Volume 3 — Wyoming Reports

On remand from the supreme court of the ÜDited States. Action by Clark W. Upton, assignee in bankruptcy of the Great Western Insurance Company, against Thomas A. Kent, to recover the balance alleged to be due on a subscription to the stock of said company. Judgment for defendant. Plaintiff appeals. Reversed. On appeal to the United Scates supreme court, judgment of reversal reversed, and case remanded to the supreme court.

On remand from the supreme court of the United States. Action by Clark W. Upton, assignee of the Great Western Insurance Company, against Daniel McLaughlin. Judgment for plaintiff, and defendant brings error.

Action by the board of county commissioners of Uinta county against Alfred G. Lee. Judgment for plaintiff, and defendant brings error.

<p>Error from district court, Carbon county.</p> <p>Action by W. M. Hoyt & Co. against Charles H. Perkins. Judgment for plaintiffs. Defendant brings error.</p>

<p>Error to district court, Laramie county.</p> <p>Action by W. L. Foglesong against N. J. O’Brien, administrator of the estate of P. J. McNamara, deceased. Plaintiff had judgment, and defendant brings error.</p>

Action by John C. Friend against Thomas Oggshaw to recover possession of a mining claim. From an order dismissing the case on motion after issue was joined, without trial, plaintiff appeals.

Bill by Edward Ivinson against Charles H. Hutton and others to foreclose a mortgage. From a decree for defendant, complainant appeals. Affirmed. On appeal to supreme court ofUnited States, affirmed in 119 U. S. 604, and 7 Sup. Ct. Rep. 403. Joseph M. Carey and R. Davis Carey were made defendants, on an allegation that they claimed some interest in the property.

Error from district court, Albany county. Action by one Bresnahen against Hal-leck Bros, on a bond given for the performance of a building contract made by Dawson & Hawes. Judgment for plaintiff, and defendants bring error.

Leroy Donovan, alias Jack Lee, was convicted and sentenced to death. From the judgment and sentence, and an order denying his motion for a new trial, he appeals by petition for a writ of error.

<p>Error to district court, Laramie county.</p> <p>Charles F. Cornish was convicted of mur-der in the second degree, and brings error.</p>

<p>Appeal from district court.</p>

<p>Homicide — Whit or Error — Quashing Indictment — Grand Jury — Conduct of Petit Jurors-—Verdict—Drunkenness — Intent — Self-Defense — Burden of Proof — Instructions — Review on Appeal.</p> <p>1. On a writ of error, causes for a new trial assigned as error will not be considered by the-appellate court, where they were not previously raised in the court below on the motion for a. new trial.</p> <p>2. Under Crim. Code (Comp. Laws, p. 152, § 101) a motion to quash an indictment reaches only defects which are “apparent upon the fac® of the record,” and an objection that the indictment was not found and returned by a grand jury duly impaneled and sworn is of no avail where the record fails-to disclose any irregularity.</p> <p>3. Under Comp. Laws, p. 151, § 100 et seq., irregularities in the organization of the. grand jury, not apparent on the face of the record, can. only be raised by challenge or plea in abatement.</p> <p>4. The separation of one or more jurors front the others, and their conversing with outside parties relative to subjects not connected with the case, they being all the while under the charge and vision, and within the hearing, of the proper officers and of each other, is not such a separation as would prevent a fair trial.</p> <p>5. An indictment containing only one count alleged that defendant “feloniously, unlawfully, willfully, purposely,deliberately, premeditatedly, maliciously, and of his malice aforethought, did kill and murder, ” etc. Held, that a general verdict of “guilty as charged in the indictment” convicted defendant of the highest degree of murder, notwithstanding the fact that he might have been found guilty of the lower degrees under the same indictment.</p> <p>6. Under Comp. Laws, p. 249, § 9, voluntary drunkenness is not an excuse for any crime; but, where a crime rests in intention, the inebriated condition of. defendant, at the time of its commission may be proven to the jury, as bearing on-the question of intention.</p> <p>7. Where instructions to the jury are not objected to below, they cannot be reviewed by the appellate court.</p> <p>8. When, from all the circumstances surrounding a homicide, as detailed in evidence by the prosecution, nothing is disclosed in any way tending to justify or excuse the killing, it is incumbent on defendant to show such justification or excuse, if any exists.</p> <p>9. The court properly refused to instruct the jury in regard to the absence of malice in defendant, or his acting in self-defense, where the evidence showed that previously to the killing he had armed himself, threatened the deceased, and subsequently sought an occasion and pretext for attacking him.</p> <p>10.The court properly refused instructions where the material portions of them had previously been given.</p> <p>11. The court properly refused to charge that, if the evidence for the prosecution showed any contradictions, the jury were bound to give the preference to the testimony which was most favorable to defendant, if they believed it to be equally true.</p>

Prosecution of Melville 0. Erown, an attorney and counselor at law, for applying to the supreme court vile, opprobrious, and Indecent epithets, and for accusing one of the justices of being bribed.

