Volume 14 — South Dakota Reports

Hon. Julian Bennett, Judge Action by M. R. Baskerville against Gaar, Scott & Co. From a judgment in favor of plaintiff, defendant appeals. The facts are stated in the opinion. The normal meaning of language in a written instrument can no more be changed by construction, than it can be contradicted directly, by an avowed inconsistent argument on the strength of the talk of the parties at the time the instrument was signed.

Hon. Levi McGeü, Judge. Injunction by James Halley against John T. Ingersol, as sheriff of Pennington county, S. D., to restrain the sale of certain dioses in action. From a judgment for plaintiff defendant appeals. The facts are stated in the opinion. An injunction will not be granted when there is an adequate remedy at law.

Hon. Joseph W. Jones, Judge. Acton by Rars Rasmussen and Fredereidca Rasmussen, husband and wife, against John R. Reedy, to set aside and cancel a deed. From a judgment for plaintiffs, and from an order denying a motion for a new trial, defendant appeals. The facts are stated in the opinion. The findings of a court upon a question of fact are now treated as equal)’ conclusive with the verdict of a jury. Randall v. Burke, 4 S. D. 253; Black Hills Mer.

Hon. Joseph B. Moore, Judge. Bill of James Beatty against John F. Smith, as sheriff of Meade county, and others, to restrain the sale of certain property under execution. From an order dissolving a temporary injunction, plaintiff appeals. The facts are stated in the opinion. Buildings resting upon mud sills or frame structures directly upon the soil are fixtures thereto. Miller v. Waddington, 25 Pac. 688.

Hon Levi McGEE, Judge. - Action by George A. Sutton and others against the Consolidated Apex Mining Company and others to foreclose certain mortgages. From a judgment giving certain liens priority over the mortgages, plaintiffs appeal. The facts are stated in the opinion.

Hon. Frank B. Smith, Judge. Action by James H. Woods against A. C. Pollard to recover on a note. From an order vacating an order for publication, the summons, judgment and proceedings in the action, plaintiff appeals, and defendant presents a cross appeal. The facts are stated in the opinion.

Hon. Joseph W. Jones, Judge. Action on a certificate of deposit by Catherine Tobin against Charles E. McKinney, as surviving partner of the firm of McKinney & Scougal. From a judgment on a directed verdict in favor of defendant, plaintiff appeals.

Hon. Julian Brnnrtt, judge. Action by William D. Hale, as receiver of the American Savings & Hoan Association, against James T. Tidball and others. From a judgment in favor of the defendants, plaintiff appeals.

court, Kingsbury county. Hon. Julian Bennett, Judge. Action by' Ella J. Bush against Henry J. Froelich and others to recover a money judgment and a decree declaring the same a first lien on land purchased by defendant the Valley Band & Irrigation Company at a mortgage foreclosure sale, and for an injunction restraining the delivery of tax deeds to such lands to the defendant irrigation company, and that the land be sold to satisfy plaintiff’s claim.

Hon. Julian Be)nnLTT, Judge. Action by Josiah Boucher against the Clark Publishing Company for libel. From a judgment for plaintiff, defendant appeals. The printed article in question was not libelous per se and as no special damages were alleged, or from appellant’s objection to the introduction of any evidence under the complaint and its motion to direct a verdict should have been sanctioned. 13 Am. and Eng.

Hon. Boring E. GaEEy, Judge. Judgment reversed on re-hearing. William D. Yokum was convicted of murder and by writ of error brought the case to this court.' The case was first determined by this court in an opinion reported in ii S. D. 544, 79 N. W. 835, in which opinion the judgment of the trial court was affirmed. A re-hearing was subsequently granted. This opinion is' upon the re-hearing.

Hon. L,evi McGee, Judge. Action by Thomas V. Garlock against R. W. Calkins and others. A transcript of a judgment of a justice of the peace in favor of plaintiff was docketed in the circuit court, and from an order vacating the judgment, and setting the action for trial de novo, defendants appeal.

Ho.n. Roring E. Garry, Judge. Action of the State of South Dakota against Thomas H. Ruth to recover for failure to perform certain official duties. From a judgment in favor of the state for nominal damages, it appeals.

<p>1. Where defendant in libel pleaded that the alleged libelous matter was true in substance and in fact, it was a sufficient plea of justification, without repeating in his answer the parts of the defamatory articles set out in the complaint, and alleging the truth of same.</p> <p>2. Comp. Laws, § 4930, provides that in actions for libel defendant may plead both in justification and in mitigation of damages, and may give evidence of mitigating circumstances whether he prove the justification or not. Held, that a refusal to strike out parts of an answer showing that the libelous publication was made in good faith, on probable cause, and without malice, concerning a candidate for public office, was proper, since such facts could be shown in mitigation of damages, irrespective of the question of justification.</p> <p>3. In the absence of an appeal from an order denying a new trial, the question whether the verdict is supported by the evidence.will not be considered on appeal from the judgment.</p> <p>4. Const. Art. 6, § 5, provides that in libel cases the jury shall determine the law and the facts, under the direction of the court. Held, in an action for libel, that where the evidence, including the alleged libel, was absent from the record, an instruction submitting to the jury the question whether the publication charged plaintiff with being prosecuted criminally, for embezzlement would be presumed proper, if it would be proper under any provable state of facts under the pleadings.</p> <p>5. In an action for libel — the alleged libel being a publication in defendant’s newspaper of charges that plaintiff had been guilty of improper conduct when city treasurer, at a time when he was candidate for mayor — it was a proper instruction that the question of the fitness of a candidate for office was a subject for the freest scrutiny; that much latitude was allowed in publication of information to voters of charges affecting the candidate’s fitness; that such publication was not actionable, without proof of express malice, though unjust and too severe; but that an attack on the character of a candidate, falsely charging him with a crime not affecting his fitness for the office for which he was running, was not privileged, and malice would be implied from the publication, since plaintiff’s conduct as treasurer might properly he shown to the voters as affecting his fitness to he mayor.</p> <p>6. In an action for lihel in publishing in defendant’s newspaper charges against plaintiff, he being then a candidate for mayor, where the answer denied express malice, the burden of proof was on the plaintiff to show, by preponderance of evidence, express malice by defendant, since, the plaintiff being a candidate for office, the publication was presumptively privileged, under the pleadings, and malice would not be presumed from the pubiication.</p> <p>7. Where the abstract shows requested instructions, some of which are marked “Refused,” and the others do not appear to have been refused or excepted to, the appellate court will assume that the instructions not refused or excepted to were given by the trial court.</p>

<p>1. Comp. Laws, § 3905, provides that, if a common carrier accepts freight for a place beyond his line, unless he stipulates otherwise, he must deliver it at the end of his line to some other competent carrier, and that his liability shall cease on making such delivery. Held, that an instruction in an action for a loss in shipment, which imposed on the receiving carrier a continued liability beyond his own line, and covering the negligence of the connecting carrier, was erroneous, since under the statute the liability of the receiving carrier ceased on delivery of the goods to the connecting carrier.</p> <p>2. Where plaintiff, in an action against a carrier for a loss sustained in shipment, did not claim that a through contract was entered into, the question whether the amount collected by defendant’s local agent to apply on prepayment of freight charges was sufficient to cover the entire amount collectible, including the charges of connecting lines, was immaterial, since a local agent, as such, has no authority to contract for shipments over connecting lines, and none can be inferred from the fact that he collected freight for the entire distance.</p>

Hon..E. G. Smith, Judge. Petition of the American State Bank to require Peter Seydel, as administrator of the estate of Peter Seydel, deceased, to pay taxes on certain property. From an order of the circuit court denying a rehearing of a decision reversing a decision of the county court in favor of the petitioner, the latter appeals. The facts are stated in the opinion.

