Volume 6 — Dakota Reports

<p>1. Taxes, Action to Recover Back —When Maintainable.</p> <p>Under § 78, chap. 28, Pol. C., providing that “when, by mistake or wrongful act of the treasurer, land has been sold on which no tax was due at the time, the county is to save the purchaser harmless by paying him the amount of principal and interest to which he would have been entitled had the land been rightfully sold.” Held, that where the treasurer sold land not subject to taxation (property of the United States) the county was liable to the purchaser for the amount paid and the statutory interest, thirty per cent per annum. Tripp, C. J., dissenting.</p> <p>2. Appeal — Practice — Rehearing, Jurisdiction to Grant.</p> <p>Where the remittitur has been sent to and filed in the court from which the appeal was taken, without fraud or mistake, the supreme court has no jurisdiction to grant a rehearing.</p> <p>Reporter: —At the February Term, 1888, the October Term, 1887, not having been held, the appellant made a motion for a rehearing. It appeared that the remittitur had been sent down and filed in the court below, thereupon the court made the following order:</p>

W. B. McConnell, Judge. This was an action by a mortgagee to recover possession of the mortgaged chattels, commenced the 9th day of June, 1883. The case was called for trial on the 11th day of December, 1884, and the defendant withdrew his answer, whereupon the plaintiff at that time took judgment according to the prayer of his complaint, being the ordinary judgment in claim aud delivery.

C. S. Palmer, Judge. This was an action by Alfred M. and Emily J. Hodgdon, plaintiffs, against L. E. Davis, defendant, to set aside a foreclosure sale, and in the event that relief was denied, for an accounting and a right to redeem. The case was determined below by the sustaining of a demurrer to the complaint..

Charles M. Thomas, Judge. • This was a mandamus proceeding by the territory on the relation of Ben. Baer and Harris Franklin, copartners, as Franklin & Baer, plaintiffs, against D. A. McPherson, S. B. Crist and F. M. Allen, as the board of county commissioners of the county of Lawrence, Dakota Territory, defendants, to compel them, as such board, to fix the amount of the county retail liquor license in the City of Deadwood, Lawrence county.

<p>APPEAL from the district court, - Walsh county; Hon. W. E. McConnell, Judge.</p> <p>This was an action by P. E. Sandager against Walsh county to recover certain conmissions. The court below sustained a demurrer to the complaint, and the question here presented was the sufficiency of the complaint to constitute a cause of action. It alleged that the defendant county was a public corporation, and that during the periods mentioned therein plaintiff was its treasurer; that on the 25th of May, 1885, it issued its bonds for $25,000, to build a court-house and jail; that on or about the 30th of June, 1885, the bonds were sold by the board of county commissioners of said county for $25,051, and said sum was paid over to the plaintiff as such treasurer; that plaintiff, as such officer, on or about the 30th of December, 1885, had duly disbursed the whole of said sum at the direction of said county, and that said county thereupon became and was indebted to the plaintiff for $1,002.04, being four per cent of said amount; that he had duly presented a claim to said county for such amount and it had rejected the same, and that the same was wholly unpaid. The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and the plaintiff electing to stand on his complaint, a judgment of dismissal was entered and the plaintiff appealed.</p> <p>The statute under which the commission was claimed is stated in the head-note.</p> <p>The demurrer was sustained on a dictum, found in Territory v. Cavanaugh, 3 Dak. 325. Commission is allowed on this fund as well as any other; there is no qualification in the statute. General words are to receive a general construction; if there is no express exception the court can create none. Demarest v. Wynkoop, 3 Johns. Ch. 142; People v. N. Y. C. R. R. Co., 13 N. Y. 80; Story, Confl. L., p. 10.</p> <p>Appellant was not entitled to the commission. Territory v. Cavanaugh, 3 Dak. 325. Any question arising in a case that is discussed and decided is not dictum, but adjudication. 5 Md. 488; 26 id. 261.</p>

W. B. McConnell, Judge. This was an action for the conversion of certain grain by C. D. Bouton against John E. Haggart, sheriff.- The ease was submitted to the court below upon the pleadings and an agreed state of facts, from which it found that Redmon & Pish, on the 4th of April, 1884, bought from the plaintiff (or contracted for) certain land in that county; that in part payment for it they gave him two promissory notes, one for $3,000 and the other for $2,880, both dated…

C. S. Palmer, Judge. This was an action by I). B. Fisk, I). M. Fisk and J. E. L. Frasher, copartners, under the name of D. B. Fisk & Co., against George W. Stone, defendant, on an alleged guaranty.

