Volume 4 — Dakota Reports

<p>1. Mineral lands — town-site entries on — recovery for valuable IMPROVEMENTS ON.</p> <p>Hawke v. Deffebach, ante, followed as to townsite entries on mineral lands, and right of recovery for improvements as occupying claimant. •</p> <p>2. Holder of legal title — when declared trustee for equitable OWNER.</p> <p>Where a party seeks to have the holder of a patent from the government declared a trustee of the legal title, and to recover the same, it must affirmatively appear that his equity is superior to that of the holder of the legal title, and that if such patent were out of the way he would he entitled to the patent himself. EdGERTON, C. J., dissenting.</p>

The trial court found that ‘ ‘the seal of said corporation was not affixed thereto by its secretary nor by any person authorized so to do.” This is equivalent to holding that the corporation could not be bound by a contract except under its corporate seal. This seems to be a misconception of the law as settled by many eminent authorities.

<p>1. New trial — misconduct op counsel — discretion op trial court.</p> <p>The granting or refusing a new trial on account of misconduct of counsel during- the trial is larg-ely a matter of discretion on the part of the trial judge; and an order refusing a new trial in each case will not be disturbed unless it clearly appears that the trial court has abused its discretion.</p> <p>2. Application op rule.</p> <p>When it is not evident that misconduct of counsel either prevented appellant from having- a fair trial, or influenced the jury to find a verdict against him contrary to the real weight of the evidence; nor any well founded or satisfactory inference that such was or might have been its effect, there was no error in refusing- a new trial.</p> <p>3. Prejudicial error — excluding or receiving evidence — true test</p> <p>Error in excluding- legal evidence or admitting legal evidence, is not of itself sufficient g'round for reversal. It must appear, or the presumption be strong, that appellant was prejudiced thereby. The true test is: ignoring- the illegal evidence admitted, and considering the legal evidence excluded, would there still be good ground for the verdiet as l’endored; or could the jury have arrived fairly at a verdict wholly or in part favorable to appellant. CHURCH, J., dissenting.</p>

<p>1. The decision of the secretary of the interior.</p> <p>Establishes a presumptive right to land.</p> <p>2. Patent for land — pkesumption from.</p> <p>A patent from the government for land is evidence of a perfect right established by the final adjudication of the tribunal erected for the special purpose, and carries with it the presumption that every requisite prescribed by law for the acquisition of the title has been duly performed,</p> <p>3. Same — for mineral lands — conveys fee simple title.</p> <p>A patent for mineral lands conveys to the patentee the common law right to the exclusive possession and full enjoyment of the surface and all below it, as well as the right to pursue a vein beyond the vertical side lines of the surface location.</p> <p>4. Townsite act — construction of sec. 2386.</p> <p>Section 2386 if the Rev. Stats., having been enacted at a time when no provisions of law existed for acquiriug title to mineral lands, was merely precautionary, to protect any possessory mining rights which might be found to exist, within any townsite under local mining customs and regulations then recognized by the government.</p> <p>5. Townsite law — mineral lands.</p> <p>No title can be acquired under the provisions of the townsite law, to lands known to be valuable for minerals.</p> <p>6. Minerals — surface proprietorship — no statute authorizing SEPARATE CONVEYANCE OF.</p> <p>There is no law of congress under which the surface proprietorship of mineral lands can be conveyed to one person, and the minerals therein contained to another.</p> <p>7. Occupying claimants — valuable improvements — good faith.</p> <p>An occupant of land in good faith, is one who supposes himself to be the true proprietor of the land, and who is ignorant that his title is contested by some other person claiming a better right to it.</p> <p>8. Query.</p> <p>Whether the claim of one who concedes the right of another to enter upon and remove minerals from land in his possession, possesses the adverse character contemplated by the statute for the benefit of occupying claimants.</p> <p>9. Occupying claimants — erection of improvements — with notice —cannot recover.</p> <p>Where defendant purchased the land in controversy with full notice of plaintiff’s claim thereto -under the mining' law, and that plaintiff was making improvements thereon necessary to acquire title thereto under such mining laws, defendant could not thereafter erect valuable improvements “in good faith,” so as to entitle him to recover the value thereof.</p>

All facts necessary to be stated appear in the opinion. The overruling by the court below of the defendant’s objection to the introduction of any evidence, under said complaint, was error. 1st. The complaint avers no fraudulent intent, on the part of defendants, in making the alleged false representations. The intent in this class of cases, is the very gist of the action, and should have been alleged as well as proved.

