the charge was given in open court, and in presence of counsel for both parties. That it is proper to allow written instructions to go to the jury room, see People v. Cummings, 57 Cal. 88. In the absence of contrary statutory direction on the subject, the instructions given by the court to the jury in writing may, in the discretion of the court, be taken with them to their room when they retire to deliberate.

Differences of climate and locality are to be considered in determining the liability of municipalities for their failure to exercise care in removing ice and snow from their walks. Each case must be considered with reference to the climate of the place. In Minnesota, where snow and ice exist almost constantly through the winter season, to require municipalities to keep their walks absolutely free of ice and snow would be highly unreasonable. But in other localities and in a warmer climate, like Utah, where snow and ice, although not unusual, are by no means con tinuous, to require the municipalities to keep their walks free of ice and snow, especially in particular localities, is by no means unreasonable. Jones, Neg. Mun. Corp. § 100.

Upon a full examination of the case and authorities cited, we are of the opinion that the judgment should be affirmed; and it is so ordered.

1. On appeal from a judgment for plaintiff in a justice court, judgment was rendered for plaintiff by default. On motion for a new trial it appeared that the appeal had been pending for seven years; that, a few days before the day the case was set for trial, defendants' attorney consulted an attorney whose cases were ahead of his on the calendar, and was told that the case could not be reached until the day after that for which it was set; that the attorney then told defendants to appear on that day; and that, as soon as he found that the case would be called on the day for which it was set, he sent a special messenger to notify defendants, but that, owing to a change in the time card of the trains, and the impassable condition of the roads, defendants were unable to appear. Held, that it was error to refuse a new trial.

2. Under Comp. Laws 1888, § 3020, limiting the jurisdiction of a justice of the peace to cases in which the sum claimed is less than $300, a justice cannot include in his judgment interest on the sum claimed from the time suit was brought, if this makes the total amount of the judgment more than $300. King, J., dissenting.

3. The fact that the justice in such a case allows the interest does not deprive him of original jurisdiction, so as to render the judgment void, and therefore unappealable.

4. On appeal from a justice court the district court may allow interest on the sum claimed from the time the suit was brought, though

the judgment, on account of such allowance, exceeds the amount for which the justice court could have rendered judgment.

Appeal from district court, Salt Lake county; before Justice C. S. Zane.

Action by McCormick Harvesting Machine Company against John A. Marchant and others. There was a judgment in a justice court for plaintiff for $444.27. Upon a trial de novo in the district court, there was a judgment by default for plaintiff for $299, and costs taxed at $21.90, and, from an order denying a new trial, defendants appeal. Reversed.

W. I. Snyder and Barlow Ferguson, for appellants. Rawlins & Critchlow, for respondent.

BARTCH, J. This action was originally brought before a justice of the peace to recover a certain sum of money due on two promissory notes. The justice rendered judg ment for the amount sued for, interest, and costs, in the total sum of $444.27, in favor of the plaintiff, and from this judgment the defendants appealed to the district court, where judgment was rendered on the verdict of a jury against the defendants for the sum of $299, and costs taxed at $21.90. The plaintiff alleges that there is due it the sum of $263.32, being the amount of two promissory notes, besides interest thereon, and $15 attorney's fee, and prays for judgment in the sum of $278.66. The defendants admit the making and delivery of the notes, and aver that the same were given as part purchase price for one McCormick self-binding harvesting machine furnished them by the plaintiff; and then plead failure of consideration, and breach of warranty, and claim that they were damaged because the drive wheel belonging to said machine was worthless; that the plaintiff agreed to replace it with a new one, but failed to do so; that there were no other wheels in the market, so that the defendants were unable to purchase one; that they had offered a rescission of the contract, and to return the property, and were still willing to return it; and that they had paid $100 on the machine, under the promise and expectation that the bad wheel would be made good, etc. The record shows that the notes in question were given August 20, 1883: that the complaint in the justice's court was filed November 22, 1886; that summons was issued on said last-named day; that the justice rendered judgment against the defendants for the sum of $444.27; that the case was set for trial in the district court on the 5th day of December, 1893, and on this lastnamed day the case was called for hearing, when counsel for the defendants moved for a continuance until the next day, on the ground that he was not ready for trial, and in support of said motion counsel made a sworn statement to the effect that on Saturday, December 2, 1893, he telephoned from his office in Park City to an attorney in Salt

