Volume 6 — South Dakota Reports

Hon. E. Parliman, Judge. Action to recover damages for failure to transmit certain telegrams. Plaintiff had judgment and defendant appeals, The facts are fully stated In the opinion. Obstructing the execution of legal process is an offense against public justice. 4 Bl. Com. 129. A telegraph company is under no obligations to contract to communicate an illegal or immoral message. Rail v. Raguet, 4 Ohio, 400; Chitty on Cont. 729; Bump. Fraud.

Hon. L. E. Gappy, Judge. Claim by Leonard Underwood against Lawrence county for mileage as court stenographer. His claim was dismissed by the board of commissioners, which decision was reversed by the circuit court, and the county appeals. The facts are stated in the opinion.

Hon. A. W. Campbell, Judge. Application to the circuit court for leave to issue an execution upon a judgment recovered in justice court, a transcript of which had been entered and docketed in the circuit court. From an order granting the application defendant appeals. The facts are stated in the opinion. It is absolutely necessary that all the elements of jurisdiction appear from the record of the proceedings of an inferior court.

Hon. H. G-, Fuller, Judge. Action to recover damages for breach of contract. Plaintiff had judgment and defendants appeal. The facts are stated, in the opinion. Under an express contract fixing the compensation, a party cannot maintain an action for the amount his services are reasonably worth. Cameron v. Austin, 27 N. W. 622. When a contract confers upon one party the right to make a selection of property the assent of the other party to such selection is necessary.

• Appeal from circuit court, Lawrence county. Hon. Chas. M. Thomas, Judge. Action- involving the right of possession of certain mining property. From an order setting aside a judgment obtained therein by default plaintiff appeals. The facts are stated in the opinion. An application to set aside a judgment cannot be made by a stranger to the record. Freeman Judg. §91; Seyniour v. Board, 40 Wis. 62; Gere v. Gundlack, 57 Barb. 15.

<p>(Syllabus by the Court.</p>

Hon. H. G. Fuller, Judge. Action to recover damages for personal injuries alleged to have been sustained by plaintiff while a- passenger on defendant’s train and alleged to have been caused by defendant’s negligence. From a judgment for defendant plaintiff appeals.. The facts are stated in the opinion.

Hon. H. G. Fuller, Judge. Action to enforce specific performance of a contract for the purchase of land. Judgment for plaintiff, and defendant appeals. The facts are stated in the opinion. In an action for specific performance an allegation of title at the time of the sale is a necessary averment and a material allegation in the complaint. Abbotts Form § 5590; 5 Sanford Oh. 72; 2 Sanford Oh. 96; Kellogg v. Church, 4 How.

Hon. E. G-. Smith, Judge. This case was last decided by this court in an opinion found in 4 S. D. 226, in which a judgment of the circuit court in favor of the defendants was affirmed. There had been a prior appeal in the same case from a judgment of the territorial district court in favor of the plaintiff which was reversed by this court in an opinion found in 2 S. D., 106. Appellant petitions for a rehearing. The facts are stated in the opinion.

Hon. Frank R. Aikens, Judge. Action in the city police court of Sioux Falls, charging defendant with the violation of a city ordinance. On appeal from a judgment of conviction in that court to the circuit court defendant was acquitted and the city appeals to this court. The facts are stated in the opinion. When statements are made to a party under such circumstances as to call for a reply, his silence will be deemed an admission of the truth of such statement.

Hon. William Gardner; Judge. Action to recover possession of certain land. From an order sustaining a demurrer to the complaint, plaintiff appeals. The facts are stated in the opinion. A debtor may claim a homestead in lands occupied by him as a co-tenant only. Oswold v. McCauley, 6 Dak. 289; 42 N. W. 769. A person in possession of lands under a contract for their' purchase has an interest in the land to which a homestead right will attach. Myrick v. Bill, 5 Dak. 167.