<p>1. Discharge in bankruptcy — when not a bar to action on FORMER JUDGMENT.</p> <p>Plaintiff instituted an action against defendant in a circuit court of Iowa.</p> <p>Defendant filed a petition in bankruptcy in the United States court, but made no application for a stay of proceedings in the action in the state court, and judgment by default was entered against him.</p> <p>Held, that the discharge of defendant in bankruptcy constituted no defense to an action on the judgment brought by plaintiff in this territory, and that plaintiff was entitled to recover.</p>

<p>1. Farm contract — construction—conversion of grain — action.</p> <p>Contract construed, and held that plaintiff .was not entitled to a judgment in an action for conversion of a part of the grain grown under said contract.</p> <p>2. Pleading — breach of contract executed by agent — principal AS PLAINTIFF.</p> <p>Where a written contract is executed on the part of the party of the second part, as follows, “G., Agent for L.,” L. is the proper party to sue for a breach thereof.</p> <p>Hudson, J., dissenting.</p>

<p>Agency — sale ov land — interest adverse to principal.</p> <p>Gray was defendant’s agent to procure from plaintiffs a deed for certain lands. Plaintiffs executed the deed and placed it in the hands of Gray for delivery, it being- agreed between them that Gray should have the right to demand from his principal as a condition precedent to such delivery, that the principal should procure a deed to the said Gray for certain other lands. The deed from plaintiffs having been delivered to defendant without the performance of such condition precedent, held, that the title passed, as it was incompetent for the agent to make any agreement securing a benefit for himself adverse to his employers’ interests.</p>

<p>Appeal from the district court of Minnehaha county.</p> <p>The facts are stated in the opinion.</p> <p>We desire to call attention to the following sections of our Code of Procedure: Sec. 248. “And no judge shall instruct the petit jury in any case, civil or criminal, unless such instructions are reduced to writing. ” Sec. 249. ‘ ‘And all instructions so given and read, shall be taken by the jury in their retirement, and returned into court with their verdict.”</p> <p>Now, does Section 248 mean that the instructions of the court are to be in writing or not?</p> <p>Even in a state where there was no such statute as ours, the supreme court says in a case where the jury did take the charge with them, “The only result of allowing them (the jury) to examine it for themselves would seem to be that they would know more thoroughly its precise terms than they could if compelled to trust entirely to recollection after hearing it read once. ’ ’</p> <p>This is what our statute says must be done, and evidently for the very reason given by the above opinion. The-case is Wood v. Aldrich, 25 Wis. p. 695.</p> <p>The Wisconsin statute, Section 2853, Revised Statutes of Wisconsin, provides that the charge shall be in writing, or taken down by the phonographic reporter, or it may be waived, and further provides so that courts shall distinctly understand that the statute means what it says; that a failure soto do shall work a reversal, and the supreme court of Wisconsin says that the statute is mandatory. Penbertby v. Lee, 51 Wis. 261.</p> <p>The supreme court of Illinois, from the 11th Illinois up, have given the interpretation we claim. We cite the Illinois cases as follows: Brown v. People, 4 Gill. 440; Butterfield v. Sherrill, 11 111. 483; Green v. Lewis, 13 111. 645; People v. Beeler, 6 Cal. 246.</p> <p>The court says: On the trial of this cause the court charged the jury orally without the consent of the parties. This was error. The rule prescribed by the statute is mandatory and not directory. Judgment reversed. And the following cases affirm this decision: People v. Payne, 8 Cal. 344; People v. Dumot, 8 Cal. 424; People v. Woppsur, 14- Cal. 438; People v. Cleaves, 26 Cal. 79; People v. Trim, 37 Cal. 276; People v. Sanford, 43 Cal. 35; Fitzgerald v. Fitzgerald, 20 N. W. Rep. 269.</p> <p>We submit to your consideration that the weight of authority, concurring with reason, supports the proposition that a failure to except at the time to instruct orally is, under statutes like our own, a waiver of the objection. The Wisconsin case, cited by appellant, is upon a statute very different from ours; providing that the charge to the jury should be reduced to writing, or taken down by a stenographer, and that a failure to do so should on appeal work a reversal, unless the charge in writing was waived by counsel at the commencement of the trial. Our statute is a copy of that of Illinois, but not one of the Illinois cases cited by appellant is in point. In not one of them is the question discussed whether the giving of oral instructions, not objected to at the time, would or would not be error, nor was that question before the court. But in that state it is held that a failure to mark instructions “given” or “refused" will not justify a reversal. McKenzie v. Remington, 79 111. 388. ■</p> <p>The California authorities cited by appellant are all criminal cases. The earlier opinions are quite brief and meager; but in the People v. Ah Pang, 12 Cal. 346, the court grounds its judgment on the right peculiar to a defendant on trial for alleged crime, stating that in civil cases the rule would be different. “There is no presumption,” says the opinion, “indulged in criminal cases that any right is waived * * * the' prisoner was not bound to except at the time. The rule would be different in civil cases.” Fagg v. Miller, 10 Neb. 442; Fry v. Pilton, 9 N. W. Rep. 638.</p> <p>The well established rule is, that an appellate court will consider no error unless saved by an exception taken at the trial. To that rule, in this jurisdiction, there is one exception only. It is found in Section 249 Code of Civil Procedure to-wit: “Exceptions to the giving or refusing any instructions or its modification.or charge may be taken at any time before the entry of final judgment.” This court in the St. Croix Lumber Co. v. Pennington, 2 Dak. 467, very justly construed that clause according to its true and literal meaning as applicable only to the responses of the court to the specific requests of counsel for instructions. Appellent therefore cannot invoke that clause as authority for taking his exception after verdict.</p>