<p>APPEAL from the district court, Cass county; Hon. W. B. McConnell, Judge. !-</p> <p>This was a proceeding in mandamus by the Territory on the relation of Chas. F. Templeton, attorney-general, plaintiff, against the board of county commissioners of Cass county, defendant, to compel it to recognize the commissioner districts as established under chap. 33, Special Laws, 1883, as the districts of the county.' It appeared that Cass county was organized in 1873; that on the 28th of March, 1883, the county had been divided into five commissioner districts by the commission created under that act; that on the 23d of September, 1884, the board of county commissioners of the county finding that the boundaries of districts 4 and 5, in some instances, conflicted with certain civil township organizations, which,under section 120,chapter 112, Laws 1883, were made election precincts, “ thus disfranchisinglegal voters in the choice of their district commissioners,” changed the boundaries of these two districts; that on the 3d of January, 1887, said board, at a regular session, passed a resolution prescribing the boundaries of all of the districts which were different from, those fixed by the commission; that on the 26th of September, 1887, the July session of the board having been regularly continued to that time, re-adopted their resolution of January 3d, as some doubts as to its validity had been expressed. At the hearing on the return to the alternative writ, the court, finding the facts as above, concluded that the action of the board on the 23d day of September, 1884, the 3d day of January, 1887, and the 26th day of September, 1887, “ was, upon each and all of said occasions, without warrant of law and void ” and, that the plaintiff was entitled to a peremptory writ of mandamus commanding said board “ to recognize in all of their proceedings the commissioner districts as limited, bounded and defined by the resolution and authority of the commission, established, created and acting under the Special Laws of 1883.”</p> <p>After the entry of final judgment the defendant appealed.</p> <p>The board had the power to change the boundaries of the districts. See §§ 1, 2, chap. 4, L. 1868-9 ; §§ 1, 2, 3, 4, 6, chap. 27, L. 1874-5; §§4,15,16, 18, chap. 21, Pol. C.; chap. 40, L. 1885. A mere change in the phraseology of these successive statutes raises no presumption of an intent to change the law. McDonald v. Hovey, 110 TJ. S. 619, 4 Sup. Ct. Rep. 142; State v. MacColl, 9 Neb. 203, 2 N. W. Rep. 213; Fullerton v. Spring, 3 Wis. 667; Wright v. Oakley, 5 Mete. 400. From the organization of the county till the revision in 1877, without question, the commissioners could change the lines of the districts once every three years. It is equally clear their authority was continued by section 4, chapter 21, Pol. C. See, also, § 16, same chap.; §§ 21, 26, chap.' 40, L. 1885. There is nothing in chapter 33, Laws 1883, inconsistent with this power. Repeal by implication is not favored. Plain v. Bailey, 25 Ind. 165 ; Oohill v. State, 37 id. Ill; Taylor v. Board, 67 id. 383.</p> <p>After the organization and division of the county the commissioners had no power to change the districts. A county is a body corporate for civil and political purposes only. § 13, chap. 21, Pol. C.; Dill. Mun. Corp. 30, 31; Cooley, Const. L. 295 ; Tread-way v. Schnauber, 1 Dak. 238. Its powers are not so extensive as those of a city. Dill. 30; State v. Commissioners, 25 N. W. Rep. 91. They have only the powers expressly given, and such' as are essential to the objects of their creation. Clay Co. v. Simmons, 1 Dak. 391; Yincent v. Nantucket, 12 Cush. 103; State v. Smith, 31 la. 494; Minture v. Larue, 23 How. 435 ; Dill., § 55 ; Thompson v. Lee, 3 "Wall. 327; Logan v. Pyne, 43 la. 524. In view of these rules, chapter 21, Pol. C., chapter 33, Special Law 1883, and chapter 40, Laws 1885, are the only sources from which the power claimed can be derived. Chapter 40, Laws 1885, has no application to Cass county. It was intended for the organization of new counties. In the statutes referred to prior to the revision no such power is expressly given, nor is it by section 4, chapter 21, Pol. O. Clearly it is not in express words, nor is it incident to the powers granted, for those are to the “ commissioners appointed under this act.” The power is not necessary for the purposes of the corporation. Section 16, chapter 21, Pol. C., provides the districts are to “ continue as now constituted until changed as provided by law.” The manner of such change was afterward provided, chapter 33, Special Laws 1883, this change was hadit was different from that provided by section 4, chapter 21, Pol. C., and all inconsistent acts were repealed, appellant was, therefore, left without power to change the boundaries. .</p>

W. B. McConnell, Judge. This was' an action by E. J. McMahon and C. M. MacLaren, copartners, as McMahon & MacLaren, plaintiffs, against A. L. Plummer and A. L. Hanson, copartners, as Plummer & Hanson, defendants, on a bank check of the latter to the former for $281. The defendants were bankers, and the check was drawn upon themselves.

James Spenoer, Judge. The various statutes relative to the case and the indictment are stated in the head-notes. The court below, over defendant’s objection, permitted two witnesses whose names were not indorsed on the indictment to testify in chief for the territory. The defendant had no previous notice these witnesses would be called, and he claimed, from all of the evidence brought to this court, they were two of the most important witnesses for the prosecution.

W. B. McConnell, Judge. This was an action by W. F. Perry and E. A. Perry, partners, under the name of Perry Bros., to recover of Bruno Beaupre the value of a certain crop of grain mortgaged to them, which they claimed he had converted to his own use. The plaintiffs had judgment and the defendant appealed.

O. S. Palmer, Judge. This was an action by Porter P. Peck, plaintiff, against the Sioux Falls Brewing Company, W. E. Eurbeck, J. Leslie Thompson as receiver of the First National Bank of Sioux Falls, Moriz Levinger and others to foreclose a mortgage. The complaint alleged the execution of the mortgage by the Sioux Ealls Brewing Company to W. E. Eurbeck, cashier, for the benefit of the bank, default in its conditions and its assignment to the plaintiff.

Jas. Spencer, Judge. This was an action on a policy of insurance for a loss sustained by fire. The action was by an assignee, the assignment having been made after the loss. The plaintiff recovered jndgment and the defendant appealed. The defendant claimed the policy had been avoided; in fact, that it was never in force from the assured’s omission to comply with its conditions requiring him to inform the company of incumbrances on the property.

Chas. M. Thomas, Judge. This was an action by Daniel Sturr, plaintiff, against Charles W. Beck, defendant, to restrain him from interfering with a water ditch on his (defendant’s) land, used by plaintiff to carry water to his land, and for damages sustained by reason of interference with the ditch and water. The defendant had findings and judgment in his favor, and the plaintiff appealed.

C. S. Palmer, Judge. Replevin, M. E. Rudolph, plaintiff, and J. M. North, defendant. The defendant had judgment and the plaintiff appealed. The plaintiff brought this action to recover the possession of a stock of goods that the defendant had taken on a writ of attachment. Plaintiff based his right to recover upon two chattel mortgages exécuted by the defendant in the attachment.

C. S. Palmer, Judge. This is an appeal from an order vacating a judgment by default.

O. S. Palmer, Judge. The'transcript above referred to recited the filing of an information (contents not given), the issuance of a warrant, the arrest of the defendant, his appearance, the hearing and the finding of the justice, which was as follows : “ It appearing to me that the offense charged in the information has been committed, and that there is sufficient cause to believe that A. B. Jones [the defendant] is guilty thereof, I order that he be held to answer the same…

Chas. M. Thomas, Judge. This .was an action for killing a steer and injuring a heifer and a calf. The accident occurred in Custer county, Dakota, in September, 1886. The plaintiff, in his complaint, alleged that it was caused by the negligence of the defendant. This was denied by the company, and it alleged that the plaintiff was guilty of contributory negligence in allowing his stock to trespass upon the track.

James Spencer, Judge. This was an election contest brought by tbe appellant Adams, on leave of court, under § 6, chap. 54, L. 1885, against the respondents, F. B. Smith, W. I. Steere, E. J. Mather, Horace Barnard and C. W. Swift, as county commissioners of Brown county, to contest the validity of an election, held July 12,1887, to re-locate the county seat of that county. .

Hon. James Spencer, Judge. This is an action to recover back money paid for, and under a ferry lease, on the ground the lease was void. At the trial the court sustained an objection to the introduction of any evidence under the complaint on the ground that it did not state facts sufficient to constitute a cause of action.

Chas. M. Thomas, Judge. This is an appeal from a judgment entered upon an agreed state of facts, wherefrom it appears that the county commissioners of Pennington county advertised for bids “ for the county printing for the year 1887; ” that the bid of the plaintiff was accepted April 11, 1887; that as to the matter in controversy it was that he would publish “ all notices in the Daily or Weelcly Journal at the established legal rates approved March 11,1887that he published…

Chas. M. Thomas, Judge. This was an action by the appellant, Peter O’Neil, to recover the possession of certain, horses, cattle, wagons, grain and farm machinery from one John W. Murry. The complaint contained the usual allegations of ownership, right to possession, that the property had been wrongfully taken and was so detained by the defendant.

