CRIMINAL LAW-See CONTEMPT; EVIDENCE, 12.
1. A criminal complaint which lays an offense as having been committed on a certain day and on divers days thereafter from said day up to another certain day, does not charge a continuous offense between the days mentioned, but is cer- tain only as to the two days mentioned. Miner, J., dissent- ing. People v. Sullivan, 195.
2. Semble, per Miner, J., that where a plea of former conviction is interposed to an indictment and the prosecution demurs to the plea in bar, which demurrer is sustained, whereupon the defendant pleads guilty and is sentenced, if the demurrer was erroneously sustained, the prisoner must be discharged and the cause is not to stand for trial upon the issues made by the plea of former conviction. Id.
3. Semble that the offense of opening and conducting a game of faro is complete when one game or deal of the cards is opened on a particular day, and although one game follows another on different days, yet a conviction for one day is no bar to a conviction for another day. Miner, J., dissenting. Id.
4. Quere in this case the defendant having pleaded not guilty, with a plea of former conviction, and the demurrer to the plea of former conviction having been sustained, whereupon the defendant pleaded guilty, how can defendant be heard to complain of the overruling of his plea in bar, and has he not waived it by pleading guilty? Id.
5. Semble that if an offense is continuous in its nature, whether or not the indictment charges a continuous offense, a con- viction for such an offense bars a conviction for the same continuing offense committed at any time prior to the find- ing of the indictment. Id.
6. Where an indictment is found for the offense of opening and conducting a game of faro, and a plea in bar is inter- posed that defendant has already been convicted of the offense of opening and conducting a game of faro on a cer- tain day, and on divers days thereafter up to and including another certain day, and the date of the indictment is not the same as either of the days particularly mentioned in the plea in bar, but is a day between those two days particularly mentioned, and the plea in bar proceeds to allege that the offense mentioned in the indictment is the same offense as
that mentioned in the plea in bar, that the acts charged are the same and the same evidence would prove either charge, held upon demurrer to the plea in bar that it was apparent that the conclusion of the plea in bar was contradictory to the conviction alleged and was not good. Miner, J., dissent- ing. Id.
7. Where the owner of personal property is induced to part with the possession of it by fraud, still meaning to retain the right of property, and the person using the fraud has at the time the intention of converting the property to his own use without the consent of the owner, the crime is larceny. In such case the fraud, deceit or trick is the trespass. Smith, J., dissenting. People v. Berlin, 383.
DAMAGES-See APPEAL, 19, 26.
1. The measure of damages for breach of a contract with a person for the performance of certain work is the profits which would have been realized upon the contract by the person so performing the work, and an instruction which permits a recovery both of the profits upon the contract and the expenses of preparing for the contract is erroneous, be- cause such expenses must be considered before any judg- ment as to the profits can be arrived at. Hawley v. Corey, 175.
2. A verdict of $50 damages in favor of a passenger, who has been ejected from a train for refusal to pay fare, at a place where there was no station and had been in consequence compelled to walk three and a half miles to her home, is not excessive. Durfee v. Railway Co., 213.
3. Where the court instructed the jury that they should allow for the harness upon team injured, but there was no claim for such damages in the complaint, and no complaint was made at the time of such instruction, and there was no evidence upon the point, because the same was stricken out on motion of the defendant; held, that the instruction was harmless and not reversible error. Leak v. Railway Co., 246. 4. In a suit for damages for breach of a contract to keep flooded certain ice ponds used for putting up ice, the meas- ure of damages will be the value of the ice, that might have been put up with reasonable diligence, when in the ice-house less the cost of putting it there. Farr v. Griffith, 416.
Where a grantee in a deed assumes and agrees to pay a mort- gage his agreement enures to the benefit of the mortgagee and his assigns and they obtain all the rights of the grantor in the deed as against the grantee. Clark v. Fisk, 94. DEFICIENCY JUDGMENT-See MORTGAGES, 3, 5.
Where an assignment of a claim is made to B. who is taking the assignment for himself and other parties but in his own name, and the assignment is afterwards delivered to one of those other parties, under circumstances showing that B. must have consented thereto, such delivery is good as to B. Wilson v. Kiesel, 397.
DEMURRER-See PRACTICE, 4.
DEPOSITION-See PRACTICE, 2; TRIAL, 3.
DISMISSAL-See APPEAL, 3, 7, 12, 14, 15, 16, 24.
In answer to an action of ejectment, the defendant may set up and prove any acts constituting an equitable estoppel; e. g. that defendant under claim of title made valuable improve- ments on land, with knowledge on the part of the owner that defendant claimed valid title and was making improve- ments in reliance thereon. Duke v. Griffiths, 469. ELECTIONS.
1. Where it appears that two ballot boxes were placed side by side, one for city tickets and the other for county tickets, and by mistake several county tickets were placed in the city ballot box, held that in spite of an agreement between the candidates that such tickets should not be counted, they ought to have been counted. Young v. Deming, 204. 2. Section 24 of Edmunds-Tucker law required all the oaths or affirmations administered by the registration officers to be delivered to the clerk of the probate court of the county where administered, and sec. 4, cap. 42, Laws of Utah 1892, required such registration officers to deliver all such oaths on or before the second Monday of October, held that the ter- ritorial statute was valid and in pursuance of the congres- sional law. Ledwidge v. Matson, 106.
3. Where ballots, which ought to have been counted in the result, have been rejected in such numbers that if cast for the contestant they would have changed the result, yet, where the evidence is uncertain as to which candidate re- ceived the ballots, the return of the judges of election will not be disturbed. Young v. Deming, 204.
4. While it is true that ballots not cast cannot be counted, whatever the reason of their rejection, yet, if the ballots are actually cast but by mistake placed in the wrong box, they should have been counted in the result. Id.
EQUITY-See APPEAL, 4; EJECTMENT.
1. Under the statutes granting general chancery jurisdiction to the district courts, and general probate jurisdiction to the probate courts, with a right of appeal to the district court from orders of probate courts, on appeal from an order denying petitioner's prayer to be appointed administrator, the district court after denying the petitioner's prayer, has no jurisdiction to appoint a third party administrator de bonis non and assume the administration of the estate, because the case is in the court by the appeal from the order. Estate of Moulton, 159.
2. Equity should not take jurisdiction, except of the subject matter of an order from the probate court in the settlement and distribution of estates of deceased persons, or unless the case involves some special feature or exceptional circum- stance warranting the interference of equity, such as fraud, waste, and the like, or unless it is of such a nature that a probate court is incompetent to give adequate relief, or is one of which the probate court, having taken cognizance, has miscarried and failed to do justice by its decree. Id.
ESTATES OF DECEDENTS-See EQUITY, 1, 2.
ESTOPPEL-See EJECTMENT; PRACTICE, 3; TRESPASS, 1.
EVIDENCE-See APPEAL, 27; ASSIGNMENT FOR CREDITORS, CONTRACT, 2; NEW TRIAL, 3, 4.
1. While it may be true, as an abstract proposition, that testi- mony of witnesses that they heard an engine-whistle sound is of more weight than negative evidence that certain wit-
nesses did not hear it sound, yet it is not error for the court not to give such instruction where the evidence is clearly contradictory, and the court has already instructed the jury that they were the judges of the testimony and should consider it fairly and impartially, and give it the weight that they might think it entitled to. Olsen v. Ry. Co., 129. 2. In an action for false imprisonment for an alleged urlaw- ful arrest, semble that the exclamation of a bystander at the time the arrest was being made, was not admissible. sed quære was it part of the res gesta? Marks v. Sullivan,
3. An admission made by an agent of the
five minutes after an accident and at a distance of three miles from the place of the accident, and after a team had been hitched up and plaintiff had been carried out of the mine and taken by the team the distance of three miles, and there carried into a hotel and laid upon the floor, where the admission is that of an employé made in answer to a question from the foreman of a mine, is admissible against the defendant, the employer, because it is a part of the res gestæ. Linderberg v. Mining Co., 163.
4. Where there was evidence to show that an accident in a mine, and personal injury to a plaintiff, was caused by blasting in a tunnel adjacent to place where the accident occurred, which place was insufficiently timbered, it is not error to admit evidence to show how long it took to com- plete the tunnel to the place where the accident occurred in order to show what was the situation at the time. Id. 5. Where the question is whether a certain memorandum of prices signed by an agent of defendants and handed to plaintiff in the presence of one defendant, was the contract of the defendant, it is error to exclude testimony as to the circumstances under which the contract claimed was ex- ecuted. Hawley v. Corey, 175.
6. When, in a suit brought for malicious suing out of an attachment, plaintiff is asked whether defendant had any motive in issuing the attachment other than an honest desire to collect the debt, such question asks for the conclusion of the witness and should be excluded, and the witness should be confined to a statement of the facts. Hamer v. National Bank, 215.
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