Volume 34 — Utah Reports

D. Lewis, Judge. Personal injury action by Louisa B. Paul against the Salt Lake City Railroad Company. Judgment for defendant and plaintiff appeals. APPELLANTS POINTS. Pailnre to give proper instructions requested is ground for new trial. (Playne, New Trial, secs. 120-124; People v. Hamilton, 4 Utah 263; People v. Ghadwich, 7 Utah 134; Downey v. Gemini If.

L. Ritchie, Judge. Proceedings by the state, on the relation of A. B. Edler, against J. A. Edwards, as State Auditor, to determine the validity of a statute. Judgment for respondent, and relator appeals.

District; J. A. Howell, Judge. Petition by tbe Commercial National Bank against Emelia 0. Bedford and others to re-open tbe probate proceedings in tbe matter of tbe estate of C. A. Bedford, deceased. From a judgment for defendants, plaintiff appeals.

<p>1. Limitation of Actions — Computation of Peek® of Limitation— Absence at Time of Accrual of Cause of Action — “Return to the State”. — “Come into the State.” The word “return,” in Revised Statutes 1898, sec. 2888, providing that “if when the cause of action accrues against a person, he is out of the state, the action may be commenced within the term herein limited after his return to the state,” as applied to absent debtors, includes nonresidents as well as citizens of the state who have gone abroad and returned to the state, the words “return to the state” being equivalent to “come into the state.”</p> <p>2. Same — Operation and Effect of Bar of Limitation — Effect as to Remedies in Other States. Where one acquired a cause of action, after its accrual, by assignment, even though when it accrued he was and ever since has been a citizen of the state, he is not within the exception to Revised Statutes 1898, sec. 2899, which provides that ■ when .a cause of action which has arisen in another state is barred therein by lapse of time an action thereon shall not be maintained in this state “except in favor of one who has been a citizen of this state and who has held the cause of action from the time it accrued.”</p> <p>3. Same — -Construction of Limitation Laws in General. While statutes of limitation are to be liberally construed, provisions thereof excepting certain persons or classes from the operation of the statutes are to be strictly construed, and courts will not by construction extend such an exception to include persons not expressly mentioned therein.</p> <p>4. Statutes — Construction—Given Effect to Entire Statute. To so construe one section of a statute as to render abortive another section thereof is not permissible where the two sections can by any reasonable construction be made to harmonize.</p> <p>5. Actions — Nature and Element oe Cause oe Action. A cause of ' action consists in, first, the primary right and the facts from which it fiows, and, second, the breach of that right and facts constituting such breach, which elements taken together create a remedial right.</p> <p>G. Contbacts — CONSTRUCTION—Place oe Making. The place where the last act is 'done which is necessary to give validity to a contract for the sale of real estate was written in one state and was signed there on behalf of the vendor, who resided in another state, by one wholly unauthorized to make or sign the contract, and was thereafter forwarded to the vendor, who replied by letter assenting thereto, the contract was made in the state of the vendor, his assent being given there, and being the last act necessary to make the writing a valid contract.</p> <p>7. Same — Place oe Pereoemance. When no place of performance is fixed by a contract, it will be presumed that the contract is to be performed where made.</p> <p>8. Same — Actions—Place oe Accrual oe Cause oe Action. A failure to perform a contract made in a foreign state, and which fixed no place of performance, constituted a breach in such state and not elsewhere, and the cause of action arising thereon, if any, arose in such state and not elsewhere.</p>

<p>1. Constitutional Law — Construction on Constitutional Provisions — State Constitutions' — Grant or Limitation on Powers. State Constitutions are mere limitations, not grants, of powers.</p> <p>2. Taxation — Nature and Extent of Power — Power on Legislature in General. The power of taxation is a legislative function, and, unless restrained by the Constitution, the exercise of this power is vested in the Legislature, whose power over the subject is plenary and supreme.</p> <p>3. Licenses — Occupation Tax — Constitutional Provisions — Legislative Power. Constitution, art. 13, sec. 3, requires the Legislature to provide by law a uniform ana equal rate of assessment and taxation of all property. Section 12 provides that nothing in the Constitution shall be construed to prevent the Legislature from providing a tax on occupation, license, franchise, or mortgages. Held, that section 12 places no limitation on the power of the Legislature to impose the several kinds of taxes specified therein.</p> <p>а. Same — -Equality and Uniformity. The constitutional provision imposing equality and uniformity of taxation has no application to an occupation or license tax, but is limited to a direct property tax, which is assessed and collected in the usual way.</p> <p>5. Same — Nature on Occupation Tax. A tax imposed on the carrying on of any business, trade, profession, or calling is not a direct tax on property.</p> <p>б. Same — -Amount on Tax — -Reasonableness Classification. Revised Statutes 1898, sec. 206, subd. 87, confers power on cities to raise revenue by levying and collecting a license fee or tax on any private corporation or business within the limits of the city, and regulate the same by ordinance, and provides that all such license fees and taxes shall be uniform in respect to the class upon which they are imposed. Held, that an ordinance imposing a tax on any business, trade, profession, or calling, and which divides the merchants and bankers into twenty-two classes, those carrying stock exceeding $500,000 to constitute the first class and pay an annual license tax of $500, the lowest class being limited to $200, which pays an annual license tax of $10, and the amount of $100,000, constituting the difference between each of the first five classes, was not in violation of che statute, the classification, while in one sense arbitrary, not being unreasonable.</p> <p>7. Taxation — Power to Tax — Restrictions—Powers cot Courts. Where neither the Constitution nor the statute imposes absolute restrictions on the power of taxation, the courts may not arbitrarily impose any, unless it clearly appears that the tax imposed is oppressive or clearly and unreasonably discriminatory, and thus is an abuse of the taxing power.</p> <p>8. Municipal Corporations — Ordinances—Occupation Tax — Validity. That the penal provision of an ordinance providing for an occupation tax may be void, as imposing a penalty for failure to pay the tax which is not imposed for a failure to pay taxes generally, does not invalidate the remainder of the ordinance.</p>