<p>Appeal from circuit court, Marshall county. Hon. A. W. Campbell, Judge.</p> <p>Action in claim and delivery to recover the possession of certain horses. From a judgment for plaintiff, defendant appeals.</p> <p>The facts are stated in the opinion.</p> <p>A new trial may be granted for erroneous instructions, although the verdict may appear proper on its face. Wardell v. Hughes, 3 Wend. 418; 16 Am and Eng. Ency. Law 508. . If the instructions tend to mislead a jury a new trial should be ordered. Benhard v. Cary, 11 Wend, 83; Fairfield v. Rogers, 32 Minn. 269; Warner v. Beebe, 47 Mich. 435. If the verdict is based upon an erroneous instruction a new trial will be granted. Evans v. St. Paul, 63 la. 204. An instruction which assumes the existence of disputed facts is erroneous. Duffield v. Delaney, 36 111. 258; Farmer v. Childs, 66 111. 544; Jackson v. Graham, 57 111. 94; Doyhl v. Stevens, 4 Mich. 87. When the court instructed the jury under a misapprehension as to a material fact, a new trial should be allowed. State v. Richards, 72 la. 17; 16 Am. Ency. Law, 510. When an instruction presents to the jury a question not in issue it has a tendency to mislead the jury and is good ground for a new trial. Smith v. Evans, 14 N. W. 406.</p> <p>The presumption is that there was sufficient evidence received by the jury to sustain their verdict. Cole v. Cady, 2 Dak. 29; State v. Brenan, 50 N. W. 625; White v. Pine, 10 Pac. 215; Riberado v. Suang, 6 Pac. 125; Kendall v. Waters, 8 Pac. 510; Allen v. Boyd, 3 Pac. 523; Black v. Black, 2 Pac. 317; Vaughn v. Stone, 2 N. W. 973; Boyle v. Mallett, 25 N. W. 757; Hall v. Harris, 16 N. W. 535.</p> <p>When there is a substantial conflict of evidence the findings of the jury should stand. Baker v. Baker, 49 N. W. 1064; Franz Fack Brewing Co. v. Melenz, 37 N. W. 728; Cannon v. Denning, 53 N. W. 863; Pielke v. Railroad, 43 N. W. 814. An error not excepted to will not be reviewed. DeLendiecie v. Peck, 48 N. W. 342.</p> <p>A principal ratifying the acts of her agent in taking property in settlement of a debt, is entitled to possession of the property or its proceeds. Comp. Laws, § 3765; Dresser v. Wood, 15 Kan. 344; Watertown v. Palmer, 10 S. E. 969; Yerkes v. Crum, 49 N. W. 422; Cunningham v. Jones, 15 Pac. 572. Demand for the property is unnecessary. Myrick v. Bill, 3 Dak. 283; Smith v. McLean, .24 la. 322; Redding v. Page, 52 la. 406; Newell v. Newell 34 Miss. 385; Oneil v-. Bailey, 68 Me. 429. The verdict being substantially in the proper form should stand. Gaines v. White, 1 S. D. 434. 47 N. W. 524.</p>

Hon, J. O. Andrews, Judge. Indictment charging defendant with the offense of selling intoxicating liquors unlawfully. The defendant was convicted and brings error. The facts are stated in the opinion. When a juror has an opinion as to the guilt or innocence of a party being tried for crime which it would require evidence to remove, he should be excused if challenged.

<p>Motion to dismiss appeal.</p>

<p>1. In this state a railroad company is not required to be on the lookout for trespassing animals on its track, other than at public crossings; but it is required as soon as an animal is discovered on the track, to use reasonable care to prevent injury to the same,</p> <p>2. Negligence is the gist of an action to recover damages for animals killed by a railway company; and when the presumption of negligence arising from the killing is overcome by the evidence of the company, the plaintiff, to entitle him to recover, must prove facts tending to show that the killing was caused by the negligence of the company sufficient to warrant a jury in finding such negligence on the part of the company.</p> <p>3. Such evidence ne.ed not be direct and positive, but it must be such as to justify reasonable men in finding that the killing was the result of the company’s negligence or that of its servants or employes.</p> <p>4. There must be something more established by such evidence than a mere probability, not the direct result of the facts proven, that the killing was caused by the negligence of the company. Facts and circumstances must be shown sufficient to bring conviction to fair-minded men, without resorting to mere conjecture or uncertain and inconclusive inferences.</p> <p>5. This court, in the determination of questions before it, looks only to the abstract of appellant, and the further or additional abstract of the respondent (in case one has been filed,) unless there is a conflict between the abstract and the further or additional abstract which requires an examination of the records on file in the clerk’s office, to settle. A respondent who claims that there is evidence or other matters in the record or in the bill of exceptions sustaining the verdict, findings, or other decisions of the court, not contained in appellant’s abstract, should bring such evidence or other matter before this court by a further or additional abstract.</p> <p>(Syllabus by the Court.</p>

Hon H. G. Fuller, Judge. Action to recover damages for the conversion of a safe. From a judgment for plaintiff, defendant appeals. The facts are stated in the opinion. The limits of a strict cross-examination include whatever tends to qualify or explain the witness’ testimony or modify any inference resulting from it. Baird v. Daily, 68 N. Y. 547; 1 Rice Ev. 586; Wait Fraud. Con. § 281; Jackson v. Metzger, 35 Mich. 103.

Hon. Joseph W. Jones, Judge. Application by the state of South Dakota, on relation of Joseph M. Dickson, for a writ of mandamus to compel Roy Williams, as mayor, and Frank L. Blackman, as city auditor, of the city of Sioux Falls, S. D., to issue warrants in payment of relator’s salary as chief of police of such city. From a judgment granting a peremptory writ of mandamus, defendants appeal. The facts are stated in the opinion.

Hon. Prank R. Aikens, Judge. This case was first decided by this ■ court in an opinion found in 5 S. D. 500, 59 N. W. 726, in which opinion the judgment of the trial court in favor of the defendant was reversed.

Hon. A. W. Campbell, Judge.- Action by Katie Schaetzel, a taxpayer, against the City of Huron to enjoin the defendant from paying certain interest bearing bonds and, warrants alleged to have been issued illegally. Charles H. White intervened and to his complaint in intervention Schaetzel demurred, and the City of Huron answered.

Hon. Frank R. Aikens, Judge. Action on a judgment. From a judgment for plaintiff, defendants appeal. The facts are stated in the opinion. A judgment may be attacked directly by setting up in answer that the matter in controversy had,,already been reduced to judgment. 2 Black Judg. 972; Clarke v. Little, 41 la. 497; Fergason v. Crawford, 70 N. Y. 253.