<p>Writ or Error — Failure to File Abstract— Dismissal — Costs.</p> <p>When plaintiff in error fails to file the abstract of the record within the time prescribed by rule of court, the case will be dismissed, with costs.</p>

Action by Warren against the Lake Shore & Michigan Southern Railway Company for damages for the loss of baggage. Erom a judgment in favor of plaintiff, defendant brings error.

Action by one Johnson against the Home Insurance Company on a policy of fire insurance. From a judgment for defendant, on demurrer, plaintiff brings error.

<p>Appeal — Wiit op Error — Questions por Review — How Presented — Motion por New Trial — Assignments op Error — Questions op Law — Sufficiency op Evidence.</p> <p>1. Merely asking time in which to prepare a bill of exceptions is insufficient to reserve an exception to an order of the court overruling a motion for a new trial.</p> <p>2. An assignment of error based upon the decision of the court in overruling a motion for a new trial cannot be considered on appeal when no exception to the decision was taken, under Sup. Ct. Rule 6, which provides that no case shall be heard unless a motion for a new trial has been made and overruled, “and exception taken to the overrul ing of said motion. ”</p> <p>3. Comp. Laws, pp. 71, 72, §§ 306, 308, 309, provide that a new trial is a re-examination in the same court of an issue of fact or a decision by the court; that it shall be granted on the application of the party aggrieved for causes affecting materially the substantial rights of such party, including an “error of law occurring at the trial, and excepted to by the party making the applicationthat the application must be made at the term the decision is rendered, and within three days, unless unavoidably prevented; and that the application must be by motion, upon written grounds filed at the time of making the motion. Sup Ct. Rule 6 provides that no case will be heard in court unless such motion has been made in the court below, “in which all matters of error and exceptions have been presented, ” the motion overruled, and exception taken thereto. Held, that errors of law occurring at the trial, cannot be reviewed on appeal when not presented to the trial court in a motion for new trial, and an exception reserved to the overruling thereof.</p> <p>4. Comp. Laws, § 306, is as follows: “A new trial is a re-examination in the same court of an issue of fact after a verdict by a jury, report of a referee, or a decision by the court. The former verdict, report, or decision shall be vacated, and a new trial granted, on the application of the party aggrieved, for any of the following causes affecting materially the substantial rights of such party: * * * Eighth. Error of law occurring at the trial, and excepted to by the party making the application. ” Held, that a motion for a new trial which presents questions of law is not addressed to the discretion of the court.</p> <p>5. An assignment of error based upon the insufficiency of the evidence to support the verdict presents no question for review by a court of errors.</p>

Action by the United States against Alexander H. Swan for the penalty of a bail bond given by one George R. Thomas as principal and said Swan as surety. Judgment for plaintiff, and defendant brings error.

<p>Criminal Law — Appeal—Record.</p> <p>The record on appeal in a criminal case must contain a hill of exceptions showing that alleged errors, the basis of a motion lor a new trial, were in fact committed, in order to present a ruling prejudicial to plaintiff in error for the decision of the supreme court.</p>

Bill in equity by Mrs. Fein against John J. Fein, J. M. Ingersoll, and John J. Fein, Jr., to cancel and set aside certain deeds of conveyance of lands as fraudulent. From a decree setting' aside a deed from John J. Fein to Fein, Jr., John J. Fein appeals.

Action by one Davis against one Ketch-um to recover compensation under a verbal contract of agistment. From a judgment for plaintiff and an order denying his motion for a new trial, defendant brings error.

Alanson L. Haines, William W. Russell, John Faulds, and A. W. Branner were indicted for obtaining goods from Oscar Walker by false pretenses, and convicted. They assign error. Indictment for obtaining property on false pretenses.

Error from district court. Action by John McBride against the Union Pacific Railway Company. Judgment for defendant, and plaintiff petitions for a writ of error. Motions to dismiss petition and to strike the bill of exceptions from the record.

Replevin by James France against the sheriff of Carbon county to recover possession of property; the First National Bank of Omaha being substituted as defendant. Verdict and judgment for defendant, from which plaintiff appealed.