James Spencer, Judge. This was an action by the respondent, as transferee, against the appellant upon its cashier’s check. Held: “There is no evidence * * * that the plaintiff had notice of any irregularity in the issuance’ of this check, or that there was any defense to it in the hands of any one, until the evening of January 13.” It, therefore, directed a verdict as requested.

W. E. Church, Judge. This was an action by George Obern against Sarah A. Gilbert and. Nathan S. Gilbert, to foreclose a mortgage. The mortgage was given to secure the payment of fourteen promissory notes of $114.28 each. It was dated September 1, 1878, matured in fifteen months, and was upon three lots, one of which was a homestead. It contained a provision that upon the payment of $1,000, the homestead lot should be released.

J. E. Garland, Judge. This was an action by the respondent Herman N. Luce against the appellant company, to recover damages and a statutory penalty for the company’s refusal to satisfy a certain mortgage. It appeared that in September, 1885, the plaintiff had certain liens upon his homestead, amounting to about $1,700, some of which were not then due.

J. E. Carland, Judge. This was an action in claim and delivery by respondent Alexander McKay, against the appellants, Theodore Shotwell, A. M. Clerihew, Vm. Lothman and Wm. Lee, sheriff, to recover possession of a stock of goods upon which respondent had a mortgage. Appellants, defendants below, took the goods from- the possession of respondent, plaintiff, on an attachment against his mortgagors on the ground that the mortgage was fraudulent as against them.

ENRON to the district court, Beadle county ; Hon. James Spencer, Judge. The plaintiff in error, Irving W. Ely, was indicted for obtaining property under false pretenses. It appeared one Miles, the prosecuting witness, sold to him certain personal property for $500. Part of the consideration paid, $220, was cash, and the balance consisted of a noté, $280, payable to the order of Ely, secured by a chattel mortgage, which Ely assigned to Miles.

ERROR, to the district court, Beadle county; Hon. James Spencer, Judge. The plaintiff in error, Benjamin King, was indicted for an assault with intent to do great bodily harm. To this indictment he entered a plea of not guilty, and also a plea of former conviction as it was termed in the record.

C S. Palmer, Judge. The court was not justified in directing the jury to find for the plaintiff.

<p>APPEAL from the district court, Burleigh county ; Hon. W. H. Francis, Judge.</p> <p>An action to foreclose a mechanic’s lien is an action at law. Marsh v. Fraser, 27 Wis. 596 ; Hall v. Hinckley, 32 id. 362; Wilier v. Bergenthal, 50 id. 474, 7 N. W. Bep. 352; State v. Eads, 15 la. 117; Cole v. Colby, 57 N. H. 100. The complaint states a legal cause of action, asks a personal judgment and such judgment was rendered. Defendant was entitled to a jury trial. Pomeroy, Bern. (2d ed.) 86.</p> <p>The question presented is, can a foreign corporation, without complying with our laws as to such corporations, acquire a mechanic’s lien upon the property of one with whom it sustained no contractual relation ? The state has the right to condition the rights of such corporations. Bank v. Earle, 13 Pet. 519; Paul v. Yirginia, 8 Wall. 168; Ducat v. Chicago, 10 id. 410 ; Doyle v. Cont. Ins. Co., 94 IT. S. 535; Canada O. B. B. Co. v. Gebhard, 109 id. 537, 3 Sup. Ot. Bep. 363; Cooper M. Co. v. Ferguson, 113 IT. S. 727, 5 Sup. Ct. Bep. 739. Plaintiff to have been entitled to any relief, ought to have complied with our laws. Williams v. Cheney, 3 Gray, 215, 501; -/Etna Ins. Co. v. Harbey, 13 Wis. 395; New Hope D. B. Co. v. P. S. Co., 25 Wend. 648 ; Thorn v. Travelers’ Ins. Co., 80 Pa. St. 27 ; Buxten v. Hamblen, 32 Me. 448 ; Cin. M. H. A. Co. v. Bosental, 55 111. 85 ; In re Corn-stock, 3 Sawy. 218.</p> <p>The plaintiff is estopped to enforce the lien it claims. There is no substantial conflict in the evidence; but if the court should find there was, the rule announced in Canfield v. Bogle, 2 Dak. 464, would not obtain, because the evidence was taken before a referee and this court is in the same position as the court below. Wilson v. Cross, 33 Cal. 61; Lander v. Beers, 48 id. 536, 547; Canning v. C. P. B. B. Co., 50 id. 168. The statements made by plaintiff’s agent waived the lien. Parliman v. Young, 2 Dak. 165; Brown v. Bowen, 30 N. Y. 541; Bigelow, 495 ; Bates v. Le Clair, 49 Yt. 234; Marston v. Heffer, 63 111. 403; Payne v. Burnham, 62 N. Y. 73; Newman v. Muller, 20 N. W. Bep. 845; Eikenberry v. Edwards, 24 id. 571; Sessions v. Bice, 30 id. 735 ; Ward v. Berkshire L. Ins. Co., 9 N. E. Bep. 363 ; Kelley v. Fiske, 11 id. 445.</p> <p>An action to foreclose a mechanic’s lien under our statute is not an action at law — one for money only. A relief summons is required and the whole proceeding is equitable. While a personal judgment is sometimes rendered that is incidental merely.</p> <p>The plaintiff had complied with our laws with reference to foreign corporations. If it had not done so it could maintain this suit. American B. Co. v. Moore, 2 Dak. 280; Fuller & J. M. Co. v. Foster, 30 N. W. Kep. 166; Cooper M. Co. v. Ferguson, 113 IT. S. 727, 5 Sup. Ct. Kep. 739,</p> <p>The court would not be authorized in holding that the plaintiff was estopped from asserting its lien. 2 Herman, 742; Brandt v. Virginia C. & I. Co., 93 H. S. 336; Henshaw v. Bissell, 18 Wall. 225 ; Sutton v. Wood, 27 Minn. 362, 7 N. W. Rep. 365 ; Combs v. Cooper, 5 Minn. 200 (Gil. 200); Whiteacre v. Culver, 6 id. 297 (Gil. 203); Coldman v. Pierce, 26 Minn. 123, 1 N. W. Rep. 846.</p>

C. M. Thomas, Judge. Plaintiff’s entry was unlawful from the beginning. 3 Blackst. 171. The owner of land, wrongfully kept out of possession, may, if he can, regain and maintain his possession.

