Opinion of the Court. almost helpless for nearly thirty years. Whether it was the direct result of his army life and the disease there contracted, or the direct and immediate result of the alleged accident, seems to be the chief subject of conflict in the evidence of the witnesses. It is unnecessary and it would serve no good purpose for us on this occasion to go into an extended and minute review of the evidence given on both sides of this case. It has been read with great care, and the most that can be said is that after a careful perusal of all of it there are some circumstances shown which might raise a doubt as to whether the last stroke of paralysis did not occur immediately or soon after the alleged accident. We are not entirely satisfied from the evidence that the accident in truth occurred in the manner and to the extent as testified to by the witnesses who spoke in regard to it, and who were quite young boys at the time they alleged that it happened, which was almost thirty years before the time they testified. But even if we were satisfied from the evidence that the accident took place as described by these witnesses, we should still feel that the case on the part of the government had not been made out with that clearness which is requisite in order to base a finding of fraud. It is not and cannot be disputed that Lalone went to the army a healthy man and came back very greatly altered and to all appearance a very sick man. It is uncontradicted that while in the army he suffered from some very grave and enervating fever, and that he was treated for it in the hospital at Alexandria. The medical witnesses called on the part of the government themselves admit that paralysis might supervene more readily in the case of one who had materially suffered from some disease and who had not recovered from its effects, such as fever and ague, than it might in the case of a healthy man, or, as one of them said, "just to the extent that his vital forces were depressed by the disease under which he suffered he would be just that much less able to withstand sickness or injury, and that, therefore, an injury which might not have resulted with a perfectly well person in such injury to the brain as to cause paralysis might be followed Syllabus. with such result more readily in the case of a man who had suffered from a previous illness and was still laboring under its depressing effects." In the latter case, while the blow or accident might be the direct, immediate cause of the paralysis, yet the prior physical condition of the subject caused by illhealth and exposure in the army and the sickness which he endured while in the hospital in Virginia from which he was then suffering, might fairly be regarded as a concurring cause of such paralysis. It could not be said to be a fraud, at any rate, under such a state of facts for the defendant to claim that his paralysis was caused by his sickness in the army. It may be somewhat doubtful as to what was the immediate cause of the paralysis from which the defendant suffered and from which he is now suffering and probably will suffer to the end. That he is almost completely helpless and has been all these years is not doubted. The trial court in the opinion delivered by it only went so far as to say that on the whole it was satisfied that the government had a preponderance of evidence that the pension was obtained fraudulently and that the money paid on it should be recovered back. This mere preponderance, as we have seen, is not sufficient in such a case. The decree in favor of the government must, therefore, be Reversed, and the case remanded to the Circuit Court with directions to dismiss the bill. OLD JORDAN MINING AND MILLING CO. v. SOCIÉTÉ ANONYME DES MINES. ERROR TO THE SUPREME COURT OF THE TERRITORY OF UTAH. No. 71. Argued October 27, 1896.- Decided November 30, 1896. The only error urged in the court below, or noticed in its opinion, and which, consequently, can be considered here, goes to the insufficiency of the proof of the contract set up in the complaint, in which this court finds no error. Statement of the Case. THIS was an action originally brought in the District Court for the Third Judicial District of the Territory of Utah by the Société Anonyme des Mines de Lexington, a French corporation, against the Old Jordan Mining and Milling Company, to recover one half the expense of certain repairs made to canal or water ditch owned by them in common. The complaint alleged that, since the month of March, 1883, these parties had continuously been tenants in common, owning an equal undivided interest in a certain canal, known sometimes as the "Galena," sometimes as the "Old Telegraph Canal," and sometimes the "Old Jordan Canal," together with the right of way and adjacent lands; that, between the 22d of October, 1883, and November 5, 1883, they entered into a contract in writing, in which it was agreed that they would make repairs, etc., and that each should pay one half of the expense thereof; that in the year 1884 the plaintiff made certain repairs of the