Action by Asenath Chadwick against John H. Arnold and another. From a judgment for defendants, plaintiff appeals. APPELLANT’S POINTS. Acquiring property by fraud creates a constructive trust. (Laemon v. Kniglvb, 33 Am. S't. 229; Oatilina v. Catilina, 19 Am.

<p>1. 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.</p> <p>2. Tkial — Instructions—Applicability to Evidence. An instruction that a city is required to use ordinary care to keep its streets, in a reasonably safe condition for travel, and that whether the streets are in such a condition is a question of fact to be determined in each case by the particular circumstances, correctly states an abstract proposition of law, applicable to a street the whole width of which has been opened and worked for public travel, but is inapplicable to a street only part of which has been prepared for public travel, and is misleading in such a ease, as leading the jurors to assume that it is the duty of a city to make and keep all of its streets in a reasonably safe condition throughout their entire width at all times and under all circumstances.</p> <p>3. Same. Instructions should in all cases apply the law to the existing facts.</p> <p>4. Negligence — Actions—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.</p> <p>5. Municipal Corporations — Defective Streets — Injuries to Travelers — Negligence. The gist of an action for personal injuries caused by a defective street is the negligence of the city, and there can be no actionable negligence -unless the city did or omitted io do something which, in the exercise of ordinary care, it should have done, or omitted to do.</p> <p>6. Same. A city, opening and undertaking to put tne whole width of a street in condition for travel, and inviting the public to use the whole width, must exercise ordinary care to maintain the whole width in a condition reasonably safe; but a city, working only a part of the street, ana putting that into condition for travel, is required only to maintain that part in a reasonably safe condition.</p> <p>7. Same. A city, in opening a street for travel, possesses primarily the discretion to determine whether it will prepare, the whole width of the street for travel, though in the business portions of the city, or where travel and the convenience of the public require it, the -whole width of the street must generally be made passable and in a reasonably safe condition, while in outlying portions it may determine what portions of the streets it will prepare for travel.</p> <p>8. Same — Question for Jury. Whether a city, opening for travel only a part of the width of a street, opened a sufficient part, may be a question of fact.</p> <p>9. Same. Whether the streets are maintained in a reasonably safe condition for travel throughout their entire width where the whole width is open, or over that portion which is opened and prepared for travel, is a question of fact to be determined by the jury from the facts in the case.</p> <p>10. Same — Instructions. Where, in an action for injuries to a traveler, caused by a defective street, it appeared that the street had. not been prepared for travel throughout its entire width, and that the accident occurred in that part which had not been prepared for travel, the court must instruct the jury specially with regard to the duty of the city to prepare for public travel such part of the street as is reasonably sufficient for public travel; and, where the question arises as to whether the city has prepared a sufficient width for travel, the jury should be required to find from the facts whether or not the space prepared was reasonably sufficient.</p> <p>11. Same — Pleading. In an action for'personal injury, caused by a defective street, because of the failure of the city to prepare a sufficient part of the street for public travel, the complaint should allege as a ground of negligence the failure of the city to prepare a sufficient part for public travel.</p> <p>12. Same — Evidence—Instructions. Where, in an action for personal injuries, caused by a defective street, it appeared that the street was 132 feet between the lot lines, that the city had prepared only a part of the width for public travel, and that the injuries occurred at a place outside of such prepared part, the refusal to charge that the city was not required to make passable the whole width of the street, but was only required to improve and make passable such portion thereof as was reasonably necessary for the needs of the public, was erroneous, especially in view of the giving of a charge that the city was required to use ordinary care to keep,its street in a reasonably safe condition for travel.</p> <p>13. Same. Where, in an action for personal injuries, caused by a defective street, the evidence showed that the city had prepared only a part of the street for public travel, and that the accident occurred at a place outside of such part, it was error to fail to charge that it was the duty of the plaintiff to pursue the traveled part of the streét, and that, if he departed therefrom negligently or heedlessly, or for his own convenience, he assumed the risk, and could not recover.</p> <p>14. Same — Barriers. A city as a general rule is not required to put up barriers to prevent travelers from driving off the traveled portions of the streets, and barriers are generally required only where an obstruction or excavation is placed in the traveled part of the street, or where the excavation is so near the traveled part that it makes it a dangerous place to pass over, for barriers are intended to make the passageway safe, and not to mark or define the limits of the way.</p> <p>15. Same — Warning Signals. A city, opening and preparing only a part of the street for use, and permitting the remaining portion to remain rough with obstructions on it, need not as a general rule mark the limits of the traveled portion, or place signals at or near the obstructions to warn travelers; and it is the duty of the traveler to remain within the traveled portion, and, if that portion is not reasonably sufficient for public use, he may complain on that ground.</p> <p>16. Same — Barriers. Where a city maintains a street on two levels, one considerably higher than the other, and the two are divided by an abrupt declivity, and both levels are open for travel, it may be incumbent on the city to place a barrier along the upper level to prevent accidents in driving over the edge; the barrier being simply for the purpose of making the driveway reasonably safe.</p> <p>17. Same — Instructions. In an action for personal injuries, caused by a defective street, only a part of which was opened and prepared for public travel, the jury, on it appearing that the accident occurred on a part of the street not prepared for public travel, should be instructed with regard to the duty of a city in opening and preparing its streets, and when and for what purpose barriers are required, and if, in view of all the circumstances, the street was not reasonably safe without barriers, the city would be liable.</p> <p>18. Same. In an action for personal injuries, caused by a defective street, only a part of which was prepared for public travel, the jury, on it appearing that the accident occurred on a part of the street not prepared for public travel, should be instructed that it is not ordinarily the duty of a city to place lights or warning signals or to put up barriers along the margin of its streets, or to mark or define the traveled portions of them, and that the signals and barriers are required only to point out obstructions or excavations m the traveled part.</p> <p>19. Same. Unless the duty to light the streets is imposed on a city by statute or by its charter, the failure to maintain lights in the streets is generally not' negligence.</p> <p>20. Same — Contributory Negligence. The absence of lights in the streets of a city may be important on the question of contributory negligence of a traveler injured because of a defective street.</p> <p>21. Trial — Refusal to Give Instructions Covered by Those Given. It is not error to refuse requested instructions covered by the court’s general charge.</p> <p>22. Same. Requested instructions containing correct statements of the law, but ending by directing the jury to determine the whole case on a single issue not decisive of the whole case, are properly refused.</p> <p>23. Evidence — Opinion of Witnesses — Conclusion. On the issue of the sufficiency of the prepared portion of a street in view of the public travel, witnesses cannot testify directly that the portion prepared for travel was sufficient for public travel, since that is a mere conclusion of the witnesses, and the reasonable sufficiency of the street is the ultimate fact to be found by the jury.</p> <p>24. Municipal Corporations — Streets'—Safe Condition. In an action for personal injuries, caused by a defective street, only a part of which had been prepared for public travel, if it was of sufficient width and reasonably safe within that width to permit plaintiff to pass over it at the time, and he departed from the traveled part without cause, he cannot complain that the street was not worked to a wider extent, on the sole ground that others at other times may have required more space in passing over it.</p>

