Volume 3 — Dakota Reports

The facts are fully stated in the opinion of the Court. Points in Brief: As to the effect of the grant by the territory of Minnesota to the Transit Company, we suppose that beyond the first one hundred and twenty sections, it was only to give it title pari passu, as the lands were earned.

<p>1. evidence : previous threats. Previous threats alone, unaccompanied with any present hostile demonstration either real or apparent, neither justify nor excuse nor mitigate a killing; neither does mere apprehension of future danger.</p> <p>2. same: When, at the time of the killing, the deceased was making no demonstration whatever toward defendant nor any person whom he had the right to defend, and defendant knew him to be unarmed, and the killing was with a deadly weapon, evidence of previous threats by deceased cannot be material for any purpose.</p>

<p>1. BOUNDARIES OP JUDICIAL DISTRICT: JUDICIAL COGNIZANCE OP: The Court will take judicial cognizance of the external boundary lines of its jurisdiction; and that a crime committed at a place on an Indian reservation within such boundary lines, is within the jurisdiction of the court.</p> <p>3. Indian country : Executive order reserving a portion of the public domain as an addition to the Sioux Indian reservation: Jurisdiction of crime committed in: Effect of restoring same to public domain. This case affirms the decision of this court in the case of U. S. v. Knowlton, post.</p> <p>3. HOMICIDE COMMITTED PRIOR TO REVOCATION: INDICTMENT SUBSEQUENT. The revocation of the executive order creating such reservation, after the commission of a homicide, and before the indictment has been found, does not deprive the court of jurisdiction to indict and try the defendant for such offense.</p>

The defendant was entitled to the benefit of C. S. Weaver’s intelligence, fairness, and sound judgment as a juror in the cause. His examination upon his challenge did not develop any disqualification growing out of relationship to either party, and it absolutely negatived the existence of any actual lias towards either party.

Writ of Error to the Second Judicial District Court. At the April, 1877, term of the Second Judicial District Court, the defendant was indicted for the murder of one David Rauck, alleged to have been committed on April 10,1877, “in the Sioux “reservation set apart by order of the President of the United “States, dated January 11th, 1875, near a place in said reservation “ called Port Pierre, in said district and territory, which was “ then and therein the Indian country and…

<p>1. ixsuraxoe policy: waiver ofcoxihtjox ix: Upon a policy of insurance in which one of the eonditn,..s was that in ease of default ol' payment of any note given for premium, the company should not be liable for any loss happening during the continuance of such default, held; there being a breach of such condition the company may waive the forfeiture either by express language or by acts from which an intention to waive may be inferred.</p> <p>2- waiver: wiiat amoiixts to: If in any negotiations or transactions based upon tlie policy and relating there,to after forfeiture, under circumstances indicating to the company or its authorized agent, that the insured makes a claim under the policy, notwithstanding such default, and no reply is made to such claim indicating the intention of the company to-take advantage of the forfeiture, and the insured afterwards incurs the trouble and expense of making- proofs of loss, held; the forfeiture is thereby waived.</p> <p>3. sajie: aoceptaxoij of premium: Held further, that the acceptance of the cash premium by the general agent of an insurance company after default and notice of the loss, operates as a waiver of the forfeiture, and renders the. company continuously liable on the policy as though the note given for cash premiums had been paid at maturity.</p>

<p>1. indictment : caption : jurisdiction : held, that the caption of the indictment in this ease, properly defines the jurisdiction in U. S. causes, conferred by the acts of Congress creating the District'Courts of the territory; affirming “U. S. v. Beebe,” 3 Dak., 393.</p> <p>3. construction: sec. 5431, u. s. rev. stats. : pause pre-emption proof: The false writing specified in the third clause of Sec. 5431, U. S. Bey. Stats., includes one false iu respect to the facts embodied therein, as well as one falsely made and forged.</p> <p>3. same: “claim”defined: The word “claim” therein used includes the claim to exercise the right of pre-emption, and the claim to thereby acquire from the United States government title to the public lands.</p>

Writ of error to the First Judicial District Cov/rt. Points and authorities cited: The federal jurisdiction of these courts is vested in them by section 1910, R. S., and is limited to cases arising under the Constitution and laws of the United States.