Action by Schultz Volger against the Hazard Powder Company to recover damages tor injuries caused by the explosion of gunpowder. Judgment for plaintiff, and defendant brings error.

<p>Courts — Jurisdiction or Probate Judges — Injunction.</p> <p>Rev. St. § 2921, providing for the granting of an injunction by the probate judge in the absence from the county of the district judge, is void, as being in violation of the organic act of the territory, which vests the general common-law and’ chancery jurisdiction of the territory in the supreme and district courts, and gives the probate courts only probate jurisdiction.</p>

<p>Jury in Capital Cases — Challenges — Mode op Trying — Special Venire — Competency op Jurors.</p> <p>1.Rev. St. § 3395, provides that, when the panel of the grand or petit jury is for any reason incomplete, names shall he drawn from the jury box to complete it, and, if there are not sufficient names in the jury box for this purpose, the court may order the county clerk, together with the probate judge or a justice of the peace, to prepare a list of names to he placed in the box. Section 3896 provides that, when a j ury case is called for trial, the clerk shall place in a box, called the “petit jury box, ” the names of the 04 Detit jurors, and shall draw therefrom till the jury is formed, and, if such names become exhausted, he shall then draw from the jury box. Held, that the fact that, by following the procedure of section 3396, the names in the “petit jury box” and in the “jury box” were both exhausted before a trial jury was completed, did not render the panel incomplete, so as to make applicable the procedure set forth in seetiou 3395 for obtaining further names to be placed in the jury box; and that in such a case, there being no proceeding of a different character provided by statute, the court had inherent power to issue an open venire to obtain the requisite number of qua] ified persons to complete the jury.</p> <p>2. Rev. St. | 3281, providing that in capital cases three triers, with the qualifications of jurors, shall be appointed by the court, who shall be the sole judges of the fact whether the j uror stands impartial between the defendant and the people, is not void as an infringement by the legislature upon the prerogative and duty of the court, as defined by the organic law of the territory,. as such triers are' merely a part of the machinery of the court, and can properly be prescribed by the legislature, under its power to regulate the mode of procedure in courts of justice.</p> <p>3. There is no error in overruling the challenge by defendant of a juror for cause, when defendant did not exhaust his peremptory challenges.</p> <p>4. Under Rev. St. § 3283, providing that in the trial of criminal cases it shall not he cause for challenge that a person called to act as juror has formed or expressed an opinion as to the guilt or innocence of the accused from newspaper reports or rumor only, provided he swear that he can impartially try the case according to the law and the evidence, notwithstanding such opinion, the fact that such juror states that it will require proof to change his opinion is not cause for disqualification.1</p> <p>5. The finding of the trial court or of the triers of challenges as to the competency of a juror will be set aside only for manifest error.</p>

Action by one Moore against Fremont county to recover taxes paid by him. From a judgment for plaintiff, defendant appeals.

Action by J. M. McDowell against Charles F. Perkins to recover money due for labor. Judgment for plaintiff, and defendant brings error.

Charles Kougres petitions for a writ of habeas corpus against the United States marshal for the territory of Wyoming. On demurrer to the return.

Suit by Baldwin against Nickerson and others to enjoin the levy of a tax for the purpose of paying money voted by the electors of school district No. 5, Fremont county, with which to pay for erecting a sehoolhouse. The injunction was denied, and plaintiff prosecutes a writ of error.

(Jase reserved irom district court. Gross actions between George W. Corey and Francis S. Corey. The judge of the First judicial district certified the cases to the supreme court, as involving important or difficult questions.

Bill to set aside a deed, and to obtain possession of real property, by James M. Culver and Mowrey A. Arnold against Jeremiah Graham and Hannah Graham, his wife. Decree for defendants, and complainants appeal.

Action by Emma McMuilin against Iver Johnson for breach of a contract to convey land. Judgment for plaintiff, and defendant brings error.

Questions reserved and certified from district court. Application of Hugo Donzelmann, attorney general, for mandamus to one Grant, territorial auditor.

Action by James Talbott against the Wyoming Fair Association to compel defendant to transfer certain stock on its books. Judgment for plaintiff, and defendant brings error.

Error from district court. Action for personal injuries by John McBride against the Union Pacific Railway Company. Defendant had judgment, and, on the refusal of the court to grant a new trial, plaintiff brings error.