<p>Sess. Laws 1897, Cbap. 72, imposing an annual tax on parties without the the state who have wholesale establishments for the sale of liquors in this state, to be paid in every precinct, township, or city where they have such wholesale establishments, and providing that manufacturers of such liquors within the state shall pay a certain manufacturer’s license, and be exempt from the payment'of the wholesale tax, is unconstitutional, as in conflict with Const. U. S. Art. 1, § 8, giving congress power to regulate commerce among the states.</p>

Hon. Joseph W. Jones, Judge. Action by Sarah Richardson against Thor S. Dybedahl and others to recover damages for an alleged wrongful and unlawful arrest and imprisonment. From a judgment in favor of plaintiff, defendants appeal. It was error for the trial court to allow plaintiff to make a' collateral attack on the highway laid out by the county commissioners on the line of the Walts survey. Dana v. Comstock 32 At. 757; Elliott on Roads and Streets, 285.

<p>Mandamus was issed to a city board of education directing it to admit a pupil whom it had suspended for failure to comply with its order requiring vaccination, because there was no smallpox in the city, and the order was without justification as a sanitary measure. Subsequently such pupil was admitted to the school in compliance with the writ, and on the day he was admitted the board, being officially advised by the state and county health boards that smallpox was then prevalent in the vicinity of the city, again suspended such pupil until he presented proof of vaccination. Held, that the subsequent suspension did not subject the board to contempt, as in violation of such writ, since on such emergency, arising after the pupil’s readmittance, it was justified in suspending him during the continuance of the danger.</p>

<p>Appeal from circuit court, Hamlin county. Hon. Julian Bennett, Judge.</p> <p>Action by S. F. Spencer against Albert Forcht and others.. Original application by plaintiff to prove certain exceptions.</p>

Hon. Frank B. Smith, Judge. G. B. Bindley was convicted of grand larceny in Marshall county.

<p>' Tlie purchaser of a county warrant drawn on the general fund “not otherwise appropriated,” and registered for payment under Comp.. Laws, .§§ 1671-16 ! 9, declaring warrants shall be paid only in the order of their registration, could not maintain an action on the warrant; there being ho money in the'general fund not otherwise appropriated, and other prior registered warrants outstanding, and it appearing that sufficient time had npt elapsed to permit the accumulation. .of sufficient money to pay plaintiff’s warrant in the order of registration.</p>

<p>Error to circuit court, Hamlin county. HoN. Julian Bennett, Judge.</p> <p>Thomas Hall was convicted of murder and he brings error.</p>

Hon. Loring E. GaeEy, Judge. Action by the state against Emma Kemmerer. From a judgment for defendant, plaintiff appeals. The use in a granting clause of a deed of conveyance of the words “convey, grant, remise, release and quitclaim,” passes to the grantor a fee simple title and any subsequent title acquired by the grantor enures to the benefit of the grantee. §§ 3249, 3254, Comp. Laws; 9 Am. and Eng.

<p>Appeal from circuit court, Turner county. Hon. E. G. Smith, Judge.</p> <p>Action for an accounting by W. A- Houts against Neis M. Hoyne. From a judgment for defendant, plaintiff appeals.</p>

Hon. A. W. Campbell, Judge. Action by T. W. Child against J. E. McClosky. From a judgment for defendant, plaintiff appeals. The facts are stated in the opinion. The burden of proof is upon the defendant who pleads res judicata because of a former judgment, to set up that judgment and to show what was determined by it, and what is common to the subsequent action, and the proof must be clear, certain and convincing. 21 A. & E. Enc. of R. 202.

Hon. E. G. Smith, Judge. Action in justice court by R. P. McLaughlin against Lee Michel and another. From an order of the circuit court dismissing an appeal from a judgment for plaintiff, defendants appeal. The facts are stated in the opinion.

Hon. F. G. Smith, Judge. Action by the Citizen’s Bank of Parker against Frank W. Shaw and others. From a judgment in favor of defendants, plaintiff appeals. The facts are stated in the opinion.

Frank B. Smith, Judge. Mandamus by Thomas W. Taubman against the board of commissioners of Aurora county. From a judgment for defendant, plaintiff appeals. The board of county commissioners in refusing to designate appellant’s newspaper as one of the official papers of the county violated a plain statutory duty, and did so in utter defiance of the law.' Short v. White Lake, 8 S. D. 148.

Errorto circuit court, Codington County, Hon. Julian Bennett, Judge. Michael Andre was convicted of murder, and he brings error. The facts are stated in the opinion. When it appears that intoxicating liquors have been introduced into the jury room, there is a presumption that the jury were improperly influenced thereby, and a new trial should be granted.

Action by Thomas H. Brown and another against the state to recover for goods sold and delivered. Judgment in favor of plaintiffs.

<p>Appeal from circuit court, Union county, Hon. Joseph W. Jones, Judge.</p> <p>Action by John Walters against Charles Bernard and others. From a judgment for defendants, plaintiff appeals.</p>

Joseph W. Jones, Judge. Action by H. A. Ramsdell against Hartwell Duxberry. From a judgment for plaintiff, defendant appeals. The facts are stated in the opinion. Parties to an action in justice court.cannot on appeal to the circuit court , by stipulation waive notice of appeal and the giving of the undertaking required by law. Brown v. Brown, 12 S. D. 380, 81 N. W. 627; Frpenbach v. Railway Co., 11 S. D. 201.