Writ of Error to the Mvmiehcbha County District Court. All facts necessary to understand the points decided are stated in the opinion. Points and authorities cited: An application for change of venue under our statute, is not addressed to the mere discretion of the Court. The statute implies an examination of evidence, and action as warranted by the facts: People v. Yoaham, 53 Cal., 566; Birdsong v. State, 47 Ala., 68; Green’s Crim.

<p>1. section 5479, tr. s. revised statutes: forgery statute. Section 5479 of the Bevised Statutes of the United States, is designed to punish the forgery of the instruments therein named.</p> <p>2. pre-emption: finad proof: making false affidavit in. The making and publishing an affidavit upon final proof for a pre-emption claim before a U. S. land office, which affidavit is genuine as to its execution, but false as to the matters therein stated, is not a crime within the purview of this statute.</p>

The facts are stated in the opinion. Points and authorities cited: It is the settled law in England and in this country, that when a proposal is made by letter, the deposit of a letter of acceptance in the postoffice by the person to whom the proposal is made, or the sending a telegram announcing acceptance, completes the contract: Adams v. Dmdsell, 1 B. & Aid., 681; Duncan v. Topham, 8 O. & B., 225; Dunlap- v. Higgims, 1 IT. & L. Cases, 881; Toy-lor v. Ins Co., 9 IIow., (H.…

The facts are stated in the opinion. Points and authorities in brief: We hold that such a description of property as that contained in this mortgage, is void as to third persons'for its indefiniteness and uncertainty, and that the property so attempted to be conveyed is absolutely incapable of being definitely ascertained: Civil' Code, Sec. 1722; Jones’ Chattel Mortgages, Sec. 55 Fowler v. Hunt, 48 Wis., 345; Mui/r v. Blake, 11N.W. Rep., 621, reversing 9 N.W. Rep., 274; Yant…

In AdrnA- ' ralty. The facts are stated in the n. Points and authorities cited: Very respectable authorities lay down the doctrine that a con tract for the building or construction, of a vessel is a maritime contract: Benedict’s Admiralty, Sec., 264; 1 Oonlding’s Admiralty, 104-5, (2d Ed.) The Supreme Court of the United States has, however, settled the doctrine that a building contract confers no maritime lien: The People's Ferry Go. v. Beers et al, 20 How., 893; Boaeh et…

The facts are stated in tbe opinion. Points and authorities cited: There is no evidence of negligence. The fact, if it was established by the evidence, that the engineer did not see the cattle as far ahead as he might if he had been looking ahead all the time, would not be per se negligence. He had a right to assume that the track was clear. His first and paramount duty was to run his engine with reference to the safety of the persons and property on the train.

The note upon which this action was brought, is as follows: “ $200. Marshalltown, Iowa, July 12, 1879.” “ One year after date I promise to pay to the Hayworth Pence “ Co. or bearer, at Marshalltown, Iowa, two hundred dollars,with “ interest at ten per cent, per annum, payable annually, ten per “ cent, on interest due, and if action is commenced hereon, attor- “ ney’s fee for collection. J. M. Stone.” The remaining facts are stated in the opinion.

Demurrer to complaint. The substance of the pleadings is stated in the opinion. Points and authorities cited: This is a general demurrer by all the defendants, and if the complaint states a cause of action against one of the defendants the general demurrer must be overruled: Burin v. Gibson, 4 N.W. Rep., 244, S. C., 9 Neb., 513; Mis.

Agopeal from the District Qou/rt of Lawrence Ootmty. The facts appear in the opinion. No brief on file. Points and authorities in brief: It is material to show plaintiff’s articles of incorporation, and that they were accepted and acted upon: 1 Greenleaf, p. 388, Sec. 28.