The only question is, whether § 2, Laws 1885, p. 191, in so far as it authorizes the taxation of personal property in unorganized counties, is constitutional.

L. K. Church, Judge. This was an action by the St. Croix Lumber Company against L. C. Mitchell, C. H. Hatch and ¥m. Tenant to foreclose a mechanic’s lien.

Chas. F. Templeton, Judge. This was an action by Sumner Wallace, plaintiff, against James K. Swan, defendant, as sheriff, to recover $850.55, alleged to have been realized by defendant on the sale of certain property plaintiff had previously caused to be attached.

C. S. Palmer, Judge. This was an action in claim and delivery by Frank M. Dean, plaintiff, against the First National Bank of Canton, Dakota, defendant, to recover possession of a part of a general stock of merchandise. The only real issue in the case was the right of property. The plaintiff claimed title and the right to possession under a purchase from M. B. Dean & Co. The defendant claimed the right to possession under a chattel mortgage from the same parties.

Chas. E. Templeton, Judge. This was a proceeding in the nature of quo warranto in the name of the territory upon the relation of the district attorney of Pembina county, against J. A. Armstrong, James Weeks and Thomas Hodgson, to inquire by what authority they were exercising the offices of supervisors of the township of Bathgate, Pembina county, Dakota.

Chas. F. Templeton, Judge. The defendant was indicted and convicted of the crime of murder. At the trial one Andrew Anderson was one of the principal witnesses of the homicide, and testified for the territory very fully as to it. On his cross-examination he was asked if he was not “ drunk ” at the time. The prosecution objected to the inquiry on the ground that it was not proper cross-examination. The court sustained the objection and the defendant excepted.

Boderick Bose, Judge. This was a proceeding to obtain certain money that had been paid into court in certain condemnation proceedings.

rjlHIS was an original proceeding in habeas corpus. The petitioners for the writ were Charles D. C. Rodgers and George A. Shipton. It was alleged in the petition that they were illegally imprisoned in the town of Lokota, Nelson county, Dakota, by Frank K. McCoy, sheriff, under a joint final sentence and commitment by a justice of the peace of that county, for “having peddled and sold from house to house, jewelry, contrary to the provisions of section 2433,” Comp.

<p>1. Chattel Mortgages — Filing, Effect.</p> <p>In this jurisdiction the filing of a chattel mortgage is equivalent to an actual delivery and continued change of possession of the property mortgaged, as such act saves it from the operation of section 2024, C. C., declaring fraudulent and void all transfers not accompanied by an actual and continued change of possession of the things transferred.</p> <p>2. Same — Possession — Fraud — Burden of Proof.</p> <p>Where a chattel mortgage has been duly filed, the fact that the mortgagor remains in possession of the property, furnishes, of itself, no evidence of fraud. In such case, where a creditor attached the mortgage for fraud, it was held proper to instruct the jury that the burden of proof was upon him to establish that it was fraudulent.</p>

W, B. McConnell, Judge. The only question is whether a tender of the amount of the mortgage'debt made and kept good under sections 848, 849, C. 0., constitutes such a satisfaction of the mortgage as will render the mortgagee liable for the penalty prescribed by section 1735, in ease he refuses to satisfy the mortgage. The statute is penal and must be strictly construed.

W. B. McConnell, Judge. Action to enforce payment of school orders. Defense, that such orders were issued by the school board without authority. Plaintiff had judgment on trial by the court without a jury, and the defendant appealed.

<p>1. Municipal Corporations — School Districts — Powers.</p> <p>School districts being special statutory creations, have only such implied powers as are necessary to accomplish the purposes of their existence.</p> <p>2. Same — Warrants, Validity.</p> <p>Where the statute, § 29, subd. 4, chap. 14, L.1879, required that the voters of a school district should select a site for a school-house, and the district board, without this having first been done, selected it, built a house and issued warrants therefor without the authority or ratification of the voters, held, the warrants were void.</p> <p>3. Same — Exceeding Revenue.</p> <p>Where by § 29, subd. 5, chap. 14, L. 1879, there was a restriction on the amount of revenue a school district might raise in any one year, and a hoard in issuing certain warrants payable immediately, exceeded this limit, held, the warrants were void.</p> <p>4. Same — Estoppel.</p> <p>A school district, in an action against it on its warrants, will be permitted to defend on the ground that the warrants were issued in excess of its powers.</p> <p>5. Same — Rights and Duties of Purchasers of Warrants.</p> <p>Persons purchasing obligations apparently issued by municipal corporations must see that the powers of the corporation have not been exceeded.</p>

Bartlett Tripp, Judge. Creditor’s bill. Demurrer that the complaint does not state facts sufficient to constitute a cause of action for the reason that the provisions of the Code of Civil Procedure in regard to proceedings supplementary to execution are a substitute for the remedy formerly afforded by creditor’s bills and are exclusive of any other remedy by judgment creditors. The demurrer was sustained fro forma in the district court and the plaintiff appealed.

C. M. Thomas, Judge. The action was brought to recover a balance alleged to be due plaintiff from defendant, for work, labor and services performed, after deducting sundry payments admitted by the complaint “and alleged to have been the only payments made. Defense, general denial. On the trial the court excluded proof of other payments offered on behalf of defendant, to which ruling defendant excepted. Plaintiff had judgment and defendant appealed.

W. B. -McConnell, Judge. The action was to foreclose a mortgage given to secure future advances, and was brought by an assignee. Before the assignment to the plaintiff an agreement as to the amount which had been advanced on the security of the mortgage was made between the mortgagor and mortgagee and was evidenced by the notes of the former for the amount. Prior to this agreement, however, the mortgagor had conveyed the premises to these defendants.

James Spencer, Judge. At- common law in actions of trover the measure of damages was the value of the property at the time of the conversion with the interest up to the time of the judgment. Shepard v. Pratt, 16 Kan. 209; Burney v. Phelps, 3 Rich.

W. B. McConnell, Judge.. A party claiming a homestead must be the owner of it. This position is strengthened by the definition of ownership found in the C. C., § 159. An undivided ownership is inconsistent with the homestead act and this definition. This view is in accord with the authorities.

