Volume 28 — South Dakota Reports

Hon. Levi McGee, Judge. Action by Samuel Faulk against the Missouri River & Northwestern Railway Company and others. From a judgment for plaintiff and an order denying a new trial, defendants appeal.

<p>Mandamus lies to, compel record of a transfer of corporate stock on the corporation’s books by the officers. Where there has been a bona fide transfer by indorsement, there is no question to be liquidated as to title, and there is a pure legal right to a transfer.</p>

<p>Appeal from Circuit Court, Hyde County; Hon. Lyman T. HoucintR, Judge.</p> <p>Action by A. J. Cole against Emil Schreier. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Circuit Court, Pennington Count)'; Hon. Levi McGee, Judge.</p> <p>Action on rehearing.</p>

<p>Appeal from Circuit Court, Moody County; Hon. -J. W. , Jones, Judge.</p> <p>Action by Alice Bump against L. L. Nelson and others. Erom a judgment for plaintiff, defendants appeal.</p>

<p>In the construction of a statute, the sole purpose should be to arrive at the intent of the lawmakers.</p> <p>Where there is ambiguity or uncertainty in the meaning of a particular section of a statute, other sections of the same statute may be looked at for 'aid in interpretation.</p> <p>Laws 1907, c. 135, § 91, provides that whenever a vacancy occurs in any school district office under the supervision of a county superintendent he should fill such vacancy by appointment, the appointee to hold office until the next school election; and Pol. Code, § 1802, provides that every office shall become vacant on the incumbent’s removal from the state. The treasurer of a school district, elected in June, 1909, for three years, removed from the state, and on June 17, 1911, the defendant was appointed to fill the vacancy, and following an annual school election on June 20, 1911, the plaintiff was elected by the voters of the district to fill the vacancy caused by the removal of the original incumbent. Held, that on plaintiff’s election and qualification defendant’s right to hold the office terminated.</p>

Hon. Alva E. Taylor, Judge. Proceedings by the county ■commissioners of Spink county on the petition of J. M. Miles and others to compel the construction of a crossing over the right of way of the Chicago, Milwaukee & St. Paul Railway Company in Spink county, S. D. From a judgment of the circuit court affirming an order of the county commissioners requiring- the railroad company to construct the crossing, it appeals.

<p>Under Pen. Code, §§ 242, 246, 254, declaring that a homicide is either murder, manslaughter, excusable homicide, or justifiable homicide, that homicide is “murder,” when perpetrated with a premeditated design to effect the death of the person killed, and that homicide is “manslaughter,” when perpetrated without a design to effect death, and in heat of passion, etc., and Code Cr. Proc. § 409, authorizing a conviction of any offense necessarily included in the offense charged, the jury may find accused guilty of manslaughter in the first degree under an indictment charging murder.</p> <p>Where the shooting of decedent by accused was not denied, and he relied on self-defense, it was not error to charge that, if the jury were not satisfied that the killing was murder, or justifiable, or excusable, they could consider whether he was guilty of manslaughter.</p> <p>Pen. Code, § 257, punishing manslaughter by imprisonment for not less than four years, confers on the court discretion to impose any reasonable term of imprisonment over four years which does not violate the Constitution, prohibiting cruel punishment; and an imprisonment for 12 years for the killing of decedent by shooting is not execessive.</p> <p>The court need not in its instruction define excusable homicide, where there is no evidence to prove it.</p> <p>To constitute “excusable homicide,” under Pen. Code, § 266, declaring that a homicide is excusable when committed by accident and misfortune, in the heat of passion, on any sudden and sufficient provocation, or on a sudden combat, provided no undue advantage is taken, nor any dangerous weapon used, the killing must not only be committed by accident and misfortune, but no undue advantage must be taken, nor any dangerous weapon used.</p> <p>Instructions that, if a conflict took place between decedent, armed with an ax, and accused, and there was a reasonable doubt whether decedent or accused was the aggressor, accused was entitled to the benefit of the doubt, that if accused had reasonable grounds to believe that decedent was trying to kill him or inflict great bodily injury on him, and that the danger was imminent, the killing was justifiable, and that, in determining whether accused was in im'minent danger, the jury must determine that fact from accused’s standpoint, acting as a reasonable man, etc., were sufficiently favorable to accused on the issue of self-defense.</p> <p>Where accused relied on self-defense, and showed that some time before the killing decedent had struck him with a hammer, a charge that such evidence was only competent in determining who was the aggressor at the time of the difficulty, when the killing occurred, and that if decedent was the aggressor the jury might judge the circumstances surrounding accused as they appeared to him to be necessary for his proper self-defense, etc., was sufficient.</p> <p>Evidence held to justify a conviction of manslaughter in the first degree, as against the claim of self-defense.</p> <p>Under Pen. Code, g 268, declaring that homicide is justifiable when committed in the lawful defense of the person, when there is reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and. imniient danger of the design being accomplished, a lawful defense arises only when there is reasonable ground to apprehend a design to commit a felony or some great personal injury, and there is imminent danger of the design being accomplished; and one may not provoke an assault, in order that he may have an apparent excuse for a killing, and, where a killing may be avoided by the party assaulted with safety to his person, he must retreat.</p> <p>The decision of the trial court, approving the verdict of guilty, should be given great weight on appeal in determining the sufficiency of the evidence.</p> <p>The jury are the exclusive judges of the credibility of the witnesses and the weight of the evidence;. and a verdict based on evidence justifying the conclusion reached cannot be disturbed on appeal.</p> <p>The admission or rejection of photographs in evidence is largely within the discretion of the trial court, and, unless there has been a manifest abuse, the court on appeal will not reverse a decision thereon.</p>

<p>An attorney who fails to properly report collections and keep adequate books relating thereto' and his other business, and who is guilty of gross carelessness in nqt knowing the facts when writing a letter concerning- collections, will not be disbarred for misconduct.</p>

Wimjam G. Rice, Judge. Action by Burt Rogers and others against the Penobscot Mining Company and others. From a judgment for one plaintiff, defendant named and. another take separate appeals.

Smith, Judge. Action by Ben Bekker against the White River Valley Railway Company. From the judgment for plaintiff, and an order denying its motion for a new trial, defendant appeals.