Points and authorities in brief: The case is one contemplated in section 535, Code of Civil Procedure, brought on the information of a person having an interest in the question, whose name should be joined with the Territory as plaintiff. An inspection of the complaint shows this was not done. There is no joining of the Territory and the relator in the title of the cause or in the body of the complaint.

<p>1. NORTHERN PACIFIC LAND GRANT: NOT CONDITIONAL BUT ABSOLUTE: FAILURE to perform: not affect till forfeiture declared The act of Congress of July 2,1864, granting lands to the Northern Pacific Railroad Company, in aid of its road,was a grant in praesenti and vested all the title the United Slates then had, subject to the conditions subsequent to be performed by the company, there being no condition that the lands should revert to the grantor in case of a failure to perform the conditions by the grantee. Such title would be unaffected by a failure to perform such conditions, until the United States should enforce a forfeiture.</p> <p>2. same: no rights acquired by settler. This act is in the nature of an executory contract. Both parties to it had an interest in its performance; both mutually agreed to perform certain acts; it operated upon land to which the United States had not full title, but to which full title was to be acquired, and when acquired such lands were withheld from sale, entry or pre-emption for the benefit of said railroad, so that no person' could get any rights thereto as a settler or pre-emptor.</p> <p>3. SAME: LANDS NEVER OPENED TO SETTLEMENT: NO PRE-EMPTION RIGHTS. The passage of the act of 1864, granting land to this railroad company in word® of present grant, arid providing that the odd numbered sections should not be for sale or entry after the survey of the same: Held, that no person settling f,nd making improvemeuts upon the odd sections, could get any rights as a settler or pre-emptor as against the United States or the railroad company, either under section 2281 of the United States, or the provisions of this act, such lands never having been subject to sale, or pre-emption.</p> <p>4. same: settles had actual notice op line ’op boad: cannot object that plat op line was not piled. Held further, that the defendant having settled upon the'land in question, after the passage of the act, while it was Indian territory, near the line of the road, witnessing the construction of the track, had actual knowledge of the definite line of said road, he cannot now object that notice was not sooner given, by the filing of the plat of such definite line in the office of the Commissioner of the General Land Office, nor be regarded as a bona fide settler, or pre-emptor, in any sense.</p>

<p>1. STATUTE OP LIMITATIONS: AFFECTS REMEDY: GOVERNED BY LEX PORI. Suits brought to enforce contracts, either in the state where they were made or in the courts of other states, are subject to the remedies of the forum in which the suit is, including that of the statute of limitations.</p> <p>2. practice: reply: when necessary. By the Code of Civil Procedure of this territory, when the answer contains neWmatter constituting a counter claim, a reply is necessary to put in issue such new matter. But unless the new matter set up in the answer constitutes a counter claim, no reply is necessary unless ordered by the court.</p> <p>3. plea oe payment: burden oe proof. Where the plea of payment is set up by a defendant the burden is on him to establish such defense by competent proof.</p> <p>4. same: no issue. In this case the statute of limitations had not commenced to run in this territory, and there was no fact in reference to the same to be submitted to the jury.</p> <p>5. evidence: collateral security: not payment. The giving of security, either by mortgage or trust deed, was not a payment of the note, nor is it a defense in an action brought on the note, only so far as the security may have been paid to the holder of the note.</p> <p>6. directing verdict: no evidence: court may. Before the evidence is left to the jury, there is, or may be, in every case, a preliminary question for the Judge — not literally whether there is no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed. There being no sufficient evidence in this case to warrant a verdict for the defendant upon the issue, it was not error for the Court to direct a verdict for plaintiff.</p>

