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 v. 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, J., and BARTCH, J., concurred.

ZANE, C. J., having been of counsel, did not sit in this

case.

29 172 j29 179

B. DARGER AND OTHERS, RESPONDENTS, v. ST. V. LE
SIEUR, APPELLANT.

[See Darger v. Le Sieur, 8 Utah, 160.]

MINES AND MINING.-NOTICE OF LOCATION.-DESCRIPTION.-A notice of location which describes the ground in such a way as to be incapable of location is insufficient, affirming Darger v. Le Sieur, 8 Utah, 160.

Petition for a rehearing in the supreme court. Opinion found at 8 Utah, 160.

Mr. Arthur Brown, for the appellant.

Mr. M. M. Kellogg and Messrs. Bennett, Marshall and Bradley, for the 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 8 Utah, 160. The respondents afterwards filed their petition for a 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, J., and SMITH, J., concurred.

THOMAS HOMER, RESPONDENT, v. INTER-MOUNTAIN ABSTRACT COMPANY, APPELLANT.

TRIAL.-NEW TRIAL.-MISCONDUCT OF JURY.-On a motion for a new trial affidavits of the jurors will not be received to impeach their verdict by showing that the jury in the jury room improperly examined a page not in evidence of an account book, another page of which was in evidence.

APPEAL from a judgment of the district court of the third district, and from an order refusing a new trial, Hon. Charles S. Zane, judge. The opinion states the facts except the following section of the statute:

A new trial may be granted on account of the misconduct of the jury, and whenever one or more of the jurors have been induced to abide a resort to the determination of chance, such misconduct may be proven by the affidavit of a juror. Section 3400, 2 Comp. Laws of 1888. The statute impliedly

excludes all other cases of proving misconduct of jury by a juror's affidavit.

Messrs. Baldwin and Tatlock, for the appellant.

Messrs. Ritchie and Ritchie, for the 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. 114, 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, J., and SMITH, J., concurred.

PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. JOHN C. SULLIVAN, APPELLANT.

CRIMINAL LAW.-CONTINUOUS OFFENSE.-CONTINUANDO.-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 certain only as to the two days mentioned. Miner, J., dissenting.

ID.-ID.-LAYING TIME IN INDICTMENT.-Semble that if an offense is continuous in its nature, whether or not the indictment charges a continuous offense, a conviction for such an offense bars a conviction for the same continuing offense committed at any time prior to the finding of the indictment. ID.-GAMING.-PLEA OF FORMER CONVICTION.-Where an indictment is found for the offense of opening and conducting a game of faro, and a plea in bar is interposed that defendant has already been convicted of the offense of opening and conducting a game of faro on a certain 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., dissenting.

ID.-GAMING.-CONTINUOUS OFFENSE.-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.-CONVICTION UPON PLEA OF GUILTY.-PLEA OF FORMER CONVICTION.-Semble, per Miner, J., that where a plea of former