Writ of error from the district court of Cass county. Demurrer to indictment. The indictment is drawn under Section 5393, Rev. Stat. Defendant assigns as his specific objection to the indictment that it did not. set forth sufficiently the tribunal, officer or person before whom the alleged perjury was committed, and the case pending before such officer, in the course of which the perjury is alleged to have been committed.

Plaintiff contends that the board should have had five days notice, excluding both the day of its date and the day upon which the meeting was held. This is not the rule. Sedg. Const. Stats. 356; Jacobs v. Murray, 15 Cal. 22; Com. v. Maxwell, 27 Pa. St. 444; Gross v. Fowler, 12 Cal. 392; Mason v. School Dist. 20 Vt. 487, 14 Yt. 300, 15 Yt. 147; Barton v. Abbee 16 Ohio, 409; Lang v. Phillips, 27 Ala. 311; Kimm v. Osgood, 19 Mo. 60; Weeks v. Bull, 19 Conn. 376; 1 Houst.

Defendant allowed judgment in a prior action on one of the series of notes given for this machine, to be taken by default, and tihis renders the defense of breach of warranty in this action res acljudicata. Wells on Res. Ad., 308, §§402, 406; Gardner v. Buckbee, 3 Cow. 120; Young v. Black, 7 Crauch, 565-7; Marsh v. Pier, 4 Rawle. (Pa.) 273.

A public officer whose duties and compensation are provided by law, cannot maintain an action for extra compensation promised by a party. Hatch v. Mann, 15 Wend. 41; Smith v. Whildin, 10 Pa. St. 281; Warner v. Grace, 14 Minn. 487; Parker v. Newland, 1 Hill, 87; Dillon Mun. Corp. 234.

<p>Appeal from the district court of Burleigh county.</p> <p>No briefs or abstracts on file.</p>

A very full statement of facts appears in the opinion of the court. It has been the settled ijolicy of the government to promote the development of the mining resources of the country. Haydenfeldt v. Daney Cold, & Co., 3 Otto 640; Jennison v. Kirk, S Otto 457. The intention of the legislature when ascertained must control, even when necessary to enlarge, restrict or qualify the meaning- of words used.

The codifiers of the' California Code under a commission formed by legislative authority in citing the corresponding section of their code, Section 1941 use the following language: ‘‘This section changes the rule upon this subject to conform to that which notwithstanding steady judicial adherence for hundreds of years to the adverse doctrine, is generally believed by the unprofessional public to be law, and upon which basis they almost always contract.