<p>1. Where adjacent territory has been annexed to a city for school purposes by its board of education, under Laws 1887, Chap. 47, § 122, authorizing the same when a majority of the electors of the territory make application therefor, it will be presumed, in the absence of proof to the contrary, that the board’s finding to the effect that the application was made by a majority of the electors within the territory was based on competent proof.</p> <p>2. Under Laws 1887, Chap. 47, §§ 20, 32, 33, giving county superintendents general supervision of schools, except those of independent districts, with authority to entertain appeals from decisions of school township boards, a county superintendent has no power to review the action ol the school board of an independent school district in. annexing adja- • cent territory as provided by Section 122, authorizing such boards to annex adjacent territory on the application of a majority of the electors in the territory.</p> <p>3. The fact that the extreme boundary of contiguous territory is a fraction over two miles from the limits of an independent school district does not deprive its school board of jurisdiction to annex such territory for school purposes, under the authority conferred by Laws 1887, Chap. 47, § 122.</p> <p>4. The fact that officers of an independent school district have acquiesced for eight years in a void decision of the county superintendent, holding that its school board had no power to annex adjacent territory under laws 1887, Chap. 47, § 122, authorizing the same to be done, does not estop the district from claiming under the order of annexation made by the board.</p>

Joseph W. Jones, Judge. Action for an injunction by C. B. Kennedy against D. C. Hull and another, partners as Hull & Co., and others. Judgment for defendants, and plaintiff appeals. The instrument in controversy is not a chattel mortgage and is not subject to the provisions of chapter 95 of the laws of 1897, § § 4728, 4729, 4731, 4732, 4346, 4348, Comp. Laws. Suth. Stat.

<p>1. Under Comp. Laws, § 2529, declaring’ slander to be a false and unprivileged publication; and Section 2530, declaring a privileged communication to be one, without malice, to a person interested therein, by one who is also interested — where, in slander, the plea was that the statement of defendant that plaintiff was a thief was made at a time when plaintiff was a candidate for the office of alderman, and defendant and those to whom the statement was made were electors and taxpayers, it was error to charge that the only defense to a false statement to the effect that another had committed a crime would be proof of the truth of the charges made, and to disregard the theory of privileged communication.</p> <p>2. Under Comp. Laws, §§ 2529, 2530, where, in slander, the plea was that the statement of defendant that plaintiff was a thief was privileged,, in that at the time it was made plaintiff was a candidate for the office of alderman, and that defendant and those to whom the statements were made were electors and taxpayers, and at the time the statements wore made plaintiff believed them to be true, it was error to charge that by the pleading it was admitted that the charge was made, and that it must be taken to have been false, and that plaintiff was entitled to a verdict for some amount, since the instruction omitted the question of privilege. ••</p> <p>3. The instruction was erroneous, in that it assumed that defendant had admitted the falsity of the statement.</p> <p>4. Const. Art. G, § 5, declares that in all trials for libel the .iury shall have the right to determine the facts and the law under the direction of the court. Held, that where, in an action for slander, the plea was that the statement was privileged, it "was error for the court to assume to decide that the communication was not privileged; its duty being merely to direct the jury hy stating to them what constitutes a privileged communication.</p> <p>5. Under Comp. Laws, §§ 2529, 2530, if a defendant in slander, with proper motives and without malice, stated to certain electors and taxpayers of a city, he himself being one of the electors and taxpayers, that plaintiff was an unfit person to be elected an alderman, for the reason that he had taken the cattle of defendant, and defendant honestly believed, and had reason to believe, that defendant had stolen his cat-tie he was justified in making the statement.</p>

Frank B. Smith, Judge. Action upon an undertaking for attachment by James Brown against C. D. Tidrick. Judgment for plaintiff. Defendant appeals. The facts are stated in the opinion. A surety cannot be held beyond the express terms of his contract. Miller v. Stewart, 9 Wheaton 680; Comp. Daws., §4299; Curtin v. Atkinson,' 54 N. W. 133.

Hon. Joseph W. Jones, Judge. Action by Anna A. Loiseau against Bortinus P. Threlstad and another to recover damages for an alleged breach of covenants against incumbrances. From a judgment for plaintiff for nominal damages, she appeals.

<p>Under the provision of Rev. St. U. S. §2296, relative to homestead entries, that “no lands acquired under the provisions of this chapter shall in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor,” the person making the entry having conveyed his interest in the land to his wife, and it having subsequently come to him through succession to her estate, on her death, all before issuance of the patent, it is, not liable for his debts contracted while she owned it.</p> <p>Fuller, P. J., dissenting.</p>

<p>Appeal from circuit court, Hamlin county, PIon. Julian Bennett, Judge.</p> <p>Action by Thomas White against Joseph Amrhien. Judgment for plaintiff. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

n. F rank B. Smiti-i, Judge. Action by Martin Ausland against John Parker. Judgment for defendant. Plaintiff appeals. The facts are stated in the opinion. Allowing gratuitous attacks on the character of a party by means of testimony which has no legal bearing on the question involved, and which could have no other object than the disparagement of the party, is ground for a new trial. Rickabus v. Gott, 16 N. W. 384.

<p>Appeal from circuit court, McCook county. Hon. Joseph W. Jones, Judge.</p> <p>Action by the Commercial State Bank against the Interstate Elevator Company. From a judgment in favor of defendant, plaintiff appeals.</p> <p>The facts are stated in the opinion.</p> <p>The description of the property in the mortgage is sufficiently definite to put a third person, having no notice, upon inquiry. First Nat. Bk. v. Koechel 8 S. D., 391, 66 N. W. 933; Advance Thresher Co. v. Schmidt, 9 S. D. 490, 70 N. W. 646; Potts v. Newell, 22 Minn.563; Eelker v. Grant, 10 S. D. 141, 72 N. W. 81; Wells v. Wilcox 68 Iowa, 708.</p> <p>It is not alleged in the complaint in this action nor is it anywhere shown by the record, that a copy of the instrument purporting to be a chattel mortgage, was ever in fact delivered to the mortgagor, or that the law in this state regarding chattel mortgages and the execution and deliverey of same was ever in fact complied with. Section 1 of Chapter 95, Raws of 1897.</p> <p>The instrument in this case does not attempt to cover crops on any particular land. The mortgage itself is the only evidence as to what the mortgage covers. Citizens Bank v. Rhutasel, 67 la. 316, 25 N. W. Rep. 261.</p> <p>It is a general rule of the common law that growing crops form a part of the real estate to which they are' attached. American and English Enc. of Raw, Vol. 8, .page 303, (2nd Ed.), and in the case of a sale, cannot be reserved by parol. Ibid, page 306. Coughran v. Sundback, 9 S. D. 483, 70 N. W. 644; Waterwood v. Elevator Co., 48 Minn. 404, 51 N. W. 378.</p>

Original quo warranto procedings by the State of South Dakota, bv John L. Pyle, attorney general, on the relation of J. D. Lavin and another, against J. H. Bacon and another. The facts are stated in the opinion. At the common law the attorney general had the right, ex-oíñcio, to sue out a writ of quo waranto, or to bring an, information in the nature of a quo waranto on behalf of the sovereign without leave of court, it being a writ of right for the sovereign. 17 Ency.

<p>Appeal from Minnehaha county court, Hon. William A. Wilkes, Judge.</p> <p>Action by Wyman, Partridge & Co., against J. W. Werner. From a judgment in favor of plaintiffs, defendant appeals.</p> <p>The facts are stated in the opinion.</p>

Joseph B. Moore, Judge. This case was first decided by this court in an opinion reported in 12 S. D-. 25, 8o N. W. 140, in which opinion the decision of the trial court, in fayor of plaintiff, was affirmed. A rehearing was subsequently granted. This opinion is upon the rehearing.