<p>Larcent — Indictment—'Waiver of Deeects— Instructions.</p> <p>1. An indictment for larceny as a bailee, under Rev. St. Wyo. § 917, providing that if any bailee of goods shall convert them to his own use, with intent to steal, he shall be punished in the same manner as if the original taking had been felonious, which alleges neither the facts constituting defendant a bailee nor the character of the bailment, is defective.</p> <p>2. But such defect can be reached only by motion to quash, and is waived by pleading “not guilty,” under Crim. Code Wyo. § 3262, providing that “a motion to quash may be made in all cases where there is a defect apparent upon the face of the record, including defects in the form of the indictment, ” and section 3266, providing that all defects which may be excepted to by motion to quash shall be held waived by a plea of “not guilty. ”</p> <p>3. The evidence as to whether there was a sale of the goods to defendant on his false representations or a bailment was conflicting, and the court charged, not only on these two theories, but also on the hypothesis that defendant was a bona fide purchaser, which his own testimony scarcely warranted. Held sufficiently favorable to defendant.</p>

<p>PsEJüKr — Evidence.</p> <p>On a trial for perjury in testifying, on the trial of one T for murder, that, immediately after the killing, one of the defendants, C., said to T., in substance, “I will have to arrest you, ” and thathe did arrest him, nearly all the persons then present testified that C. took T. by the shoulder immediately after the shooting, and after the other defendant had taken T.’s pistol from him, but the testimony differed, though not substantially, as to what was said. It appeared that O. and T. then left, and went to a livery stable, T. saying that he was going to give himself up, and that while on the way 0. told T. that the latter was in his charge; that others, thinking C. was assisting T. to escape, arrested both; and that C. was subsequently prosecuted as accessory after the fact. Both defendants acted as peace-officers, and received pay as such, though it did not appear that they were such de jure. Held, that the acts of 0. constituted a. legal arrest, and he did not testify falsely when he said he had arrested T.</p>

Action by one Wearne against one France, executor of James France, deceased. A motion to dissolve attachments issued on plaintiff’s affidavits was sustained, and plaintiff brings error.

<p>Piuson Evidence — Sale.</p> <p>1. In replevin for cattle of a certain brand, it appeared that defendant had conveyed by bill of sale all of the cattle of that brand to B., who, on the following day, reconveyed a portion to defendant. Plaintiff claimed under mesne conveyances from B. of all his interest in the herd, and showed these conveyances in evidence. JKeld, that parol evidence was admissible that B. told his vendee at the time of the sale that defendant had reserved a portion of the cattle, though the bill of sale contained no such reservation.</p> <p>2. The fact that B. failed to comply with an agreement to rent the brand contained in the conveyance by him to defendant did not prevent title from passing to defendant.</p>

One Trumble was convicted of murder in the first degree, and brings error. Reversed. This was an indictment for murder in the first degree, charging the plaintiff in error with the murder of a certain person, whose name was to the grand jury unknown. The evidence upon the trial tended to show that about the 7th of October, 1886, at the town of Lusk, in the county of Laramie, the plaintiff in error was acting as deputy-sheriff and marshal of the town.

This was a proceeding in equity by the United States to restrain defendant corporation from unlawfully inclosing public lands. The district court dissolved the temporary injunction, and dismissed the petition. The plaintiff brings error.

Black, was indicted for murder in the first degree, and convicted. From an order overruling his motion for a new trial, he brings error.

<p>Error to district court, Albany county.</p> <p>Action by Jesse Stamper against Stephen H. Gay and another to recover on a promissory note. Plaintiff appeals.</p>

Action by Anna M. S. Boburg, as admin-istratrix de bonis non of the estate of John Boburg, deceased, against Ered Prahl and another, for specific performance of a contract for the sale of real estate. On a judgment for defendants, plaintiff brings error.

The plaintiff sued the defendant in the court below, and the defendant demurred to the petition, alleging that it did not state facts sufficient to constitute a cause of action. The plaintiff, by leave of court, filed an amended petition, and by consent of parties the demurrer already filed was treated as a demurrer to the amended petition. The court sustained the demurrer, and the plaintiff excepted.

Action by J. M. McDowell against Charles E. Perkins to recover money due for labor. Judgment for plaintiff, and defendant brings' error.

