plaint, but admits that defendants are in possession of the

premises, alleging title and right of possession in themselves, and that neither the plaintiff nor his grantors have been seized or possessed of the premises within two years next preceding the commencement of this action; and that they and those under whom they claim title have been in the quiet and peaceable possession thereof for more than two years before the bringing of this suit; that long before the commencement of this action plaintiff and his grantors abandoned whatever right, title and interest he or they may have had in the claim aforesaid. The facts, outside of the pleadings, as developed by the record, are substantially as follows:

In March A. D. 1860, the mining claim now occupied by the defendants was located by Charles Phillippi, Petro Anisini, and thirteen others; that these persons or some of them, occupied and worked the claims thus located up to the 9th day of March, A. D. 1861, at which time the entire claim was sold under execution issued out of a justice's court against the owners thereof, to one H. W. Johnson, to whom the constable making the sale executed a deed of the premises so sold, and placed him in the possession of the entire claim. A large number of the claimants thus ejected, availing themselves of an offer made by Johnson, redeemed their respective interests, and were admitted to all their original rights in the claim with him. From Johnson and the persons who thus redeemed their interests the present defendants derive their title. Phillippi and Anisini, the locators from whom the plaintiff claims his title, did not redeem their interests; whether they offered to do so or not, is matter of no consequence in this action, if the view we take of their rights and liabilities be correct.

At the trial, the defendants, for the purpose of showing title and right of possession in themselves, offered in evidence the complaint, summons, return, judgment, execution, evidence of the sale, and the constable's deed by which Johnson became possessed of the claim; the docket of the justice by whom the judgment was rendered was also offered for the purpose of showing the proceedings had in the action against Phillippi and others, and in which the judgment was rendered; to all of which the plaintiff's counsel objected, urging various reasons in support of the objection among which are: That the return

of the officer does not show that the defendants in that action were served with process within the jurisdiction of the justice, and that the justice rendering the judgment and constable who served the process were neither officers de facto nor de jure; and that, therefore, the judgment is void, and defendants could therefore obtain no right under it. We do not deem it necessary to notice any of the other objections interposed.

The court below ruled out all the proceedings had before the justice, together with the constable's deed to Johnson, upon the ground that the judgment was a nullity, and therefore the defendants acquired no rights under it.

The defendants then offered in evidence several deeds from Phillippi to McMahon, Swift, and others, conveying all his interest in the Uncle Sam Company, and all bearing date prior to the time of the execution of this deed to Small, the grantor of plaintiff, for the purpose of showing that at the time of the making of his deed to Small, Phillippi had no interest whatever in the ground in controversy, and that Small, and the plaintiff Mallett, received nothing by such conveyance. The books of the old Uncle Sam Company were also offered for the same purpose, all of which were admitted by the court below, but were afterward stricken out and the jury instructed to disregard them, for the reason, as it appears by the instructions of the court, that the defendants being mere naked trespassers were not in a position to show outstanding title to defeat plaintiff's claims.

These rulings of the court-the giving of the instructions asked by plaintiff and refusal to give instructions asked by defendants are assigned as error by appellants; and as the record in this case presents numerous questions involved in other cases against the same defendants, it will perhaps be a matter of utility to pass upon all such as may be deemed of importance in the determination of the others.

The first question presented for our consideration is that raised upon the ruling of the court in rejecting the docket of the justice and the proceedings had before him. It appears from the testimony that Smith, the justice, and Reese, the constable, were not regularly elected to their respective positions, but were appointed by the selectmen of the county of Carson, and received their commissions from the governor.

It is conceded that the appointment by the selectmen was an assumption of power not warranted by the statutes of Utah; but it is claimed that, having been commissioned by the power authorized to issue commissions to such officers, and they having acted in their respective capacities, were officers de facto, and that therefore their acts as to third persons are valid and their proceedings legal. Smith and Reese, discharged the functions of justice and constable for the county of Carson, and seem to have been generally recognized as legally constituted officers. It may often be a matter of extreme difficulty to determine whether a person discharging the duties of an office is to be deemed a mere intruder, or an officer de facto; but a stronger case in favor of clothing such persons with official character and giving validity to their acts could scarcely be presented than the one at bar. Indeed, whenever a person so discharging the duties of an office is not a mere usurper of his position, the reason and spirit of all the authorities incline to support him as an officer de facto, and to sustain and give validity to his acts.