<p>Sess. Acts 1907, c. 215, entitled “An act requiring railroad corporations to pay double the amount of damages incurred from loss of property, injured or destroyed by fires communicated by locomotive engines, or from the 'burning of grass, weeds or rubbish on the right of way,” provides that each railroad company shall be responsible in damages to every person whose property may be injured or destroyed by such fire, and that in certain cases double damages shall be allowed, and that in any action brought for such damages it shall only be necessary for the owner of the injured property to prove his loss or injury. Const, art. 3, § 21, provides that no law shall contain more than one subject, which shall be expressed in its title. Held, that those portions of the act purporting to relieve the party damaged from proving negligence on the part of the railroad company, not being represented in the title of the act, are invalid.</p> <p>Though a statute, unconstitutional in part, cannot be upheld as to the remainder, unless the latter is a complete law, capable of enforcement, and which it may be presumed the Legislature would have passed without the rejected portion, that portion of Sess. Laws 1907, c. 215, entitled “An act requiring railroads to pay double damages for loss by fires,” which relates to the double damages, is valid, even though other portions of the act, relating to proof of the injury, are invalid; for the two were not necessarily connected, and the invalid portions may be rejected, still leaving an act capable of being executed in accordance with the legislative intent apparent from the title.</p> <p>Where, in an action against a railroad company for setting fire to plaintiff’s property, an issue as to the negligence was raised, it will be presumed, in support of the judgment, the evidence and charge of the court being omitted from the abstract, that the facts proven entitled plaintiff to recover, and that the jury were properly instructed; and hence a judgment for plaintiff will not be reversed, because the action was brought under a statute unconstitutional, in so far as it relieved plaintiff from establishing defendant’s negligence.</p>

<p>Appeal from Circuit Court, Potter County. Hon. L/yman T. Bouciisr, Judge.</p> <p>Action by the J. I. Case Threshing Machine Company against Nelson Gidley. From the judgment for defendant, plaintiff appeals.</p>

Hon. Chas. S. Whiting, Judge. Action by O. A. Luce against James C. Ash. From a judgment for defendant, plaintiff appeals. That the court as well as the parties are bound by the facts as stipulated. Bott v. McCoy, 20 Ala. 578; Logan v. Hall, 19 Iowa, 491; Sawyer v. Corse, 94 Amer. Dec. 445. The alterations óf the terms of a contract is equivalent to making a new contract, consisting of the new terms, and what remains unchanged of the original contract.

Hon. Frank B. Smith, Judge. Action by Anna O. Bailey against the mayor and city commissioners of Sioux Falls and others. From an order denying a motion for a temporary injunction, plaintiff appeals.

<p>The books of account .of an executor, superseded by an administrator who sues to foreclose a mortgage, which show no payment by the mortgagor, are properly received in evidence on the issue of payment, in the absence of anything to show any alterations in the books, though the executor declared that the books did not contain a full account, and that the mortgagor had paid the mortgage.</p> <p>Where the books of account of an executor, superseded by an administrator who sues to foreclose a mortgage, did not show payment relied on by the mortgagor as a defense, the statement of the executor as to the reasons for his omission to -credit the payment was properly excluded as a conclusion.</p> <p>Where an executor, superseded by an administrator who sues to foreclose a mortgage, testified to the payment' of the mortgage by the mortgagor, and to a conversation with the county judge as to a satisfaction of the mortgage, the exclusion of the testimony of the county judge as to the conversation was not prejudicial to the mortgagor; the statements of the executor as to the conversation not being contradicted.</p> <p>Where, in an action by an administrator to foreclose a mortgage of the estate, the defense of payment was relied on, evidence that the administrator was induced to bring the action by the deception of the attorneys of the estate was irrelevant.</p> <p>The authority of counsel to maintain the action must be challenged by motion to dismiss.</p> <p>In an action by an administrator to foreclose a mortgage of the estate, evidence held to justify a finding that the mortgage had not been paid.</p>

<p>Appeal from Circuit Court, Lawrence County; Hon. W. G. Rice, Judge.</p> <p>Michael J. Donovan was convicted of keeping his saloon open on Sunday, contrary to statute, and appeals.</p>

<p>Appeal from Circuit Court, Campbell County; Hon. J. H. BotTum, Judge.</p> <p>Action by William S. Siegele, as administrator of the estate of Christian Bauer, deceased, against the Des Moines Mutual Hail Insurance Association. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal From Circuit Court, Minnehaha County; Hon. J. AY. Jones, Judge.</p> <p>Action by James Rowe against Mark D. Scott, impleaded with others, defended by Scott alone. Judgment for plaintiff, and defendant Scott appeals.</p> <p>Respondent, knowing that the notes were part of a series and that the payment of part of the notes had been refused, and knowing that two of them were many months past due, and also knowing of facts which were sufficient to justify the conclusion that all of the notes were given for a single consideration was not an endorsee in due course as to any of the notes. Bank of Fort AVayne v. Marcy, 79 Ark. 147; 9 Am. & Eng. 339; Story v. Bledsoe, 68 N. E. 907; Harrington v. Claflin, 42 S. AY. 1055; Eybrand v. Fuller, 69 S. AY. 1005; Harrell v. Broxton,' 3 S. K. 5.</p>

<p>Appeal from Circuit Court, Edmunds County; Hon. J. H. Bottum, Judge.</p> <p>Action by Charles W. Hardy, as administrator with the will annexed of Jesse A. Hardy, deceased, against George A. Woods and unknown persons claiming an interest in or lien on certain described premises. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from Circuit Court, Sanborn County; Hon. Frank B. Smith, Judge.</p> <p>Action by William E. Ryan against Hugh P. Simpson and another. From an order denying a motion to vacate a judgment, Ira M. Shannon appeals.</p>

JosEi’ii W. Jones, Judge. Action by John Smith Kirk, prosecuted after his death hv Eugene Reily, as administrator, against Leopold McKean Kirk. From an order opening a default judgment, plaintiff appeals.

<p>Appeal from Circuit Court, Spink County; Ilori. Ai,va E. Tayi.or, Judge.</p> <p>Action by Frank C. Mariner against Frank Patten. From a judgment for plaintiff, defendant appeals.</p>

<p>Laws 1907, c. 135, § 119, provides that a school board may-direct the removal of a schoolhouse to another location, upon a vote of a majority of the electors of the entire district. Held, that an allegation, in a pleading in an action to compel return of a schoolhouse as illegally removed, that 65 electors out of 150 qualified electors voted in favor of the removal sufficiently shows that a majority of the electors had not voted for removal.</p>