A. Howell, Judge. Action by Fred Foulger against John McGrath and another. The action was dismissed as to defendant John M. McGrath, and from a judgment for plaintiff, defendant Mary McGrath appeals.

W. Morse, Judge. Action by Russell Sage Raphael against the Wasatch & Jordan Valley Railroad Company and the Hnion Trust Company of the City of New York, individually and as trustees, and others. From a judgment finding Joseph Martin, plaintiff’s attorney in the action, guilty of contempt, said attorney appeals.

Original application in tbe Supreme Court for mandamus by tbe State, on relation of Justin R. Davis, petitioner, against John C. Cutler and others, constituting tbe State board of examiners.

<p>Appeal from District Court, Third District; T. D. Lewis, Judge.</p> <p>Action by the Gimnieh Furniture Manufacturing Company against P. A. Sorensen. From a judgment for plaintiff, defendant appeals.</p>

W. Morse, Judge. Action by John S. Kollo and others against David A. Nelson and another, to enjoin defendants from obstructing a cement walk.

<p>Tbusts — Resulting Teust — Evidence. In an action to require an administratrix and heirs to deed to plaintiff property purchased hy plaintiff, the title to which was taken in the name of decedent, her father, evidence held to show that the property was purchased in the first instance hy plaintiff, and that the written contract of purchase was made in her name and for her use and benefit, and not for the use and benefit of her father.</p>

W* Maughan, Judge. P'roceeding by Brigham City against J. T. Rich and others to condemn land for public use. Judgment for plaintiff, and defendant tbe Box Elder Power & Light Company appeals.

E. Booth, Judge. Action by Owen Morgan against William Simmons. From a judgment for plaintiff, defendant appeals. APPELLANT *S POINTS. “It is no more necessary for a lessee to sign a lease in order that the same may become a binding obligation, than it is for the grantee of a conveyance in fee to sign the deed.” (Baragiano v. Villiani, 117 Ill. App. 372.) The owner of real estate may transfer his land by lease signed by him alone.

