 3402, 2 Comp. Laws 1888, provides that, "when the notice of motion designates, as the ground of the motion, the insufficiency of the evidence to justify the verdict or other decision, the statement shall specify the particulars in which such evidence is alleged to be insufficient. * * If no specification be made, the statement shall be disregarded on the hearing of the motion." The statement did not contain the specification of errors or particulars upon which the respondent relied on his alleged motion for new trial. These specifications are necessary in the preparation of the statement, to enable the adverse party to suggest intelligently such amendments as he may deem important to the just determination of the case, and to enable the parties, as well as the court, to pass intelligently upon the questions to be considered, and to notify the opposite party what he may be called upon to meet. This question has often been passed upon by California courts. Barrett v. Tewksbury, 15 Cal. 356; Baird v. Peall, 92 Cal. 235, 28 Pac. Rep. 285; Wine Co. v. Behlow, 94 Cal. 108, 29 Pac. Rep. 420; Hayne, New Trials & App. §§ 149, 150; Slater v. Railroad Co., (Utah,) 30 Pac. Rep. 493; Bankhead v. Railroad Co., 2 Utah, 507; Benites v. Hampton, 123 U. S. 519, 8 Sup. Ct. Rep. 254. We deem it unnecessary to discuss the other questions in the case. The order granting a new trial should be reversed. BARTCH, J., Concurs. (9 Utah, 87) AMERICAN ОАК LEATHER CO. V. STANDARD GIG SADDLE CO., (UNION BANK et al., Interveners.) (Supreme Court of Utah. June 12, 1893.) ACTION ON CONTRACT DEFAULT STATUTES OF ANOTHER STATE-PRESUMPTIONS. 1. Where, in an action on contract, defendant fails to answer, the court is justified in finding that at the commencement of the action plaintiff was a creditor of defendant. 2. Where a chattel mortgage on property located in Utah is executed outside of the territory, and no evidence is given to prove the statutes in regard to chattel mortgages at the place of execution, it will be presumed that the laws there are identical with the laws of the territory on the subject. Rudy v. Railway Co., (Utah,) 30 Pac. Rep. 366, disapproved. Appeal from district court, Salt Lake county; C. S. Zane, Justice. An action was brought by the American Oak Leather Company against the Standard Gig Saddle Company on an account stated. Under an attachment, money due defendant was levied upon. The Union Bank and Alonzo Bennett intervened, and claimed the maney under an assignment. Judgment was rendered for plaintiff, and the interveners appeal. Affirmed. Clesson S. Kinney, for appellants. Jones & Schroeder, for respondent. SMITH, J. This was an action by the plaintiff against defendant to recover $513.70 on an account stated. An attachment was issued, and money due defendant from F. Platt & Co. was attached. Defendant made' default. The appellants intervened without objection, and claimed the money due from Platt & Co., claiming that it had been assigned to them before the service of the attachment. Plaintiff answered, and denied the claims of the interveners. On the issue. thus made up between plaintiff and the interveners a trial was had before the court. A jury being waived, findings of fact and conclusions of law were made, and judgment entered for plaintiff and against the defendant and interveners. Motion for a new trial on a statement of the case was made and overruled, and the interveners appeal from the judgment and order denying a new trial. The following errors are assigned: First. That the court erred in making the eighteenth finding of fact, to the effect "that the plaintiff was at the time of the commencement of this action a creditor of defendant." The action against defendant was on a contract. It made default so far as the claim of the plaintiff is concerned, although it appeared in the action, and answered the petition in intervention. In this state of the case, the claim of plaintiff, being founded on a contract, was admitted, and did not require proof. While the finding may have been unnecessary, it is warranted by the admissions of the pleadings. Second. That the court erred in the conclusion of law to the effect that the pretended assignment to the interveners of the debt of Platt & Co. was void, and that there was in law no assignment of the account to the interveners. The writing relied on as an assignment of this account is dated May 5, 1891, was made in Michigan, is made by defendant as party of the first part and the interveners as parties of the second part, and, so far as is material, is as follows: "Witnesseth that the party of the first part, its representatives and assigns, for and in consideration of the sum of twenty-one thousand two hundred and ninety-nine dollars and fortyfive cents to it in hand paid by said Union Bank, and the sum of five thousand dollars to it in hand paid by the said Alonzo Bennett, and for the purpose of securing the payment of said sums to each of said