Church, J. The court has no powTer to strike out as sham an answer consisting of a general denial of material allegations of the complaint. Way land v. Tysen, 45 N. Y. 281; Thompson v. Erie Railway Co., 45 N. Y. 472; Farmers Nat. Bank v. Leland, 5 N. Y. 673; Grocers Bank v. O’Rourke, 6 Hun. 20; Claflin v. Jaroslanski, 64 Barb. 463; Schultz v. Rodenwald, 1 Abb.

<p>Courts — district courts — jurisdicton—amount.</p> <p>In all actions arising on contract, for the recovery of money only, where the sum claimed does not exceed $100, the district courts and the courts of justices of the peace have concurrent original jurisdiction; and in all actions or proceedings in chancery, and in all actions at law, where the debt or sum claimed exceeds $100, the district courts have exclusive original jurisdiction.</p>

The facts are stated in the opinion. The absence of probable cause was fully established, and that together with the facts that the attachment was unlawfully and wantonly sued out and that the debt was not due, that the affidavit for an attachment on its face showed there was no ground for an attachment, and the oppressiveness of the whole attachment proceedings was sufficient evidence on which to send the case to the jury to find whether or not there was any malice on the…

The facts necessary to an understanding of the points decided are stated in the opinion. We do not say but that the evidence taken as a whole strongly tends to prove that there was a tacit understanding in regard to a reserved power of sale of the goods in the mortgagor, but the evidence on this point we think is not of such a character as to justify the action of the court in withdrawing the question from the jury.

<p>1. Criminal law — murder -plea oe guilty — death penalty — Section 249, PEN. CODE DAK., AND SECTION 1, ACT FEBRUARY 21, 1888.</p> <p>Under Section 249 of the Penal Code of Dakota, as amended by Section 1, of the act of February 21, 1883, where an accused pleads guilty to the charge of murder as charged in the indictment, the court may sentence Mm to death.</p> <p>2. Same — plea of guilty admits truth of indictment.</p> <p>By a plea of guilty a defendant confesses the indictment to be wholly true, and therefore that his guilt is that charged, and not a less degree.</p>

The facts are fully stated in the opinion. In the ninth paragraph of the answer the defendant sets up a separate and independent defense to the plaintiff’s cause of action and there we must look for the admissions if there are any, of the execution of these instruments. 1.

The facts are stated in the opinion. A denial of the right to intervene in a proper case is error. Martin v. Thomson, 63 Cal. 1; Coburn v. Smart, Hearst, intervenor, 53 Cal. 742; Coffey v. Greenfield, 55 Cal. 382; Pomeroy’s R. & R., Secs. 411, 413 note, 426, 431; Code Civil Proc. Sec. 90. If the deed to Hodgdon was void Margaret Frazier was the legal owner of the land. Civil Code, Sec. 681; Chamberlain v. Taylor, 92 N. Y. 348;Hasbrouck v. Bunce, 62 N. jY 482.

On rehearing. No briefs on motion to dismiss appear on file. Note. — The judgment below was affirmed at the May term, 1885, by operation of law; three of the justices being for affirmance and three for reversal. No opinion was ever filed by the court.

The affidavit for publication of summons, after stating the cause of action, states “that the defendants are not residents of this territory, but reside in the city of Denver, Colorado, as affiant is informed by P. D. O’Brian, a resident of Deadwood who was recently in said city of Denver, Colorado, where (as he informed this affiant) the said John Mahan and Mary Jane Mahan are now residing and in business; that he was so informed by the said John Mahan, whom he met in…

