Volume 1 — Dakota Reports

<p>1. LIBEL: filing: seizure under. The libel must ayer a seizure of the boat by an officer named in the statute*for that purpose, before the same is filed.</p> <p>2. BOND: receiving property under: waiver. The claimant waived no right in regard to the defense set up by receiving the property on bond. To give the court jurisdiction the statute must be strictly followed.</p>

Writ of Error to TanMon Qounty District Court. This case comes to this court by petition in error under our statute of 1862. The indictment was for selling and giving spirituous liquors to an Indian, in two counts. Trial by jury, October term, 1867, Second Judicial District, Babtlett, G. J., presiding.

TMs action was brought for the recovery of the-possession of certain personal property, taken from plaintiff under a warrant of attachment. The facts necessary to an intelligent understanding of the points decided are stated in the opinion. Bartlett Tripp, for appellant. Goods custodia legis cannot be replevied, nor can defendant in attachment try the validity of proceedings in another action. (Wait’s Annotated Code, 411 d.; id., 371, f. i.; id., 373; id., 374, § 208; 7. Abb.

<p>r. MISJOINDER OF ACTIONS: objection, how taken. Objections on the ground of misjoinder of actions, should be taken by demurrer, motion to strike out, or motion to compel plaintiff to elect upon wffich cause of action he would proceed.</p> <p>2- -.'-•• waiver of objections. The objection is waived by taking issue upon plaintiff’s petition, and such waiver extends to all defects in the firs pleading, except such as are of a jurisdictional character, and that the com plaint or petition does not state facts sufficient to constitute a cause of action</p> <p>j. -; -: stipulation by waiver. Such waiver is to be taken as a stipulation or agreement that defendant is content with the plaintiffs pleadings, and takes issue upon them as presented.</p> <p>4. EVIDENCE: depositions. Defendant, by waiving objections to the blending of equitable and legal proceedings in one action, thereby consents that evidence may be received in any of the modes applicable, and the cause may be heard on depositions.</p> <p>£. DEED: consideration. The recitals in a deed as to the consideration, are not conclusive, but the true and actual consideration may be shown by proof aliunde.</p> <p>6. CONTRACT: breach: measure of damages. F sold and conveyed to A and B, a certain parcel or tract , of timber land, for the consideration of four hundred dollars expressed in the deed, and the further consideration of one hundred dollars to be paid in lumber; and that the said A and B would erect on said land, within a ceitain stated time, a good steam saw-mill. A and B failed to erect the mill as stipulated. Held: That the benefit to be derived by F was the difference between the price actually paid, and the value of the land, that being the amount paid by F for the promise of A and B to erect the mill.</p>

<p>/. JURfí}DlCTrO]SF: appearance: waiver. After a cause has been heard in the Supreme Court, and remanded for a new trial, the general appearance entered by appellee or defendant in error, in the court below, and submitting to it's jurisdiction, by having a trial on the merits, without any objection, is a waiver of any error which might have been cornmitted in the transmission of the decision of the Supreme, to the District Court.</p>

