dence of their testimony on the ground that no
proper foundation was laid, the question of the
competency of proof by affidavit was not pre-
served.--Ivey v. State, 154 P. 589.

1038 (Okl.Cr.App.) A defendant convicted
of manslaughter in the second degree cannot
complain that the court instructed on such de-
gree without evidence justifying such instruc-
tion, where no objection was made below to
such instruction.-Ballard v. State, 154 P.
1197.

disturbed where the affidavits relative to such
misconduct are conflicting.-State v. Jones, 154
P. 378.

11662 (Cal.App.). In a prosecution for li-
bel, error of the court in stating in the pres-
ence of the jury, when denying a motion to dis-
miss, that the publication might be fairly inter-
preted to state that all persons admitted to a
degree of a fraternal order had taken the libel-
ous oath, a statement which the jury were there-
after instructed to disregard, held harmless.-
People v. Turner, 154 P. 34.

1169 (Cal.App.) When evidence of a custom
of a deceased in carrying considerable sums of
money with him is received to prove a motive
for his murder, subsequently striking it cures
the error.-People v. Andrade, 154 P. 283.

(1) Record and Proceedings Not in Rec-
ord.

1086 (Cal.) On appeal the record should
not contain the arguments of the counsel on
questions of law arising during the trial, since
they serve no useful purpose, and their inser-
tion is not required by law.-People v. Miller,
154 P. 468.

1086 (Nev.) An assignment of error com-
plaining of the admission of a confession held
not reviewable where the transcript disclosed
no objection to the admission.-State v. Blaha,
154 P. 78.

1105 (Ariz.) A reporter's transcript of the
evidence, not authenticated by the trial judge
or certified as correct by the parties, cannot be
considered as a bill of exceptions or statement
of facts.-Hamilton v. State, 154 P. 1039.

1121 (Ariz.) As under Civ. Code 1913, par.
614, a reporter's transcript cannot be consid-
ered as such, where not certified by the trial
judge, an assignment depending on the evidence
cannot be reviewed.-Hamilton v. State, 154 P.
1039.

(E) Assignment of Errors and Briefs.

1130 (Idaho) Where the brief does not cite
the page and folio of the transcript wherein
evidence on which an objection to instructions
is based is to be found, such evidence will not
be considered.-State v. Jones, 154 P. 378.

(G) Review.

conclusions as to statements made by accused
while under arrest, if error, held harmless, where
the entire conversation was shown, and it clear-
ly appeared that the statements were volun-
tarily made.-State v. Blaha, 154 P. 78.

11702 (Nev.) Allowing a witness to refresh
his memory in homicide trial by reading his
evidence given at inquest held harmless, where
statements before and after refreshing were sub-
stantially the same.-State v. Tranmer, 154
P. 80.

Where a previously convicted joint principal
is a state's witness on murder trial, permit-
ting him to testify that he is imprisoned under
death's sentence held reversible error.-Id.

1172 (Mont.) In a prosecution for statu-
tory rape, submission of an instruction relating
to the period of limitation applicable, unneces
sary under the facts, held not prejudicial error.
-State v. Harris, 154 P. 198.

1172 (Okl.Cr.App.) Where accused has had
a fair trial, and it appears that the verdict of
guilty was not reached by error or as the result
of passion or prejudice and sustained by the
evidence, the conviction will be affirmed not-
withstanding an inaccurate instruction for the
state.-Wingo v. State, 154 P. 502.
(II) Determination and

Cause,

Disposition

of

1184 (Okl. Cr.App.) Under Rev. Laws 1910,
§ 6003, the appellate court has power to rectify
a sentence by reducing it to conformity with
the punishment prescribed by statute.-Johnson
v. State, 154 P. 1004.

Where a verdict of guilty of assault with a
dangerous weapon in violation of Rev. Laws
1910, § 2344, prescribed punishment by fine in
addition to imprisonment, held, that the provi-
sion for a fine should be deemed surplusage,
and the judgment and sentence be modified ac
cordingly.-Id.

1159 (Cal.App.) A conviction cannot be re-
versed unless the appellate court can, as a mat-
ter of law, say that the verdict was not justi-
fied.-People v. Sidwell, 154 P. 290.

1159 (Nev.) Judgment will not be reversed
for insufficiency of evidence where the verdict is
supported by substantial evidence.-State v.
Whitaker, 154 P. 927.

1159 (Okl.Cr.App.) A conviction will not be
set aside as against the evidence, where sustain-
ed by sufficient evidence, though the evidence is
conflicting.-Jones v. State, 154 P. 689.