A. Howell, Judge. Action by C. P. Groot and another, partners under the firm name of C. P. Groot & Son, .against the Oregon Short Line Railroad Company and another. Prom a judgment for plaintiffs against defendant the Union Pacific Railroad Company, it appeals.

<p>Criminal Law — Preliminary Examination. Const., art. 1, sec. 13, provides that offenses heretofore required to he prosecuted by indictment shall be prosecuted by information after examination and commitment by a magistrate, unless the examination be waived, or by indictment with or without such examinatioiL. An information was filed on August 17, 1907, charging defendant with fornication, and defendant was duly bound over by a committing magistrate to answer to the charge. The information was quashed on the. ground that the complaint showed that the crime was barred by limitations, and the state, without again taking defendant before a committing magistrate for preliminary examination, filed a second information charging him with 'unlawfully having sexual intercourse on another date. Held, that' the court could not authorize the filing of the second information and try defendant for a distinct offense for which he had never been committed before a magistrate.</p>

<p>1. Evidence — DECLARATIONS BY Decedent — Admissibility. Declarations, verbal or written, are admissible, when relevant to the matter at issue when declarant is dead, when the declaration was, at the time it was made, against a pecuniary or proprietary interest of declarant, when it was of a fact in relation to a matter of which he was personally cognizant, and when he had no probable motive to falsify the fact declared, which is generally shown by proof that it was made ante litem motam.</p> <p>2. Same. Declarations otherwise admissible are not inadmissible because declarant was in privity with the party offering the declarations.</p> <p>3.- Same. Declarations by a father, who had conveyed land to a daughter, that he had not started a suit to cancel the deed and that he' had no knowledge of such suit, made about the time a suit to cancel the deed was brought, and shortly thereafter, are declarations of facts presumably within the knowledge of the declarant, and are relevant to the matter at issue in an action by an attorney for services rendered in such suit.</p> <p>4. Same. In the absence of a statute, declarations by a decedent, to be admissible, must be against declarant’s pecuniary or proprietary interest, and such interest must be clear and undoubted.</p> <p>5. Same. Declarations by a father, who had conveyed land to a daughter, that he had not started a suit to cancel the deed and that he had no knowledge of such suit, made about the time a suit to cancel the deed was brought, and shortly thereafter, were not, at the time when made, against • the father’s proprietary and pecuniary interest, for the declarations do not show that he did not claim any interest in the subject-matter of the action.</p> <p>6. Same — Comparison oe Handwriting — •Documents—Admissibility. In the absence of a statute, where the genuineness of handwriting is involved, documents not otherwise admissible may be received in evidence for .the sole purpose of furnishing a standard of comparison, provided their introduction will not raise collateral issues as to their genuineness, and on such question much must be left to the sound discretion of the trial court.1</p> <p>7. Same. In an action involving the genuineness of handwriting, the exclusion of documents offered for the sole purpose of furnishing a standard of comparison was not erroneous, where the genuineness of such documents was not admitted by the adverse party, who might dispute their genuineness.</p> <p>8. Executors and Administrators — Actions—Judgments—Validity. Under Revised Statutes 1898, sec. 3862, providing that a judgment against an executor or administrator on a claim for money against the estate must be that the executor or administrator pay in due course of administration the amount due, etc., a judgment against an administrator on a claim against the estate is improperly entered against him personally.2</p>

<p>Appear from District Court, Third District; T. D. lewis, Judge.</p> <p>Action by Dr. H. A. Anderson against Emma Hanson, administratrix of John Peter Johnson, deceased. Erom a judgment for plaintiff, defendant appeals.</p>

W. Mau-gban, Judge. Action by the Utah-Idaho Sugar Company against W. U. Stevenson and others. From a judgment for defendants, plaintiff appeals.