<p>i. INDIAN COUNTRT: purpose and effect of non-intercourse act of 1834. The purpose and effect of the Non-Intercourse Act of 1834, was to declare and proclaim what was then Indian country; country in which the manners, customs and laws of the Indian tribes prevailed, and iii which the United States should protect them in all their natural and guaranteed rights, and not to declare or maintain that to be Indian country, which was not in fact in the occupation and under the control of the Indians.</p> <p>а. -.• ceded: right of occupation. The policy of all branches of the government, from the earliest times, has been to protect all citizens in the occupation of ceded Indian country, and to secure cessions as fast as demanded by the increase of our own population, and when territory has once been solemnly ceded by the Indians, it has never afterwards been considered or treated as Indian country for any purpose.</p> <p>3. -.• effect of cession by treaty. Cessions by treaty, duly proclaimed by the President, have always been considered and treated by the people of the United States, as an invitation from the Executive department to all people to come, open and possess the ceded country.</p> <p>4- -.• effect of treaty of 1868. The Non-Intercourse Act of 1834, wherein it fixed and determined the limits of the Indian country, was modified and ■ changed by the treaty with the Dakota nation of Indians, made in 1868, as it had been by various other preceding treaties.</p> <p>3. TRESPASS: under legal process. The suing out of legal process, and the delivery of the goods to the officer having it, is part of the same transaction, and in the eye of the law, wilfully set on foot and consummated by the party suing out the process, and he is liable to the party against whom the proceedings are instituted for the damages actually sustained.</p> <p>б. -: -; damages: mitigation. The rule as to what may be shown in mitigation of actual damages sustained in actions of trespass, should be limited to evidence of actual benefit received by the plaintiff, after the trespass, from the property taken.</p> <p>7. -.• -: ■ — --•: -. If after the properly has been taken in trespass from the owner, an execution against him is levied thereon and the jirop-erty sold, and a judgment against the owner thereby satisfied, this may be shown in mitigation of damages, and the law will presume the assent of the owner to such application of the property as is for his benefit, to the'extent of such benefit,</p> <p>8. -: -: -: -. Where the verdict is only for actual damages sustained after deducting all benefits derived by the plaintiff from the return of some portion of the goods, it is incompetent to show in mitigation of damages that after the trespass was committed, and before the goods were returned, they were in the custody of the law, under and by virtue of process, for the purpose of enabling the jury to deduct from the aggregate damages, the damages done the goods while in such custody.</p> <p>9. PRACTICE: forms of procedure: damages. While under the old practice a portion of the damages only might have been proved and recovered in an action •vi et armis, and another portion only in an action of trespass on the case, under the Code all may be shown and recovered under the complaint stating the simple facts.</p> <p>10. -: -. All distinctions in old forms having been abolished, all damages may be recovered in one action, that flows from the original trespass, and the original trespasser must respond to the extent of the^damages.</p>

<p>i. ATTORNEY'S FEES: liquidation. A stipulation in a promissory note for the payment of a certain sum as attorney’s fees if suit is commenced thereon, is valid, and may he enforced in an action on the note.</p>

Writ of Error to the Tanlcton County District Court. Tiie defendant was indicted in the court below for the crime of murder, found guilty of manslaughter in the first degree, and sentenced to the Territorial prison for the term or period of ten years. Motions in arrest of judgment and for a new trial were made and overruled, and the cause was removed to this court by writ of error.

<p>z. MUNICIPAL CORPORATIONS: power to create: congressional restrictions. The Act of Congress, approved March 2d, 1867, which provides that the Legislative Assemblies of the several Territories shall not grant private charters or especial privileges, has.no application to municipal corporations.</p> <p>2. -: -.• ——¡—. The City of Elk Point is a public corporation, and the term “ especial privileges ” refers to the granting of monopolies, such as ferries, trade marks, the exclusive right to manufacture certain articles, or carry on certain business in a particular locality to the exclusion of others. And the granting of a public charter does not confer any especial privilege within the meaning of that act</p> <p>3■ -.' -.' powers. The authority to pass by-laws and to regulate the internal affairs and policy of a municipal corporation are incident to its existence.</p> <p>4• -.' -•• organization: validity. The validity of a corporate organization cannot be questioned in a prosecution tor the violation of one of its ordinances. Evidence that the corporation is acting as such is all that is required.</p> <p>3. -.' -: intoxicating liquors: sale: power to license. In the absence of controlling general legislation respecting the sale of intoxicating liquors, it is competent lor cities and towns to require a corporate license of persons who may desire to sell such liquors, and to punish persons selling without license. The powers exercised by municipal corporations are super-added to those exercised by the Territory in the same locality.</p> <p>6. -: -.‘ ordinance: validity. To render the whole ordinance void the good and bad parts must be essentially and inseparably connected in substance. If omitting the void part, that which remains is complete in itself and capable of being executed, it must be sustained.</p> <p>7. -.• -: -: -. The validity of an ordinance is a question for the court, and evidence tending to show that the amount of the license is unreasonable, should be excluded from the jury.</p> <p>8. -.• -: discretionary powers: abuse. Municipal corporations are clothed with large discretionary powers in relation to police matters, and courts will not interfere with the exercise of these powers, except in clear cases of abuse.</p> <p>9. COUNTTLICENSE: sale under: defense. County license is no bar to a prosecution for the violation of a city ordinance punishing the sale of intoxicating liquors without a city license,, and such county license was properly excluded when offered in evidence on the trial. The sale of intoxicating liquors without a county license is a separate and distinct offense.</p> <p>zo. INTOXICATING LIQUORS: sale on the sabbath : punishment. The sale of intoxicating liquors on the^jiabbath without a city license, is a violation of an ordinance requiring sudylicense, for which the offender may be prosecuted, notwithstanding the saxne act may be a violation of the Territorial law, and the party be liable to punishment thereunder.</p>