<p>1. evidence: admitting improper: not affecting verdict: not ground for reversal. The admission of secondary evidence without the proper foundation being laid therefor is not ground for a new trial, when it clearly appears to this court that no injustice has been done, and the verdict would have been the same with or without such evidence.</p> <p>2. same: witness understanding: not competent evidence. A witness cannot testify as to his understanding of the terms of a contract; and the exclusion of such evidence is not error, even when the ground of the objection to the evidence is, that the answer is not responsive to the question asked.</p> <p>3. semble: charging the jury: duty of the court. It is the duty of the court to charge the jury, whether requested or not, upon every point material to the decision of the case, upon which there is evidence, and to charge correctly and fully.</p> <p>4. special verdicts; directing: in discretion of court. The court may, in its discretion, instruct the jury, if they find a general verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon. But when the charge of the court fully covers all the issues in the case, it is not error to refuse to instruct the jury to find specially upon certain issues.</p> <p>5. guarantors: what exonerates. In an action on a contract of guaranty, it is not error to instruct the jury, that if the terms of the agreement, guai * anteed by defendants, were altered in any respect without consent of the defendants, in the time of payment, or in the proportionate part payable in the first payment, or in the matter of interest, or if any alteration was made which impaired or suspended plaintiff’s remedy against the principal, the defendants would be exonerated; but query, whether shortening the time of payment impairs or suspends the remedies or rights of the creditor against the principal.</p> <p>6. verdict: evidence conflicting: court will not disturb. Where there is a substantial conflict of evidence, and the evidence is sufficient to sustain the findings of the jury, the verdict will not be disturbed in this court.</p>

<p>1. questions of fact: verdict final as to: evidence sufficient. When questions of fact have been fairly and fully submitted to a jury, under proper instructions, the verdict is final so far as this court is concerned, there being competent evidence to sustain it.</p> <p>2. exceptions: partnership: dissolution of insolvent: not constructive feaud: partners mat claim exemptions. The dissolution of an insolvent firm, and a division of its assets between the partners, accomplished without actual fraud, even though it be done for the purpose of securing to the members of the firm the benefits of individual exemptions, is not a constructive fraud upon creditors, and will not deprive the partners of their right to individual exemptions out of former firm property.</p> <p>3. exempt property: not capable op fraudulent alienation. Within the' terms and limit of an exemption law, any acquisition of property or exchange ©f property which is exempt, is lawful, and exempt property is not susceptible of fraudulent alienation or disposition.</p> <p>i. same: duty op officer: property prima paces sub jest to levy. All' property not absolutely exempt,, is, under our law, prima facie subject tcy levy; but the debtor has no duty to perform, in the surrender of property upon legal process, or until actual levy, and notice of the levy as required by statute.</p> <p>5. same: appraisement: debtor need do nothin®. The debtor is not required to anticipate the levy, or do any act to extend it; hence it is held, that the refusal of an instruction that, “Tf the debtors kept back, detained or concealed their personal property or any part thereof, so that it couldl not be appraised, then they are not entitled to the benefit of the exemption law,” was not error.</p> <p>S, same: obstruction op levy. Query: Whether actual obstruction of the-levy, or concealment of property to prevent a levy might operate as a selection by the debtor under the exemption law, not decided.</p> <p>7, damages: amount op. There being no valid objection to the charge of the; Court on the question of damages, the amount of the recovery was entirely with the jury, particularly in this case where exemplary damages may haves been given,</p>

<p>1. setting aside verdict: whbn. This court has decided that neither the verdict of a jury, nor the findings of a court upon a question of fact should be disturbed, when the evidence is conflicting, and they will not be unless great injustice seems to have been done, or there is an entire want of evidence to sustain the verdict or finding.</p> <p>2. same. But it is the province of the court, either before or after the verdict* to decide whether the plaintiff has given evidence sufficient to support or justify a verdict in his favor; not whether, on all the evidence the preponderating weight is in his favor — that is the business of the jury — but whether, conceding to all the evidence offered the greatest probative force, which* according to the law of evidence, it is fairly entitled to, it is or is not sufficient to justify a verdict. If it is not sufficient, then it is the duty of the eourt, after a verdict, to set it aside and grant a new trial.</p> <p>3. sembre: directing verdict. When the Judge is clear of doubt that a verdict ought to be rendered either for plaintiff or defendant, and that it would be his duty to set a contrary one aside, he ought to instruct the jury so to find. Such a direction cannot properly be given to the jury unless the evidence is such as to leave no room for doubt that it is the duty of the jury to find accordingly.</p>

