ACCOUNT-ACCOUNT STATED-Continued.

defendant's bank, evidence that book entries in the books of defendant's bank were correctly made; that certain notes and checks of plaintiff were returned to him in due course, some in person and some through the mail; that plaintiff made no objection and challenged none of the notes or checks; that plaintiff received statements of the account between himself and the bank on various occasions, to which he made no objection and offered no corrections; and that after plaintiff ceased to do business with the bank, he received an itemized statement of all his transactions, to which he made no objec tion for more than three years, is prima facie proof of the execution of the notes and the issuance of the checks by plaintiff, and the books and the notes and checks are properly admitted. Burraston v. Bank, 328.

2. Where an attorney is employed merely "to straighten out an account," the relationship of attorney and client, in the ordinary acceptation of the terms, does not exist; the attorney becomes the mere agent of the party employing him, and statements made by the attorney, in the presence of the party employing him, expressing satisfaction with the account are admissible as tending to support defendant's plea of an account stated. Id. 328.

3. Prima facie proof of defendant's plea of account stated in plaintiff's main case, is sufficient to warrant a non-suit. Id. 328.

ACCRETION-RELICTION.

Ownership of patented lands to the meander line of a lake carries with it the right to all lands formed by accretion or reliction below such lands to the water's edge. Hinckley v. Peay,

21.

A conveyance of land adjoining a lake conveys the grantor's .right to such lands that had or would attach to it by accretion or reliction as an incident to riparian ownership. Id. 21. ACTION.

1. An action or a defense founded on real property is barred by Sec. 2860 R. S. 1898, when there has been an adverse posses. sion for a period of seven years prior to the committing of the act concerning which the controversy arose. Funk v. Anderson, 238.

ACTION-Continued.

2. A new promise made after a cause of action barred does not
revive the former obligation, but creates a new one, which,
in its turn, is subject to a bar by lapse of time as an original
promise. Ireland v. Mackintosh, 296.

3. Under the provisions of sections 180 and 181 of the Revenue
Act of 1896 (Secs. 2684-2685 R. S. 1898), the moment plain-
tiff paid the unlawful tax under protest, he acquired the
right to institute suit against the defendant, and no presenta-
tion of the claim to the county court was necessary, as a pre-
requisite to the commencement of the action. Mining Co. v.
Juab County, 395.

4. When, in an action to quiet title and determine an adverse
claim, it appears that plaintiff merely held a mortgage on
the property, and that defendants, held the legal title, the
action should be dismissed. Fields v. Cobbey, 415.

5. A complaint, in an action for specific performance which
alleges a legal contract; part payment of the consideration;
the placing of the title papers in escrow; the tender of the
balance of the consideration and its refusal; the hostile
attitude of the one receiving the money tendered and the
possession of the lands by plaintiff since the date of the
original contract, states a cause of action. Gammon v. Bun-
nel, 421.

ADJUDICATION.

A final judgment from which an appeal will lie under Constitu-
tion, Art. 8, Section 9, is that adjudication which finally dis-
poses of the subject matter of the litigation on the merits of
the case. Popp v. Mining Co., 457.

ADVERSE POSSESSION.

1. An allegation in an answer that "For a second defense, the
defendant alleges, that the said cause of action, if any, stated
in said complaint, is barred by the provisions of Sec. 2859,
2860, et seq. Revised Statutes and Code of Civil Procedure,"
is a compliance with the requirements of Sec. 2992 R. S. 1898,
as to pleading the Statute of Limitations, and sufficient to
authorize the introduction of evidence showing adverse pos-
session. Snow v. Rich, 123.

ADVERSE POSSESSION-Continued.

2. A prescriptive right can only arise by analogy to the statutes when the facts attending the use and enjoyment are such as the statute requires. Funk v. Anderson, 238.

3. An action or a defense founded on real property is barred by Sec. 2860, R. S. 1898, when there has been an adverse possession for a period of seven years prior to the committing of the act concerning which the controversy arose.

Id. 238.

4. Sec. 2864 R. S. 1898 declares when and under what circum-
stances the possession of real estate under claim of title not
founded upon a written instrument, judgment or decree shall
be deemed to have been held adversely. Id. 238.