<p>/. EVIDENCE: improper: effect. The appellate court will not inquire whether the improper evidence received, did in fact prejudice the objecting party, but whether it could reasonably and properly have been so understood by the jury as to prejudice him.</p> <p>2 -.• -.' new trial. Where it is apparent that the jury may have fairly and reasonably understood the improper evidence, in a way to injuriously prejudice the party objecting, a new trial must be granted.</p>

<p>t. OFFICERS: official duties : neglect. The neglect by a county officer of his official duty, cannot be made the grounds of a proceeding in chancery by a private citizen, unless damaged by such action', or thereby deprived of some substantial right.</p> <p>s. TAXATION: objects and purposes : irregularities. The object of taxation is the raising of revenue for governmental purposes; if the same end is accomplished, even though the proceedings may be irregular, that would have been reached had all the forms of the law been strictly complied with, equity cannot be invoked to undo, or restrain from the doing of, that which it was the object and purpose of the law to accomplish.</p> <p>3. TAXES: sale of real estate: rights of parties. The right of a party under the statute providing that ‘‘ no real estate belonging to any person shall be sold for taxes while personal property belonging to such person can be found by the treasurer or collector,” is a personal right, of the violation of which the tax payer alone can complain, and of which no third party can be allowed to take advantage.</p> <p>4- -/ levy and collection : legal proceedings. The levy and colectionl of taxes are legal proceedings under the statute, for the purpose of apportioning and enforcing a recognized obligation due the public, and can no more be interfered with or regulated by courts of equity, than can proceedings at law upon private claims.</p> <p>y. COURl'S OF ESpUITT : powers: jurisdiction. Courts of equity do not sit to reverse or correct errors and mistakes of law, and cannot attempt to prevent, any more than it will redress, all wrongs.</p> <p>6. --•-. Equity will not interfere by injunction to restrain the enforcement of tax proceedings on the ground of irregularities in the assessment of the tax, or in the execution of the power conferred ujjpn taxing officers.</p> <p>7. TAX: illegality: collection when restrained. Courts of equity will interfere by injunction to restrain the collection of a tax, when it is illegal or unauthorized, or when the property assessed is not subject to the tax, or where fraud has been practiced by the taxing officers.</p> <p>S. -/ -: -. Before an injunction will issue to restrain the collector of a tax, it must clearly appear that the tax is not such an indebtedness as the duty of the citizen, defined and regulated by law, requires him to discharge.</p> <p><?. -.• -: -. In no case will the collection of a tax be enjoined where it is nql; shown that the injury resulting from its enforcement would be irreparable, and this fact must appear in the bill by issuable averments.</p>

<p>i. HABEAS CORPUS: jurisdiction: res adjudicata. Under the habeas corpus act, district courts have original, concurrent jurisdiction with the supreme court, and their judgments are subject to review as in other cases.</p> <p>3. -.•-:-. After the writ has once been sued out before the supreme or district'court, or a judge thereof, and an adjudication had thereon, the principle of res adjudicata is applicable, and until that judgment is reversed, the facts and conditions remaining the same, a writ subsequently issued must be abated.</p>

The relator was arrested 00 information charging him with the offense of selling, giving away and disposing of spirituous liquor to an Indian, in charge of an Indian Agent, at the City of Yankton, D. T.; confessedly not in the Indian country, nor on an Indian reservation, said Indian being temporarily absent from his agency. After a preliminary examination before a commissioner, the defendant was committed to await the action of the United States grand jury.