<p> Appeal from the District Court of Stutsman County. </p> <p>No briefs on file.</p> <p>The facts are stated in the opinion.</p>

Points and authorities in brief: The words set out in the complaint are libellous, and even the caption of the article is libellous: Civil Code, 210, Secs. 29-30, Sub. 3; Pratt v. Pioneer Press Co., 14 N.W. Rep., 62; 4 Wis., 231-37; 7 ib., 462; 9 ib.,-; 28 ib., 138; 36 ib., 513; 32 ib., 106; 23 ib., 105; 47 ib., 659; 3 N.W. Rep., 392; 10 ib., 81-415-602; 9 ib.. 43; 12 ib., 177; 13 ib., 776; 47 Cal., 252; 41 Cal., 364. No briefs on file.

Michael Grady was doing business as a merchant tailor at the city of Yankton. Flis stock was mortgaged to a creditor for $1,000, and he owed plaintiff, Kobert G. Grady, his son, the sum of $500. On January 26, 1881, plaintiff, Bo.bert G. Grady, purchased the stock of goods from his father for $1,987.11, assumed tlie $1,000 mortgage, cancelled his father’s indebtedness of $500, and paid over to his father in cash the balance of $487.11 to cover the value of the stock.

The facts are stated in the opinion. Points and authorities in brief: Without showing some property interests which are injuriously affected by a failure of the public officer to act, the citizen of. one county cannot interfere in the public affairs of another county in which he has no residence or citizenship. No more than could a non-resident of a state be a relator to compel a public officer of such state to act without showing some peculiar interest: High’s Ex.

1 lie facts appear in the opinion. Poiuts and authorities: In order to justify verdict for an amount exceeding actual damages the negligence of the city must be so gross as to be willful: Chicago v. Kelly, 69 111., 475. The evidence-of plaintiff’s own negligence is undisputed and cannot be disregarded, and he cannot recover in this action: Lomer v. Meeker, 25 N. Y., 361; Newton v. Pope, 1 Cow., 109; Dolson v. Arnold, 10 How., 528.

<p>1. damages: injury to peelings: must accompany corporal or PERSONAL injury: not breach op contract. No damages can be recovered for a shock and outrage to the feelings and sensibilities, or for mental distress and anguish, caused by a breach of a contract, (except a marriage contract.) Such damages can only enter into and become a part of the recovery in an action for a tort when the plaintiff has sustained some corporal or personal injury. No actual damages having been claimed in the complaint, it does n.ot state a cause of aotion.</p>

<p>1. stoppage in transit : right oe : max exist when goods in warehouse. The delivery by the vendor oí goods sold, to a carrier who is to carry on account of the vendee, is a constructive delivery to the vendee, but the vendor has a right, if unpaid, and the vendee be insolvent, to re-take the goods before they are actually delivered to the vendee. They are still in transir, though lying in a warehouse to which they have been sent by the vendor on the purchaser’s order,</p> <p>2. devx oe attachment: actuad controd oe goods: what sueeioient. To constitute a valid levy of an attachment upon personal property, the officer must take actual possession and must have actual control of the property with power of removal. Such control must be exercised, as if done without the writ would amount to trespass.</p>

The facts appear in the opinion. Points and authorities cited: Mandamus lies where there is not a plain, speedy and adequate remedy in the ordinary course of law: Code of Civil Proc., See. 696. The converse is equally true: 4 Wait, 357. The test is, whether the remedy at law will furnish the specific relief sought by the writ: People v. Loucks, 28 Cal., 68; id. 865-371; Kim-hall v. Union Water Co., 44 Cal., 173; S.*C. 13 Am. Rep., 157; 10 Am.