<p>1. Master and Servant — Injuries to Servant — Safe Place to Work — Duty of Master. Where a smelting company in conducting its business hauled rock and slag through its building in cars running on tracks on a platform elevated on a trestle, and small particles of rock and slag would necessarily fall off along the tracks on the platform, it was not bound to guard against mere accidents to its employees therefrom, and was not required to keep its tracks and platform clear of all particles of slag, however small, but only, to keep them reasonably clear of pieces which might be expected ordinarily to interfere with an employee passing along the track and cause injury by his coming in contact with them.</p> <p>2¡ Same — Actions—Evidence—Negligence oe Master — Obstructions on Cab Tracks. In an action by a servant for injuries sustained by a fall caused by stepping on a piece of rock near defendant’s car track, particles of which continually fell from the cars, the evidence held insufficient to show that the presence of the rock along the track rendered it unsafe to walk or run along it, or that plaintiff was thereby exposed to danger which should have been anticipated and guarded against.</p> <p>3. Same — Failure to Light Ways- — Burden oe Proof. In an action by a servant for injuries caused by the building and tracks of defendant smelting company being insufficiently lighted, plaintiff must show that defendant owed him a duty to light the premises, that it negligently failed to perform that duty, and that such failure was the proximate cause of his injury.</p> <p>4. Same — Proximate Cause oe Injury. In an action by a servant for injuries sustained from slipping on a piece of rock near defendant’s car track, particles of which necessarily fell along the track from passing cars, where he claimed that his injury was caused by defendant’s failure to sufficiently light its tracks and premises, but it did not appear that the rock scattered along the tracks, on a piece of which plaintiff slipped, was larger in quantity or size than the small particles which ordinarily fell from the cars, even if the track was insufficiently lighted at the time, such defective lighting did not expose plaintiff to any danger, so as to render defendant liable.</p> <p>5. Same — Duty of Master to Anticipate Injury — Improbable Injuries. In an action by a servant for injuries from slipping on a piece of rock near defendant’s car track, where it did not appear that the rock along the track, when plaintiff was injured, was other than the small particles which ordinarily and necessarily fell from cars, it could not be said that defendant should have anticipated injury from that cause, even if the tracks were insufficiently lighted, as it was only required to anticipate and guard against accidents likely to occur, and not against contingencies which are unusual and outside the range of ordinary experience.</p> <p>6. Same — Duty to Light Ways — Continuous Duty. A master is required, not only to furnish sufficient lights in the first instance to light its ways for the protection of employees, but to exercise ordinary care to keep the lights repaired and in reasonably good condition.</p> <p>7. Same — Failure to Light Ways — Evidence—Negligence. In an 'action hy a servant for injuries sustained from slipping on rock near defendant’s car tracks, claimed to have been caused by the lights along the track being out at the time, where the evidence showed that three or four of the lights along the track were out, and the light on the motor about which plaintiff worked was out, but it did not appear what caused the lights to go out, or how long they had been out, or that defendant knew they were not burning or were out of repair, and the other lights in the building were burning, the evidence was not sufficient to go to the jury on the question of defendant’s negligence because of the failure of the lights, as the fact that the lights were out did not of itself show negligence by defendant.</p> <p>8. Same — Cake Required. In an action by a servant for injuries alleged to have been caused by the track on which he worked being insufficiently lighted, defendant was only chargeable with defects or abnormal conditions in its lighting which were known, or should have been known in the exercise of ordinary care.</p> <p>9. Same — Risks Assumed — Knowledge by Servant oe Danger. In an action by a sixteen year old servant for injuries sustained from slipping on rock along defendant smelting company’s car track, claimed to have been caused by lights along the track being out, where plaintiff was familiar with the premises and the work, and knew that the lamps on the motor were not burning, and that several of the lights along the track were out, when he jumped from the motor and stepped on the rock on which he slipped, and knew that it was dark, and that he could not see the track distinctly, and that more pieces of rock and slag were scattered along the track than usual, he assumed the risk of injury.</p> <p>10. Same — Dangerous Places — Obvious Dangers — Knowledge by Servant. A servant can assume that the master has used due diligence to provide a reasonably safe place in which to work, so as to enable the servant to perform his work with reasonable safety, unless he has knowledge that the master’s duty has not been performed, and comprehends the danger to which he is thereby exposed, or the danger is so obvious that such knowledge may be presumed.</p> <p>11. Same — Youthful Employee — Degree of Care Required. The comprehension and appreciation of danger by a sixteen-year-old servant is not to be measured by the standard required of an adult, but by that required of one of his age, capacity, and experience.</p>

<p>1. Advebse Possession — Acquisition of Right — Chabactek and Time of Possession. A prescriptive right to or over real estate can be acquired only after a continuous and adverse user for a period of twenty years.1</p> <p>2. Easements — Right of Wat — Prescription—Public Lands— Homestead Claim. Defendant could obtain a prescriptive right of way over land in plaintiff’s possession under a homestead claim only by twenty years’ open, continuous, and adverse user after plaintiff had acquired title to the land from the government, since no prescriptive right to a publio or private way of land belonging to the United States can be obtained by prescription.</p> <p>3. Same — Deviation-—Effect. "Where defendant, before acquiring a right of way over plaintiff’s land by prescription, made a material deviation .from the previously traveled way to avoid a washout in the old way, such deviation broke the continuity of the use required by law to establish the prescriptive right.</p> <p>4. Same — Consent of Owner of Servient Estate — Evidence. In a suit to establish a private right of way by prescription, evidence held insufficient to sustain a finding that complainant, through her husband, had consented to a deviation by plaintiff from the original traveled way.</p> <p>5. Same — Authority to Deviate. Where defendant claimed a right of way over plaintiff’s land by prescription, the fact that there was a washout in the old road, or that it became impassable, did not give defendant a right to change the roadway, or to pass over other land belonging to plaintiff than that pre- ' viously used.</p>

A. Ilowell, Judge. Suit by Hyrum Belnap against Lizzie Condon and another. From a judgment for plaintiff against defendant F. W. Becker, and in favor of defendant Condon, plaintiff appeals.

