permitted to testify to the same matter, and we think properly. We hold that the witness should have been permitted to answer the question above stated.

Several other errors are assigned by the defendants (appellants) which we hardly deem it necessary to review or pass upon at this time. They relate chiefly to the admission and rejection of testimony offered by the respective parties, and, as the case must be retried, perhaps many of them will not again arise. The motion for a new trial should have been granted in the case, and the verdict of the jury should have been set aside. It is therefore ordered here that the judgment be reversed and remanded to the court below for a new trial in accordance with the decision of this court.

MINER and BARTCH, JJ., concur.

(9 Utah, 171)

REESE et al. v. REESE. (Supreme Court of Utah. June 16, 1893.) APPEALABLE JUDGMENTS -REFUSAL TO REMOVE

ADMINISTRATOR.

Act Cong. June 23, 1874, (Poland Bill,) provides that an appeal shall lie to the district court from a judgment of the probate court in such cases as the supreme court (Utah) may by general rules designate. Sup. Ct. Rule 24 (27 Pac. Rep. ix.) provides that any party entitled, by personal interest, to ask for or oppose any judgment in the probate court, may appeal from such judgment to the district court. Held, that an appeal lies to the district court from a judgment of the probate court refusing to remove, upon the petition of the heirs, an administrator for alleged mismanagement.

the letters of administration of the respondent. Thereupon the appellants regularly appealed to the district court. On motion of counsel that the appeal was frivolous and without merit, and was not taken in time, the district court dismissed the appeal. From this judgment an appeal was taken to this court.

The question raised is as to whether or not an appeal lies from an order of a probate court in this territory refusing to remove an administrator, and to appoint another in his place. The act of congress known as the "Poland Bill," approved June 23, 1874, în regard to appeals from probate courts, provides as follows: "From the judgments of the probate courts, an appeal shall lie to the district court of the district embracing the county in which such probate court is held in such cases and in such manner as the supreme court of said territory may, by general rules framed for that purpose, specify and designate, and such appeal shall vacate the judgment appealed from, and the case shall be tried de novo in the appellate court." This law authorizes appeals from the probate courts, and they may be taken in such cases and in such manner as the supreme court may, by general rules, specify and designate. Rule 24 of the supreme court provides as follows: "Any party entitled, by reason of a personal interest, to ask for or to oppose any judgment or decree in the probate court, may appeal from the judgment or decree made by the court, adverse to him or his interest, to the district court of the Judicial district embracing the county where such probate court is held," etc. From the record it appears that the appellants had an

Petition by Mary Reese and another for the removal of Alvira Reese as administratrix of the estate of John D. Reese, deceased. The probate court dismissed the petition, and petitioners appealed to the district court. From a judgment of the district court dismissing the appeal, petitioners appeal. Reversed.

Kimball & Allison and B. Howell Jones, for appellants. Maloney & Perkins and Hunsaker & Hunsaker, for respondent.

BARTCH, J. Alvira Reese, the daughter of John D. Reese, deceased, was appointed administratrix of his estate on May 9, 1881, and continued as such ever since. In July, 1892, the appellants filed charges of neglecting the administration of the estate, etc., against her, in the probate court of Box Elder county, Utah, and asked for her removal from office, and that letters be granted to appellants. Mary Reese, one of the appellants, was the widow of the deceased.

Aft

er hearing the case, the probate court dismissed the petitions, and refused to revoke

'Rehearing denied.

heirs at law, and therefore came within the above rule. They alleged in their petition to the probate court that five pieces of real estate belonging to the estate had never been reduced to the possession of the administratrix, and were becoming lost to the estate; that, on a lot valued at $4,000, she had suffered waste and mismanagement, and the rents were lost to the estate; and that she had failed to render for settlement and allowance any account of her administration, and, for a period of nine years, to perform any act as administratrix, etc. For these reasons they asked that the letters of the administratrix be revoked, and that appellants be appointed in her place. The charges preferred against her were of a serious character, affecting the rights of the petitioners, and, if proved to be true, were sufficient rause for removal. The probate court heard the case, and dismissed the petitions. In doing this, that court made a final order, from which an appeal lay, and we are of the opinion that the district court erred in dismissing it. The California cases cited by counsel for respondent are not in point. In that state the Code enumerates the orders from which appeals may be taken, and an

We

order denying a petition to revoke letters of administration is not included in the list. Counsel for respondent contend that the rules of this court as to assignments of errors, etc., have been disregarded, and therefore this appeal should be dismissed. think the questions of law and the deci:sion of the trial court are sufficiently presented in the record to comply with section 3647, Comp. Laws Utah 1888, which applies to this class of cases. The judgment is reversed, and the case remanded to the district court, to be tried de novo.

