Volume 1 — South Dakota Reports

<p>Appeal from district court, Hamlin county; Hon. James Spencer, Judge.</p> <p>Motion to dismiss appeal. No briefs filed.</p> <p>The facts so far as material are stated in the opinion.</p>

John M. Nowlin, Judge. The nature of the proceedings and the material facts are stated in the opinion. Upon the admission of South Dakota as a state the judicial fabric of the territory dissolved. In re Wood 9 Pac. 758; in re Hinkle 3 Pac. 531; Enabling Act § 21. The offices of clerks of the court were abolished with the courts and the terms of office of the incumbents ended. State v. Tifford, 1 Nev. 210; Martin v. Pieman, 8 Abb. Pr. 359.

<p>1. Held, that the clause in Section 23 of the act providing for the admission of South Dakota and other states, approved February 22, 1889, “had such courts existed at the time of the commencement of such cases,” should be construed to mean, had a state existed in which the federal courts could have been legally established at the time the actions were commenced.</p> <p>2. The plaintiff in this action — which was commenced in the district court of the Territory of Dakota, and is still pending — was at the time of its commencement, and sq continued up to the admission of the State of South Dakota, a resident and citizen of the said Territory of Dakota, and is now a citizen of the State of South Dakota, and defendant was at the time the action was commenced, and is now, a citizen of the State of New York. Held, on motion of defendant to transfer cause to the circuit court of the United States for the district of South Dakota, that his right to such transfer must be determined on the hypothesis that the State of South Dakota had been admitted into the Union, and the fed-era-l courts established therein, and the plaintiff a citizen thereof, at the time the action was commenced.</p> <p>3. Held that, as the United States circuit court would have had jurisdiction of this cause had such a court existed in the State of South Dakota at the time this action was commenced, — the parties, on the hypothesis stated, being citizens of different states, — the case should be transferred to the United States circuit court.</p> <p>(Syllabus by the court;</p>

<p>1. An order made by the circuit judge, under the provisions of Section 5411, Comp. Laws, refusing an order enjoining foreclosure proceedings by advertisement, is an order of the j udge, and not of the court, and is not appealable.</p> <p>2. The application by the mortgagor, provided for in said section, was designed to be so far ex parte as not to authoi-ize or allow resisting affidavits tending to disprove the statements of mortgagor’s affidavit, setting-up his defense or counter-claim, to be heard or considered by the judge upon the hearing of such application.</p> <p>3. Any bill of exceptions, properly settled, which brings before this court a record of the fact than such affidavits were received and entertained upon the hearing of the application, raising issues of fact, upon his decision of which the judge determined the mortgagor’s right to such an order of stay and transfer, is sufficient to present the question of error in a case properly before this court.</p> <p>(Syllabus by the court.</p>

Charles M. Thomas, Judge. The facts are stated in the opinion. A probate judge must have a clerk before he is entitled to recover fees from the county for clerk hire under the act of the legislature of the Territory of Dakota of March 7, 1889. The act of the legislature of March 8, 1889, provides for the appointment of a clerk of the probate court by the judge thereof, and fixes his compensation.

H. G. Fuller, Judge. The material facts are stated in the opinion. The fact that a debtor is removing his property from the state for mere temporary purposes only is no ground for attachment. Warder v. Thrilkield 2 Ñ. W. 1073; Hunter v. Seward, 18 N. W. 58; Steele v. Dodd, 16 N. W. 909. A party holding security for a debt and seeking to attach the property of the debtor, must alLege in the affidavit for attachment that the security has become valueless or insufficient.

<p>Appeal from district court, Kingsbury county; Hon. James Spencer, judge.</p> <p>Motion to dismiss appeal. Denied. No briefs filed.</p>

James Spencer, Judge. The facts so far as material and the nature of the proceedings, are stated in the opinion. Conceding that the lands in question are exempt from taxation, they are chargable with, and subject to, local assessments for improvement of streets upon which they abut. The right to levy assessments for such purposes is derived from the general power of taxation, not from right of eminent domain.

Hon. H. G. Fuller, judge. The nature of the proceedings and the material facts are fully stated in the opinion. Certiorari is the appropriate remedy of relator. He had no plain, speedy and adequate remedy by appeal'. He had no right of ajipeal at all. Flint v. City of Fond du Lac. 42 Wis. 295; Champion v. Board of County Comr’s, 41 N. W. 739;-Spen-cer v. Sully County, 33 N. W. 97.