D. Lewis, Judge. Action by K. A. Pennington against the Redman Van & Storage Company, and another. Judgment for plaintiff, and defendants appeal. appellant's points. That instructions not applicable to the case although absolutely correct, are apt to mislead the jury and such having such a tendency constitutes reversible error.

D. Lewis, J udge. Action by Sophie Condie, as administratrix of Joseph Con-die, deceased, against the Bio Grande Western Bailway Company. Judgment for plaintiff. Defendant appeals.

Erickson, Judge. Action by Hyrum H. Davidson against the Utah Independent Telephone Company. From a judgment for plaintiff, defendant appeals. appellant’s points.

A. Howell, Judge. Action by the state against J. E. Bayer and others. Judgment for plaintiff. Defendants appeal. APPELLANT'S POINTS.

' Appeal from District Oo-urt, Third' District; T. D. Lewis, Judge. Flection contest by Alden E. Payne against Oliver Hodg-son to determine the right to the office of city councilman of Salt Lake City. A demurrer to the statement of contest was sustained, and contestant appeáled.

Erickson, J udge. Proceedings for distribution of the estate of William Pop-pleton, deceased. From a judgment of distribution, the petitioner, Leah Perks, appeals.

<p>Appeal from District Court, Third District; M. L. Ritchie, Judge.</p> <p>Action by Herman Henker against David Lindsay. From a judgment for plaintiff, defendant appeals.</p>

D. Lewis, Judge. ‘ Action by Daniel Wolstenholme, special administrator of the estate of James Megeath, deceased, against Grant H. Smith and another. From a judgment for plaintiff, defendant J. E. Darmer appeals. APPELLANT'S POINTS. Where a negotiable instrument is materially altered without the assent of all parties liable thereon, it is avoided as to those who do not assent thereto, and any alteration which changes the time of payment is a material alteration.

L. Ritchie, Judge. Action by John Prye against Perry Jialbaugh and others. Prom a judgment for plaintiff against defendant Perry Kalbaugh, the latter appeals. APPELEANT'S' POINTS. ' Where under the evidence only one verdict could be rendered, it is hard for counsel to so far overstep the bounds as to cause a reversal, but where the evidence is close he is held strictly within bounds.

District; M. L. Ritchie, Judge. Action by W. C. Carter against the Curomings-Nielson Company, in which the National Bank of the Republic intervened. From a judgment in favor of plaintiff and the intervener, defendant appeals.

<p>Appeal from District Court, Third. District; T. D. Lewis, Judge.</p> <p>Action by Jennie Larson against Salt Lake City and others. From a judgment of dismissal, plaintiff appeals.</p>

L, Hitchie, Judge. Action by F. W. Little and another, copartners, doing-business as Little & Little, against Agues Gr. Herzinger and others. From a judgment for plaintiffs, defendants appeal-

<p>1. Appeal and Erbob — Dismissal—Want op Paeties. An appeal will De dismissed where all those who are adversely interested in the judgment have not been made parties to the appeal.1</p> <p>2. Appeal and Ebrob — Record—Conclusiveness—Notice of Appeal. The Supreme Court is bound by the record as the same is certified, and, where it discloses that due service of notice of appeal was accepted by the attorneys of record of the adverse parties, it cannot be contradicted, and it is immaterial that the attorneys accepting service filed no answer and made ho defense to the action in the lower court.</p> <p>3. Stipulations — Persons Bound — Stipulations as to Settlement —Attorneys. On appeal by one defendant, a stipulation attached to the bill of exceptions, signed by appellant’s counsel and also by the attorney who appeared for plaintiff and for appellant’s codefendants, was binding as to such codefendants, although it did not in terms stipulate for them.</p> <p>4. Exceptions, Bill of — Service. Service of a bill of exceptions should be made up on the attorneys of record of the appellee, rather than upon appellee.</p> <p>5. Appeal and Error — Record—Bile oe Exceptions — Stipulations — Conolusiveness. Where a stipulation, attached to a bill of exceptions purports to be signed by the appellee’s attorney, and there is nothing in the record which shows his repudiation of either the stipulation or signature, and nothing to show that he did not sign it, unless the court should take judicial notice that the signature is not in his handwriting, it is binding on him.</p> <p>6. Appeal and Error — Review—Questions oe Fact — Findings. Where only questions of fact are involved, and there is competent evidence in the record in support of the court’s findings, the Supreme Court will not interfere.</p> <p>7. Partnership — 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.</p> <p>8. Evidence — Preliminary Proof — Determination. Whether the preliminary proof is sufficient or not to entitle account books to be offered in evidence is in the first instance to be passed on by the trial court.</p> <p>9. Evidence — Judicial ISioTice — Methods of Bookkeeping. The court cannot take judicial knowledge of the different methods or systems of bookkeeping.</p> <p>10. Evidence — Books of Account — Effect. Where the entries in books of account are not stated in a form which is self-explanatory, it is essential that they be explained by proper evidence.</p> <p>11. Banks and Banking — Overdrafts—Evidence. In an action for an overdraft, books of account, containing certain symbols, held insufficient to establish the claims sued for, in the absence of explanatory evidence.</p> <p>12. Banks and Banking — Overdraft—Action—Sufficiency of Evidence. In an action by a bank to recover an amount alleged to be due on overdrafts, evidence held insufficient to support the judgment for plaintiff.</p> <p>13. Evidence — Relevancy—Matters Explanatory of Evidence. Where a particular kind or class of evidence is available which in its nature is best calculated to establish the question in issue, it must be produced if required , by the adverse party, and if it is not self-explanatory it should be explained to the court or jury so that it may be given such weight as it may be entitled to.</p> <p>Ow Rehearing.</p> <p>14. Appeal and Error — Time for Appeal — Motion for New Trial. Under Comp. Law 1907, section 3301, providing that an appeal may be taken within six months from the entry of judgment, an appeal may be taken within six months after the disposition of a motion for a new trial, filed and served within proper time.</p> <p>15. Appeal and Error — ■“Record”—Wi-iat Constitutes. The record on appeal consists of the judgment roll and the bill of exceptions as settled, signed and certified to by the judge, and a document presumably sent up from the county clerk’s office, together with the record purporting to be a notice of intention to move for a new trial, but not referred to in the bill of exceptions, can not be considered.</p> <p>16. Appeal and Error — Record—Conclusiveness. When the trial judge has certified in a bill of exceptions the proceeding show ing a proper service and filing of a motion for a new trial, the Supreme Court will not leave the record and inspect stray documents found among the papers which are not a part of the record on appeal.</p>