<p>1. Appeal — Beview — Findings — Insufficiency of the Evidence.</p> <p>Where there is no substantial conflict in the evidence and the findings are against the weight of the evidence, an appellate court will reverse a judgment founded on such findings.</p> <p>2. Same — Specific Performance — Contract —Validity.</p> <p>In an action for specific performance the plaintiff obtained a decree on the contract, modified, as he contended; but the contract, however, was that the defendant, in consideration of the plaintiff’s undertaking to have the county in which the land was situated organized, the county seat placed near the land and a certain railroad constructed there, agreed to convey to him sixty acres in a certain quarter section less such amount as he should find necessary to give the railroad .company to induce it to come, and (after the county had been organized and the county seat located as contemplated) the plaintiff contending that the company had agreed to come for forty acres, and that the original contract had been modified by parol so that he was to have the balance of the sixty acres in another quarter section and that there had been a part performance of the contract as modified, but the evidence on these issues showing merely the expression of opinion by the agent of the company that he thought the road could be induced to come for forty acres, and it appearing the defendant had obligated himself to the company to convey to it sixty acres to induce it to come, and that he had not been released from that obligation, and it also appearing that the alleged part performance could as well be referred to the defendant’s obligation to the company as to the alleged modified contract, held, the decree should be reversed and that the contract itself was not of a character to appeal strongly to a court of equity for enforcement. Palmer, J., dissenting.</p> <p>8. Same — Part Performance.</p> <p>. An act in part performance must be with reference to the particular contract sought to be enforced.</p> <p>4. Contract — Modification — Sufficiency of Evidence.</p> <p>Tlie modification of a written contract by a parol agreement must be clear and satisfactory.</p>

Roderick Rose, Judge. The intention of the legislature was to submit the act to the approval of a certain body of voters interested in the measure. That is, to a single body of voters residing in different counties who were to vote upon the question in different voting precincts at the call and supervision of distinct boards of commissioners.

C. S. Palmer, Judge. The corporate existence of district 64 was in issue. It was in-, cumbent on the plaintiff to establish that all requirements of the statute had been complied with. Waterman, Cor., §§33, 38, 143, 144 ; Bigelow v. Gregory, 73 111. 197. By the statute (§ 10, chap. 40, Pol. C.) under which these distriets are organized the first requirement'is a petition of a majority of the citizens residing in the districts to be affected. This is jurisdictional.

<p>APPEAL from the district court, Pennington county; Hon. Chas. M. Thomas, Judge.</p> <p>The court erred in admitting in evidence the certificate of the engineer. Butler v. Tucker, 24 Wend. 447; Smith v. Brady, 17 N. T. 173; H. S. v. Robeson, 9 Pet. 319 ; Stewart v. Keteltas, 36 N. T. 388; Wyckoff v. Myers, 44 id. 143; Bliss, Code PI.,. §§301-2; Pom., §§ 517, 524, 554; Johnson v. Moss, 45 Cal. 515; 1 Gr. Ev., § 58; Stone v. Knowlton, 3 Wend. 374; Snell v. Moses, 1 Johns. 96 ; Crawford v. Morrell, 8 id. 253 ; Saxton v. Johnston, 10 id. 418; Lowen v. Winters, 7 Cow. 263; Whittaker y. Smith, 4 Pick. 83; Alexander v. Harris, 4 Cr. 299; Barton v. Herman, 11 Abb. (N. S.) 382 ; Schenck v. Powell, 3 Abb. N. C. 42; Smith v. Briggs, 3 Denio, 73; D. & H. C. Co. v. Pa. Canal Co., 50 N. T. 250: Tooker v. Arnaux, 76 id. 397 ; Story, Eq. Jur., § 1457.</p> <p>The certificate was insufficient in its form under the terms of the contract. Stewart v. Keteltas, and Wyckofí v. Myers, and Smith v. Briggs, supra.</p> <p>The contract was invalid: 1. Because no ordinance or resolution of the council for the making it was ever passed, recorded and published as required by the charter. 2. The subject-matter was beyond the powers conferred by the charter. Upon the first proposition, see sections 3, 7, 8, 9 and 13 of the charter, also Indianapolis v. Miller, 27 Ind. 394; City v. Evans, 35 id. 90 ; Steckert v. Saginaw, 22 Mich. 104; Morrison v. Lawrence, 98 Mass. 219; Terre Haute v. Lake, 43 Ind. 480.</p> <p>The contract is ultra vires. A municipal corporation can exercise only those powers granted in express words; those necessarily implied in or incident to the powers expressly granted; those essential— not simply convenient, but indispensable — to the declared objects and purposes of the corporation. Dillon, §§ 89, 457, 953,969 ; Green’s Brice, p. 466; Cooley, Const. Lim., § 192; Clark v. DesMoines, 19 la. 200; Tredway v. Schnauber, 1 Dak. 236; Com. v. B. B. Co., 27 Pa. St. 339; Dunham v. Bochester, 5 Corr. 465 ; Harshman v. Knox Co., 122 U. S. 306 ; Thomas v. W. J. B. B. Co., 101 id. 101; Nashville v. Bay, 19 Wall. 468 ; McPherson v. Poster, 43 la. 48; Steckert v. Saginaw, supra; Zattman v. San Francisco, 20 Cal. 96 ; Herzo v. San Francisco, 33 id. 130 ; Terre Haute v. Lake, 43 Ind. 480 ; Head v. Prov. Ins. Co., 2 Cranch, 127.</p> <p>It is insisted that as the contract has been executed and the city received the benefits it could not now refuse to pay for the work on the plea of ultra vires. It ought to be considered a complete answer to this that no presumption of benefit can arise from the performance of a contract which the council had no authority to make. There can be no ratification except by the party by whom and in the mode in which the act could have been author-' ized in the first instance. Civ. Code, §§ 1349, 1351; Daviess Co. v. Dickinson, 117 IT. S. 657; Dillon, §§ 385, 463; McPherson v. Foster, supra ; Thomas v. W. J. E. E. Co., supra ¡ Floyd’s Acceptances, 7 Wall. 666 ; Herzo v. San Francisco, supra; Com’rs v. Yan Dusan, 40 Mich. 429; Lewis v. Shreveport, 108 IT. S. 282 ; Durango v. Pennington, 7 Pic. 14; Lyddy v. L. I. City, 104 N. Y. 218.</p> <p>In the nature of things there can be no estoppel on the corporation to set up the defense of ultra vires ; Dillon, § 457 ; St. Louis E. E. Co. v. Belleville, 12 N. E. Eep. 680; Nashville v. Iiay, supra; Pettis v. Johnson, supra.</p> <p>The fact that an ultra vires contract has been executed can make no difference. Whiteside v. IT. S., 3 Otto, 247; Hawkins v. H. S., 6 id. 691; Story, Agency, § 307; Dill., § 381; Driftwood Turnpike Co. v. Board, 72 Ind. 226; State v. Citizens S. E. Co., 47 Ind. 407; Bank of Augusta v. Earle, 13 Pet. 519; Dartmouth College Case, 4 Wheat. 656 ; Marsh v. Fulton Bank, 10 Wall. 676; Oakland v. Skinner, 94 U. S. 254; Towii' of Bloomfield v. Charter Oak Bank, 7 S. C. E. 865 ; Delafield v. State of 111., 26 Wend. 192; S. C., 2 Hill, 174; McDonald v. Mayor, 68 N. Y. 23; Dickinson v. Poughkeepsie, 75 id. 74; Smith v. Newburgh, 77 id. 130; Bissel v. Kankakee, 64 111. 249; Miller v. Goodwin, 70 id. 663; Cook v. McCrea, 93 id. 238 ; City of Champaign v. Harmon, 98 id. 491; Davis v. Old Col. K. K., 131 Mass. 258; McCracken v. San Francisco, 16 Cal. 623; Daly v. San Francisco, 13 Pac. Eep. 321; Newberry v. Fox, 33 N. W. Eep. 333 ; Pearce v. Mad. E. E. Co., 21 How. 441; Eogers v. Burlington, 3 Wall. 654; Ottawa v. Carey, 108 H. S. 110; Stichfield v. Ballou, 114'id. 190; Pa. E. E. Co. v. St. Louis E. E., 118 id. 290; Bank of Toledo v. Porter, 110 id. 608 ; Donavan v. The Mayor, 33 N. Y. 291.</p> <p>Those cases in which municipal corporations have been held accountable for money or property received, are only apparent exceptions to the rule. Such accountability is based, not upon any recognition of validity in the contract, but upon express disaffirmance of such validity. It is because the city has received money or property which it had no right to contract for or receive, and, therefore, no right to retain, that it is bound to restore it. But such accountability is limited to these two classes of cases. Dillon, § 460 ; Com’rs v. Van Dusan, supra ; Argenti v. San Francisco, supra; Thomas v. Port Hudson, 27 Mich. 320; see, also, Montgomery v. Plank Road Co., 31 Ala. 76; Delafield v. State, supra; Oakland v. Skinner, 94 TJ. S. 254; Hawke v. Deffebaeh, 115 id. 392.</p> <p>The power to make the contract is given by section 7 of the charter. If the particular act for which the contract was made is not expressly stated in the powers given, it is surely implied, being germane to the general powers of the corporation. Moore v. Mayor, 73 N. T. 246; Chicago B. S. v. Crowell, 65 111. 457; West v. Menard Co., 82 id. 207; Louisiana v. Wood, 12 Otto, 294; Torrent v. Muskegon (Mich.), 10 N. W. Rep. 1'32; Cold-water v. Tucker, 36 Mich. 478.</p> <p>The city having entered into the contract with respondent, he having performed the work and the city received the benefit, it must pay for it. Mahar v. Chicago, 38 111. 273; Hitchcock v. Galveston, 96 TJ. S. 341; Dillon, Mun. Oorp., §§ 448, 457, 480; State v. Citizens S. R. Co., 47 Ind. 407; Pine Grove Tp. v. Talcott, 19 Wall. 679; County v. Amy, 13 id. 297 ; Marsh v. Fulton, 10 id. 684; Port Huron v. McCall, 46 Mich. 574; Moore v. Mayor, 73 N. Y. 246; Little Rock v. National Bank, 98 TJ. S. 308; Thomas v. Port Hudson, 27 Mich. 322; Ohio & M. R. R. Co. v. McCarthy, 96 H. S. 258; Union W. Co. v. Murphy F. Co., 22 Cal. 631; Natoma W. M. Co. v. Clarkins, 14 id. 552; Chester G. Co. v. Dewey, 16 Mass. 94; Moss v. Lead M. Co., 5 Hill, 137; Argenti v. San Francisco, 16 Cal. 262.</p> <p>The certificate of the engineer was properly admitted in evidence and binds the city. Stewart v. Keteltas, 36 N. T. 392; Wykoff v. Meyers, 44 id. 145; Chapman v. Lowell, 4 Cush. 380 ; Smith v. Kahili, 17 111. 68; City v. Hammond, 4 Otto, 98.</p>