J. W. Jones, Judge. Action by N. M. Littlejohn against the County Line Creamery Company. From a judgment in favor of the defendant, and from an order denying a new trial, plaintiff appeals. The facts are stated in the opinion.

A. W. Campbell, Judge. Philomen Dunning and Charles Longstaff were convicted of selling intoxicating liquors without a license, and they bring error. The facts are stated in the opinion.

Frank B. Smith, Judge. Action by William H. Hall against Fred S. Fisher and others. From a judgment in favor of plaintiff, defendant Northwestern Loan and Banking Company, appeals. The facts are stated in the opinion.

<p>Since every defense provided by tbe legislature is meritorious, it was not an abuse of discretion to allow tbe statute of limitations to be set up in an amended answer.</p>

E. G. Smith, Judge. Action by George W. Roberts against Kendall T. Parker and another to foreclose a mortgage. From an order appointing a receiver to take charge of the property, defendants appfeal. The facts are stated in the opinion. The court will not appoint a receiver when the complaint is verified upon information and belief. Grandin v. LaBar, 50 N. W. 150; High on Rec. (2d ed.), sec. 1569, 20 Am. & Eng. Ene.

Hon Joseph W. Jones, Judge Action by the Plano Manufacturing company against John R. Millage. From a judgment for defendant, plaintiff appeals. The facts are stated in the opinion.

Hon. E. G. Smith, Judge. Action by John Wampol against John T. Kountz and wife. From a judgment for plaintiff, defendants appeal. The facts are stated in the opinion. A party who insists upon the act of another as working an estoppel must show that he acted upon the same, and that it formed the inducement which led him at the time to do what he did. Malone on real property trials, 379.

<p>The additional facts are stated in the opinion.</p> <p>Appeal from circuit court Minnehaha county. Hon. Joseph W. Jones, Judge.</p> <p>This case was first decided by this court in an opinion reported in 13 S. D. 132, 82 N. W. 404 in which opinion the judgment of the lower court in favor of the defendant Emma Roberts was reversed A rehearing was subsequently granted, this opinion is upon the rehearing.</p>

<p>1. Since Comp. Laws, § 610, authorizing the state’s attorney to appeal to the circiut court from the action of the county commissioners on claims against the county when seven taxpayers of the county demand it does not require that such demand shall recite that those who sign it are taxpayers, it will be presumed, in the absence of proof to the contrary that persons signing such demand are taxpayers of the county.</p> <p>2. Where an appeal is taken by a state’s attorney under Comp. Laws, § 610, the cause should be docketed in the circuit court in the name of the claimant against the county, and not in the name of the county against the commissioners.</p> <p>3. Where an appeal is taken by a state’s attorney under Comp. Laws, § 610, notice of such appeal must be served on the claimant, in order to give the court jurisdiction, though section 611, requiring such notice to be served on the county commissioners, does not expressly require it.</p>

Hon. F. G. Smith, Judge Action by Lottie B. Sixta and others against Minnie Heiser, as adaministratrix of the estate of Fred Heiser, deceased. From a judgment in favor of plaintiffs, defendant appeals. The facts are stated in the opinion.

Julian Bennett, Judge. Action by S. H. Elrod, as administrator of the estate of Mary A. Ashton, against Perry J. Ashton, to recover real estate. A judgment in favor of'the plaintiff was affirmed on appeal, n S. D. 6to, 79 N. W. iooi. On rehearing.

The additional facts are stated in the opinion. Appeal from circuit court, Eawrence county, Hon. A. J. Plowman, Judge. This case was first decided by this court in an opinion reported in 11 S. D. 124, 75 N. W. 900. In that opinion the judgment of the trial court in favor of the defendants was affirmed. A rehearing was subsequently granted. This opinion is upon the rehearing.

A. W. Campb®i,l, Judge. Action by Spencer W. Narregang against Brown county and John A. Fylpaa, as county treasurer, and another. From a judgment in favor of defendants, and from an order denying a new trial, plaintiff appeals. The facts are stated in the opinion. Where the validity of a law is challenged it is the duty of the court to determine the question by an inspection of the journals of the legislature.

Hon. L,evi McGEE, Judge. Action by John Hedlun against the Holy Terror Mining Company. Application by plaintiff after appeal by defendant for a return of the record to the trial court to correct the bill of exceptions.

<p>Appeal from circuit court Lawrence county. Ho.n Joseph B. Moore, Judge.</p> <p>Action by John Regan against Thomas Whittaker and others. From a judgment in favor of the defendants, the plaintiff appeals.</p> <p>The same rules of law apply to mining property that do to other real estate, and continued uninterrupted possession will raise a presumption of a sebsequent valid location. Lutz et al v. Victor 17 Cal. 271; Hawx Hurst v. Lender, 28 Cal. 331; Hess v. Widner, 30 Cal. 349-</p> <p>While the statute of limitations does not run against the government its effects upon the rights of claimants is recognized by law. Harris v. Equator, Etc. Co., 8 Fed. 863; Glacier Co. v. Willis, 127 Hams V. Equator Etc., Co., 8 Fed! 863; Glacier Co. v. Willis, 127 U. S. 471; Mining Co. v. Bullion Min. Co. 3 Sawyer, 634; Lutz v Victor, 17 Col. 271; Belk v. Meagher, 104 U. S. 284; Guillan v. Dónnellan, 115 U. S. 45.</p> <p>The record contains no denial that Regan and his predecessors in interest went into possession of the property in April, 1877, and have continued to hold the same as a mining claim ever since. A valid location will be presumed. Cheesmen v. Hart, 42 Fed. 98.</p> <p>It has been the settled policy of the government in dealing with grants of public lands, to hold that where there has been a valid location, occupation or entry by some one of the modes of acquiring title to public land to hold that such location or occupation, especially of mineral lands, is in effect a grant. Del Monte M. & M. Co. v. Last Chance M. Co., 171 U. S. 256.</p> <p>A location in effect segregates the particular tract so occupied or located from the public domain, and upon abandonment the reversion is to the United States, and not to the claimant, of a subsequent general grant. Wilson v. Jackson, 13 Pet. 478; Burlington R. R. Co. v. Abink, 14 Neb. 95; Leavenworth & G. R. R. Co. v. U. S., 92 U. S. 733; Newhall v. Sangar, 92 U. S. 761; Ryan v. R. R. Co., 113 U. S. 629; Min. Co. v. Con. M. Co., 102 U S. 167; Bardeau v. So. Pac. R. R. Co., 9 Copps L » . 81.</p> <p>A claim is a “known” mineral possession. Montel v. Noyes, 127 U. S. 348. Mininig ground may be transferred by the surrender of possession. Union etc. Co. v. Taylor, 100 U. S. 37.</p> <p>The issuance of a patent to the townsite did not foreclose inquiry as to the mineral character of the land. A patent may issue for a lode claim within the area of a townsite. Pacific Slope Lode v. Butte, 25 L. D. 518; Smoke House Lode, 6 Mont. 396; King v. Thomas, 6 Mont. 409; Silver Bow M. & M. Co. vs. Clark, 5 Mont. 478; Pacific Slope Lode vs. Butte Townsite, 25 L. D. 518.</p> <p>See Hulings v. Ward Townsite, 29, L- D. 21; Davis v. Weibold, 139 U. S. 507; Donner v. Richards, 151 U. S. 568.</p> <p>The deed to Whittaker by the Townsite trustee of 10.32 acres was in conflict with the authority conferred by the state and national townsite laws and the deed was void. Treadway v. Wilder, 9 Nev. 67; Cathcart v. Kortum, 11 Minn. 45; Setter v. Avery, 15 Kan. 157; Treadway v. Wilder, 9 Nev. 67; Edwards v. Tracey, 2 Mont. 49; Hall v. Ashby, 2 Mont. 489.</p> <p>This court cannot review the sufficiency of the evidence to sustain the findings complained of because no valid exception was taken or saved within the notice of intention to move for a new trial, nor the bill of exceptions set out the pretensions wherein it is claimed the evidence is insufficient, and neither the abstract nor the bill of exceptions contain all the evidence offered. Comp. Laws, Sec. 5081; Comp. Laws, Sec. 5090; Billingsley v. Hiles, 6 S. D. 445; Johnson Land Co. v. Case, 82 N. W. 90; Baumer v. French, 79 N. W. 340; Pickert v. Rugg, 46 N. W. 446; State v. Chapman, 1 S. D. 425; Chandler v. Kennedy, 8 S. D. 60; Foote v. Petrie, 8 S. D. 19; Henry v. Draw, 6 Dak. 78; Hostetter v. Brooks, 4 N. D. 357.</p> <p>The location certificate of the Gallagher lode made no reference whatever to notations or permanent monuments and was wholly inadequate to identify the claim. It was absolutely void. U. S. Rev. St., Sec. 2324; Comp. Laws, Sec. 2000; Barringer and Adams Law of Mines, p. 242; Faxan v. Bernard, 4 Fed. 702; Gilpin Co. v. Drake, 9 Pac. 787; Drummond v. Lang, 13 Pac. 543; Darger v. LeSieur, 30 Pac. 363; Tombstone Townsite cases, 15 Pac., 26.</p> <p>The Phoenix location was void because there was no discovery, the alleged discover)' being upon patented ground, Lindley on Mines, § 3371 Barringer & Adams on Mines, 216. Tthe location certificate was void the description being inadequate. Rights under a relocation date from the date of the relocation only. Barranger & Adams on Mines, 307; Cheesman v. Sharron, 40 Fed. 787; Tombstone Townsite cases, 15 Pac. 26.</p>

Boring E. Garry, Judge.' Mandamus by Samuel M. Howard against Michael Burns and others, to compel his recognition as state’s attorney of Potter county, and the payment of his salary. From a judgment in favor of .defendants, plaintiff appeals.

<p>Original action by the state of South Dakota, on relation of J. D. Lavin and W. E. Tipton, against E. H. Bacon and H. P. Smith. Judgment for plaintiff and relators.</p> <p>The facts are stated in the opinion.</p> <p>It is clear from the provisions of the constitution and statute of the state that so far as the length of the term of an office is concerned, either for a full term or to fill a vacancy, the matter is left wholly in the discretion of the legislature, and it is clear that the legislative power is supreme and omnipotent so far as fixing the term of the offices, providing how long a vacancy appointee shall hold, the compensation of the commissioners, and generally everything connected with their offices and the persons who shall fill them. Chap. 65, Session L. 1901; Const, sec. 2, art. 14; Bx parte Lusk, 82 Ala. 519; Robinson v. White, 26 Ark.; People v. Brainard, 27 Cal. 470; Bulger v. Merrill, 45 Cal. 553; City Council v. Sweeney, 44 Ga. 463; Crook v. People, 106 111. 237; Coffin v. State, 7 Ind. 157; Bryan v. Cattell, 15 Iowa 538; Prince v. Skillen, 71 Maine, 361; Taft v. Adams, 3 Gray 126; Opinion of Justices, 117 Mass. 603; Wilcox v. Rodman, 46 Mo. 322; People v. Van Gaskin, 5 Mont. 352; State v. Howe, 25 Ohio St. 588.</p> <p>It will be noticed that the act above referred to was passed with an emergency clause which also stated that the act was necessary for the immediate preservation and support of the existing public institutions of this state, and the act provided it should be in force and take effect immediately upon its passage and approval, and hence it became a law as soon as it was approved by the governor, which was a few days before the adjournment of the legislative session. , "</p> <p>It seems to me, therefore, that the only question that could possibly arise as to whether or not, under the initiative and' referendum provision of the constitution, the legislature has power to put a law of this kind into immediate force and effect.</p> <p>Section 22 of article 3 of the constitution provides: “No act shall take effect until ninety days after the adjournment of the session at which it was passed, unless in case of emergency (to be expressed in the preamble or body of the act), the legislature shall by a vote of two-thirds of all the members elected of each house otherwise direct.”</p> <p>The court does not have authority to review the finding or determination of the legislature as to when an emergency exists. Cooley Const. L,., 53; Gillinwater v. Miss. & Ct. R. R. Co., 13 111. 1; Carpenter v. Montgomery, 7 Blackf. 415; Hendrickson v. Same, 7 Ind. i3;Mark v. State, 15 Ind. 98; Day Co. v. State, 68 Texas 526.</p> <p>The question for consideration here, to state it broadly is, Can any measure proposed by a member of the legislature, which has passed both houses and been signed by the governor, become a law until the period of time has elapsed in which the people of the state have reserved to themselves the right to initiate the proceedings to have it submitted to them, except such laws as are passed for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions?' Sec. i, art. 3 Const.; chap. 93, S. L• 1899.</p> <p>It is claimed that the legislature, having declared there is an emergency in the act, that the emergency canpot be questioned, and that the legislature having declared that this act is for the immediate preservation and support of public institutions, that the decision of the legislature cannot be questioned, that both questions stand upon the same footing. This is not correct. The emergency clause in the constitution is in substance as follows: No act shall take effect until ninety days after the adjournment of the legislature, unless in case of emergency (to be expressed in the preamble or body of the act). Sec. 22, art 3, Const.</p> <p>What may be deemed an emergency for this purpose is purely a legislative question, and it is for the legislature to determine what circumstances, conditions or facts make an emergency. But it certainly will not be contended that the legislature can, by a clause inserted in an act, declare that the passage of the same was necessary for the immediate preservation and support of existing public institutions, change the purpose of the act from what is expressed therein, nor change existing law, whether it be constitutional or statutory. Cooley Const. Law, 55”5^-</p> <p>The constitution requires the fact of signing to be entered upon the journal. Sec. 19, art. 3, Const. This is an imperative requirement and must be complied with. Cooley on Const. Law, 163-164; State v. Burlington, 84 N. W. 255.</p> <p>The questions arising under the law which has been passed are somewhat difficult on our part to discuss, for the reason that some of the questions seem to be original questions, almost, coming for the first time before this court. We shall not claim that any office is property in the sense that cattle or land are the property of the owner, but under the statute that was in force, the defendants were entitled to the possession and emoluments of the office until 1905,unless forfeited by their misconduct in office, voluntary abandonment, or unless taken away by law, and that the right was as perfect a right as the title of any individual to his property, real or personal. Nichols v. McLain, 101 N. Y. 533; Hoke v. Henderson, 4 Del. 1; State Prison v. Day, 32 S. E. 748; State v. Gattis, 34 S. E. 429; State v. Jordan, 33 S. E. 139.</p>

Hon. Joseph W. Jones, Judge. Action by Sioux Falls Savings Bank against B. H. Lien and others, to compel an interpleader. From a judgment for defendants, plaintiff appeals. The liability of the surety for the debt to the holder of the obligation is no greater and no less than that of the principal, and hence the simple fact that some of several joint debtors are sureties only is not a relevant issue in an action on the obligation. Berg v. Rad-cliff, 6 Johns.

<p>Appeal from circuit court, Clark county, Hon. Julian Bennett, Judge.</p> <p>Action by Fred Russell against Fred B. Whitcomb. On plaintiff’s motion to dismiss the defendant’s appeal from an order appointing a referee.</p>

<p>Original proceedings on applications for admission,to practice law.</p>

<p>Appeal from circuit court, Fall River county, Hon. Joseph B. Moore, Judge.</p> <p>Action by Christian L. Jensen against Edmund Petty. From an order vacating a default judgment in favor of plaintiff, plaintiff appeals, and defendant appeals from the default judgment.</p>

<p>1. In an action on a life insurance policy where defendant claimed that assured suicided, and the attending physician, in the proofs of death, gave suicide as the cause of death, hut the evidence merely showed that from three to five minutes after deceased was seen on the street he was found dead in his place of business, with a bullet in his brain, and a revolver with one empty chamber lying in a pool of blood under one of his limbs, the facts were not so necessarily, indicative of suicide as to justify the court in refusing to submit the case to the jury.</p> <p>2. Where a benefit certificate provided that the beneficiary should not be entitled to any participation in the benefit fund if insured suicided, and further provided for payment from the benefit fund in the usual course of adjustment, the contention that the suicide clause referred only to payment from the benefit fund, and that the beneficiary was entitled to payment out of some other fund, even though insured suicided, was without merit..</p>

Coring E. GaEEy, Judge. Action on a life policy by Margaret Richards and others against the Modern Woodmen of America. From an order vacating a default judgment entered in favor of plaintiffs, thejr appeal.

<p>24 Stat. 379, declares that, if any common carrier shall receive from any person a greater or less compensation for any service rendered than it receives from others for a like service, such carrier shall he guilty of unjust discrimination, which is declared to be unlawful. Held, that where plaintiff sued a railroad company to recover certain chattels without first paying freight charges thereon, according to the company’s published schedule, and plaintiff claimed that an agreement whereby transportation charges were to be less than the published schedule, there could be no recovery, such contract being unlawful as to both parties.</p>

<p>Appeal from circuit court, Fall River county, Hon. Levi McGee, Judge.</p> <p>Action in claim and delivery by George W. Brady against Samuel Shirley and another. From a judgment in favor of defendants, and from an order denying a new trial, plaintiff appeals.</p> <p>The trial court erred in permitting the jury to view and examine the horse in controversy, and divers other horses. 12 Am. & EngEnc. of Law. 368; Dowd v. Guthrie, 13 Bradwell, 653; Com. v. Webster, 5 Cushing, 295, 298; Smith v. State, 42 Tex. 444; Farwell v. Sturgis W. W. Co., 73 N! W. 916; Washburn v. Railway Co., 59 Wis. 365; Hanawalt v. State, 64 Wis. 84; 3 Am. & Eng. Enc. of Law, 885; 21 Am. & Eng. Enc. of Law, 1030; State v. Dan-forth, 48 Iowa 43; Keniston v. Rowe, 16 Me. 38; Overlook v. Hall, 81 Me. 348; Risk v. State, 19 Ind. 152; Reitz v. State, 33 Ind. 187; LaMott v. State, 128 Ind. 123; U. S. v, Collins, 1 Cranch, 592; Robnett v. People, 16 111. App. 299; Ingram v. State, 24 Neb. 33; People v. Carney, 29 Hun. 47.</p> <p>The trial court erred in permitting the introduction of testimony as to the resemblance of the horse in controversy to its alleged sire. Keniston v. Rowe, 16 Me. 38; Jones v. Jones, 45 Md. 144; Eddy v. Gray, 4 Allen 435; Young v. Makepeace, 103 Mass. 50; Clark, v. Bradstreet, 80 Me. 451; U. S. v. Collins, 1 Cranch 592; Knoll v. State, 55 Wis. 249.</p> <p>The trial court erred in permitting the introduction in evidence of the treatises upon veterinary science. Ins. Co. v. Brott, 55 Md. 200; Ins. Co. v. Clieever, 36 O. St. 201; Payson v. Everett, 12 Minn. 216; Whiton v. Ins. Co., 109 Mass. 24; Tucker v. McDonald, 60 Miss. 460; 7 Am. & Eng. Cyc. of Law, 513; 9 Am. & Eng. Cyc. of Law, 887; 8 Cyc. of Plead. & Prac.768; Lawson on Expert Ev. 169; Wharton on Ev. 665; Rogers on Expert Test. 237, 243; Rice on Ev. 1255; 1 Greenleaf on Ev. Sec. 497; Bixby v. Omaha etc. Ry. Co. 75 N. W. 182; Boehringer v. Richards Med. Co., 29 S. W. 508; Johnston v. Richmond, 22 S. E. 694; VanSkike v. Potter, 73 N. W. 295; Boyle v. State, 57 Wis. 472; Epps v. State, 1 N. E. 451; Stilling v. Town of Thorpe, 54 Wis. 528; U. P. Ry. Co. v. Yates, 79 Eed. 584; Ashworth v. Kittredge, 12 Cushing 193; Gallagher v. Railroad, 6 Pac. 869; Broadhead v. Wiltse, 35 la. 429; State v. Gillick, 10 la. 98.</p> <p>The identification of the horse in controversy to be determined from his age, stock and brands, on which questions the issues were sharply drawn, the inspection of thehorse, together with hisalleged parents furnished the best possible evidence. Warlick v. White, 76 N. C. 179; Thompson on Trials, vol. 1, sec. 856; State v. Smith, 6 N. W. 153; State v. Woodruff, 67 N. C. 89; 12 Am. & Eng. Ev. of Law, 368.</p> <p>For the purpose of showing what the opinions of the best and ablest minds are upon the question at issue, viz: the age of the horse, and also for the purpose of discrediting the testimony of experts who claim to be familiar with them, the printed books were admissible in evidence. Quackenbush v. Railroad, 35 N. W. 523 ; People v. Sessions, 26 N. W. 292; Pinney v. Cahill, 12 N. W. 862.</p>