<p>i. INJUNCTION: when granted: rule. An injunction will not be granted to restrain the doing of an act which is unlawful and irregular, unless substantial and positive inj ury will result from a refusal to grant the writ.</p> <p>3- -: -: -. An injunction will never be granted when it will be productive of hardship, oppression or injustice, or public or private mischief,</p> <p>S- -•' -: -. The granting or refusing an injunction rests in the sound discretion of the court, and will never be granted when the benefits secured by it to one party is of but little importance, while it will operate oppressively, and to the great annoyance and inj ury of the other party; unless the wrong complained of is so wanton and unprovoked in its character, as properly to deprive the wrong doer of the benefit of any consideration as to its injurious consequences.</p> <p>‡. ACTION: parties : joinder. Two or more persons cannot for themselves, and on behalf of other tax payers of the county, be joined in an action to restrain the proper officers from paying county warrants, alleged to have been issued without authority of law, and to have them adjudged illegal and can-celled.</p> <p>5- -•' -: -. Money for the payment of county warrants can only be raised by taxation, and such taxation must effect the property of all tax payers alike, and persons having no common right or common interest in the property taxed cannot join in an action to restrain its levy or collection. Argu: — the tax is upon and against the individual property of each tax payer, and that if there is any injury, it is an injury to the property and rights of each tax payer alone, and not an injury affecting a common right or interest.</p> <p>6. CONTRACÉ: i llegad: equitable relief. E and C, under a contract with the board of county commissioners, erected'for the county a court house building; no proceedings were instituted to prevent the execution of the contract, or to restrain the issuance of warrants for work done until the building was completed, and accepted by the board. Held: — that before any action could be maintained bj’ or on behalf of tax payers for equitable relief on the grounds of the illegality of the contract, there should be restored to the contractors what they had expended in labor, money and material.</p> <p>7. LEGAL REMEDY: when pursued. Where a statute confers upon public officials, authority to do an act, and the same statute points Out the remedy to any party aggrieved, such party must pursue his legal remedy, and will not be granted relief in a court of equity.</p> <p>S. -/ -: -. Where by statutory provision a party aggrieved has an appeal to the District Court from any decision of the board of county commissioners upon any matter properly before them, such legal remedy must be pursued, and equitable relief cannot be invoked.</p>

<p>1. INDICTMENT: surplusage. A count in an indictment charging an assault with intent to kill and to murder, although the statute does not use the words with intent to murder.” Held: — good, the words and to murder being mere surplusage and therefore immaterial.</p> <p>2. -.• several counts : sufficiency. Where an indictment contains several counts, if one is good, and sufficient to sustain the judgment, it will not be reversed or set aside on the ground that there is a count that is bad.</p> <p>3. ASSAULT WITH INTENT TO KILL: divisible. The crime of assault or assault and battery with intent to kill is divisible into degrees, and the defendant may be convicted of the offense charged or of any lesser offense necessarily embraced therein.</p> <p>4. -.• -; proof. It is enough to prove so much of the indictment as shows that the defendant has committed a substantial crime therein specified, or one that is necessarily included in, and forms a constituent element of the higher offense charged.</p> <p>j, INTOXICATION: evidence of: when admissible. Where an offense is divisible into degrees, evidence of intoxication is admissible for the purpose of enabling the jury to determine the purpose-motive or intent with which the act was committed.</p> <p>6. -.’ degree : when a defense. Intoxication may not under any circumstances be regarded as a defense, excuse or justification for the commission of crime, unless in case of a person who performs an act under such a state of intoxication as to be unaccompanied by volition, when he has lost control of his will, and is incapable of forming a purpose,</p> <p>y. SABBATH: instructions to jury. A jury that has retired to deliberate upon their verdict, may request and receive additional instructions on the Sabbath, or the Judge may on that day upon his own motion have the jury brought in and re-instruct them, for the purpose of correcting a supposed error or mistake in his former charge.</p> <p>5. DEADLT WEAPON: use of: presumption. There being, under the provisions of the Penal Code, felonious assaults by the use of deadly weapons, other than assault with intent to kill. Held: — erroneous to instruct the jury that “ where an assault or assault and battery is made with a deadly weapon: there is a presumption of an intent to take life, and can only be rebutted by proof that it was excusable or justifiable.</p>

The plaintiff brings this action for’the recovery of certain specific personal property. Jury trial. Verdict and judgment for plaintiff. Held: in the same case, that á demand and a refusal to deliver do not constitute a conversion, when at the time of the demand the property in question is not in existence.' To same effect, see 13 Fla., 501. “This action is based upon a wrongful detention of the property, and such wrongful detention must exist at the commencement of the…

A judgment having been rendered in the court below against the plaintiff, and in favor of defendants, for costs, execution was issued thereon and certain real estate belonging to plaintiff levied on and sold. Subsequent to the sale, and before any motion for confirmation was entered, plaintiff moved the court to set aside the sheriff’s sale for various irregularities assigned. This motion was overruled by the court, and plaintiff appeals.