Chas. F. Templeton, Judge. Under our Code a mortgage cannot be given upon property not in existence. Comp. L., §§ 4803, 4351, 4356, 2675, 2676, 4346, 3229, 3606, 3242, 3611. These sections are but an epitome ■of the common law, and it is there well settled that such property cannot be sold or mortgaged. Cole v. Kerr, 26 N. W. Rep. 598; Lamson v. Moffett, 21 id. 62, 61 Wis. 153; Long v. Hines, 16 Pac.

Chas. M. Thomas, Judge. This is an appeal from an order setting aside a decree of divorce. The court erred in entertaining the respondent’s motion for the following reasons : 1. There was no notice thereof given to the appellant. 2. There was no appearance for or in behalf of the appellant. 3. The court in no way acquired jurisdiction of the appellant for the purpose of this motion. 4.

Chas. F. Templeton, Judge, Action for damages alleged to have been sustained by the plaintiff by reason of fraud and collusion on the part of the defendants and one Andrew Holman, county treasurer of said plaintiff, by which it is alleged the plaintiff was defrauded and sustained damage. Demurrer was first interposed to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, which was overruled. The defendants answered.

W. B. McConnell, Judge. This was an action to recover damages for personal inj uries sustained by the plaintiff while in the employ of the defendant as second miller, alleged to have been caused by the negligent and defective construction of a flouring-mill, and a failure on the part of the defendant to furnish suitable and safe machinery, and keep the same in proper repair. The facts necessary to an understanding of the case are stated in the opinion.

THIS is an appeal from the district court, Turner county ; Hon. C. S. Palmer, Judge. The action was brought to recover the value of a horse alleged to have been killed by the negligent acts of the defendant, its agents or servants. Upon the trial the plaintiff recovered judgment and the defendant appealed.

W. B. McConnell, Judge. Action, by D. P. McLauren and others against the city of Grand Forks and Jacob S. Eshelman, to have declared void certain tax certificates, and perpetually restrain the defendant from executing and delivering deeds thereupon to the holder of such certificates, on the ground that they were illegally issued. On the trial in the district court the plaintiff had judgment for the relief prayed for, and the defendants appealed.

PPEAL from an order of the judge of the third judicial district discharging the respondent from imprisonment on execution in a civil action. The conclusions of fact drawn by appellant from the evidence are erroneous. The question as to whether or not it appeared upon respondent’s examination that he had disposed of property “ with a design to secure the same to his own use, to hinder, delay or defraud creditors,” is not reviewable here.