Hon. J. O. Andrews, Judge. Action for a divorce upon the ground of desertion. The case was tried by the court and judgment was rendered for plaintiff. From an order granting a new trial, plaintiff appeals. The facts are stated in the opinion. Fraud is to be proved and not presumed. Shultz v. Hoagland, 85 N. Y. 467; 2 Rice Evidence 971. The place of legal residence is very largely a matter of intention. Albee v. Albee, 31 N. E. 158.

Hon. E. G. Smith, Judge. Action to recover tbe amount of certain dishonored drafts issued by defendant to plaintiff. From a judgment for plaintiff defendant appeals. The facts are stated in the opinion. A check drawn in one state upon a bank in another state is a foreign bill and the law of the state where it is to be paid governs the payment.

Petition lor a writ of certiorari to A. W. Campbell, as‘judge of tho fifth judicial circuit of South Dakota, and one Dicker-man, to review the action of such judge in vacating an order directing that foreclosure proceedings of a certain mortgage given by petitioner to Dickerman, which Dickerman had commenced by advertisement, should be transferred to the circuit court. The facts are stated in the opinion.

Beadle county. Hon. A. W. Campbell, Judge. Consolidated action to establish and foreclose a mechanic’s ■ lien, and to determine the priority of liens. From the judgment rendered, and from an order overruling his motion for a new trial, defendant Walter N. Carroll appeals. , The facts are stated in the opinion. A mechanic’s lien is not assignable. ■ 13 Am. .and Eng. Ency.

Hon. A. W. Campbell, Judge. This case was first decided by this court in an opinion reported in 5 S. D. 539, 59 N. W. 833, in which opinion the judgment of thd trial court in favor of plaintiff was affirmed.

Hon. Levi McGee, Judge. This case was first decided by this court in an opinion filed Sept. 1, 1894, reported in 60 N. W. 69, in which opinion the judgment of the trial court in favor of the plaintiff was reversed.

J. O. Andrews, Judge. Action for the conversion of certain grain. From a judgment for plaintiff, defendant appeals. The facts are stated in the opinion. A party’s declarations are not admissible in his own favor. Tisch v. U. T. T., 21 Atl. 808; Crooks v. Bunn, 20 Atl. 529; McCormick v. Cochrin, 31 N. W. 561; McClure v. Sheek, 4 S. W. 552. The testimony of' a wife as to what her husband had told her of his negotiations is incompetent.

Hon. Frank R..Aikens, Judge. This case was first decided by this court in an opinion filed April 3, 1894, reported in 5 S. D. — 58 N. W. 568, in which opinion the judgment of the trial court in favor of the plaintiff was affirmed.

' Hon. Charles M. Thomas, Judge. Action on promissory notes. From a judgment for plaintiff entered on motion for judgment on the pleadings, defendant appeals. The facts are stated in the opinion. A pleading to be frivolous must be so clearly and palpably bad as to require no argument to show its character, and must show bad faith in the pleader on bare inspection. Young v. Kent, 46 N. Y. 672; Cathrili v. Cranmer, 40 Wis. 555; Martin v. Neil, 8 Wis. 226; 18 Am. and E. Ency.

<p>Error to circuit court, Clark county. Hon. J. C. Andrews, Judge.</p> <p>Indictment charging.defendant with unlawfully selling intoxicating liquor to a minor. Prom a judgment of conviction he brings error to this court.</p> <p>The facts are stated in the opinion.</p> <p>Intent is necessary to the commission of a crime, and it is a good defense to a charge of selling intoxicating drink to a minor, that the dealer has good reason to believe, and did believe, him to be of age. Sockett Instr. tp Jur. 735; Farrell v. State, 32 O. St. 456; Faulks v. People, 39 Mich. 200; Gaine v. State, 21 S. W. 367; Reynolds v. State, 22 S. W. 18; Robins v. State, 63 Ind. 235; Anderson v. State, 22 O. St. 305; Adler v. State, 55 Ala. 16; State v. Hoagland, 77 la. 135; Brooks v. State, 4 San. 343; Williams v. State, 3 S. W. 661; Kreamer v. State, 106 Ind. 192.</p> <p>The statute with the violation of which the indictment charges the defendant is unconstitutional because it is class legislation. Const. Art. 6. Section 18; Sess. L. 1890 — 224; People v. Hang, 68 Mich. 549. Also unconstitutional because it forbids importation. Lersey v. Hardin, 135 U. S. R. 100; Const. N; S. Art. 1, Section 8; Const. S. D. Art. 6, Sections 26, 27. Also unconstitutional because it provides that the finding of such intoxicating liquor upon such premises shall be prima facie evidence of the existence of the nuisance complained of. Sess. L. 1890, 236; State v. Beswick, 13 R. I. 211; Const. U. S. Art. 6, Art. 14, Section 1. Also unconstitutional because it embraces more than one subject, all of which are not expressed in the title. Black Intox. L. Sections 38, 60; Cooley Const. Lim. 483; Const. S. D; Art. 3, Section 21; Sess. L. 1890, pp. 222 and 240; Town of Contril v. Samer. 59 la. 26; People v. Beodle, 60 Mich. 22; Holly v. State, 14 Tex. app. 505.</p> <p>All errors designed by plaintiff in error and not discussed in his brief and argument are deemed to be abandoned. State v. Tuchman, 28 Pac. 1004; State v. Jockheck, Id. 1007. It was not error for the trial court to refuse to give the* instruction asked by defendant, that intent is a material element of a crime and without it a crime cannot be committed. People v. Lee Chuck, 8 Am. Cr. R. 450; Spies v. People, 6 Id. 695; Toledo v. Ingreham, 77 111, 309; Kendall v. Brown, 86 111. 387; Skiles v.[Caruthers, 88 111. 458; Rice v. DesMoines, 40 la. 638; People v. Cleveland, 49 Cal. 577; N. S. v. Adams,- 2 Dak. 306; Reynolds v. N. S. 8 Ott.o. 167; Territory v. Chartrand, 1 Dak. 363; People v. Clark, 24 Pac. 313; State v. Halfield, 24 Wis. 60; Comm. v. Emmons, 98 Mass. 6; 3 Green. Ev. Section 21; State v. Cairn, 9 W. Ya. 559; Comm. v. Finnegan, 124 Mass. 324; Roborige v. Burnham, 124 Mass. 277; McCutcheon v.' People, 69 111. 601; Ulrich v. Comm. 6 Buch. 400; Barnes v. State, 19 Conn. 397. The indictment was good because it set forth the nature and cause of the accusation; names of party and minor; the time and place and the kind of intoxicating liquor. Comp, L. Section 7213; Const. Art. 6, Section 7; U. S. v. Gooding, 12 Wheat. 460; U. S. v. Britton, 107 U. S. 655; Cannon v. U. S. 116 N. S. 55; U. S. v. Mills, 7 Pet. 138.</p> <p>The act is constitutional. State v. Mitchell, 3 S. D. 223; 52 N. W. 1052; State v. Becker, 3 S. D. 29; 51 N. W. 1018. The jury are the judges of the law except in cases of criminal libel. Comp. Laws, Sections 7372, 7373, 7374.</p>