It ap

Lake City, who had three cases on the calendar to be tried before the one under consideration could be reached, to ascertain the state of the calendar, and was informed that the three cases would be tried, and would take a day each; that he was afterwards informed that one of those cases was continued on account of the death of an attorney; that he relied on the information so obtained as to the state of the calendar, and directed his clients to proceed to court with their witnesses on the day their case was set for trial, so as to be ready for the next day; that he had a case of his own which he thought would take the greater part of one day, but which was settled and dismissed, so that on the day this case was set for trial the other cases had all been disposed of; that on the afternoon of the day previous, as soon as he had learned of the unexpected disposition of the preceding cases, and that his clients' case would be reached on time, he sent word to them by special messenger, and received a reply that they would start early in the morning from Peoa, in Summit county, and since had learned that they were on the way with their witnesses; that he could not proceed to trial without them; that he expected to prove a defense substantially as stated in the answer; that it was a matter of great expense to a poor man residing in said county to be in attendance at said court before trial two or three days, and therefore some leniency ought to be shown. pears that upon this statement the court continued the cause until 4 o'clock p. m. of said day, when a further continuance was asked until the next day, which was denied, and thereupon the case was tried, and judgment rendered, without any testimony on the part of the defendants. Thereafter counsel for the defendants made a motion for a new trial, and in support of this motion submitted a number of additional affidavits, showing, in substance, that when counsel telephoned the attorney in Salt Lake City about the condition of the calendar the court was three days behind its settings; that some of the witnesses proceeded to court by train, and some were compelled to go with private conveyance; that the time of running trains had been changed within a few days without the knowledge of the defendants, so that the train which, prior to the change, arrived at Salt Lake City at 11:20 a. m. did not arrive there, on the day of the trial, until 5 o'clock p. m.; that the wagon road on that day was almost impassable, so that it required double the usual time, which usual time was about seven hours, to make the trip; that, as soon as it was known that the case would be reached on the day it was set, the defendants and their witnesses exercised the utmost diligence to be present at the trial. It is also shown by the record that on the day of the trial counsel for the defendants offered to give this case the place of one of his own, set for the next day, which offer was refused.

The additional affidavits having been submitted, and the motion for a new trial having been heard, the court entered an order overruling and denying the motion. From this order the defendants prosecuted their appeal.

We will first consider the question whether the court erred in refusing a continuance. It may be observed that about seven years elapsed from the time this suit was brought in the justice's court until it was finally set for a trial in the district court, and that the cause of this long delay is not disclosed by the record, but it is reasonable to presume that the plaintiff did not use proper diligence to bring the case to trial. The defendants had set up a meritorious defense, and there is nothing in the record which indicates that they caused this long delay, or that on the occasion in question they were seeking unnecessary delay. They were advised by counsel when to appear in court. He was misled by the condition of the court's calendar, and, while it was his duty to consult with the court about the matter instead of an attorney, still it would seem that, by his sworn statement, he made a sufficient showing to grant a continuance until the next day, which was all that was asked. This, however, was within the sound discretion of the trial court, under the cir cumstances, as they then appeared, and, if nothing further were shown, this court would hesitate to disturb the ruling then made; but the additional affidavits which were submitted after the trial, showing the efforts of the defendants to be present in time to make their defense, present a case which merits careful consideration, and it must be weighed in the light of the circumstances surrounding it, for there is no general rule which governs a case of this character. As we regard the facts presented, it seems clear that the defendants in good faith endeavored to be present at the trial, and were innocently misled and failed to be there without such fault as should preclude them from having their day in court. We are therefore inclined to hold, under the peculiar circumstances of tuis case as presented by the record, and not being advised of the undercurrents which may have surrounded the contentions of the parties, that the defendants made such an affirmative showing, which is in no way controverted in the record, as fairly entitles them to a new trial.

The next question is whether the judg ment rendered by the justice of the peace is in excess of his jurisdiction, and, if so, whether the district court acquired jurisdiction over the case on appeal. Under our statute, every justice of the peace has jurisdiction in "an action arising on contract for the recovery of money only, if the sum claimed is less than three hundred dollars." Comp. Laws Utah 1888, § 3020 The "sum claimed" is the test of the justice's jurisdic

tion in such cases, and it may be any sum less than $300. The amount, therefore, claimed in the plaintiff's complaint determines the jurisdiction of the justice, and when jurisdiction has once attached it will not be ousted by the rendition of an erroneous judgment. As a general, though not an invariable, rule, when jurisdiction of a case has been once properly and lawfully acquired, no subsequent fact in that particular case will defeat such jurisdiction; and when a justice of the peace has jurisdiction of a cause, and erroneously renders judg ment in excess of his jurisdiction, such judgment may be corrected by proper proceed. ing before such justice, or, on appeal to the district court, it may render a proper judgment. Wells, Jur. § 79; 12 Am. & Eng. Enc. Law, pp. 283, 284, 426; 1 Black, Judgm. § 243; Mollan v. Torrance, 9 Wheat. 537. In the case at bar the justice erred in rendering judgment in excess of the amount authorized by statute. This was caused by including within said judgment the interest | on the notes which accumulated after suit was brought. Such error did not oust the justice of jurisdiction, because the jurisdiction was determined by the amount claimed in the complaint, and the defendants had an adequate remedy by motion or appeal. The question now is, ought the district court to have included such interest in its judgment, it having acquired jurisdiction by appeal? In other words, can a district court, in a case like the one at bar, render judgment for a sum in excess of the jurisdiction of the justice of the peace? In the district court such a cause must be tried de novo, the same as any other cause (Comp. Laws Utah 1888, § 3658); and, upon principle, it is difficult to perceive why that court, being a court of general jurisdiction, should not do complete justice between the parties, in an action upon contract for money only, where the justice had jurisdiction when the suit was commenced before him, and render judgment in excess of the justice's jurisdiction, when such excess is for interest only which has accrued on the notes or contract subsequent to the rendition of the judgment by the justice. Upon what principle of justice should a party who has obligated himself by contract for the payment of money be allowed, after judgment has been entered against him in a justice's court, to avoid the payment of interest on such obligation, for an indefinite period of time, by an appeal to the district court? If an appeal from a justice's court would produce such a result, it would defeat the very terms of the contract, as expressed between the parties. We do not so understand the law. Nor would such an interpretation be in harmony with justice and fair dealing, because it would encourage appeals and liti gation on the part of dishonest debtors, who would thereby avoid the payment of interest and delay the payment of the principal.

;

A note is given as evidence of the debt, and the interest is only an incident to it, and is justly provided for as compensation for delay in payment. Of this, therefore, the payee should not be deprived by an appeal to the district court. No reason is perIceived why the contract between the parties should be affected by such appeal, and the interest thereby forfeited. Wells, Jur. § 100; Raymond V. Strobel, 24 Ill. Trego v. Lewis, 58 Pa. St. 463; Mitcheltree v. Sparks, 1 Scam. 198; Rives v. Kumler, 27 Ill. 290; Solomon v. Reese, 34 Cal. 28. From an examination of the facts and circumstances shown by the record in this case, we are of the opinion that the judgment rendered by the justice was in excess of his jurisdiction; that such excess, however, did not oust him of jurisdiction; that after a district court acquires jurisdiction, by appeal, from a justice of the peace, it may render judgment upon trial for any amount found due within the jurisdiction of the justice, and, in addition thereto, for the interest on such amount which has accumulated since the commencement of the action before the justice, and at the rate provided in the note or contract; and that the defendants are entitled to a new trial. The cause is remanded and reversed, with directions to the court below to grant a new trial, and proceed in accordance herewith.

1.1 Comp. Laws, p. 298. § 187, empowers the county court to lay out and maintain public roads and perform other acts from which indebtedness must arise, but does not affirmatively confer power to create any indebtedness. Id. p. 293, § 173, provides that no county shall incur any indebtedness or liability in any manner, or for any purpose, to an amount exceeding, etc. Id. p. 306, § 195, provides that the county court must not contract liabilities except in pursuance of law. Id. p. 308, § 200, provides that warrants drawn by order of such court must specify the liability for which they are drawn. Held, that the statutes by impli cation confer on the county court the power to create indebtedness against the county.

2. Under 1 Comp. Laws, p. 293, § 173, providing that no county shall incur any indebtedness exceeding in any year the total amount of its income for the two fiscal years immediately preceding the incurring of such indebtedness; and Id. p. 306, § 195, providing that the liabilities contracted by the county court must not exceed in any fiscal year the income and revenue of such county for the two fiscal years immediately preceding the incurring of such in debtedness; and Id. p. 296, § 182, requiring the

county clerk to make up a statement of the financial condition of the county at the end of each fiscal year, the amount of indebtedness which the county court can in any way create cannot at any time exceed the revenues of the current fiscal year beyond the amount of the county revenue and income for the two years immediately preceding.

