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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