Volume 21 — South Dakota Reports

<p>Appeal from Circuit Court, Union County. Hon. J. W. Jones, Judge.</p> <p>Action by George Guillaume against James Flannery, administrator of Lenora La Belle, deceased. From a judgment granting insufficient relief, both parties appeal.</p>

Hon. Ciiarrbs S. Wi-iiting, Judge. Proceeding by the state, on the relation of Charles Christian-son, against Jesse Allison and others. From the judgment of the circuit court, defendants appeal.

Hon. E. G. Smith, Judge. Mandamus by the state, on the relation of T. E. Andrews, to compel O. L. P>oyden and others, as county commissioners of Charles Mix county, and the board of count3r commissioners of such county and another, as county auditor, to submit the question of changing the county seat at a general election. From a judgment dismissing the application, relator appeals.

<p>Appeal from Circuit Court, Brown County. Pión. J. H. McCoy, Judge.</p> <p>Action by G. N. Williamson against A. N. Aldrich and others. From an adverse judgment, plaintiff appeals.</p>

<p>Appeal from Circuit Court, Minnehaha County. Eton. Joseph W. Jones, Judge.</p> <p>Certiorari by the Sioux Falls Electric Light & Power Company against the city of Sioux Falls and others. From an adverse judgment, defendants áppeal.</p>

<p>An objection to the introduction of. any. evidence in a criminal case, after material evidence has been received, is properly overruled.</p> <p>The failure of a transcript of the justice of the peace to contain a judgment or finding to the effect that a crime was committed, and that there was probable cause to believe defendant guilty is waived by a failure to move to set aside the information before pleading not guilty.</p> <p>Where a justice of the peace, as required by'Rev. Code Cr Proc. § 158, returns to the circuit court the information indorsed, as required by section 146, with the finding of the commission of the offense and the probable guilt of defendant, an objection that his transcript fails to show such facts is without merit.</p> <p>Where a charge as a whole sufficiently emphasizes the necessitay that guilt be proved beyond a reasonable doubt, it is not error to omit the phrase in an instruction as to the court’s province which requires the jury, “if you believe the defendant to be guilty, to bring in a verdict of guilty, and leave-it to the higher courts * * ® to correct” the lower court’s errors.</p>

<p>Appeal from Circuit Court, Roberts County. Hon. A. W. CampbUrr, Judge.</p> <p>Action by the New Birdsall Company against Anton Stordalen. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Circuit Court, Minnehaha County. Hon. Joseph W. Jones, Judge.</p> <p>Action by W. A. Greenwald against G. A. Ford and another. From a judgment for plaintiff, defendant Ford appeals. Affirmed.</p>

<p>Action by Sophia Baumann against Frank Jerome. From a judgment for defendant, plaintiff appeals.</p>

<p>The findings of the trial court on disputed questions of fact are presumptively right, and must stand unless the evidence clearly preponderates against them.</p> <p>Where, in an action against a broker for failing to account for a part of the price received by him, the issue was whether the broker sold the land to the purchaser through a third person as his agent, or whether he sold it to the third person who resold it to the purchaser, evidence of the value of the property at the time of the sale was immaterial.</p> <p>A question asking a purchaser to state whether or not he purchased the property from a person named called for a conclusion of the witness, and an objection to it was properly sustained.</p> <p>Where a witness on his direct examination only testified concerning what he paid for property purchased by him, a question on cross-examination as to whether or not he purchased the property from a person named was not proper cross-examination.</p> <p>Where, in an action against a broker for conversion of a part of the price of land received by him, the issue was whether the broker sold the land to a purchaser through a third person as his agent, or whether he sold it to the third person who resold it to the purchaser, the exclusion of testimony that the broker did not sell the land to the purchaser was not prejudicial, especially where the broker was subsequently allowed to state that he did not enter into any contract or negotiate any sale to the purchaser.</p> <p>Where a defense was not included in the answer, and no finding relating thereto was requested in the trial court, and a contention based on the defense was not embraced by the assignments of error, the contention based on such defense was not reviewable on appeal.</p> <p>Fuller, P. X, dissenting.</p>

Mandamus by the state, on the relation of George W. Harris, to compel W. A. King, as county auditor of Hughes county to print relator’s name on ballots as candidate for state senator for the Twenty-fourth senatorial district.

Mandamus by the state on the relation of Wilmer D. Nelson to compel W. A. King, as county auditor of Hughes county, to print the name of Frank L. Fuller, as a candidate for the office of county commissioner.

Hon. George I-L Marouis, Judge. Action by Charles Aldrich against T. Ramoe. From a judgment of the circuit court on appeal by defendant from a judgment of a justice court, defendant appeals.

Apppeal from Circuit Court, Hanson County. Hon. Frank B. Smith, Jhdge. Action by S. D. Ewing and another against Christie Lunn, executrix. - From an order vacating a verdict and judgment for plaintiffs, and from a judgment in favor of defendant on a second trial, plaintiffs appeal.

Hon. Guorgu H. Marquis, Judge. A Action by Flora A. Griffing- against Effie C. Gislason and others. From a judgment for plaintiff, defendants appeal. Where a contract is sought to' be avoided on the ground of surprise or mistake, the fact of such surprise or mistake must be either conceded or so clearly established as to be substantially without dispute. Masterson v. Beers, i Sweeny, 418; Beazie v. Williams, 49 U. S. 8 How 157; Lyman v. United Ins.

<p>An estate cannot be created in a stranger to a deed by a reservation or mere recital therein.</p> <p>Where plaintiff became the owner of all land to which a reservation of a right of way ever extended, and all of the property of which defendants were owners fronted on a public street, defendants, who were strangers to the deeds creating such easement, were not entitled to a right of way over plaintiff’s premises.</p> <p>Corson, J., dissenting.</p>

Hon. Frank B. Smith, Judge. Action by the Home Investment Company against George C. Clarson and the McCormick Harvesting Machine Company. Judgment in favor of plaintiff, and the latter defendant appeals. It was incumbent on the plaintiff not only to- allege but also to prove that it purchased the premises and caused the first mortgage to be released on account of a mistake of fact.

<p>Appeal from Circuit Court, Rawrence County. Hon. Wieeiam G. Rice, Judge.</p> <p>Action by John T. Garvey and another against William S. Elder and another. From a judgment for defendants, plaintiffs appeal.</p>

<p>Where, in an action for the price of a threshing machine outfit, the execution and delivery of the order were admitted in the answer, and the only defense raised in justification of defendant’s repudiation thereof after plaintiff had fully complied with its terms was that the order had been procured by fraud and deception, defendants were not entitled to claim that the property had been fully settled for by notes not yet due, and that freight charges only were collectible.</p> <p>Where the identical machinery and equipment described in an order therefor was shipped for the buyers from the seller’s factory to the place of delivery, where it arrived in due time and was discovered on the track by one of the buyers, who was there prepared to receive it and called on the seller’s agent to furnish assistance in unloading the same, there was a sufficient acceptance of the order by the seller.</p> <p>An order given in. good faith for .the purchase of machinery is not revocable after being accepted by appropriate acts evincing mutuality of purpose to perform.</p> <p>Where plaintiff’s agent, while soliciting an order for machinery, stated that the buyers could not be compelled to take certain machinery previously ordered from others, as the order had not been legally approved, such statements were mere matters of opinion, on which the buyers had no right to rely.</p>

Mandamus by the state, on relation of M. B. Long and another, to compel Manson Rexford, as county auditor of Day county, to print the names of certain persons as Republican candidates for county commissioners on the ballots to be used at an election, and not to print the names of certain other persons as candidates. Sears & Potter, for relators. Anderson & Waddel, for opposing candidates.