This is an action on a promissory note alleged in the com- ■ plaint to bave been executed by defendant to plaintiff April 2d, 1868. A payment was made on the note May 1st, 1872'^ and the complaint alleges “ that since the date of said payment * * ’ * and prior to the commencement of this suit, plaintiff has lost said note without having indorsed, disposed of or transferred the same.” Judgment is áskéd for the amount due, upon the execution by plaintiff of an indemnity bond.

It appears from the record that the members of the territorial legislature convened in regular session in the month of December, 1870, and remained in session for full forty days, the limit of time allowed by law.

This is an action for the foreclosure of a mortgage, containing two stipulations relative to attorney’s fees.

Writ of Error to the Yankton County District Court. The facts 'necessary to an understanding of the points discussed and decided by the court, are sufficiently stated in the opinion.

Writ of Error to the Yankton County District Court. The defendant was indicted in the court below “ for unlawfully keeping and exhibiting a gambling table, for gambling purposes.” The pleadings and proceedings were the same as in the case of The People v. Sponsler, supra.

<p>x. DISTRICT COURT: jurisdiction: proceedings in justice’s court. In cases of concurrent jurisdiction, after an indictment has been found and presented, the District Court cannot be ousted of jurisdiction by any proceedings subsequently commenced in a justice’s court, resulting in the conviction or acquittal of the party indicted, on the same charge.</p> <p>2. yUSTICE OR THE PEACE: how chosen: illegal appointment. A justice of the peace must be elected by the people in such manner as may be provided by law; and where the office of city justice is filled by appointment of the city council, such appointment is illegal and void, and clothes the appointee with no judicial power or authority to act.</p> <p>3. PLEADING: former conviction or acquittal : effect of. Where a defendant enters a plea of former conviction or acquittal alone, he elects to stand on such plea, and if the issue is found against him, he will not be permitted to enter a plea of not guilty, but the court must give judgment of conviction or acquittal according as the facts prove or fail to prove the former conviction or acquittal.</p> <p>tf. -.- -: -7. A plea of former conviction or acquittal may be pleaded either with or without the plea of not guilty, and if the defendant does not desire to stand on his plea of former conviction or acquittal, he must unite therewith his plea of not guilty.</p>

<p> Writ of Error to the Yankton County District Court. </p> <p>DEFENDANTS were indicted in the court below for selling intoxicating liquors -to be drank in and upon the premises where sold, without first having obtained a license and given a bond as required by law.</p> <p>The indictment in each case charges that defendants, naming them, on a certain day — (being April 6th, 1876, in one, and March 15th, 1876, in the other) — “ at the city of Yankton, in the county of Yankton, aforesaid, did unlawfully and knowingly sell intoxicating liquors, to be drank in and upon the premises where sold, without first having obtained a license and given a bond to the county commissioners of said county, as required by law.” Concluding in the usual form “ against the peace,” etc.</p> <p>A demurrer was interposed to each indictment, and the following causes assigned:</p> <p>“ 1. The indictment does not substantially conform to the requirements of the statute, in this: It is not direct and certain as regards the particular circumstances of the' offense charged, alleging neither the premises where sold, the person to whom sold, nor the kind or quality of intoxicating liquors charged to have been sold.</p> <p>“ 2. That the facts stated in said indictment do not constitute a public offense.</p> <p>“ 3. That" the court has no jurisdiction of the subject-matter.”</p> <p>The demurrers were overruled by the court, and the defendants having elected not to plead, but to stand on their demurrers, filed their motions in arrest of judgment, setting out the same causes as those stated in the demurrers.</p> <p>The court denied these motions and passed sentence. To all of which rulings of the court defendants duly excepted, and sued out their writs of error.</p>