<p>Appeal from District Court, Third. District; M. L'. Ritchie, Judge.</p> <p>Action by the Blackrock Copper Mining & Milling Company against Charles S. Tingey, Secretary of State. From a judgment of dismissal after sustaining a demurrer to the complaint, plaintiff appeals.</p>

<p>1. Partnership — Members—Evidence.' Evidence held to support a finding that a person was at his death a member of a partnership embracing himself and son.</p> <p>2. Partnership — Pbooe oe Existence oe 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.</p> <p>3. Partnership — Evidence—Advertisement prom City Directory. In an action to recover property of a business as the individual property of plaintiffs 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.</p> <p>4. Partnership — 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.</p> <p>5. Witnesses — Inconsistent Statements — Cross-Examination. In an action to recover property of a business as the individual property of plaintifi’s decedent, where decedent’s son on his direct examination stated that he and his father had dissolved partnership prior to his- father’s death, and that the property belonged to his father, testimony elicited from him on cross-examination, that he had at other times asserted that he himself was the owner or part owner of the property, was competent to impeach his testimony on direct examination.</p>

<p>Appeal from District Court, First District; J. A. Howell, Judge.</p> <p>Action by Albert A. Law, as county attorney of Cache county, against Thomas H. Smith. From a judgment for defendant, plaintiff appeals.</p>

A. Howell, Judge. Action by Albert Smalley, an infant, by John Smalley, bis guardian ad litem, against tbe Rio Grande Western Railway Company. From a judgment for defendant, plaintiff appeals. APPELLANT ’s POINTS.

<p>Appeal from District Court, Third District; T. D. Lewis, Judge.</p> <p>Action by tbe Oole Banking Company against C. G. Sinclair and another. From a judgment for plaintiff, one of defendants appealed.</p>

<p>1. Public Lands — Uxiveksity Laud's — Saline Lands — Gbant ■ to State — Statute— Construction — “And” — “Including.” ■ Enabling Act Utah (Act Cong., July 16, 1894, c. 138, 28 Stat. 109) sec. 8, granted to the state, public lands to the extent of two townships to be reserved for the state university, and in addition 110,000 acres to be selected and located as provided, and “including” all the saline lands in said state, for the use of the university. Held, the word “and” before “including” was used to express the relation of addition, and the word “including” was used in the sense of “also,” so that the state was entitled to all the saline land, without selection, in addition to the 110,000 aeres to he selected and located.</p> <p>' 2. Words AND Phrases — “Including.” The word “including,” according to common usage, is susceptible of different shades of meaning. It may be used in the sense to comprise or embrace; to confine or to contain; to express the idea that a thing in question constitutes a part only of the contents of some other thing; as a word of enlargement, and ordinarily implying that ' something else has been given beyond the general language which precedes it; to add to the general clause a species which does not naturally belong to it. It is frequently used as the equivalent of “also.”</p> <p>3. Statutes — Construction. The intention of the Legislature must be determined from the language actually used, interpreting it according to its fair and obvious meaning.</p> <p>4. Public Lands — 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,</p>

