had received from the respondent for his use the sum of money as alleged in the complaint, that respondent had demanded the same from appellant, and that appellant had refused to pay the same, or any part thereof, to the respondent. As a conclusion of law the court found that the appellant owed respondent such sum of money, and rendered judgment accordingly.

Among other assignments of error the appellant insists that the court erred in finding that appellant had not paid, either to respondent or to his order, the sum of $1075, the amount of the check dated April 23, 1908. It is contended that this finding is not supported by the evidence, and is contrary thereto. In view of the pleadings the issue between the parties was very narrow.

1

2

The only question for the court to pass on was whether appellant had in fact paid the respondent or to his order the sum in controversy, namely, the $1075. It seems that at the trial the question of whether such payment was made was thought to depend entirely on whether the check for $1075 was genuine or not. This at least was the theory of counsel who represented appellant at the trial, as clearly appears from his own statement, which is incorporated into and made a part of the bill of exceptions. Counsel there said that, if the court found for the appellant "on the question of the genuineness of the signature of Dennis Fee, judgment should be entered in favor of plaintiff in the sum of $2.62, with interest and costs of suit." Counsel for appellant thus, in effect, told the court that, if the court found that the check for $1075 was genuine, then appellant was entitled to a credit for said amount on the gross amount deposited which it had admitted it had received from respondent, and under such finding respondent would still be entitled to a judgment for $2.62, the balance remaining on deposit with appellant. Counsel thus asked the court to make appellant's liability depend upon the genuineness of the signature to the check, and upon nothing else. The court thus eliminated all other questions, and, having found that the check was not genuine, could

not have found otherwise than he did, namely, that appellant had not paid respondent the $1075, because if it was not paid on that check, there is no pretense that it was paid at all. The only question, therefore, is: Is there any substantial evidence in the record in support of the finding that counsel attacks?

3

We think that, in view of the evidence and the circumstances to which we have referred, it is clear that there is substantial evidence in support of the finding that appellant did not pay respondent on his demand the sum of $1075 represented by the check aforesaid. It is true that there is considerable evidence in the record which, as appellant contends, tends to show that respondent authorized the drawing and issuing of the check to which respondent's name was signed without his authority, as the court found. There is also some evidence tending to show that respondent was guilty of a lack of diligence in failing to notify appellant not to honor or pay the check dated April 23, 1908. Appellant now urges that we pass upon those questions, and insists that the findings and judgment ought to have been in favor of appellant, in view of the state of the evidence upon those questions. These matters were, however, not submitted to the trial court. As we have seen, the pleadings presented but one issue, and that was whether appellant had on respondent's demand paid him the sum of $1075. The amount of the deposit and the fact that one check for $1150 had been paid were admitted. If we should assume, therefore, that under the issues presented by the pleadings the court should have passed upon two propositions (1) whether the check was genuine-that is, whether it was signed by respondent-and (2) if not signed by him, whether he nevertheless permitted the same to be issued, presented for payment, and paid, when he could have prevented such a result, yet, in view of the only question which counsel for appellant asked the trial court to pass on, and which it did, we are not authorized to pass upon the second proposition stated above, for the reason that the trial court did not pass upon it and was not asked to do so, but the

court was asked to and did make the liability of appellant depend upon the genuineness of the signature to the check dated April 23, 1908. If counsel had no confidence in the evidence adduced in support of the second proposition, why should the court have considered it? The findings responded to the issues as presented by the pleadings, and, in view of counsel's statement to the court, they also covered all questions raised by the evidence. This is all appellant can insist upon, and this is especially so in view of the fact that appellant did not request any findings upon the collateral questions which it now urges should be passed upon. The most that can be said with regard to the appellant's contentions relative to the findings is that appellant has changed counsel, and that it has also changed the theory upon which the case was presented to the trial court. What we have said with regard to the finding already discussed applies with equal force to the other findings attacked.

4

Another assignment relates to an alleged error committed by the court in permitting the respondent, while testifying as a witness in his own behalf, to examine the whole writing before he was required to answer whether or not it was his signature that was attached thereto. Counsel contend that the court should have required the witness to state whether this signature was his or not from a mere inspection of the signature, and should not have permitted the witness to examine or inspect the whole writing before requiring him to answer the question. We think the procedure of examining witnesses under the circumstances above detailed is within the sound discretion of the trial court. There is nothing made to appear in this case from which we can determine that the trial court abused the discretion vested in it. The assignment, therefore, cannot be sustained. Further, we are clearly of the opinion. that no prejudicial error is made to appear. What we have said with regard to the last assignment applies with equal, if not greater, force to all other assignments relating to the admission or exclusion of evidence.

37 Utah-3

5

We remark, in conclusion, that even though we were inclined to arrive at a different conclusion from that arrived at by the trial court from a mere inspection of the record, this would not be enough to authorize us to reverse the judgment, in view that it is based upon findings which are supported by sufficient evidence. The judgment is affirmed, with costs to respondent. STRAUP, C. J., and MCCARTY, J., concur.

FERRY v. FOWLER.

No. 2046. Decided January 5, 1910 (106 Pac. 506). PUBLIC LANDS-RESERVATIONS-BOUNDARIES. Where the federal government has by an official survey fixed the boundaries of an Indian reservation pursuant to proclamation by the President, and rights have been acquired thereunder by the issuance of patents to lands outside of the boundaries as fixed by the survey, the patents are valid as against any subsequent survey, including such lands within the reservation. (Page 38.)

APPEAL from District Court, Fourth District; Hon. J. E. Booth, Judge.

Action by Edward P. Ferry, by William Montague Ferry, and another, his general guardians, against R. E. Fowler.

Judgment for plaintiff. Defendant appeals.

AFFIRMED.

F. J. Gustin and Zane & Stringfellow for appellant.

Richards, Richards & Ferry for respondent.

APPELLANT'S POINTS.

In determining boundaries of land courses and distances yield to monuments or natural objects. The reason of the

rule is that it is the intention of the grant to convey the land actually surveyed and mistakes in courses or distances are more probable and more frequent than marked trees, mountains, rivers or other natural objects capable of being clearly designated and accurately described. (McIvers Lease v. Walker, 4 Wheat. [U. S.] 444, 17 Law Ed., 445; White v. Williams, 48 N. Y. 344; Beldon v. Seymour, 8 Conn. 19; Howe v. Bass, 2 Mass. 380; Walrod v. Flanigan, 75 Ia. 365; Hughes v. Cawthorn, 35 Fed. 248; Ogilvie v. Copeland, 145 Ill. 98.) The intention of the United States government was to grant to the Indians and reserve to the United States the land lying on each side of the Uintah river in Utah Territory, extending to "the crest of the first range of contiguous mountains on each side." When boundaries of land are fixed by known and unquestionable monuments, although neither courses nor distances nor the computed contents corresponds, the monuments must govern. (Pernam v. Wead, 6 Mass. 131.) An executive order by the President of the United States by which is set apart as a reservation for certain specified Indians a certain scope of country has the same effect as a treaty would have had with the Indians for the same purpose, and there can be no doubt of the power of the President to reserve such lands for the use of the Indians. (McFadden v. Mountain View Ming. & Mill'g Co., 97 Fed. 673; John Campbell Appeal, 6 Land Dec. 317; W. N. Braden Appeal, 1 Land Dec. 101; Reservation, 1 Land Dec. 702-3. This purpose and the stipulation of the United States could not be defeated by the action of any officers of the land department. (U. S. v. Carpenter, 111 U. S. 356; Lindley on Mines, sec. 183; Mono Fraction Lode Mining Claim, 31 Land Dec. 121; Acme Cement & Plaster Co., 31 Land Dec. 125; Gibbs v. Anderson, 131 Fed. Rep. 39; Instructions of the Sec. of Int., 31 Land Dec. 178.) A patent may be collaterally impeached in any action and its operation as a conveyance defeated by showing that the department had no jurisdiction to dispose of the land; that is, that the law did not provide for selling it, or that it had been reserved for sale,