<p>Error to district court, Albany county.</p> <p>Replevin by one Fein against the Wyoming Loan & Trust Company. Judgment for defendant, and plaintiff brings ■error.</p>

<p>Criminal Law — Reasonable Doubt.</p> <p>An instruction that “the proof is deemed sufficient when the evidence is sufficient to impress the judgment of ordinarily prudent men with a conviction on which they would act in an important affair of their own” does not correctly state the law of reasonable doubt.1</p>

This was an action for false imprisonment brought by the defendant in error against the plaintiff in error. The latter, being a justice of the peace in the county of Albany, sentenced the defendant in error to imprisonment in the county jail for vagrancy without any criminal complaint being made, the defendant in error being at that time before the justice on another charge.

L. MaguNNIS, Judge. Action in attachment by the First National Bank of Cheyenne against Alexander H. Swan, Thomas Swan, and F. W. Lafrentz, on a promissory note. There was an order discharging the attachment, and plaintiff brings error.

C. Saufley, Judge. Action for personal injuries by one Jarvi against the Union Pacific Railway Company. Plaintiff had judgment, and defendant brings error.

This was an action brought by the Wyoming Loan & Trust Company against the W. H. Holliday Company to recover the sum of $1,149.44 upon an account for certain glass alleged to have been sold by the plaintiff to the defendant. The case was tried without the intervention of a jury, and resulted in a finding and judgment for the plaintiff in the sum of $213.63. The plaintiff now prosecutes this proceeding in error to reverse that judgment.

Application by school district No. 1 ic the county of Converse for mandamui to Charles E. Clay, as treasurer of Converse county, and the board of county commissioners of Converse county.

Isaac Bergman, being in custody of the sheriff of Laramie county, by virtue of a commitment of the district court for contempt, files his original petition for release on habeas corpus.

<p>Original application for writ of habeas corpus.</p>

Error from district court, Laramie county. Action by the Union Mercantile Company against Horace A. Roy. Plaintiff had judgment, and defendant brings error.

Error from district court, Laramie •county. Petition of one Downes for an order re-•quiringone Parshall and another, assignee, to pay certain dividends from the assigned •estate, without the execution of a release. 'The petition was denied, and petitioner ¡brings error.

Reserved case from district court, Fremont county. The plaintiff, Robert A. Torrey, brought suit on the 3d day of February, 1890, .in the district court of the third jndicial district of the territory oi Wyoming for Fremont county against the defendant M. N. Baldwin, as county treasurer and ex officio collector of taxes for Fremont county.

Error from district court, Albany county. Action by one Rampacker against George D. Wheaton and others. Plaintiff had judgment, and defendants bringerror.

<p>Dower — Territory or Wyoming — Edmtjnds-Tucker Act.</p> <p>Act Cong. March 3,1887, (Edmunds-Tucker Act,) entitled “An act to amend” certain legislation against polygamy in the territories, provides in section 18, par. a, that “a widow shall he endowed ofathird part of all the lands whereof her husband was seised of an estate of inheritance at any time during the marriage. ” Paragraph b provides that the widow of an alien shall have dower in her husband’s lands if she be an inhabitant of “the territory” at the time of her husband’s death. Sections 15-25, excepting section 18, by their terms relate exclusively to Utah territory. Other sections expressly relate to ail the territories. Held, that section 18 related exclusively to Utah territory, and did not give dower in lands In Wyoming territory to the widow of the owner; dower having been abolished by the Wyoming statute, (Rev. St.'Wyo. §2221.)</p>

