Volume 26 — South Dakota Reports

Hon. Joseph W. Jones, Judge. Action by Rewis Spawn against the South Dakota Central Railway Company. Judgment for defendant, and plaintiff moved for a new trial, which was granted in part and denied in part,' and both parties appeal.

<p>The (powers the states have given to the federal government are named in the federal Constitution, and all ¡powers not therein named, either expressly or hy implication, are reserved to the people of the states.</p> <p>The word “Legislature,” as used in Const. U. S. art. 1, § 4, .providing that the time, place and manner of holding elections for Senators and Representatives shall be prescribed in each state by the Legislature thereof, but that Congress may make or a-lter such regulations does not' mean simply the members who compose the Legislature, but refers to the lawmaking body or power of the state, as established by the state Constitution, and which in this state, under the referendum Const, art. 3, § 1, includes the .people, and hence Sess. Laws 1909, c. 223, dividing the state into congressional districts, is subject to the referendum vote of the people the same as any other law passed by the Legislature.</p>

Appeal- from Circuit Court, Spink County, Hon. Alva E. Taylor, Judge. Mandamus by the State, on -the relation of G. C. Ketterling, against Wallace Gregory and others, as supervisors, and J. P. Wolf, as town clerk, of the Township of La Prairie, Spink County. Peremptory writ granted, and defendants appeal.

<p>Appeal from’.Circuit Court, Codington County. Hon. George If. Marquis, Judge.</p> <p>Action by Charles Schull against Hollis L. Hopkins. From a judgment for plaintiff and an order denying a new trial, defendant appeals.</p>

An appeal from Circuit Court, Brown County. Hon. Frank McNurTy, Judge. Action by Albert Berry, administrator of the estate of Eberhart Thompson, deceased, against Chas. A. Howard and another. From an order overruling a demurrer to the complaint, defendants appeal.

<p>A county treasurer is not, under the statutes, entitled to 4 per cent commission for the collection of school taxes.</p>

Hon. Joseph W. Jones, Judge. Action by Henry Hoffman against Ellen Marie Hoffman. From a judgment finding plaintiff guilty of contempt and providing for his punishment, he appeals. Imprisonment does not follow in civil contempt unless it is found by the court that the party has the ability to comply with the order of the court.

<p>A .party whose acts are to be ratified must to the knowledge of the other .party have been acting as agent.</p> <p>A third person may be substituted in the place of a party to a contract with the consent of both the original parties; and-, when so substituted, the right between him and the remaining original party is the same as between the two original parties.</p> <p>A real estate agent w.ho produces a purchaser with whom his principal enters into a contract is entitled to his commission, though without fault of the principal .the transaction is not consummated.</p> <p>A complaint alleging a request by defendant that plaintiff advance for defendant a certain sum of money and a promise by defendant to convey plaintiff land with the understanding that plaintiff might borrow money thereon, and that plaintiff advanced the money but that defendant refused to either convey the land or repay the money, was sufficient.</p> <p>A .party requesting another to make a payment for him cannot be heard to urge in defense against such party that the .payment was not yet due.</p> <p>CORSON, J., dissenting.</p>

<p>Tiie Tight to serve and; file an amended -answer within 20 days after service of the -original, as of course, under Code Civ. Proc. § 149, was not waived by moving the court for leave to file such pleading.</p> <p>The sufficiency of an amended answer is not pro-perly before the court on a motion for leave to file it.</p> <p>A parole contemporaneous agreement which was the inducing cause of a written contract, or forming a part of the consideration therefor, -or upon the faith -of which the written contract was executed, is -admissible.</p> <p>Civ. Code, § 1239, providing that the execution of a contract in writing supersedes all oral negotiations, does not preclude -defendant from showing in .defense to an action for the price of drilling an artesian well that at the time of making the written contract ¡he owned a large tract of land used as a stock' ranch, upon which he kept a‘ large number of horses and cattle; that his sole object in having the well was to water such stock, which plaintiff knew; that .plaintiff represented that he would construct a well sufficient for that purpose, and that relying upon such representation defendant entered into the written contract; and that such well was insufficient for the purpose intended.</p> <p>Under Civ. Code, § 1256, providing that a contract may be explained by reference to the circumstances under which made, and the matter to which relating, defendant, in an action for the price of drilling a flowing well, can show, to explain what was meant by the term “flowing well,” that he was the owner of a stock ranch upon which he kept a large amount of live stock; that his sole'object in having the well was to water such stock, which plaintiff knew; that plaintiff represented that h'e would construct a well sufficient for that purpose, and that relying on such representation defendant entered into the contract, and that the well was insufficient for the purpose intended.</p> <p>Smith and McCoy, JJ., dissenting.</p>

<p>Appeal from Circuit Court, Day County. Hon. J. H. McCoy, Judge.</p> <p>Action by the City of Webster against Day County. From an order overruling a demurrer to a paragraph of the answer, plaintiff appeals.</p>

<p>A person in duty bound to pay taxes, as the owner of land cannot purchase at a tax sale, and such a purchase operates only as payment of taxes.</p> <p>A husband because of the confidential marital relation cannot purchase his wife’s land at a tax sale, but such a purchase will be treated only as payment of her taxes.</p>

Hon. Wiuuiam G. Rice;, Judge. Action by Burt Rogers and others against the Penobscot Mining Company and others. From a judgment for plaintiffs and an order denying a new trial, defendants appeal.

<p>Plaintiff agreed to dig an artesian well for defendant, which, upon completion proved unsatisfactory to defendant, whereupon plaintiff, with defendant’s consent, dug a second well in place of the first, which was immediately abandoned upon the commencement of the second. Held, in an action for digging the second well, that it was error to permit defendant to show the defects claimed by him to exist in the construction of the first.</p> <p>In an action for digging an artesian well tlie flow of which was not guaranteed by plaintiff except on such altitudes as flow could be obtained, it was error to permit defendant to show the comparative flow of other wells within a radius of four or five miles, for, without specification as to quantity, the contract was fulfilled, though the flow may have been scant as compared with other wells.</p> <p>Corson, J., dissenting in part.</p>

Hon. Frank B. Smith, Judge. Proceeding before ihe board of county commissioners of Davison county to compel the Chicago, Milwaukee & St. Paul Railway Company to construct a crossing- or bridge over a certain highway. From an order requiring the crossing to be put in, the company appealed to the circuit court, where the appeal was dismissed, and from the order dismissing the appeal, the company appeals.