<p>Appeal from district court, Marshall county; Hon. Louis W. Crofoot, Judge.</p> <p>The facts are stated in the opinion.</p>

(Syllabus by the court. Appeal from district court, Yankton county; Hon. Bartlett Tripp, Judge. Motion to dismiss appeal. Denied. No briefs filed. The facts are stated in the opinion.

James Spencer, Judge. Action to recover for property destroyed by fire. Judgment for plaintiff. From that judgment defendant appeals. The material facts are stated in the opinion, Although respondent was permitted by the lower court to amend his complaint he failed to do so. This was fatal. When allowed ti amend a party must serve his amended pleading. § 4939 Comp. Laws. The law in regard to amended pleadings is mandatory. Bode v. New England Investment Co , 42 N. W. 661.

Charles M. Thomas, Judge. Action to set aside and annul articles of separation between husband and wife. Judgment for plaintiff. Defendant appeals. The facts are stated in the opinion. The evidence of duress upon which a contract may be avoided, must be clear and conclusive. Davis v. Fox, 59 Mo. 125; Brown v. Peck, 2Wis. 261.

Louis W. Orofoot, Judge. . Action to recover the value of property levied upon and taken under attachments and executions. Prom a judgment in favor of the plaintiff the defendant appeals. The facts are fully stated in the opinion. The courts of the different states are divided into two classes, as marked by the position they have taken relative to the validity of a mortgage containing a provision for the mortgagor’s possession of mortgaged goods, with power of disposal.

Action upon undertaking against loss or decrease in rents. A demurrer was interposed which was overruled. From order overruling demurrer defendant appeals. The facts are stated in the opinion. A provision in a lease of premises that “rents whether due or to become due thereunder shall be a perpetual lien upon the stock of goods contained or to be contained in the building” is absolutely void as to other mortgage creditors. Reynolds v. Ellis, 103 N. Y. 115; § 4657 Comp. Laws.

Motion to discharge an attachment. Allowed. Plaintiff appeals. Affirmed. By permission of the court and counsel this cause was submitted upon the briefs and arguments in the case of HornickDrug Co. v. Lane (post). The material facts are stated in the opinion.

Motion to discharge an attachment. Allowed. Plaintiff appeals. The facts so far as material are stated in the opinion. In order to justify the dissolution of an attachment all the essential grounds of the attachment must be positively denied. The moving papers must possess the essential features of good pleading. Kritzer v. Smith, 21 Mo. 296; Garrett v. Tri.enen, 7 How. 465; Kuthv.

Hon. James Spencer, Judge. Appeal from order of board of county commissioners disallowing plaintiffs claim for expenses for boarding an indigent person. The order appealed from was reversed and judgment was entered in favor of plaintiff. Defendant appeals. The facts are stated in the opinion. Only those whom the overseers of the poor determine are poor persons, are entitled to relief under § 2152 Comp. Laws.

BartlettTripp, Judge. Action upon two promissory notes. Judgment for defendant. Plaintiff appeals. The facts are fully stated in the opinion. The plaintiff having taken the notes in suit as collateral security for a debt contracted at the same time he took them, and the debt being contracted on the faith of these notes as collateral security, is a bona fide, holder. Daniels Neg. Inst. § 824; Goodman v. Simonds, 20 How.

James Spencer, Judge. Motion to vacate and set aside an attachment. Motion allowed. Plaintiff appeals. The facts are stated in the opinion.

Action to recover possession of certain personal property. Judgment for defendant upon verdict directed by the- court. Plaintiff appeals. The facts so far as material are stated in the opinion. An authority to an agent to sell confers no authority to barter. Trudo v. Anderson, 10 Mich. 357; Kent v. Bornstein, 12 Allen, 342; Wheeler v. Wilson Mf’g Co. v. Given, 66 Mo. 89; Victor Machine Co. v. Hiller, 44 Wis. 44; Stewart v. Woodward, 50 Vt. 78.

Action to recover upon certain coupons detached from bonds issued by defendant, Lawrence County. Judgment for plaintiff. Defendant appeals. The facts are stated in the opinion. The plaintiff alleges in his complaint that he is a bona fide holder of the bonds and coupons by assignment, transfer and delivery for value. This is a material and necessary allegation. § 74, Chapter.7, Code Civil Procedure.

Hon. J. O. Andrews, Judge. Motion to discharge a warrant of attachment. Allowed. Plaintiff appeals. The material facts are stated in the opinion.