<p>Statute or Frauds — Promise to Pay Debt or Another — Appeal — Modipioation or JudqMENT.</p> <p>1. A contract, whereby one guarantied to pay attorneys a fee for acting as counsel in a certain shit for a third party, in consideration that they would obtain an agreement in writing from the third party that he would pay a sum of money which he was then owing to a bank of which the party giving the guaranty was president and a large stockholder, is not within the statute of frauds.1</p> <p>2. Under Rev. St. Wyo. § 3128, which provides that a judgment rendered by the district court may be reversed, vacated, or modified by the supreme court, where no errors appear of record, except that judgment was rendered for an amount larger than demanded in the complaint, the judgment will be modified, and affirmed accordingly.</p> <p>NOTE.</p> <p>Statute or Frauds — Promise to Pat the Debt ob Answer the Default or Another.</p> <p>Such promise to he binding, must he in writing. Nugent v. Wolfe, (Pa. Sup.) 4 Atl. Rep. 15; Bates v. Donnelly, (Mich.) 24 N. W. Rep. 788; Vaughn v. Smith, (Iowa,) 22 N. W. Rep. 684; Langdon v. Richardson, (Iowa,) 12 N. W. Rep. 622; Dee v. Downs, (Iowa,) 11 N. W. Rep. 2; Walton v. Mandeville, (Iowa,) 9 N. W. Rep. 913; In re Tozer’s Estate, (Mich.) 9 N. W. Rep. 424; Flournoy v. Van Campen, (Cal.) 12 Pac. Rep. 257.</p> <p>An original undertaking to pay for goods to he delivered, or services to be performed, for another, is not within the statute of frauds, and is binding, though not in writing, Hake v. Solomon, (Mich.) 28 N. W. Rep. 908, and note; De Witt v. Root, (Neb.) 26 N. W. Rep. 360; Grant v. Wolf, (Minn.) 24 N. W. Rep. 289; Sutherland v. Carter, (Mich.) 17 N. W. Rep. 780; West v. O’Hara, (Wis.) 13 N. W. Rep. 894; Comstock v. Tookey, (Mich.) 8 N. W. Rep. 564; although the charge therefor he made to such other person. Hake v. Solomon, (Mich.) 28 N. W. Rep. 908; Winslow v. Lumber Co., (Minn.) 20 N. W. Rep. 145; Larsen v. Jensen, (Mich.) 19 N. W. Rep. 130; but not if any credit is given to such other person, Stndley v. Barth, (Mich.) 19 N. W. Rep. 568; Cole v. Hutchinson, (Minn.) 26 N. W. Rep. 319; Ruppee v. Edwards, (Mich.) 18 N. W. Rep. 193; Bonine v. Deniston, (Mich.) 1 N. W. Rep. 1024; lngersollv. Baker, Id. 907; Rose v. O’Linn, (Neb.) 6 N. W. Rep. 430.</p> <p>When the promise is made in consideration of a benefit inuring to the promisor, it is not within the statute. Nugent v. Wolfe, (Pa. Sup.) 4 Atl. Rep. 15; Smith v. Bank, (Pa. Sup.) 1 Atl. Rep. 760; Hewitt v. Currier, (Wis.) 23 N. W. Rep. 884; Clopper v. Poland, (Neb.) 10 N. W. Rep. 538; Kelly v. Schupp, (Wis.) 18 N. W. Rep. 725; Weiselv. Spence, Id. 165; Hollé v. Bailey, (Wis.) 17 N. W. Rep. 322; Fitzgerald v. Morris-sey, (Neb.) 15N. W. Rep. 223; Wilson v. Hentges, (Minn.) 12 N. W. Rep. 151; Machine Co. v. Shat-tuek, (Wis.) 10 N. W. Rep. 690; Clapp v. Webb, (Wis.) 9 N. W. Rep. 796. But it is not enough that such benefit may incidentally result; it must form the object or consideration of the promise. Morrissey v. Kinsey, (Neb.) 19 N. W. Rep. 454; Clapp v. Webb, (Wis.) 9 N. W. Rep. 796.</p> <p>The assumption of a debt, as part of the consideration to he paid under a contract between the person assuming the same and the original debt- or, is not a promise to pay the debt of another, within the statute of frauds, Sonstiby v. Keeley, 7 Fed. Rep. 447; Clay v. Tyson, (Neb.) 26 N. W. Rep. 240, and note; Poole v. Hintrager, (Iowa,) 14 N. W. Rep. 223; Stariha v. Greenwood, (Minn.) 11 N. W. Rep. 76; nor is such promise within the statute, if the promisor thereby discharge a debt owing by himself, Walton v. Mandeville, (Iowa,) 9 N. W. Rep. 913; De Walt v. Hartzell, (Colo.) 4 Pac. Rep. 1201: Windell v. Hudson, (Ind.) 2 N. E. Rep. 303. If, in consideration of such promise, the original debtor is discharged, it is an original undertaking, and not within the statute. Mulcrone v. Lumber Co., (Mich.) 22 N. W. Rep. 67; Holm v. Sandberg, (Minn.) 21 N. W. Rep. 416.</p> <p>As to what is a promise to answer for the debt or default of another, see Willard v. Boss-hard, (Wis.) 32 N. W. Rep. 538, and note; Gump v. Halberstadt, (Or.) 15 Pao. Rep. 467; Pfaff v. Cummings, (Mich.) 34 N. W. Rep. 281; Ruppe v. Peterson, (Mich.) 35 N. W. Rep. 82, and note; Farnham v. Davis, (Me.) 9 Atl. Rep. 725; Maxwell v. Dell, (Colo. Sup.) 18 Pao. Rep. 561; Bunneman v. Wagner, Id. 841; Miller v. Lynch, (Or.) 19 Pac. Rep. 845, and note; Calahan v. Ward, (Kan.) 26 Pao. Rep. 53; Brant v. Johnson, Id. 735; Mackey v. Smith, (Or.) 28 Pao. Rep. 974.</p> <p>As to what Is not a promise to answer for the debt or default of another, see Ware v. Allen, (Miss.) 1 South. Rep. 738, and note; Hughes v. Fisher, (Colo. Sup.) 15 Pac. Rep. 702; Green v. Burton, (Vt.) 10 Atl. Rep. 575, and note; Wood v. Moriarty, (R. I.) 9 Atl. Rep. 427; Crawford v. Edison, (Ohio Sup.) 13 N. E. Rep. 80; and note; McCraith v. Bank, (N. V. App.) 10 N. E. Rep. 862; Maurin v. Fogelberg, (Minn.) 32 N. W. Rep. 858, and note; Daniel v. Robinson, (Mich.) 33 N. W. Rep. 497; Smith v. Mott, (Cal.) 18 Pao. Rep. 260; Silsby v. Frost, (Wash. T.) 17 Pac. Rep. 887, and note.-</p>