1159 (Okl.Cr.App.) A conviction on evi-
dence tending to prove all material allegations
of the information will not be disturbed; the
weight and sufficiency of the evidence being for
the jury under Rev. Laws 1910, § 5873.-Mitch-
ell v. State, 154 P. 1197.

1159 (Wash.) The question of credibility of
witnesses is for the jury, whose finding is con-
clusive on appeal.-State v. Brooks, 154 P. 795.

1160 (Idaho) The denial of a new trial
sought for misconduct of the jury will not be

defendant in a prosecution for murder to estab-
lish his defense of insanity beyond a reasonable
doubt, the error was not such that the decree
could be affirmed in accordance with Const. art.
6, § 42, where the evidence was such that the
jury might reasonably have found for the de-
fendant under a proper instruction.-People v.
Miller, 154 P. 468.

1186 (Cal.App.) Under Const. art. 6, § 41⁄2,
prohibiting reversal for nonprejudicial error
in criminal cases, in a prosecution for libel,
where the magistrate at preliminary hearing
merely caused to be entered in his docket with-
out signing an order that defendant should be
held to answer in the superior court, in contra-
vention of Pen. Code, § 872, judgment of con-
viction will not be reversed after fair trial.-
People v. Turner, 154 P. 34.

1186 (Mont.) Under Rev. Codes, § 9415, di-
recting the disregard of technical errors not
affecting substantial rights, the court will dis-
regard the action of the trial court, in a prose-
tion for statutory rape, where the evidence tend-
ed to show several offenses, in not requiring

the state to elect until the close of its case.
State v. Harris, 154 P. 198.

66

*

will be subjected to.-Godley v. Gowen, 154
P. 141.

(B) Aggravation, Mitigation, and Reduc-
tion of Loss.

III. GROUNDS AND SUBJECTS OF
COMPENSATORY DAMAGES.
(A) Direct or Remote, Contingent, OP
Prospective Consequences or Losses.

23 (Wash.) Where the purchaser of a busi-
ness paid an increased price for the seller's
agreement not to engage in the same business
in the same locality within two years, on breach
by the seller the buyer could recover the lost
profit resulting therefrom; such damages hav-
ing been reasonably within the contemplation of
the parties on making the agreement.-Loutzen-
hiser v. Peck, 154 P. 814.

26 (Wash.) The recovery in a personal in-
jury case may include damages for future pain
and suffering which the evidence shows plaintiff

(Mont.) The rule that an injured person
must use ordinary diligence to effect a cure and
minimize the damages does not require an in-
jured passenger, after one unsuccessful opera-
tion, to submit to a major operation to re-
duce the damages caused by the carrier's neg-
ligence.-Freeman v. Chicago, M. & St. P. Ry.
Co., 154 P. 912.

62 (Okl.) An injured party, on finding that
a wrong has been perpetrated on him, should
use all reasonable means to arrest the loss.-
Sackett v. Rose, 154 P. 1177.

Whether an injured party, on discovering per-
petration of a wrong, has used reasonable means
to arrest the loss, depends on whether he has
used reasonable exertion and incurred reason-
able expense in view of all circumstances of the
particular case.-Id.

IV. LIQUIDATED DAMAGES AND

PENALTIES.

76 (Or.) Forfeitures are to be strictly con-
strued, and one who would avail himself of them
must bring himself precisely within the letter
of the contract authorizing them.-City of Rain-
ier v. Masters, 154 P. 426.

79 (Or.) In general damages are limited to
compensation that the injured party may be
made whole, and it is only where it is difficult
or impossible to calculate the actual dam
ages that the previous stipulation of the par-
ties for liquidated damages will be enforced.-
City of Rainier v. Masters, 154 P. 426.

85 (Or.) Stipulation in contract for pub
lic work that if it were not completed by a
day specified, the contractor should forfeit $10
for each day after such day to the date of com-
pletion, held not to apply to general damages
on abandonment of the contract, but only to
breach by mere delay.-City of Rainier v. Mas-
ters, 154 P. 426.

86 (Wash.) A city, after rescinding a con-
tract to construct a building, could not recover
liquidated damages provided therein for failure
to complete the contract within the time speci-
fied, so far as such damages accrued after re-
scission. Garey v. City of Pasco, 154 P. 433.

VI. MEASURE OF DAMAGES.

(A) Injuries to the Person.

95 (Okl.) Compensation for a wrong for
which the law provides a remedy should be
equal to the injury and such as to place the in-
jured party as near as possible in the position
he would have occupied but for the wrong.-
Sackett v. Rose, 154 P. 1177.

(C) Breach of Contract.

