NEGLIGENCE.

1. CARE OF PREMISES.-One maintaining on his premises a dan-
gerous and attractive appliance, under circumstances naturally
attractive to children, and inducing them to believe that they
may enter and play, impliedly invites the children to enter on
his premises, requiring him to use ordinary care to protect
them from injury. Smalley v. R. G. W. Ry., 423.

2. NEGLIGENCE CARE OF PREMISES.-The doctrine that one main-
taining on his premises a dangerous and attractive appliance
must take reasonable precautions to prevent injury to children
induced to come on the premises thereby is not generally ap-
plied to attractions arising from the ordinary conduct of a
business, or from the mere operation of a machine in the usual
manner, but is generally applied to a machine or thing at rest
and left unguarded under circumstances where children are
exposed to danger by their meddling with it. Ib.

3. CARE OF PREMISES.—As a general rule, no duty is imposed on the
owner of premises to keep them in a safe condition for the visits
of those who, without license or invitation, may come on them
for their own convenience or mere pleasure, or who otherwise
enter as trespassers. Smalley v. R. G. W. Ry., 423.

4. CARE OF PREMISES.-As a general rule, one inducing or inviting
another to come on his premises must use ordinary care to
avoid injuring him. Ib.

5. CONTRIBUTORY NEGLIGENCE.-The defense of contributory negli-
gence is always available against an adult or one having at-
tained the years of discretion. Palmer v. O. S. L., 466.

6. DUTY TO USE CARE.-Whether in a given case a duty to use
care was imposed on one charged with negligence is ordinarily
a question of law. Smalley v. R. G. W. Ry., 423.

7. DUTY TO USE CARE.-Every case of actionable negligence involves
a duty to use care and a breach of duty resulting in injury. Ib.
8. INSTRUCTIONS.-In negligence cases, where the duty varies with
the conditions, a mere general statement of the law with regard
to the duty generally imposed is insufficient. Herndon v. S.
L. C., 65.

9. TRESPASSERS CHILDREN-TURNTABLES.-An exception to the rule
that a railroad company is under no greater duty to discover
a trespassing child in peril than to discover an adult tres-
passer arises in cases of places attractive to children. Palmer
v. O. S. L. 466.

10. TRESPASSERS-PLACES ATTRACTIVE TO CHILDREN.-A railroad track
in the open country is not attractive nor alluring to children
within the exception to the rule that a railroad company owes
a trespassing child no greater duty to discover its peril than it
owes to an adult trespasser. Ib.

NEW TRIAL.

1. CONDITIONS ON DENIAL-PERFORMANCE.-The court on hearing a
motion for new trial made an order granting a new trial unless
within ten days after service of notice of the decision on plain-
tiff he agreed to remit a part of the verdict and consented that

judgment might be entered for a specified amount and costs. Two days later plaintiff filed with the clerk a remittitur in accordance with the order. On the same day an order was made entering a judgment for the specified amount and costs, and denying the motion for new trial. Held, that a motion by defendant subsequently filed, asking that the original order be made absolute, and that a new trial be granted because plaintiff had not served a copy of the remittitur, was properly denied. Prye v. Kalbaugh, 306.

2. DISCRETION OF TRIAL COURT.-The trial court in passing on a motion for a new trial may exercise a sound discretion which the losing party may invoke in the light of the whole proceedings in the case. Law v. Smith, 394.

3. MOTIONS-RIGHT TO MOVE FOR NEW TRIAL.-The right to move for a new trial exists in every case, legal or equitable, and whether tried by the court or jury. Ib.

OFFICERS.

1. CLAIMS-IMPROPER CLAIMS-STATUTES.-A sheriff presenting to the county a claim for money expended in the discharge of official duties for which the law provides no compensation except the salary fixed by Comp. Laws, 1907, section 2057, does not present a charge for illegal fees for services rendered within section 4580, providing that any officer guilty of corruptly charg ing and collecting illegal fees for services rendered may be removed. Ib.

2. REMOVAL-GROUNDS-MALFEASANCE.-Before an officer may be removed from office for malfeasance in presenting a fraudulent claim and receiving payment therefor, it must be found that he knew, when he preferred the claim or received payment, that he was not entitled to the money; and the mere fact of the filing of an unauthorized claim and receiving payment thereou may or may not constitute a wrongful act as distinguished from one not sanctioned by law. Ib.