ZANE, C. J., and SMITH, J., concur.

GOLDTHAIT v. LYNCH et al.1 (Supreme Court of Utah. June 22, 1893.) SPECIFIC PERFORMANCE WHEN GRANTED - INCON: ISTENT DEMANDS ON APPEAL-ESTOPPELASSESSMENT OF DAMAGES -- TRANSFERENCE OF CAUSE TO JURY CALENDAR.

1. In an action for specific performance of a contract to sell land, where that relief is refused, but a judgment for damages is rendered, plaintiff, by insisting on appeal that the judgment for damages be sustained, waives his right to demand specific performance.

2. Where a person who contracts to buy land refuses to accept a warranty deed when tendered, on account of an alleged defect in the title, he cannot subsequently, while the alleged defect still exists, maintain an action for specific performance on a demand and a refusal to convey.

3. In an action for specific performance, defendants cannot contend that an extension of an option to buy the land was made without consideration where it appears that it was made at defendants' request.

4. In an action for specific performance, where that relief cannot be granted because plaintiff asks for a title which he had previously refused to accept, the court, instead of assessing the damages for defendants' alleged failure to offer a good title, should set the case for trial on the legal issues to a jury, not as advisory to the chancellor, but to render a conclusive verdict in the case.

Appeal from district court, Salt Lake county; T. J. Anderson, Justice.

Action by John W. Goldthait against John T. Lynch, Glassman, Kelsey, Gillespie, and W. J. Crowther for specific performance of a contract to sell land. The court refused a decree of specific performance, but gave judgment for damages against Lynch and Glassman. Plaintiff and Lynch and Glassman appeal. The judgment denying specific performance is affirmed, and the judgment for damages is reversed.

John W. Judd, for appellant Goldthait. Zane & Putman, for appellants Lynch and Glassman. Williams & Van Cott and Arthur Brown, for respondents.

SMITH, J. This action was commenced by plaintiff to compel the specific performance of a contract for the sale of real estate, or, if this could not be had, for damages for 'Rehearing pending.

breach of contract of sale. The court refused a decree of specific performance, but gave judgment for damages against defendants Lynch and Glassman. Plaintiff appeals from the refusal to grant specific performance. The defendants Lynch and Glassman appeal from the judgment against them for damages. The defendants Crowther, Kelsey, and Gillespie resist the appeal of plaintiff. The plaintiff resists the appeal of Lynch and Glassman.

Responde claim that plaintiff has waived his ght to ask for specific performance by taking his judgment for damages. We think this position is well taken. Plaintiff is here in this court insisting that his judgment against Lynch and Glassman be enforced, and at the same time is asking for a conveyance from Crowther of the property he contracted for; in other words, for specific performance of the very contract the breach of which occasioned this damage. The case of Murphy v. Spaulding, 46 N. Y. 556, is directly in point that this appeal of plaintiff cannot be maintained.

There is another reason why plaintiff cannot be heard to claim a specific performance of his contract. It is shown by the findings of fact, and the finding is not disputed, that in February, 1888, long before this action was commenced, the defendant Glassman and wife, who then held the title which Crowther now holds, tendered a warranty deed therefor, properly executed, to the plaintiff, which plaintiff refused to accept. It is difficult to conceive a rule of equity that will permit the plaintiff at this time to claim a specific performance of a contract which he, when called upon so to do, refused to perform; for plaintiff, when this deed was tendered him, refused to accept it, and refused to pay the purchase money due according to the contract. The contract between plaintiff and Lynch and Glassman was mature when this deed was tendered, and Glassman's title then was the same as Crowther's is now. It would seem that to allow plaintiff to claim a specific performance now would be highly inequitable and unjust. The judgment denying specific performance is affirmed.

This brings us to the appeal of Lynch and Glassman. The facts, so far as is material on their appeal, are as follows: On November 3, 1887, the plaintiff and Lynch and Glassman made a contract in writing as follows: "Received of John W. Goldthait the sum of one hundred dollars, the receipt whereo is hereby acknowledged, as earnest money on the following described property, to wit: Commencing 80 rods south of the center of section 3, township 1 south, range 1 west; thence west 60 rods; thence south 80 rods; thence east 60 rods; thence north 80 rods, -being the east three-quarters of the southeast quarter of the southwest quarter, section 3. of said township and range. The conditions of the above are that the said John