Chas. M. Thomas, Judge. Action by Daniel McLaughlin and William R. Steele, substituted for Ambrose G-. Bierce, against the First National Bank of Deadwood, to recover the amount of a certain balance alleged to be due plaintiffs, as assignees of Bierce, on account of moneys deposited. Samuel Cushman, receiver of the plaintiffs’ assignor, the Black Hills Placer Mining Company, filed a complaint in intervention. Yerdict for plaintiffs, and defendant and the intervenor appeal.

W. B. McConnell, Judge. Action by mortgagees to recover damages for conversion of mortgaged property. The alleged conversion consisted in defendant, who was sheriff, levying certain warrants of attachment against the mortgagors upon the mortgaged .property, which had been taken possession of by the mortgagees.

W. B. McConnell, Judge. The plaintiff had violated two provisions in his policy, that prohibiting additional insurance without the written consent of the defendant indorsed on the policy ; and the other with reference to incumbering the property. Either of these conditions, when broken, operated to render the policy void. These stipulations are always regarded as material and with favor. May, Ins., § 364. See, also, C. C., § 1539.

<p>1. Jury — Verdict — Excessive — Appeal — Review.</p> <p>On a claim that a verdict for the value of certain property destroyed by fire was excessive, there was evidence that its value was greater, and again, evidence that it was less than that found by the jury. Held, (there being a substantial conflict in the evidence) the verdict could not be disturbed.</p> <p>2. Appeal — Review — Damages, Remoteness of.</p> <p>Where it was sought to reverse a judgment on the ground that the damages were remote, but the evidence was such that the court would not have been authorized in directing the verdict, and there was no exception to the action of the court in charging the jury on this point, held, the matter was not saved so that it could be reviewed by the appellate court.</p> <p>8. Trial —Case for Jury.</p> <p>Held, that the connection between the two fires (the one alleged to have been negligently set out by the defendant and the one that destroyed plaintiff's property) described on the former appeal, 5 Dak. 444,41 N. W. Rep. 669, was, on the second trial, shown to be such as required the submission of the case to the jury.</p>

James Spencer, Judge. The only question in the case is, has a junior incumbrancer the right to pay off a superior lien and be subrogated to the rights of its holder % Section 1715, C. C., gives this right.

The application was for insurance for five years. It complied with section 1518, sub. 6, C. C. See, also, § 934; Chrisman v. State Ins. Co., 18 Pac. Rep. 466. The insured agreed that all payments should become due and payable immediately if any of them were not promptly met.

Bartlett Tripp, Judge. The only question is, did the omission to build the chimney avoid the policy ? By their contract the application is made a part of it. The effect of this is that what would otherwise be mere representations are converted into warranties. Cushman v. IT. S. Ins. Co., 63 N. Y. 407. Warranties must be strictly and literally complied with. Barteau v. Phoenix Ins. Co., 67 N. Y. 595; Wood, Ins. 313; Byers v. Farmers’ Ins.

<p>APPEAL from the district court, Cass county; Hon; W. B. McConnell, Judge.</p> <p>The action was properly brought against the treasurer alone. Elliott v. Swartwout, 10 Pet. 137; Faulkner v. Hunt, 16 Cal. 167; Meek v. McClure, 49 id. 623; Monson v. Johnson, 51 id. 369; Bank v. Chalfant, id. 612; Smith v. Farrelly, 52 id. 77; Bank v. Chalfant, id. 170; Bank v. Webber, id. 73; Iowa E. E. Co. v. Woodruff, 19 N. W. Eep. 915; Cooley, Taxation, 805, 815.</p> <p>The taxes were void. N. P. E. E. Co. v. Traill Co., 115 U. S. 600.</p> <p>Their invalidity did not appear on the face of the proceedings. The tax certificates issued pursuant to the sale were invalid and constituted a cloud upon the title. Cooley, 780. That the money paid to redeem could be recovered back, see Cooley, 811.</p> <p>There is but a single case (County v. Walker, 8 Kan. 431) holding the contrary. The few cases and dicta appearing to take the opposite view will be found, on examination, to have turned upon one of the following points: 1. The taxes were paid before any attempt had been made to enforce them. 2. The taxes were void upon their face, and would, therefore, be no cloud upon the title; or 3. No protest was made at the time of payment. Winser v. Burlington, 27 N. W. Eep. 241; Thomas v. Burlington, 28 id. 480 ; Erskine v. Yan Arnsdale, 15 Wall. 75; Bruecher v. Port Chester, 101 N. Y. 240; Peyser v. Mayor, 70 id. 497; City v. Martin, 34 Mich. 171; Faulkner v. Hunt, 16 Cal. 167; Mason v. Johnson, 51 id. 612 ; Bank v. Chalfant, id. 369 ; Smith v. Farrelly, 52 id. 77; Stephan v. Daniels, 27 Ohio St. 527, 544; Seeley v. Westport, 47 Conn. 294; C. & N. W. E. E. Co. v. Oconto, 50 Wis. 189.</p> <p>An illegal tax may be attacked in three ways: 1. The party may apply to a court of equity to cancel it and the certificate as a cloud on his title. 2. He may apply for an injunction to restrain the levying of the tax, or the sale of the land, or the issuing of a deed. 3. In a proper case he may pay the amount demanded under protest, and recover it back.</p> <p>Our statute (§ 635, O. O. Pro.) has gone far to remove the restrictions upon an action to remove a cloud, but two things are still necessary: 1. There must be a cloud upon the title. 2. The plaintiff must be the owner of either the legal or equitable title. Stark v. Starrs, 6 Wall. 402; Holland v. Challen, 110 H. S. 15 ; Goldsmith v. Gilland, 22 Fed. Eep. 865, 867..</p> <p>The appellant had only a mortgage lien and this transferred no title to the property. § 1706, C. C. He could not have maintained an action to cancel the tax certificate or remove it as a cloud on the title, as he had none.</p> <p>For the same reason he could not have obtained an injunction. High, §§ 524, 573. In making this redemption under protest, he pursued the only remedy given him by law.</p> <p>The taxes being void the sale was without warrant of law, had no force, and a deed thereunder would be of no validity. William v. Corcoran, 46 Cal. 553; Bucknall v. Story, id. 599; Detroit v. Martin, 34 Mich. 173, 22 Am. Eep. 515.</p> <p>The plaintiff knew the law and the facts and he was not bound to pay. A person who voluntarily pays a void tax with a full knowledge of the facts cannot recover it back. Powell v. Board, 46 Wis. 213 ; Babcock v. City, 16 N. W. Eep. 627; Phillips v. Board, 5 Kan. 413; Shane v. City, 26 Minn. 543; Williams v. Corcoran, supra ; Lewis v. Hughes, 20 Pac. Eep. 623.</p> <p>The payment was not made under such compulsion as would permit a recovery. Bucknall v. Story, 46 Cal. 599 ; Forbs v. Appleton, 5 Cush. 115; Boston & S. G. Co. v. City, 4 Mete. 181, 187; May v. Cincinnati, 1 Ohio St. 277; Sonoma Co. Tax Case, 13 Fed. Eep. 789; Fleetwood v. City, 2 Sandf. 475; County v. Walker, 8 Kan. 431.</p> <p>The issuance of a tax deed would in no way have imperiled the rights, or affected the interest of appellant, and he must be held to have paid the money voluntarily.</p> <p>The first ground of the demurrer is well taken, as the complaint upon its face shows that all the acts done by the defendant were done as county treasurer.</p>