<p>Appeal from Circuit Court, Spink County. Hon. Charges S. Wi-iiting, Judge.</p> <p>Action by the Farmers’ Mutual Hail & Cyclone Insurance Association against Philip Roche. From a judgment for plaintiff, defendant appeals.</p>

- Hon. J. H. McCoy, Judge. . Action by the International Harvester Company oh America against J. A. McKeever. From a judgment for plaintiff, defendant appeals. A clause in a contract that “no one has any authority to add to, abridge, or change it in any manner” will not prevent á waiver of its provisions by the agent -of a corporation which is a party ■thereto.

<p>Appeal from Circuit Court, Deuel County. Hon. George H. Marquis, Judge.</p> <p>Action by Flora A. Griffing against Effie C. Gislason and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Circuit Court,- Moody County. --Hon. Josépi-i- W. JonUS, Judge. .</p> <p>■ -Action-by Regina- Erickson against Andrew. G. .Stevenson. Fróm'a-judgment ih 'favor of-plaintiff, .defendant'appeals:-</p>

Hon. Chas. S. Wi-iiting, Judge. Application for a peremptory writ of mandamus by E. B. Gray against the board of county commmissioners of Beadle county, etc. From an order sustaining a demurrer to the application, petitioner appeals. A commissioner may remove out of the district from which he was elected without creating a vacancy in his office. State ex rel v. Board of Supervisors of Milwaukee County, 21 Wis. 449; State ex rel Malloy v. Skirving, 27 N-.

<p>Appeal from'Circuit Court, Hand County. Hon.-Charles S. Whiting, Judge. -</p> <p>Action by Frank J. King and another against W. H. Lane. From a judgment in favor of defendant, plaintiffs appeal.</p>

<p>Appeal from Circuit Court, Hamlin County. Hon. George H. Marquis, Judge.</p> <p>Action by .Joseph W. Catlett against William H. Stokes. Judgment for plaintiff. Defendant appeals.</p>

Hon. Charles S. Whiting, Judge. Action by S. W. Clark, as trustee of the estate of Allen E. Else, bankrupt, against Nellie S. Else and another. From a judgment in favor of defendants, plaintiff appeals.

<p>Any error in excluding testimony on cross-examination is cured by its subsequent admission on direct examination.</p> <p>Under Rev. Code Civ. Proc. § 538, disqualifying attorneys from testifying concerning communications made by or .advice given to clients, in an action by the assignee of claims, -plaintiff’s attorney could not be required to testify whether or not he had advised the assignors, foreign corporations and his clients, to assign the claims to evade laws limiting the right of such corporations to sue.</p> <p>In .an action against the debtor, it was immaterial that an assignment may have been made for the sole purpose of evading laws limiting the right of foreign corporations to sue, -the assignors being such corporations, and it was, therefore, immaterial that the assignors had commenced actions on the claims and dismissed them.</p> <p>The burden being on a debtor, pleading, in defense to an action by the .assignee of claims, that the assignors had not complied with laws limiting the right of foreign corporations to sue, to prove those allegations, in the absence of such proof witnesses could not be asked questions predicated upon the assumed existence of the facts pleaded.</p>

<p>A complaint which, 'after charging embezzlement of a carriage and harness, adds “and in the manner aforesaid did take, steal and carry away said buggy and double harness,” does not charge two offenses, as the latter words, being unnecessary and immaterial, will be treated as surplusage.</p> <p>The motiye in embezzlement being immaterial, it is not error to charge that the jury need not trouble themselves therewith if they found defendant embezzled the property.</p> <p>The evidence not being; set out in the abstract, and therefore not being before the court on appeal, it will be presumed that instructions were refused because they were not justified by the evidence.</p> <p>The court need not give the requested instruction that, if the property was converted by any other person than defendant, the jury cannot find defendant guilty unless they find it was embezzled with his knowledge, this being covered by the instruction given that to convict the jury must be satisfied that defendant, alone or with another, did actually embezzle the property.</p> <p>That security was given for property embezzled is immaterial; so that evidence thereof admitted in the course of the trial may he excluded by the charge.</p> <p>Under Rév. Code Cr. Proc. § 72, providing that, when an offense is committed partly in one county, and partly in another, the jurisdiction is in either, defendant may be tried for embezzlement in the county in which he received the property and to which he was to return it, though he took it into another county.</p>

<p>Appeal from Circuit Court, Hughes Countjc Hon. Koring E. Garry, Judge.</p> <p>Action by A. C. Brink against Blanche Whisler. Erom an order, plaintiff appeals.</p>

Hon. EEvi McGee, Judge. Action by Edgar J. Farlow against W. H. Chambers. From a judgment in favor of defendant, plaintiff appeals. The defendant is bound by his contract, and cannot he heard to say that he did not read it or know its contents.

<p>Under Rev. Code Civ. Proc. § 33 providing that the circuit courts arc always open to hear and determine actions except issues of fact in civil and criminal actions, .where an action was tried, and judgment rendered when the court was not regularly in session for the trial of contested cases, the judgment was not void, hut merely erroneous, and a motion to vacate when no motion for new trial was entered and no appeal taken within two years was properly denied.</p>

<p>While one’s agreement not to contest another’s application for a patent to public land is valid, that being a matter affecting his own property, his agreement not to protest against the other’s application is void, as against public policy.</p> <p>Where plaintiff conveyed land to defendant in execution of his contract to do so in consideration of defendant’s agreement not to contest or protest against plaintiff’s application for a patent to land, he may not have a remedy at law or have the deed canceled because of defendant’s breach of his illegal agreement not to protest the application, there being no allegation of 'fraud in the procuring of the deed.</p> <p>Where plaintiff agreed to, and in execution of his contract did, deed land to defendant, in consideration of defendant’s agreement not to. contest or protest against an application by plaintiff, plaintiff’s remedy for defendant’s agreement not to protest is by action for damages, and not for rescission of the deed, in the absence of a showing of fraud in procuring the contract', defendant’s agreement, which he violated, being in effect a condition subsequent.</p>

Hon. Loring E. Garry, Judge. An Action by Michael Kennedy against the Agricultural Insurance Company of Sioux Falls, S. D. From a judgment in favor of plaintiff, defendant appeals. Parties to policies may name their own conditions, and such conditions must have effect whenever a case for which they provide may arise. Phoenix Ins. Co. v. R. R. Co., 28 Ohio State 83; Allen v. German-American Ins. Co., '25 N. E. 309; Havens v. Ins.

Hon. E. G. Smith, Judge. Action by M. D. Gardner against Irving R. Welch and another, doing business under the name of the Charles Mix County Land Company. Erom a judgment in favor óf defendants, plaintiff appeals.

Hon. J. H. McCoy, Judge. Action by William Deering & Co. against Richard Mortell and others. From a judgment for defendants, plaintiff appeals. This is an agreement in the most absolute terms, to answer for any default of Mortell, and these guarantors expressly stipulate therein to be conclusively bound by the written acknowledgement of the agent. London & S. F. Bank Ltd. v. Parrott, et al, 58 Pac. 164; Scribner et al, v. Schenkel, et al, 60 Pác. 860; Furst & Brad-' ley Mfg.

Hon. Loring E. GaRRy, Judge. Action by the Home Lodge Association against the Queen Insurance Company of America. From a judgment in favor of plaintiff, defendant appeals. Where the insurance is against loss or damage by fire, without exception as to explosions, the policy covers the damage caused by the explosion of gunpowder or inflammable gas in the buildings as well as the damage by fire. Scripture v. Ins. Co., io Cush. 356; Renshaw v. Ins.

<p>On motion for rehearing. Former decision adherred to.</p>

Hon. J. H. McCoy, Judge. Action by Evan T. Davis against the Brown County Coal Company. From a judgment for plaintiff, defendant appeals. The power of directors belong to them collectively and not individually. The fact that a person is a director gives him no authority to act for the corporation except when acting as a membei of the board, in the absence of a by-law conferring special authority upon him. 21 Am. & Eng. Ency.

Hon. Coring E. Garry, Judge. Action by D. O. Kierbow against Henry Young, as sheriff of McPherson county. From a judgment in favor of plaintiff, defendant appeals. This cause was tried to the court without a jury. Under these circumstances it was necessary, before entry of judgment, for the court to give his decision in writing and that the same be filed with the clerk.

Hon. J. H. McCoy, Judge. Action by Sarah Drake against Alonzo' A. Drake for divorce. From an adverse order and decree defendant appealed. Plaintiff applies for an order requiring defendant to pay for. her support and expenses pending the appeal.

Hon. Frank B. Smith, Judge. Action by Steere & Ballah against J. C. Gingery. From a judgment for plaintiffs and from an order denying a new trial, defendant appeals.

<p>Appeal from, Circuit Court, Edmunds County.. Hon. Loring E. Garry, Judge.</p> <p>Action by James A. Nicol against Eugene K. Sherman and others. From a judgment in favor of defendants, plaintiff appeals.</p>

Hon. Joseph W. Jones, Judge. Action by Franklin Jerome and others against H. W. Rust and others. From an order overruling a demurrer to the complaint, defendants appeal.

<p>A lease executed April 5, 1901, for “the term of three years, with the privilege of two years additional from and after” July 1, 1901, at a monthly rental commencing July 1, 1901, is a lease for three years from July 1, 1901, with the privilege of two years additional at the same rent.</p> <p>The liability of a person guarantying the payment of rent called for in a lease for a term of three years, with the option of the tenant to occupy the premises for two years additional, is coextensive with the term provided for in the lease.</p> <p>A lease for a term of three years gave the lessee the privilege of holding the premises for an additional two years. The lessee, after the three years, continued to hold the premises without any new agreement. Held, that the lessee did not, after the expiration of the three-year term, hold under Rev. Civ Code, § 1437, providing that, where a lessee remains in possession after the expiration of the term and the lessor accepts rent, the parties are presumed to have renewed the hire on the same terms and for the same time, not exceeding one year; but he held under the lease, and a guarantor of the payment of rent was liable for rent during the two years the lessee held .the premises after the expiration of the three-year term.</p>

<p>Appeal from Circuit Court, Spink County. Hon. Chas. ' S. Wi-iiting, Judge.</p> <p>Action by William Peter and another against the Plano Manufacturing Company. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from Circuit Court, Turner County. Hon. E. G. Smith, Judge.</p> <p>Action by A. C. Allen against Lars Peterson. From an order sustaining a demurrer to the complaint, plaintiff appeals.</p>

<p>Rev. Pol. Code, § 2 848, being part of an article on intoxicating liquors, extending from section 2834 to section 2860, provides tliat a person convicted of violating any provision of the two preceding sections (one of which prohibits the presence of minors in places where liquor is sold; the other, the opening on Sunday of places for sale of liquor), shall be punished as provided for punishment of misdemeanors. Section 2 838 provides that if one engage in any business requiring the payment of license under section 2834 without having paid it, or in any manner violate any of the provisions of the article, he, if there is no specific penalty provided therefor by this article, shall be punished by a fine of from $50 to $500, or by imprisonment from 10 to 3 0 days, or by. both.; and any person engaging in any business requiring the payment of a license under section 3834, who, after paying the license, shall be convicted of a violation of any of the provisions of this article, shall thereby, in addition to all other penalties prescribed by this article, forfeit his license for the remainder of the time for which it was paid, and be debarred from again engaging in any business requiring a license under section 2834. Held, that one convicted of keeping his liquor place open on Sunday, in violation of section 2847, may not only be given the punishment provided by Rev. Pen. Code, § 14, for misdemeanors generally — a fine not exceeding $5 0 0 or imprisonment not exceeding a year, or both — -but may have forfeited his license and the right to again engage in the liquor business.</p> <p>An information for keeping open a liquor place on Sunday, stating that defendant was the proprietor of a saloon and licensed to sell intoxicating lipuors therein, sufficiently charges that he was engaged in 1he business of selling intoxicating liquors under the provisions of the license law.</p>

<p>Error to Circuit Court, Brule County. Hon. Frank B. Smith, Judge.</p> <p>Avery McMillan was convicted of violating- the liquor- laws, and brings error.</p>

<p>Error to Circuit Court, Lyman County. Hon. Frank B. Smith, Judge.</p> <p>John Harvey was convicted of violating the liquor laws, and brings error.</p>

<p>Petitioners for tlie revocation of letters of administration of a decedent claimed to fie Iris children and grandchildren, and on the trial gave in evidence a certified copy of a record of a marriage in a foreign country, purporting to fie the marriage of a decedent. After judgment against them, they filed a motion for a new trial on the ground of newly discovered evidence, which consisted of a photograph of the original marriage record, containing the signature of the' con-trading parties, and showed that one of the signatures was the signature of decedent. ¿Held, that the newly discovered evidence was not cumulative, within the rule that a motion for a new trial on the ground of newly discovered evidence which is cumulative will be denied, though the proposed evidence tended to prove the ultimate fact sought to be proved by the petitioners.</p> <p>On a motion for a new trial on the ground of newly discovered evidence, the newly discovered evidence will he treated as true, though contradicted by, the affidavits of the adverse party.</p> <p>On February 24, 1900, petitioners, claiming to be the children and grandchildren of a decedent, filed a petition for the revocation of letters of administration of his estate. They then had in their possession what purported to he a certified cojiy of the marriage of decedent in a foreign country. The trial took place in June, 1901. After judgment against them, they applied for a new trial on the ground of newly discovered evidence, which consisted of photographs of the original marriage record. Held, that it was error to deny the motion for a new trial on the ground of want of diligence to procure the newly discovered evidence.</p> <p>Where, on the hearing of a petition for the revocation of letters of administration of the estate of a decedent, filed, by petitioners, who claimed to he his children and grandchildren the testimony of a grandchild was attacked as untrue and a recent fabrication, on the ground that he had a motive for falsifying his evidence to advance the interest of the petitioners, evidence of a letter previously written by the grandchild, stating that he had seen and talked with his grandfather, the decedent, in the town in which decedent lived, together with the testimony of a third person to whom the grandchild made similar statements, was admissible.</p> <p>Haney, J., dissenting.</p>

<p>Error to Circuit Court, Brule County. Hon. Charuds S. Whiting, Judge.</p> <p>Herman Kirsh was convicted of violating the liquor laws, and brings error.</p>

<p>On appeal from taxation of costs. Modified.</p>

Hon. GiíORGfí H. Marquis, Judge. Action by William Windhorst against B. A. Bergendahl and others. Erom an adverse judgment, plaintiff appeals. Where one signs a note for another and the consideration passes to that other from the payee, and such one receives the entire consideration and this is known to the payee still such party so signing and receiving none of the consideration is a principal maker.

<p>No application, for a new trial having''been'made, the findings of a referee, adopted by the court, are conclusive on appeal.</p> <p>Defendants-L. executed a deed, to complainant, intending that it should not take effect until after their death, and then only.in case complainant should have performed a contract to' care for the grantors during their lives. Neither the deed nor the contract was ever delivered, nor was it recorded by or with the consent or authority of either of defendants L.,-and though. complainant and- his wife thereafter rendered services in caring for the grantors, who were his parents, such services were no different from such as he and his wife would have rendered without such contract. Held, that there' was neither such assent nor performance of the contract as entitled complainant to enforce specific performance thereof, as against his parents and their subsequent grantee of the property during their lives. ■</p> <p>The presumption that the breach of an 'agreement to transfer real property cannot be adequately relieved by pecuniary compensation, as provided by Rev. Civ. Code, § 2341, is not a conclusive one, and does not apply to all agreements to transfer real property.</p>

<p>Appeal from Circuit Court, Lawrence County. Hon. W. G. Ricr, Judge.</p> <p>Action by George M. Furber against the Williams-Flower Company and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from Circuit Court, Butte County. Hon. W. G. Rice, Judge.</p> <p>Action by Ed Todenhoft against Jacobi De Roos. From a judgment granting defendant leave to file a néw tindertaking on appeal, plaintiff appeals.</p>

Hon. George H. Marquis, Judge. Charles Horn was convicted of shooting without justifiable or excusable cause, at another with intent to injure him, and brings error.

Hon. George H. Marquis, Judge , Action by Joseph Miller against the Chicago & Northwestern Railway Company. From a judgment for. plaintiff and an order denying a new trial, defendant appeals. The speed of the locomotive'in a case of this character, where the animals were not killed at a crossing but were trespassing upon the right of way at a distance therefrom, is incompetent and immaterial.

Hon. George H. Marquis, Judge. Action by S. H. Goodfellow aginst J. H. Kelsey and another. From a judgment in favor of defendants, and from an order denying a new trial, plaintiff appeals.

Hon. Levi McGee, Judge. Action by Horace S. Clark against Lawrence county and others, as officers thereof, to- restrain the collection of taxes on town and city lots in excess of the values fixed thereon by the board of equalization in 1905. From an order overruling a demurrer to- the complaint, defendnts appeal.

Hon. Joseph W. Jones, Judge. Action by John W- Reed against Eugene W. Coughran and another. Judgment for plaintiff. Defendants appeal. An agent cannot release valuable security and take something else instead of cash, without it being shown that he had authority or without ratification by his principal with knowledge of all the facts. Hormann v. Sherin, 6 S. D., 87; Shull v. New Birdsall Co., 15 S. D., 8.

Hon. James H. McCoy, Judge. Action by the City of Milbank against the Western Surety Company. From a judgment for plaintiff, defendant appeals. A surety cannot be held beyond the express terms of his contract. Rev. Civil Code, Sec. 1995; Cal. Civil Code, Sec. 2836; Leggett v. Humphreys, 21 How. (U. S.) 66; U. .S. v. Cheeseman, 3 Sawyer 429; The city records failing to show an affirmative yea and nay vote on letting the contract made the basis of this action, it is a nullity.

Hon. Joseph W. Jones, Judge. Action by Mary Garrigan against Joe Huntimer, Charles B. Huntimer, and F. J. Huntimer; Joe Kirby, intervenes. From an order granting an application to set off a judgment for costs in favor of plaintiff against a judgment for costs for defendants, the intervener appeals.

.Hon. Joseph W. Jones, Judge. Action by Margaret Grace Brown against Mary B. Hollister. From a judgment for plaintiff, defendant appeals. The judgment in the former case is a bar to every matter which the plaintiff had an opportunity to' present and might have had adjudicated therein, whether actually presented and solved or not, and is conclusive upon any question within the issues actually presented.

Hon. Lyman T. Boucher, Judge. Habeas corpus by the state, on the relation of John H. Haff against Jerry Schlachter, sheriff of Edmunds county. From an order refusing to vacate an order denying relator’s application for discharge, relator appeals. Actual personal presence in the demanding state at the time of the commission of the. offense is essential to- make one a fugitive from justice. Ex parte Smith, 3 McLean 121, Storey’s Case, 3 Cent.

Hon. Gdorgu H. Marquis, Judge. Action by P. M. Fritz against the city of Watertown. From a judgment for plaintiff and from an order denying defendant’s application for a new trial, it appeals.

Hon. Frank B .Smith, Judge. Action by Ricklef Funscheon against Albert Wocknitz. From a judgment for plaintiff, defendant appeals.

■ Appeal from Circuit Court, Lyman County. Hon. Frank B. Smith, Judge. Action by George Moore against Per Persson. From a judgment of the circuit court affirming the action of the justice of the peace in sustaining a demurrer to the complaint, plaintiff appeals.

<p>Appeal from Circuit Court, Clark County. Hon. Julian Ben-net, Judge.</p> <p>Action by Ditlew M. Erederiksen against C. H. Wilcox and another. Judgment for defendants. Plaintiff appeals.</p>

<p>Appeal from Circuit Court, Meade County. Hon. Joseph B. Moore, Judge.</p> <p>Action by Charles C. Polk against James E. Carney and others. From an order granting a new trial, plaintiff appeals.</p>

<p>Appeal from Circuit Court, Faulk County. Hon. Loring E. GaRRy, Judge.</p> <p>Action by C. B. Chambers against Martin Roseland. From a judgment for defendant, plaintiff appeals.'</p>

Hon. Josupi-i W. Jonbs, Judge. Action by the Plano Manufacturing Company against Soren Thompson. From an order denying application toi have a partial satisfaction of judgment canceled of record, plaintiff appeals.

<p>Appeal from Circuit Court, Day County. Hon. J. H. McCoy, Judge.</p> <p>Action by the Aultman Engine & Thresher Company against W. G. Boyd. From a judgment for plaintiff, defendant appeals.</p>

<p>Error to Circuit Court, Dyman County. Hon. Frank B. Smith, Judge.</p> <p>Henry Pratt was convicted of perjury, and brings error.</p>

Hon. J. H. McCoy, Judge. Action by Fred J. McArthur, successor, etc., against E. F. McCoy. From a judgment for plaintiff, defendant appeals. An account, which consists entirely of charges upon one side, and credit for cash payment on the other, is not “an open, mutual and current account where there have been reciprocal demands between the parties,” within the meaning of the statute.

<p>The fact that plaintiff in an action to recover the possession of horses wrongfully seized by defendant sheriff under an execution against another party received the horses as bailee from the purchaser at the execution sale, acknowledging his title thereto, did not preclude plaintiff from recovering the value of the horses of defendant.</p>

Hon. GEORGE H. Marquis, Judge. Action by the Tollerton & Warfield Company against A. C. Gilruth and others. From a judgment for defendants, plaintiff appeals, A principal is not bound by a written contract executed by an agent in his own name, and which is beyond the scope of his authority and does not contain any words tending to show that it was executed for, or in behalf of, such principal.

Hon. George; H. Marquis, Judge. Action by W. J. Hahn against the Sleepy Eye Milling Company, the Wohleter Elevator Company, and others. Defendant elevator company appeals from a judgment for plaintiff.

<p>In an action to recover money, an assignment of error that the verdict is excessive is sufficient to call attention to the pleadings, verdct, and iudgment as constituting the material parts of the judgment roll.</p> <p>Under Rev. Pen. Code, § 712, making one maliciously injuring property not his own liable in treble damages to the “owner of such property,” one in possession of but not the owner of premises could not recover treble damages.</p> <p>In an action to recover damages for malicious mischief, the question as to what judgment should be rendered is to be determined by the pleadings, verdict, and the law applicable thereto, and that question may be reviewed in the Supreme Court independently of a bill of exceptions.</p>

<p>Appeal from Circuit Court, Potter County. Hon. Loring E. Gappy, Judge.</p> <p>Action by L. Anderson against J. L. Lambert, as county treasurer, and another. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from Circuit Court, Beadle County. Hon. Charles S. Whiting, Judge.</p> <p>Action by Frank E. Stevens against J. W. Doughty. From a judgment for defendant, plaintiff appeals.</p>

<p>There is a part performance of an oral contract of sale of land which under Rev. Civ. Code, § 1311, authorizes specific performance, whore, in addition to payment of earnest money, the buyer, with the acquiescence of the vendor, sets out large shade trees in front of the property, though his actual occupancy of the house with his family commences after the refusal to perform.</p> <p>Corson, J., dissenting.</p>

<p>Appeal from Circuit Court, Deuel County. Hon. George H. Marquis, Judge.</p> <p>Action by J. J. Sutton against Mary J. Whetstone. From a judgment for defendant, plaintiff appeals.</p>

<p>In an action to foreclose a mortgage securing a note and interest coupons, the holder of two of the coupons was made a party-defendant, and a judgment was rendered decreeing a sale of the mortgaged premises to satisfy, first, the claim of the holder of the note, and, second, that of the holder of the coupons. The property brought the amount due on the note only. The mortgagors redeemed from the sale, and thereafter the holder of the coupons brought an action to again foreclose the mortgage to the extent of the amount due on the coupons. Held, that by pleading the judgment against them in the first foreclosure suit as a bar to the action, the mortgagors were estopped from setting up the invalidity of the judgment in a subsequent action thereon.</p>

<p>Appeal from Circuit Court, Beadle County. Hon. Charges S. Whiting, Judge.</p> <p>Action by A. H. Doyle against William H. Birdsell and others. From a judgment for defendants, plaintiff appeals.</p>

<p>The notice of contest of an election showing that defendant is entitled to the office, if he was of the age required by the Constitution when elected, which it denied, the answer need only allege that he was of such age.</p> <p>Exclusion of evidence of a collateral circumstance established by other competent, uncon-tradicted evidence is harmless-</p> <p>Where a witness, after. stating that -a certain person was born in 1881 was asked in what part of the year, her answer, “so far as I remember, just as M. said,” is not hearsay, she merely adopting as her own statement of M., who had just testified that the person was born in the early part of the winter of 1881.</p> <p>Testimony that witness at a certain time, while holding the office of justice of the peace, performed -a marriage ceremony for certain Xjersons, is iiot objectionable on the ground that the record of his election or appointment was the best evidence, -neither the legality of the office nor the validity of the marriage being in issue, but the only material matter being whether witness, purporting to act as a justice performed the marriage at the time and pl-ace stated by him.</p> <p>It is not error to allow a witness, who has testified that a certain time and place, acting as a justice, he performed a marriage ceremony for certain persons, to state that he made a record of it in his official docket, without producing the docket, which at the time of his testifying is not in his possession or under his control, his testimony not being to the contents of a written instrument, but only to the fact that he made an entry at the time.</p> <p>Plaintiff may not have depositions taken for defendant suppressed on the ground that no proper oath was administered, counsel who represented him at the taking of the depositions not having then objected to the manner in which the -oath was administered.</p> <p>Where a person gave two depositions, both read in evidence, the first taken by defendant, and the second by plaintiff, and in the second she placed the date of an event á year l-ater than in the first, and therein fully explained the circumstances which she claimed- led to the discovery of her mistake, conversations between her and a witness, offered by plaintiff on rebuttal, occurring after the taking of the first deposition, in which she gave the same explanation as in her second deposition regarding the discovery of the mistake, are properly excluded, her testimony standing in the same light as if the first deposition had not been given.</p> <p>Where, when a deposition was taken for plaintiff, deponent produced a bible, purporting to contain a record of the birth of A., and this was offered in evidence when the deposition was taken, but was not returned with the deposition or offered on the trial, and an objection made to its introduction when the deposition was taken was that it appeared to have been altered, testimony of another witness for plaintiff as to what entry he saw in said bible concerning A., and as to the character of it with reference to clearness, is properly excluded as not the best of evidence.</p> <p>Where plaintiff contests defendant’s election on the ground that deiendant was not of the required age when he was elected, and thar plaintiff, who was elected at the proceeding election, was entitled to hold the office till an eligible person was elected, admission of defendant’s testimony that at the election at whiol he was elected plaintiff was a candidate, if error, is harmless.</p> <p>Evidence in an election contest in which plaintiff’s case depended on his proving that defendant was not 25 years old when he was elected held sufficient to sustain a finding for defendant.</p> <p>The denial of a new trial for newly discovered evidence, where ■ the showing as to diligence or materiality of the newly discovered evidence is challenged, involves an exercise of discretion, not reviewable except for manifest abuse.</p>

Hon. Frank B. Smith, Judge. Action by the Norbeck & Nicholson Company against Charles Ii. Pease.

Hon. E. G. Smith, Judge. Action by William H. McVay, as admiinistrátor of the estate of Timothy O’Brien, against Hosea Bridgman and others. From a judgment for plaintiff, defendants appeal.

<p>Appeal from Circuit Court, Kingsbury County. Hon. Ciiaktjís S. Writing, Judge.</p> <p>Action by Frank Joas against James F. Jordan, as trustee, for the benefit of creditors of Jacob C. Jacobson, and the Equitable Fidelity & Title Company and Jacob C. Jacobson. From an order overruling its demurrer to the complaint, the Equitable Fidelity & Guaranty Company appeals.</p> <p>A debtor may pay one creditor in preference to another or may give to one creditor security for the payment of his demand in preference tc another. § 2366, Revised Civil Code: Sandwich Mfg. Co. v. Max, 5 S. D. 125; Jewett v. Downs, 6 S. D. 319; Bank v. North, 2 S. D. 491; Jones v. Mycr, 7 S. D. 132. The statute does not declare that one who has decided to apply all his property in payment of his debts as far as it will apply must distribute among his creditors ratably. Cutler v. Pollock, (N. D.) 25 R. R. A. 377. In the absence of express conditions a liability will not be construed into- a bond which was not intended by the parties. 5 Cyc., page 765. Conditions are in many cases inserted in a bond in the nature of conditions precedent to liability thereon and where so inserted a performance of or compliance therewith is a prerequisite to the maintenance of an action to* recover on such instrument. 5 Cyc., page 814; Davi's v. Gulley, 19 N. C. 360; Cowles v. Garrett, 30 Ala. 341.</p> <p>An assignment for the benefit of creditors authorizing the assignee to carry on and conduct said business in his discretion for such a time as in his judgment it shall be beneficial so to do or to sell all of said goods and stock in trade and property at such time, in such manner, and for such prices as he may deem proper, and to apply the net proceeds, etc., is void. Jones v. Syer, 36 Arner. Repts. 366. McCleery v. Alien, 29 Ara. L,. 777; McReyndds v. Redman, 47 Ark. 384; Green v. Banks, 24 Tex. 508. All parties to a deed are bound by the recitals in it legitimately appertaining to the said matter of it. Recitals of a matter of fact in a deed are ordinarily binding on the grantors. They are also binding on the grantees and his successors in a state where he, or they, base their right on the deed, but not otherwise. 16 Cyc. 699,700. Parties are estopped by the material recitals in a bond the same as by the recitals in a deed of conveyance. 16 Cyc. 702.</p>

<p>The stipulation in a contract for the sale of real estate that time is of the essence is waived by the vendor consenting to an extension of time for the payment of the balance due under the contract.</p> <p>Where a vendor in a contract for the sale of real estate which made time of the essence consented to an extension of time for the payment of the balance due, he could maintain no action thereon without tendering the deed or demanding payment.</p> <p>Where time is not of the essence of a contract for the sale of real estate, or where time has been waived, a vendor seeking to enforce the contract must tender a deed and demand payment of any balance due, and the purchaser seeking to place the vendor in default must tender the balance and demand a deed.</p>

<p>The circuit court in which an information is entitled and filed takes judicial notice of its clerk and his signature affixed thereto-</p> <p>A demurrer to an information on the ground that facts sufficient to- constitute an offense are not stated does not reach an objection to the jurat thereto.</p> <p>Under the statute requiring saloons to be closed on Sunday, it is no defense for the keeper of a saloon to show that his saloon was opeiied by his regularly employed bartenders contrary to his instructions.</p> <p>Where, in a criminal case, there was no conflict in the evidence, it was error without prejudice to charge that the jury might disregard the uncorroborated testimony of any witness if satisfied that he testified falsely.</p> <p>Where, on a trial for a misdemeanor involving no question of intent, the commission of the offense by accused was established by the undisputed evidence, it was proper to instruct the jury as to the legal effect of the evidence.</p> <p>Where, on a trial of a keeper of a saloon for violating the Sunday law, the undisputed evidence proved that the saloon was open on Sunday, and the counsel for accused in open court admitted that accused was the proprietor of the saloon, and that it was open on Sunday, an instruction reciting the admission of counsel that a criminal offense had been committed, but without the knowledge of accused and against his express direction, was not prejudicial.</p> <p>An instruction in a criminal case is not erroneous for assuming facts proved by the undisputed evidence and treated as proved by accused who denies the sufficiency of the evidence to justify a conviction.</p> <p>While counsel for accused in a criminal case has no authority to enter a plea of guilty, his admission of facts in open court in the presence of accused, who offers no objection, is presumptively made with his consent.</p>

Hon. J. H. McCoy, Judge. Action by the Crane & Ordway Company against H. E. Jones and another. From a judgment for plaintiff and from an order denying a new trial, defendants appeal.

<p>Error to Circuit Court, Sully County. Hon.. Lyman T. Boucher, Judge.</p> <p>Fred Bennett was convicted of malicious mischief, and he brings error.</p>

<p>Appeal from Circuit Court, Spink County. Hon. Charles S.' Wh iting, Judge.</p> <p>Action by the First National Bank of'Sibley, Iowa, against George H. Doeden. From a judgment for defendant, plaintiff appeals.</p>

Hon. 'Georgb H. Marouis, Judge. Action by the state against Margaret W. Mellette. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. The fact that there is a surety for one of the debts does not preclude the creditor from applying a payment- so received to the debt for which he has no- security. Harding v. Tifft, 75 N. Y. 461; -Allen v. Culver, 3 Den. 285; Stone v. Seymour, 15 Wend. 20; Alexander v. U. S., 6 C. C. A. 602.

<p>Appeal from Circuit Court, Lawrence County. Hon. W. G. Riot, Judge.</p> <p>Actions by Burt Rogers against the Gladiator Gold Mining & Milling Company, Gold Fish Mining Company, Red Cloud Mining Company, and Cephas H. Crabtree, joined as a defendant in each action. From a judgment in> favor of plaintiff in each action, and from an order denying defendants’ application for a new trial, they appeal.</p>

Hon. E. G. Smith, Judge. Action by the Cable Company against Jacob Rathgeber, sheriff. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.

Hon. W. G. Rtci(, Judge. Anna Skelly filed a petition in. the county court asking for the appointrnem of a person therein named as administrator of the estate of her deceased husband. A creditor having also filed his petition asking for the appointment of a person therein named as administrator, an order was entered granting- the petition of Anna Shell)’-, and such creditor appealed to the circuit-court, where the order of the county court was affirmed.

Hon. Loring E. GaRKUy, Judge. Action by E. D. Smith against the Mutual Cash Guaranty Fire Insurance Company on a fire policy. Judgment for plaintiff, and. defendant appeals. Wliere the insured is guilty of misrepresentation and breach of warranty in reference to the subject of insurance and of fraud in the inception of the policy, no valid contract is formed, the policy is void and never attaches to the risk. Knudson v. Legion of Honor, 7 S. D. 214; Am. Ins.

<p>Where • the assignment of error was to the insufficiency of the evidence to justify the decision-, respondent was entitled to an allowance for printing an additional abstract containing all the evidence.</p> <p>Where both respondents joined in the brief on appeal, and one, acting as attorney for the other, requested that fees for argument should be taxed in favor of the latter, the clerk properly refused to allow similar fees for the former.</p>

<p>Comp. Laws 1887, § 974, relating to street improvements, provided. that the entire cost of the improvement should be divided by the number of feet fronting or abutting on the same; the' quotient to be the sum assessed per front foot. The provisions substituted by Laws 1890, p. 94, c. 37, art. 16, § 16 (Rev. Pol. Code, § 1204), omitted “entire” and inserted, “fronting on the property to be assessed” after “improvement.” Held, that even under the new law the entire cost of improvements including street and alley intersections should be included in determining the assessment per front foot.</p>

<p>Rev. Civ. Code, § 986, provides that every conveyance of real property except a lease for less than a year is void as to certain classes of persons whose conveyances are first recorded. Section 987 provides that “conveyance,” as used in the last section, embraces instruments in writing by which an interest in real property is encumbered. Held, that, in order to protect a mortgagee against certain classes of persons, his mortgage must he recorded, and therefore, if given by an insolvent, will be deemed a preference if not recorded four months before the filing of his petition in bankruptcy, under the express provisions of Bankr. Act July 1, 1898, c. 541, § 60a, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445], as amended by Act Cong. Feb. 5,' 1903, c. 487, § 13, 32 Stat. 799 [U. S. Comp. St. >Supp. 1907, p. 1031], relating to preferences. ,</p> <p>A statement in a complaint by trustees of a bankrupt that the bankrupt’s estate is insolvent, and that there is not property enough to pay the general creditors, is not a conclusion of law, but a statement of facts which must be taken as true on demurrer.</p> <p>A demand is not necessary before bringing an action to set aside a mortgage given by a bankrupt as a preference.</p> <p>A person procuring a mortgage as a preference from a bankrupt is a trustee, under Rev. Civ. Code, §§ 1615, 1616, relating to involuntary trustees, and actions against him, to set aside a mortgage from the bankrupt, of land in the state, and to set aside a conveyance to him from the bankrupt of land in another state, may be joined under Rev. Code Civ, Proc. § 144, subd, 7, relating to the joinder of actions arising out of claims against a trustee.</p> <p>In an action by a trustee in bankruptcy to vacate a deed executed by a bankrupt, a state court has jurisdiction of the subject-matter, notwithstanding the property is located in another state.</p> <p>Where a person has appeared generally in a case, he is estopped from denying the court’s jurisdiction of his person.</p>

<p>An appeal from a judgment for defendant because the complaint fails to state a cause of action, it is improper to consider any of the defenses pleaded.</p> <p>Under Rev- Civ. Code, § 2044, providing that every transfer of an interest in property other than a trust, made as security for the performance of another act, shall be deemed a mortgage, a transfer of real property by deed made to secure a loan is a mortgage and may be shown to be such by proof of circumstances attending its execution and the actual intention of the parties.</p> <p>Where a deed was executed as security for a loan, the fact that there was no collateral undertaking evidencing the indebtedess and no covenant or personal obligation by the grantor to pay was not fatal to the grantor’s right to have the deed declared a mortgage.</p> <p>A complaint to have a deed declared a mortgage alleged that the deed was made by plaintiff, and deeds of outstanding interests procured by plaintiff to be made to defendant to seure a loan of §450, which was used to pay liens on the land, etc., and that it was agreed that, on the repayment of the sum so loaned, defendant should re-convey the property to plaintiff; that all of the loan and interest except ?190 had been paid; and that plaintiff had tendered the balance and demanded a reconveyance which defendant had refused. Held, that the complaint was sufficient to sustain a decree for the relief demanded.</p>

<p>Rev. Cr. Code Proc. § 339, provides for the challenge of jurors for implied bias in case the juror stands in the relation of attorney and client to the person alleged to be injured by the offense .charged, or on whose complaint the prosecution was instituted or is in his employment. Held, that the right to a challenge for implied bias depends exclusively on the relationship of the juror to the defendant, the prosecuting witness, or the person injured by the offense charged, so that the relation of attorney and client between the juror and the state’s attorney was not ground for the challenge.</p> <p>Where, in a prosecution for horse stealing, it was claimed that defendant disposed of the horses to N., by whom they were shipped to Nebraska, where they were taken by the sheriff, the latter was properly permitted to testify that during a former trial he heard defendant state in the courtroom that he went from his ranch to P. at the same time N. went, which was the day he called at the ranch of H., who testified that he saw some loose horses being driven outside his fence and in the direction of the village.</p> <p>Where, in a prosecution for horse stealing the state claimed that defendant had sent certain of the horses to Nebraska by N. for sale, a question, asked of a sheriff who seized the horses from N. in Nebraska, as to whether defendant said anything about having sent any horses to Nebraska by N., related to the horses which were the subject of the larceny, and was not objectionable as irrelevant.</p> <p>In a prosecution for horse stealing, circumstancial evidence held sufficient to sustain a conviction.</p>

<p>Error to Circuit Court, Beadle County. Hon. Frank B. Smith, Judge.</p> <p>Howard A. Jones was convicted of embezzlement, and he brings error.</p>

Pión. Ci-iarrrs S. Whiting, Judge. Action to'quiet title by Charles N. Cooper against Thomas J. Harvey. From a judgment for .defendant and an order denying a new trial, plaintiff appeals.