Hon. William G. Rice, Judge. Action for divorce by George S. AVells against Maud B. Wells. From a judgment for defendant and an order denying a new trial, plaintiff appeals. Thereafter defendant moved the Supreme Court for temporary alimony and suit money pending the appeal.

<p>Under Civ. Code, § 1730, .providing that each member of a partnership may require its .property to be applied to the discharge of its debts, and has a lien upon -the shares of the -other partners for that purpose and for the .payment of any general balance due him, notwithstanding a partner may have been .personally discharged in bankruptcy from liability -for an overdraft upon the -partnership, his copartner has a lien upon his -interest in property acquired by him subsequently to his discharge in payment of a .partnership debt for one-half the amount of the overdraft with interest.</p>

Hon. Levi McGEE, Judge. Action by H. W. Spaulding and others, copartners, against K. I,. Pitts. From a judgment for defendant and an order denying a new trial, plaintiffs appeal.

<p>Evidence in an action to hold defendants- liable on checks held insufficient to connect defendant therewith, either as maker, payee, indorser, or indorsee, and to disclose no circumstances showing a liability thereon.</p>

<p>Appeal from Circuit Court, Turner County. Hon. E. G. Smith, Judge.</p> <p>Action by the City of Parker against Turner County. Judgment for plaintiff, and defendant appeals.</p>

Hon. E. G. Smith, Judge. Action by Joseph Wentzel and -others against Isaac Claussen and another. From a judgment for plaintiffs and an order denying a new trial, defendants appeal.

<p>Where the bill of exceptions- has been stricken out and no errors appear in the record -proper, or that -do not require support from a bill of exceptions, the judgment will be affirmed.</p>

Action for divorce by Anna F. Tuttle against Edmund R. Tuttle. Plaintiff having obtained a decree, defendant appealed from the allowance of alimony, and thereafter plaintiff procured an order to show cause requiring defendant to show why he should not pay temporary alimony and suit money pending the appeal.

<p>Appeal from Circuit Court, Custer County. Hon. Levi McGEE, Judge.</p> <p>Action by the Paxton & Gallagher Company against W. V. Starkweather and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Prohibition by the State, on the relation of L. G. Ochsenreiter, against C. E. Blegen, as County Auditor of Day County, and another, as intervenor.</p>

<p>Evidence, in an action for commissions of C. & H., ■ local agents to sell machinery for defendant, held to authorize a finding, in the case of a sale to W., for which no commissions are claimed, which sale was closed by B., traveling salesman of defendant, that B. was not the agent of C. & H., or assisting them, in the sale, so as to make them liable, under their contract of employment, as guarantors of the notes taken from W. in payment.</p> <p>Though agents to sell machinery, who, by provision of their contract of employment, guarantee notes taken in payment for machinery sold by them, make no claim for commissions on a sale to M., yet defendant having pleaded, as a defense to- the action for commissions on other sales, their guaranty of the notes of M., which toad not been paid, there was properly deducted' from the amount otherwise owing them, not the full amount of such notes, but the part thereof which would have come to defendant after deducting the agents’ commission, which was all it would have been entitled to -under its contract with them.</p> <p>Where the judgment, in an action for commissions of selling agents, credits the employer with the amount of notes taken by the agents in payment of articles sold, the notes having been guaranteed by the agents and unpaid, it .pro.perly awards possession thereof to the agents; they being entitled to anything that they can collect thereon.</p>

- Hon. J. H. McCoy, Judge. Action by Currie Root and another against George Bingham. There was a verdict for plaintiffs; and they appeal from an order granting a new trial.

<p>Appeal from Circuit Court, Roberts County. Hon. J. H. McCoy, Judge.</p> <p>Action by S. J: Simonson against G. W. Aney and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Where the abstract on appeal fails to show that the bill of exceptions was certified by the trial judge, the appellate court will not consider the appeal on attention being called to the defect.</p> <p>Where, on a motion for new trial, there are no .specifications of error in the bill of exceptions, the trial court should disregard the bill.</p> <p>Where the trial court overruled defendant’s motion for new trial, the errors in the bill of exceptions not being specified, such ruling will be presumed correct on ‘appeal; so that, where the bill of exceptions on appeal failed to contain specifications of error, the appellate court will not send the record back to the trial court for correction, the plaintiff, on the motion for new trial, having an absolute right to rely upon the lack of the specifications of error, so that, if the trial court had ‘granted a new trial because of error ■appearing in the bill of exceptions, it would h'ave been reversible error.</p> <p>Although instructions were all in writing, to which exceptions were duly taken, yet they were “errors of law occurring at the trial,” so as to require specification in the bill of exceptions to bring the court’s attention to them on motion for new trial.</p> <p>Haney, J., dissenting.</p>

lion Lyman T. Boucher, Judge. Action by James A. Smith against E. H. Dunn, as administrator of the estate of W. E. Lawrence, deceased, and others. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals.

Hon. Frank McNulty, Judge. Action by Henry Stenson and another against August Elfmann and another. From a judgment' for defendants and from an order denying a new trial, plaintiffs appeal. If any defense constitutes a counterclaim it must be replied to or will be taken as true; while the allegations of new matter in the answer not in the effect a counterclaim, is deemed to be controverted upon a “direct denial” or “avoidance,” but not otherwise. Code of Civil Pro. § 145.

Hon. Charres S. Whiting, Judge. Action by Patrick Sullivan against N. P. Bromley. From a judgment for plaintiff, and an order denying a motion for new trial, defendant appeals.

Hon. J. Ii. BoITum, Judge. George R. Eaper was convicted of receiving stolen property, knowing it to have been stolen, and he appeals from the judgment of conviction, and an order denying a new trial.