<p>1. Raileoads — Trespassers on Track — Children. A railway company’s duty to discover trespassers on its track is tlie same whether the trespasser be a child or an adult.</p> <p>2. Railroads — Trespassers—Company’s Duty. On discovering an adult trespasser, or one of an age of discretion, on the track, an engineer need merely give warning, having the right to assume that the trespasser will leave the track; but when a child or helpless adult is, or in the exercise of ordinary care ought to be, discovered, the engineer must at once act upon the assumption that the child will remain, and, to prevent injury, he m|ust slow down or stop the train before reaching the child, if that can be done without serious danger to the passengers.1</p> <p>3. Railroads — Right oe Way- — -Implied Dicenses. The public may acquire an implied license to pass over a railroad right of way by the company permitting such use with knowledge thereof, but to establish such a license the use must have been definite, long, open and continuous.</p> <p>4. Railroads — Right oe Way — Use oe Track by Public — Duty to Keep Lookout. A railway track need not be used so extensively by the public and for so long a time as to establish an implied license before the company may be required to keep a reasonable lookout for the persons on the track, such duty depending upon the place and the surrounding circumstances, but the use must be such as to apprise the company that the track is being used by a considerable number of persons with some regularity.</p> <p>5. Railroads — Injury to Persons on Track — Negligence—Jury Question. In an action for injury to a person on a railroad track at a point frequently used by the public, where no implied license exists, it is a jury question whether the company has; exercised ordinary care.</p> <p>G. Railroads — Injury to Person on Track — Company’s Duty— Law Questions. In an action against a railway company for injury to a trespasser on a track, whether there was a duty, where the facts are not in dispute, or, if in dispute, whether those most favorable to the trespasser created a legal duty, is a law question.</p> <p>7. Railroad’s — Persons on Track — Company’s Rights. Generally, a railway company need not anticipate trespassers upon its tracks outside of cities and towns, nor keep a lookout for trespassers.</p> <p>8. Railroads — Injury to Persons on Track — Negligence—Jury Question. Where, in an action against a railway company for . injury to a trespasser on a track, the character of the place where the accident occurred is in dispute, or the evidence is conflicting as to the number of people who used the track and the character of the use, the company’s negligence is a jury question.</p> <p>9. Carriers — Passengers—Carrier’s Duty. A passenger stands in a special relation to the carrier, being on its train by special invitation and under a contract requiring the carrier to carry him safely.</p> <p>10.' Carriers — Rights oe Public. Any one desiring to avail himself of a carrier’s transportation facilities may do so, and for that purpose may at all proper times and places claim access to its property devoted to that purpose, and in the exercise of that right the company must exercise reasonable care for his protection.</p> <p>11. Railroads — Trespassers—Company’s Duty. A Tailway company owes a trespasser no greater duty than any other owner of property would owe in the same circumstances.</p> <p>12. Death — Negligent Death oe Child — Contributory Negligence. Contributory negligence may be invoked against a parent suing' for the death of an infant.</p> <p>13. Negligence — Contributory Negligence. The defense of contributory negligence is always available against an adult or one.having attained the years of discretion.</p> <p>14. NEGLIGENCE-TRESPASSERS — CHILDREN-TURNTABLES. An excep- .. tion to the rule that a railroad company is under no greater duty to discover a trespassing child in peril than to discover an adult trespasser arises in cases of places attractive to chil-dren.2</p> <p>15. Negligence — 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.</p> <p>16. Railroads — Trespassing—Children on Track — Evidence—Sufficiency. Evidence held, to show that a child killed on a railroad track was a trespasser.</p> <p>17. Railroads — Trespassers on Track — Children—Company’s Duty. No active duty rests upon a railway company to exercise ordinary care to keep a-lookout for children trespassing upon the track.</p> <p>18. Railroads — Persons on Track — Negligence. Where a railway company owes no duty to keep a lookout for one on the track, it is not negligent not to do so.</p> <p>la. Evidence — Experiments—Distance—Weight. In an action against a railway company for death of a trespassing infant on the track, not at a crossing, experiments hy witnesses in determining how far away an object on the track could be distinguished are of little, if any, probative force on the question whether the engineer saw the child sooner than he testified he did, since he must have had the crossing which he -was approaching specially in mind, while the witnesses had the objects used in the experiments specially in mind.</p> <p>20. Trial — Questions for Jury. Generally, where the only issue is whether one saw an object, the question is one for the jury, but in every case there must he some sufficient evidence directly tending to establish the fact to be found, or some-facts from which the ultimate fact may- he reasonably inferred.</p> <p>21. Railroads — Trespassers—Company’s Duty. A railroad company owes no duty to a trespasser other than to refrain from inflicting willful or wanton injury after actually discovering his peril; the duty not arising when the peril might have been discovered, unless the engineer was wantonly negligent in failing to discover it.</p> <p>22. Railroads — Trespassers—Action for Death — Evidence—-Sufficiency. Evidence, in an action against a railway company for the death of a trespassing child, field to show that the engineer did not discover the child in time to avert the collision, and that he was not wantonly negligent.</p> <p>23. Railroads — Persons on Track — Company’s Duty. A railroad company must use ordinary care .not to injure persons on or near tracks in thickly settled parts of cities, towns and villages, where persons have free access to the tracks, and at all other places where the public in considerable numbers habitually have passed over or along the track for considerable time so as to impart notice of their use of the track to the company, or where the company expressly or impliedly permits such passage.</p> <p>STRATJP, X, dissenting in part.</p>