APPEAL-Continued.

cases arising under that clause, although no express term of negation was used.

The policy of the laws of the several states and of the United States is to prevent unnecessary appeals. Interests of litigants require that cases shall not be prematurely brought to the higher court, nor by piecemeal, and litigants harassed by useless delay and expense, and the courts burdened with unnecessary labor.

A citizen has no vested right in the statutory privilege or exemptions. A statutory right to have any particular question reviewed on appeal may be taken away by a repeal of the statute. Eastman v. Gurrey, 169.

3. An insurance company, sued upon a policy which it had given,
admitted liability, but alleged that two persons made conflict-
ing claims, to the amount due, and the court, upon a hearing,
required them to interplead, and upon a deposit of the amount
with the clerk made an order discharging the company from
further liability. Held, that the order was final as to the com-
pany, and therefore appealable.

An appeal from an order made upon a hearing discharging the
defendant, not having been taken within 60 days after notice
of it, authorizes the presumption that such facts were proven,
as without which the decision could not have been made, as
the evidence in the bill of exceptions cannot be considered.
A motion to vacate a final judgment comes too late after the
term has expired, and after the time within which a motion
for a new trial can be made, and it should be denied. Jones v.
New York Life Ins. Co, 215.

4 Section 9, art. 8, of the constitution of Utah, provides that
"in equity cases the appeal may be on questions of both law
and fact; in cases at law the appeal shall be on questions of
law alone." Held that, when the testimony presents a ques-
tion of fact, and the court finds the facts against one of the
parties, such findings will not be disturbed by the supreme
court if there is evidence to support the finding. Walley v.
Deseret Nat. Bank, 305.

5. "Where a case is tried in a court sitting as a court of chancery, and the evidence is conflicting, the findings of fact will be conclusive in the appellate court, unless they are so manifestly against the weight of evidence as to demonstrate

APPEAL-Continued.

some oversight or mistake. So, likewise, where the case is
tried before a referee, and his findings are confirmed by the
court below. Dwyer v. Salt Lake City Mfg. Co., 339.
6. Appeals lie from the district courts of the late territory of
Utah, when the decisions of such courts are rendered in cases
appealed from the justices' courts, even when such appeals
are perfected after statehood. In such cases the laws of the
territory regulating appeals control, and not the following
clause of article 8 of section 9 of the constitution: "Appeals
shall also lie from the final judgment of justices of the peace
in civil and criminal cases to the district courts on both ques-
tions of law and fact, with such limitations and restrictions as
shall be provided by law; and the decision of the district
courts on such appeals shall be final, except in cases involving
the validity or constitutionality of a statute." The district
court referred to in this section is the district court of the
state, and not that of the territory. Holson v. U. P. Ry. Co.,
381.

7. While the ninth section of article 8 of the state constitu-
tion declares, "In cases at law the appeal shall be on
questions of law alone," this court will examine the evi-
dence to which the ruling was applied so far as necessary
to determine whether such ruling was right or wrong. John-
ston v. Meaghr, 426.

*

8. Under section 9 of article 8 of the constitution, which
provides that appeals to this court shall be upon the
record made in the court below,
and that in
equity cases, the appeal may be on questions of both law
and fact,” held, that questions of both law and fact aris-
ing in equity cases can be reviewed in this court upon the
record made in the court below, if properly brought to
this court. Petrovitzky v. Brigham, 472; Ensign v. Fisher,
477.

APPOINTMENT.

The first term of district judges commenced in January, 1896,
and extends until January, 1901, and the plaintiff was ap-
pointed in June of the first-named year to fill a vacancy in
the office. Held, that his term expired upon the qualification
of his successor, elected in November, 1896, under a law pro-

APPOINTMENT-Continued.

viding therefor, passed in pursuance of section 10 of article 7 of the constitution, which declares that, if the office of district judge becomes vacant, it shall be the duty of the governor to fill the same, and the appointee shall hold until his successor shall be duly elected and qualified as may be provided by law. Ritchie v. Richards, 345.

ASSAULT-See INDICTMENT.

ASSIGNMENT OF CLAIMS-See MECHANIC'S LIEN, 2.

ATTACHMENT.

Appellant obtained a judgment against defendants, whose indebtedness on the judgment thus obtained was attached by a judgment creditor of appellant, and paid by defendants to the sheriff. Held, that such attachment was valid under section 3315, Comp. Laws 1888, which authorized the payment of the amount to the sheriff serving the attachment. Snelson v. Harris, 495.

BALLOTS.