Hon. James Spencer, Judge. Motion to vacate warrant of attachment. Sustained. Plaintiff appeals. The facts so far as material are stated in the opinion. It is the duty of one who has made a credit statement upon which credit has been given, to withdraw that statement when it becomes false by reason of changed conditions. Lindauer v. Hay, 17 N. W. 98; Lewis v Pratt, 11 Minn. 57; Zabriska v. Smith, 13 N. Y. 332.

Hon Bartlett Tripp, Judge. Action for an accounting and to have a conveyance of real property declared void. Judgment for plaintiff. Defendant appeals. The facts are stated in the opinion. The defendant, Matilda S. Letcher, is an innocent grantee. Wade on Notice, § 290; Smith v. Yule, 31 Cal. 180. As she is an innocent grantee, plaintiff should not be allowed to assert his title against her. Plaintiff is estopped from impeaching or contra-dieting Ms own deed.

Hon. Frank R. Aikens, Judge. Motion to set aside a judgment entered upon default and for leave to answer. Allowed. Plaintiff: appeals. The facts are stated in the opinion. The decision on the July motion was conclusive of this application under the doctrine of res judicata. Comp.

Hon. James Spencer, Judge. Action against the county of Bon Homme upon certain bonds and coupons. Judgment for plaintiff. Defendant appeals. The material facts are stated in the opinion.

(Syllabus by the Court. Appeal from district court, Brule county, Hon. Bartlett Tripp, Judge. . Action to set aside a judgment and to declare a levy under an attachment a first lien upon certain personal property. Judgment for defendant. Plaintiff appeals. Affirmed. Kellam, Judge, not sitting. The facts so far as material are stated in the opinion. When a judgment is taken by a creditor against a failing debtor, it must not be taken for more than is legally due.

Hon. James Spencer, Judge. The nature of the proceedings and the facts so far as material are stated in the opinion. It is essential to the validity of a judgment that it be rendered by a court of competent jurisdictiction at the time and place and in the form prescribed by law.

Hon. Bartlett Tripp, Judge. Action in claim and delivery to recover possession of certain personal property in defendant’s hands as sheriff upon a levy under an execution. Judgment for defendant. Plaintiff appeals. The material facts are stated in the opinion. The voluntary transfer of property exempt from execution vests a good title in the donor, as against creditors. The sale to the plaintiff of the property in controversy was valid and passed the title.

Hon. Frank Aikens, Judge. Action to recover possession of certain personal property levied on by the defendants by virtue of certain warrants of attachment. There was judgment for defendant. Plaintiff appeals. The facts so far as material are stated in the opinion. Where there is any evidence before the jury, whether weak or strong, tending to prove a plaintiffs case, it is error for the court to direct a verdict for defendant.

Hon. James Spencer, Judge. Action against the sheriff of Hughes county, South Dakota, for conversion of certain personal property. Verdict and judgment for defendant. Plaintiff appeals. The facts are fully stated in the opinion. The notice of intention to move for a new trial is jurisdictional. It must inform the adverse party whether the motion 'for a new trial will be made upon a statement of the case, or a bill of exceptions or the minutes of the court.

<p>Appeal from district court, Beadle county, Hon. James Spencer, Judge.</p> <p>The material facts and the nature of the proceedings are fully stated in the opinion.</p>

The facts and nature of the proceedings are stated in the opinion. The board of county commissioners of Hughes county in assuming a j urisdiction to open up election precincts outside of that county, acted beyond and outside of its ordinary conceded statutory jurisdiction. In determining to assume such a jurisdiction, its action was judicial and subject to review upon certiorari.

<p>Appeal from circuit court, Lawrence county.</p> <p>Motion to dismiss appeal and to strike the cause from the term calendar.</p>

Hon. Frank R. Aikens, Judge. Action for conversion of certain personal property: Judgment for plaintiff, defendant appeals. The material facts are stated in the opinion. The plaintiff, by taking and retaining a benefit from Gerde’s acts directly ratified them to that extent and confirmed the sale to that amount, and it was error for the court to deny the offer of defendant to prove those facts.

John E. Carland, Judge. Action upon two promissory notes. Defendant pleads a counter claim. Judgment for defendant. Plaintiff appeals. The facts are stated in the opinion.