<p>On petition for rehearing.</p>

<p>Laws 1909, c. 4, prohibiting the practicing of dentistry without a license, does not require a dentist to procure a license in each county in which he may practice, but a license regularly issued entitles him to practice in any county; and a charge that one has no license to practice in a designated county is equivalent to a charge that he has no license in any county.</p> <p>The offense of practicing dentistry without a license in violation of Laws 1909, . 4, declaring that any person who holds himself out as .practicing dentistry, and advertises that he can perform dental operations of any kind, treat diseases of the human jaw, or replace lost teeth with artificial ones, or correct malposition thereof, or who for a fee performs dental operations or treats diseases, etc., practices dentistry, is a continuing offense; and a complaint charging one with doing all the acts defined is not duplicitous.</p> <p>Laws 1909, c. 4, prohibiting the practicing of dentistry -without a license, does not impair any vested right of one practicing dentistry prior to the date of the taking effect of the act.</p> <p>An instruction on the court’s motion that the fact that accused has not testified raises no presumption against him, and has no bearing on the verdict, is not violative of Code Cr. Proc. § 361, providing that accused’s failure to testify shall not create any presumption against him, though the statute is violated by the prosecuting attorney referring in his argument to accused failure to testify.</p> <p>HANEY, J., dissenting.</p>

<p>Code of Civ. Proc. § 127, subd. 1, provides that a counterclaim must be a claim existing in favor of -a defendant and~~against a plaintiff, between whom a several judgment may be had in the action, and arising out -of the contract nr transaction set forth in the complaint as the foundation of plaintiff’s claim, or connected with the subject of the action. Held that, where plaintiff sued defendant on several notes given for the balance of the purchase price of a threshing outfit sold to defendant, under a contract by which plaintiff agreed to remedy any defects in the engine, etc., and defendant agreed to render .plaintiff assistance while making such repairs, a claim by defendant fox injuries sustained by his minor son by the negligence of plaintiff’s servant while repairing the threshing engine was a cause of action arising out of the same transaction, .and w.as available as a counterclaim, although sounding in tort.</p>

Hon. W. G. Ricé, Judge. Action by the Nichols & Shepard Company against Edward T. Marshall. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals.

Hon. Gjíokgjs H. Marouis, Judge. Action by the First National Bank of Vienna against Thomas Engebretson. From a judgment for defendant and from an order denying a new trial, plaintiff appeals.

<p>Appeal from Circuit Court, Beadle County; Hon. Alva E. Taylor, Judge.</p> <p>Action by J. R. Piper against Charles H. Wade and wife. Judgment for plaintiff, and defendants appeal.</p>

<p>Overruling of motion to direct verdict for defendant at the close of plaintiff’s case will not be reviewed if the motion was not renewed at the close of all the evidence.</p> <p>A harborer of a vicious dog is liable for injuries caused by it, regardless of ownership, and hence, in an action against a harborer for such injuries, it was immaterial that he had given .the dog to another.</p> <p>“Harboring” means protecting, and one who treats a dog as living at his house, and undertakes to control his actions, is the owner or harborer thereof, as affecting liability for injuries caused by it.</p> <p>If the record does not contain the instructions, the jury is presumed to have been properly instructed.</p>

Potter County; Hon. Poring E. Garry, Judge. Action by George B. Hannahs against W. W. Provine and others, prosecuted after the death of defendant named against Rebecca M. Provine, as special administratrix. From a judgment for' insufficient relief, plaintiff appeals.

<p>Under Pol. Code, §§ 1151-1159, and under Laws 19 09, c. 148, authorizing re-marking of boundary corners as established by federal surveys, township officers cannot, in a resuryey, ignore the original survey as made by the United States.</p> <p>When a boundary mark made in a federal survey has been obliterated or lost, in relocating it the question is, not where the mark ought to be, if the township had been correctly surveyed, but where it is according to the original survey.</p> <p>Any township taxpayer or property owner can enjoin adjustment of highways to an illegal survey.</p> <p>In an action by township taxpayaers to enjoin adjustment of highways to an illegal survey, the particular boundaries of plaintiffs’ lands are immaterial.</p> <p>Before suing to restrain illegal action by township executive officers, a taxpayer need not demand that the township institute the suit.</p> <p>A complaint by township taxpayers to enjoin adjustment of highways to an illegal survey was not demurrable as improperly joining causes of action, in that plaintiffs are not jointly interested.</p>

<p>Appeal from Circuit Court, Walworth County; Hon. J. H. Bottum, Judge.</p> <p>Action by M. T. Woods and another, partners as Woods & Rosenburger, against L. R. Stacy. Judgment for plaintiffs, and defendant appeals.</p>

<p>Tbe decision of issues of fact is tbe province of tbe jury in tbe trial court.</p> <p>Evidence, in a prosecution under Pol. Code, § 3020, for knowingly keeping, using, and controlling glandered borses, held sufficient to sustain a conviction.</p> <p>In a prosecution under Pol. Code, § 3020, for knowingly keeping, using, and controlling glandered horses, brought into the state and sold, there was testimony by the state veterinarian of the state whence they came that about three months before defendant bought the horses witness tested certain horses of the seller, found them afflicted with glanders, and ordered them destroyed, and 'that at other times before the sale to defendant he examined other horses of the seller, and found them glandered, and that all the horses of the seller, not in quarantine, ran at large on the same ranch, and that glanders was a contagious disease. Held admissible.</p> <p>In a prosecution under Pol. Code, § 3020, for knowingly keeping and using glandered horses, testimony by the state veterinarian of Montana, from which state they were brought after purchase by defendant, as to having ordered horses of the seller into quarantine, and directing that some be destroyed, where defendant was present and engaged in the conversation between the witness and the seller, is admissible, as bearing on the defendant’s knowledge of the condition of the horses he bought.</p>

R. B. Tripp, Judge. Application for the probate of the -will of William Shaw, in which James Henry Shaw and others filed objections and Retha B. Shaw filed an answer to such objections. From a decree of the circuit court on appeal from the county court admitting the will to probate, contestants appeal.

<p>Appeal from Circuit Court, Pennington County. Hon. Levl McGee, Judge.</p> <p>Action by Albert E. Bates against Gilbert D. Eoffler and •others. From a judgment for plaintiff, defendants appeal.</p>

Hon. Frank B. Smith, Judge. Action by Robert J. Gamble against Gilbert D. Rofffer. From a judgment for plaintiff, defendant appeals. Representations by the vendor as to the price paid for'property do not constitute actionable deceit, in the absence of fiduciary relations between the parties, or other facts or circumstances showing an agreement that the price paid should determine the price in the contract. Beare v. Wright, 103 N. W. 632; Holbrook v. Connor, 11 Am.

Hon. Frank B. Smith, Judge. Action by C. McGinty and another against F. A. Reynolds and another. From a judgment for plaintiff against defendani named, and from an order denying a new trial, he appeals.