It is said that on the one hand he is distinguished from a mere usurper of an office, and on the other from an officer de jure. The rule is dictated by the most obvious necessity. If the acts of public officers could at any time be overthrown by the showing of some irregularity or informality in their elections or appointment, all confidence in the judgment of courts would be destroyed, and judicial proceedings would ever be involved in doubt and uncertainty.

In the case of the People v. White, 24 Wend. 539, this question is fully argued by the learned chancellor, who says: "An officer de facto is one who comes into a legal and constitutional office by color of a legal appointment, or election to that office, and as the duties of the office must be discharged by some one for the benefit of the public, the law does not require third persons, at their peril, to ascertain whether such officer has been properly elected or appointed before they submit themselves to this authority, or call upon him to perform official acts which it is necessary he should perform."

Sutherland, J., in the case of Wilcox v. Smith, 5 Wend. 234, uses the following language:

"There must be some color of an election or appointment,

or an exercise of the office, and an acquiescence on the part of the public for a length of time which would afford a strong presumption of at least a colorable election or appointment."

Viewing the position of the justice and constable in this case in the light of the authorities, they must be considered officers de facto, and their acts as to third persons be held

valid.

But a more serious objection to the introduction of the judgment, and the subsequent proceedings thereon, arises from the failure to show that the justice had jurisdiction of the persons against whom the judgment was rendered.

It nowhere appears that the summons in that case was served within the territorial jurisdiction of the justice, nor that any of the defendants appeared, either personally or by counsel. This objection, independent of the others argued, was sufficient to authorize the judge below in excluding all the proceedings had before the justice. By the laws of Utah the jurisdiction of justices of the peace extended to the limits of their respective counties only. That service of a summons out of the county in which he had jurisdiction would be a nullity, there can scarcely be a doubt. A summons so served would have no more force or effect than if it were served out of the territory itself. If it were shown affirmatively that the summons was not served within the limits of Carson county, and that the defendants did not appear, no doubt can be entertained that the proceedings based upon such a service would be coram non judice, and void. No rule of law is more firmly established, or more generally recognized, than when any rights are claimed under or by virtue of the judgment of a court of special and limited jurisdiction, all the facts necessary to confer jurisdiction must be af firmatively shown. 2 Cow. & Hill's Notes, Phil. Ev. 906; Burns v. Harris (opinion of Bronson), 4 Comst. 374; Bowman v. Russ, 6 Cow. 234; Smith v. Andrews, 6 Cal. 654; Swain v. Chase, 12 Cal. 283; Lowe v. Alexander, 15 Cal. 296.

Jurisdiction in superior courts is presumed until the contrary appear, but nothing is presumed in favor of the jurisdiction of inferior courts.

The rule, omnia præsumuntur rite esse acta, has no appli

cation to the facts giving jurisdiction to such courts. In Sollers v. Lawrence, Willes, 416, the court, in speaking of courts of limited jurisdiction, says: "The rule is that nothing must be intended in favor of their jurisdiction, but that it must appear by what is set forth in the record that they had such jurisdiction. The fact of the summons having been served upon the defendants, would not necessarily bring them within the jurisdiction of the court; there inust not only be a service, but there must be such service as will give the court jurisdiction. If a service out of the county would give no jurisdiction, the necessity of showing that it was had within the county is certainly as imperious as it is to show that service was had at all. It is claimed, however, by counsel, that because the constable states in his return that some of the defendants were not to be found within his county, that therefore the presumption is that those upon whom he obtained service were within the county; but the very acknowledgment that such a presumption is necessary, is itself a confession of the insufficiency of the return. The rule is inflexible that no such presumption can be entertained. Though the judgment and proceedings under it were properly rejected when offered for the purpose of showing title in defendants, yet whether it should have been admitted when offered merely to show that the defendants were not mere naked trespassers, is a question which it is scarcely necessary to pass upon in this case, as we think it perfectly competent for the defendants to have shown the outstanding title derived from Phillippi, independent of whether they were trespassers or not.

The court below erred in ruling out the deeds from Phillippi to McMahon, Swift and others. If these deeds established the fact that at the time of the conveyance to Small, Phillippi had no interest in the premises or claim in question to convey, Small got nothing and could convey nothing to the plaintiff. If the defendants were not allowed to show such a state of things, we should have the novel case of a plaintiff, having no title and never having been in possession, recovering a mining claim from one in the actual occupancy, and in whom the law presumes title. Surely this would not harmonize with the rule of law so frequently declared and acted upon-that the plaintiff must recover on the strength of his own title. If such