<p>i. E VIDENCE: best or highest : reason of rule. The principle of the rule requiring the best or highest evidence, is founded on the presumption that there is something in the better evidence which is withheld, adverse Lo the party r.esorting to inferior or secondary evidence.</p> <p>■a. -.• -: effect of the rule The general effect of the rule is to prevent fraud, and to induce parties to bring before juries the kind of evidence least calculated to mislead or perplex them. The reason of the rule limits the extent of its application; consequently it does not operate where the law itself obviates the presumption of fraud, which would otherwise arise.</p> <p>Application of the rule: — In general to prove that a person is a public officer, it is sufficient to show that he is acting as such. So where a document is of a public nature, a copy is sometimes admitted, for the production of the original is dispensed with on account of the inconvenience resulting from the frequent removal of such papers; and therefore, the absence of the original affords no presumption of fraud.</p> <p>S- -.-.hearsay: admissibility. The admissibility of hearsay on questions of public right, is so well established upon authority, that its competency is not disputed, however widely courts may differ upon its force and effect. _ Where the question is as to territorial limits, and where the boundary concern s the extent of a public municipal jurisdiction, either public reputation, or the particular declarations of deceased persons, made ante litem motamt are re- . ceivable.</p> <p>4. -.- public documents’: official publications. All publications OÍ State papers, maps, charts, and public documents, when such publications are by authority of Congress, are as valid evidence as the originals from which they were copied, and may be introduced and read as evidence on mere inspection.</p> <p>j. -.- maps: grounds of admission. Maps stating boundaries are receivable in evidence, provided it appears that they have been made by persons having adequate knowledge. And in cases where they have been admitted, their admissibility has depended on the ground of their being public documents, or upon the other ground of their being in the nature of admissions.</p> <p>6. INDICTMENT: constituent elements : rights of accused. In criminal cases, prosecuted under the laws of the United States the accused has the right “ to be informed of the nature and cause of the accusation against him,’* and the indictment must set forth the offense with clearness and all necessary certainty to apprise the accused of the crime with which he stands charged.</p> <p>7. -.- objects of: certainty. The object of the indictment is, first, to furnish the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had.</p> <p>8. -copy to accused: waiver. A person indicted under the laws of the United Slates for any other capital offense than treason is entitled to the privilege of having delivered to him a copy of the indictment and list of jurors and witnesses, at least two entire days before trial. Held: — That the entry of a"plea of not guilty and proceeding to trial by defendant is a waiver of the statutory privilege, and cures the objection that no copy of indictment was furnished or that the copy served was defective.</p> <p>q. JURISDICTION: Indian reservation: homicide. A trial for homicide committed on an Indian reservation must be had on the Federal side of a Territorial court, and is governed by the United States statutes and the rules of the common law.</p>

Oh the 23d dajr of March, 1874, defendant Wilber executed and delivered to plaintiff one promissory note for $150, due July 15, 1874, and one order drawn on defendant Marsh for $150, payable ten days after date. The'order was accepted by Marsh, who also signed the note as guarantor. This suit is brought to recover upon these instruments. The consideration was the transfer by Cheatham to Wilber, of certain horses, vehicles, &c., used on a stage line in the State of Nebraska.

Lange sums of money having been paid into the District Court of Yankton county, and in the hands of the clerk, A. J. Paulk, — the proceeds of fines imposed by said court upon •parties convicted of crimes and misdemeanors committed within the City of Yankton, said county, mostly arising under the statute regulating the sale of intoxicating liquors— were claimed both by the county and by the Board of Education of the City of Yankton, a body corporate created by special charter…

All the facts in this case, necessary to a full understanding of the points discussed and decided, are stated in the opinion.

Writ of Error to the Yankton Comity District Court. The defendant was indicted and tried in the court below for “ an assault upon and for shooting one P. McM. with a pistol, commonly known as a revolver, loaded with gun powder and leaden bullets, with intent to kill.” The statute under which this indictment was found, reads as follows: “Every person who shoots or attempts to shoot at another, with any kind of firearms, or other means whatever, with intent to kill any person;…

<p>1. PERSONAL PROPERTY: action to recover: provisional remedy. The action for the recovery of personal property, under the provisions of the Code of Civil Procedure, is an original action, and may or may not have coupled with it the provisional remedy of claim and delivery.</p> <p>2. GENERAL APPEARANCE: entry by defendant: effect of. A voluntary appearance by the defendant to the suit generally, is equivalent to personal service of the summons upon him; and after such appearance the court acquires full jurisdiction for all purposes whatsoever.</p> <p>--.- -: -. If the proceedings under the writ for obtaining possession of the property were so irregular and defective that no jurisdiction could thereby be conferred, all questions in relation thereto become immaterial after defendant appears, answers and contests the case on its merits.</p> <p>4, JUDGMENT, justices court: appeal. An appeal to the District Court, from the judgment of a justice of the peace, under the provision of a statute, requiring the trial to “ proceed in all respects, in the same manner as though the action had been originally instituted therein,” excludes the consideration of any alleged errors committed by the justice, on the trial, except such as relate solely to jurisdictional questions.</p> <p>y. -: -; -. The'object of an appeal from the judgment of a justice, prior to the passage of the Revised Codes, was to try the case on its merits, and such an appeal was not designed to perform the functions of a certiorari.</p> <p>6. EVIDENCE: written: exceptions. To the general rule that when written evidence of a,fact exists, all parol evidence is excluded, there are exceptions, such as that written acknowledgments and receipts need not be produced or their absence accounted for to admit parol evidence of the transaction which they are designed to evince.</p> <p>7. -.• -: -. A bill of parcels, receipted, of the sale of articles of personal property, need not be produced to prove a sale; parol evidence is competent on the ground that such paper generally amounts to nothing more than a receipt for the price.</p> <p>8. -.• -.• when indispensible. Whenever it turns out that a writing exists with regard to a transaction, which the law regards as the best evidence, it must be produced or its absence accounted for. A bill of sale being the best evidence of title, is properly admissible in evidence.</p>

<p>i. HOUSE OF ILL-FAME: reputation: evidence oe. Under an indictment charging defendant with keeping a bawdy house or house of ill-fame, evidence tending to show the general reputation or character of the house kept by defendant is admissible.</p> <p>s. -.• -: -. The prosecution must first show that the defendant kept the house in question, and may then show its general character or reputation, and that of its frequenters and of the defendant; and if this satisfies the jury that the house was of the kind described in the statute, and indictment, they may so find, without proof of particular acts of prostitution or lewdness.</p> <p>3. -.• indictment: how sustained. The charge may be sustained if the evidence satisfies the jury beyond all reasonable doubt that the defendant kept the house and then that it was resorted to by people of both sexes, who were reputed to be of bad and lascivious character, and that it was generally understood and reputed to be such house of ill-fame,</p> <p>4. INSTRUCTIONS: how considered. An appellate court in determining the question of error in giving or refusing instructions, examine and pass upon the instructions as a whole and not in fragmentary parts, and from such examination determine whether the jury may have been misled, or the defendant prejudiced.</p>

The facts are stated in the opinion. The deed of Jane L. and Moses S. Titus to Byron M. Smith was not recorded and was not entitled to record for want of a certificate of the official character of the officer who took the acknowledgement at the time the defendants’ deed was recorded, and was not notice to the defendants.

This is an action brought on the official bond of defendant Simonsen, the conditions of which are as follows: “ Whereas the above bounden, R. J. Simonsen, has been duly elected to the office of… Held: State v. Biffimi, also in the People v. Cabannes, 20 Cal., where the magistrate had taken a bond different in its condition from that required by statute.

' Appeal from Lawrence County District Court. The facts are stated in the opinion. - The record in this case discloses the fact that before the application for mandamus, the appellant, as county clerk, had performed the duty required of Mm by law, by making out and delivering to the sheriff the notices of the election, to be held on the 6th day of November, 1877, incorporating in such notices such offices as were in his judgment to be filled at such election, to-wit: the…

Writ of Error to the Burleigh Bounty District Court. On the 24th day of February, 1877, the defendant, Peter Bannigan, was indicted in the District Court of Burleigh County for the crime of murder, in killing one John D. Massingale, alleged to have been committed “ wilfully, feloniously, and with malice aforethought.” On this indictment the defendant was tried and a verdict of “guilty of murder as charged in the indictment” found by the jury.

<p>Indictment for libel. Motion for a new trial.</p>

<p> In the District Court of Lincoin County. </p>

<p>^ ^ District Court of Bon Homme1 County.</p>

In the District Court for Lawrence County. Defendants’ counsel.offered in evidence the record books of the Whitewood Quartz Mining District containing the record of the location of quartz mines since the organization of said district, in February, 1876, for the purpose of tending to show that there was, during a certain time, a custom among the miners of said district, established and in force, requiring such locations to be recorded, with the mining recorder of said…