Hon. A. W. Campbell, Judge. Action to foreclose a mechanic’s lien. Judgment for defendants, and plaintiff appeals. The facts are stated in the opinion. Notice is information concerning a fact actually derived from a proper source or elsewhere presumed by law to have been acquired by a party, to which the law attributes the same consequence as would be imputed to knowledge.

Hon D. Haney, Judge. Action for breach of warranty on a sale of horses. Judgment was rendered for plaintiff, and defendant appeals. The facts are stated in the opinion. A contract of sale made on Sunday is void. Nebert v. Bayhurst, 47 N. J. Eq. 201; Houchett v. Jordan, 45 N. W. 617; Finley v. Quirk, 9 Minn. 179; Day v. McAllester, 16 Gray 433. An action cannot be maintained, on a warranty made on the sale of property on Sunday.

Frank R Aikens, Judge. Action on promissory notes. The court directed a verdict for plaintiff. From an order granting a new trial plaintiff appeals. The facts are stated in the opinion. Parol evidence is not admissible to vary the terms of a written contract. Comp. Laws sec. 3545; 1 Green Ev. 275. Under our statute oral evidence is competent to show that an apparent principal is a surety. Comp.

Hon. D. Haney, Judge. Action for wrongfully ejecting plaintiff’s wife from defendant’s train, and for expenses and loss of services arising therefrom. Prom a judgment entered on a verdict for plaintiff, defendant appeals. The facts are stated in the opinion.

Hon. H. G, Fuller, Judge. Action to foreclose a. mortgage. Judgment for plaintiff, and defendant, Jennie Evans appeals, The facts are stated in the opinion. The record of evidence given by' a witness in another suit cannot be introduced to impeach the witness on cross examination until its accuracy has been established and identity ^proved. Rehberg v. City, 2 N. E. 14; Stayner v. Joyce, 22 N. E. 89; Misner v. Darling, 7 N. W. 77; Seligman v. Ten Eych, 18 N. W. 818.

Hon. A. J. Plowman, Judge. Action on an instrument for the payment of money only. From judgment sustaining a demurrer to the complaint, plaintiff appeals. The facts are stated in the opinion. In a complaint upon a promissory note, a copy of the instrument and a statement of amount due thereon is all the allegation necessary. Marshal v. Rockwood, 12 How. 452; Bui die v. Carruthers, 15 N. Y. 425; Keletlas v. Meyers, 19 Id. 231.

Hon. J. O. Andrews, Judge. Action by J. J. Batterton against Burt Fuller to contest defendant’s right to the office of county judge of Roberts county, to which he was declared to have been elected at the general election held in November, 1892. Plaintiff had judgment on the findings of the referee before whom the cause was heard, and appeals from an order granting anew trial. The facts are stated in the opinion.

Hon. Nrank R. Aikens, Judge. This case was first' decided by this court in an opinion rer ported in 4 S. D. 441, 57 N. W. 339, in which opinion the judgment of -the court below in favor of the plaintiff was affirmed. Thereafter a rehearing was ordered in the case. This opinion is upon the rehearing. Fraud may be presumed from the circumstances and facts surrounding a transaction.

Hon. H. G. Fuller, Judge. Action to recover damages for breach of contract. Plaintiff had judgment, and defendant appeals. The facts are stated in the opinion. In an action on contract where neither time nor place of delivery was fixed the plaintiff must aver an offer or tender of performance on his part, and to pay on delivery. Lester v. Jewett, 11 N. Y. 453; Smith v. Wright, 1 Abb.