The facts ate stated in the opinion. A contract to do an act forbidden by law is void, and cannot be enforced in a court of justice: Bank of IT. S..v. Owens, 2 Peters, 527; Tyler on Usury, 377. Separate notes given for usurious interest will not relieve the contract of its usurious character: Cooper v. Tappan, 4 Wis., 362; Delano v. Rood, 1 Gillman, 690; Tyler on Usury, 255-7.

<p>1. negligence: when matter of defense: burden of proof. In an action based upon the negligence of the defendant, if the plaintiff can prove his own case without disclosing his own contributory negligence, then such contributory negligence is purely a matter of defense, to be proved by the defendant. And, although the plaintiff’s evidence tends to prove his own negligence, the affirmative of that issue is still with the defendant, and because he may use the evidence of the plaintiff to support his side of the case, that fact does not shift the burden of proof from the defendant to the plaintiff.</p> <p>2. contributory' negligence; for the jury, when. The question of contributory negligence is for the jury when the evidence is conflicting; or when the facts are undisputed, if different minds might draw different conclusions from them.</p> <p>3. same: when it may become a question for the court. But when the facts are undisputed, or conclusively proved, and there is no reasonable chance for fair minded men to draw different conclusions from them, and there can be but one conclusion, the question of negligence becomes one for the court.</p>

All the material facts are stated in the opinion. The assignment of a debt carries with it the security: Civil Code, Sec. 1727; 1 Jones on Mort., 812, 813, 817, 81Í, 787. There being no written assignment the defendant had no authority to sell the premises, and his attempted foreclosure was utterly illegal: Civil Code, Sec. 313; Code of Civil Proc., Sec. 589; Morrison v. Mendenhall, 18 Minn., 232.

All the necessary facts are stated in the opinion. cited: Laws of 1881, Sec. 12, Chap. 135; Jones v. City of Petaluma, 36 Cal., 230; 2 Denio, 191; 1 id., 646; 2 Cow., 479; 5 Wait’s Prac , 556-7, and cases cited; 78 N. Y., 39; 3 Abb.

Points and authorities: It is necessary for tbe assailants of this act to establish two propositions: that law-making power is delegated; and, that the act is, therefore, invalid. Neither of these propositions can be rightfully affirmed. The Organic Act, and the Revised Statutes, to the extent they supersede it, stand as the constitution of the territory — its charter of government: Ferris v. Higley, 20 Wall., 380, 381.

<p>1. instructions: assuming undisputed pacts in evidencie: not error. In an action against a common carrier to recover damages for negligence in failing to safely carry and deliver property, all the witnesses testifying to some loss, and the only conflict in the testimony being as to the amount of the loss: Held, not error for the court to assume that there was some damage or loss, and to instruct the jury that the only question upon that part of the case was as to the amount of the loss sustained by plaintiffs, and this the jury were to find.</p> <p>2. assignment oe ebrob: insueeioient. The particular error relied upon in a motion for a new trial, or upon which a reversal of the judgment is demanded, should be pointed out, and, unless so presented, assignments of error will not be considered; following the decision of this court in Oaulfield v. Bogle, 2 Dak., 464.</p>

<p>1. Interest: Contract to pay interest on unpaid interest, valid. A promissory note providing for the payment of interest annually, and stipulating that each annual installment of interest not paid when due, should bear interest at a specified rate from the time it fell due till paid: Held, valid and legal.</p> <p>2. tender; insufficient, void for every bureóse: attorney’s eee recoverable. A tender of an amount insufficient to cover the principal and interest due on a note and mortgage, is ineffectual for every purpose; and in such case, in an action to foreclose the mortgage, the attorney fee therein stipulated maybe recovered.</p> <p>:3. reduced bate oe interest: agreement to accept. Where it was the clear intentionof the parties that an agreement!© accept a reduced rate'of interest should be held operative and binding upon the parties, only upon condition that the interest at the reduced rate was paid at the time when, by the ■terms of ¡the agreement, it became due: Held, the interest at the reduced rate not having been paid, the original rate of interest was enforceable.</p>