<p>Appeal from circuit court, Lawrence county, Hon. Joseph B. Moore, Judge.</p> <p>Action by Matt Plunkett, sheriff of Lawrence county, against Edward Hanschka. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Comp. Laws, § 3595, provides that the intentional destruction, cancellation, or material alteration of a written contract by a party entitled to any benefit under it, or with his consent, extinguishes all the executory obligations of the contract in his favor against parties who do not consent to the act. A clerk of plaintiff corporation inserted in a note executed by defendant the name of a certain bank as the place of payment, merely as a memorandum, to which it was to be sent for collection. The clerk’s duty was to keep a record of plaintiff’s notes, but she had no authority to bind the corporation, and no officer authorized to make a binding alteration had any knowledge of the insertion. Held, that the insertion did not avoid the note, since it was a mere spoilation by a stranger, and not an alteration.</p> <p>2. A clerk in plaintiff’s office inserted in a note executed by defendant the name of a certain bank as place of payment, and plaintiff had no knowledge of the change until after the note was forwarded for collection, and a suit was instituted on it. Held, that the evidence was not ' sufficient to show that plaintiff ratified the action of the clerk, hence the insertion did not avoid the note.</p> <p>3. Plaintiff’s clerk testified that she inserted the name of a bank in a note executed by defendant merely as a memorandum as to where the note was to be sent for collection, and that plaintiff had no knowledge of the alteration, and her testimony was not impeached or contradicted. Defendant resisted payment on the ground that the note was rendered void by the alteration. Held, that the contention that it was erroneous to direct a verdict for plaintiff, because the jury might have found that' the alteration was made with plaintiff’s consent, could not be sustained, since the clerk had no interest in testifying falsely, and the jury would not have been justified in disregarding her unimpeached testimony.</p>

<p>Appeal from circuit court, Clark county. Hon. Julian Bennett, Judge.</p> <p>Action by Thomas Mankey against the Chicago, Milwaukee and St. Paul Railway Company. From a judgment in favor of plaintiff, defendant appeals.</p> <p>The facts are stated in the opinion.</p> <p>Non-compliance with the statutory requirement, however, stringent, affords no cause for action if compliance therewith would not have prevented the injury. Phila, & R. Co. v. Stubbing, 62 Md. 504; Hayes v. Me. R. Co., m U. S. 228-240; India R. Co. v. Blackman, 63, hi, 117; Chic. & R. Co. v. McDaniels, 63, 11, 122; Pike v. Chic. & A. R. Co., 39 Fed. 758; Bell v. Ry. Co., 72 Mo. 58; Evans v. Ry. Co., 62 Mo.- 57; Harty v. C. R. R. Co., 42 N. Y. 469; Grand Island W. C. Ry. Co. v. Phipps, 67 N. W. 441.</p> <p>The company having acquiesed in the use of its right of way as a public highway for years, and having suffered the public to use the same as a public highway, it was required to use the same degree of care in-the operation of its trains as if the road were in fact a legally established public highway. Cutler v .Great Northern Railroad Co., 67 N. W. 1046; Beach on Contributary Negligence, pages 79-80.</p> <p>Failure to give the statutory signals, is relied upon by plaintiff as negligence which contributed to the accident. Comp. Daws, Sec. 3016; Palmer v. St. Paul and D. R. Co., 38 N. W. 101; St. Louis I. M. & So. Ry. Co. v. Hendricks, 53 Ark. 201; Toledo R. R. Co. v. Foster, 43 111. 415; Western & A. R. Co. v. Main 64 Ga. 649; Georgia R. Co. v. Williams, 74 Ga. 723; Keim v. Ry. Co. 90 Mo. 314; Texas and Nor. Co. v. Ludtke, 23 S. W. 82.</p>

Hon. E. G. Smith, Judge. Suit by W. A. Houts and others against Christ Olson to redeem certain lands from a mortgage thereon, and for an accounting of rents and profits, suit being commenced more than io years after foreclosure sale, and more than ten years before the commencement of continued possession of the premises on the part of the purchaser at mortgage sale, and defendant claiming under him. From a decree in favor of defendant, complainants appeal.

Hon. Joseph W. Jones, Judge. Action by Peter Larson against Peter A. Dutiel and another to recover real estate. From a judgment in favor of the plaintiff, the defendants appeal. The facts are stated in the opinion. If the relation of debtor and creditor in any given case existed in the beginning and the debt still subsists as to the consideration of the conveyance, the transuction will be treated as a mortgage. I Jones on Mortgages, Sec. 258.

Hon. A. W. Campbell, Judge. Action to determine adverse claims to realty by John Campbell against the Equitable Loan & Trust Co. of Volga, S. D. From an order overruling a demurrer to the complaint, defendant appeals.

Joseph W. Jones, Judge. Action by Percivel H. Edmison and another, against the Sioux Falls Water Company. From a judgment confirming a referee’s decision allowing damages on an injunction bond, the defendant and J. B. Clark and others, sureties, appeal.

Hon. A. W. Campbell, Judge. Action by the Pioneer Savings & Loan Association against Albert Lawrence, Jr., Jennie Lawrence, and Till L- Wilkins, to foreclose a real estate mortgage. Judgment for plaintiff, and defendants’appeal. The contract in question has been carried out by the defendants, and if it is to be enforced at all it must be enforced as made and all its terms and provisions must govern. Kadish v. Association, 38 N. E. 236.

<p>1. Where an appeal is from the judgment alone, and not from the order subsequently made denying a new trial, no question of the sufficiency of the evidence to justify the findings can be reviewed.</p> <p>2. Where, in an action against the city on its warrants, there was no claim that the transfer of the warrants to plaintiff was without notice, or before maturity, the admission of evidence that the agent of t'he plaintiff at the time of the purchase of the warrants had never heard of any defense to them, though erroneous, was not prejudicial to defendant.</p> <p>3. Where, in an action on city warrants, plaintiff based his right to recover on the fact that defendant had failed to levy taxes to pay the general fund warrants issued by the city, and had used money belonging to that fund in paying other warrants, instead of applying it to the proper payment of warrants in the order of their presentation, plaintiff could show on cross-examination of defendant’s witnesses that moneys had been so appropriated by the city to the current fund, instead of being applied to warrants as presented.</p> <p>4. Where the evidence cannot be reviewed, it will be presumed that the findings of the court were based on sufficient evidence.</p>

<p>Appeal from circuit court, Brookings county. Hon. Julian Bennett, Judge.</p> <p>Action by Stephen E. Mathews against John A. Silvander. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Appeal from circuit court, Pennington County. Hon. Revi McGEE, Judge.</p> <p>Action by Areli R. Overpeck and Alemath E. Overpeck against the city of Rapid City. Judgment for plaintiffs, and defendant appeals.</p>

Hon. Frank Smith, Judge. Action by the Plano Manufacturing Company against O. P. Auld, as receiver of the Bank of Plankinton, to establish a trust upon the assets in the hands of the receiver. From the judgment in favor of the plaintiff for less that the relief demanded, both parties appeal.