Hon. George IT. Marquis, Judge. Action by O. E. Dewey against George Sibert and others. From a judgment in favor of defendant John Walklin, plaintiff appeals. Reversed, and a new trial ordered.

Hon. Julian BiJN-NkTT, Judge. Action by A. J. Jackson against the First State Bank of Clark and others. From an order denying a motion to set aside certain orders in proceedings for the dissolution of defendant bank, axid refusing to appoint a new receiver, but without prejudice to the institution of another proceeding on terms, the moving stockholders appeal.

<p>A preliminary complaint before a justice charging that, on a specified date in L. .county, defendant unlawfully engaged in the business of selling and keeping for sale spirituous, intoxicating liquors at retail, “without first having procured a license therefor in the manner and as provided by law,” such liquors not being then and there proprietary patent medicines, was sufficient for a preliminary examination at which accused might he discharged or held for any offense shown by the evidence.</p> <p>Rev. Pol. Code, § 2856, as originally enacted, prohibited the granting of a license for the -sale of liquors within the corporate limits of any city, town, or township of the state, unless authorized by a majority of the legal voters at each annual election, etc., but that nothing therein contained should apply to any precinct within which there was no incorporated town or city, authorizing licenses to be issued for sale in such districts by the county. This section was amended by Laws 1903, by re-enacting it without the part authorizing a sale in precincts not within the corporate limits of cities, towns, or townships, and providing that all provisions of the section not repeated in the amendment were repealed. Held, that the section as amended prohibited the sale of liquor outside cities, towns, and townships, and that no license could thereafter be validly issued by a county to sell liquor in such prohibition localities.</p> <p>Under Rev. Pol. Code, § 2856, as amended by Laws 1903, p. 191, c. 166, impliedly prohibiting the sale of intoxicating liquors in districts outside incorporated cities, towns, ' and townshps, an information charging that defendant engaged in the business of selling and offering for sale on a specified date intoxicating liquors at retail in the unincorporated town of R. in the county of L., etc., sufficiently charged an offense under such statute.</p>

<p>Error to Circuit Court, Clark County. Hon. G^ORGí H. MaRouis, Judge.</p> <p>Carl Jackson was convicted of crime, denied a new trial, and brings error.</p>

<p>Error to Circuit Court; Lake County. Hon. J. W. Jonés, Judge.</p> <p>Dora Lepine was convicted of homicide and brings error.</p>

<p>Appeal from Circuit Court, Lincoln County. Hon. J. W. Jones, Judge.</p> <p>Action by Everett Edwards, continued after his death by Thomas Edwards, administrator, against the Chicago, Milwaukee & St. Paul Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>■Where an applicaiton for a new trial is made on the minutes, and the notice of intent to move for a new trial, which specifies the particulars in which the evidence is alleged to be insufficient and the particular errors relied upon, is incorporated into the bill of exceptions, the sufficiency of the evidence and alleged errors may be reviewed on appeal, though the bill of exceptions contains no specifications of error.</p> <p>Where the' uncontradicted evidence was that, after the execution of a contract of sale of certain land, the purchaser wrote one F. who was'the cashier of a bank, stating that he inclosed a draft for a certain amount, which, with other amounts on deposit, made up the purchase price of the land; that this was to be paid over on the receipt of warranty deed from the vendor to oneA. and a special warranty cross-deed from H. to the vendor; that the title for the first time had been declared acceptable; and that, if the deeds were not at the bank from H., then for the cashier to get them before paying over any money, so the deeds could be recorded together — it was error to find that there was an agreement that the purchase price should be paid into the bank as a special deposit, there to remain until title to the land was perfected, when it was to be turned over to the vendor.</p>

<p>Application of R. F. Brown, for writ of habeas corpus for his discharge from imprisonment.</p>

Hon. J. H. McCoy, Judge. Action by Enoch Stott, surviving partner of Stott & Son, as substituted plaintiff, against H. S. Chamberlain. From a judgment for plaintiff, and order denying a new trial defendant appeals, Unless shown to have been written with a different intendment the language used in a contract should have the ordinary construction put upon it. That is the words used be taken in their ordinary sense. Bullock v. Consumers Lbr.

Hon. T. W. Jones, Judge. Action by the Flint & Walling Manufacturing Company against A. D. McDonald and others. From a judgment for plaintiff, the Western Surety Company and others, defendants, appeal.

<p>Postponements in criminal actions, under Rev. Code. Cr. Froc. § 316, not being specifically provided for, must by tbe express provisions of section 643, be in accordance with, the practice of the common law, except in so far as that practice may conflict with the' state Constitution.</p> <p>By Const, art. 6, § 7, providing that one accused of crime may have “compulsory process served for obtaining witnesses in his behalf,” he is entitled to the presence of his witnesses if their presence be procurable, and this necessarly includes adequate means to secure their presence or the advantages which would flow therefrom.</p> <p>The absolute right of an accused to the presence of his witnesses or the advantages which would flow therefrom does not exist with respect to a witness whose attendance cannot be compelled, but the court may, in its discretion, in case the witness is a non-resident of the state, continue the trial, if satisfied that the attendance or deposition of the witness will be procured, and, if satisfied that the witness’ testimony would be material and that due diligence has been exercised to procure his attendance or deposition, the court may permit the state to avoid the continuance by admitting that the witness, if present, would testify as stated in the application.</p> <p>Where an accused shows himself entitled to a continuance to obtain the testimony of an absent witness if the witness is within the state, or, being a resident of the state, if it is reasonably certain that his presence can be compelled at the time to which the trial would be postponed, it is clearly erroneous to permit the state to avoid the continuance by merely admitting that the witness, if present, would testify as alleged in the affidavit.</p> <p>In any case a continuance to which an accused shows himself entitled by reason of an absent witness may properly be avoided by admitting the truth of the facts to which it is alleged such witness would testify.</p> <p>Where it appears in a criminal case that due diligence has failed to procure the presence of a witness for the accused, but that it is reasonably certain his presence will be secured subsequently, a continuance can only be avoided by an admission of the facts to which it is shown the witness would testify, since the accused is entitled to a reasonable opportunity to secure the personal attendance of his witness.</p> <p>Where an application for a continuance made at the same term at which the information was filed, showed that the alleged testimony of the absent witness was material, and would contradict the only direct evidence tending to connect defendant with the commission of the crime, that defendant knew of no other witness from whom the same evidence could be procured, and that the absent witness, a resident of the state, was at the time of the trial, and had been for 30 days prior thereto in a hospital in another state, temporarily insane, his case being a curable one, and it appears that there was no want of diligence in securing the witness’ attendance, defendant was entitled either to a continuance or an admission of the truth of the facts alleged in the application, since there' was a reasonable cerrainty that the witness’ presence could be procured at the next term; and it was error to permit the state to avoid the continuance by merely admitting that the witness, if present, would testify as alleged in the application.</p>

Hon. J. H. McCoy, Judge. Action by E. A. Merger and another against the Commercial Mutual Fire Association. From an order setting aside a judgment for defendant and granting a new trial, defendant appeals.

<p>Rev. Code Civ. Proc. § 345, provides for certain absolute exemptions for a debtor, and section 346 provides that a debtor who is the head of a family may select from the property, not otherwise exempt, additional personal property not exceeding $75 0 in value, which is also exempt and must be chosen and appraised as provided by law. Section 3.47 provides that the debtor may select certain specific property which shall be exempt, instead of the exemption granted in the preceding section. Section 355 provides that, whenever a debtor desires the benefit of section 346, he must make a schedule of his property under oath as therein prescribed. Section 357 provides for appraisement and selection by the debtor therefrom if it exceeds the limitation in value, leaving the remainder, if any, subject to legal process. Defendant, a sheriff, levied an execution on certain property belonging to plaintiff, who served a schedule of his property on defendant, claiming all of it as exempt. The appraisers were duly appointed, and the property valued at $1,037.70. Defendant notified plaintiff to immediately make his selection of property claimed as exempt, and upon failure to do so took two horses, and subsequently sold them. Before the sale, and within three days after appraisement plaintiff served notice on defendant that he claimed the horses as exempt and demanded possession of them, and upon defendant’s refusal to deliver sued to recover their value. Held, that section 347 had no application to the case, since plaintiff’s original selection was under section 346, and that plaintiff had a reasonable time after appraisement in which to make the second selection.</p> <p>Upon being notified of the second selection, defendant was required under the law to return the property selected, to the debtor on demand, and was liable for its value on failure to do so.</p> <p>An action for conversion was plaintiff’s proper form for remedy.</p> <p>By failing to make selection immediately on being notified that the selected property exceeded $750, plaintiff did not waive his exemption, for he had a reasonable time in which to consult his attorney and to make his selection.</p> <p>The selection was made within a reasonable time.</p> <p>Plaintiff was not required to turn over other property upon claiming the two horses, since, under section 357, he was simply required to leave it subject to legal process.</p> <p>The fact that plaintiff had other property of the value of $75 0 remaining in his possession after seizure of the horses in question was immaterial,- either on the question of damages or for any other purpose of damages or for any other purpose, for a debtor’s right to select and. hold property as exempt is not affected by the fact that he owns other property subject to execution which he has not surrendered to the officer.</p> <p>Refusal to give an instruction which' is substantially given in other instructions is not error.</p> <p>Exemption laws of this state should be- liberally construed.</p>

Hon. Torino E. Garry, Judge. Action by Olive Mosteller against James Holborn (Albert Gunderson, intervener). From an order granting partial relief on application to set off mutual judgments, plaintiff and intervener appeal.

<p>To defeat a broker’s action for commissions in the purchase and sale of grain for future delivery, it is necessary to show that neither party had any intention of receiving or delivering the property, and that both understood or agreed that the transaction should be settled by a payment of differences.</p> <p>The purchase and sale of personal property for future delivery was not rendered illegal by the fact that at the time the contract was made neither party owned or had the property contracted for in his possession, but was required to go into the market to obtain it.</p> <p>Where a broker purchased wheat for defendant for future delivery, the broker intending to actually deliver, the fact that, i$ obedience to defendant’s instructions and the legally recognized usages of trade, the broker closed the transaction long before the time for delivery had arrived, did not impair his right to recover commissions and advances, unless he in some manner was privy to a wagering contract to speculate on the market.</p> <p>In an action for broker’s commissions, evidence held to sustain a finding that the broker intended an actual delivery of the wheat purchased by him for his customer for future delivery, and not a mere wager on the market.</p> <p>Where it was stipulated that an offer of a telegraph company, if present, would testify that certain telegrams sent by defendant to plaintiff during 1901 had been destroyed, defendant not having produced such telegrams in response to a notice, plaintiff was entitled to introduce the telegrams received by him ordering to purchase or sell on defendant’s account a specified amount of wheat for future delivery, for which plaintiff claimed commissions, etc.</p> <p>AVhere defendant ordered a broker doing business on a grain exchange to purchase and sell wheat for him for future delivery, defendant, by failing to give any instructions to the contrary, impliedly authorized, the broker to execute the orders in accordance with the established rules and usages of the exchange.</p> <p>AVhere a grain broker was ordered to purchase wheat on the exchange for future delivery, it will be presumed, in the absence of evidence to the contrary, that he acted in conformity with the rules and usages of the exchange.</p> <p>Corson, J., dissenting.</p>

<p>Appeal from Circuit Court, Minnehaha County. Hon. Joseph W. Jones, Judge.</p> <p>'Action by Sylvester Phillips against John J. Hink. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals.</p>

Hon. Joseph W. Jones, Judge. Action by Alfred A. Loiseau against William Arp. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. The owner of animals such as horses, oxen, sheep, etc., is under an unqualified obligation, at common law, to restrain them from trespassing upon the land of other persons.

Hon. Joseph W. Jones, Judge. Action by George W. Ingalls against A. J. Christopherson and John T. Medin, co-partners under the firm name of Christopherson & Medin, and another. Judgment for defendants, and plaintiff appeals. There is a malicious abuse of process where the party employs process, legally and properly issued, wrongfully and unlawfully, for a purpose which it is not intended by law to effect. 19 Am. & Eng. Ene. 630; Mayer v. Walter, 64 Pa.

Hon. Losing E. Garry, Judge.' Action by Henry J. Lawrence and another against Adolph Ewert and another. From a judgment for plaintiffs and an order denying a new trial, defendants appeal.

Hon. Revi McGee, Judge. Action by Jay R. Hickox, as trustee, etc., against Charles S. Eastman, as sheriff of Fall River county, and another. From a judgment tor plaintiff, defendants appeal.

<p>Error 1o Circuit Court, Charles Mix County. Hon. E. G. Smith, Judge.</p> <p>John Ham was convicted of larceny, and he brings error.</p>

<p>Error to Circuit Court, Davison County. Hon. Frank B. Smith, Judge.</p> <p>IT. R. Landers was convicted of murder and he brings error.</p>

<p>Unless it is unavoidable, testimony to prove the voluntary character and admissibility of a ■ confession should not be offered in the presence of the jury, and the court should direct that such testimony should be introduced in the jury’s absence whether requested by either party or not.</p> <p>Where objections were interposed to a confession when it was offered, but no motion was made to have it stricken out or withdrawn, its competency depended on the evidence- as it stood when the confession was received.</p> <p>A month prior to making a confession the sheriff told accused while in custody that he had “better give up”; that it would be easier, for him. Thereafter accused sent for' the sheriff, and stated that he -wanted to tell everything, that he could not “stand it any longer,” whereupon the sheriff, without further comment, stated that he would send for the state’s attorney, to whom accused admitted that he had shot deceased, and asked the sheriff to keep him from being hung. Held, that the confession was voluntary and admissible.</p> <p>In a prosecution for homicide, defendant’s admissions connecting him with the offense having been properly admitted, the- court did not err in admitting a coat ai\d handkerchief found by the sheriff at the place to which defendant directed him.</p> <p>Admission of a letter written by accused while in jail to his father and mother, and delivered unsealed to the sheriff for mailing, containing an implied admission of his participation in the crime with which he was charged, was not objectionable as violating Const, art. 6, § 9, providing that no person shall be compelled to be a witness against himself.</p> <p>Where, in a prosecution for homicide, accused was either guilty of murder or was not guilty of any offense, a request to charge that the jury might find him guilty of any minor offense necessarily Included in the offense of murder was properly refused as improper in form and as unauthorized by the evidence.</p> <p>FULLER, P. J., dissenting.</p>

Hon. J. H. McCoy, Judge. Action by Frank C. Ball against Charles R. Dolan. From a judgment for defendant plaintiff appeals.

Hon. W. G. Ricii, Judge. Action by Henry D. Lemon against Frank E. Little and another. From a judgment for plaintiff, defendant Frank E. Little appeals. An agent who accepts an adverse employment without the knowledge of his principle cannot recover any compensation from either party. Enc. Law, 1102; Wadsworth v. Adams, n Sup. Ct.

<p>Appeal from Circuit Court, Marshall County. Hon. J. H. McCoy, Judge.</p> <p>Action by John P. Schott against E. C. Swan. From an order denying a new trial defendant appeals.</p>

<p>Appeal from Circuit Court, Marshall County. Hon. Lyman T. Bouchur, Judge.</p> <p>Action by John Stolle and another against T. M. Stuart. From a judgment for plaintiffs, defendant appeals.</p>

Action by the Fullerton Lumber Company against E. D. Tinker and others. Judgment for plaintiff, and defendant H. B. Williams appeals. On motion to dismiss. Denied conditionally. Hon E. G. Smith, Judge.