120 (Cal.App.) Except where exemplary
damages are given, courts will not allow a party
to a contract to recover upon its breach more
than he would have received by its due perform-
ance.-Johnson v. Hinkel, 154 P. 487.

120 (Okl.) Where a contract of sale of
land is assigned as collateral security for the
faithful performance of a building contract by
the assignor, the measure of damages recover-
able from the vendor is the damage sustained
by him from breach of the building contract.-
Marker v. Gillam, 154 P. 351.

VII. INADEQUATE AND EXCESSIVE

DAMAGES.

132 (Wash.) Under the evidence held a ver-
dict of $1,500 for personal injuries, resulting in
varicose veins, was not excessive.-Jensen v.
Schlenz, 154 P. 159.

DEATH.

See Abatement and Revival,

53; Appeal
and Error, 334; Sheriffs and Constables,
On 157.

II. ACTIONS FOR CAUSING DEATH.
(A) Right of Action and Defenses.

VIII. PLEADING, EVIDENCE, AND

ASSESSMENT.

(A) Pleading.

32 (Okl.) The right of recovery for death un-
der Rev. Laws 1910, § 5281, extends to all chil-
dren of deceased, regardless of their ages; but
the recovery must be based on the reasonable
expectancy of pecuniary benefit of which they
were deprived by their father's death.-Press-
v. Incorporated Town of Sallisaw, 154 P.
660.

(E) Damages, Forfeiture, or Fine.

163 (Okl.) The burden of proving mitiga-
tion of damages is on the party guilty of the
wrong.-Sackett v. Rose, 154 P. 1177.

167 (N.M.) Where there is substantial evi-
dence that the injuries are permanent, evidence
of life expectancy is admissible.-Thayer v. Den-
ver & R. G. R. Co., 154 P. 691.

168 (N.M.) The physical ability or inability
of an injured employé to do work or perform
any act may be proved by direct testimony of
the employé himself. Thayer v. Denver & R.
G. R. Co., 154 P. 691.

133.

DEBTOR AND CREDITOR.

See Assignments for Benefit of Creditors; Bank-
ruptcy; Compositions with Creditors; Fraud-
ulent Conveyances.

I. NATURE AND REQUISITES.

12 (Or.) There could be no parol dedication
to charitable use of land held by claimant under
the provisional Constitution and before obtain-
ing certificate under Donation Act Cong. Sept.
27, 1850.-Stansbery v. First Methodist Episco-
pal Church, 154 P. 887.

31 (Or.) A formal acceptance of a dedica-
tion of a street is unnecessary, since approval
by the municipality will be implied.-Nicholas
v. Title & Trust Co., 154 P. 391.

(C) Proceedings for Assessment.

210 (Or.) Under the evidence in personal
injury action, held, that an instruction that if
plaintiff's condition was the result of disease,
and not the accident, there could be no recov-
ery, was warranted.-Hudson v. Brown Lumber
Co., 154 P. 533.

216 (Utah) Where a servant sued for spinal
injuries, but failed to allege rib fractures, and
the defendant's evidence disclosed rib fractures,
submission of such injuries to the jury was
not error; injuries to the ribs being probably
concurrent with spinal injuries and covered by
the pleadings.-Woodward v. Daly-West Mining
Co., 154 P. 782.

216 (Wash.) That plaintiff had for a time
been unable to pursue his usual occupation, au-
thorizes an instruction that the jury might al-

39 (Or.) An owner of land, who exhibited
to intending purchasers a map showing streets
certain widths, which purchasers bought be
fore he changed his mind and recorded a differ-
ent map showing different widths, held estop-
ped to deny dedication to the public of the high-
ways as shown by the original map.-Nicholas
v. Title & Trust Co., 154 P. 391.

Where the successor in title of a dedicator of
land as highways, which took title by mesne
conveyances and for value, could have ascertain-
ed from stakes on the land the location of the
dedicated highways, it was estopped to deny the
original dedication.-Id.

43 (Or.) In a suit to determine an ad-
verse interest in realty, plaintiff seeking to es-
tablish that his lots were bounded by highways
60 feet wide, where the original purchaser, who
dedicated the ways, testified to noticing stakes
marking the highway lines, the admission of
evidence relating to such stakes was proper.-
Nicholas v. Title & Trust Co., 154 P. 391.

44 (Or.) In a suit to determine an adverse
interest in land, evidence held sufficient to show
that the owner of land knowingly permitted
intending purchasers to believe that the print-
ed plat thereof had been duly recorded.-Nichol-
as v. Title & Trust Co., 154 P. 391.

To establish a parol dedication, evidence must
be adduced tending to substantiate a clear in-