Hon. J. O. Andrews, Judge. Action to recover the value of a colt alleged to have been killed by defendant. Plaintiff had judgment and defendant appeals. The facts are stated in the opinion. No cause should be determined upon a mere presumption of fact when direct evidence can be readily obtained. Miller v. Railroad,- 31 N. W. 479. The mere fact that the animal was lying near the track injured was no ground for inferring that it was injured by the train.

Hon. H. G. Fuller, Judge. Action^ for a divorce, in which there was a judgment and decree granting defendant a divorce aDd alimony on her cross complaint. From the judgment for alimony, plaintiff appeals. The facts are stated in the opinion. When the findings and decisions of the trial court are not warranted by the evidence, they should be reversed upon appeal.

Hon. H. G. Fuller, Judge. Action by the state of South Dakota, on relation of May T. Gunderson, against Royal F. King and others, on the bond of defendant King, as assignee of the State Bindery Company, a corporation, in which defendants appealed from a judgment for plaintiff. Plaintiff moves to dismiss the appeal. Motion granted as to defendant King. The facts are stated in the opinion.

Hon. Levi McGee, Judge. Action to recover damages for property alleged to have been destroyed by fire and stock killed by defendant’s negligence. From a judgment for plaintiff, defendant appeals. The facts are stated in the opinion. Before the declaration 'of an agent can be introduced in evidence it must be shown that he had authority to act and that the act was within the apparent scope of his authority.

Hon. A. W. Campbell, Judge. Complaint by Edward R. Remington against the board of county commissioners of Hamlin county, S. D., to. contest a county seat election, whereby Castlewood, in such county was declared to be the county seat of such county. Such board failing to defend, Parley E. Higgins, a resident householder and qualified elector, was, by the court, given leave to defend. From a judgment for defendant, complainant appeals. The facts are stated in the opinion.

Hon D. Haney, Judge. Action for an injunction, for a receiver, and to declare a certain chattel mortgage and bill of sale fraudulent, and in effect to be a general assignment. From a judgment for defendants, and from an order denying a motion for a new trial, plaintiffs appeal. The facts are stated in the opinion. An insolvent debtor cannot prefer one creditor to another. White v. Cotzhansen, 129 U. S. 329; Straw v. Jenks, 43 N. W. 941; Wyman v. Mathews, 53 Fed, .678.

Hon. H. G-. Puller, Judge. Motion to dismiss appeal. Overruled. Appellants then moved that a bill of exceptions regularly and duly settled but filed and forwarded out of tinas bé treated as part of the record.

Hon. A. J. Plowman, Judge. Indictment charging the plaintiffs in error with the crime of murder. From a judgment of conviction they bring error to this court. The facts are stated in the opinion. The testimony of an accomplice should have but little weight for the reason that in nearly every instance it is given with the hope that it may aid him and lessen his punishmeñt. People v. Ames, 39 Cal. 403; Id. v. Eckard, 10 Cal. 110; 1 Whart. Am. Crim. Law 785.

Hon. Loring E. Gaffy, Judge. Action by Anna Drew, as owner, and W. W. McDonald, as mortgagee, against the Watertown Fire Insurance Company to recover on a.policy of insurance. Plaintiffs had judgment, and defendant appeals. The facts are stated in the opinion. * The only evidence of payment of the premium for the policy sued upon was that the alleged agent of the defendant was requested by the agent, of the plaintiff to charge up the premium to the plaintiff.

Hon. A. W. Campbell, Judge. Action on an indemnity contract. There was a judgment for plaintiff, and defendant appeals. The facts are stated in the opinion. Payment and discharge of a liability by the obligee, must precede recovery on a bond to indemnify against damages.

Hon. J. O. Andrews, Judge. Action for divorce. Motion by defendant to set aside that part of the decree requiring the payment by him of money for the support of his minor children. The motion was denied, and he appeals. The facts are stated in the opinion.

Hon. Frank R. Aikens, Judge. Action by Mary E. Merrill against Herman N. Luce and others to foreclose a mortgage executed to the American Mortgage & Investment Company, and by it assigned to plaintiff. From a judgment and decree for defendants, plaintiff appeals. The factf are stated in the opinion. The only effect of the recording of an assignment of a mortgage is to protect the purchaser against a subsequent sale of the mortgage by its apparent holder.

, Hon. Frank R. Aikens, Judge. Action to recover the value of crops. Judgment was rendered for defendants, and plaintiff appeals. The facts are fully stated in the opinion. The accretions to lots contiguous to non-navigable lakes extend to the middle line of such lake by force of the common law rule in such cases in the absence of a different rule established by state decisions'or by local statutes.

Hon. E. Part.t-man, Judge. Action for damages for false representations. Judgment was rendered for defendants, and plaintiff. appeals. The facts are stated in the opinion. The real party in interest in a fraudulent transaction upon whom a fraud has been perpetrated is the only person entitled to recover. Hewitt v. Young, 47 N. W. 1084; Techout v. Van Hoesen, 40 N. W. 96; Pennybacker v. Leony 21 N. W. 575; Williams v. Sheldon, 28 N. W. 115; Bowen v. Billings, 14 N. W. 152.