Case reserved from district court, Laramie county; Richaud H. Scott, J udge. Action by the board of county commissioners of Crook county against the Rollins Investment Company to compel the defendant company to accept and pay for certain bonds according1 to contract. Reserved case.

<p>Application of Leonard Wright for a writ of habeas corpus.</p>

<p>Error to district court, Laramie county; Willis Van Devantbk, .Judge.</p> <p>Ejectment by Mary M. Jacobs against Henry A. Arp. Judgment in plaintiff’s favor, and defendant brings error.</p>

<p>Abatement and Revivad — Substitution of Tkanseekee — Affidavit — Discretion of Court.</p> <p>1. An affidavit by a third person, who asks to be substituted as plaintiff in ejectment, which states that, during the pendency of the action, the original plaintiff transferred, by warranty deed, all her interest in the premises to the applicant, and then died, and that the applicant is now the owner of the property, does not state with sufficient clearness a case entitling the applicant to the substitution, since the deed, while absolute in terms, may be in effect only a mortgage, or it may be a mere colorable conveyance, or void for want of consideration, or procured by duress or fraud.</p> <p>2. Where plaintiff In ejectment, pending the action, transfers her interest in the land, and then dies, a motion by her assignee, on notice to defendant alone, to be substituted as plaintiff, should be denied for want of notice to the heirs or devisees of the deceased plaintiff.</p> <p>3. Rev. St. Wyo. § 2401, which provides that, where a party to an action transfers his interest therein, the action “may” be continued in the name of the original party, or the court “may” allow the person to whom the transfer is made to be substituted for him, vests the trial court With a discretion in determining whether or not an application by a transferee to be substituted as a party should be granted; and its decision on the question is not subject to review, except for abuse of discretion.</p>

C. Saufi.ey, Judge. Suit by Ed. D. Metcalf against Juliet W. Hart to enforce the conveyance of real estate, and to enjoin actions of ejectment therefor. Decree for defendant, and complainant appeals.

<p>Error to district court, Laramie county.</p> <p>Ejectment by Mary Boughton against the city of Cheyenne. An application by William G-. Smith to be substituted as plaintiff was denied, and he appeals.</p>

C. Saoflby, Judge. Suit by school-district No. 2, inthecounty of Johnson, against Juliet W. Hart, to enforce the conveyance of real estate, and to enjoin an action of ejectment therefor. Decree for defendant, and complainant appeals.

<p>Petition for habeas corpus by William Kingen.</p>

Original action by petition of John K. Jeffrey for a writ of mandamus to Charles W. Burdick, state auditor, to compel him to issue a warrant for the payment of a certain claim against the state.

<p>Appeal — Judgments and Final Orders — Find-inqs by Court.</p> <p>A finding by the court, in replevin, that plaintiff is entitled to possession of the goods and one cent damages is not reviewable under Code, § 3128, providing for the review of a “judgment, ” defined by section 2657 as “the final determination of the rights of the parties, ” and a “final” order, which, under section 3126, is one “affecting a substantial right,” and which “in effect determines the action, and prevents a judgment. ”</p>

Suit by the Powder River Cattle Company against the board oí county commissioners of Johnson county to recover back certain taxes paid by plaintiff. Judgment for defendant county on its demurrer to the petition. Plaintiff brings error.

Action by Jeremiah Graham and Hannah Graham, his wife, against James M. Culver, Mowry A. Arnold, and John A. Martin, sheriff, to have a certain decree-declared void, and to restrain the execution of a writ of possession issued thereunder. A demurrer to plaintiffs’ petition was sustained, and they bring error.

<p>Error to district court, Laramie county; Richard H. Scott, Judge.</p> <p>Indictment against Charles Miller for murder. Prom a judgment of conviction, defendant brings error.</p>

<p>0 urisdiction — Voluntary Appearanoe — Forcible Detainer — Title to Land.</p> <p>1. An action brought before a justice under the designation of “forcible detainer, ” but which was in reality ejectment, the only issue presented being title and the unlawful possession of defendants, and which should therefore have been ■dismissed for want of jurisdiction, was, on motion of defendants, certified to the district court, apparently on the supposition that it was governed by Rev. St. § 3435, providing that, if it ■shall appear on the trial of any case before a justice from the evidence that the title to land shall be disputed or brought in question, the cause shall be certified to the district court. Defendants then appeared in the district court, and successfully resisted plaintiff’s motion to remand. Held that, by reason of such appearance and proceedings on the part of defendants, the court ■obtained jurisdiction of their persons, which ■could not be affected by the fact that, before going to trial, they moved to dismiss lor want of jurisdiction; and therefore the district court had jurisdiction of the action, the subject-matter thereof being within its original jurisdiction.</p> <p>2. An action of forcible detainer cannot bring in question the title to land, within Rev. St. $ 3435.</p>

Action in justice court' by George Red-man against the Union Pacific Railway Company. There was judgment for plaintiff, and defendant appealed to the district court. Plaintiff’s motion to dismiss the appeal being overruled, he brings error.

<p>Appeal from district court, Albany county; M. C. Saufi.ey, Judge.</p> <p>Action of ejectment brought by the Union Pacific Railway Company against Cecilia E. Link. Erom a judgment for plaintiff, defendant appeals.</p>

W. Blake, Judge pro tem. Action by the board oí county commissioners oí the county of Sweetwater against Alfred Young, Sr., and Edward J. Morris. Judgment for defendants on demurrer to the petition. Plaintiff brings error.

Scott, Judge. Action by N. E. Burns against the county commissioners of the county of Converse for salary as county treasurer. I Judgment for plaintiff. Defendant brings I error.

<p>Error to district court, Laramiecounty; RichaRD H. Scott, Judge.</p> <p>Kinch McKinney was convicted of grand larceny, and brings error.</p>

Action in the nature of quo warranto, on the relation of James S. Vidal, prosecuting attorney of Fremont county, to determine the right of Jules Lamoureux and others to exercise the office and franchise of being the mayor and councilmen of the pretended town of Lander, and of being a body corporate. A demurrer to defendants’ answer was overruled, and judgment rendered in their favor. Plaintiff brings error.

<p>Motion by Aaron H. Cronkhite and others against Albert J. Bothwell to reinstate their cause upon the supreme court docket.</p>

Motion by Albert J. Bothwell to dismiss proceedings in error brought by Aaron H. Cronkhite and others in their cause. For former report, see ante, 736, 30 Pac. Rep. 492.

Action by Edgar C. Graham against Horace C. Blinn, Frank B. Sheldon and William P. Thorinly on a promissory note, and on a chattel mortgage securing same, executed by Blinn. Judgment for defendants. Plaintiff brings error.

(Jorn, Judge. Bill by Charles M. White, administrator of the estate of Samuel H. Winsor, deceased, and George Ames Winsor and Mario Booth Winsor, by their next friend, Emma A. Winsor, suing also in her own behalf, against William Hinton and the Union Pacific Railway Company, to vacate a decree of foreclosure of mortgage against Samuel H. Winsor for want of proper service and of jurisdiction in the court decreeing foreclosure, and on the ground of Winsor’s insanity at time of…

Action by the Frontier Land & Cattle Company against Melville N. Baldwin, county treasurer and collector of taxes for the county of Fremont, to enjoin the collection of a tax. Judgment for defendant. Plaintiff brings error.

C. Saufi.es, Judge. Action by the Searight Cattle Company against the board of county commissioners of the county of Johnson to recover back taxes paid under protest and alleged to have been unlawfully assessed. Judgment was rendered for plaintiff, and defendant brings error.

Scott, Judge. Applications by the International Trust Company, the American Loan & Trust Company, and Henry H. and J. S. Fay, Jr., for dividends on alleged indebtedness of the Onion Cattle Company, insolvent, of which Frederick P. Yoorhees is receiver. From refusal to allow the claims theclaim-ants bring error.