while the regular jury list was exhausted, was not error.
Bennett v. Tintic Iron Co., 291.
JURY TRIAL-See APPEAL, 1; CONSTITUTIONAL LAW, 1.
JUSTICE OF THE PEACE-See APPEAL, 3, 12, 24; FALSE IM-
PRISONMENT, 2, 3, 4.
Under section 3542, 2 Comp. Laws of 1888, justices of the
peace can hear evidence as to possession of real property
where the action is for forcible entry and detainer and jur-
isdiction of such actions is conferred by statute. Hyndman
v. Stowe, 23.
KILLING STOCK-See NEGLIGENCE, 7; RAILROADS, 1.
LARCENY-See CRIM. LAW, 7.
LIENS-See MECHANIC'S LIEN.
LIMITATIONS, STATUTE OF-See STATUTORY CONSTRUCTION, 3.
Under section 3, Act of Congress, July 1, 1862, which provides
that all real estate acquired or held by any corporation for
religious purposes, of greater value than $50,000, shall be
forfeited and escheated to the United States, not only an
acquiring, but any holding of real estate contrary to this
act within five years before suit brought, gives a right of
action for the escheat. United States v. Tithing Yard, 273.
LOCATION NOTICE-See MINES.
MALICIOUS PROSECUTION-See FALSE IMPRISONMENT, 1.
In a suit for malicious suing out of a writ of attachment, it is
incumbent on the plaintiff to show both malice and a
want of probable cause, and the fact that the writ of attach-
ment was dissolved is alone evidence of neither; and although
malice may be inferred from want of probable cause, it does
not prove such want; hence if probable cause is shown,
whether or not there was malice is immaterial, and while
the question of probable cause on all the facts in evidence
is a question for the court, the whole testimony where it is
conflicting should be submitted to the jury, and their find-
ing will not be disturbed on appeal. Hamer v. National
MASTER AND SERVANT-See EVIDENCE, 10; NEGLIGENCE, 3, 4.
1. Semble that where the negligence complained of was the unsafe
condition of the premises and the proof shows that the
premises were examined by a fellow-laborer of plaintiff,
who reported to the foreman that the premises were safe,
and thereupon the foreman ordered the plaintiff into the
unsafe place and the plaintiff was there injured, held that
the negligence was that of a fellow-servant of plaintiff.
Bennett v. Tintic Iron Co., 292.
2. Three men were working in a certain place in the mine
under a foreman, one of them, the plaintiff, sorting ore, the
other two drilling a hole to put in a shot; when they were
ready to fire the shot, plaintiff was notified and retired with
the horse and cart he was using to a place of safety. After
the shot was fired, plaintiff returned to within a rod of the
place, and then H., one of the miners, under the direction
of G., the foreman, examined the place carefully, and came
down again, whereupon G., the foreman, relying upon the
examination of H., who was an old and experienced miner,
ordered plaintiff into the place; plaintiff then assisted in
hauling away several loads of waste, when the bank above
the place where they were working fell down; plaintiff was
either knocked over or jumped over the edge of the road-
way into a pit 70 to 75 feet deep, the fallen rock having
filled up the roadway to within two feet of the edge.
Plaintiff had never worked in the mine before.
He was
seriously injured. Held that there was no evidence of neg-
ligence to submit to the jury, and if there was any neg-
ligence it was that of H., a fellow-servant of plaintiff.
MEASURE OF DAMAGES-See DAMAGES.
MECHANIC'S LIEN-See STATUTORY CONSTRUCTION, 4, 5.
1. The mechanic's lien law provides for a lien for contractors
and for sub-contractors, to begin with and relate back from
the time of filing thereof, to the date of the beginning to do
work or to furnish material. Another section provides that
any sub-contractor may file a notice of intention to claim a
lien before such sub-contractor begins to work or furnish
material, and the lien for work done or material furnished
thereafter shall relate back to date of filing such notice;
held (1) all liens of sub-contractors exist without any prior
filing of notice to hold a lien for work to be done, provided
MECHANIC'S LIEN-Continued.
such lien be followed up within statutory time by filing lien
after the work is done, and the priority among lien-holders
in such case is determined by date of beginning work; (2) if
the sub-contractor files a notice of intention to claim a lien
for work to be done, his lien attaches without any filing of
lien subsequent to the completion of the work, and relates
back to the date of his notice; (3) the privilege of filing a notice
of intention to claim a lien for work to be done can be
waived by the sub-contractor, and he may proceed in the
same manner as the contracter proceeds to hold a lien, and
semble that any payment by the owner to his principal con-
tractor made after the sub-contractor has filed his notice
prior to doing work, or if no notice is filed, after the begin-
ning to do work or furnish materials, will not release the
lien of the sub-contractor. Morrison v. Carey-Lombard
Co., 70.
2. Under the laws of the United States recognizing the right
to appropriate and use public lands for the construction of
irrigating canals, and under the law of Utah Territory giving
a mechanic's lien to whomever shall furnish materials or do
work upon land by contract with the owner of such land, a
lien for work done upon a canal constructed upon the public
lands attaches in favor of a material man as the canal is
made, and the ownership of the canal and right of way
therefor will be held to vest in the owner of the canal at
the same time. Garland v. Irrigation Co., 351.
3. A deed of trust executed on a certain canal to be con-
structed, which covers all the property the owner of the
canal then had or might thereafter acquire, cannot take
precedence of a mechanic's lien for work done and materials
furnished in building the canal, even though the deed of
trust antedates the doing of the work or furnishing of
materials. Id.
4. Where, at the time of filing a statement of lien, the lien-
holder specifies the amount of his claim and states that if
certain suits then in progress to reform the estimates for
work done should decide that the estimates were erroneous,
then the lien-holder would claim a lien for an additional
amount for that work done, and specifies what that amount
would be, and in those suits to correct the estimates judg-
ments are rendered in favor of the lien-holder and against
MECHANIC'S LIEN-Continued.
the owner for a certain amount, held in a suit to establish
the lien the amount of those judgments cannot be included
in the lien, because a suit is already pending upon those
amounts. Id.
5. Semble that where a party has a claim for a mechanic's
lien and there is a controversy about the correctness of a
part of the claim, and the party brings an action of debt to
settle that part, he waives the right to have that claim
adjudged to be rightful included in the mechanic's lien. Id.
6. Semble that claims for work done and materials furnished
which have been reduced to judgments in actions of debt
are merged in the judgments, and that such judgments can-
not be made part of a claim for a mechanic's lien for those
materials and work, and for other work and materials, even
though the statement of lien specified the suits pending in
regard to the first part of the claim, and gave notice that
any judgments recovered against the owner would be in-
cluded in the lien, although those very judgments had been
reversed upon appeal upon a technical point not going to
the merits of the claim, and the court had found in the lien
Isuit that the claim was a valid one for materials furnished
under the contract for which the lien was filed. Id.
MERGER-See MECHANIC'S LIEN, 6.
MINES AND MINING-See NEGLIGENCE, 4.
A notice of location which describes the ground in such a way
as to be incapable of location is insufficient, affirming Darger
v. Le Sieur, 8 Utah, 160. Darger v. Le Sieur, 192.
1. Where an instrument in the nature of a chattel mortgage
is executed in Michigan by parties there resident, which
assigns among other things a certain account due in Utah
Territory from a firm there resident, the law governing such
assignment is the law of Michigan as to chattel mortgages.
Oak Leather Co. v. Union Bank, 87.
2. Where a vendee has given a mortgage to secure part of
the purchase price, and then the vendee sells the land by a
deed wherein the grantee therein assumes and agrees to pay
the mortgage, the vendee and mortgagor cannot release his
grantee in the deed, so as to affect the rights of the mort-
gagee without the mortgagee's consent. Clark v. Fisk, 94.
3. Until a sale has been made under a decree of foreclosure
and the amount of the deficiency ascertained, no judgment
for any amount exists against the defendant personally liable,
and no execution can be issued against such defendant until
the order of sale is returned, and the amount of the deficiency
ascertained and judgment docketed for such deficiency.
Russell v. Hank, 309.
4. Under section 3013, 2 Comp. Laws of 1888, which provides
for the entry of judgments either in term time or in vaca-
tion, the court may enter a decree in vacation when the
submission of the case was made in open court. Id.
5. Where a decree of foreclosure is made and the defendant
personally liable for any deficiency of proceeds at the sale
has been ascertained, upon the return of the order of sale
judgment for any deficiency may be entered against the
defendant personally liable, whether there is any prayer in
the complaint for the docketing of such judgment or not.
Id.
MUNICIPAL CORPORATIONS-See INJUNCTIONS, 1, 2; NEGLI-
GENCE, 8, 9, 10, 11.
1. Even though the fee of the streets be in the municipality,
yet it cannot devote the whole width of the street, or so
large a quantity thereof as to seriously and unreasonably in-
jure the equitable easements of abutting owners, to street
railways, nor can the legislature grant to a municipality the
power to make such unreasonable regulations. Dooly Block
v. Rapid Transit Co., 31.
2. Where the municipality owns the fee of the streets, having
acquired the same under the townsite law, the abutting
owners have equitable rights by way of easements in the
streets, of which equitable rights they cannot be deprived by
the municipality except in a manner provided by law. Id.
3. Power granted to municipal authorities to exclusively con-
trol the streets, or to direct and control the location of rail-
road tracks within the municipality, does not authorize
the municipal authorities to devote to street railways the
whole width of the street or so large a portion thereof as to
seriously and unreasonably interfere with the equitable ease-
ments of abutting owners in the streets which the munic-
ipality owns in fee. Id.
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