5. 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. Id. 238.
6. A prescriptive right to an easement can only arise after use
and enjoyment for a period of twenty years. Id. 238.
7. Sec. 2865 R. S. 1898 declares what constitutes possession and
occupancy and Sec. 2866 R. S. 1898 provides that to make
complete adverse possession the party claiming it must have
paid all taxes during the period. Id. 238.

ADMINISTRATOR.

In an action by an administrator for damages for the death of his decedent, his duties as assistant attorney are within the scope of his duties as administrator, and he may not make a contract with his attorneys for additional compensation as assistant attorney in the case. In re Evans & Rogers, 366. AFFIDAVITS.

Affidavits used on motion for a new trial may be reviewed on appeal. Wright v. U. P. R. R. Co., 338.

AGE OF CONSENT.

Where the crime charged is sexual intercourse with a prosecutrix under the age of consent, the intercourse constituted the offense whether she consented or not, and her good or bad character for chastity, as affecting the crime charged, was not in issue, but her general reputation for truth and veracity State v. Hilberg, 27.

was.

AGENT.

1. Where an attorney is employed merely "to straighten out an
account," the relationship of attorney and client, in the
ordinary acceptation of the terms, does not exist; the at-
torney becomes the mere agent of the party employing him,
and statements made by the attorney, in the presence of the
party employing him, expressing satisfaction with the ac-
count are admissible as tending to support defendant's plea
of an account stated. Burraston v. Bank, 328.

2. 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. In re Evans & Rogers, 366.

3. The depositary of an escrow is the agent of both parties and
and an escrow contract is not revocable at the will of either
party or their representatives, but may be enforced under
the provisions of Sec. 3935, R. S., 1898. Gammon v. Bunnell,
421.

ALIEN.

1. If a citizen and an alien jointly locate a claim, not exceeding
the amount of land allowed to one locator, such location is
valid as to the citizen, or to one who has declared his inten-
tion to become such, and a conveyance by him, through an
alien, to another citizen, conveys a complete title to the
claim located, provided all other provisions of the law were
complied with, and there be no intervening rights. Strickley
v. Hill, 257.

2. The rights of a citizen locator of mining ground, and his
subsequent grantees, cannot be affected by the fact that his
co-locator was an alien. Id. 257.

3. An alien who has declared his intention to become a citizen,
by enlistment in the United States Army, under Sec. 2166 R.
S. of U. S. may, under the provisions of Sec. 2319, locate
mineral lands upon the unoccupied public domain. Id. 257.

ANSWER.

A denial in an answer that the defendant wrongfully or forci-
bly committed the acts of trespass alleged in the complaint,
except as hereinafter stated, is an admission of the facts so
alleged. Peterson v. Bean, 43.

APPEAL-APPELLATE COURT.

1. Where a board of county commissioners has rejected a claim against the county, appeal and not mandamus is the proper remedy. Civic Federation v. Salt Lake County, 6.

2. A judgment is not final while a motion for a new trial, made within the time allowed by law, is pending and undisposed of, and an appeal taken and perfected within six months from the date of overruling the motion for a new trial is taken in time. Snow v. Rich, 123.

3. An affidavit not embraced in the bill of exceptions or transcript and not presented to the trial judge on motion for a new trial, but which is brought to the attention of the court for the first time on the argument on appeal and without notice to the other side, can form no part of the record in the appellate court and is without legal merit. State v. Morgan, 162.

4. On an appeal of an equitable action, the appellate court will not disturb the findings and decree of the trial court, which had the opportunity of observing the manner and bearing of the witnesses while testifying, in the absence of apparent oversight or mistake. Miller v. Livingston, 174.

5. On appeal of an equitable action, the appellate court cannot consider the testimony for the purpose of ascertaining whether the findings of fact are supported by the evidence, unless a motion for a new trial has been interposed and ruled on in the court below. Swenson v. Snell, 191.

6. Where the evidence is not before the court on appeal, the general rule is that the correctness of findings will not be questioned, except in so far as they are contradictory or conflicting. Culmer v. Caine, 216.

7. When there is evidence to support findings, the weight of such evidence being within the province of the trial court, its determination thereon will not be disturbed on appeal. Strickley v. Hill, 257.

8. As a general rule, a previous ruling and decision, by an appellate court, upon questions arising in a case before it, is a final adjudication of those questions in that suit upon the same state of facts, from the consequences of which the court will not depart in a subsequent appeal; but the rule does not apply to the argument or to expressions or illustrations in the