Hon. H. G. Fuller, Judge. Mandamus by Jessie Hardy to compel R. F. Purington, as treasurer of Rousseau school district, to pay warrants issued by the school board. The writ was granted, and defendant appeals. The facts are stated in the opinion. A treasurer has the right to refuse to pay warrants known by him to be void, or of which there is a question of their legality. Evans v. Bradlev, 55 -N. W. 721; Bailey v. Lawrence, 51 N. W, 331; Keller v. Hydie, 20 Cal. 593.

Hon. William Gardner, Judge. Action to recover for services rendered by plaintiffs to defendant as attorneys at law. From a judgment for plaintiffs, defendant appeals. The facts are stated in the opinion. Under our statute the instructions given by the court to a trial jury should be reduced to writing and taken by the jury on their retirement.

Hon. A. W. Campbell, Judge. Action for the conversion of certain wheat. From a judgment for plaintiff, defendant appeals. The facts áre stated in the opinion. To constitute a levy the officer must have actual possession •or control of the property with power of removal. Powell v. Kechina, 19 N. W. 410; Russell v. Major, 29 Mo. App, 167; Dixon v. White, 5 L. R. A. 659; Windmiller v. Chapman, 139 111. 163; 13 Am. Enc. Law 269.

Hon. Joseph W. Jones, Judge. Action by L. A. Busby against James E. Riley and others to recover the amount of a judgment in favor of plaintiff against the Sioux Falls Granite Company, a corporation of which defendants were stockholders. From a judgment for defendants, and from an order denying a motion for anew trial, plaintiff appeals. The facts are stated in the opinion.

Hon. Joseph W. Jones, Judge. Application by the state of South Dakota, on the relation of R. O. McGregor, for a peremptory writ of mandamus to compel E. R. Young and others, as the board of councilmen of the village of Egan, Moody county, S. D., to call an election for the election of officers of snch village. From a judgment granting the writ, Young and others appeal. The facts are stated in the opinion.

Hon. William Gardner, Judge. Action on a promissory note. Judgment for plaintiff, and defendant Humphrey appeals. The facts are stated in the opinion. . When a defect in the form of stating defenses is not called to the attention of the court it is held to be waived. Boone Code Pleading sec. 80; Truitt v. Baird, 12 Kan. 420; Joy v. Betzer 41 N. W. 575.

Hon. H. G-. Fuller, Judge. Action by Austin D. Hill against Daniel Walsh, as sheriff of Hand county, in claim and delivery. A demurrer to the answer was overruled, and plaintiff appeals.

Appeal .from circuit court, Davison county. Hon. D. Haney, Judge. Action by First National Bank of Baton Rouge against the Dakota Fire & Marine Insurance Company, on a fire insurance policy. Judgment was rendered for plaintiff, and' defendant appeals. The facts are stated in the opinion.

Hon. E. Parliman, Judge. Action by Austin, Tomlinson & Webster Manufacturing Company against Frederick Heiser and another on three promissory notes. Judgment was rendered in favor of plaintiff, and defendant Heiser appeals. The facts are stated in the opinion. When the title of the action in the complaint does not correspond with that contained in t]ie summons the complaint is irregular and should be set aside. Allen v. Allen, 14 How. Pr. 248; Bonigton v. Bapham, 14 How.

Hon. Chas. M. Thomas, Judge. Action by the Axiom Mining Company, a corporation, against John Little, to quiet title to certain mining property in plaintiff. Defendant filed an affirmative answer, asking that title be quieted in him, whereupon plaintiff moved to dismiss the action. From an order granting this motion, defendant appeals. The facts are stated in the opinion.

Hon. H. G. Fuller, Judge. Action by Lorenzo- W. Billingsley and John A. Frawley against Ella Hiles, Nellie Southworth, and others to remove clouds from title. Judgment for plaintiffs, and defendants appeal. The facts are stated in the opinion. An action can be maintained for the foreclosure of a mortgage after the statutory period of limitations has run upon the notes secured by the mortgage.

Hon. Joseph W. Jones, Judge. Action by the county of Minnehaha against Albion Thorne to remove the defendant from the office of clerk of the circuit court of said county. Judgment for plaintiff, overruling a demurrer to the complaint, and defendant appeals. The facts are stated in the opinion.

Hon. Frank R. Aikens, Judge. Action to recover' the amount of a draft together with protest charges. From a judgment for defendant Crandall, plaintiffs appeal. The facts are fully stated in the opinion. One who takes a note or bill in payment of an existing debt is a bona fide holder thereof for value. 2 Am. & Eng.. Ency. Law 292; 1 Dan. Neg. Ins. Sec. ^184.

Hon. E. G. Smith, Judge. Action by Vermillion Artesian Well, Electric Light, Mining, Industrial & Improvement Company against the city of Vermillion, S. D., to recover for water rent. Prom a judgment in favor of defendant, plaintiff appeals. The facts are stated, in the opinion.

Hon. E. Part.t-man, Judge. Action to recover on-a promissory note. From a judgment in favor of defendant, plaintiff appeals. The facts are stated in the opinion. When a party executes Ms promissory note in blank, it carries with it implied authority to any holder to fill up the blank and perfect the instrument, and it is valid and binding in the hands of a bona fide holder.

Hou. Charles M. Thomas, Judge. Action to recover for goods sold and delivered. From a judgment entered in favor of plaintiff, after striking out defendant’s-answer as sham, defendant appeals. The facts are stated in the opinion.

Hon. J. O. Andrews, Judge. Action in claim and delivery to recover the possession of certain wheat. From an order setting aside a verdict for, plaintiff, plaintiff appeals. The facts are stated in the opinion. The court cannot set aside a verdict of its own motion after the verdict has been received and. filed and an interval of. time elapsed. Hayne on New Trial and App. sec. 10; Gould v. Elevator, 50 N. W. 969.

<p>1. An affidavit for a warrant of attachment may be made by an agent, and such agency sufficiently appears from an affidavit in which the affiant states “that he is the agent for the plaintiffs for the purpose of making this affidavit, and he makes the same on behalf of said plaintiffs in the above entitled action.”</p> <p>2. The findings of the trial court upon the facts on the motion to discharge an attachment will not he disturbed, unless this court is satisfied that the decision of such trial court is againt the preponderance of the evidence.</p> <p>(Syllabus by the Court.</p>

. Appeal from circuit court, Clark county. Hon. A. W. Campbell, Judge. Action by Fordham school township of. Clark county-against Darlington school township of Clark county. From an order sustaining a demurrer to the complaint, defendant appeals. The facts are stated in the opinion.

Hon. Frank R. Aikens, Judge. This action came before the circuit court upon appeal by Melvin. Grigsby and others from an order of the board of county commissioners of Minnehaha county placing certain property claimed to be exempt from taxation upon the assessment list. From a judgment of the circuit court affirming this order', plaintiffs appeal. The facts are stated in the opinion.

Hon. J. O. Andrews, Judge. . Action by the Winona Lumber Company against Charles G. Church and others to recover for lumber sold and delivered. From a judgment dismissing the action, plaintiff appeals. The facts are stated in the opinion. The objection of non-joinder in actions against part of the members of a voluntary unincorporated association must be raised by plea in abatement.

Hon. J. O. Andrews, Judge. Action to recover upon certain promissory notes. Upon the ground that defendant was a nonresident of this state an attachment was issued. Prom an order denying a motion to discharge the attachment defendant appeals. The facts are stated in the opinion. Statutes relating to attachment proceedings should be strictly construed. William Deering & Co. v. Warren, 44 N. W. 1068; Wylie v. Altman, 11 N. Y. 33; ’Wando Phosphate Co. v. Rosenburg, 17 S. E. 969.

Hon. A. W. Campbell, Judge. Action by the Laird-Norton Company against August Herker and others to foreclose a mechanics linn upon a certain dwelling house upon a tract of land previously mortgaged. From a judgment for plaintiff, the American Investment Company appeals, The facts are stated in the opinion.

Hon. A. W. Campbell, Judge. Action for a rescission of a contract of purchase of stock of defendant bank. From an order overruling a demurrer to' the complaint, defendant bank appeals. The facts are stated in the opinion.

<p>1. Appropriations from the assessed but uncollected revenues of the state, and the issuance of warrants in pursuance thereof to defray current expenses, is not the incurring of an indebtedness, within Const, art. 13, sec. 2, which provides that to make public improvements, or to meet extraordinary expenses, or deficits or failure in revenue, the state may contract debts never to exceed, with previous debts, $100,000, and no greater indebtedness shall be incurred, except to repel invasion, suppress insurrection, or defend the state or United States in war.</p> <p>2. Revenues of the state, assessed and in process of collection, are to be considered as constructively in the treasury, and may be appropriated and treated as though actually there.</p> <p>3. The fact that warrants issued in anticipation of such assessed revenues draw interest does not make the issuance of the warrants an incurring of an indebtedness to the extent of such interest, within Const, art. 13 sec. 2, where such warrants, with respect to interest, are not different from other warrants which may properly be drawn and issued.</p> <p>(Syllabus by the Court.</p>

<p>Application original in this court for a writ of habeas corpus.</p> <p>The facts are stated in' the opinion.</p> <p>No brief filed.</p>

Hon. Charles M. Thomas, Judge. Action by the county of Lawrence against the county of Meade. Judgment for defendant, and plaintiff appeals. The facts are fully stated in the opinion.

Hon. A. W. Campbell Judge. Action against the sureties upon an undertaking to appear given in a criminal action in the county court of Beadle county. Plaintiff had judgment and defendants appeal. The facts are stated in the opinion.

<p>1. Const, art. 3, ? 5, providing that the legislature shall provide by law for the enumeration of the inhabitants of the state in the year 1895, and shall apportion the number of senators and representatives accordingly, is mandatory, but, since there is no power that can compel a legislature to take affirmative action in enacting laws, its action under the constitutional provision depends solely on its own volition, guided by its sense of public duty and responsibility.</p> <p>2. In case the legislature should fail to provide by law for the enumeration of the inhabitants of the state in the year 1895, as required by Const, art. 3, § 5, as a basis for the apportionment of senators and representatives, the existing apportionment would remain in force,</p>

, Appeal from circuit court, Miner county. Hon. D. Haney, Judge. Action to recover damages alleged to have been occasioned by reason of false representations. Judgment for defendants, and plaintiff appeals. It is not incumbent upon an indorsee of a negotiable promissory note endorsed to him ‘‘without recourse” to examine into the financial condition of the maker, if to such an indorsee it is represented by the indorser that the note is good and is secured.

Hon. J. O. Andrews, Judge. Attachment by the First National Bank of Nashua, Iowa, against William F. Van Vooris. From an order dissolving the attachment, plaintiff appeals. A judgment is a contract, and an action upon a foreign judgment being a suit upon a contract for the recovery of money only will support an attachment. 1 Freeman on Judg. Sec. 4; 3 Bl. Comm. 160; Bishop on Cont. 551-6; Taylor v. Root, 4 Keyes 335; Morse v. Toppan, 3 Gray 411; Manfg.

Hon. William Gardner, Judge. Action to recover a money judgment. Judgment for plaintiff, and defendant appeals. The facts are stated in the opinion.

Hon. A. W. Campbell, Judge. Action by the Pitts Agricultural Works against Robert Young to recover the possession of certain personal property. Judgment for defendant, and plaintiff appeals. The facts are fully stated in the opinion. A general objection to the introduction of evidence is effectual if the objection could not have been obviated had the grounds been specifically pointed out.

Hon. J. O. Andrews, Judge. Action in claim and delivery. Judgment for plaintiff, and defendant appeals. ■ The facts are stated in the opinion. An inchoate right to a lien is not assignable. Goodman v. Pence, 32 N. W. 219; Langan v. Sankey, 7 N. W. 393. In the absence of a contrary statutory provision the assignment of a claim for which the assignor may have by law a specific lien destroys the right to the lien.

Hon. E. .G. Smith, Judge. This case was first decided by this court in an opinion filed Oct. 17, 1894, reported in 6 S. D. 100, 60 N. W. 405, in which opinion the judgment of the trial court in favor of the plaintiff was reversed.

Hon. Frank R. Aikens, Judge. Action to recover damages caused by fire set, in the month of September, in violation of Comp. Laws, § 2392. Defendant had judgment, and plaintiff appeals. The facts are stated in the opinion.

Hon. Prank R. Aikens, Judge. Action to recover for the death of deceased. Prom a judgment for plaintiff for one dollar, he appeals. The facts are stated in the opinion. A railroad is negligent where it leaves a car upon a side track in such a manner that it is blown by the wind upon the main track to the injury of some person. Webster v. Railroad, 115 N.' Y. 112; Breen v. Railroad, 109 N. Y. 297; Seybolt v. Railroad, 95 N. Y. 562.

Hon. Frank R. Aikens, Judge. Action to foreclose a mortgage. There was judgment for plaintiff, and from an order granting a new trial she appeals. The facts are stated in the opinion. A deed of trust given to secure the payment of money is in legal effect a mortgage. Webb v. Hazleton, 4 Neb. 308; Kiger v. Riley, 2 Neb. 28; Hurley v. Estes, 6 Neb. 386; Sargent v. Howe, 21 111. 148.

Hon. Prank R. Aikens, Judge. Action by H. Eugene Sheldon and others against the Chicago, Milwaukee & St. Paul Railway Company to recover the value of certain live stock killed by the alleged negligence of defendant. Plaintiffs had judgment, and defendant appeals. The facts are stated in the opinion.

<p>Action by the Axiom Mining Company, a corporation, against A. J. White and Homer Allen, to quiet title to certain mining property.' Defendants filed an affirmative answer, asking that title be quieted in them, whereupon plaintiff moved to dismiss the action. From an order granting this motion, defendants appeal.</p> <p>Appeal from circuit court, Lawrence county. Hon. Chas.M. Thomas, Judge.</p>

Hon. H. G. Fuller, Judge. Action to foreclose a mortgage, and for other relief. From the judgment rendered, plaintiff appeals. The facts are stated in the opinion. An agreement that the amount of a mortgage shall be a part of the purchase money is an assumption of the mortgage debt. 15 Am. and Eng. Ency. of Law 835; Tichenor v. Dodd, 4 N. J. 454; McMahan v. Stewart, 23 Ind. 590; Kennedy v. Brown, 61 Ala. 296; Heid v. Vreeland, 30 N. J. 591; Gerard v. Stewart, 86 Pa.

Hon. Charles M. Thomas, Judge. This case was first decided by this court in an opinion found in 6 S. D. 528, 62 N. W. 131, in which decision the judgment of the lower court was reversed. The facts are stated in the opinion.

Hon. Chas. M. Thomas, Judge. This case was first decided by this court in an opinion found in 5 S. D. 603, 59 N. W. 1069, in which opinion the judgment of the lower court was affirmed. The facts are stated in the opinion.

Hon. A. W. Campbell, Judge. Action against Brown county to recover compensation for services as county treasurer. Defendant had judgment and plaintiff appeals. The facts are stated in the opinion. The payment of money as salary to a de facto officer, who is not legally entitled to claim and receive it, is no defense to an action by the party who is in law entitled to it.

Hon. E. G-. Smith, Judge. Action to recover on interest coupons detached from school district bonds. Prom a judgment for defendant, and an order denying a new trial, plaintiff appeals. The facts are stated in the opinion. It is neither the duty nor the province of courts to construe two separate acts, so that the latter of the two must of necessity repeal the former. Wis. v. Brown, 1 Wis. 442; Coin v. Dwight, 55 N. W. 587.