<p>Under Code Civ. Proc. § 102, .prescribing the venue in civil actions, the right of a defendant to have the place of trial changed to the proper county is absolute if the demand and motion therefor are -duly made.</p> <p>The court cannot retain a civil -case in a wrong county -on the ground of the convenience of witnesses.</p> <p>“A. proper county,” as used in Code Civ. Proc. § 102, and Laws 1905, c. 82, relating to venue -and change of venue in. civil cases, means the place of trial prescribed -by the statute, independent oí any question -of convenience of witnesses, -or waiver or -consent of parties and the county which, under the statute may lawfully be designated in the complaint when it is filed.</p> <p>Code Civ. Proc. § 101, so far as it regulates the place of trial in civil -cases, makes no distinction -between defendants who -are natural persons and corporations.</p> <p>A foreign corporation does not reside in any county of the state within the meaning of Code Civ. Proc. § 101, relating to venue in civil actions.</p> <p>In a civil action where the defendant corporation has no residence in the state, the proper county for trial, under Code Civ. Proc. § 101, providing that where none of the defendants reside in the state the action may he tried in any 'county designated by plaintiff in the complaint, subject to the power of the court to change the venue in the cases provided by statute, is the county designated in the complaint.</p>

Hon. Frank McNulty, Judge. Action by the H. C. Behrens Lumber Company against Hattie E. Lager and others, in which the Home Building & Loan Association and another intervene. From a judgment for plaintiff and certain of the defendants, certain of -the defendants and the intervenes appeal.

Hpn. Joseph W. Jones, Judge. Action by the State' against the Western Surety Company./ From a judgment for plaintiff, defendant appeals. An individual executing an instrument already signed by others named as parties to it, thereby becomes a party to the instrument and is bound by it, • although not named in the body of the writing.

<p>A complaint alleging that defendant unlawfully, maliciously, and wantonly, by force of arms, forcibly tools horses from the possession and control of plaintiffs and drove and- chased them for a number of miles in an unnecessarily cruel and wanton manner, whereby they were -greatly damaged and injured, to the damage of plaintiffs in the sum of $1,5000, sufficiently charged damage to the horses.</p> <p>Persons who have for years been in the business of raising horses upon the range and selling them aré competent to testify as experts .as to the value of horses, both when injured and uninjured.</p> <p>In an action for injuries to animals, where the evidence showed the manner in which plaintiffs claimed the animals, had been misused, plaintiffs’ testimony as to the amount the horses were damaged was .not incompetent as a conclusion, especially where one of the plaintiffs not only stated the amount of damages per head, but stated tbe condition of -the -horses after the alleged misuse; -the case being one wherein witnesses would be qualified to give the value of the property, both before and after the damage, and an estimate of'damage being merely a short way of stating the difference in the value.</p>

<p>■While the court’s findings are usually prepared by the prevailing party, it is wholly a matter for the trial court’s discretion as to whether such -party or the unsuccessful party prepares them.</p> <p>Where appellant did not appeal from that part of the judgment -which might have been affected by a finding, of the failure to make which he complains, the Supreme Court will not consider the failure to make such finding.</p>

<p>Appeal from Circuit Court, Meade County. Hon. Josérii AY. Joints, Judge.</p> <p>Oscar Jacobs was convicted of murder, and appeals.</p>

<p>Defendant could not on appeal com plain of the court’s compelling him to submit to a decree without being allowed to offer any evidence in his behalf, where the record disclosed no offer of evidence on his part or exception to any ruling of the trial court relating to the introduction or rejection of evidence.</p> <p>On appeal in a partition action defendant could not complain where, though the complaint and amended reply did not follow the forms usually employed in partition actions, they contained all the allegations essential to such an action, and the relief granted did not differ substantially from that demanded by plaintiff.</p> <p>In an action for partition of land wherein plaintiff held a certain interest individually and also an interest for one of defendants in trust to secure an indebtedness to a third party, such defendant could not complain of a decree ordering a sale and giving plaintiff priority in distribution of the proceeds, instead of applying them pro rata among the owners of the property, where defendant’s rights to ‘his share were properly protected.</p>

Hon. William G. Rice, Judge. Action by Louis D. Richardson against Louis Carlis. From a judgment for plaintiff, defendant appeals. It is commonly regarded as reversible error -to deny a continuance where the application complies with every requirement of the law and is not made merely for delay, and the evidence is material and due diligence is shown, and the opposite party refrains from making such admissions as will obviate a continuance.

<p>Where, in a suit to quiet title, both parties claimed through a deed from A., plaintiff by a deed directly to himself, and defendant by a deed from A. to B., and thence under B., any error in admitting in evidence a letter from B. to A., showing that the land was not sold to B.’s wife, was cured by the wife’s testimony that the transaction was with her husband.</p> <p>In a suit to quiet title, the evidence held to support the findings for plaintiff.</p>

<p>Where a sufficient counterclaim -has been pleaded, plaintiff cannot without defendant’s consent dismiss the action.</p> <p>Where defendants failed to designate any part ,of their answer as a counterclaim, but plaintiff replied when no reply was proper, unless the answer was considered1 as containing a counterclaim, the answer -upon plaintiff’s motion to dismiss will be treated as embracing a counterclaim.</p> <p>In an action to quiet title where plaintiff’s rights were based upon the claim that he and his grantors had been the .owners' under color oí title and in possession for more than ten years last past, and such claim was denied in the answer, and it appeared that two years had elapsed since the action had begun, and that, if tho action was dismissed and a new action brought, by either party to quiet title, the two years or more elapsing since -commencement of the present action would when added to the period prior thereto during which plaintiff had had possession be sufficient to give him rights of which he was not possessed when he brought the present 'action, the motion should be denied, even if the answer was not replied to as embracing the counterclaim.</p>

<p>Where respondent serves- and files an additional abstract, which conflicts with appellant’s abstract in substantial respects, so that the case cannot he properly considered without referring to the original record, and such record has not been transmitted to the Supreme Court, appellant’s assignments of error are unsupported, and the presumption in favor of the regularity of the trial court’s proceedings must .prevail, and the judgment be affirmed.</p>

Hon. Lyman T. Boucher, Judge. Action by the Bank of Ipswich .against John T. Ayers and another, partners under the firm name of Ayers •& Elwood. From a judgment for plaintiff, defendants appeal.

Hon. William G. Ricl, Judge. Action by William E. Hahn against the Anaconda Gold Mining Company, in which the Herhold Chair Company intervened. Judgment for plaintiff, and defendant and intervener appeal. The superintendent stands in place of the corporation, and to give him a lien for the kind of labor he performed might defeat the liens of the workmen and material men who actually constructed the building, and would be like giving a lien to the corporation itself.