<p>At the time of closing a sale of land, in July, 1906, in pursuance of a contract, which was silent as to who should pay the taxes for 1906, a note was given hy' the purchaser as part of the consideration, in the ordinary form, payable March 1, 1907, with interest from maturity, “less tax on land for 1906.” The note was drawn by the same draughtsman at the same time with the other 'papers relating to the transfer, in the presence of both parties, in connection with something that was said about the vendor’s taking the crop for the current year and paying the taxes. Held, that a contract being explainable under Civ. Code, § 1256, by reference to the circumstances under which it was made, the quoted clause in the note amounted to an agreement by the vendor to pay the taxes referred to, entitling the purchaser, on paying the full amount of the note, to recover the taxes from the vendor.</p> <p>The note when accepted by the vendor, though not signed by him, was binding on him as a sufficient modification of the prior contract, or as a new contract, within Civ. Code, § 1287, providing that a written contract may be altered by a contract in writing.</p> <p>The note being in writing, the payee’s contract to pay the taxes was presumably based on a consideration under Civ. Code, § 1282, providing that a written instrument is presumptive evidence of a consideration.</p> <p>Secondary evidence as to the nature of a written contract for the sale and purchase of land is not competent, in the absence of proof of loss or destruction of the original instrument, or other inability of the party to produce it.</p> <p>Error in the admission of secondary evidence as to the nature of a written contract for the sale and purchase of land is harmless, where the original contract is itself put in evidence.</p> <p>Under Civ. Code, § 1239, which provides that the execution of a contract in writing, whether required by law to be written or not, supersedes all oral negotiations which preceded its execution, evidence as to an agreement between the parties made prior to the original contract is inadmissible to vary the terms of the written contract.</p> <p>Evidence of an agreement between parties preceding their execution of a written contract covering the subject of such agreement was admissible to show the circumstances connected with the original contract, and to enable the court to construe a clause in the contract which without such evidence was ambiguous.</p> <p>Where parol evidence is admissible to enable the court to construe an ambiguous clause in a written contract, the failure to instruct as to the purpose of its admission is not reversible error, where the jury, under other instructions, could not have been misled by such evidence.</p> <p>The error in instructing that parties could modify their written contract by a parol agreement, and that no new consideration was necessary, was harmless, where the modification in issue was in writing, and hence was by statute presumably on consideration.</p> <p>Where no motion was made by plaintiff to strike out alleged improper remarks of defendant’s counsel, and there was no ruling of the court, there is nothing before the appellate court for review.</p>

<p>Appeal from Circuit Court, Pennington County; Hon. Levi McGee, Judge.</p> <p>On rehearing.</p>

Lyman T. Boucher, Judge. In the matter of the estate of Arthur Max Moler, deceased. Sarah R. Calhoun filed objections to the final report of Charles R Brj'ant, administrator. There was a decree for the objecter in the County Court and in the Circuit Court on appeal, and the administrator and another appeal.

Hon. W. G. Rice, Judge. Action by the Belle Fourclie Valley Railway against the Belle Fourche Land & Cattle Company. From part of the judgment and from the order denying a motion for new trial, defendant appeals.

<p>Appeal from Circuit Court, Brown County. Hon. Frank McNulty, Judge.</p> <p>Action for an injunction by Frank E. Granger against Arthur Rorenzen. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Circuit Court, Rake County. Hon. J. W. Jones', Judge.</p> <p>Action by Rilly M. Zimmerman, administratrix, against the South Dakota Central Railway Company. Judgment for plaintiff. Defendant appeals.</p>

<p>An equitable action to quiet title to personalty lies only where there is no adequate remedy at law.</p> <p>A complaint, in an equitable action to quiet title to a certificate of deposit issued by a bank to plaintiff and defendant as depositors, which alleges that the money deposited belonged to plaintiff and that the bank, made a codefendant, and defendant knew that fact, but which does not show that defendant has asserted any title to the certificate, does not state a cause of action because of adequacy of remedies at law.</p>

<p>Appeal from Circuit Court, Brown County. Hon. Frank McNurty, Judge.</p> <p>Action by the Outcault Advertising Company against the Sherman Dry Goods Company. From a judgment for defendant, plaintiff appeals.</p>

J. W. JoNUñ, Judge. Mrs. Maliuda Stunkard and another were charged with crime, and from an order denying a new trial, after dismissing the action and discharging defendants, the State appeals.

J. H. McCoy, Judge. Action by the Farmers’ & Merchants’ State Bank of Verdón against the United States Fidelity & Guaranty Company. From a judgment for plaintiff, defendant appeals. A change in the office or employment of the principal, after the issuance of the bond, especially where such change would ordinarily increase the risk contemplated, operates to release the surety; and it is no answer to say that the surety is not in fact prejudiced. Sun Life Ins.

<p>The evidence, in an . action for injury from plaintiff’s buggy striking a stone placed by defendant in tbe side of a highway at the foot of a hill, of the manner in which he drove down the hill, laying down the reins of his young and spirited horses, and fumbling around for his mittens, held to show contributory negligence, as matter of law, authorizing direction of verdict.</p>

<p>On petition for rehearing.</p>

J. II Bottum, Judge. Action in claim and delivery by the First National Bank of Wheaton, Minn., against Rudolph Miller and others. Judgment for defendants, and plaintiff appeals.

Hon. Joseph W. Jones, Judge. Application by Van Francis Moore for a writ of habeas corpus discharging him from imprisonment in the state penitentiary. From a judgment denying the writ, he appeals.

<p>Where none of the testimony offered by defendant appears in 1 lie abstract, and his only exceptions are to the instructions, every presumption is in favor of their correctness, unless under no possible tneory could they be correct.</p> <p>The government survey, according to which patents of public lands are made, establishes boundaries thereto which, if they can be found, cannot be changed or varied by a township resurvey.</p>

Hon. Guo. M. Marquis, Judge. Action by Jennie Fellows against Axel H. Christensen. From a judgment for plaintiff, defendant appeals. The court cannot indicate his opinion, either expressly or impliedly, intentionally or otherwise, as to the credability of the witnesses, or as to the truth of any fact in issue, and the subject of evidence. The whole matter of finding the facts of the case must be left entirely to the jury, without suggestions or leadings by the court.

Hon.-R. B. Tripp, Judge. Action by D. M.' Inman against E. D. Brookman and others. Erom a judgment for plaintiff, and an order denying a motion for a new trial, certain defendants appeal.

Hon. Joseph W. Jonss, Judge. Action by Effie Alderson against Albert E. Larson and another, doing business as the Larson Hardware Company. Erom an order granting defendants a new trial for newly discovered evidence, plaintiff appeals.

Hon. R. B. Tripp, Judge. Action by Thab De Noma against J. J. Murphy and others, as county commissioners, and another. Judgment for defendants, and plaintiff appeals.