Hon. Loring E. Garry, Judge. Action by the Dyea Electric Light Company against Mrs. E ,.A. Easton and others to quiet title to certain realty. From a judgment for defendants, plaintiff appeals. Motion to dismiss appeal.

<p>Appeal from circuito ourt, Minnehaha county. Hon. Joseph W. Jones, Judge.</p> <p>Action in claim and deliverey by John S. Morris against Chelsea W. Hubbard, as sheriff of Minnehaha county. From a judgment in favor of plaintiff, defendant appeals.</p>

Appeal, from circuit court Custer county. Hon. Levi McGre, Judge. Suit by Frank A. Gira and others against Jesse Harris for the specific performance of a contract to convey land. From a judgment in favor of plaintiffs, defendant appeals. The contract in suit is not a contract of purchase for want of mutual covenants.

<p>Appeal from circuit court Lawrence county. Hon. Joseph B. Moore, Judge.</p> <p>Action by William J. Magowan and another against William Groneweg and others. From a judgment in favor of defendants, plaintiffs appeal.</p>

<p>1. On the trial of the defendant for assault, the state’s attorney stated that the place where the asasult was committed would be in issue, whereupon the court sustained the state’s challenges to seven jurors who had previously served in the trial of another involved in the same affray, though such jurors stated that while they had formed an opinion as to whether the place where the altercation occurred was a highway, and still had such opinion, they had no opinion as to the guilt or innocence of the defendant, and would try the issue in the case fairly and impartially, and decide the same according to the law and the evidence, and that evidence that the place was or was not a highway would not affect their decision. Defendant objected to the challenges, and duly excepted to the court’s excusing them, which necessitated the calling of talesmen to complete the jury. In the trial of the case, the character of the place where the assault occurred did not in fact become an issue. Held, that the sustaining of such challenges was prejudical error, entitling defendant to a new trial.</p> <p>2. The fact that defendant did not exhaust all his peremptory challenges was not a waiver of such error, since, where jurors are erroneously excused on objection of the adverse party, the exercise or failure to exercise a challenge could not restore them.</p> <p>3. Where the court erroneously sustains challenges to jurors over the objection of a party, who takes an exception at the time, the fact that he makes no further objection to the jury at the time it is sworn to try the cause is not a waiver of his exception, since his objection and exception at the time of the ruling excusing the juror is sufficient to protect his rights on appeal.</p> <p>4. Where, in a prosecution for assault with a deadly weapon, the instrument used was of such a character that the court could not say as matter of law, whether it was or was not a deadly weapon, it was not error for the court to submit such question to the jury, without defining what constitutes a deadly weapon.</p>

Hon. A. W. Campbbix, Judge. Action for an alleged conversion of personal property by Ruther Adams against James G. Rathbun, as sheriff. From a judgment in favor of plaintiff and an order denying a motion for a new trial, defendant appeals.

Hon. Joseph B. Moore, Judge. Suit by the Deadwood Central Railroad Company against John Barker. From a judgment in favor of the plaintiff, the defendant appeals. The facts are stated in the opinion. The issuance of a patent relates back to the entry so as to cut off all intervening rights. Stark v. Starr, 6 Wall. 402; Silver Bow & M. Co. v. Clark, 6 Mont. 422; Talbott v. King, 6 Mont. 107.

Hon. D. Haney, Judge. Action by the Congdon & Henry Hardware Company against the Grand Island & Wyoming Central Railroad Company and others to foreclose a mechanic’s lien. From a judgment in favor of the defendants, the plaintiff appeals.

Hon. Boring E. Gaffy, Judge. Action by the People’s Bank against E. Ashley Mears and others to quiet title to certain realty. From a judgment in favor of plaintiff, defendant appeals.

Hon. A. W. Campbell, Judge. Action by Jarvis C. Howard against Henry Braun and others. From a judgment for plaintiff, defendants appeal. The facts are stated in the opinion.

Hon. Devi McGee, Judge. Action by Nancy S. Miller against John P. Durst to recover compensation for services performed for defendant. From a judgment in favor of plaintiff, and from an order denying a new trial, the defendant appeals. The facts are stated in the opinion.

Hon. Joseph W. Jones, Judge. Action by David Bradley & Co. and another against O. T. Helgerson and others. From an order overruling their demurrer to the complaint, defendants appeal.

Hon. J. O. Andrews, Judge. This case was first determined by this court in an opinion reported in 13 S. D. 301, 82 N. W. 78, in which opinion the judgment of the trial court, in favor of the defendants, was reversed. This opinion is upon a rehearing subsequently granted. Corson, J., dissenting.

Hon. E. G. Smiti-i, Judge. Action by Joseph Pier against Joseph Lee to quiet title to real estate. From a judgment in favor of plaintiff, defendant appeals. This action being one to enforce a penalty or forfeiture cannot be maintained either under our code or under the established rules of equity procedure. Comp. Laws, §§ 4622, 4623; Beach on Contracts, 359; Story Eq.

Hon. Wirriam A. ' Rinehart, Judge. Action by Thomas Whittaker against Edson C. Warren. From an order setting aside the judgment and execution and a sale of property thereunder, and dismissing the action, plaintiff appeals. The facts are stated in the opinion.

<p>The receiver of a foreign corporation, appointed by the courts of a foreign jurisdiction, is entitled to maintain an action for the recovery of realty in the possession of a resident of the state, where no rights of resident creditors intervene.</p> <p>Fullee, P. J., dissenting.</p>

Moore, Judge. Hon. Joseph B. Action by Charles Waite against Alpheus E. Frank. From a judgment in favor of defendant, plaintiff appeals. The facts are stated in the opinion. The mere fact that the sales were for a future delivery does not even tend to invalidate the contract (8th Am. and Eng. Ency. p. 1004; Wall v. Schneider, 59 Wis. 352).

Hon. J. O. Andrews, Judge. Action for conversion of personal property by William H. Smith against W. H. Hawley, sheriff of Brookings county. From a judgment for plaintiff, defendant appeals.

<p>Appeal from circuit court, Meade county. Hon. Joseph B. Moore, Judge.</p> <p>Acton by John D. Hale against. James A. Hale. From a judgment in favor of plaintiff, defendant appeals.</p> <p>The facts are stated in the opinion.</p>

Hon. Joseph W. Jones, Judge. Action by Matthew Howie against Christen C. Bratrud to recover a commission alleged to be due for negotiating a sale of real property. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals.