Volume 22 — South Dakota Reports

Hon. J. H. Me Coy, Judge. Action by L. L. Nordness against the Mutual Cash Guaranty Fire Insurance Company on a fire policy. From a judgment for plaintiff and an order refusing a new trial, defendant appeals.

Action by the Fountain City Drill Company against A. W. Lindquist. Judgment for defendant, and plaintiff appeals. Appeal from Circuit Court, Roberts County. Hon. J. H. McCoy, Judge. Held: that this was tanamount to a delivery. Kaufman v. Canary, 45 N. W. S. 1143; 47, N. W. 152. If the time of deliver}' was extended there must be a. new offer of delivery at the close of such extended time in order to put the defendant in default. Gehl v. Milwaukee Produce Co., 93 N. W. 26.

Hen. J. H. McCoy, Judge, Action by J. E. Roberts against .Charles F. Ruh. Judgment for defendant, and from an order denying plaintiff’s motion for a new trial, he appeals.

<p>Regulations of the Indian Department relating to the sale of allotted land of deceased Indians of the Sisseton hand provided that the owners of such inherited lands might petition the Indian agent to have the lands sold, agreeing that the proceeds he deposited in national hanks, subject to the check of such heirs for amounts not exceeding $10 to each in any one month, when approved hy the agent, and for sums in excess of $10 per month on the approval of the agent only when specifically authorized hy the Commissioner of Indian Affairs. Held, that the proceeds of the sale of inherited allotted lands, deposited hy the Indian agent pursuant to such regulations, and represented hy a certificate of deposit, were not subject to an execution issued on a judgment against the Indian selling the land.</p> <p>Members of tbe Sisseton band of Sionx Indians allowed to take lands in severalty under tbe contract between tbem and tbe United States are still wards of tbe government, wbicb bad tbe right to impose such terms and conditions as to tbe proceeds of tbe sale of the lands as it might deem proper and.most conducive to tbe welfare of the Indians.</p> <p>Fuller, J., dissenting.</p>

<p>Habeas corpus on petition of Henry M. Hawley.</p>

Hon. LymAN T. Boucher, Juclg-e. Frank Matejousky was convicted of larceny of a horse, and brings error. At common law it was sufficient to describe the property as a horse or horses, but within states having statutes such as our Chap. 151, laws of 1903, such a description is insufficient. The word horse, when uised in an information in a state having such a statute, is not used in its generic sense.

Wolven and an-otliers as executor's of the will of John W. Wolven, deceased. From a jncgmeni for plaintiff,- defendants appeal Judgment, and order denying new trial,'

Hon. F G. Smith, Judge. E. Mudie was convicted of engaging in the business of selling intoxicating liquors without a license, and brings error.

<p>Appeal from Circuit Court, Brookings County. Hon Gkorgb IT. Marquis, Judge.</p> <p>Action by Lewis Haag against J. C. Burns. Judgment for plaintiff, and defendant appeals.</p>

<p>Rev. Code Civ. 1-roe. I !i>, 147, 150, provide that no variance . iu,v>.en a ■ ¡ending- aro Hie proof shall be material unless it, has mister. the adverse party to pis, prejudice, ere., and authorise, the court 10 allow amendments which do not change U10 claim or defense, by conforming the pleading to iho facts. A complaint demanded tlie ro:-.Psion of a contract and the recovery of the coxisicteration paid, on the yvor.'.id. of fuuiduJenl reuresontauons. PVW, that llip allowance of an •.kKWUn.Mi demanding ¡he same relief on the ground of mutua: 11.he. to contorna to the evidence, was proper.</p> <p>Where, iv mi action by a purchaser to rescind « cmuraei ami u- n er the : on adoration paid thereon, Hiere war. no claim by tits i:>. ,o” "or the uro of the land by Iho purchaser, nor any evidence o' thereof, or that the purchaser used the land or rented</p> <p>! , 'te en,--1 did not err in not, finding the value of the use of tlie ¡,,. - {j'-im; ¡k> time Luo; roiling between Iho transfer <>' the same i\" 1 tie ven to,:' to the pur;rumor and the trial.</p> <p>A icieiil on ooii die;.: n.g , videnco, and not 1 on vary to She prs-1.0 "iera-'ce of 1he evidence v.iit not be disturbed on anpeai,</p> <p>'■.ley. (’!>-. (’ode, ¡Í provide", that rescission f uinof. be nd-eewd for "iiie-ialio an.0-0. the defendant can bo restored io snbstan-lieu - iho seme condition or before, (he oonive-of was mode. A purchaser sued to rescind the contract and recover the consideration consisting of a cash payment and a horse. The court required the vendor to repay the cash and the value of the horse, which the vendor has disposed of. Held, that the parties were substantially restored to the conditions occupied by them before the contract authorizing rescission.</p> <p>In a suit to rescind a contract and recover the consideration paid on the ground of mutual mistake, it was proper to allow interest on the cash consideration paid from the time of payment to the time of the trial.</p> <p>In a suit by a purchaser to rescind the contract and recover the consideration paid, the court, in granting the relief prayed for, may, in the exercise of its equity powers, make the judgment for the repayment of the consideration a lien on the premises.</p> <p>In an action by a purchaser to rescind the contract and recover the consideration, consisting of a cash payment and a horse, it appeared that the horse was sold by the vendor soon after he received it from the purchaser, and there was no evidence that he received anything for the use of the horse during that time. .Held, that the court erred in finding the value of the use of the horse from the time of its transfer to the vendor to the time of the trial as a part of the purchaser’s recovery.</p>

County. Hon. Eevi McGee, Judge. Action by M. D. E. Haynie against George P. Bennett. Judgment for plaintiff, and defendant appeals. A condition precedent must be strictly and literally performed before title vests. Tenn. etc: R. R. Co-, v. East Ala.

<p>Appeal from Circuit Court, Spink. County. Hon. Ci-ias. . S. WhitiNG, Judge.</p> <p>Replevin by George Palmer and Fred Palmer against J. C. Hurst, sheriff of Spink County. Judgment, for defendant, and plaintiffs appeal.</p>

Hon. J. W. JONES, Judge. Action by John A. Bowler, as trustee in bankruptcy of the estate of John H. Bruins, against the First National Bank of Pipe-stone, Minn. From a judgment for defendant, plaintiff appeals.

Hon. J. H. McCoy, Judge. Action by Frank Sears and another against Kristian Scriver Swenson. From a judgment for plaintiffs, defendant appeals. Fees to the wife’s counsel in the institution of divorce proceedings against her husband, can never be considered as coming within the class known as necessaries and for which the husband can be made impliedly liable.

<p>Appeal from Circuit Court, Potter County. Hon. LoriNG E. GaRFy, Judge.</p> <p>Action by Walter Comeau against Solon P. Hurley and another. From a judgment for plaintiff, defendants appeal.</p>

<p>The rule against evidence tending to vary or contradict the terms of a written instrument is not violated by evidence tending to prove fraud in obtaining it, such evidence not being admitted to vary or contradict it, but to prove that the instrument had no legal existence or binding force.</p> <p>The fraudulent intent of parties to a transaction may be established by inference from their acts, and need not be proven by direct testimony.</p> <p>Persons representing themselves as agents of a company for the sale of a machine for making wire fences engaged defendant as agent for a particular locality, taking from him as security a note, and agreeing to furnish ,him with machines for himself, and subagents whom he ■might appoint. It was agreed that the note should be deposited in a bank selected by defendant, and that the agents would assist defendant in appointing subagents, and would furnish him printed instructions for using the machines. After procuring a note from a subagent appointed by them, they sold both notes to plaintiff and left the country. They furnished no blanks nor machines, and when they secured the subagent’s note they took the entire proceeds,-including defendant’s share.' Held evidence bf á fraudulent intent on the part of the agents • in ■ obtaining the note sued on.</p> <p>. Fraud in. .obtaining the note sued on being established, prima facie evidence arising from its ownership that it was acquired bona fide and for valtie is overcome, and the burden shifts to plaintiff to establish by preponderance-of the evidence that he is'a bona fide holder for value. , . ,</p> <p>In view of Rev. Civ. Code, § 2452, declaring that every person who has actual notice of circumstances sufficient to put a prudent man on inquiry as to" a particular fact, 'and'who omits to -make inquiry with reasonable, diligence, is deemed to have constructive notice of the fact itself, wb,ere the agent of a purchaser of a note obtained by fraud had sufficient notice to put the purchaser on inquiry as to the manner in which it had been obtained, and failed to make such inquiry of the proper parties, -he is- concluded by the .facts which could have been ascertained had he done so.</p>

<p>Tlae appellate court will take judicial notice of the expiration of the term of the judge of the trial court pending the time for settlement of the hill of exceptions.</p> <p>Where an action was tried hy one judge the statement may not' he settled hy another, although the term of office of the trial judge may have expired, under Rev. Code Civ. Proc. § 299, providing that, a judge may settle and sign a hill of exceptions after he ceases to he judge, and that in- case, before the settlement, he dies, is removed, becomes disqualified, is absent from the state, or refuses to settle it, it shall he settled as the Supreme Court directs, where it does not appear that the trial judge was absent from the state or refused to settle the statement, or that the other judge was authorized by the Supreme Court to do so.</p> <p>Although the local judge has called in a judge from another district to try a case, he may resume jurisdiction after settlement ot the statement hy the trial judge and order a new trial, unless he is disqualified hy interest in the action or otherwise.</p> <p>Where an action has been tried before a substitute judge, a motion for a new trial before the regular judge, not previously presented to the substitute judge, and made on the ground of erroneous rulings at the trial, is not within the rule that prohibits one judge from reviewing decisions of a co-ordinate judge.</p> <p>Rev. Code Civ. Proc. § 29 9, provides that if the judge who tries a case shall die before settlement of the hill of exceptions, or he removed or become disqualified or he absent from the state or refuse to act, the 'hill of exceptions shall he settled and certified in such man-, ner as the Supreme Court may direct. In an action tried before a! substitute judge, the hill of exceptions was settled and certified hy the! regular judge, the term of the substitute judge having expired.- A motion was made in the Supreme Court on appeal to have the statement referred back to the substitute judge for certification hy him that it was a true statement of the proceedings at the trial, and that when so certified the Supreme Court should direct that such certificate be deemed to have been made as of the original- date when the statement should have been certified, and that respondent he allowed time to file amended abstracts and serve his brief in the action. Held, that -the power of the Supreme Court did not include such relief being limited to the specific cases provided for in the statute, none of which were made to appear.</p>

Hon. Feanic B. Smith, Judge. Action by S. D. Ewing and another against Christie Eunn, as executrix of the estate of Joseph Lunn, deceased, for commission for procuring a purchaser of certain land belonging to decedent. From an order vacating a verdict and judgment for plaintiffs and granting a new trial, and from a judgment in favor of defendant on a second trial, plaintiffs appeal.

<p>In a suit for the possession of real estate, defended on the ground that defendant entered into possession under an oral contract ' of purchase from plaintiff’s grantor, evidence held to support a finding that, while plaintiff’s grantor was in the peaceable and actual possession of the premises, defendant, with notice of title, without right, entered into possession of the premises, authorizing a recovery. ■</p>

Hon. J. H. McCoy, Judge. Prohibition by the state, on the relation of O. A. Chilson, against J. L. Harris, mayor, and others. From an order sustaining defendants’ demurred, plaintiff appeals.

Hon Chas. S. Whiting, Judge. Action by the Grimsrud Shoe Company against R. Jackson. From a judgment for defendant, plaintiff appeals. Where a person by word or conduct voluntarily induces another to act on a belief in the existence of a certain state of facts, he will be estopped as against him to allege a different state of facts. Am. and Eng. Enc. of Law (ist Ed.), Vol. 7, 19.

Circuit Court, Faulk County. Hon. LoRiNG E. Garry, Judge. Action by W. S. Gilman against H. M. Carpenter and others. From a judgment for defendants and an order denying a new trial, plaintiff appeals. John Glodt, who executed the. trust deed, mentioned in the following opinion, was the patentee of the land in question, and through mesne conveyances from him M. E. Waldon received a warranty deed dated February 28, 1901, recorded July 6, 1901, conveying the land in question.

Hon. Joseph W. Jones, Judge. Action on a note by C. T. Charnock against Jonah Jones and another, copartners as Jones & Dew. From a judgment for defendant Jones, who defended alone, plaintiff appeals. A stranger' cannot, without authority, pay the debt of another person'and charge the amount so paid, against the party for-whose benefit the payment was made.

<p>■ Appeal from Circuit Court, Turner County. ■ Hon. E. G. SMITH, Judge.</p> <p>Habeas corpus by Gustave Wiilken. From an order remanding the prisoner to custody, he appeals.</p>

<p>Error to Circuit Court, Spink County. -Hon. Chas. S. WhitING, Judge. -</p> <p>Reo Archer was convicted of. assault with intent to commit a felony, and he appeals..</p>

Hon. E. G. Smith, Judge. Action by Rose Greder against John Stahl-. From a judgment for plaintiff, defendant appeals. • A rescission of an executed contract by mutual consent of both parties thereto is simply the entering into and executing ■ a new contract complete in all its features wherein the vendor becomes the vendee, the vendee becomes the vendor, • and the vendor receives back the property, sold by him and returns, or agrees to return, the consideration paid.

Hon. Levi McGee, Judge. • - ' ' A'ctio-n-by the Edgemont Improvement Company against the N. S. Tubbs Sheep Company and others. From a judgment -for plaintiff and an order denying a new trial, defendants appeal.

<p>Application for writ of mandamus by Quincy Lee Morrow against D. D. Wipf, secretary of State, to> compel defendant to receive and file the certificate of nominations of candidates of the Prohibition Party for state offices.</p>

<p>Rev. Civ. Code, § 1762, provides that, except as otherwise provided, every partnership transacting business in the state under a fictitious name or a designation not showing the partners’ names must file with the clerk of the circuit court a certificate stating the names in full of all the members of the partnership and their places of residence, etc. .Section 1764 imposes as a penalty for the violation of the requirement the abatement of “any action on or on account of any contracts made or transactions had under their partnership name” until a certificate is .made as required. Held, that a non-compliance with the requirement has no invalidating effect upon partnership transactions, as a compliance at any time removes all prior disability.</p> <p>No certificate is required under the act where tbe firm name is composed of the surnames- of all persons interested as partners, since suc'h a name is not fictitious, but sufficiently designates the partners’ names.</p>

Hon. Lkvi McGjJB, Judge. Action by Donald A. 'McPherson against Joseph Swift and another. Judgment for defendants, and plaintiff appeals. Where lands llave been purchased under an agreement that they ¡should be paid for by one party and 'title taken in his name, the transaction is a partnership. Hymen v. Peters, 30 Ill. App. Rep. 134; Pennypacker v. -Leary, 21 N. W. Rep. 575; Hayes rv. Vogle, 14 Daly 486. Our statute contemplates a partnership in real property. Comp.

<p>An information charging the larceny of “one gold coin current as money in this state, of the value of $5.00,” etc., sufficiently describes the property stolen in view of Rev. Code Cr. Proe. § 219, providing that all the forms of pleading in criminal actions and rules by which the sufficiency of pleadings is to be determined are those prescribed by the Code and section 237, providing that, in an indictment or information for the larceny of money, it is sufficient to allege the larceny without syecifyómg the coin, number and denomination, or hind thereof, for the term “coin” has a definite signification, and the designation used w-as in effect am 'allegation that it was a gold coin stamped' by government authority.</p> <p>An information alleging that ac'cused “one gold coin * * * of money of one William O’Brien, * * * feloniously did steal,” etc., sufficiently alleges the ownership of the money.</p> <p>An information charging that accused “one gold coin * * * of the money of one William O’Brien then and there being upon the person of said William O’Brien, * * * .did steal,” etc., charged that the money was taken from the person of William' O’Brien, so that a person of ordinary understanding would know what was intended, as required by Code Or. Proe. § 221, suibd. 2.</p> <p>The court will presume that an accused is a person of common understanding.</p> <p>Evidence held to show that a gold coin alleged to have been stolen was a $5 gold piece.</p> <p>The Supreme Court will presume a gold coin which was stolen to be of its face value.</p> <p>Where the value of property alleged to have been' stolen was not material, proot of its value is not necessary, as courts and jurors will presume from tlie nature and character of the property proved to have been stolen that it had some value. Hence in a prosecution for grand larceny, under Rev. Pen. Code, § 608, subd. 2, as amended by Laws 1903, p. 175, c. 151, making a larceny from the person grand larceny, the presumption that the property stolen was of some value is sufficient to sustain a conviction.</p> <p>In a prosecution for larceny from the person as grand larceny, evidence held to show non-consent of the prosecuting witness.</p> <p>While it is necessary that the jury be satisfied beyond a reasonable doubt that property alleged to have been stolen was not taken with the consent of the prosecuting witness, it is not necessary that there be direct proof of nomconsent, but lack of consent -may be inferred from t'he circumstances connected with the larceny.</p> <p>Where an information for grand larceny alleged the taking of “one gold coin current as money in this state, of the value oí 55.00,” etc., the allegation that the coin was current money in this state, being unnecessary, may be regarded as surplusage, and failure to prove the allegation will not constitute fatal variance.</p>

<p>Appeal from Circuit Court, Meade County. Hon. Wiiaiam G. Ric®, Judge.</p> <p>Action by George McFarland against Duncan Cruickshank. From a judgment for plaintiff, defendant appeals.</p> <p>The jurisdiction of Justices of the Peace will not be extended by inference or implication as the statutes conferring jurisdiction are strictly construed. 18 Enc. of Eaw, 2d Ed. p. 17; Jolly v. Foltz, 34 Cal. p. 321; Wagner v. Halleck, 3 Col. 176. A general appearance by the defendant in an action, after a special appearance for <the purpose, and motion made to dismiss the same on the ground that the court has no -jurisdiction of the person, and which has been overruled and exception -preserved does not constitute a waiver of the objection to the jurisdiction of the court. .Benedict v. Johnson, 4 S. 'D. 387.</p> <p>Where a party shall have an attorney in the action the service of papers shall be made upon the attorney instead of the party. Revised Code of Civil Proc. Sec. 561. Those provisions of th( Code of Civil Procedure which aré in their nature applicable to the organization, powers and course of proceedings in justices’ courts * * * are applicable to justices’ courts and the proceedings therein. Justice Code, Sec. ¡47.</p>

’ ■ Appeal from Circuit Count' Davison County. Hon. Frank B.' Smith, Judge. ' ' ■ Action -by the Missouri River Telephone Company against the city of Mitchell. . From a judgment for plaintiff, defendant appeals. - . Statutory provisions with reispect to the calling of a special meeting are considered of a mandatory nature, and have been deemed necessary .in order to prevent, hasty, ill-advised and ill-considered legislation.

Hon. E. G. Smith, Judge. Mandamus by the istat-e, on the relation of Louis Simons, against Adrian Nyquist and others, to compel respondents to submit the question of the location /of the county seat of a county to the voters at the next general election. From: an order sustaining a general demurrer to the alternative writ, relator appeals.

•Appeal from Circuit Court, Pennington County. Hon, Revi McGee, Judge. Action by the Fremont, Elkhorn & Missouri Valley Railroad Company against the county of Pennington and another. From a judgment for defendants, plaintiff appeals.

- Hon. Wilma-m G. Ríe®, Judge. Mandamus proceeding by Jesse E. Ballinger against William McLaughlin, county auditor of Lawrence.county..' From an adverse judgment, plaintiff appeals. Unrestricted suffrage is -essential to the very existence of popular -sovereignty, and on. it that' sovereignty is 'based.

<p>Appeal from Circuit Court, Minnehaha County. Hon. Joseph W. Jones, Judge.</p> <p>Action by the South Dakota Central Railway Company against O. H. Smith. Judgment for defendant, and plaintiff appeals.</p>

Lion. Joseph W. Jones, Judge. Action by E. W. Coughran against the Western Elevator Company. From a judgment for defendant and an order denying a motion for a new trial, plaintiff appeals.

<p>In an action by a real estate broker against another broker tor commission on -a .sale of land, the fact ithat 'defendant was not the grantor named in the deed, and was obligated to share profits with a local broker with whom he was operating, was- wholly immaterial.</p> <p>Where a ireal estate broker agreed to pay another broker a commission of a specified amount an acre for land disposed of to a certain purchaser, and it was understood that the purchaser’s financial condition was such that to effect a sale of the land a house and lot owned by the -purchaser must be taken in part payment, and the house arid lot were received in partial consideration for the land sold and -the balance secured by a mortgage on tlie land, tliere is no merit In -the contention that a commission could' - not be recovered because tlie transaction amounted to an exchange of property, and not a sale.</p> <p>In an action by one real estate broker against another- broker for commission on a sale of land, evidence as to what was said by, or m the presence of, an agent of plaintiff after plantiff and defendant had agreed that defendant would pay plaintiff a commission of a specified amount an acre for liand disposed of to a’ certain purchaser if plaintiff would permit such purchaser to accompany defendant .to see the land, and the purchaser had so accompanied defendant, was immaterial ana properly excluded.</p>

<p>Appeal from Circuit Court, Davison County. Hon. EeaNic B. Smith, Judge.</p> <p>Action by Joseph Koch against Ricklef Runschen. From a judgment for plaintiff, defendant appeals.</p>

Hon. Joseph W. Jones, Judge. Action- by the Central Banking & Trust Company against John Pusey -and-others, -impleaded with J. A. Bowler. Judgment for plaintiff, and defendants- Bowler and Ross appeal.

<p>Rev. Civ. Code, § 16,67, provides tliat leases of land shall be in writing, and declares that such leases shall he void if entered into by an agent whose authority is not evidenced by a written instrument subscribed by his principal. Section 1670 provides that a ratification is not valid unless, at the-time of ratifying the act done, the principal has power to confer authority for such an act. Held, that a lease executed by one who purported to. act as the agent of the owner of the land, but without written authority, was void, and such lease was not rendered valid by a ratification made by one who owned the land at the time the lease was executed, but who had parted with title before the ratification.</p>

Original proceeding on writ of certiorari by the state, on the relation of S. W. Clark, Attorney General, against K. O. Staklce and others, members of the city council of Woonsocket, as such and as -the canvassing board, and E. M. Newcomb, city auditor.

<p>Appeal from Circuit Court, Lawrence County. Hon. Levi McGee), Judge.</p> <p>Action by Horace S. Clark against the city of Deadwood and another. From an order dissolving a restraining order, plaintiff appeals.</p>

Hon. J. H. McCoy, Judge. Action by E. J. Simonson against Otto- Monson. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

lion. W. G. • Riot, Judge. Action by William D. Driskill and another against Elizabeth Rebbe and others. From a decree for complainants, and from an order denying defendants’ motion for a new trial, they appeal. Where the patent itself does not recite the date of settlement, ■the court must look to the record upon which the patent was issued to determine that date. Duncan v. Newcomer, 9 S. D. 379. King v. ■McAndrews, ui Fed. Rep. 863-864; Barden v. Northern Pac.

Hon. Georg® H. Marquis, Judge. Action by Lars O. Waaler against theiGreat Northern Railway Company. Judgment for plaintiff, and defendant appeals. The declaration of an agent 'cannot be offered to establish his agency. Civil Code,, Sec. 1677; Jones on Evidence, Sec. 36; Wal ter A. Wood Co. v. Crow, 30, N. W. 600. The agency of an unidentified person, was proven by (his mere declaration and his other statements received to bind defendant.

Appeal 'from Circuit Court, Pennington County. Hon. Dkvi McGKE, Judge. Action by Charles D. Crouch land another, trustees, against the Dakota, Wyoming & Missouri River Railroad Company, Joseph H. Muhlke, .and others. Frederick P. Read, intervened. From an order denying an application to set aside a certain sheriff’s sale, the railroad company and Muhlke appeal.

Hon. Lyman T. Boucher, Judge. Suit by John Phelan against 'Maggie Neary to. specifically enforce a contract for -the sale of land. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals.

Hon. Josbph W. JONES, Judge. Action- by A. P. • Phillips against the International -Harvester Company of America. From an order sustaining a demurrer to plaintiffs complaint, he appeals. A vice-principal is one to whom an employer delegates the duties the law Imposes on him, and- thé -employer is responsible because the duty is his own. Durkin v. -Kingston Coal' Co.,-33 Atl. 238; Pierce v. Oliver, 47 N. E- 489.

Hon. Joseph W. JONBs, Judge. Bill by Joseph Toissini against Daniel Donahoe and others. Fijom a judgment reforming a contract for the conveyance of real estate and granting specific performance of the contract as reformed, plaintiff appeals.

<p>In an action .under the Civil Damage Laws, the complaint alleged that. defendants sold intoxicating liquors to plaintiff’s husband on July 15th, and during the week prior thereto, while he was intoxicated and in the habit o.f becoming so, and that he continued in a state of ¡intoxication up to the time of hi® death, amd that he committed suicide on July 17th. Held, that an objection to the complaint on the ground that it did not allege that defendant, or his agents, servants, or employes, sold to decedent intoxicating liquors when he was intoxicated about the time the act complained of was committed was untenable.</p> <p>Nor was the complaint open to the objection that it did not allege that decedent was under the influence of liquor at the time he committed suicide, .since Rev. Pol. Code, § 2849, under which the action was instituted provides that on the trial of such an action it shall only .be necessary to prove that .the defendants sold or gave away the liquors to the person under the influence of liquor, whose, acts or injuries are complained of “on that day or about that time when such acts were committed or such injuries received.”</p> <p>The liability of a retail liquor dealer under the civil damage law for breach of his liquor dealers’ bond, providing that the principal covenants and agrees that he will not sell or furnish any spirituous liquors to a .person who -is at the time intoxicated, does no.t depend on his having been notified not to sell liquor to the person alleged to have purchased it while intoxicated.</p> <p>In ,an action under the civil damage law on a liquor dealer’s bond for selling liquor ¡to a person while intoxicated, in violation of Rev. Pol. Code, § 2844, in which the court did not submit Ihé issue as to •whether the person to whom the liquor sold was “in the habit of getting intoxicated,” the change, in Rev. Bol. Code, § 2844., by the amendment of Laws 1903, p. 190, c. 165, 'including in unlawful sales without notice “any person in the haJbit of getting intoxicated,” was immaterial, where the section giving the 'form of liquor dealers' bonds was not changed to correspond with the amendment.</p> <p>The provision of Laws 1897, p-p. 210, 211, c. 72, §§ 11, 16, declaring it unlawful for liquor dealers to sell to persons intoxicated or in the habit of getting intoxicated, and giving a right of action to a married woman for damages from the sale of intoxicating liquors, are restrictions and regulations of the sale, and therefore, within the title, “An act to provide for the licensing,' restriction and regulation of the business of the * * * sale of * * ' intoxicating liquors,” and so not violative of Const, art. 3, § 21, providing that no law shall embrace more than one subject, which shall be expressed in its title.</p> <p>In an action under the civil damage laws for breach of a retail liquor dealer’s bond, an objection to the complaint on the ground that it did’ not allege that the bond was approved and filed was not tenable where it appears from an indorsement on thé bond, signed by the county auditor and forming part of the complaint, that the bond was ¡approved- by 'the board of county commissioners.</p> <p>In determining a question of liability under the civil damage laws to the wifelof a person committing suicide as the result of selling liquors to him while intoxiated, it is immateral whether or not the person to whom the liquor was sold was intoxicated at the time he committed suicide, if the suicide was the result of his previous intoxication from the liquor sold him by the dealer sought to be held liable.</p> <p>Under Rev. Pol. Code, § 2849, authorizing a married woman to maintain in her -own name a suit on a liquor dealer’s bond for all damages sustained by ’her or by her children, on account of such traffic, and that the money thus collected shall be paid over for the use of herself and her children, a wife is entitled to recover damages for her children, although she might not be entitled to recover for herself.</p> <p>In an action under the civil damage laws on a liquor dealer’s bond, a statement by the court to the jury that “nobody here is entitled to anything but their legal rights, and that is all anybody is asking for,’-’ was not prejudicial to defendant the remark being general and applicable alike to both parties.</p> <p>A witness' may state whether a person was intoxicated, the extent of his intoxication, and whether he had been drinking, or was just recovering from a state of drunkenness.</p> <p>Except under unusual circumstances a new trial will not be granted on the ground of newly discovered evidence, which goes only to discredit or impeach a witness or which is only cumulative.</p> <p>The granting or refusing of a new trial on the ground of newly discovered evidence is largely in the discretion of the trial court.</p> <p>Action' of trial court in granting dr refusing moticfn for new trial will not be reviewed on.appeal ¡n the..absence.of manifest abuse of discretion.</p> <p>Unless néwly discovered evidence for which a new'trial is sought would probably-produce a different result upon a second trial, r-a-new trial should, be denied. , . ' • , , .</p>

<p>Under Rev. Code Cr. Proc. §§ 424, 427, providing that the time for settling the bill of exceptions may be enlarged, and that the bill of exceptions must be filed with the clerk “at the time of or before taking the writ of error,” and Laws 1907, p. 189, c. 120, providing for appeals in criminal cases, and declaring that the court may stay execution 30 days, etc., a bill of exceptions must be filed at the time of of before taking an appeal, unless the time of settling the bill has ibeen enlarged by the trial court.</p>

Hon. EymaN T. BouchsR, Judge. Actipn by E. C. Hughes against W. PI. Payne. From an order sustaining a demurrer to the complaint, plaintiff appeals.

<p>Appeal from Circuit Court, Roberts County. Hon. J. H, McCoy, Judge.</p> <p>Action by A. W. Lindquist against the Northwestern Port -Huron Company. From a judgment for plaintiff, defendant appeals.</p>

<p>In an action to determine .adverse claims to land, a decision of the trial court in favor of plaintiff, that a tax deed relied on by defendant was void on its face as a matter of law, is conclusive or appeal by plaintiff, where defendant takes no cross-appeal from the decision as to the invalidity of .the deed.</p> <p>The doctrine of laches is applicable only to equitable actions and ■does ‘not apply to legal actions.</p> <p>Notwithstanding -that Rev. Code Civ. Proc. § 675, providing that an action may !be brought by any person against another who claims an estate or interest in real property adverse to him, embraces both the former action of ejectment and the action to quiet title, an actior thereunder cannot .be said to be a legal or equitable action independently of the pleadings, and when plaintiff claims to own the propertj and defendant is in 'possession, and plaintiff seeks to recover such possession, as wel,l as to determine defendant’s adverse claims, the action is a legal one, and the parties are entitled to a jury under section 244, providing that an issue of fact for the recovery of specific real property must he -tried by a jury, unless a jury trial be waived, as provided in section 275.</p> <p>An action .at law, under Rev. Code Civ. Proc. § 675, providing that an action may be brought by any person against another who claims an estate or interest in real property adverse to him for the purpose of determining such adverse claim, is governed by the statutory sections providing for ,a limitation of actions.</p> <p>A finding that a grantee in a tax deed was at the time a resident of a sister state raised the presumption that he continued to remain so until he conveyed the property.</p> <p>Where a grantee in a tax deed wias at the time a non-resident, and remained so until he conveyed the property, ,tbe period of his -absence was not 'to ;be -considered in determining whether the statute of limitations had run in a suit by the original owner to determine adverse claims.</p> <p>Fu,ller, J., dissenting.</p>

<p>Appeal from Circuit Court, Potter County. Hon. LoriNG E-Garry, Judge.</p> <p>Action by George Comeau against Solon P. Hurley and another. From ia judgment for plaintiff, defendants appeal.</p>

<p>Rev. Code Civ. Proc. § 127, provides; “The counterclaim * * * must he one existing in favor of a defendant ,and against a plaintiff, between whom a sever-aj judgment might he had in the action, and arising out of one of the following causes of action: (1) A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action. (2) In an action arising on contract, any other cause of action arising also on contract and existing at the commencement of the .action.” Held that, where the cause of action sought to be counterclaimed arises out of the contract or transaction or is connected with the subject of the action set out in the complaint, it is immaterial whether the-cause of action arises on contract or on tort, and it is only when the cause of action sought to be counterclaimed arises on an independent contract that it becomes material that it should be .on contract and exist at the commencement of the action.</p> <p>Rev. Code Civ. Proc. § 127, provides: “The -counterclaim * * * must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might -be had in the action, and arising .out of one of the following causes of action: (1) A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim or connected- with the subject -of t-he action. (2) In an action arising on contract, any other cause of action arising on contract and existing at the commencement of the action.” Held that, in an action on notes secured hy a chattel mortgage on machinery, defendant could counterclaim for the .wrongful conversion of the machinery hy plaintiff through an attempted foreclosure which did not comply with the statute relating to such foreclosures.</p> <p>The statutory provisions relating to sales of property under chattel 'mortgages hy advertisement must be substantially complied with, and, w.here a chattel mortgagee takes possession of the property for purposes of foreclosure and sells it without such substantial compliance, he converts the property, and his lien thereon is extinguished.</p> <p>Under Rev. Civ. Code, § 2077, providing that the notice of sale on foreclosure of a chattel mortgage must be published in a newspaper published nearest the place of sale in the county wherein the mortgage or'a certified copy shall have been.filed, a foreclosure attempted in a county other than that in which alone the mortgage was executed and filed was void.</p> <p>Where, in an action to recover an indebtedness represented by notes executed iby defendant and secured by a chattel mortgage on machinery, defendant counterclaimed for the conversion of the machinery through an unlawful foreclosure and sale by plaintiff, and introduced evidence of the value of the machinery at the time of its conversion, and it appeared that previous to the trial plaintiff had disposed of the notes and that they were still outstanding against .defendant, and no evidence tending to prove the amount due on the notes was offered, defendant was entitled to recover the value of the machinery without deduction of 'the mortgage debt.</p> <p>Since under Rev. Uiv. Code, § 2042, a chattle mortgage constitutes only a lien on the property, the title does not pass until there is a legal foreclosure of the mortgage.</p> <p>In an action against a principal and surety wherein the principal counterclaimed, plaintiff having moved for a dismissal of the action, could not on appeal complain of the dismissal as to the surety, though the court refused to dismiss as to the principal.</p>

<p>Appeal from Circuit Court, Brookings County. Hon. Gborgé H. MaRquxs, Judge.</p> <p>Action by the city of Brookings against T. M. Natwick. Judgment for plaintiff, and defendant appeals.</p>

Hon. W. G. Rice, Judge. Action by Samuel Tilton against Charles Flormann and another. From a judgment dismissing the action, and from a denial of a new trial, plaintiff appeals.

<p>Rev. Code Cr. Proc. § 225, provides that the precise time at which an offense was committed need not he 'stated in the indictment or information, but it may alleged .to have been committed at any time before the finding thereof, except when the time is a material ingredient in the offense. Held, that the offense of keeping a saloon open on Sunday comes within the exception, as the offense can only be committed on .Sunday, so that the day of the month and the year as well ias the day of the week are a material ingredient in the offense, since there is no other practical method of designating the offense so as to enable accused to properly prepare for trial.</p> <p>The offense of keeping a sa’loon open on Sunday consists in not keeping it closed on ’Sunday, and it is not materia] whether- or not any sale was made on that day, nor what was the saloon keeper’s intent in not keeping it closed, nor whether any person was seen to enter or depart from the saloon.</p>

Mandamus by William Healey and others to compel D .D. Wipf, as Secretary of State, to receive and file certain nomination certificates of Democratic candidates and to- certify their names to the auditors of the several counties, that ’such names may be printed on the official ballots to be voted at the November, 1908, general election.

<p>Appeal from Circuit Court, Grant .County. Hon. J. H. McCoy, Judge.</p> <p>C. D. Fairchild was convicted of crime, and he appeals.</p>

Hon. Charles S. Whiting, Judge. Action by the Fuller & Johnson Manufacturing Company against True W. Child and others. Judgment for plaintiff, and defendant E. A. Child appeals. On application of appellant to return the record to the circuit court to allow him to move for a new trial for newly discovered evidence.

<p>Where a case is tried before the judge of another district holding-court for the regular judge, it is his duty to settle the hill of -exceptions when presented to him at any time within the time as fixed or extended by the regular judge, although his term of office may have expired, authority to do so being expressly given by Rev. Code Civ. Proc. § 299. If he refuses to act, the bill may be settled by the Supreme Court, as provided by section 298.</p>

<p>In the matter of disbarment proceedings against George W. Egan.</p>

Hon. Joseph W. JONES, Judge. Action by James Mee against F. O. Carlson and others. From a judgment for defendants, plaintiff appeals. Held: with very little diversity, of opinion, that the plaintiff must show .that he acquired the note in good faith. Canajohane National Bank v. Diefendorf, 25 N. E. 402. Gibber-son v. Jolley, 22 N. E. 306; Ray v. Baker, 74 N. E. 619; Kinney v. Walker, 44 Pac. 501; Skeik v. N-eible, 59 N. E. 281.

Hon. Joseph W. Jones, Judge. Action by Joseph Tosini against the Cascade Milling Company. From a judgment for plaintiff, and from an order denying • defendant’s motion for a new trial, it appeals.

<p>Appeal from Circuit Court, Miner County. Lion. Charles S. Whiting, Judge.</p> <p>Action by Florence Meyer against the Chicago, Milwaukee & St. Paul Railway Company and others. Judgment for defendants, and plaintiff appeals.</p>

ITon. Loi-u-ng E. Garry, Judge. - • Action by Lewis D. Flickinger against I. A. Cornwell and another. From a judgment for defendants, plaintiff appeals. ■Where property is affected or the title is to be divested by the requirement of a special statute the requirements of the act must be strictly followed. The performance of these acts is. the condition on which the property is to be diverted.

<p>A complaint which alleges that plaintiff is a domestic corporation; that defendant is indebted to it in a specified sum for goods sold and delivered; that between designated dates it sold and delivered to defendant at his special request building materials, an ' itemized account of which is attached as an exhibit and made a part of the complaint; and that there is due on the account the amount specified— states a cause of action.</p> <p>An application to set aside a default judgment on the ground of inadvertence, excusable neglect, or mistake, within Rev. Code Civ. Proc. § 151, is addressed to the sound judicial discretion of the court, and the exercise of the discretion will not be reviewed on appeal, except w-bere there 'baa been a clear abuse thereof, and a much stronger case must be made as to the abuse of such discretion where a court has granted a motion than where the motion has ibeen denied.</p> <p>On an application to set aside a default judgment on the ground of excusable neglect or mistake, within Rev. Code Civ. Proc. § 151, it appeared that defendant was of foreign descent, and not familiar with the methods of commencing actions ,in the courts, and believed that all that was necessary for him to do was to secure counsel and,appear at the next term of court, which was to convene on June 22d, and that he made efforts in the early part of June to secure an attorney, and, failing to do so, he secured the services of another in' time for a special term, and that he did not know that he was in default until the record was examined by the attorney secured. Held, that the court in setting aside the default did not abuse its discretion, the failure to secure the first attorney being an inadvertence or excusable neglect</p>

Hon. Frank B. Smith, Judge. Action by Annie Barnhart against P. W. Anderson and another. From a judgment for plaintiff, defendants appeal. Re-delivering a grant of real property to the grantor or canceling it does not operate to re-transfer title. Rev. Civ. Code, sec. 926. Equity cannot be invoked to set aside the law or violate its express provisions. 5 Am. ■& Eng. Ency.

Hon. CtiARRES S. Whiting, Judge. Action by Charles A. Kelley and others against the R. J. Schwab & Sons Company and others. From a judgment for defendants and from an order denying complainants’s motion for a new trial, they appeal.

<p>In an action against a threshing machine company for damages caused ¡by its transfer of plaintiff’s notes given for a threshing outfit alleged not to have complied with defendant’s' representations, it was within the trial court’s discretion to permit a trial amendment alleging that defendant’s general agent falsely represented that defendant liad an engine and separator that werp practically new, which engine had only been used for 10 days about the shops, and not for threshing purposes; that this was the engine and outfit purchased, which was not such as was afterwards shipped in compliance with the order, etc.</p> <p>In th(e absence of a motion for a continuance or affidavit of surprise authorized by Rev. Code Civ. Proc. § 150, it is not error to allow a trial amendment of the complaint raising a new issue.</p> <p>Where plaintiff claimed that he had been induced by defendant’s general agent to order the machinery specified in a written contract by false representations to him that defendant would furnish an engine that bad only been used for 10 days and was in good working order, evidence of such facts was not objectionable as contradicting the written contract which only provided for a sale of “one Port Huron traction erigine, twenty horse power, traction rating, simple compound.”</p> <p>The rule that it may be shown by parol that a written contract has been fraudulently obtained by representations made inducing the party to contract does not conflict with the rule forbidding the variance or contradiction of a written instrument by parol evidence of prior conversations and agreements.</p> <p>Where defendant’s general agent refused to permit plaintiff to remove threshing machinery from the car until he had executed notes and a chattel mortgage for the price, but agreed to return such notes and mortgage, if plaintiff after inspection should refuse to accept the machinery, whereupon plaintiff executed the notes and mortgage and unloaded the machinery and after inspection refused it, but the agent refused to return the notes and mortgage, evidence of the agent’s agreement so to do was not objectionable in an action for damages caused by defendant’s transfer of the notes, -as varying the terms of plaintiff’s written order for the machinery.</p> <p>Where plaintiff executed certain notes and a chattel mortgage for machinery on the agreement of defendant’s agent to return the notes if the machinery was unsatisfactory, but .instead, on plaintiff refusing the machinery, defendant transferred the notes to innocent purchasers and plaintiff was sued on one of them, plaintiff was entitled to recover against defendant all damages sustained by reason of the fraudulent sale of the notes, including the amount of the notes transferred to innocent purchasers and interest thereon, and the expenses incurred in such action,</p>

Hon. James H. McCo.y, Judge. Action by Le-wis T. Craigo against Thurman Craigo and others. Judgment for plaintiff, and from an order denying defendants’ motion for anew trial, they appeal.

Hon. LymaN T. Boucher, Judge. Harry Holborn appealed from a ’ conviction, and applies for return of the record to the trial court for a motion for new trial.

<p>Under Rev. Pol. Code, §§ 868-871, requiring the register of deeds to keep a numerical index of mortgages, which shall show the nam,es of the grantors and grantees, dates of instruments and of filing, and description of property, a purchaser of land is charged with constructive notice of a mortgage thereon, given .hy one not in his chain of title, which an examination of such index would disclose, putting him on inquiry as to the mortgagor having an equitable title.</p> <p>All public officers are presumed to have performed their duty, so that a register of deeds will be presumed to have properly kept the indexes required by Rev. Pol. Code, §§ 868-871.</p>

Hon. E. G. Smith, Judge. Emma Kaufmann was convicted of manslaughter, and she appeals from an order denying a new trial. language which might be permitted to counsel in summing up in a civil case cannot with propriety be used by a public prosecutor, who is a quasi judicial officer, representing the People of the State and presumed to act impartially in the interest only of. justice.