<p>Appeal from Circuit Court, Minnehaha County. Hon. Joseph W. Jonjís, Judge.</p> <p>Action by E. C. Ward and another against R. F. Brown. From an order overruling a demurrer to the complaint, defendant appeals.</p>

<p>Appeal from Circuit Court, Minnehaha County. Hon. Joseph W. Jones, Judge.</p> <p>Action by S'. H. Wright against the Sioux Falls Traction System. From an order granting defendant a new trial, plaintiff appeals.</p> <p>To attempt taking passage upon a car running at such a high rate of speed as to be obviously and manifestly dangerous might become negligence per se, but where the speed is not so great as 1t> clearly show carelessness on the part of the intending passenger it is always purely a question for the jury. Atchinson Top. etc. Ry. Co. v. Holloway, 71 Ran. 1; C. & P. St. Ry. Co. v. Meixncr, 160 111. 320; Corlin v. West End St.'Ry., 154 Mass. 197; North Chicago St. R. Co. v. Kaspers, 85 111. App. 3x6, affirmed 57 N. E. 849 ;111. C. R. Co. v. Cheek, 152 Ind. 663; Morrow v. ’Brooklyn, etc., 103 N. Y. S. 998; Martin v. Southern Ry. Co., 56 S. E. 3.</p> <p>The jury were to see clearly that the defendant was guilty of negligence before the}- could find a verdict against it. Negligence will not be presumed from the mere fact of accident 'which is as consistent with the presumption that it was unavoidable as it is with negligence. Moore v. Metropolitan Street Ry. Co., 79 App. Div. (N. Y.) 587; see note, 14 Am. Neg. Rep. 331; Barron v. Lynn & Boston Ry. Co., 58 N. E- 1015; Timms v. Old Colony St. Ry. Co., 183 Mass. 193; Armond Boulfroid, Jr., v. Union Traction Co., 21 Pa. 263; McGann v. Boston Elevated Ry. Co., 199 Mass. 446. A person who attempts to get onto a street car while in’ motion does so at his own risk. White v. West End St. Ry., 165 Mass. 522; Picard v. Ridge Avenue Ry. Co., 147 Pa. 195; Timings v. Central Park Ry. Co., 7 Robt. 116; Schmidt v. North Jersey St. Ry. Co., io An;. Neg. Rep. 621.</p>

<p>Under Pol. Code, § 1836, providing that tbe treasurer of a county of a certain size shall receive a salary not exceeding $1,500 a -year, to be paid from the special salary fund, any surplus in such fund at the end of the year to be placed to the credit of the general fund, section 880 creating a special salary fund, and requiring the treasurer to deposit to the credit of such fund fees received for services rendered, section 881 providing that, if the fees so paid into the county treasury shall not equal his salary of $1,500, he shall be entitled to receive only a sum equal to the fees paid into the treasury, and section 975 providing for the sale of county bonds, the proceeds thereof to be deposited in the county treasury, and providing that the county treasurer shall receive as compensation for receiving and disbursing such proceeds 1 per cent, of their par value, and that such compensation shall be in lieu of all other commissions allowed him by law, “and shall be accounted for by him the same as other fees of his office,” he is not entitled to fees on the bonds in addition to his salary of $1,500.</p>

Hon. Frank B. Smith, Judge. Action by George Richardson against Russel Gage and others From a judgment for plaintiff and an order denying a new trial, defendants appeal.

Hon. Robert B. Tripp, Judge. Action by the Sioux Remedy Company against F. M. Cope and another. Judgment for defendants, and plaintiff appeals. That a state law which would prevent a party engaged in interstate commerce from maintaining an action for the subject thereof, in the courts of' this state would be an interference with the prerogatives of congress. Flint & Walling Mfg.

<p>Letters written by an attorney for a deserted wife to her husband, under authority of the wife to do what he thought was right, are not privileged communications, within Code Civ. Proc. § 486, prohibiting a husband or wife from testifying to any communication made during the marriage, but are admissible against the attorney in disbarment proceedings for writing the letters with intent to extort property from the husband.</p> <p>Where, in proceedings to disbar an attorney, he has been com.pelled to incur considerable expense in defending some of the charges which were not established, the court, disbarring him on grounds proved, will not allow any costs or disbursements to either party.</p> <p>McCoy, J., dissenting.</p>

<p>The construction placed upon a contract by the Supreme Court on a former appeal is conclusive on a subsequent appeal.</p> <p>A contract for the purchase of a safe provided that the seller agreed to deliver the safe f. o. b. cars at its works, and that the safe should be built, according tó specifications submitted, for the sum of $825, and a secondhand safe delivered f. o. b. at the purchaser’s station, payable in New York funds upon delivery of the safe, and further provided that the contract should cover all agreements between the parties, and that all “verbal agreements * * * not embodied herein are hereby waived,” and that the safe shall remain the property of the seller until fully paid for in cash. Held, that the contract was not ambiguous, so that parol evidence was not admissible as to a conversation before the execution of the contract, as to the terms thereof, and as to when the old safe should be delivered to the seller.</p> <p>If a written qontract or a term thereof is uncertain or ambiguous, parol evidence as to the facts and circumstances preceding and attending its execution is admissible .to show the intention of the parties.</p> <p>In an action for the balance of the purchase price of a safe sold to defendant under a written.contract, which provided that the seller should take a secondhand safe as part payment, but with reference to the shipment of the secondhand safe merely ¡provided that it should be shipped f. o. b. at the place of the buyer’s business, and also provided that all oral agreements not embodied in the contraer, should be considered as waived., evidence was admissible of letters written by the seller to the buyer after the execution of the contract, acknowledging receipt of the cash payment named in the contract, and stating that the oid safe was subject to the order of a certain company at a certain place, and that the buyer might comply with such company’s instructions; such letters, especially the one relating to the old safe, in effect modifying the contract.</p>

Hon. L,yuan T. Boucher, Judge. Action by the J. I. Case Threshing Machine Company against Teresa M. 'Farnsworth. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals.

Hon. Alva E. Taylor, Judge. Action by Edward L- Butz against Richland Township. From a judgment for defendant and from an order denying a new trial, plaintiff appeals. Aii estoppel relied upon must be pleaded with particularity and precision, for nothing will be supplied by intendment, and any inference will be against and not in favor of estoppel. Dudley v. Pigg, 149 Ind. 363; vol. 16 Cyc. 806.

