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Show SLTUEME COURT DECISION. Jae. W. Hurnhaai cl a.,re.-pjDdtDU, vt. Ar.son CH cl a!., rppAlnhU; bppea' f otu Hie Third district. BireT3n, jiislwe. delien d tbe opinion uf tlie court. Tine aciion ia for trespass upon real estate, txpell'mg appellants therefrom there-from aud culling and carrying away lirajj uiid hay. Ttie complaint illeeed ihese ac-'s to have been done on the 4ih day ot July, 1S76, and nc tber diiy or date ia mentioned. Tbe verdict Hud judgment were for respondents re-spondents and the dam ites assessed at i450. The defendants below thereupon there-upon briug tbe cade to this court. It iB assigned lor error that the COUrt below. Over thp rihipr-ttnn nt uppelianU, admitted evidence of tbe cutting of the graaa ard taking aod carryiuK away hay on the 5:h day ol July, lb7G, when the trespaad wb ilitKd to have taken place on the 4ib ul July, ftnd was not laid for any ulluT day. TLe former doctrine wao thai pucb proof cuuld not be ad milted whe-a tne cimplaiot contaiaed no cuntntuendo nor any allegation ol the treepAea on "divers other daya." Tbia doctrine, however, i8 not con-eiotent con-eiotent with the liberal rule required re-quired under our practice. Tbe courts must see th.it substantial jua-tice jua-tice is done, and technical objections, not ailecting tbe eubatanlial rights ol the parties, must be disregarded. (Civil Pr. Acta 70 and 71 Compiled Laws 1295 6. ) Tbe acts alleged to have laben place on the 4th of July seemed, according to evidence, to bavo been continued into the 5th ol July, and the acts of the oth ol July were merely the windiug up of tbe alleged trespass of tbe 4tb of July. The appellants could not have been misled to their prejudice by the word ing of the complaint, and hence we can eoe no good reason for reversing the judgment for the alleged error referred re-ferred lo. (Dubois vs. Beaver 25, No. 9, 123.) The next alleged error of the court was to tbe exclusion ol appellants' evidence to controvert respondents' possesion of the premises and the possession and ownership of the hay, and the giving of instructions to the jury that the amended answer admitted the prior possession of defendants and that respondents respon-dents were entitled to a verdict. The answer, in express terms, denies lhat respondent owned the property or was ever entitled to the possession or was ever in possession of the said premises, or any part thereof, prior lo tho 10th day of July, 1876. But in the new mailer set up in tne answer, tbe appellant allege possession in themselves, and those under whom they claim, ever Bince 1S49, and that whilst appellants were so in posses-sion, posses-sion, to wit, on the 3d day of July, 1S70, the respondents, against the will of the appellants, entered upon tho land" and commenced to cut hay, and lhat such posatssion, "so wrongfully taken" by respondents, was the only possession respondents ever had prior to me lOih of July, 1S76. A detend-ant detend-ant has a right to plead as many defenses as be may have if, when the answer ia sworn to, they be not contradictory. con-tradictory. The denials and Lhc new malter here can stand together. If they be even inconsistent, the in-cou-ioiency is inferential and remote. Tne appellants allege possession -in ihemselves at and prior lo the time when respondents came upon tbe ground lhat ibey (appelUnta) were so iu possession; respondents trespassed upon tbeejouud. The new matier, in tll'ect, ae-erts ih,t respondents and not tbe appel.auts were the trespa-ser. Toe- appellan's oflered to prove prior possession in themselves and that respondents did not have it. If this were shown Ihe action could not bo maintained for the trespass. Tbe evidence should have been admitted. The judgment id reversed and the cause remanded lor furlher proceedings proceed-ings in the court below, in accordance accord-ance with this opinion. EJ ward Anthony, cl al.t ro-pondenta, vs. C. K. Savage, appellant. Appeal . Iroui the Third district court. Boreman Justice, delivered the opinion of tho court. The complaint contains two counts the first for a balance due in August, 1S75, on account of money due and owing from defendant below (appellant (appel-lant here) to the plaintifla below (respondents (re-spondents here), and the second upon an account slated between the parties on the 7th of October, 1874. Tbe answer denied Ihe indebtedness ! in the first count, and plead the ! statute- cf limitations (four years) 1 thereto. Tbe answer also denied that any account was ever slated between the parties, and denied tbe alleged promise prom-ise to pay the amount alleged to have been lound due, or auy other sum. Tho cauo was submitted to a jury and a verdict had for respondents for the amount claimed, and judgmeut was given accordingly. Thereupon delendauld below appealed lo this court. The two counts were both for the sumo substance matter and it is ul lei;eti that it was error lo allow this; mil that appellant's motion to compel com-pel respondents to elect upon which iouut to proceed should have been sustained. It is uot neceseary fur this court now to decide whether or not there are any cases in which two counts lor Ihe Bame matter may be embraced in one complaint. It is evident that this is uot one of these cases. When we wade through tbe mass of matter sent on this record, we find il there was any cause of action, it was Binip'y bused upon two certain acceptances, or on a new promise taking the debt out of tho statute ot limitations. The first count is f r a bilauce of accouut for money. It is not for the t'aiauce due on an open mutual account ac-count U tween tho parlies, with charges on either side. The proof bhoa that this balance ot accouut for money was a balance of money due on two tertinn cre,tancrt. after dc-ihicMng dc-ihicMng p. y men's T r 1 1 s ent' riva ot itte cr. d'i d-r$ n,, n.ak? ihi- ucct-Lii;t n.utu-! idum inn mutual mu-tual dicing- en as lo rtqd're tin- l4t;iU-;ul limitations t run fir I he Ust ite'ii. ( Wci'.hcrw Mi':l Co. 17 Oil 311; Nj;U,-i r Larco 30. ICO) 'lie second count was to: neces i eary. A count upon aa account staud could not, in this aa?, af!ect anything. If these acceptances were barnd l y Ihe statute of limitations, the etitit-jj of the account between the pariits wcu'-d not take it out ol ip pthtnie, unless su:h stating ws '"in writing, signed by tne party lo be i c In reed thereby." (Compiled iaws, j 11 -y, p.3o9.) The whole question, therefore, re-' verts back to the acceptances. 1 these acceptances were barred by thi statute ot limitations, suit could no be maintained upun them, but thej would be Burhcient consideration foi new promise, and if there was a neu promise or acknowledgment, in wiit ing. signed by ihe appellant, thf action bo:i!d hare been upon tbt ew promise or acbnowh demerit. (Boiiknfsky vs. Powers, 1 Utah, 333; MCortih-k r.v Brown, 36 Cal. ISO; Fornell Culmer. 36 Cal. 1SS ) Ttie crriaiuiy is no cause ot action either upon 'he accouut or upon the icenunl stated. It is not necessary lo notice any oilier alleged errors. Tbe action ol tbe court below in giving judgment nd overruling the notice lor a new trial is reversed, Schatfler, 0. J., dis senting. |