(Syllabus by the court. Appeal from district court, Moody county. Hon. Louis W. Cbofoot, Judge. Action for damages for the destruction of a dwelling house by fire alleged to have been started by sparks escaping from the engine of defendant. Judgment for plaintiff. Defendant appeals. The facts are stated in the opinion. This action was brought to recover damages for personal property destroyed.

<p>1. An order vacating' an order which vacated a former order setting aside a sheriff’s sale under foreclosure judgment is an appealable order, as affecting a substantial right upon a summary application after judgment.</p> <p>2. On an appeal from an order made upon affidavits, or other written evidence, no bill of exceptions is necessary. Section 5217, Comp. Laws, provides that in such case the clerk of the trial court shall certify and transmit to the supreme court the original papers used by each party on the application, or copies if so directed by the court, and does away with the necessity for a bill of exceptions.</p> <p>3. A party cannot predicate error upon the g'ranting of an order by the court below, where such order was made upon his own application.</p> <p>(Syllabus by the court.</p>

Bartlett Tripp, Judge. Action upon a policy of fr e insurance. Plaintiff had judgment. Defendant appeals. • Affirmed. Kellam, J. not sitting, nor taking any part in the case. The facts are stated in the opinion. When a warranty is understandingly and clearly given by the insured, no matter how immaterial the fact warranted may be, he will be held strictly to his contract. Wood on Ins. 272, 284, 313; Jeffries-v. Ins Co., 22 Wall. 47; Ins.

Charles M. Ti-iomas,. Judge. Action of ejectment to recover possession of certain mining ground claimed by the parties under conflicting locations and for equitable relief. Verdict for the defendants directed by the court, and judgment entered accordingly. Plaintiff appeals. The plaintiffs as discoverers of the lode had sixty days from the date of discovery in which to complete their location and record their claim. Comp.

<p>1. The jurisdiction conferred upon the supreme court by the constitution is primarily appellate, and that of exercising a superintending control over all inferior courts.</p> <p>2. Original jurisdiction is conferred upon that court to issue the writs of habeas corpus, mandamus, quo marranto, certiorari, and other original and remedial writs, with authority to hoar and determine the same; but as these writs at common law were prerogative or quasi prerogative writs, the supreme court will, in general, only issue them for prerogative purposes.</p> <p>3. They should only issue from the supreme court when the interests of the state at large are directly involved, in the preservation of its sovereign prerogatives, or its franchises, in the protection of its offices from usurpation, intrusion, or invasion, or lor the protection of the liberty of its citizens, except in special cases, or when, for some peculiar cause, application cannot properly be made to a subordinate court.</p> <p>4. This original jurisdiction will, generally, only be exercised by that court in cases prosecuted in the name of the state, and on the . relation or information of the attorney general.</p> <p>5. That court will only exercise its original jurisdiction to enforce a private or local right in special cases, or where, for some peculiar reason, application cannot properly be made to a subordinate court.</p> <p>6. The application for a writ for certiorari in this case was made upon the affidavit of petitioner, who sets forth therein that he is a taxpayer of Hughes county, and that, if certain alleged illegal acts of the board of county commissioners of said county establishing election precincts in certain unorganized counties are allowed to stand, his burden of taxation will be increased. Held, that the facts stated are not sufficient to call into exercise the original powers of the supreme court, without showing some special reasons why application is not made to a subordinate court.</p> <p>7. The statement in petitioner’s affidavit that there will be no term of the court held in said Hughes county before the election, at which such alleged expenses would be incurred, does not state a sufficient reason for not applying to the inferior court.</p> <p>(Syllabus by the Court.</p>

Hon. James Spencer, Judge. Motion to discharge an attachment. Allowed. Plaintiff appeals. The material facts are stated in the opinion.

Hon. A. G. Steiner, Judge. The facts and. nature of the proceedings are stated in the opinion. It is not the sale of liquor that constitutes a crime under the statute, but it is the sale of liquor as a beverage that is prohibited. The information does not state a public offense in that it does not charge that the liquors were sold as a beverage. § 1, Chap. 101, Laws of 1890; Wharton Crim, Law 1499; 2 Wharton Crim.

H. G. Puller, Judge. Motion to amend a judgment by striking out so much thereof as awards costs to the plaintiff and to allow to defendant its costs of the action. Denied. Defendant appeals. The facts are stated in the opinion. This action being for the recovery of money, and the plaintiff having recovered less than fifty dollars, he was not ent'tled to costs. § 5191, Comp. Laws; 3 Wait’s Prac. 465, 468.