3. REMOVAL-Grounds-STATUTES.-To justify the removal of an officer for malfeasance under Code 1907, section 4565, subjecting officers to removal for high crimes, misdemeanors, or malfeasance, it is necessary that the act of which the officers is accused is positively unlawful or involves some evil or wrongdoing on his part, which must be known to him to be such when he committed the act, but it is not necessary that he should be found guilty of some high crime or misdemeanor, the judgment shall be on the undisputed facts, but it does not weigh the evidence to determine what facts are established. Ib.

4. REMOVAL-GROUNDS-STATUTES.-Under Comp. Laws 1907, section 4056, providing that the omission to specify in the Code any ground of forfeiture of a public office shall not affect such forfeiture, etc., and section 4066, providing that a conviction of a felony involving misconduct in office forfeits the office, and section 4565, subjecting officers to removal for high crimes, misdemeanors, or malfeasance, an officer found guilty of the felony denounced by section 4083, punishing the presentation for allowance and payment of fraudulent claims, is removed from office without any further action, but proof that a county officer preferred a fraudulent claim against the county, and received payment therefor, with knowledge that he had no right to the

money, shows his guilt of malfeasance justifying his removal, since, in view of section 4056, it is not necessary that the specific acts for which a removal is demanded are specified in some section of the Code, but it is enough that the particular acts relied on are specified in the accusation filed, and that such acts amount to malfeasance. Ib.

While to

5. PRESENTATION OF UNLAWFUL CLAIMS-"MALFEASANCE." convict an officer of the felony denounced by Comp. Laws 1907, section 4083, punishing every person who with intent to defraud, presents for allowance and payment a fraudulent claim, the proof must show that he presented the claim with intent to defraud, yet such proof is not essential to sustain a conviction for malfeasance in a proceeding for his removal under section 4565; the term "malfeasance" meaning the commission of an act which is positively unlawful. Ib.

6. REMOVAL-GROUNDS-STATUTES. Under Comp. Laws 1907, sections 1015, 1016, 1023, 1027, requiring county officers to keep a correct account of fees collected by them and pay the same into the proper treasury, requiring fees generally to be paid in advance, requiring all officers to keep a fee book in which a detailed statement of fees collected shall be entered and providing that any officer willfully neglecting to keep a fee book, etc., shall be guilty of a misdemeanor, an officer is guilty of a misdemeanor only where he willfully refuses to keep a fee book, and is not guilty in case of a mere mistake or inadvertence in failing to charge or collect fees, though his bond may be responsible for such omissions, and such omissions do not justify his removal from office for malfeasance. Ib.

7. REMOVAL-GROUNDS-MALFEASANCE EVIDENCE. In a proceeding under Comp. Laws 1907, section 4565, for the removal of a sheriff for malfeasance in presenting a fraudulent claim against the county and receiving payment thereon, in violation of section 4083, evidence held to require submission to the jury of the issue whether he preferred the claim knowing that he had no legal right to payment. Ib.

8. REMOVAL-GROUNDS-MALFEASANCE.

As a general rule, it can

not be said as a matter of law that a particular act is wrongful and is malfeasance in office simply because it is not authorized by law. Ib.

9. REMOVAL GROUNDS-STATUTES. Whether the failure of an officer to charge legal fees or include them in a statement filed by him as required by Comp. Laws 1907, sections 1015, 1016, 1023, 1027, is willful or otherwise, is a question of fact which under proper instructions must ordinarily be submitted to the jury in proceedings for the removal of the officer for a willful disregard of the statutes. Ib.

10. REMOVAL-MALFEASANCE-EVIDENCE-SUFFICIENCY.

In view of

Comp. Laws 1907, section 1016, providing that all fees shall be paid in advance, the court may presume that an officer bound to collect fees in advance has complied with the law, so that, when he makes a return on a process showing a charge for fees, it will be presumed that he has collected the fees and has them, unless it appears that the case was a charity case in which no fees were to be collected, but such presumptions does not warrant a finding that he willfully neglected to include them in the statement required by law on it appearing that they are not included therein. Ib.

11. REMOVAL PROCEEDINGS-AUTHORITY OF COURT. The court, in proceedings for the removal of an officer for malfeasance, may set aside the verdict and grant a new trial for errors of law in the instructions, or for the refusal of the jury to follow the instructions. Ib.

12. REMOVAL-GROUNDS.

In a proceeding under Comp. Laws 1907, section 4565, for the removal of a sheriff for his failure to file statements of fees collected by him, and for failing to charge and collect fees as required by sections 1015, 1016, and 1023, evidence held to require the submission to the jury of the issue whether he was guilty of a willful neglect essential to justify his removal. Ib.