<p>Appeal from Circuit Court, Spink County, Hon. Alva E. Taylor, Judge.</p> <p>Action by George W. Langford against John Issenhuth. Judgment for plaintiff, "and defendant appeals.</p>

<p>The provision, of Laws 1907, c. 218, for the recovery of double damages for the loss of live stock killed or injured by railroads, is valid.</p> <p>Where an action against a railroad company for killing an animal was not tried on any issue of negligence, and there was no assignment based on any ruling on such an issue, and the findings that the animal was injured by the company’s engine, and that the injury was not caused by any act of plaintiff or his agent were undisputed, and there was no finding that the company was not negligent, a judgment for plaintiff was authorized, under Code Civ. Proc. § 784, authorizing judgment by confession, and it would not be disturbed on appeal on the ground that under the evidence the company was not negligent.</p>

Hon. Levi McGee, Judge. Action by Emma M. La Penotiere against Chambers Kellar. Judgment for defendant, and plaintiff appeals. On order to show cause why the appeal should not be dismissed.

<p>Appeal from Circuit Court, Minnehaha County. Hon. Joseph W. Jones, Judge.</p> <p>Action by the Chicago, Milwaukee & St. Paul Railway Company against the Commissioners of the City of Sioux Falls and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Where, at the time defendant C. purchased an Indian allotment, complainant was in possession and was farming the. land under' a lea'se from the Indian allottee, approved by the Indian Department and the Secretary of the Interior, -^kick had not expired, and C.’s husband, who represented her in making the purchase, on several occasions observed that there was a crop growing on the land, and that teams and persons were working thereon putting in and caring for the crop, C. and her lessee were charged with knowledge of all the facts which she might have learned by inquiry as to complainant’s rights and possession, and therefore purchased subject to complainant’s rights under the lease, though it was not recorded.</p> <p>While possession of land is in itself prima facie sufficient notice of the possessor’s rights, whether it is actually known to the adverse party or not, such presumptive notice, like that arising from any fact putting one on inquiry, may be rebutted by proof showing that an inquiry duly and reasonably made failed to disclose any legal or equitable title in the occupant.</p> <p>Where a third person is in possession of land, failure of a purchaser to make due and reasonable inquiry as to his rights is regarded as an intentional avoidance of the truth which it would have disclosed, depriving the purchaser of his character of a bona fide L urchaser.</p> <p>Any appropriate acts of occupancy, ^openly and notoriously done, are sufficient to put one on inquiry as to the possessor’s rights in the land occupied.</p> <p>Complainant was in open and active possession and held a valid unrecorded and unexpired lease of an Indian allotment at the timo it was purchased by defendant C. from the Indian allottee with notice of complainant’s rights. Defendants went on the land, plowed and seeded a portion, claimed the crops grown thereon, and intended to carry them away. C. leased the land to defendant B., to whom complainant gave immediate warning to quit, but without effect. Held, that complainant was in and entitled to the exclusive possession of the whole of the leased premises, not as a mere “scrambling” possessor, but under a valid lease; that defendants were trespassers; and that complainant was entitled to an injunction to protect his possession and crops, and was not restricted to an action for damages.</p>

Hon. Frank Mc-Nulty, Judge. John Edmond Doran was convicted of practicing medicine as an itinerant physician without a license, and he appeals. All taxation shall be equal and uniform. Sec. 17, article 6, Constitution of South Dakota. Under chapter 176 of the Session Daws of South Dakota for the year 1903, itinerant physicians are divided into two classes: (1) those who were residing in the state on March 5, 1903, and (2) those who were not.

<p>Under Code Civ. Proc. § 112, subd. 5, a defendant against whom publication is ordered may be permitted to defend at any time within seven years after judgment and within one year after notice of the judgment. Held that, where on appeal from an order vacating a judgment the record did not show when defendant first acquired notice of the judgment, the ruling of the court would be'-presumed to be correct, in the absence of a showing of affirmative error by proper assignment.</p> <p>Under Code Civ. Proc. | 112, subd. 5, providing that a defendant against whom publication is ordered may on good cause shown be permitted to defend after judgment at any time within seven years, what constitutes good cause is largely within the discretion of the trial court.</p> <p>Code Civ. Proc. § 112, subd. S, provides that a defendant against whom publication is ordered may on good cause shown be allowed to defend it any time within seven years. An affidavit for publication stated that defendant’s residence was unknown, and the order for publication did not require that a copy of the summons, etc., be deposited in the post office addressed to defendant. The affidavit made by plaintiff’s attorney stated that, so far as he personally knew, defendant could not be found in the county, and that, after due diligence, he could not ascertain the place of his residence. Defendant’s affidavit to vacate the judgment showed that at the time the action was commenced he was residing at a certain place in the state in another county, and that a mortgage given by him upon the real estate involved in the action was recorded in the county where the action was brought, which mortgage showed defendant’s residence. It also appeared that plaintiff was in the business of making abstracts of title. Held, that it was proper to vacate the judgment.</p>

<p>Appeal from Circuit Court, Pennington County. Hon. Devi McGee, Judge.</p> <p>Action by G. J. Hampe and another against Emil Manke and another. From a judgment for plaintiffs, and from an order denying a new' trial, defendants appeal.</p> <p>While the mortgagee may release the mortgagor without discharging the grantee, his release of the grantee, or his valid extension of the time of payment to the grantee, without the mortgagor’s consent, would operate to discharge the mortgagor, i Pom. Eq. Jur. 192; Dillaway v. Peterson, 11 S- D. 210; 76 N. W. 925; Calvo v. Davies, 73 N. Y. 211; Machine Works v. Caswell, 29 Pac. 1072; Bank v. Waterman’s Estate, 134 111. 461; Schroeder v. Kenney, 49 Pac. 894; King v. Baldwin, 2 Johns Ch. 554; Wiltsie Mortg. Forec. 272; Insurance Co. v. Planford, 143 U. S. 187.</p> <p>Mortgagors, conveying mortgaged premises by warranty deed without reciting lien of mortgage in the deed, remain solely 'and personally liable to the mortgagees for the payment of the mortgage debt. Granger v. Roll et al., 6 S. D. 611. A surety cannot discharge himself by demanding affirmative action on the part of a creditor. Duty to act rests upon debtor. Yerza v. Ruth Ruff, 25 L. R. A. (N. S.) 139.</p>

<p>Appeal from Circuit Court, Hutchinson County. Hon. R. B. Tripp, Judge.</p> <p>Action by Martha Shearer against the Hutterische Bruder Gemeinde. Judgment for plaintiff, and defendant appeals.</p>