parties, and of any future sums in which it may at any time hereafter become indebted to each of the said second parties, does hereby grant, bargain, and sell unto the said parties of the second part and their representatives and assigns, and the representatives of each of them, all the following property, to wit: The general stock of merchandise, saddlery hardware, gig and track saddles, coach pads, bridle fronts, and housings, manufactured and in process of manufacture, all stock material for the same, including boxes, and all other goods, wares, and merchandise, property and fixtures, containing in the three-story brick building of the said first party, situate on the south side of West Main street, between Blackstone and Jackson streets, Jackson, Michigan; and also all other goods, chattels, merchandise, furniture, and fixtures which at any time hereafter may be purchased for or added to or used in connection with said stock or business, or commingled therewith; and the said first party does hereby agree to, and does hereby, transfer, set over, and assign and set aside to said second parties all the notes, bills, accounts, debts connected with the said business, due or to become due, now existing or that shall hereafter accrue or be acquired in the conduct of the business of said first party, and also all books of accounts, notes, bills, and other documents evidencing such obligations: provided, always, and these presents are made upon the express conditions, that if the said party of the first part shall pay or cause to be paid to each of the said second parties, its and his representatives and assigns, the sums and amounts above named and set forth, according to six promissory notes dated July 5, 1890, July 5, 1890, July 28, 1890, July 6, 1890, August 25, 1890, December 30, 1890, for $10,000, $7,000, $1,000, $2,000, $299.45, and $1,000, respectively, held by said Union Bank, amounting to $21,299.45, and certain other indorsed notes and claims against first party, amounting to $4,050.66, besides said parties' overdraft upon said Union Bank of and for the sum of $2,564.35, the payment of which this mortgage is intended to include and secure, and according to a certain promissory note held by Alonzo Bennett against the said first party, dated May 9, 1889, amounting to $5,000, and shall pay or cause to be paid all bills, accounts, notes, and obligations which at any time may be made or incurred by or be owing by said party of the first part to said parties of the second part, and each of them, at the times and in the manner in which the same shall became due and payable, together with interest thereon, then these presents shall cease, and become null and void." There is no question but that this writing was intended to secure an indebtedness to the interveners, and was intended as a security only. The parties to it called it a mortgage. There is no pretense in the writing anywhere that it was intended to make an absolute conveyance of any property whatever. In fact it expressly declares that on payment of the debts it was given to secure it shall become "null and void." At most it is nothing more than a chattel mortgage; and, waiving the question as to whether, if properly executed as a chattel mortgage, it would give interveners any rights as to the debt in question, it is sufficient to say that it is not executed in the manner required by our statutes in the execution of chattel mortgages, and is therefore not valid, except as to the parties thereto. Section 2801, Comp. Laws Utah. There is nothing before us to show what the statutes of Michigan require on this subject, and, in the absence of proof, they are presumed to be identical with our own. Shumway v. Leakey, 67 Cal. 458, 8 Pac. Rep. 12; Marsters v. Lash, 61 Cal. 622; Brown v. Gas-Light Co., 58 Cal. 426; Suth. St. Const. § 184, and cases in notes. We are aware that this court, in Rudy v. | Railway Co., (Utah,) 30 Pac. Rep. 366, intimated that such presumption did not arise in the absence of proof of a foreign statute. However, a careful re-examination of the question brings us to the conclusion that our decision on that point in the case above cited is against the great weight of authority. In Mr. Sutherland's recent work on Statutory Construction, at section 184, the doctrine is laid down, and the authorities collated in the note. The learned author finally concludes with a statement of the rule in the following language: "The law of another state in certain cases is applied by comity when proved. If not proved there is no comity invoked, and the lex fori governs." This is simply another statement of the rule laid down in many of the cases, to the effect that, in the absence of proof to the contrary, the laws of another state are presumed to be the same as our own on the same subject. We are satisfied with this rule, and adhere to it. It results, therefore, that the writing under Act Cong. March 3, 1887, § 24, requires registration