<p>1. Admiralty — jurisdiction—trust.</p> <p>The jurisdiction of admiralty does not extend to the execution of a trust. The title to a steamboat being in trustees, the beneficiaries may terminate the trust and obtain a decree of sale upon a proper proceeding in a court of equity.</p> <p>2. Part owner — master in possession — co-owners cannot remove.</p> <p>When a part owner is master and in possession of a boat, under an agreement in writing, he is not subject to removal by his co-owners.</p> <p>3. Title in trust — trust to terminate on payment, and title vest ABSOLUTELY IN TRUSTEES — SUCH TRUST MERELY A LIEN.</p> <p>Where the title to a boat is placed in two persons as trustees, to be held by them as part owners and for co-owners, until payment to the co-owners of certain sums representing the amount of their interests. and upon such payments the trust to terminate and title absolute vest in such trustees, the transaction is at most the creation of a lien in the nature of a mortgagee, and the trustees are the legal owners of the boat.</p> <p>4. Idem.</p> <p>Under such circumstances a bill of sale executed by the co-owners would pass to the purchaser no title beyond the equitable interests of such co-owners as beneficiaries of the trust.</p> <p>5. Practice — bill op exceptions — extraneous matter stricken out.</p> <p>Where the transcript of record contains evidence and extraneous matter not made a part of the bill of exceptions, such evidence and extraneous matter should on motion be stricken from the record.</p> <p>C. Practice — appeals in admiralty cases. Same as other civil actions.</p> <p>Appeals in admiralty cases from the district to the supreme court, are governed by the same statutes and rules that obtain in other civil actions tried to the court.</p>

<p>1. Appeal from judgment — what reviewed on.</p> <p>An appeal from the judgment brings to this court the judgment roll proper for review; and the court can look at nothing not contained in and made a part of the judgment roll by the court below. The appellate court has no power to receive and is strictly prohibited from examining into or listening to any matters or things de hors the record.</p> <p>2. Same.</p> <p>What purports to have been the evidence, attached to .the record, not having been made a part of the record by the court below, will not be considered by this considered by this court; and no error' appearing in the judgment roll proper the judgment below is affirmed.</p>

The facts are sufficiently stated in the opinion of the court. In an action on an attachment bond the rule restricting the recovery to the approximate damages, will exclude any recovery of damages for injuries to credit and business. See 1st Sutherland on Damages, 60; 10 la. 337-8, B. Mon. 51; 1 Cal. 410; 56 111. 68; Drake on Attachment, 6th Ed. p. 175; Lowenetine v. Monroe, 7 N. W. Rep. 406.

The pleadings are set in the opinion,' and the facts so far as material to the points decided. Thompson, in his work on Negligence, Vol. 2, 892, says that ‘ ‘this right to control appears to be the conclusive test by which to determine whether the relation exists.

Order sustaining demurrer to complaint. The agreement set up in complaint though parol will be enforced. The statute of fraud does not forbid. The general principle is that equity relieves against fraud and the violation of confidence or of fiduciary relations by making him who obtains the advantage a constructive trustee for him who is entitled to it.

The facts are stated in the opinion. If the agent in pursuance of his authority makes a complete sale, the agency is “functus officio,” and therefore has its natural termination. That the dissolution or determination of an agency may be effected by the extinction of the subject matter of the agency. Story on Agency, Secs. 481, and 499; Ewell’s Evans’ Agency, p. 132; Fitch’s, The Real Estate Agent, 50, 1 Am. Lead. Oases, 711, (5th Erl.); Iowe v. Thiel, 25 La.

The constitution of the United States declares no person shall be ‘ ‘deprived of life, liberty or property without due process of law.” The legislature cannot pass any law inconsistent with the constitution or laws of the United States. Organic Act, Sec. 1851. What is due process of law?

The facts are stated in the opinion. The plaintiff had unquestioned power, under the law's of Wisconsin, to discount promissory notes. Laws of Wis., 1852, Chap. 479, (Abs. p. 13.) ‘ ‘To discount includes to buy, for discounting is at most, but another term for buying at a discount. ’ ’ Tracy v. Talmage, 18 Barb. 456. The purchase of a promissory note in the manner disclosed by the evidence in this case is a discount and not ultra vires of the plaintiff corporation.

Writ of certiorari to the district court of Sixth judicial district, and William H. Francis, Judge. A special appearance to object to the jurisdiction of the court, does not waive service of summons. Newlove v. Woodward, 4 N. W. Rep. 237; 5 N. W. Rep. 1034; Schwab v. Mabley, 11 N. W. Rep. 294. “The appointment of receivers in equity takes the place of attachment proceedings at law.” Todd v. Lee et al. 15 Wis. 365.

Plaintiff in his testimony expressly admits the delivery of the goods and his receipt therefor. It is undisputed that the agent knew nothing of the arrangement with the baggage man Barr, by which the goods were left in the company’s warehouse, and absolutely no evidence that Barr had any authority to bind the company by any arrangement for storage of the goods.