A law providing that electors may vote for all the candidates of a party by making a cross opposite a party emblem, and requiring those who do not vote for all such candidates to make a cross opposite the name of those voted for, and requiring those who have not been nominated by a party to present a petition to an officer mentioned, signed by a number of electors, in order to have their names printed on the ticket, held to be valid.

No legal voter in this state can be compelled to disclose for whom he voted, or to have his ballot so marked that it may be ascertained therefrom how he voted; and any contrivance or method by which the ballot can be identified, and the voter exposed, is unauthorized, and no legislative enactment can give it the force of law. Per BARTCH, J. MINER, J., concurring.

So much of section 26 of the act approved March 28, 1896 (Sess. Laws, p. 183), entitled “An act in relation to elections," etc., as provides for the identification of the ballot by numbering it, is void; such provision being in conflict with section 8, art. 4; of the constitution, which provides that "all elec

BALLOTS-Continued.

tions shall be by secret ballot," etc. Per BARTCH, J. MINER,
J., concurring. ZANE, C. J. dissenting.

The constitution secures to the voter impenetrable secrecy.
Per BARTCH, J. MINER, J., concurring. ZANE, C. J., held
legal secrecy sufficient. Ritchie v. Richards, 345,

BILLS AND NOTES-See PARTNERSHIP.

The

1. Plaintiff brought his action upon a promissory note.
defendant set up an affirmative defense, and offered to prove
that, although he had signed the note as principal, he was in
fact only a surety; that at or shortly after maturity, without
the knowledge or consent of defendant, the plaintiff extended
the time of payment; and that plaintiff knew, at the time the
payment was extended, that defendant was only a surety.
Held, that the defense was proper, and the evidence offered
admissible.

Where the payee of a promissory note, after having knowledge
of the relation of suretyship existing between the joint
makers, enters into a new agreement with the principal debtor
to extend the time of payment, or do any act to continue the
liability of the surety, without his consent, the surety is
discharged.

Where a person signs a note as maker, but is in fact a surety,
and there is nothing on the face of the note to show his true
relation, he will be treated and considered as a principal with
respect to all who have no notice of the suretyship; but, when-
ever it is material in his defense to an action against him on
the note, he may offer and prove by parol evidence that he
made the note merely as surety, without consideration, and
that such fact was known to the plaintiff before the equities
through which such evidence became admissible arose.
lett v. Taylor, 190.

Gil-

2. The payment of interest in advance, on a note, by the princi-
pal to a creditor, is of itself, without more, sufficient prima
facie evidence of an agreement to extend the time of payment
for the period for which the interest is paid. The payment in
advance presupposes that delay of payment of the principal is
to be given for that time. The consideration for an agree-
ment for delay in payment is implied from the transaction, if
not sufficiently expressed. But this presumption may be over-

BILLS AND NOTES-Continued.

come by evidence of a refusal to extend, demand for payment, or any other evidence showing that delay or extension was not agreed upon. Walley v. Deseret Nat. Bank, 305.

3. One or more persons may sign a note as guarantors, and deliver it to. the payee, with the agreement that they shall not be bound unless other persons named shall also sign, and, if such other persons do not sign, that those signing shall not be held. It was not error in the court to instruct the jury that no agreement between the directors with respect to the contract of guaranty, of which plaintiff was not clearly notified, could bind it.

It being conceded that the note sued on was signed by the president and secretary of the defendant corporation and the other defendants, and that it had been turned over to plaintiff, it was not error in the court to charge the jury that the law presumes the note was executed and delivered, if in the same charge the jury were told that the plaintiff had the right to waive the guaranty of any director who did not sign the contract; that by accepting the note without the guaranty of some of the directors, the bank did not thereby release those who did sign, unless the jury should find that the plaintiff had actual notice that those signing did so with a condition that all the directors should sign, and, if they did not, none of those signing should be liable. Bank v. Burton-Gardner Co., 420.

4. R. was president of the defendant, and vice-president and manager of the bank for which plaintiff was receiver, and W. was at the same time secretary for both companies, when the note sued upon was given by the defendant company, and signed: "Cache Valley Canal Co., Theo. Robison, Pres. R. H. Whipple, Sec." It appears that the note in question was given for another note, and interest on the latter, which was signed and guarantied by R. and W., and that, when the exchange was made, collateral security in bonds was given in the place of the guaranty, but that, four or five days later, defendants R. and W., without any consideration, guarantied the note. Held, that R., as manager of the bank, might substitute the note sued on, and the collateral security thereon, for the former note and guaranty, without the consent of the directors,