officers to deliver to the clerk of the probate court all affidavits made by voters, which affidavits are to be deemed public records. Comp. Laws 1888, § 242, as amended by Laws 1892, c. 42, § 4, requires such delivery on or before the second Monday in October. Held, that the latter statute is valid, and that it is the duty, therefore, of the officers, to deliver such affidavits on or before the day mentioned therein, and not to retain them until after the election. Appeal from district court, Weber county; James A. Miner, Justice. Application by Joseph P. Ledwidge, clerk of the probate court of Weber county, Utah, for writ of mandate to George H. Matson, registration officer of Weber county, F. L. Chapin, C. P. Harriman, George L. Corey, A. I. Stone, and H. Durbrown, deputy registers, to secure the delivery of voters' affidavits. Judgment granting the relief, from which defendants appeal. Affirmed. A. R. Heywood and John E. Bagley, for appellants. H. W. Smith and David Evans, for respondent. ZANE, C. J. It appears from the record in this case that the defendants were registration officers for the county of Weber, in Utah territory, in 1892, by appointment of and under the board of commissioners appointed by the president of the United States in pursuance of section 9 of an act of congress in force March 22, 1882; that in registering the votes of that county in October, and prior to the second Monday thereof, for the election to be held November 8, 1892, in pursuance of section 24 of an act of congress in force March 3, 1887, they respectively took the affidavits prescribed therein of numerous voters. It further appears that after such affidavits had been so taken, and before commencing this action, the plaintiff, as such clerk, demanded such affidavits, and the respective defendants refused to deliver the same, and that this application for a writ of mandamus commanding the delivery was made October 24, 1892. Upon a hearing of the cause the court ad judged and ordered a peremptory writ to issue, commanding the respective defendants to deliver all such affidavits to the plaintiff as such clerk. From this judgment the defendants have prosecuted their appeal. The plaintiff insists that it was the duty of the defendants to deliver the affidavits taken by them on or before the second Monday of October to the clerk of the probate court, while the defendants insist that it was their duty to retain them until after the election. Section 24, supra, requiring such officers to take the oaths, provides: "Such registration officer is authorized to administer said oath or affirmation, and all such oaths or affirmations shall be by him delivered to the clerk of the probate court of the proper county, and shall be deemed public records therein." And section 242, Comp. Laws Utah 1888, as amended by section 4, c. 42, Laws Utah 1892, requires such registration officers to deliver all such oaths to the clerk on or before the second Monday of October. This territorial statute we hold to be valid. It is apparent that the object of requiring the oaths to be filed in a public office, and to be open to the inspection of the public, is that they may be preserved in a permanent form, and that the people interested in the election may examine the same, and ascertain whether any names have been placed on the register without the persons having taken the oath, or any who have taken we oath have been left off. The registration officer has no right to place the name of any person on the register who has not taken it. After the officer receives the oath and registers the voters, it is his duty to deliver all such affidavits to the probate clerk, whose duty it is to keep the same as a public record, so that the public may know, by inspection, whether any person has been registered without taking the oath required by the law, or the names of any persons who have taken it have been left off. It is not necessary for the registration officer to keep the oaths in his possession. If the right of any person to vote, whose name is upon the record, is contested on the ground that he has not taken the oath, the registrar may inspect the record, or a certified copy of the record can be produced, or it can be shown that there is no record of it. The judgment of the court below is affirmed. grantor, but also between him and the mortgagee and his assigns. 2. A release by his grantor from the agreement to pay the mortgage indebtedness, without consideration, and after innocent third persons have bought the notes secured by the mortgage, relying on his assumption to pay such indebtedness, cannot avail such grantee. Appeal from district court, Weber county; James A. Miner, Justice. Action by Joseph Clark against Archie C. Fisk, Sidney Stevens, and others, to foreclose a mortgage. Stevens and others filed a cross complaint asking for a sale of the mortgaged property, and that Fisk pay any deficiency remaining after an application of the proceeds in payment of the indebtedness. A decree was granted as prayed, and Fisk appeals. Affirmed. L. R. Rhodes and Rogers, Shafroth & Walling, for appellant. Evans & Rogers, for respondents. BARTCH, J. This suit was brought in the court below by Joseph Clark, as assignee of a note and mortgage executed by W. R. Swan and wife in favor of W. R. R. Stowell, to foreclose the same, and the appellant and respondents herein were made defendants. The respondents, defendants below, filed cross complaints, and each asked for a sale of the mortgaged property, and that Fisk be decreed to pay whatever deficiency might remain after an application of the proceeds in payment of the note. Judgment was entered accordingly, and thereupon Fisk appealed to this court, assigning numerous errors, but the only one which it is necessary to consider is the one that the decree is against the law and the evidence. The evidence, as appears from the record, is substantially as follows: Swan bought of Stowell a large tract of land, and executed the note and mortgage for purchase money on the 1st of September, 1888. Alterwards he platted the land into lots, and made it an addition to the city of Ogden. On January 1, 1890, Swan sold a large number of these lots to Ernest A. Barry, executing three separate deeds for the same, and taking from him three separate mortgages to secure the purchase money, aggregating over $80,000, divided into many promissory notes. On the 4th of January, 1890, Barry sold all the lots he had purchased to Fisk, executing for the same three distinct deeds, each of which contained a provision that the grant was made subject to the incumbrance of the mortgage, and that grantee assumed and agreed to pay the mortgaged indebtedness. Each of the defendants who filed a cross complaint is the holder of one or more of the Barry notes. Fisk says in his testimony that he did not assume the payment of the Barry Lotes, but bought the property subject to the mortgages; that he was not acquainted with Barry; and at the time he received the deeds he looked at them, to see that they were in the usual form, but did not notice the as sumption clause; that all the negotiations were carried on between Barry and F. A. Barnard; that he discovered that the assumption clause was in the deeds about the 12th day of May, 1890, and then procured a release of the same from Barry. The release was duly acknowledged, and admitted in evidence, and appears to have been recorded in the recorder's office of Weber county, January 5, 1891. The defendants who filed cross complaints claim in their testimony that they procured the notes relying on the assumption clause in the deeds, and Stevens says he made inquiry as to Fisk's responsibility, and then bought the note; that the notes were procured by them before the Barry release was made. The witness F. W. La Frentz, after testifying that he knew Fisk, and was negotiating with him about the property, said: "The final result was that the deeds were made to a man by the name of Barry, at Fisk's instance." And further, he said: "I do not recollect whether these notes and mortgages came through our office or not. I never met Mr. Barry. Never saw him to my knowledge. The negotiations were had with Fisk. I recollect no conversation with Mr. Fisk about this man Barry. Fisk, I think, objected to giving his own notes and mortgages. Fisk was the real party in interest, as I understood it." And on cross-examination witness said: "After we had discussed the matter, Fisk requested me to make him a proposition. Fisk said to me afterwards that he objected to giving his own notes, because he did not want them flying around the country." It also appears from the record that before the execution of the release by Barry, Swan notified Fisk of his acceptance of the assumption, and that Fisk agreed to become responsible. Clarke, who brought the suit, was the holder of the Swan note, and he made these parties defendants because their notes were secured by mortgages subsequent to his. The appellant contends that his contract to pay the indebtedness was only with Barry, and that, having been released by him from the obligation, he is under no obligation to the mortgagee, or to those who hold under him, to pay the mortgaged indebtedness. This raises the question as to the effect in law of a clause in a deed whereby the grantee assumes and agrees to pay an indebtedness secured by an outstanding mortgage against the property. It seems clear from an examination of the record that the appellant was the real party in interest when Barry made the purchase. The notes and mortgages were given for purchase money, and three days after his purchase Barry sold the same property to the appellant. It would be but natural for him to assume the indebtedness when it constituted a part of the purchase price. Taking into consideration the circumstances as disclosed by the record, and the evidence of the witness La Frentz, which appears |