The facts appear iu the opinion. Delay does not exonerate a surety. Civil Code Sec. 1668 Oral evidence was competent to explain the circumstances un der which the letters were written. Greenleaf Ev. Sec. 297 Civil Code Sec. 938; Pearson v. Post, 2 Dak. 220. The alleged notice by the surety to the creditor was insufficient.

Plaintiff and defendant were sued by one Barnes for taking certain oats from Barnes’ land by mistake, and judgment for the value of the oats recovered, which was paid by this plaintiff. The oats so taken were appropriated by defendant Klaus. Plaintiff Bill brings this action to recover from Klaus the amount paid to Barnes on the judgment, being the value of the oats so received and appropriated by Klaus.

<p>1. Foreign corporation — transaction óf business by — appointment of agent.</p> <p>The acceptance of notes within this territory by a foreign corporation, in settlement for sales of merchandise made in its own state, is not such a transaction of business as is inhibited by See. 567, Civil Code.</p> <p>2. Same. May sue in this territory without compliance.</p> <p>A foreign corporation not transacting business in this territory may sue in our courts without having first complied with the provisions of Sections 567 and 569, civil Code, relating to filing its articles of incorporation and appointment of an agent; citing 2 Dak. 280.</p>

<p>1. PRE-EMPTORS OK PUBLIC LANDS — COURT OK LAW — NO JURISDICTION TO TRY QUESTIONS INVOLVING .RIGHT TO ENTER LANDS.</p> <p>A court of law cannot, while a contest is pending before the United States land office between rival pre-emptors, or prior to any decision of the United States land department, hear and determine a contestant’s right to pre-emption, in an action to determine his right of possession of public lands, under the provisions of Sec. 650, Code Civil Procedure.</p> <p>2. Public domain — pre-emption settlers — no rights except as to LANDS ACTUALLY IMPROVED AND OCCUPIED.</p> <p>Government, lands settled upon by pre-emptors remain a part of the public domain until final entry and payment therefor; and a pre-emptor acquires no rights outside of the lands actually settled upon and occupied by him as against other settlers upon the tract embraced in his entry.</p> <p>3. Same — possession.</p> <p>To confer any rights upon a settler under the pre-emption law, his prior possession must be actual — constructive possession is not sufficient.</p> <p>4. Same — TRESPASSERS.</p> <p>Settlers upon the same quarter section or tract of land, are trespassers only when they intrude upon the actual possession and improvements of another.</p>

Special appearance and motion to vacate judgment for want of jurisdiction of defendant. The facts as found by the cburt upon the record submitted are sufficiently stated in the opinion. An unauthorized appearance of an attorney for the defendant not served with process, without fraud or collusion, is a good appearance and confers jurisdiction on the court.

<p>1. Cross-examination- — repetition of evidence — refusal to permit — not ERROR.</p> <p>When a witness on cross-examination has testified to a certain fact, it is not error on the part of the trial court to refuse to permit a repetition of such evidence.</p> <p>2. Evidence — objection to — error cured.</p> <p>Where an objection to evidence is sustained, but it appears elsewhere in the record that the same evidence has been received, the error if any is cured.</p> <p>3. Bona fide vendee — may pass good title to one having notice of fraud.</p> <p>The bona fide vendee of a fraudulent vendor may pass a good title to one having notice of the original vendor’s fraudulent intent, and it is not error to refuse an instruction which ignores this rule.</p> <p>4. Same — instruction—assuming facts.</p> <p>It is not error to refuse an instruction assuming facts which should be submitted to the jury for determination; so held, where an instruction assumed that two purchases were one transaction.</p> <p>5. Request to charge — embraced in general charge — refusal not ERROR.</p> <p>Where the substance of a request to charge is fully covered by the instructions given by the trial judge of his own motion, it is not error to refuse such request.</p> <p>6. Instructions on subject of fraudulent transfer — stated and approved.</p> <p>7. Whole charge taken together.</p> <p>The whole charge to the jury must be taken together; and when, as a whole, it gives a full and correct statement of the law, an isolated part of it, which by itself might be considered erroneous, will not vitiate the charge as a whole.</p> <p>8. Claim and delivery — form of verdict.</p> <p>In an action of claim and delivery a verdict general in form, and not finding specially on each issue in accordance with the statutory direction, may be regarded in legal effect as finding for a party on all the issues; and will be held good as against an objection that “the judgment rendered is contrary to law, in that it is not supported by the verdict.”</p>

The material facts are fully stated in the opinion. In foreclosures by advertisement the statute must be strictly complied with.

