Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1893-06-22

acter, both az to opinions delivered
anu the appeals heard. The sugjoined
matters came up, bit In an almost
empty court 70 far as spectators were
concerned.
ANDERSON OVERTURNED.
Judge Smith delivered the court's
opinion In the case Of John w. Gold
tnaile, appellant, We JOun 4. Lynch
ct al, appellants, and w. J. CfoWsher
ct al, respondents.
The action was originally com.
mencUd by plaintiff TO compel the
specific performance OF a contrao, for
the sale OF real estate, or, II THE could
not be had, for damages for
breach Of contract OF sale. The
Third district oour. Judge An.
derson) refused n decree Of specific
performance, but gave judgment
for damages against defendants Lynch
and Glassman. Plainlin now up.
pcaled from the refusal to grant SUE
ciflc performance, and Lynch anu
Glassman from the judgment against
them M 10 damages. Defendants
Crowther, Kelsey and Gillespie re.
sisted the appeal OF plaintiff, who In
turn resisted that Of Lynch and
GlAssman. Respondents olaimod that
plaintiff had waived his right 10 ask
TOT specific performances by taking his
Judgment Tor damages, anu the Su-
preme court considered his position
well taken. The district court Instead
OF making the asseHsment VI damages,
should have caused the case w be act
on tue jury calendar for trial on the
legal Issue by Jury, not as nd.
vieOry TO the chancellor, out for
the purpose Of rendering n conclusive
verdict In the case, MS the defendant
demanded such trial anu lad not
waived IL. Under our code, vher IN
we had hut one form Of acton, their
honofs nav no objection 10 this trans.
fetring case from one calendar TO the
other whenever the rights OF the
parties demanded II. It shOlld have
been done In this instance ana the
refusal 10 allow Defendant trial by
jury was nn error OF such cavity ns To
require reversal Of the judgment and
oruer appealed from.
Hence the judgment OF the lower
court against Lynch and GlassmAn
was reversed and the cause remanded
for further proceedings, Judges Miner
and Bartch concurring.
DENIED.
In the case Of Lindberg Vi the
Crescent Mining Go. from the Third
district court) the petition for u Ts-hsar-
Ing was GoniuJ.
a GAMING TABLE APPEAL.
The next case decided was from the
Fiut dislrict--lhe People OF the Terri.
tory, respondent, We John q. Sullivan,
appollAnt-Rnd the opinion wns dc.
llveTed by Judge Baitch.
Appellant was Indicted by the grand
Jury ON October LIST, 1891, for the
o.iense OF gaming. lie plead not
guilty ana aleO entered u plea OF former
conviction. 10 the latter the district
attorney demurred on this ground that
In law II did not constitute a defense,
and the court Judge Blackburn) sus.
tanned the demurrer. The defendant
then withdrew his plea OF not
guilty and entered one OF guilty, whore.
upon he was sentenced 10 pay q fine OF
| Sl0O aud imprisonment for one month,
| From that judgment the defendant
now appealed, raising the question Of
the autllcienoy Of the special plea of
| former conviction.
Among the authorities cited was
that OF Dixon vs.. the Corn. OF
Warrington "a CTanch, q. q. 'll4.
The charge was for keeping faro
table, aud although that was oontlnu-
ed from day u day, the court held
II to be q single otienss which did not
conflict with the views expressed here:
| for In the present case the charge was
not for keeping faro table, which
was in It's nature continuous,
but for opening and carrying
on faro game, which might
or might not be continuous.
Their hOnors did not think that case
In point in theIPresent instance, nor
did they agree with counsel that the
otiense charged In the Indictment was
part OF the same Transaction as that
charged in the complaint Ii was a
similar transaction, but In 30 far as
was manifest from the complaint II
was separate and distinct ofense.
The Judgment Of the lower court was
affirmed. Judge Zane oUnouTred, while
Judge Miner filed n dissenting opiu.
ion. THIS complaint, he pointed OUT,
having alleged the otiense as con.
tinuing one, and having been treat.
cd In its continuing aspect,
the pr0ss6ItiOn would have no
right afterwards to carve out portion
OF the time Included within IL and
seek further conviction for tho same
ofiense wherein conviction had been
had, In his opinion, tho demurrer 10
the plea Of former conviction should
have been OveTTuled; the order OF the
court below should be reversed and the
defendant discharged.
THE RUSH WARNER NATTER.
In the case OF NJ. Rush Warner vs.
the u. y. Mutual Accident association
(of New York; the motion 10 set aside
Judgment ana recall the remittitur
was argued by Judge Henderson aud
Attorney Tatlock, and by Ogden Hiles
In opposition, and submitted.
OVER A PRoMnssoRY NOTE,
The case Of II. Voorhees,, plain.
til and respondent, VI Jennie
A. Fisher, defendant and appellant,
was next aIgued-by Attorney Dey
FOR the latter and Attorney Allison for