value of $993.93; in 1885, of the value of $4025; in 1886, and until June, 1887, $4826.95, and, in 1887, from June 30 to December 31, $500, aggregating $10,345.88, for its share of which a statement or bill of items was furnished to the defendant; that the said defendant, on the 31st of December, 1884, paid to plaintiff $496.96, its half of the amount expended in 1884, but failed to pay its half of the other expenses incurred as aforesaid, leaving a balance due of $4675.98, for which judgment was demanded. An answer was filed specifically denying the several averments of the complaint; and subsequently an amendment was made alleging that from the 1st of January, 1885, plaintiff had appropriated to its own use, without defendant's consent, all the water flowing through said ditch or canal, and that the reasonable value of that portion of the said water owned by defendant was $10 per day. The answer also made other allegations not necessary to be considered as the case was presented to this court. In support of the contract alleged in the complaint plaintiff put in evidence the following letter, written by its manager to the manager of the defendant under date of October 24, 1883: Statement of the Case. "DEAR SIR: During my present stay in this city, for the purpose of investigating and inspecting our different pieces of property in this Territory, my attention was particularly called to the bad state of the Jordan water ditch, which your and our companies own jointly. Considering that it is for our mutual interest to see that this property should be kept in proper shape, I beg you in the name of your company, if you do not judge that it would be advisable, while I am here, to have an understanding regarding this matter. I suggest that the necessary repairs should be done at once, and that hereafter the ditch should be kept in good condition, both companies paying their share of the incurred expenses. "Will you please be kind enough to give this matter your prompt attention and favor us with an immediate reply, as I shall remain here only until the 15th of November." To this letter the defendant's manager made the following reply: "CLEVELAND, O., Oct. 30th, 1883. "Mons. Eng. Renevey, l'administrateur délégué de Société des Mines de Lexington: "Your letter of 24th inst., in regard to the necessity of entering into some arrangement for repairing and preserving the Jordan water canal, owned by your company and the one I represent, is rec'd. I agree with you that it is for our mutual interest that this property should be kept in good order, and I shall be pleased to join you in a reasonable arrangement for the purpose of protecting the property froin decay, and I am very glad to find a gentleman willing to coöperate in a business way for the protection of our mutual interests. Your suggestion that the needed repairs should be done at once, and that each company pay its share of expense, and also for care for the future, is right, and I will direct Mr. Van Deusen, our engineer, to coöperate with you or any one you may delegate to examine the property and report what repairs are necessary, and the cost of the same. He is a very trustworthy and capable man, and I think you will our mutual advantage to act under his judgment and let him find it for Opinion of the Court. make the repairs. As neither of us are using the water at present, I would think it best to expend only so much as is necessary to prevent loss, and when we are ready to use the water, then we make permanent improvements. If you do not have time to go into details before you leave, will you please leave the matter in the hands of some one who will coöperate with me and Mr. Van Deusen - unless you are willing to have him do it, and each company pay one half the expense. "I make this suggestion because I think Mr. Van Deusen can do the work satisfactory to both. "Regretting that my absence from Salt Lake prevents me from a personal consultation with you, I am." Other correspondence and evidence were introduced, which are fully set forth in the opinion of the court. The case was tried before a jury, and a verdict rendered in favor of the plaintiff for the sum of $6028.76, upon which a remittitur was filed of $12.35, and judgment thereupon entered in the sum of $6016.41. Upon appeal to the Supreme Court of the Territory this judgment was affirmed. 9 Utah, 483. Whereupon defendant sued out a writ of error from this court. Mr. L. T. Michener for plaintiff in error. Mr. C. W. Bennett and Mr. W. W. Dudley were on his brief. Mr. Jeremiah M. Wilson for defendant in error. MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court. 1. As the only error urged in the court below, or noticed in its opinion, turns upon the alleged insufficiency of the proof of the contract set up in the complaint, we shall confine our consideration of the case to that point, notwithstanding that other errors are assigned in this court, and, to some extent, noticed in the brief of the plaintiff in error. We have repeatedly held that the failure to present and insist upon errors |