<p>1. Justice's court — verdict of jury — judgment on — ministerial ACT — APPEAL WILL LIE.</p> <p>The entry of judgment by a justice of the peace, upon the verdict of a jury, under our code, is a merely ministerial act. The verdict of the jury .in such case being itself the judgment of the law, an appeal will lie without the formal entry in the justice’s docket of a judgment.</p>

Order overruling demurrer. Does the proviso of Section 2 of the statute extend back and modify Section 1, an independent section. The courts cannot give a construction inconsistent with the plain words of the statute. Cantell v. Owen, 14 Maryland, 215; 7 Pa. State, 144, 7 Crauch, 52; 6 Barn. & Cres. 467; 7 Id. 563; 7 Q. B. 178; 6 A. &E. 1; 12 A. &E. 648; Sedwick Stat.

Writ of error to the district court of Moody county. In criminal' actions the purpose of the record is to preserve the memory of those proceedings, which are deemed in law essential to justify the punishment. Hence it must affirmatively show the offense, the sentence and all the steps, without which the sentence wouid be unlawful. 1 Bishop Grim. Pro.

<p>1. Assignment for benefit of creditors — inventory—verification OF — DEFECTIVE—NO TITLE VESTS IN ASSIGNEE.</p> <p>Where an insolvent makes an assignment for the benefit of his creditors; but fails to make and file with the inventory an affidavit complying with the requirements of Section 2035, Civil Code, no absolute title to the assigined property vests in the assignee.</p> <p>2. Same — ATTACHMENT.</p> <p>An attachment of. property in the hands of an assignee prior to the filing of the inventory and affidavit required by statute, is not premature, but may be defeated by a compliance with the provisions of law requiring the filing- of the inventory and affidavit within twenty days after the assignment.</p> <p>3. Title in assignee — inchoate.</p> <p>The purpose of the legislature was to require an assignor to make, and properly verify, and file the inventory, and record the assignment, as a condition precedent to the vesting of title absolute in the assignee. And while execution and delivery of the assignment vests an inchoate title in the assignee, a failure to comply with the other condition of the statute defeats the inchoate title, and renders the assignment void.</p>

<p>1. Notice op appeal — service on clerk — piling not service.</p> <p>The filing oí a notice of appeal in the office of the clerk of the district court, is not such a service of the notice on the clerk as is contemplated by Sec. 407, Code of Civil Procedure. Such service must be by copy of the notice. Appeal dismissed.</p> <p>2. Appeal bond — signed by practicing attorney.</p> <p>Whether an appeal bond signed by practicing attorney is valid, r Query.</p>

The facts are stated in the opinion of the court. As I understand the law it is well settled that an unrecorded deed takes preference over an attachment, for the reason among others that an attaching creditor cannot get any better title or interest in property than the person against whom the warrant of attachment runs, and another that an equitable title takes preference over a mere legal one. Drake on Att. Sec. 234; Story v. Black, 1 Pac.

It certainly does not savor of injustice to require an officer to pay, after he has by an unlawful levy brought on an expensive lawsuit, only the amount which the statute declares he shall pay before the levy is made, viz.,: the amount of the mortgage debt. The rule laid down by the trial court is fortified by numerous precedents, some of which are found in the decisions of the supreme court of California.