D. Haney, Judge. The material facts are stated in the opinion. Plaintiff: seeks to recover by establishing an involuntary trust for its benefit in the property of defendant’. The complaint does not state facts sufficient to establish such a trust. §§ 3920, 3933, Comp. Laws; 2 Wait’s Prac. 290, 392; Bliss on Code Plead. §§ 202, 203.

<p>Error to Stanley county court. Hon. George P. Waldron, Judge.</p> <p>The facts so far as material are fully stated in the opinion.</p>

Hon. Frank R. Aikens, Judge. Action upon a promissory note made by one of the defendants to plaintiff and guarantied by the other defendant. Defense that the note was not given for any indebtedness but as collateral for a balance due on settlement. Verdict and judgment for plaintiff. Defendant appeals. The material facts are fully stated in the opinion.

Hon. A. G. Steiner, Judge. Information against tbe defendants for violating tbe intox icating liquor laws. Verdict of guilty rendered and a sentence of both fine and imprisonment made. They bring error to this court. The facts are fully stated in the opinion.

JoHfif E. Carland, Judge, Action of claim and delivery against the defendant as sheriff of McCook county, to recover possession of certain per-, sonal property levied upon and taken under a warrant of attachment. Verdict and judgment for plaintiff. Defendant ap peals. The facts are stated in the opinion.

Hon. A. W. Campbell, Judge. The material facts and the nature of the proceedings are fully stated in the opinion. The applicant as an honorably discharged soldier was entitled to the appointment, and it was the duty of respondents to appoint him. § 1, Chap. 205, Laws of 1887; Bonv. Law-Diet. 459; Parker v. United States, 1 Pet. 293. Mandamus was appellant’s proper remedy.

Hon. Frank; R. Aikens, Judge. Application by defendant for a removal of this cause from the state circuit court to the circuit court of the United States. Denied. ' Defendant apx>eals. The facts so far as material are stated in the opinion. Defendant’s axoplication to the state court for a continuance 'was not a waiver of its right to file a petition and bond for removal. Its right to a removal existed down to the time of the final disposition of the case by trial.

Hon. Bartlett Tripp, Judge. The facts so far as material are stated in the opinion. The machinery and fixtures insured, together with the building, constituted a part of the real estate upon which they were situated. McNally v. Connolly, 11 Pac. 320; Morris’ Appeal, 88 Pa. St. 368; Loan Co. v. Machine Works, 29 N. W. 349; Bliss v. Whitney. 9 Allen 114; Eowand v. Anderson, 6 Pac. 255; Deane v. Hutchinson, 2 At.

<p>Appeal from district and circuit courts, Jerauld county.</p> <p>Motion to dismiss appeal on the ground of duplicity. Allowed.</p>

Hon. J. O. Andrews, Judge. The facts and nature of the proceedings are fully stated in the opinion. The names of the material witnesses only and those relied upon to sustain the indictment, need be inserted at the foot of the indictment under the provisions of Section 7236, Comp. Laws.

Hon. Frank R. Aikens, Judge. The facts and nature of the proceedings are fully stated in the opinion. The objections presented by the affidavits are mere irregularities, in no sense jurisdictional. They were waived by the stipulation, also by appearing and submitting to the jurisdiction and trying the case. Hughes v. Beggs, 16 N. E. 817.

Hon. James Spencer, Judge. The material facts and the nature of the .proceedings are stated in the opinion. The defendant Donaldson having surreptitiously and by fraud acquired a knowledge of plaintiff’s trade secrets should be restrained from using or disclosing them. Tipping v. Clarke, 2 Hare. 383; 2 Story’s Eq. Jur., § 952; Morrison v. Moat, 9 Hare 241;.Peabody v. Norfolk, 98 Mass. 452; High, on Inj., § 437.

Appeal irom district court Lawrence county. Hon. Charles M. Thomas, Judge. Action for services as attorneys and as agents for making sale of and finding a purchaser of certain property of defendants. Verdict and judgment for plaintiffs. Defendants appeal from the judgment, also from an order denying a new trial and from an order refusing to discharge an attachment made in the case. The judgment affirmed, the order continuing the attachment reversed.

Hon. D. Haney, Judge. The facts and the nature of the proceedings are fully set forth in the opinion. The variance between the summons and the complaint was fatal, and the court erred in overruling appellant’s motion to strike the complaint from the files. Tuttle v. Smith, 14 How.