13. SHERIFFS-ILLEGAL FEES. An accusation filed against a sheriff in proceedings for his removal under Comp. Laws 1907, section 4565, subjecting officers to removal for high crimes, misdemeanors, or malfeasance, which avers that he is accused of malfeasance committed by his fraudulently presenting for allowance and payment a false claim against the county for expenses in performing certain duties after he had presented a claim therefor to the state which claim had been allowed and paid, states facts authorizing a conviction for a violation of section 4083, punishing every person, who with intent to defraud, presents for allowance or payment a fraudulent claim. Ib.

PARTNERSHIP.

1. EXISTENCE LIABILITY TO THIRD PERSONS. Where persons held themselves out as partners, they are liable to third persons as such, regardless of any partnership agreement. Walker Bros. v. Skliris, 353.

2. EVIDENCE-REPORT TO MERCANTILE AGENCY. In an action to recover property of a business as the individual property of plaintiff's decedent, a business statement to a mercantile agency, signed by decedent, which referred to himself and son as "partners and officers" of the firm, was admissible to show a partnership in the business between father and son. Bridgman v. Winsness, 383.

3. EVIDENCE-ADVERTISEMENT FROM CITY DIRECTORY. In an action to recover property of a business as the individual property of plaintif's decedent, a paragraph from a city directory, containing an advertisement mentioning decedent and his son as the proprietors of the business was admissible to show a partnership between decedent and his son in the business, where it appeared that decedent was a party to the transaction whereby the advertisement was inserted in the directory. Ib.

4. MEMBERS EVIDENCE. Evidence held to support a finding that a person was at his death a member of a partnership embracing himself and son. Ib.

5. PROOF OF EXISTENCE OF RELATION-ESTABLISHMENT BY CIRCUMSTANCES. The existence of a partnership may be implied from circumstances, especially where they not only tend to show the relation, but are inconsistent with any other theory. Ib.

PLEADING.

ALLEGATIONS-CONCLUSION OF LAW-ADMISSIONS.

An allegation in

a complaint that a city was charged with the duty of maintaining streets in a safe condition for public travel is a mere conclusion of law, and the city is not bound by it by reason of its admission thereof. Herndon v. O. L. C., 65.

PRINCIPAL.

TRANSACTIONS BETWEEN PRINCIPAL AND AGENT. As between principal and agent, the utmost good faith is required on the part of both; and, where the agent fails to keep the principal informed of all the facts, he cannot obtain any advantage by reason of his own negligence or want of good faith. v. Herzinger, 337.

PUBLIC LANDS.

Little

1. GRANT TO STATE-RELATION OF TITLE. The enabling act (Act July 16, 1894, c. 138, 28 Stat. 107), under which Utah was organized as a state, contained a grant by Congress to the state of a stated number of acres of land for specified purposes to be selected by the state, under the directions of the Secretary of the Interior from unappropriated public lands within the state, the language of the grant being, "The following grants of land are hereby made to said state for the purposes indicated namely," followed by a statement of the objects and the number of acres for each. Held, that the grant was one in praesenti, and that on a selection, by the state of land within its terms, which selection was afterward approved by the Secretary of the Interior, the state's title related back to the date of the grant, or at least to the date of such selection. Brigham City v. Rich, 130.

2. UNIVERSITY LANDS-SALINE LANDS-GRANT TO STATE-CONSTRUCTION. Where, in an act granting saline lands to a state for the use of the state university, Congress has expressed its intention as to the extent of the grant with certainty, that intention is not to be departed from on any extraneous consideration or theory of construction, and similar grants to other states need not be considered as evidencing a policy on the subject, nor need provisions in committee reports on the bill making the grant be inquired into. State v. Salt Co., 468.

QUIETING TITLE.

1. FINDINGS-EFFECT. Where, in a suit to quiet title, defendant claimed under a lease, and there was evidence that plaintiff had prepared a lease and had signed it without intending to become bound unless defendant agreed to it and signed it, and that deïendant did not agree to it, but, after having been informed that he could not have the land, fraudulently obtained possession of the lease from the attorney in charge of it, a finding that the lease was obtained by defendant's fraud, and that the lease was void, might be construed to amount to a finding that the lease, as a mere instrument in writing, containing the evidence of the agreement between the parties, was obtained by defendant's fraud, justifying a conclusion that the lease was void. Morgan v. Simmons, 146.