<p>Appeal from the district court of Burleigh county.</p>

<p>1. Witness — cross-examination on — in homicide — restriction-held ERROR.</p> <p>On a trial for homicide, a witness for the prosecution, being the only person present at the shooting, on cross-examination for the purpose of affecting her credibility, was asked certain questions tending to show that she had married one A. at the age of thirteen years and had never been divorced from him; that thereafter she had lived with one B. for several years as his wife, until he, becoming jealous, shot and dangerously wounded her and then shot and killed himself; that subsequently she had lived with deceased as his wife for a time, and then married him; such cross-examination being excluded by the trial court, Held, error.</p>

The board of county commissioners are not a court for any purpose, and can exercise no judicial functions or powers whatsoever, and any act of the territorial legislature attempting to confer such powers upon them is in direct conflict with the or-' ganic act, and void. Section 1907 of the Organic Act; Rupert v. Commissioners, 2 Pac. 718; Hedges v. Commissioners, 1 Pac. 748; Fulkerson v. Stevens, 1 Pac. 261; Cartwright v. Bear River A. & W. Co., 30 Cal. 580.

<p>Appeal from district court of Hand county. Errors of law.</p> <p>No briefs on file.</p>

The trial court found among other findings of fact, that defendant, Alvin Fox, on October 6, 1885, purchased from Wm. H. O’Reilly the 4218 shares of stock, said purchase having been accomplished through a memorandum in writing executed by O’Reilly on Sept. 15, 1885, authorizing Fox to sell such stock and apply the proceeds on the indebtedness for which the stock was pledged. Said sale was made by Fox to himself after O’Reilly’s death.

<p>1. Mode of trial — stipulation as to — binding on parties — Pore-closure of mechanics’ lien.</p> <p>In an action to foreclose a mechanic’s lien, where the parties stipulate for a trial'by jury upon the issues made by the pleadings, the verdict of the jury and judgment of the court will stand, notwithstanding the fact that the mode of trial adopted by the parties may not. in all respects be in accord with the ordinary practice in such cases, if the verdict and judgment are warranted by the law, pleadings and evidence.</p> <p>2. Submission of law question to jury — not error, when.</p> <p>Neither the submission by the court of a question of law to the jury, nor the finding of the jury thereon is good ground for exception or assignment of error, provided such finding of the jury is right in law, under the evidence in the case.</p> <p>3. Verdict — failure to answer special questions — not error.</p> <p>When all the material issues in the case are fairly and fully submitted to the jury under proper instructions, and a general verdict covering all the issues is returned, it is not error to refuse to submit to the jury special questions of fact, nor is it error in such case if the jury fail to hnswer such special questions.</p> <p>4. Mechanic’s lien — for sum greater than is due — effect of.</p> <p>In a mechanic’s lien the claim of a greater sum than is really due after deducting all just credits, will not invalidate the lien unless the claim or statement is wilfully false.</p> <p>5. Judgment — issue of execution on.</p> <p>In an action to foreclose a mechanic’s lien, a judgment which directs the issuance of an execution and a sale of the property to satisfy the lien, in the manner provided by law for the sale of real property under execution, is not erroneous.</p> <p>6. Decree — lien on one building — labor and materials for three BUILDINGS.</p> <p>An assignment of “error in decreeing a liep on the land and one building for labor and materials done and furnished for three buildings,” fails when it appears that the lien adjudged to plaintiff is the identical one filed, described in the complaint, and against the same property described in the-lien and complaint, and no other property.</p> <p>7. Decree- sale of premises — instead of defendant’s interest in.</p> <p>In such case a judgment decreeing the sale of “the premises, ” instead of defendant’s right, title and interest therein, is not erroneous.</p> <p>8. Assignments of error — not based on exceptions.</p> <p>Assignments of error upon the trial, not based upon proper and sufficient exceptions will not be considered.</p> <p>9. Same — different errors in one.</p> <p>Different errors cannot be joined in one assignment; and when an assignment groups three radically different questions alluded to in different portions of the charge to the jury, it will not be considered.</p> <p>10 Jury trial in foreclosure of lien — not a constitutional right.</p> <p>As neither the mechanic’s lien nor the action to enforce it existed at common law, the constitutional guarantee of a rig'ht to a trial by jury cannot apply to such action; and the allowance of a jury trial is a matter of discretion to be determined by the court, and not a matter of right.</p>

The facts are stated in the opinion. The action is for the alleged value of official services, and relief is claimed upon a quantum menoit. It is neither alleged nor claimed that the defendant, by resolution, by-law, oral agreement, or otherwise, agreed to pay plaintiff the sum sued for, or any sum, as compensation for his services as secretary. He cannot in such case recover what the services are reasonably worth.