W. Goldthait has purchased from the undersigned the above-described real property for the sum of thirty-four hundred and fifty dollars, payable — -, $2,000 in cash, balance in one year, at 10 per cent. interest, secured by mortgage on said thirty acres of land. And the undersigned hereby agrees to furnish to the said John W. Goldthait, or his assigns, within 30 days from date hereof, an abstract of title and warranty deed, at their own expense, satisfactory to the said John W. Goldthait or his assigns, showing a clear and unincumbered title in themselves; and, upon furnishing of said title within the time herein stated, the said John W. Goldthait, or his assigns, agree to pay to the undersigned the balance of the purchase money; and, should he or his assigns fail to pay said amount at the expiration of the time above stated, then, and in that case, the earnest money to be forfeited, and the parties hereto to be relieved from further obligations in the premises. Signed, sealed, and delivered at Salt Lake City, this the 3d day of November, 1887. [Signed] Lynch & Glassman." This option was extended by mutual consent to February 1, 1888. On that day plaintiff tendered the cash payment due under the contract. Glassman (who had on November 11, 1887, acquired title to the land by deed from W. J. Crowther, who owned it when the contract was made) offered to make a deed of warranty for the premises, but plaintiff refused to accept it, for the reason that a suit was then pending between Kelsey and Gillespie, as plaintiffs, and Crowther, Lynch, and Glassman, as defendants, in which suit notice of pendency of action had been filed. This suit of Kelsey and Gillespie was brought to compel specific performance of a contract made between Kelsey and Gillespie and Crowther for the sale of this same land. last contract was dated prior to November 3, 1887. The suit to enforce it is still pending, being now on appeal in the supreme court of the United States. That subsequent to February 1st, and during that month, in 1888. Glassman made a formal tender to plaintiff of a warranty deed for the land, duly executed by himself and wife. This was refused by plaintiff, he claiming that the title was not satisfactory to himself on account of the pendency of the suit of Kelsey and Gillespie as above stated. After this tender was made and refused, and before this suit was brought, Glassman conveyed the land back to Crowther. Subsequently plaintiff brought this suit against Lynch and Glassman, Crowther, and Kelsey and Gillespie, asking for specific performance by deed from Crowther, and, if this could not be had, for damages against Lynch and Glassman, and obtained judgment against the latter for $2,647 damages and for costs. Lynch and Glassman complain of this judgment, have appealed from it and from an order denying a new trial, and assign several errors, upon which they ask that the judgment and order be reversed.

This

The first error assigned is that the 30days option above set out was extended from December 3, 1887, to February 1, 1888, without consideration, and that it had in law expired before the latter date. This extension, by the record, appears to have been made at the instance of Lynch and Glassman, and was valid so far as they are concerned.

The next objection is more serious. It is this: While Glassman held the title for himself and Lynch, he offered it to plaintiff by warranty deed, and plaintiff refused it. It is difficult to see how plaintiff can now equitably claim a title he has already refused. And it is only by claiming this title that he can come into a court of equity at all. If Lynch and Glassman agreed to deliver him a satisfactory title, as we have seen they did. then they were liable in damages if they failed to do this. But they offered the title which they had. If in good faith plaintiff considered it defective, he had a right to refuse to accept it, and a complete cause of action in his favor and against Lynch and Glassman at once arose. But was that cause of action one of which equity could take cognizance? We think not. It was purely an action for damages for breach of contract, and defendants were entitled to have it tried by a jury. They demanded this in the court below, and it was refused. This refusal is assigned as error. We think this assignment is well taken. The district court, instead of making the assessment of damages, should have caused the case to be set on the jury calendar for trial on the legal issue to a jury; not as advisory to the chancellor, but for the purpose of rendering a conclusive verdict in the case, as the defendant demanded such trial, and had not waived it. See Davison r. Associates, 71 N. Y. 333; Morgan v. Bell, (Wash.) 28 Pac. Rep. 925. Under our Code, where we have but one form of action, we see no objection to thus transferring a case from one calendar to the other whenever the rights of the parties demand it. It should have been done in this case, and the refusal to allow defendants a trial by jury is an error of such gravity as to require a reversal of the judgment and order appealed from. The judgment of the district court against Lynch and Glassman is reversed, and the cause is remanded to the district court for further proceedings in accordance with this opinion. MINER and BARTCH, JJ., concur.

HOMER v. INTER MOUNTAIN ABSTRACT CO.

(Supreme Court of Utah. June 16, 1893.) NEW TRIAL-MISCONDUCT OF JURY AFFIDAVITS OF JURORS.

On a motion for a new trial, affidavits of urors will not be received to show misconduct of the jury in examining a page of the book of accounts between the parties other than the pages in evidence.

Action by Thomas Homer against the Inter Mountain Abstract Company. Plaintiff had judgment, and from an order denying a motion for a new trial defendant appeals. Affirmed.

Charles Baldwin and E. W. Tatlock, for appellant. Ritchie & Ritchie, for respondent.

MINER, J. This motion for new trial is based upon the ground of misconduct of the jury in the jury room, in improperly examining page 274 of the book of accounts between the parties, when only page 275 of the book was in evidence. In support of the motion for a new trial, the affidavits of two of the members of the jury were offered tending to support the motion. The court declined to receive the affidavits in support of the motion, and overruled the motion for new trial. This is the only error assigned. This court held in People v. Flynn, 26 Pac. Rep. 1114, 7 Utah, 384, that affidavits of Jurors will not be received to impeach their verdict, nor to show the ground upon which It was rendered, nor to show their misunderstanding of fact or law, nor that they misunderstood the charge of the court or the effect of their verdict, nor their opinions, surmises, and processes of reasoning in arriving at a verdict. We think the affidavits offered in this case were properly rejected. The judgment of the court below is affirmed.

BARTCH and SMITH, JJ., concur.

(9 Utah, 192)

DARGER et al. v. LE SIEUR. (Supreme Court of Utah. June 19, 1893.) ACTION TO RECOVER REALTY-DESCRIPTION.

In an action for its recovery, a mining claim was described as situated about five miles from the track of a certain railroad "up what is known as "Tie Canyon,' near the head of the right-hand fork." in a certain county, and "said claim extends 300 feet on each side of the center of location, 400 feet running west, and 1,100 feet running east, from the monument thereon." Held insufficient, under Comp. Laws 1888, § 3241, requiring the description in such action to be with such certainty as to enable an officer, upon execution, to identify the property. On rehearing. Affirmed.

For report on appeal, see 30 Pac. Rep. 363. Arthur Brown, for appellant. Bennett, Marshall & Bradley and M. M. Kellogg, for respondents.

MINER, J. The appeal in this case was heard in this court at the January term, 1892, and a decision rendered June 6, 1892, in favor of the appellant, and granting him a new trial. The opinion is found reported

in 30 Pac. Rep. 363, 8 Utah, - The re

rehearing, and this court made its order granting a rehearing, as prayed. After a full rehearing upon the questions involved, we are satisfied that our former decision was correct, and should not be disturbed. As an additional reason for reversing the judgment, we think the court erred in overruling the defendant's demurrer to the amended complaint. The demurrer was interposed upon the ground that the description of the respective claims mentioned in the complaint were uncertain and defective, and were not alleged in the complaint with such sufficient certainty as to enable an officer, upon execution, to identify it, under section 3241, Comp. Laws 1888. Upon the facts stated, and for the reasons given in the opinion of the court, the demurrer should have been sustained. College, etc., v. Moss, 92 Ind. 119; Orton v. Noonan, 18 Wis. 447; Raymond v. Longworth, 14 How. 78; Whitney v. Buckman, 19 Cal. 301; Lane v. Abbott, (Neb.) 37 N. W. Rep. 82. The judgment of the district court should be reversed, with costs, and a new trial granted, and the case remanded for further proceedings.

ZANE, C. J., and BARTCH and SMITH, JJ., concur.

(9 Utah, 195)

PEOPLE v. SULLIVAN.1 (Supreme Court of Utah. June 22, 1893.) COMPLAINT FOR GAMBLING CONTINUOUS OFFENSE.

A complaint that "on the 1st day of January," and "on divers days thereafter, up to and including the 19th day of September," defendant "conducted, opened, and carried on" a gambling game, does not charge a continuing offense, and is certain only as to January 1st and September 19th, since, if the game was "opened" on the last-named date, it must have been closed, or not have been "carried on," during the previous day, and, as this is true of every other day between the dates mentioned, a distinct offense may have been committed each day. Miner, J., dissenting.

Appeal from district court, Utah county; John W. Blackburn, Justice. John C. Sullivan was convicted of gaming, and appeals. Affirmed.

George Sutherland, for appellant. The United States Attorney, for the People.

BARTCH, J. The appellant was indicted by the grand jury of the first judicial district on the 1st day of October, 1891, for the crime of gaming. He pleaded not guilty, and also entered a plea of former conviction. To this last-mentioned plea the district attorney demurred on the ground that the same did not in law constitute a defense, which de murrer was sustained by the court. The defendant then withdrew the plea of not guilty, and entered a plea of guilty, whereupon the court sentenced him to pay a fine of $100, 1 Rehearing denied.

and to undergo imprisonment for the term of one month. From that judgment the defendant appealed to this court, raising the question of the sufficiency of the special plea of former conviction.

The indictment charges that "the said J. C. Sullivan, on the 1st day of August, A. D. eighteen hundred and ninety-one, at the county of Juab, in said territory of Utah, and within the judicial district aforesaid, unlawfully did maintain, conduct, and carry on a certain gambling game, commonly called 'faro,' and did permit and suffer divers idle and evil-disposed persons to play and game at said game of faro for divers sums of money." This charges that the offense was committed on the 1st day of August, 1891, and the defendant claims that he ought not to be further prosecuted for that offense, and avers that he has already been convicted of the same offense by the judgment of a justice of the peace. The special plea, so far as it is material in the consideration of this case, is as follows: "That on the 19th day of September, 1891, a complaint, sworn to by one John T. Sullivan, was filed with the said justice of the peace, in said justice's court, charging the said defendant with having, on the 1st day of January, 1891, at Eureka, in the county of Juab, territory of Utah, and on divers days thereafter from the day last aforesaid, to wit, January 1, 1891, up to and including the 19th day of September, 1891, unlawfully conducted, opened, and carried on a certain gambling game, commonly known as 'faro,' for money, and checks representing value." Counsel for appellant contend that this complaint charges a continuous offense extending from the 1st day of January, 1891, to and including the 19th day of September, 1891, and, if this contention be correct, then further prosecution would be unwarranted, for the 1st day of August, the time charged in the indictment, is included within the time as laid in the complaint. But is the offense charged in the complaint continuous? Does it mean that the game was commenced on the 1st day of January, 1891, and continued to and including the 19th day of September, 1891? Stripped of verbiage, the charge is that the defendant "unlawfully conducted, opened, and carried on a certain gambling game, commonly called 'faro,'" on the 1st day of January, 1891, and on "divers days thereafter," to and including the 19th day of September, 1891. The 1st day of January is a day certain, and on this day the defendant "opened and carried on" the game. The same may be said of the 19th day of September; and if on the last-named day the defendant "opened and carried on" the game, the presumption is conclusive that the game was closed on the previous day, for, if this be not so, then he could not "open" the game on the 19th day of September. The game might be “carried on," but it could not be "opened" unless it had been previously closed, or had not been carried on

during the previous day. The same is true of every other day intervening between the two days mentioned, and thus each day a distinct offense may have been committed. This is also in harmony with the meaning of the word "game," which Webster defines as "a single match at play; a single contest." To render an act continuous, its performance must be carried on without interruption, for when its performance ceases the act is complete and distinct; and, if afterwards a similar act is performed, it cannot be regarded as a continuation of the former. To make it continuous, it must be the result of a single impulse, and performed or carried on without intermittence. Whart. Crim. Pl. §§ 474, 475. In cases which are of a continuous character the act may continue from day to day, and will constitute but one offense, regardless of the time of duration. Such are cases of nuisances, the keeping of a gaming table, bawdyhouse, tippling house, unlawful cohabitation, and the like. In this class of cases the indictment may allege that the of fense was committed on a single day; but, if the prosecutor seeks judgment for a continuing offense, he must add a continuendo, which Bishop, in his work on Criminal Procedure, (volume 1, § 394,) defines as follows: "A continuendo is an allegation in any appropri ate form of words that an offense whereof a day of beginning is stated is continuing to another day stated." It is claimed that the complaint in the justice's court charged a continuous offense, and the continuendo is, "on divers days." The complaint is certain as to two days, but uncertain as to any other, and hence the charge was good, and sufficient to sustain the judgment of the justice, but not good as to the uncertain time. Where the allegation is meant to charge a continuing offense, and a day certain is properly alleged, but the remainder of the allegation is inadequate as to time, the allegation is sufficient, the part which is uncertain being rejected as surplusage. In this case the continuance was expressed by "on divers days thereafter," and as to such an allegation, and after giving numerous approved forms, Bishop (in section 395, supra) says: "The allegation, on such a day and on divers other days and times between that day and' some other, which was held good in civil pleadings, and in them practically superseded the foregoing forms, is not a continuendo, though it is sometimes spoken of as such. In principle it is certain as to two days and uncertain as to the rest; therefore void for repugnance where the offense is of a nature not continuing, and equally void for uncertainty where the continuance of it during the intermediate period is required." Whart. Crim. Pl. § 125; Wells v. Com., 12 Gray, 326; U. S. v. La Coste, 2 Mason, 129; Rex v. Dixon, 10 Mod. 335; People v. Adams, 17 Wend. 475. The statute law of this territory in reference to the crime under consideration is found in section 4541, Comp. Laws