that no increased burdens would be placed on their taxable property for the payment of interest or principal of such an indebtedness, and hence some of the electors may have been induced or misled by such statement to vote in favor of creating such an indebtedness who otherwise might not have done so.

True, it was provided in the statute itself that the city council should annually levy a sufficient tax to pay the interest of such a bonded indebtedness as it falls due, and to constitute a sinking fund to pay the principal; and it was further provided that in submitting to the voters the question of incurring such a bonded indebtedness the city council was only required to specify the particular purpose for which the indebtedness was to be created and the amount of bonds proposed to issue. It may therefore be conceded that the city council was not required to specify in the published ordinance or notice the manner of paying the proposed indebtedness, and that it was not necessary to submit such a question to the electors. But it must be remembered that to legally create such an indebtedness it was essential to obtain the consent of the majority of the qualified electors (those who paid a property tax in the year preceding the election) voting on the question of creating the indebtedness. To properly obtain their consent the city council was required to give them notice of the particular purpose of the indebtedness, the amount of bonds proposed, and the time and place of the election. Now, it may be said, with much force, a voter voting in favor of the question submitted did so upon the terms and conditions expressed in the notice; and though the city council was not required to submit to the voters the question as to the manner of paying the proposed indebtedness, still when it submitted to them the question of creating a bonded indebtedness of $475,000 to enlarge and improve the waterworks system on the terms. and conditions that the interest and principal of such an indebtedness should be paid from the net revenues derived from the waterworks system, a voter voting in favor of such

a question did so on such terms and conditions; and, since the bonds cannot be paid in such manner, no indebtedness was legally created, and the city council is unauthorized to issue the bonds. But since such matter was not required to be specified in the published notice, I am not inclined to indulge in such a conclusive presumption, and hold the election absolutely void. On the other hand, since the electors could not lawfully create a bonded indebtedness by consenting and agreeing to have it paid in the manner specified in the published notice, I cannot indulge in another conclusive presumption-that their consent was given to create such an indebtedness upon the condition that it be paid as provided by the statute. That is to say, one who may have given his consent to create such an indebtedness on the condition that his property should not be taxed has not given his consent to create such an indebtedness on the condition that his property should be taxed. To say, as in effect do the majority members of the court, that the electors were not in law misled by such statement in the published notice, and were not induced thereby to vote in favor of creating the indebtedness, on the theory that they were required to take notice of the statute and conclusively presumed to know that the city council could not lawfully pay the interest and principal of the indebtedness in manner specified in the published notice, and for that reason presumed to know that the facts so declared were untrue, and hence the electors not influenced or deceived thereby, is not only misapplying the maxim, that ingorance of the law is no excuse, but is also the making of conclusive presumptions of fact. To say that the electors were not misled by the statement because the city council were not required to speak on such a subject, is, I think, also unsound. A statement made by one not required to be made may have the effect to influence or mislead another quite as much as a statement of something which one was required to make. There are many instances where one may indeed remain silent; but when he speaks and speaks falsely, he may not defend or excuse

Lis misrepresentation on the ground that he was not required to speak in the first instance.

I think the question whether the electors were misled by the statement in the published notice is one of fact. Being one of fact, I think the relator was required to aver and show that a sufficient number of the qualified electors voting at the election were misled by the statement and induced to vote in favor of creating the indebtedness, who otherwise would not have done so, to change the result of the election. There being no such averments, I concur in the conclusion reached denying the writ. I recognize the general rule that, when bonds have passed into the hands of innocent purchasers for value, a mere irregularity in the proceedings by which they were issued does not ordinarily furnish ground for assailing them. But these bonds have not passed into the hands of such a purchaser. They have not yet been issued by the municipality. This application is made for the purpose of preventing the municipality from issuing the bonds and disposing of them. The application is therefore timely.

I also do not agree in the holding that the relator cannot be heard to say that the electors were misled by the false statement in the published notice on the theory of an agency existing between the electors and the city council.

MAX M. AARON, Respondent, v. G. S. HOLMES,
Appellant.

No. 1904. Decided November 14, 1908. Petition for Rehearing Denied January 28, 1909 (99 Pac. 450).

1. APPEAL AND ERROR-PROCEEDINGS BELOW-CHANge of GroundS OF OBJECTION. Where plaintiff admitted in writing that the default was excusable, and consented that it be set aside, provided the court held defendant's answer a good defense to the action, and the ruling denying a motion to set aside the default was 35 Utah-4

based solely on the latter ground, plaintiff cannot on appeal withdraw his admission, and assert that the default was not excusable. (Page 55.)

2. APPEAL AND ERROR-PRESENTATION OF GROUNDS-OBJECTION-SUFFICIENCY OF DECLARATION. Objections that a complaint does not state a cause of action may be urged for the first time on appeal. (Page 55.)

3. APPEAL AND ERROR-DISCRETION OF TRIAL COURT-SETTING ASIDE DEFAULT. Whether a default be set aside and the defaulting party allowed to plead to the merits is within the sound discretion of the trial court, the exercise of which, in absence of abuse, will not be reviewed on appeal. (Page 55.)

4. APPEAL AND ERROR-REVIEW-THEORY BELOW. The theory of the case, assumed and acted upon by the parties below, must be adhered to on appeal.1 (Page 56.)

5. LANDLORD AND TENANT-ACTION FOR EVICTION-GENERAL DENIALSCOPE. In an action for eviction, where defendant alleged that plaintiff surrendered the premises under an agreement that another should lease them, and that the goods set out of the premises were goods left there by plaintiff, and denied every allegation of the complaint not admitted or explained, the general denial at least put in issue the amount of the damages. (Page 56.)

6. LANDLORD AND TENANT-ACTION FOR EVICTION-DEFENSES-SurRENDER BY TENANT. Where a tenant requested permission to surrender the premises, and the landlord leased the premises to another in the tenant's presence and at his request, and the tenant paid the rent then due and surrendered the premises, and the new tenant was put into possession pursuant to the agreement, the tenant could not thereafter sue for eviction because some of his goods left in the building were set out. (Page 57.)

7. FRAUDS, STATUTE OF INTEREST IN LAND SURRENDER OF LEASEPAROL CONTRACT. While no interest in land can be surrendered by an executory parol agreement, an executed parol contract for the surrender of a lease is valid, so that a parol contract whereby a tenant surrendered leased premises and another was put in possession was not void under the statute of frauds." (Page 57.)

1 Lebcher v. Lambert, 23 Utah 1, 63 Pac. 628.

Cutwright v. Union Savings & Inv. Co., 33 Utah 486, 94 Pac. 984.

ON REHEARING.

8. LANDLORD AND TENANT-EVICTION-DEFENSES-PLEADING-SUFFICIENCY OF ALLEGATIONS. In an action for eviction, allegations

of the answer that the tenant requested permission to surrender the premises, that the landlord leased them to another in the tenant's presence and at his request, and that the new tenant thereafter took possession under the agreement, were sufficient, as against a general denial, to admit evidence of an executed contract by the tenant to surrender the premises. (Page 59.)

APPEAL from District Court, Third District. Hon. T. D. Lewis, Judge.

Action by Max M. Aaron against G. S. Holmes. From an order denying defendant's motion to open a default judgment for plaintiff, defendant appealed.

REVERSED with instructions to permit defendant to answer to the merits.

Samuel Russell for respondent.

Messrs. Dey & Hoppaugh for appellants.

STATEMENT OF FACTS.

This is an appeal from a judgment entered by default in the district court of Salt Lake county against G. S. Holmes, appellant. The important question presented by the appeal relates to the ruling of the trial court in denying an application made by Holmes to vacate the judgment and set aside the default and permit him to file an answer, which he presented in connection with his motion to vacate the judgment. The proceedings in the trial court, so far as material to the questions involved, are as follows: The complaint in substance alleged, (1) that on the 1st day of January, 1907, plaintiff was possessed of a leasehold estate to a certain storeroom at No. 112 East Second South street, in Salt Lake City, which estate was for the term of two years, commencing May 15, 1906, and terminating May 15, 1908; (2) that "said estate was created by a certain