<p>Assignments of error to rulings on admission of evidence, not being referred to in appellant’s brief, are deemed abandoned.</p> <p>The court, trying the case without a jury, being presumed to have rendered its decision on only the material and proper evidence, its reception or rejection of immaterial evidence, there being sufficient material evidence in the case to sustain the findings and judgment, is unavailing on appeal.</p> <p>Unless there is a clear preponderance of the evidence against them, findings on conflicting evidence will not be disturbed on appeal.</p> <p>The duty of an agent to act with entire good faitih and loyalty for the interest of his principal in all dealings concerning or affecting the subject-matter of the agency applies to an agent to find a purchaser for -real estate, and obligates him to secure for his principal the highest price he can obtain.</p> <p>An agent to sell property may not himself become the purchaser without the knowledge or consent of the principal.</p> <p>One having by virtue of his agency to rent and care for property acquired knowledge of its true value, and then obtained an agency to sell it for a less amount, representing that that was all it was worth and all that could be obtained for it, and then bought it for himself, taking title in the name of another, and then sold it to a third' person for its true value, is accountable to his principal for the excess.</p>

Hon. Lyman T. Boucher, Judge. Action by A. G. Clayton and another against the Minnesota, Dakota & Pacific Railway Company. Prom a judgment for plaintiffs, and an order denying a new trial, defendant appeals.

Hon. Frank McNui/l'y, Judge. Action by Louise Tuttle Wallace against William G. Wallace, in which a -divorce was granted to plaintiff. From an order awarding custody of a child, defendant appeals.

<p>The possession of a negotiable instrument which is payable to order and indorsed by the payee in blank is in itself sufficient evidence of the holder’s ownership, rendering payment to him valid unless he is known to the payor to have acquired possession wrongfully.</p> <p>The written assignment of promissory notes', of which the assignor was not in possession, having been already assigned, could not affect the prior assignment; the second assignee .taking such assignment at his peril.</p>

<p>Appeal from Circuit Court, Day County. Hon. J. M. McCoy, Judge.</p> <p>Action by Ira E. Smalley against Dana Lasell. From an order opening a default judgment for plaintiff, he appeals.</p>

Hon. Levi McGee, Judge. Action by Francis F. Joy against the Midland State Bank and others, in which Julius A. Perkins was made a defendant by order of court on his petition. From a judgment for plaintiff, defendant Julius A. Perkins appeals. Where it appears from the tax deed that the premises' described therein were purchased at public auction by the county at a competitive bidding sale, the deed is void upon its face. Reckitt v. Knight, 16 S. D. 395.

Hon. Levi McGee, Judge. Action by Alfred J. Mitchell against the Black Eagle Mining Company and others. Prom a judgment for plaintiff and an order denying a new trial, defendants appeal.

<p>Appeal irom Circuit Court, Stanley County. Hon. W. G. Rice, Judge.</p> <p>Tom Barnes was convicted of grand larceny, and he appeals.</p>

<p>Appeal from Circuit Court, Walworth County. Hon. Lyman T. Boucher, Judge.</p> <p>Action by Peter A. Rausch, as administrator of the estate of Peter J. Rausch, deceased, against Peter Hanson. From a decree for plaintiff, defendant appeals.</p>

Hon. Tbvi McGE®, Judge. Action to foreclose a mortgage by Tew W. Sandys against Tee Robinson and others. Judgment for defendants, and plaintiff appeals. If an instrument purports to have been executed by a corporation, and the corporate seal is affixed, it will be presumed, in the absence of evidence to the contrary, that it is the proper seal of the corporation, and that it was affixed by the duly authorized officer or agent. Sec. 76, Marshall on Corporations.

<p>In an action against a railway company for killing stock, where the court charged; without exeoption that, the killing being admitted, the burden of proof was upon the defendant to show that it was clone without negligence, this instruction is the law of the case upon appeal.</p> <p>It is for the jury to determine the probative force of evidence whether direct or circumstantial.'</p> <p>In an action against a railroad company for the killing of < attle on the track, evidence held to support a finding of defendant’s negligence.</p> <p>When a verdict can be sustained on any reasonable view of the evidence, it should be sustained on appeal.</p>

<p>A complaint alleging that on or -about September 1, 1903, plaintiff being unmarried, at defendant’s request, promised to marry defendant, and -at various times thereafter, about August 1, 1907, and on August 1, 1908, and -on May 5, 1908, defendant renewed h-s promises to marry plaintiff in the near future; that plaintiff, relying -on such promises, had remained' unmarried, -and was still ready and willing to marry defendant, of which he h-ad notice; that plaintiff at various times between May 5, 1908, and February 11, 1909, requested defendant- -to marry her, but he had failed and still fails and refuses to -carry -out the contract, -although ,a reasonable time had elapsed therefor prior to the commencement of the action; that plaintiff by reason of such failure had been subjected to great mental anguish and -bodily suffering, and had been damaged in body, and mind and character, in the sum of $15,000 — stated a cause of action and was not demurrable for want -of facts.</p> <p>Where, in -an action for breach of marriage promise, there was no direct evidence, but slight circumstances, indicating that plaintiff ■had given birth to a child, and that -defendant was the father, evidence of a conversation between .plaintiff and defendant -as to the child when -they were discussing the question of marriage was admissible as throwing light on the reasonableness of the direct testimony of the ¡parties on the issue of marriage promise, which was in direct conflict.</p> <p>The conduct of counsel and1 parties during a trial are matters so peculiarly within the supervision and discretion of the trial court that the Supreme Court will not grant a new trial by reason thereof, unless it clearly appears that there has been an abuse of discretion.</p> <p>In an action for breach of marriage promise, plaintiff during the argument of her counsel fainted, and was carried to- an adjoining room, and there during the fainting spell exclaimed, “O, my baby darling!” The argument of counsel proceeded without interruption. Held, that the court did not abuse its discretion in refusing defendant a new trial on account of such occurrence.</p> <p>During the argument of counsel, it was not error for the judge to leave the bench and go to an adjoining .room, where plaintiff had been taken in a feinting condition; there being nothing to show that the judge was at any time out of hearing of the pror ceedrngs' and conduct of the trial, or where he could not instantly have controlled any improper conduct on the part of counsel or others.</p>

Hon. Joseph W. Jones, Judge. Action by Andrew Thompson against the Chicago, Milwaukee & St. Paul Railwa}' Company. Judgment for plaintiff, and defendant appeals. On motion to return record to trial court for amendment.

Hon. Joseph W. Jones, Judge. Action by Cisworth Whaley and others by Rufus Whaley, their guardian ad litem, against Felix Vidal and others. From a judgment for the plaintiffs, defendants appeal. Motion to strike the appellants’ bill of exceptions and abstract from the record and dismiss the appeal.

<p>Plaintiff was granted a divorce and $2,000 alimony, payable in four equal installments; defendant being required to execute a bond for $3,000 to pay tbe same. Defendant tendered plaintiff’s attorney tbe first installment of $400 and offered to furnish tbe bond, but the payment was refused, and plaintiff appealed from tbe judgment for alimony. Defendant on appeal was required to ipay suit money and temporary alimony pending appeal, whereupon plaintiff applied for an order requiring defendant to execute a bond to secure compliance with tbe order and such judgment for permanent alimoney .as .plaintiff should ultimately recover. Held, that since no judgment for permanent alimony would be rendered on appeal, but tbe award made by the trial court would either be reversed, modified, or affirmed, and tbe amount awarded at tbe trial was presumptively correct, tbe application would be denied; there being no reason to apprehend that defendant would not comply with tbe orders made.</p>

<p>A landowner Raving acquired riparian rights by his entry on land, prior to the enactment of the water right law of 1881 (Laws Dak. 1881, c. 142), such rights became vested' and were not taken away or destroyed by that act.</p> <p>Rights of a riparian owner to the use of water at common law included the right to use it for irrigation as well as for domestic purposes.</p> <p>Riparian rights of a pre-emptor attached as of the date of settlement, and not as of the date of patent.</p> <p>Where, in a contest over rights of water for irrigation purposes, the court found that a hundred inches of water was necessary for the proper irrigation of J.’s riparian lands, it was not essential that the' amount of water in the stream or the number of persons holding riparian rights should be proved, to define the amount of J.’s reasonable use, as against .plaintiff, whose only right to the water as against J. was to prevent him from wasting it.</p> <p>The riparian' law recognizes no riparian rights as gained through prior settlement or appropriation.</p> <p>' As between riparian proprietors using the water of a stream for domestic purposes and for watering stock, the owner whose land lies nearest the source of the stream may use all of the water, if he needs it, to the exclusion of the others; but, with reference to an artificial use including mining, manufacturing, and irrigation, there is no preference as between riparian owners owing to the location of ■their land, the rights of all being exactly the same, and limited to a reasonable use in-view of the rights of all the other riparian owners on the- stream.</p> <p>The amount of water in inches to which a riparian owner may be entitled for irrigation as .against other riparian owners is impossible of estimaton, varing continually, not only by the varying volume of water flowing down the stream at different times of the year, or at different years, but also from the amount of land that may have been settled upon, and the extent of the use of the water for ordinary or natural purposes.</p>

-Hon. LorinC E. Garry, Judge. Action by Corbin Morse against Stanley County and another, as treasurer of said county. From a judgment for defendants and an order denying a new trial, plaintiff appeals.

Hon. Lyman T. Boucher, Judge. Certiorari by Charles Geiger against Samuel H. Lea, state engineer. From a judgment denying the writ, petitioner appeals. If in the exercise of sound judicial discretion an injured party ought to be accorded an original writ of certiorari, it is an abuse of authority to refuse it, and from such refusal an appeal will lie.

<p>Appeal from Circuit Court, Pennington Co-unty. Hon. Levi McGee, Judge.</p> <p>Action by Elizabeth G. Lyons against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff, and defendant appeals.</p> <p>A railroad company is not liable for injuries caused by a team taking fright at the ordinary operation of a train upon its road, or for injuries resulting from noises necessarily incident to the operation thereof. Clinebell v. R. R. Co., no N. W. 347; Hendricks v. R. R. Co., 93 N. W. 141; R. R. Co. v. Roberts, 91 N. W. 707; Fares v. Ry. Co., 77 Pac. 230; Walters v. Railway Co., 80 N. W. 451; Dewey v. Railway Co., 75 N. W. 74; Cahoon v. R. R. Co., 55 N. W. 900; Abbott v. Kalbus, 43 N. W. 367; Lamb v. Old Colony R. R., 140 Mass. 79; R. R. Co. v. Burkhart, 34 Alt. 1010; Doster v. R. R. Co., 34 L- A. R. 481; Everett v. R. R. Co., in N. W. 281. A railway company is not required to treat a private crossing as a public one, so far as to require the use of statutory signals by approaching trains; but though no statutory duty rests on a railway company to sound the whistle of its locomotive on approaching a private crossing, it is nevertheless chargeable with the common law duty of exercising reasonable care. Plartman v. Railroad Co., no N. W. 10; Swift v. Railroad Co., 123 N. Y. 645; Owens v. Railroad Co., 41 Fed. 187; Schindler v. Railroad Co., 87 Mich. 400. It is not the duty of those on the engine to be on the lookout for travelers on the highway who may be endangered by the noises or smoke of a passing train. Lamb v.. Old Colony Railroad Co., supra; Fares v. Railroad Co., supra. Where all reasonable probabilities from facts unquestionably established by the evidence are on one side of a controversy, the testimony of an interested party to the contrary does not create a conflict of evidence requiring such controversy to be submitted to and determined by a jury, or, if submitted, support their determination, if contrary to all such reasonable probabilities. Flaherty v. Harrison, 74 N. W. 360; Badger v. Cotton Mills, 70 N. W. 687; Thompson v. P. P. Co., 33 N. W. •856; Payne v. Railway Co., 39 Iowa, 523.</p> <p>Where there is a conflict in the evidence, or where impartial jurors may draw different conclusions therefrom, the case must be submitted to the jury. Roberts v. Ruh, 22 S. D. 13, 114 N. W. 1097. It is actionable negligence when injury results, to sound the whistle in an unusual manner and at points where it is not necessary to sound1 the same, or at points or places where it is proper that the whistle be sounded when the operators know or should know, that injury will or is likely to result. Phelan v. Granite B. Paving Co., 91 S. W. 440; Texas & P. R. Co. v. Hamilton, 66 &. W. 797, 63 111. 151; Gulf C. & S. F. R. Co, v. Box, 17 S. W. 375; Bittle v. Camden & A. R. Co., 28 Atlantic, 305; Culp v. Atchison & N. R. Co., 17 Kan. 475; Indianapolis Union R. Co. v. Boettcher, 28 N. E. 551; Texas & N. O. R. Co. v. Syfan, 43 S. W. 551.</p>

Hon. Lsvi McGiW, Judge. Action by Will O. Ferguson and another against Northern Assurance Company of London and another. From a judgment for plaintiffs and from an' order denying a new -trial, that company appeals.

<p>In the matter of the disbarment of Samuel A. Ramsey. On petition by respondent for reinstatement.</p>

<p>Bankr. Act July 1, 1898, c. 541, § 17, 30 Stat. 550 (U. S. Comp. ,St. 1901, p.- 3428), as amended by Act Peb. 5, 1903, c. 487, § 5, 32 State. 798 (U. S. Comp. St. Supp. 1909, p. 1310), expressly releases all liabilities of a discharged .bankrupt other than those eycepted bythe act.</p> <p>A judgment for slander is' within the provision in Bankr. Act July 1, 1898, c. 541, § 17, subd. 2, 30 Stat. 550' (U. S. Comp. St. 1901, p. 3428), as amended by Act Peb. 5, 1903, c. 487, § 5, 32 Stat. 798 (U. S. Comp. St. Supp. 1909, p. 1310), which excepts from liabilities released by a discharge in bankruptcy those incurred for malicious injuries to the person or property of another, but a judgment against plaintiff in slander for costs is not within the exception.</p> <p>Liability for costs, whether in actions ex contratu or ex delicto arises wholly from statute laws.</p> <p>To bring a liability within the provision .of Bankr. Act July 1, 1898, c. 541, § 17, subd. 2, 30 Stat. 550 (U. S. Comp. St. 1901, p. 3428), as amended by Act Peb. 5, 1903, e. 487, § 5, 32 Stat. 798 (U. S. Comp. -St. Supp. 1909, p. 1310), excepting from liabilities released by a discharge in bankruptcy those incurred for willful or malicious injuries to persons or property, its gist must .arise from willful and malicious injury.</p>

<p>Appeal from Circuit Court, Grant County. Hon. Frank Mc-Nuuty, Judge.</p> <p>Action by the Frick Company, a corporation, against William Hoff and W.-F. Filbert. From a judgment for plaintiff, defendants appeal.</p>

<p>An irregularity in the service of summons issued out of a justice’s court is waived by a general appearance in the action.</p> <p>Under the provisions of Justice’s Code, § 10, the court has no jurisdiction of an action in which there has been no service of summons, unless there has been both an appearance and a pleading.</p> <p>The special appearance of the defendant on the return day to ask for a continuance, and his consent in open court that the case be set for trial on a fixed day, 'constitutes a general .appearance.</p> <p>Where a defendant appears specially on the return day and waives a defect in the service of the summons, he cannot, at a later date set by consent for trial, object to the court’s jurisdiction on the ground that his former special appearance was insufficient to give jurisdiction.</p> <p>In an action by a father for the earnings of his minor son, evidence as to willful or negligent acts of the minor, to show that- his services were of no value to the defendant, is incompetent, since proof of such acts would not affect the value of the work and labor actually performed by (the minor.</p> <p>The act of a minor in setting a fire on land not belonging to his employer, by the spreading of which his employer was damaged, done without the direction of the minor’s parent, and outside of his employer’s work', is a willful tort for which the parent is not liable.</p> <p>In an action- by the father for the earnings of his minor son, defendant cannot under a counterclaim prove alleged negligent acts -of the minor by which he claims to have been damaged, unless such ams would be in themselves a -cause of action against the father.</p> <p>A parent is not liable in damages for the torts of his child committed without his knowledge and not in the course of his employment of the child.</p>

<p>W'here plaintiff seeks to foreclose -a mortgage and recover a -personal judgment for any deficiency against the mortgagor who has conveyed his entire interest in the mortgaged premises, the -mortgagor has such interest in the subject-matter of the suit as entitles him to -a new trial after erroneous judgment for plaintiff.</p> <p>The -power to foreclose a mortgage by advertisement on default is a contract right; and, unless the power is contained in the mortgage -and duly recorded, 'it cannot be exercised.</p> <p>The term “valid defense” -in Code Civ. Proc. § 636, authorizing the court to direct that a foreclosure begun by advertisement shall be had in the circuit court -on the -mortgagor showing a valid defense, includes any defense which may reduce or extinguish the indebtedness secured, hut does not include a defense unavailable to the mortgagor -at the time of the order transferring the foreclosure to the circuit court, and a mortgagor may not plead limitations in defense to a foreclosure begun by advertisement and subsequently transferred to the circuit court.</p> <p>A record of a former trial to which -one made a party to a subsequent trial was not a party is not evidence against him on a point -tried and -determined in the former trial -and .directly put in issue in the subsequent trial by his -answer.</p>

<p>Where 'plaintiff sold and delivered machinery to defendant for resale, expressly providing that title to all of it should remain in plaintiff till sold by defendant in the regular course of business or settled for, defendant’s sale of part of it and settlement therefor does not vest the title to the remainder of it in him, so as to change, as to such part, the measure of damages provided by Civ. Code, § 2303, for breach of a buyer’s agreement to accept -and pay for personalty the title to which is not vested in him, where it is not. resold.</p> <p>WHITING, J., dissenting.</p>

Hon. Frank B. Smith, Judge. Action by J. F. Polt against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff, and defendant appeals. The statutes making railroad companies liable as insurers for damages are purely remedial, for it makes railroad companies doing lawful acts, for their own profit, liable for actual damages, and’no more. Such a statute is not a penal one; the law stops with actual damages. St. Louis & S. F. Ry. Co. v. Matthews, 17 Sup. Ct.

<p>Appeal from Circuit Court, Lawrence County. Hon. Wm. G. Rice, Judge.</p> <p>AVilliam K. Frazier was convicted of crime, and he appeals.</p>

<p>On rehearing.</p> <p>Hon. Levi McGee, Judge.</p>

<p>One employed under an entire contract for a gross sum to do a specified thing, and who is not subject to the direction of his employer, is tan “independent contractor.”</p> <p>Where the person employed by .defendant to plow a field was not hired to plow any specific number of acres at the rate per acre fixed upon, but could quit when he chose, and .defendant could terminate the employment at any time, the plower was not an independent contractor.</p> <p>Where, in an action for damages done by a fire set out by one employed by defendant to plow a field, the undisputed evidence showed that such person was not an independent contractor, but was employed to plow at so much an .acre at defendant’s will, errors in receiving or excluding evidence predicated upon the defense of independent contractor were not reversible.</p> <p>An >agent, who contracts in his own name with one unaware of the agency, becomes liable as principal, so that where defendant, in employing .another to .plow a field for the company, of which he was managing agent, did not disclose his agency to the person employed, who did not know thereof, defendant was liable as principal for the negligence of such person in setting out a fire which ■destroyed plaintiff’s property.</p>

<p>Appeal from Circuit Court, Miner County. Hon. Charles S. Whiting, Judge.</p> <p>■ Action by the Rock Island Plow Company against A. W. Balderson. From a judgment ■ for defendant, plaintiff appeals.</p> <p>An attorney who has received a claim for collection, has no power to receive anything but money on behalf of his client. Sub. Div. 3, Sec. 699, Political Code. And upon payment thereof and not otherwise to discharge the claim. Cyc., vol. 4, 948.</p>

Hon. W. G. Rice, Judge. Action by Bernard Mullen against the Northern Accident Insurance Company. Judgment for plaintiff. A corporation for the purposes of being sued is a resident of the county where its principal office and place of business is located, and suits against it should be brought in such county. Jenkins v. Stage Co., 22 Cal. 538; Cohn v. Railroad Co., 12 Pac. 498; Crookston v. Mining Co., 44 Pac. 714; Easley v. New Zealand Ins.

Hon. Alva E. Taylor, Judge. Action by Peter Nielson against the Merchants’ Mutual Insurance Association. From a judgment for plaintiff and an order sustaining a demurrer to certain defenses', defendant appeals.

Hon. Gevi McGee, Judge. Action by John E. Dilger against John Griffith. From a judgment for plaintiff and an order denying a motion for new trial, defendant appeals.

Hon. Lyman.T. Boucher, Judge. Action by Leonard Bower against Squier Jones and another.. From a judgment in favor of defendant Elbert Jones, plaintiff appeals. It is not necessary to the validity of a contract the consideration should pass directly to the promisor. If the consideration passes from the promisee, it is equally the relinquishment of a right, whether the right accrues to the promisor or to a third party, at his request.

<p>Appeal from Circuit Court, Stanley County. Hon. Lyman T. Boucher, Judge.</p> <p>Action by Peter Joslin against Emma Linder and another. From a judgment for plaintiff, defendants appeal.</p>

Hon. Lyman T. Boucher, Judge. Louis W-hitmarsh was convicted of an assault on a boy with in-tent to- -commit the crime against nature, and he appeals.

Hon. Frank B. Smith, Judge. Action by Will Range against Neis Brooks. From a judgment dismissing an appeal from a judgment of the justice of the peace dismissing the action, plaintiff appeals.

<p>Appeal from Circuit Court, Spink County. Hon. Chas. S. Whiting, Judge.</p> <p>Action by E. C. Perkins against Amil Franz. Judgment for defendant, .and plaintiff appeals.</p>

Hon. Lyman T. Boucher, Judge. Action by Perry Erickson against Hannah Thelin individually and as guardian of Guy Albin Thelin, etc. From a judgment for plaintiff, defendant appeals. The guardian as such does not so represent the estate of the wards that they need not be named as defendants, or served with process in an action, the purpose of which is to -deprive them of ■the whole or a part of their estate.

<p>Laws 1909, c. 283, provides tbat if tbe county designated for trial in tbe complaint be not tbe county in wbicb defendant resides, the action may be tried therein unless defendant, before tbe time for answering expires, demand in writing tbat tbe trial be bad in tbe county in wbicb be resides. Held, tbat tbe time witbin which the application must be made is the 30 days provided by tbe Code witbin wbicb defendant may answer, and tbe extension of such time by plaintiff’s attorney, upon defendant’s application, beyond tbe statutory 30 days, does not extend tbe .time witbin wbicb defendant, cquld demand a change of venue.</p>

Hon. Alva E. Taylor, Judge. Action by H. A. Miller against the St. Paul Fire & Marine Insurance Company. From a judgment for -defendant, plaintiff appeals.

<p>Appeal from Circuit Court, Hamlin County. Hon. GjSORGE H. Marquis, Judge.</p> <p>Action by J. K. Gorman against P. H. Maddden and another. From the judgment, defendants appeal. On motion to dismiss appeal.</p>

Hon. R. B. Tripp, Judge. Action by E- E. Pierson and another against Minnehaha County, S. D. On motion to dismiss defendant’s appeal from an order overruling a demurrer to the complaint.

<p>Appeal from Circuit Court, Butte County. Hon. Revi Mo Gee, Judge.</p> <p>Action by Redwater Rand & Canal Company against D. T. Reed and others. Judgment for defendants, and plaintiff appeals.</p>

Hon. J. H. McCoy, Judge. Action by Samuel C. Hedger against the Aberdeen, Bismarck & Northwestern Railway Company, the Minneapolis, St. Paul & Sault Ste.- Marie Railway Company, and other-s. From a judgment for plaintiff and an order -denying a new trial, -defendant the Minneapolis, St. Paul & Sault Ste. Marie Railway Company appeals.

<p>Under S'ession Laws of 1903, -c. 154, § 3, evidence of general reputation held to show that the house was a bawdyhouse.</p> <p>In a prosecution for keeping a -bawdyhouse the -court charged the jury if the defendant was the keeper, etc., “or was concerned or aided or abetted in the keeping of said house,” etc. Held, that the the word “concerned” was used in connection with the keeping and was not erroneous.</p> <p>In a prosecution for keeping a bawdyhouse the court closed its charge by directing the jury to find a verdict according -to the evidence. Held, that there was no merit to defendant’s contention that the last instructions should have dealt with the presumption of innocence, etc., when a full charge on that point has been given.</p>

<p>Appeal from Circuit Court, Deuel County, Hon. GkORGk H. Marquis, Judge.</p> <p>Action, for libel by Anthony F. Ramharter against Knute T. Olson and another. Judgment for plaintiff and defendants appeal.</p>

Hon. Frank, B. Smith, Judge. Action by William F. Shutz against C. D. Tidrick and others. From a judgment for plaintiff and from an order denying a new trial, defendants appeal.

Hon. W. G. Rick, Judge. Action by Black Hills Trust & Savings Bank against L B. Early Company and others. Judgment for plaintiff, and defendants appeal. On ’order to show cause why appeal should not be dismissed and why the statutory penalty for appealing for purpose of delay should not be imposed.