<p>APPEAL from the district court, Spink county; Hon. L. W. Croeoot, Judge.</p> <p>The repeal of a statute creating an offense sweeps away all penalties incurred for its violation during its existence. State v. Gumber, 37 Wis. 298, 302; Wells v. State, 5 S. W. Eep. 830; Whisenhunt v. State, 18 Tex. App. 491.</p> <p>Two questions arise : Does the “ Local Option Law,” chap. 70, Laws of 1887, create an offense ? Does the vote of 1888 act as a repeal of it in Spink county ?</p> <p>The statute is susceptible of two constructions: 1. That it creates, defines and provides for the punishment of á crime, that is, makes the doing of certain acts under certain circumstances criminal, and imposes penalties for the commission of these acts under those circumstances. 2. That it is a mere limitation upon the powers, of the board of county commissioners, the elements of the offense being defined and the penalty for its commission being prescribed by the old law.</p> <p>Prior to the passage of this law, the policy of the territory as evidenced by its various statutes, was not to suppress and prohibit, but to regulate, control and license the sale of intoxicants. People v. Sweetser, 1 Dak. 295.</p> <p>This statute marks the initiation of a wholly variant policy. Its purpose is to prohibit the sale by local option. License after the passage of this act would constitute no defense, nor its want be of the gist of the offense. State v. Hanley, 25 Minn. 429.</p> <p>Erom these considerations it would seem that the local option law does create an offense. Territory v. O’Connor, 5 Dak. 397, 41 N. W. Eep. 746.</p> <p>What was the effect of the vote of 1888 ? Hnder a statute identical in all essential particulars with this, it has been held that the vote operates as a repeal. Woodlief v. State, 2 S. W. Eep. 812; Wells v. State, 5 id. 830; Haflin v. State, 5 Tex. App. 212 ; Mulkey v. State, 16 id. 53 ; Dawson v. State, 8 S. W. Eep. 820; Whisenhunt v. State, 18 Tex. App. 491.</p> <p>The jurors, Thompson and Beckley, were incompetent, and should have been excused. It matters not that they said they could try the case impartially. The more prejudiced a man is, as a general rule, the more positive his opinion of his impartiality.</p> <p>The court, in its charge, said that the witness Parsons “ claims to have tasted it (the liquor) the day he got it, and before it left his hands and control.” The evidence certainly does not show any thing of the kind. An instruction which misrepresents the evidence before the jury is erroneous. Frame v. Badger, 79 111. 441; Prairie State Oo. v. Doig, 70 id. 52; Neil v. Paul, 22 Cal. 494; Burke v. Maxwell, 87 Pa. St. 139,153; People v. Casey, 3 Pac. Bep. 874.</p> <p>It should appear from the indictment that it was presented at a term of court by a competent grand jury. State v. Hogan, 30 Wis. 433 ; State v. Delue, 2 Pin. 204 ; Fitzgerald v. State, 4 Wis. 395 ; Benedict v. State, 12 id. 313.</p> <p>As to the effect of the adverse vote of 1888, plaintiff relies on an ancient rule, never well founded, and which the statutes of this territory provide shall have no force. As to the nature of a local option law, that a vote does not repeal it, and that the gist of the offense is the same both before and after the vote, see State v. Smiley, 7 S. E. Bep. 904; State v. Funk, 7 N. W. Bep. 151; State v. Circuit Court, 1 L. B. A. 66 ; State v. Wilcox, 19 Am. Bep. 536 ; Territory v. O'Conner, 5 Dak. 397, 41 N. W. Bep. 746.</p> <p>The jurors, Thompson and Beckley, were qualified to sit. §§ 7358, 7439, Comp. L.; Thomp. & M., Juries, 228-9 ; Grisson v. State, '2 Texas, 376 ; People v. Goldenson, 19 Pac. Bep. 161; People v. McQuade, 18 N. E. Bep. 156.</p> <p>There was sufficient evidence that the liquor purchased was whisky.</p> <p>The Code of Or. Pro., §§ 7370, 7405, Comp. L., permits the court to state the testimony. The court did that only. There was no misrepresentation of it, and nothing said as to its weight. The instruction was an attempt to limit the jury in the consideration of the testimony, so that the rights of the defendant under the evidence might be preserved.</p> <p>The defendant never moved to set aside the indictment in the lower court on the grounds complained of. He is now precluded from doing so. § 7284, Comp. L. Our Code does not require that the indictment should show that the grand jury was summoned, impaneled, sworn, etc. § 7249, Comp. L.; Stevens v. State, 76 Ga. 96; 5 A. C. Rep. 601.</p>

Roderick Rose, Judge. It is claimed respondent is entitled to a return of the premium under section 4161, Comp. L. The contract of insurance was completed. There was a consideration for the note. The company had earned or become entitled to the benefits of the premium.

<p>1. Constitutional Law — Executive Power — Office and Officer — Removal.</p> <p>The _ power of removal from office is not judicial in the sense that it cannot be exercised by the executive, either with or without notice to the incumbent proceeded against.</p> <p>2. Same.</p> <p>Under the public examiners act, chap. 124, L. 1887, §§ 3, 4; Comp. L,, §§ 119, 120, authorizing the examiner to “ make an exhaustive examination of the books and accounts” of the public “institutions ” of the territory, and “report to the governor the result of his examination,” and providing that “ the governor may cause the results of such examinations to be published, or, at his discretion, to take such action for the public security as the exigency demand,” held, the governor, upon the receipt of an examination, had the power to remove from office the trustees (managing officers) of the public institution examined.</p> <p>3. Same — Filling Vacancies.</p> <p>Sec. 8, chap. 22, Pol. C., § 1392, authorizing the governor to fill “all vacancies ” in territorial offices, is not in conflict with § 1858, B. S. U. S., which authorizes the governor of any territory to fill a vacancy in such office when it “happens from resignation or death,” and the governor may, under the territorial statute, fill a vacancy occasioned by removal.</p>