<p>In an action against an individual doing business as a corporation, evidence held insufficient to show that plaintiff contracted with the individual rather than with the corporation.</p> <p>Where one contracts wth an officer of a corporation in the office of the company and the contract is in the corporate name, he cannot be heard to say thereafter that he contracted with the officer individually.</p> <p>In an action against an individual doing business as the “W. Company,” where defendant claimed that plaintiff contracted with the “W. Company,” the court instructed that there had been evidence of the organization of the “W. Company,” and that defendant contended that the contract in question had been made with the corporation, and that, if he were correct in such theory, the suit should have been brought against the corporation, but that plaintiff contended that the transaction was with defendant, or “W. & Co.,” not incorporated. Held, that a contention that defendant was precluded from denying that there was no evidence to sustain a verdict against him because he did not except to the instruction was without merit.</p> <p>Whiting, J., dissenting.</p>

<p>Appeal from Circuit Court, Lincoln County. Hon. Joseph W. Jones, Judge.</p> <p>Action by John Steensland against Frank Noel. From a judgment in favor of defendant, plaintiff appeals.</p> <p>There must be allegation, proof and findings that damages are not an adequate remedy to permit the court to grant a decree of specific performance of an oral contract of sale of real property. Herzog v. Railway Co., 153 Cal. 496; Flood v. Templeton, 148 Cal. 374; Stettmacher v. Bruder, 95 N. W. 324; Jacobs v.. Railway Co., 8 Cushing, 223; Burns v. Daggett, 141 Mass. 368; Purcell v. Miner, 4 Wallace, 513-517; Kelsey v. McDonald, 76 Mich. 188; 8 A. & E. Enc. of Law, 740. Oral contracts for the sale of real property must be undisputed. The very purpose of the statute of frauds was to prevent disputes as to what the contract really was. Bresnahan v. Bresnahan, 73 N. W. 515; Kelsey v. McDonald (supra) ; Johnson v. Plotner, 15 S. D. 154. The possession of and improvements made by Noel must have been with the knowledge and consent of Steensland. Freeman v. Freeman, 43 N. Y. 34; Burnes v. Daggett (supra) ; Munsell v. Loree, 21 Mich. 491; Foster v. McGinnis, 89 Cal. 264. A court of equity-will enforce specific performance of an alleged contract, not in writing, for the conveyance of land, it must clearly appear that a contract was entered into and its terms and conditions must be clearly established by proof. Morrison v. Herrick, 130 111. 631; Bonhannan v. Bonhannan, 96 111. 591. Specific performance will not be decreed where adequate compensation can be had. 8 A. & E. Enc. of Law, 740; Purcell v. Miner, 4th Wallace, 513; Burns v. Daggett, 141 Mass. 368; Discher v. Stein, 34 Kan. 39; Hands v. Erink, 49 N. Y. 24; Kilsey v. McDonald, 76 Mich. 188; Brown v. Hoag, 35 Minn. 373; Jacobs v. Railway, 8 Cushing, 223; Baldwin v. Squier, 31 Kan. 283.</p> <p>In contracts for the sale of land, however, an allegation that the remedy at law is inadequate is unnecessary since that is apparent from the nature of the subject matter. Christian v. Aldrich, 30 Mon. 446; Div. 56, 86 N. Y. Supt. 736; Smith v. Rector, 107 N. Y. 610. An oral contract for the sale of real estate when the possession is taken and valuable improvements are made pursuant to and relying on the contract by the purchaser, is without the statute. Stuart v. Tomlinson, 21 S. D. 337; Stenson et al. v. Elfman, 26 S- D. 134; Ide v. Lizer, 10 Mon. 5;, Pomeroy Spec- Per. §§ 115, 126.</p>

<p>Dismissal of an appeal from an order overruling a demurrer to the complaint, on the ground that defendant had waived its right of appeal by filing an answer, was not such a final adjudication as to the sufficiency of the complaint as to preclude determination of the question on a subsequent appeal.</p> <p>A board of county commissioners has no inherent power to contract with ¡tax ferrets to share penalties recovered on assessment of property not listed for taxation, and Pol. Code, §§ 2074, 2075, providing for the listing by certain officers of omitted property with a right to receive half of the penalties recovered, does not authorize such contract.</p> <p>Pol. Code, §§ 2074, 2075, providing for the assessment of property not listed by the owner and for compensation to certain officers for procuring such assessment, are limited to assessments for the current year.</p> <p>In the absence of express authority, county commissioners cannot place upon the assessment roll any 'property omitted from taxation in former years.</p> <p>Under Pol. Code, § 2075, providing that certain officers who caused' to be listed property omitted from assessment shall receive 50 per cent, of the penalty prescribed by section 2074, “to be paid at such times as such tax is collected,” right to recover such share must rest on a showing of collection of the penalty.</p> <p>Laws 1905, c. 40, “An act to define the powers and duties of theT ’‘county and state boards of assessment in the assessment of propterties, and prescribing remedies therefor,” violates Const, art. 3, § 21, which provides that no law shall embrace more than one subject which shall be expressed in the title, in that the title does not express the subject covered by the act, there being no such bodies known to the law as county or state boards of assessment, and in that the act comprises several subjects not expressed in the title.</p> <p>The object of Const, art. 3, § 21, which provides that no law shall embrace more than one subject which shall be expressed in its title, is to give such information to the legislators as will enable them to determine the nature and character of the act under consideration.</p> <p>An “account” which may be referred under Code Civ. Proc. § 282, is an account in the ordinary acceptation of that term — that is, charges .and credits between parties — and hence an action against a county for breach of a contract to share penalties recovered for listing property omitted from taxation is not referable.</p>

Hon. W. G. Rice, Judge. Action by the Union Trust Company of Philadelphia against the Branch Mint Operating Company and others. Prom a judgment for plaintiff, one of the defendants appeals.

Hon. John F. Hughes, Judge. Contest of election by G. C. Briggs against S. V. Ghrist, as Mayor, Fred J. Hellmuth, as City Auditor, and John T. McCullen and others, as members of the City Council of the City of Miller, and others. From a judgment for defendants, contestant appeals.

<p>An objection to evidence, which was specified as error in tbe motion for new trial of a cause, is properly assigned as error on appeal.</p> <p>Under Prob. Code, § 178, providing that no bolder of any claim against an estate shall maintain an action thereon, unless the claim is first presented to the executor or administrator, no such action may be commenced until rejection of the claim by the administrator, either by operation of the statute or by the written rejection indorsed thereon, and proof of the performance of such condition is essential to such action.</p> <p>Under Prob. Code, § 175, which does not provide that a rejected claim shall be filed in the oourt, such a rejected! claim is not a record of the probate court so as to entitle it to admission, in an action on the claim, as proof of its presentation and rejection without other support than the testimony of a court clerk that it was a part of the probate records; and it is inadmissible without verification of the signature of the administrator indorsed to a rejection thereon.</p>

Hon. Frank McNui/ty, Judge. Action by the Rock Island Plow Company against A. W. Lindquist. From an order granting a motion for a new trial after judgment for defendant, defendant appeals.