<p>Instruction permitting recovery for the breach, of a warranty not alleged in the complaint were erroneous.</p> <p>In an action for damages resulting from an alleged breach of warranty of machinery purchased by plaintiff, instructions permitting recovery for the breach of an implied warranty the nature and terms of which were not defined by the court, were erroneous.</p> <p>Under the express provisions of Civ. Code, § 1323, a mere contract of sale does not imply a warranty except as prescribed by statute. .</p> <p>Where an engine was sold under an implied warranty that it was sound and merchantable, the measure of damages for breach of the warranty was governed by Civ. Code, § 2305, providing that the damages are the excess, if any, of the value which the property would have had, at the time to which the warranty referred, if it had been complied with, over its actual value at that time; and •hence, in an action for breach of such warranty in the sale of an engine, it was error to admit evidence of the loss of profits and to charge that if plaintiff did not know of the terms contained in a catalogue issued by defendant and .providing that under no circumstances 'would the latter be responsible for any damages beyond the value of the goods, plaintiff might recover such amount as he was ■damaged by the defects in the engine.</p>

<p>Where property was bought from a foreign corporation by means of written orders which were accepted and filled in foreign states, the sales were consummated in such states, even though shipments were made “f. o. b.’Sioux Falls, S. D.,” so that the corporation’s assignee could recover the purchase price though the corporation had not complied with Civ. Code, §§ 883-885, providing certain prerequisites before a foreign corporation could maintain an action in the state on a claim.,</p> <p>In an action on an assigned claim, in which the answer, though pleading a general denial, also alleged that “the transfer to plaintiff of the pretended claim” of the assignor, which was a foreign corporation “was without any further consideration or purpose than to evade, if possible,” certain sections of the Civil Code, the assignment stood admitted, so as not to call for proof.</p>

<p>Appeal from Circuit Court, Harding- County. Hon. Levi McGEE, Judge.</p> <p>Louie Montgomery was convicted of arson, and appeals.</p>

<p>Appeal from Circuit Court, King-sbury County. Hon. Alva E. Taylor, Judge.</p> <p>Action by Anna E. Tuttle against Edmund- E- Tuttle. From so much of a divorce -decree as awarded plaintiff $2,000 only, she appeals.</p>

<p>Oil rehearing.</p>

<p>Appeal from Circuit Court, Edmunds County. Hon. J. H, JjOTTum, Judge.</p> <p>Action by Charles S. Smith against the Chicago, Milwaukee & St. Paul Railway Company. From a judgment for plaintiff, defendant appeals.</p>

Hon. Arva KTayror, Judge. Action by Henry O. Anderson and others against the Scandia Mining Syndicate and others. From, a judgment of dismissal, plaintiffs appeal. While the contract for the payment of stock at less than par may be binding between the corporation and the purchasing stockholder, and stockholders consenting thereto, it does not bind the dissenting stockholder, and he may compel a payment in full of the stock.

Hon. At.va E. Tayuor, Judge. Proceedings for the distribution of the estate of Thomas Thompson, deceased. From a -decree of the Circuit Court affirming a decree of the County Court distributing the estate to the exclusion of Samuel Thompson, an heir, Charles M. Niles, a judgment creditor of Samuel Thompson, appeals.

Hon. R. B. Tripp, Judge. Nils P. Swenson was convicted of murder, and from the order granting a new -trial, the state appeals.

Hon. W. G. Rice, Judge. Action by Charles S. Hardin against James D. Hardin and other's. From an adverse judgment and order, the defendant named appeals. Trusts are created by the express disposition of the parties, or they are implied by the courts from the words used in such express dispositions.

Hon. E. G. Smith, Judge. Petition by Neis Nelson and others, legatees under the will of Erick Nelson, deceased, to open the final account of C. J. Gunderson, executor. From a judgment of the circuit court, opening the decree for re-examination of the final account rendered on appeal from an order of the county court denying the petition, the executor appeals.

Hon. W. G. Ric®, Judge. Tom Barnes was convicted of grand larceny, and the judgment was affirmed in the Supreme Court, 26 S. D. —, 128 N. W. 170, and he thereafter, pending the motion for rehearing, moved fo remand the case to permit an extension of the time for moving for a new trial.

Hon. Frank B. Smith, Judge. Action by Albert N. Louder against E- E. Hunter. From a judgment for plaintiff and from an order denying a new trial, defendant appeals.'

Hon. Arva E. Tayror, Judge. Action by D. E- Chaplin and another against the Mutual Cash Guaranty Fire Insurance Company. Judgment for plaintiffs, and defendant appeals.

<p>Code Cr. Proc. § 64S, provides that the procedure in the circuit court in criminal matters, not specifically provided, shall be in accordance with the procedure at common law. Held that, practice as to continuances not being specifically provided for in the Code, the rules of the common law in respect thereto prevail.</p> <p>The granting or refusing of a motion for continuance is ordinarily within the discretion of the trial court, and its rulings thereon should not be reversed except for manifest abuse.</p> <p>Evidence in a prosecution for stealing a horse held sufficient to establish the corpus delicti and the ownership of the property.</p> <p>Evidence in a prosecution for larceny corroborating an accomplice held sufficient to sustain a conviction.</p> <p>As the trial court and jury have the opportunity of observing the appearance of witnesses and the manner in which they testify, the verdict and order 'Overruling a motion for new trial will be given great weight on appeal.</p> <p>. Where there was very little, if any, 'Circumstantial evidence iniioduced by the state, an instruction requested by accused that, in order to establish a charge by 'Circumstantial evidence, it is necessary that the proof should be not only consistent with defendant’s guilt, but inconsistent with his innocence, and if a single material circumstance remains unproved, or, if proven, is inconsistent with the theory of guilt, the crime is not proven with that certainty which the law requires and defendant should be acquitted, and circumstantial evidence to justify a variance of guilt must exclude to the moral 'certainty every other reasonable hypothesis was properly denied.</p> <p>In a prosecution for stealing a horse, in which B. testified that he took the horse at the direction of accused, the court instructed, after defining an accomplice and an accessory, that the testimony of B., standing undisputed, would show that he was at least an accessory, but that, as there was a dispute, the court would leave it to the jury, and that, if the jury believed that he was an accomplice, then his evidence must be corroborated, and that, if the jury is satisfied from the evidence that he was corroborated, then the question need not be settled as to whether or not he was an accomplice. Held that, witness B. being either an accomplice or an accessory, the court should have particularly called the jurors’ attention to his position in the case in order that they might properly discriminate and weigh his evidence.</p> <p>Where the court in a prosecution for laceny states to the jury that the guilt of dedendant must be established to their satisfaction beyond a reasonable doubt, and repeats such instruction twice, it was not necessary in discussing the question whether a witness was an -accomplice or an accessory to again specifically charge the jury that they must be satisfied with the guilt of accused beyond a reasonable doubt.</p>