of fact. In the opinion of Mr. Justice Miner, which is the authoritative opinion herein, it is assumed, as appears, that the $305 were actually paid by the insured. It is now shown by the affidavit of Mr. Fritter, filed in support of the petition, the affiant being the agent through whom the insurance was purchased, that the $305 were never paid at all, a fact which to my mind seemed clear from the evidence in the case. Among other things, there is a statement in the affidavit, as follows: "Affiant further says that for the purpose of inducing the said Bunting to take out a policy of insurance with the said company to the amount of fifty thousand dollars, affiant agreed with the said Bunting that he would accept as full payment of the first premium said Bunting's note for the sum of fifteen hundred dollars ($1,500), on condition that the said Bunting would arrange with the Pocatello bank to have the said note cashed, which the said Bunting did, and the said note was cashed at the said bank. That said Bunting paid no more as the first premium than the said note, and the same was accepted by this affiant in full payment of the first premium. This arrangement was a private arrangement between this affiant and the said Bunting, with which the said insurance company had nothing to do, and the deduction from the regular premium, which was eighteen hundred and five dollars ($1,805), said deduction amounting to three hundred and five dollars ($305) came out of this affiant's commission as agent; the full amount of the proceeds of said premium required by said insurance company, less commission, as received by the said insurance company in satisfaction of the first premium, and a receipt issued by said company therefor in form."

There is now no longer any room for doubt that the note was the only consideration for the first premium, and that it was ultimately paid out of the assets of the

insolvent bank. The affiant all the time during this controversy was a non-resident, and was not a witness at the trial.

Considering the circumstances surrounding this case, the large amount involved, the important legal and equiitable principles which have been invoked concerning the application of which all the members of the court so widely differ, the effect which this decision will have upon rights of property and upon trust relations and the use of trust funds, and its grave importance respecting the rights of cestui que trust in this State in the future, it seems to me that this is eminently a case which ought to be re-examined, and that if the findings of the trial court are to be set aside, the case ought to be sent back for a new trial. For these reasons I dissent from the order overruling the petition.

INDEX.

ABANDONMENT.

Temporary absence, of the homestead claimant, from his resi-
dence, while out of the State for a year or two at a time earn-
ing money to assist in providing for his family, does not
constitute abandonment, when there is shown a bona fide
intention to return, build a house, and reside on the land.
Bunker v. Coons, 164.

ABATEMENT.

An assignment of judgment, under the provisions of Sec. 2920,
R. S. 1898, does not abate the action, but the same may be
carried on in the name of the original party, or the court
may allow substitution of the transferee, but until substitu-
tion has actually been made, a notice of appeal may be served
on the judgment creditor. Schroeder v. Pratt, 176.

ABROGATION.

An instruction, as to what amounts to abrogation of a published
rule, predicated upon evidence which is insufficient to show
abrogation, is objectionable, and objection thereto should
have been sustained. Konold v. R. G. W. Ry. Co., 379.

Evidence which shows a violation of rules and regulations, as to
running time between stations, on only two occasions, one of
them being the occasion of the accident, is not sufficient to
show an abrogation of such rules and regulations. Id., 379.

ACTION.

Whenever an instrument creating a trust confers upon the
trustee any power in trust, or imposes any duty relating to
the control or management of the trust estate, or establishes
any agency to be performed by the trustee, as such, the legal
title vests in him in order to enable him to administer the
trust; and where decedent, in his lifetime, created in defend- .
ant such a trust, proceeds of a sale by defendant in carrying
out such trust form no part of decedent's estate; plaintiff
as administrator has no rights whatever thereto, and can
not maintain an action there for as such administrator. Bar-
rette v. Dooly, 81.

511

In an action to determine ownership and right to possession of
certain mining ground, evidence of statements, of one of sev-
eral plaintiffs, as to the antedating, by him, of the location
notice, made in the absence of his co-plaintiffs and not con-
curred in by them, is hearsay and inadmissible to bind them.
Muldoon v. Brown, 121.

ADJOINING OWNERS.

Where adjoining owners and their predecessors in title occupy
land to a given line, and treat such line as a boundary between
their respective lots for 20 years, neither can thereafter claim
beyond such line. Larson v. Onesite, 38.

ADMINISTRATOR.

Whenever an instrument creating a trust confers upon the
trustee any power in trust, or imposes any duty relating to
the control or management of the trust estate, or establishes
any agency to be performed by the trustee, as such, the legal
title vests in him in order to enable him to administer the
trust; and where decedent, in his lifetime, created in defend-
ant such a trust, proceeds of a sale by defendant in carrying
out such trust form no part of decedent's estate; plaintiff as
administrator has no rights whatever thereto, and can not
maintain an action there for as such administrator. Bar-
rette v. Dooly, 81.

ADVERSE CLAIMS.

Actions to quiet title or to determine adverse claims under Sec
3511, R. S. 1898, may be of a legal or equitable character,
depending upon the pleadings; but where there are both
equitable issues and issues of fact in the case, the court
should first determine the equitable issue, and then submit
the issues of fact to a jury upon proper instructions, and a
failure so to do constitutes reversible error. Park v. Wilkin-
son, 279.

ADVERSE POSSESSION

In order to acquire a right to water by adverse possession, the
use must have been, for seven years, continuous, uninter-
rupted, hostile, notorious, and adverse; and to have been
adverse, it must have been asserted under claim of title
exclusive of any other right. Center Creek Irrigation Co., v.
Lindsay, 192.

AFFIDAVITS.

Affidavits upon motion for continuance, and also upon motion for new trial, should be embodied in a bill of exceptions, or otherwise identified by the court as having been used upon such motions respectively, in order to be considered upon appeal. Hecla Mining Co. v. Gisborn, 68.

AGENCY.

A principal who agrees that his agent shall receive a percentage of money or commissions to be paid upon a contract secured through such agent, for the benefit of both, can not dispose of his own right to receive the fund, and thus deprive the agent of the reward for his services. Reed v. Union Life Insurance Co., 295.

ANNUITY.

A life insurance policy which stipulates for the payment of an annual premium by the assured, with a condition to be void in case of nonpayment, is not an insurance from year to year, but the premium constitutes an annuity, the whole of which is the consideration for the entire assurance for life, the condition is a condition subsequent, making the policy void by nonperformance, and the acceptance of a note for the annual premium is a waiver of the payment of the premium, and brings into operation the conditions in the policy referring to the note. Thum v. Wolstenholme, 446.

APPEAL.

While it is true that the supreme court, under Art. 8, Sec. 4, of the constitution, has original jurisdiction to issue the writ of mandamus, yet even if it were conceded that mandamus is the proper remedy, when the right of appeal exists, still the supreme court will not entertain jurisdiction and issue the writ unless it is apparent that the interest of justice requires the interposition of the power. State v. Booth, 88.

A judgment of dismissal, discharging a prisoner, in a criminal case and releasing his bail entered after hearing arguments on a plea to the jurisdiction of the court, is a final judgment, and under the provisions of the constitution, Art. 8, Sec. 9, an appeal lies, on behalf of the State, to the supreme court. Id., 88.

An appeal in an equity case, under the provisions of Art. 8, Sec. 9, Const., brings up questions of both law and fact for review, and the appellate court may render such judgment 21 Utah-33