<p>Rev. Pol. 'Oo.de, § 2837, as .amended by Laws 1905, p. 180, 0. 124, providing tbat no liquor license shall be granted in any municipality where a majority of the electors thereof' have not voted in favor of license, etc., and repealing all acts in conflict with it, repeals section 2856, as amended iby Laws 1903, p. 191, c. 166, requiring the submission of the question whether intoxicating liquors shall be sold at retail, etc., and a majority vote in favor of license is essential to the issuance of a license. ■ '</p>

<p>Rev. Civ. Code 1903, §§ 91, 92, empowering the court in a suit for divorce to give, either before or after judgment, directions for the custody and care of children of the parties and to at any time vacate or modify the same, etc., authorize the court to so modify a decree of divorce obtained by a wife as to require the husband to provide for the support of a minor child in the custody of the wife, though the complaint omitted to clairh an allowance therefor. •</p>

Clark County. Hon. GkORGS H. Marquis, Judge. Action by the Acme Harvesting Machine Company against William Barkley. From a judgment in part for plaintiff, and from an order denying a new trial, plaintiff appealed.

Hon. Joseph W. Jones, Judge. Action by O. T. Eggland against C. A. South. From a judgment for plaintiff and from an order denying a new trial, defendant appeals.

Hon. Chas. S. Whiting/ Judge. Mandamus by Charles W. Mannie and another against Jacob Hatfield, as police magistrate of the city of Huron, to compel defendant to transmit to> the circuit court the record of a cause, and to permit plaintiffs to appeal from a judgment of the police magistrate. From a judgment denying relief, plaintiffs appeal.

Hon. Joseph W. Jones, Judge. Action by J. M. Jones and others against C. H. Winsor. From an order overruling a demurrer to the complaint, defendant appeals. The complaint does 'not state facts sufficient to constitate a 1 cause of action in trover, or conversion.

Hon. ChaRles S. Wi-iiting, Judge. Charles E. Ely was convicted of engaging in the business of selling intoxicating liquor without a license, and he appeals.

<p>Where, on a trial for malicious mischief, no foundation 'had leen laid for impeaching him, evidence that prosecutor had received money for whisky, which accused and '.others drtank just -before the commission 'of the offense, was inadmissible to impeach his credibility.</p> <p>The malicious intent essential to constitute the offense of malicious mischief may be inferred from the nature of the act .and the circumstances of the case.</p> <p>To constitute an offense -under Rev. Pen. Code, § 712, punishing ■ the “malicious injury or destruction of property,” the act must not only be done willfully, but for the purpose of avenging some wrong sustained by the person charged' with the offense.</p> <p>On a trial for malicious mischief in violation of Rev. Pen. Code, § 712, an instruction that such, .acts in relation to the property of another as evince a disposition, of wanton deviltry and reckless disregard of the rights and property of another a¡re, in law, malice, together with the charge that to justify a conviction the jury must find not only that accused willfully -and intentionally, but that he wantonly and in a (spirit of revenge, injured the property of another, sufficiently describes “malice,” as defined by section 811 as importing a wish to annoy or injure another.</p> <p>An instruction, on a trial for malicious mischief, that the good order and welfare of the community was at stake, -and that, no -matter whether a man destroyed much or little property, if he did it in a spirit of wamtonness, he should be punished, was not objectionable as coercing the jury to find' accused g-uil-ty.</p> <p>Whepe the amount of the fine imposed is within the discretion of the trial court-, the court on appeal will not review it unless the (discretion has been -clearly abused:</p> <p>Under Rev. Pen. Code, '§ 14, providing that a misdemeanor is punishable by a fine no-t exceeding $500 or by imprisonment, or by both, a fine of $300 for malicious mischief by the destructionof household effects, in violation of Rev. Pen. Code, § 712, d-s not excessive.</p> <p>One who, on becoming angry without cause, (destroyed without justification and in a spirit of wantonness the property of another, violated Rev. Pen. Code, § 712, punishing the malicious injury or destruction of property.</p>

<p>Whether ¡the matter in controversy had been settled before judgment is an issue of fact not determinable oin a motion to open a default ot vacate the judgment, but only on a trial of the action.</p> <p>■Execution of a note being established by the pleadings, so that the note was properly admitted without proof of the maker’s signature, this and its possesion by plaintiff, prima (acre evidence of ownership, were enough to justify judgment according to the terms of the note, less a payment admitted.</p> <p>Application to open a default, or for relief from a judgment taken against ¡defendant through his mistake o.r oversight, being addressed to the sound discretion /of the trial court, its refusal is justified; defendant’s only mistake-or oversight being failure to inform his attorneys of an alleged settlement before their withdawal from the case.</p>

Hon. Frank. B. Smith, Judge. Action by T. N. Treat against T. C. Dejean, Mayor, and others. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals.

Hon. Chas. S. Whiting, Judge. Thomas Heffernan and Ellen J. Taylor were convicted of adultery, and they appealed from the judgment and order denying a new trial.

Hon. Joseph W. Jones, Judge. Action by Mrs. A. H. Burton against J. A. Cooley and another. From an order denying the motion of defendant, J. A. Cooley, to vacate a default judgment against him, he appeals.

Hon. Joseph B. MooRk, Judge. , Action by James E. Carney and others, partners as Carney, Davis & Co., and another, against Daniel Twitchell and others. From' an order vacating findings, conclusions of law, and a judgment, plaintiffs appeal.

Hon. Joseph W. JONES, Judge. C. L. Carlisle was convicted of practicing dentistry without a license, and he brings error. It is not sufficient to charge an .offense in the language of the statute alone, where by its generality it may embrace acts which it was not the intent of the statute to punish. Cyc.

Hon. Lyman T. Boucher, Judge. Action by James G. Bradey against Nick Mueller. From a judgment for plaintiff in the circuit court, on appeal from a judgment of a justice of the peace, defendant appeals.

Hon. Lyman T. Boucher, Judge. Action by Robert I. Hall against Andrew Feeney. From a judgment for plaintiff on á directed verdict, defendant appealed. A debtor will not be permitted to alienate his property and place it in a position where it is not subject to process in behalf of his creditors, unless there be a consideration to stand in place of the property alienated.

<p>An information charging that accused bought, received, and took stolen property into his possession, etc., is not defective as charging two separate offenses, buying and receiving.</p> <p>When a -penal statute mentions several acts disjunctively, and provides that each shall constitute the same offense and be subject to the same punishment, an information may charge one or all of such acts conjunctively as constituting a single offense.</p> <p>An information alleging a larceny of specified property by three specified persons, and that thereafter accused unlawfully, feloniously, well knowing--that the property had been stolen, taken, and carried away, bought, received, and took the -property -into his possession, etc., charges a public offense.</p> <p>Under Rev. Code Cr. Proe. § 535, providing that, if a court, to whom an application for a continuance on the ground of absent testimony is made, is satisfied as to the truth of the facts stated, and that the examination of the witness is necessary, he must order that a commission issue to take the testimony, and may direct that the trial be stayed long enough to execute and return the commission, or continue the case, the granting of an application is wholly discretionary with the trial court, and its action is reviewable only for .abuse.</p> <p>In a trial for receiving stolen property, the trial judge did not abuse his discretion in refusing a continuance asked by the accused on account of absent testimony, showing that witness was present when accused bought the property of a particular, person, and that such person signed a bill of sale, where the state showed that other persons were present at the sale, and all of them, excepting one, made affidavits. that accused’s pretended witness was not there.</p> <p>Under Rev. Pen. Code, § 618, making it an offense to buy or receive in any manner, “upon .any consideration,” property, knowing that ■it has been stolen, the gist of the offense is the buying or receiving with such knowledge, and an information is not'bad for omitting to allege that the property was .bought or received “upon any consideration”; that phrase being synonymous with “any motive”.or “for any cause.”</p> <p>Consideration may mean either price or motive.</p> <p>The state could show that one accused of receiving stolen property exchanged therefor property known by him to have been stolen, to show the inadequacy of the consideration paid by accused.</p> <p>Evidence admitted without objection is not subject to motion to strike.</p> <p>A motion to strike particular evidence is properly refused, where part of the evidence was properly admitted.</p> <p>In a trial for receiving stolen property, a paper purporting to be a bill of sale for the property w.as properly excluded, where it was not shown to have been signed by the seller, and he testified that he did not know of, nor sign, the paper.</p> <p>In a criminal case, it was proper to show by a committing magistrate what a witness testified to before him, where it was sought to discredit the witness’ subsequent testimony.</p> <p>In a criminal case it was for the jury to determine whether testimony was contradicted by the witness’ testimony on a former hearing as testified to by the magistrate who received it.</p> <p>While in arguing to the jury the prosecuting attorney cannot state as facts that which has not been proved, nor go beyond fair and reasonable criticism of the evidence, based upon a theory in the case supported by evidence, he should be allowed wide latitude to comment on the evidence as to accused’s conduct, and to draw such inferences from the evidence as he may deem proper.</p> <p>The conduct of counsel in a criminal case rests largely in the sound discretion of the trial court, whose judgment thereon should only he reversed for manifest abuse.</p> <p>Improper remarks of the trial court and the prosecuting attorney are not ground for reversal, where the evidence amply sustains the conviction, and it does not appear that the remarks necessarily influenced the jury.</p> <p>In a trial for receiving stolen property, the identity of the thief is immaterial, though his name he specified in the information; the specification being unnecessary, and properly treated as surplusage.</p> <p>A verdict convicting of receiving stolen property “as charged in the information” is not defective for failing to find the value of the property, where the information alleges the value to be $1,200, and the evidence on both sides shows the value to have greatty exceeded $2 0.</p> <p>In .a trial for receiving stolen property, an issue as to the value of the property need not be submitted, where the evidence on both sides shows the value to largely exceed $20; and, if the court does instruct on that point, the jury’s failure to find the value would not be reversible error.</p> <p>Haney, P. X, dissenting in part.</p>

<p>A finding supported by evidence will not be disturbed on appeal.</p> <p>The Legislature, in adopting a statute from another state, is presumed to intend that it be given the construction adopted in such state</p> <p>■Service of ian answer by mail is complete when the answer is deposited in the mails.</p>

<p>Rev. Pol. Code, § 694, .provides that in disbarment proceedings the costs of the reference shall he paid by the county in which su:h .case is referred to be tried. Rev. Code Civ. Proc. § 293, provides that the fees and expenses of referees and the compensation of the stenographer appointed by the referee shall be paid by the county wherein the court is held which made the reference, but that the fees of the stenographer for mating a transcript of the evidence shall, when ordered by the referees, be paid by the parties to the action. Section 43 5 provides that in all -special proceedings the clerk may tax in favor ot the prevailing party the witness, jury, «facers’, and printers’ tees, the compensation of referees, -and the necessary expenses of taking depositions and procuring neces-sary evidence. Held, that the compensation of a referee in -disbarment proceedings should be paid by the county, and that the fees of the clerk of court for certified copies of record and exhibits, the fees of the -sheriff, the fees of witnesses, and -cost of depositions should be taxed against the accused, and that the cost for taking and transcribing testimony for the use of the Supreme Court shall be charged against the county, but that the Hem for copy of transcript for accusers, being unauthorized by statute, should be neither taxed -against the accused nor against the county.</p> <p>A contention ion appeal .from the taxation -of costs in disbarment proceedings that the charges for witness fees a.re excessive cannot be sustained, where there is nothing to -contradict the verified, itemized statement filed by the accusers.</p>

Pión. Levi McGEE, Judge. Action by Rufus E. Cable against the Magpie Gold Mining Company, in which plaintiff obtained a judgment. From an order denying a motion to quash a levy under the execution issued under the judgment, James C. Sherman, a senior judgment creditor, appeals.

<p>Appeal from Circuit Court, Lawrence County. Hon. Wiiaiam G. Rice, Judge.</p> <p>Injunction by John N. Hawgood against Moses S. Emery. Erom a judgment for defendant, plaintiff appeals.</p>

Hon. George Marquis, Judge. Action by Charles C. Kellogg against James .Finn.' From h » judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Hon. EraNtc B. Smith, Judge. Frank Sutt-erfield was convicted of an assault with a dangerous weapon with intent to do bodily harm; and, from the conviction and an order denying a new trial, he appeals. The defendant is justified in his action until shown otherwise. The burden of proof never shifts but it is at all times upon the State to show that the defendant is not justifiable. State v. Schmidt, 19 S. D. 585, 104 N. W. 259; State v. Sharp, ’103 N. W. 770.

<p>Appeal from Circuit Court, Edmunds County. Hon.' LoriNG E. Garry, Judge.</p> <p>Action of claim and delivery by John Kimmitt against Fred A. Deitrich. Plaintiff had judgment, and defendant appeals.</p>

<p>Appeal from Circuit Court, Lawrence County. Hon. W. G. Rice, Judge.</p> <p>Action by Victor R. Jepsen against Charles C. Marohn and another. Judgment for plaintiff, and defendants appeal.</p>

Hon. Levi McGee, Judge. Suit by R. R. Ritchie and others against the People’s Telephone Company and others to determine the rights of a minority stockholder. From a judgment partly in favor of both parties, complainants appeal.

Hon. Levi McGee, Judge. Action by Edmond S. Kelly against Williard A. Wheeler From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Hon. FoRING E-Garry, Judge. Action by M. O. McNish against John W. Wolven and another. From a judgment for plaintiff and from an order denying a new trial, defendant John W. IWolven ¿appeals.

Hon. Joseph W. Jokes, Judge. Action by Isaac S. Jones against Elmer A. Rongerbeam on an account. From a judgment for defendant and from an order denying a new trial, plaintiff appeals.

Hon. Lüvi McGBií, Judge. Action by George W. Kime against the Bank of Edgemont, S. D. From a judgment for plaintiff, and from an order denying defendant’s motion for a new trial, it appeals.

Hon. JosjJph W. Joints, Judge. Action by Peter Iverson against the Soo Elevator Compan)-'. From a judgment for plaintiff, and from an order denying defendant’s Imotion for a new trial, defendant appeals. The conversation between the landlord, Simpson, and the tenant, as to what should be done with the grain was -hearsay, and since it had especial reference to the pivotal point in the case, namely, the division of the grain, it ¡was prejudicial.