3. Since taxes for the current year are, in contemplation of law, collected as soon as the levy is made, the allowance of claims against the county equal to the tax revenue for the current year is not a creation of indebtedness or liability against the county.

4. Where the limit of indebtedness allowed by law to be created by the county court has been reached, such county may issue warrants for future claims as they arise, as soon as an equal amount of the legally issued outstanding warrants have been redeemed.

Application, on the relation of S. F. Fenton, against Jacob B. Blair and others, as members of the county court of Salt Lake county, for a writ of mandamus. Denied.

W. H. Dickson and Allen & Pence, for applicant. C. O. Whittemore, Co. Atty., for defendants.

SMITH, J.

This is a proceeding begun originally in this court to obtain a writ of mandate against the defendants, requiring them, as the county court of Salt Lake county, to issue to the plaintiff a county warrant for the sum of $464.56, alleged to be due the plaintiff for certain labor done and material furnished to the county of Salt Lake on and after the 15th day of November, 1894, and prior to the 17th day of December, 1894. It is alleged, in substance, that the plaintiff made a contract with the defendants' predecessors in office, then constituting the county court of Salt Lake county, to furnish and deliver certain electrical appliances and do certain labor for the sum of $464.58; that he performed this labor prior to the 17th day of December, 1894, and on the 19th day of January, 1895, the defendants in the meantime having qualified, the plaintiff having presented his account, duly verified, as required by law, and prayed the allowance of the same, it was rejected by the county court. The defendants admit that the contract was made as alleged, and that the plaintiff performed the labor and furnished the material for which his claim was presented; admit❘ that the county had not paid the claim, or any part of it, and that on the 19th day of January, 1895, the plaintiff made demand of the defendants that they allow and pay the said amount, and that they refused to allow or appropriate for or pay the claim. It is then set out that the reason why such allowance, appropriation, or payment is not made is that, at the time the contract was made, there were warrants outstanding and unpaid drawn on the treasury of Salt Lake county under the direction of the county court, amounting in the aggregate to the sum of $353,674.11, and, in addition thereto, other liabilities incurred by said county court, amounting to $125,000; that the funds in the treasury of the county available for the

payments of warrants on the date when the contract was made amounted to the sum of $24,109.45; that the excess of warrants over the funds in the treasury to meet the same was $329,564.66; that this amount of indebtedness, with that which had been incurred as aforesaid, for which warrants had not been drawn, made the total indebtedness against the county $454,564.66. The defendants further allege that the plaintiff presented his claim on the 31st day of December, 1894, and that the amount of warrants outstanding and unpaid at that time was $427,550.88, and that there were funds in the treasury available for paying such warrants to the amount of $22,715.48. Defendants further allege that the total revenue and income of Salt Lake county for the years 1892 and 1893 amounted to $326,748.06.

A stipulation of facts was agreed upon by counsel for the respective parties, which shows the following facts, which we deem material: On the 31st day of December, 1894, the total outstanding warrants of Salt Lake county unpaid were $427,550.88. The amount of moneys on hand was $22,715.48. The amount of taxes uncollected, but which were admitted to be collectible for the year 1894, was $18,167.39. The income and revenue for the county for the years 1892 and 1893, excluding poll tax paid in labor, and excluding the county school taxes, amounted to $326,748.06; but, of this amount, $49,770.99 was for tax levied in 1891, and collected in 1892. That poll tax paid in labor to the county during 1892 and 1893 was $11,234.50. That the county school tax for 1892 and 1893 amounted to $185,712.68. That 4 per cent. of the entire taxable property of the county of Salt Lake in the year 1893 was $1,938,674.16. That the total county tax assessed for 1894, excluding poll tax paid in labor, and excluding school tax, was $122,727.74; and the revenue from other sources was $43,355.06. That there was cash in the hands of the treasurer January 1, 1894, $7,602.16.

The case presents two questions: First, Whether or not the county court of Salt Lake county has any power, under existing congressional and territorial laws, to create indebtedness against said county. Second. If such power exists, what is the limit of indebtedness, or what is the amount of indebtedness that can be so created?

An examination of the congressional and territorial laws nowhere discloses any express authority to incur indebtedness. The duties and powers of the county court are set out at large in section 187, p. 298, of the first volume of the Compiled Laws. The county court possesses the power to supervise the conduct of officers; to divide the county into school, road, and other districts; to establish, abolish, and change election precincts; to lay out, maintain, control, and manage public roads, turnpikes, ferries, and bridges; to provide for the care and maintenance of the indigent sick or otherwise dependent

poor; to provide a working farm and workshops in connection with the county hospital or poorhouse; to employ the inmates thereof; to provide suitable rooms for county officers; to purchase, lease, or hold real or personal property necessary for the use of the county; to cause to be erected or rebuilt and furnished the courthouse, jail, hospital, and such other public buildings as may be necessary; to sell property belonging to the county; to examine and audit the accounts of public officers; to settle and allow all accounts legally chargeable against the county and order warrants to be drawn on the treasury thereof; to levy taxes on taxable property of the county; to maintain, regulate, and govern public pounds and pound keepers; to equalize assessments within their county; to control and direct the prosecution and defense of all suits to which the county is a party; to insure the county buildings in the name and for the benefit of the county; to fix the price of advertising; to adopt a seal for their court, and enforce rules for the government of their body; to make annual reports of the financial condition of the county; to provide for the destruction of wild animals, noxious weeds, and insects; to establish county office for the transaction of the business of the county; to fill vacancies by appointment; to provide for the preservation of the public health; to prevent the bringing of indigent persons into the county; to provide for working prisoners under sentence in the county jail; to provide for burying the indigent dead; and to make the necessary local police and sundry other regulations not in conflict with the general laws. Section 173, p. 293, provides that "no county shall incur any indebtedness or liability in any manner, or for any purpose, to an amount exceeding in any year the total amount of its income and revenue for the two fiscal years immediately preceding the incurring of such indebtedness. Any indebtedness or liability incurred contrary to this provision shall be void." Section 174, p. 294, provides: "All contracts, authorizations, allowances, payments, and liabilities to pay, made or attempted to be made, in violation of this act, shall be absolutely void, and shall never be the foundation of a claim against such county." Section 195, p. 306, provides: "The court must not, for any purpose, contract debts or liabilities, except in pursuance of law, nor shall such indebtedness or liability, in any manner or for any purpose, exceed in any fiscal year the income and revenue of such county for the two fiscal years immediately preceding the incurring of such indebtedness." Section 200, p. 308, provides: "Warrants drawn by order of the court on the county treasury must specify the liabilities for which they are drawn, and the funds from which they are to be paid. The treasurer must pay the warrants in the order of their presentation. If the fund is insufficient to pay any warrant, it must be regis

tered, and thereafter paid in the order of its registration." These are substantially all of the statutes bearing upon the subject of the power of the county court to create an indebtedness; and while they nowhere, in express terms, authorize the county court to incur such indebtedness, they nowhere expressly forbid it; and it would seem from the nature of the duties imposed upon the county court, the limit of their power to levy taxes, and the language of the sections we have cited above, that the power to create an indebtedness within certain limits is un-. questionably implied and intended by the legislature. We think there is authority under these statutes to create an indebtedness.

So the next question, and the more difficult one, is, what is the limit of the indebtedness? Section 182, p. 296, 1 Comp. Laws, in the fifth subdivision, provides, among other duties of the county clerk, "that the county clerk must keep an accurate account of all receipts and expenditures of his county, also of all debts payable to and by said county; at the first session of the court held in each year the clerk shall submit to the said court a statement showing the total amount received from each source of revenue during the fiscal year ending on the thirty-first day of December last preceding, the balance, if any, in the treasury at the close of the previous fiscal year; the expenditures during the fiscal year just closed, specifying separately the total amount paid to each officer and the total amount for each and every disbursement, the balance on hand, if any, together with a statement of all the debts payable to and by the said county." The contention of the plaintiff is, in brief, that the county court in each year may expend its revenue collected in that year, and may incur an indebtedness in excess of the revenue equal to the revenue for two years immediately preceding, and that this process may be repeated from year to year until the entire indebtedness should equal the 4 per cent. limit fixed by the act of congress. It is intimated in the brief of counsel for the plaintiff that the legislative powers of the territory could not be exercised to limit the power of the county court within the 4 per cent. fixed by the act of congress; that otherwise their actions would be in conflict with that act of congress. We think this does not necessarily follow. The act of congress is simply a limitation upon the legislature of the territory, is not a grant of power to the legislature, much less to the county court. It forbids the legislature to authorize a greater indebtedness than 4 per cent., and, being directly applicable to the territory, of course forbids the municipal corporations in the territory from incurring for any purpose an indebtedness in excess of 4 per cent. The question is, what is the limit that the territorial legislature has fixed? An examination of the statutes we have cited, including that in regard to the duty of the county clerk, together with the provi