Hon. Frank R. Aikens, Judge. Order bo show cause why a judgment entered upon a default should not be vacated and set aside and an execution and levy thereunder set aside and the defendant have leave to anaswer in the action. The order to show cause was discharged and the relief asked for by defendant denied. He brings an appeal to this court. The material facts are stated in the opinion.

Hon. A. W. Campbell, Judge. Action to foreclose a mortgage upon certain real property. The defendant, Spink county, interposed a general demurrer to the complaint for insufficient facts, which demurrer was sustained. Plaintiff appeals. The material facts are stated in the opinion. Taxes are not a lien upon real estate unless made so by express legislative authority. Cooley on Taxation, pp. 305, 201; Hiñe v. Commissioners, 19 Wall. 655.

Hon. H. G-. Fuller, Judge. Action for the recovery of damages for breach of contract. Verdict and judgment for defendants. Plaintiff appeals. The making of the written contract rendered incompetent all evidence as to any oral contracts accompanying it. § 3545, Comp.

Hon. John W. Nowlin, Judge. Action by plaintiff to recover for services rendered- as sheriff to defendants under a warrant of attachment itssued out of the circuit court in ah action instituted by defendants. Verdict and judgment for plaintiff. Defendants appeal. The facts are stated in the opinion. The complaint in this case shows on its face that the right to recover is in a third person who is not a party to the action.

Hon. Frank R. Aikens, Judge. Action to set aside and cancel a judgment and to annul and set aside a sheriff’s deed, and for general equitable relief. Judgment for plaintiff. Defendant appeals. The facts and nature of the proceedings are fully stated in the opinion. Upon the question of what elements constitute an equitable estoppel, appellant’s counsel cited: Southern Development Co. v. Silva, 125 U. S. 247; Bigelow Est. p. 552; Wright’s Appeal, 99 Pa..

Hon. Frank R. Aikens, Judge. Action upon certain policies of fire insurance. . Judgment for plaintiff. Defendant appeals. The material facts are fully stated in the opinion. The agreements in the policies sued upon “That any omission to make known every fact material to the risk or any misrepresentation whatever should render the policies void,” should be construed and enfored as other private contracts. Pindar v. Ins. Co. 47 N. Y. 119; Lee v. Ins. Co. 3 Gray 592.

<p>Error to Lincoln county court. Hon. A. G-. Steiner, Judge.</p> <p>The facts so far as material are fully stated in the opinion.</p>

Hon. A. W. Campbell, Judge. Order to show cause upon the plaintiff why a notice of contest of an election should not be set aside because not served within twenty days after the canvass of the votes. Upon the hearing of the order to show cause the lower court made an order setting aside the notice of contest. From that order plaintiff appeals. Reversed. Kellam, J., dissenting. The facts so far as material are fully stated in the opinion.

Hon. Bartlett Tripp, Judge. Action upon three certain warrants drawn in favor of one Calhoun by the school board of District No. 6, Davison county, which district was succeeded by the City of Mitchell, the defendant. Judgment for plaintiff. Defendant appeals. Affirmed. Corson,, P. J., dissenting. The facts are stated in the opinion. The school district had no authority to incur an indebtedness in excess of one per cent, of the taxable property therein.

Action for damages to personal property alleged to have been caused by the negligence of defendant. Verdict and judgment for plaintiff. Defendant appeals. Affirmed. Bennett, J., dissenting. Negligence is not to be presumed from the bare occurrence of an accident but must be proved. As there is no evidence showing negligence on the part of defendants the court erred in refusing to direct a verdict in their favor.

Hon. Frank R. Aikens, Judge. Opinion upon rehearing. The court erred in holding that because the chattel mortgage lease in controversy was prima facie fraudulent as to a portion of the property because permission was given to the mortgagor to sell such property, that it was also void as to the furniture and fixtures that were not included in the permission to sell; that because fraudulent in part, it was fraudulent in toto. Jones on Chat.

Hon. Frank R. Aikens, Judge. Action by plaintiff to have declared a conveyance of real estate to the defendant, Annie Tosini, void as against him as a creditor of the defendant Joseph Tosini and that the said property be declared subject to certain judgment liens. Judgment for plaintiff. Defendant appeals. The facts are fully stated in the opinion.

Hon. Charles M. Thomas, Judge. Action upon the official bond of Bentley B. Benedict, probate judge of Pennington county. Verdict and judg ment for plaintiff. Defendant appeals. The facts are stated in the opinion. The instrument in suit is not a bond and will not support an action because not executed by the principal.