<p>Under Civ. Code, § 1311, providing that no agreement for the sale of real property is valid, unless some note or agreement thereof be in writing, subscribed by the party to be charged, an oral agreement for the sale of land is not only unenforceable, but is wholly invalid.</p> <p>Under Civ. Cide, § 1311, providing that no agreement for the sale of real property is valid, unless some note or memorandum thereof be in writing, subscribed by the party to be charged, or his agent, authorized in writing, no writing is admissible, for the purpose of evidencing the contract, unless it conforms to 'the statute.</p> <p>Where plaintiff made an offer for real property, and defendant made a counteroffer, there was no contract.</p> <p>Specific performance of a contract for the sale of land will not be enforced, where the terms of payment were not agreed upon.</p> <p>While parol evidence is ordinarily admissible to explain ambiguities or uncertainties in a written instrument, it is not admissible to supply a material term of a contract, relating to real property, which, under the statute of frauds, must be in writing, and so is not admissible to prove the terms of payment agreed upon in a contract for the sale of land.</p> <p>A vendor who has offered to sell his land may rescind the offer at any time before the purchaser has accepted.</p> <p>Where vendor agreed to sell land at a certain price, the purchaser to have all the time he wanted to make certain deferred payments, and the vendor, at the time of closing the deal, proposed certain methods of handling the deferred payments, to which the purchaser objected, there was no definite contract which the purchaser could specifically enforce; Civ. Code, § 2340, providing that neither party to an obligation can be compelled specifically to perform, unless the other party is compellable specifically to perform.</p>

<p>Under Rev. St. U. S.' § 2234 (U. S, Comp. St. 1901, p. 1435), authorizing the Surveyor General to appoint surveyors to survey mining claims, and providing that the expenses of surveys shall be paid by the applicants, and authorizing the Commissioner of the General Land Office to establish maximum charges for surveys, and the rules of the Interior Department, ,the employment, manner, and amount of payment for the survey of mining claims, are subjects of private contract between an applicant and a deputy surveyor, and the surveyor’s fees may be paid in any commodity agreed on; but, where an applicant and a deputy surveyor have made an arrangement as to payment, ‘the surveyor must make the survey and return correct field notes without delay, notwithstanding any dispute over the payment of fees.</p> <p>McCoy, P. J., and Corson, J., dissenting.</p>

<p>Appeal from Circuit Court, Beadle County. Hon. Arva E. Tayror, Judge.</p> <p>Action by D. P. Whorton against Charles Grant. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Circuit Court, McCook County. lion. Joseph W. Jones, Judge.</p> <p>Election contest by Jacob Tschetter against C. A. Ray. Judgment for plaintiff, and defendant appeals.</p>

<p>One claiming a mortgage lien upon real property may sue to avoid a tax deed wliicli clouds his security.</p> <p>While the docketing of a judgment obtained in a mortgage foreclosure proceeding merges into the judgment the obligation secured, it does not extinguish the mortgage lien and leave only the 10-year judgment lien of Code Civ. Proc. § 321, which provides that a docketed judgment shall be a lien for 10 years upon all of the real property of the debtor, except his-homestead.</p> <p>In an action by an assignee of a mortgage to avoid a tax deed which casts a cloud upon his security, the question whether his rights as assignee are barred by any statute of limitations or otherwise are matters of defense; to be considered only when properly pleaded.</p>

Hon. J. FI. BoT-tum, Judge. Action by Albert W. Morse against Alice M. A. Pickier and others to determine adverse claim to real property. Julgment for plaintiff, and defendants appeal. Tn an action brought under Chapter 29 of the Code of Civil Procedure of this state, and the plaintiff must recover, if at all, upon the strength of his own title, without reference to the weakness of the title of the defendants. Conrad v. Adler, xoo N. W. 722; Brown y. Comonow, 114 N. W. 728.

<p>Where, on a trial for the larceny of a saddle, the evidence showed that accused, if he took the saddle, took, it with intent to steal it for the use of a third person, to relieve him from riding bare-hack from accused’s premises to a place where the third person had a saddle, evidence of a prior theft of horses by accused and the third person and another, and that the third person was riding out of the country at the time accused stole the saddle to avoid detection for the larceny of the horses, was inadmissible to show intent or motive for stealing the saddle.</p> <p>Where accused, on trial for larceny, admitted 'the taking, hut claimed that he owned the property, evidence of a similar larceny may be admissible to show his had faith and intent to steal.</p> <p>Evidence of other crimes, not connected with the crime charged, is inadmissible, except to show knowledge, intent, or design, or motive, where such matter is in issue.</p> <p>Where the court permits the state’s attorney, after .the selection of a jury, to indorse names of witnesses on the information, accused, if surprised thereby, must ask for a continuance to prepare himself to meet such witnesses, and in the absence of such application no prejudice can be presumed.</p> <p>Permission to indorse the names of witneses on an information at the trial rests largely within the discretion of the trial .court, and, in the absence of an abuse or had faith on the part of the state’s attorney in purposely withholding the names of witnesses until the trial, resulting in prejudice to accused, the allowance of the indorsement is not ground for reversal.</p> <p>The granting or denial of a continuance on the ground of surprise is a matter largely within the discretion of the trial court.</p>

<p>An employe suing, before tbe expiration of tbe period of bis employment, for bis wrongful discharge may recover damages for tbe ■unexpired term of employment, tbougb tbe trial is bad before that time.</p>

<p>Appeal from Circuit Court, Beadle County. Hon, Alva E. Taylor, Judge.</p> <p>Action by Roy Abel against H. C. Teets, as constable of Beadle county. From a judgment for plaintiff, defendant appeals.</p>

Hon. L,Evi McGee, Judge. Action by the Western Dakota Land & Horse Company against William S. Woods and another. From an order denying a motion of defendant named to compel plaintiff to summons q,n the codefendant, he appeals.

<p>Appeal from Circuit Court, Beadle County. Hon. J. H. Bottum, Judge.</p> <p>Action by the Rex Buggy Company against Stephen D. Dinneen. From an order overruling a motion to dismiss the action, defendant appeals.</p>

Hon. John E. Hughes, Judge. Action by the Atlas Lumber Company and another against Elmer Quirk. From a judgment for defendant, plaintiffs appeal. The following is the plat referred to in the opinion: