Volume 7 — South Dakota Reports

Hon. A. W. Campbell, Judge. Action by the Western Town-Lot Company for mandamus against George F. Lane, county treasurer, in which the city of Huron intervened. The facts are stated in the opinion. A city warrant drawn for current expenses of one year is not payable out of the funds levied for a subsequent year. Shaw v. Slater, 74 Cal. 258; Fuller v. Heath, 89 111. 310; People v. May, 9 Cal. 404; Fuller v. Chicago, 89 111. 282; San Francisco v. Brickwebel, 62 Cal. 642.

Hon. A. W. Campbell, Judge. Two actions, one by the Huron Waterworks Company against the city o£ Huron, and one by H. Eay Myers and Henry Schaller, on behalf of themselves and all other taxpayers similarly situated, against the city of Huron and the Huron Waterworks Company. The actions were consolidated, and from the judgment rendered the city of Huron, H. Eay Myers, and Henry Schaller appeal. The facts are stated in the opinion.

Hon. Joseph W. Jones, Judge. Action by attachment. From an order dissolving the attachment, plaintiff appeals. Heard on motion of respondent to dismiss appeal and a motion by appellant to dismiss respondent’s motion. A denial in the conjunctive is. never sufficient as a traverse. Noyes v. Lane, 45 N. W. 328.

Hon. F. R. Aikens, Judge. This case was first decided by this court in an opinion filed November 24, 1893, found in 4 S. D. 358, in which opinion a judgment of the lower court in favor of defendants was affirmed. Appellants petitioned for a rehearing. This opinion is upon the rehearing.

<p>1. Act March 12, 1895, directing the issue and sale of state bonds to make good losses to the permanent school fund and to the interest and income funds, caused by the defalcation of the late state treasurer, is not repugnant to Const, art. 13, section 2, limiting- the state’s power to “contract debts.”</p> <p>2. Const, art. 8, sections 2, 13, provide that the state shall make good all losses to the perpetual school fund; and that losses caused by the defalcation or mismanagement of the officer controlling the fund shall be a permanent funded debt against the state, which shall not be counted as a part of the indebtedness to which the state is limited by Const, art. 13, sec. 2.</p> <p>3. Article 8, sec. 3, declares that no part of the fund, “either principal or interest,” shall be diverted from its purpose. Held, that the state must make good all losses to the interest and income funds as well as to the permanent fund, and for this purpose the legislature may authorize the issue of bonds.</p>

Hon. A. W. Campbell, Judge. Proceedings by the state, on the relation of Henry O. Gilbert, against the Union Investment Company and another. From a Je, cree for defendants, plaintiff appeals. The facts are stated in the opinion. A written constitution is in every instance a limitation on the powers of government in the hands of its agents. • Cooley’s Constitutional Limitations, page 46. Idem 209.

Hon. E. G. Smith, Judge. Action to recover damages. Judgment for plaintiff, and defendants appeal. The facts are stated in the opinion. To support an action for malicious prosecution the plaintiff must establish three things. First, the fact of the alleged prosecution, and that it has come to a legal termination in plaintiff’s favor. Second, that the defendant had not probable cause. Third, that he acted from malicious motives.

Hon. Loring E. Gaeey, Judge. Action to remove a cloud upon title to real estate. Judgment for defendants, and plaintiff appeals. Tlie facts are stated in the opinion. Tlie court has power to correct a conveyance so as to make it correspond with the intention of the parties. Lee v. Johnson, 6 Sup.

<p>1. A circuit court may ordinarily exercise the judicial powers conferred by statute upon its judge.</p> <p>2. Since the adoption of section 4828, Comp. Laws, a circuit judge, when exercising judicial powers within his circuit conferred upon him as judge, may exercise such powers in the name of the court, and as the act of the court.</p> <p>3. And this applies to the powers conferred upon circuit judges by section 4675, Comp. Laws; and the powers conferred upon the judge by that section may be exercised by the court, and in the name of the court.</p> <p>4. An order removing an assignee under the provisions of section 4675, Comp. Laws, made without a formal notice that application would he made therefor, when such assignee and his counsel are present in court in pursuance of notice of a motion that the assignee render his account, report Ms proceedings, file a report of the condition of the estate, and make distribution of the proceeds in his hands, though it may be irregular, will not be reversed, when the assignee’s report and admissions ip open court show gross irregularities in the management of tho estate, and neither he nor his counsel object to the making’ of the order, or request further time, and the assignee informs the court at the time the order is made that he has no objection to being removed.</p> <p>(Syllabus by the Court.</p>

Hon. Howard Gr. Fuller, Judge. Petition for a writ of mandamus. Prom an order sustaining a demurrer to the petition, petitioner appeals. The facts are stated in the opinion. Persons investing their funds in the open market take the risks and profits of tlieir investment correlatively.

Hon. J. O. Andrews, Judge. Action in claim and delivery. There was a verdict for plaintiff, and from an order granting a new trial plaintiff appeals. The facts are stated in tbe opinion. A retrial should not be allowed because of erroneous instructions or rulings by the trial court when upon the facts and law of the whole case, the judgment is in fact correct. Ganson v. Madigan, 82 Am. Dec., 659; ítockhill v. Spraggs, 68 Am. Dec., 607; Greery v. Cummins, 48 Am.

Hon. J. O. ANDREWS, Judge. This case was first decided by this court in an opinion found in 4 S. D. 184, in which opinion the judgment of the trial court in favor of plaintiffs was modified and affirmed. Defendants petitioned for a rehearing which was granted. This opinion is upon rehearing. The facts are stated in the opinion.

Hon. A. J. Plowman, Judge. ■ Action for money had and received. Judgment for defendant, and plaintiff appeals. The facts are stated in tbe opinion.

<p>Error to circuit court, Minnehaha county. Hon. Frank R. Aikens, Judge.</p> <p>Birdj,Valentine was convicted of selling intoxipating liqiiors, and brings error,</p> <p>The facts are stated in the opinion.</p> <p>In an indictment for the sale of intoxicating liquors, the facts showing a sale, a delivery of the goods and also a price must be set forth. Comm. v. Dean, 21 Pick. 334; State v. Doyle, 11 R. I. 574; State v. Walker, 3 Hoar. Del. 574; Robertson v. Lambert-ville, 38 N. J. 69; State v. PJainfield, 44 N. J. 118; Cafritz v. State, 1 Md. 569; State v. Faucett, 4 Dev. andB. L. 107; State v. Starney, 71 N. C. 202; State v. Schroder, 3 Hill. S. C. 61; State v. Steed-man, 8 Rich. Law. 312; Dorman v. State, 34 Ala. 216; Dixon v'. State, 21 Tex. 517; State v. Stuckey, 2 Blackf. 289; Blodget v. State, 3 Ind. 403; McLoughlin v. State, 45 Ind. 338; State v. Allen; 32 la. 491; Wilson v. Comm. 14 Bush. 159; State v. Pischel, 16 N. W. 608; Martin v. State, 46 N. W. 619; State v. Schmoil, 25 Minn. 368; State v. Stinson, 17 Maine 154; State v. Cox, 19 Mo, 475; Comm. v. Tranier, 123 Mass. 414; State v. Wentworth, 35 N. H. 442; Bishop Statutory Crimes, § 1037; State v. Smith, 52 N. W. 320. In criminal proceedings the admission of any incompetent evidence, provided it be such that any man on the jury could possibly base his conclusion of guilt upon it, will be grounds for reversal. People v. McKeon, 64 Hun, 504; State v. Nolan, 30 Pac, 486; George v. Railroad, 5 N. W. 615; Montag v. People, 30 N. E, 337; Stabel v. Moser, 29 N. W. 821; Jeffry v. Thompson, 21N. W. 659; Leasman v. Nickelsen, 12 N. W. 270. It is the province of the jury to reconcile the evidence given by the witness but the stenographer’s statement of what the testimony is cannot be received. Bishop Crim. Pro., § 1180; Shipp v. State, ll Tex. 46; Roberts v. State, 111 Ind. 340; State v. Myrick, 38 Kan. 238; Jackson v. Commonwealth, 19 Gratt. 656; Hooker v. Commonwealth, 13 Gratt. 763; Wade v. State, 12 Ga. 25; Maweer v. People, 43 N. Y. 1; Brawer v. Commonwealth, 8 S. W.; Dougherty v. Commonwealth, 69 Pa. 286; People v. Ormsby, 48 Mich. 494.</p> <p>Where an offense is purely statutory it is sufficient to charge jt ip the language pf the statute, and in an indictment for selling spirituous liquors in small quantities, it is unnecessary to aver to whom sold, or the number of persons. People v. Sweetzer, 1 Dak. 295; People v. Sponsler, 46 N. W. 459; State v. Hafoos, 47 N. W. 400; 1 Bishop Crim. Proc. § 611; 2 Whorton Crim. Law § 2445; State v. Adams, 17 Wend. 475; Osgood v. People, 39 N. Y. 449; State v. Gnmmer, 22 Wis. 422; Rice v. People, 38 111. 435; United States v. Grooding, 12 Wheat. 460; United States v. Brit-ton, 107 U. S. 655; Connan v. United States, 116 U. S. 55; United States v. Mills, 7 Peters 138; United States v. Simmons, 96 U. S. 360; State v. Light, 17 Oreg. 358.</p> <p>The time of the commission of the offense laid in the indictment does not confine the proofs within the limits of that period; the indictment will be satisfied by proof of the offense on any day anterior to the finding. Wharton on Crim. Ev. § 103; Black on Intoxicating Liquors; Armington v. Com., 12 S. E.224; Savage v. Com. 5 S. E. 563; State v. Findley, 77 Mo. 338; State v. Wambold, 72 la. 468; New York v. Mason, 4 E. D. Smith 142; State v. Heinzie, 44 Mo. 403; State v. Croteau, 23 Yt. 14; Olmstead v. State, 9 So. 737; State v. Brown, 6 So. 638; State v. Bielby, 21 Wis. 204; State v. Whisner, 35 Kan. 271; State v. Schweitzer, 27 Kan. 499; Myers v. Ringstead, 51 N. W. 519; Com. v. Phelps, 11 Grray 73; Crane v. State, 14 Tex. 634; Commonwealth v. Wood, 60 Mass. 11; Saunders v. State, 14 S. E. 570; State v. Chiswell, 15 S. E. 412. In cases of misdemeanor where proof of the offense discloses several transactions each of which in' itself constitutes the offense charged it rests within the sound decision of the trial court to grant or refuse a motion to compel the state to elect. State v. Czarnikow, 20 Ark. 160; State v. Smith, 22 Yt. 7476; Koch v. State, 32 Ohio, 353; Stockwell v. State, 27 Ohio 563.</p>

Hon. A. W. Campbell, Judge. This case was first determined by this court in an opinion found in 5 S. D. 461, in which opinion a conviction of the defendant of the offense of selling liquors unlawfully was affirmed. A rehearing was afterwards granted.

Hon. J. W. Jones, Judge. Henry D. Van Nice appeals from conviction for adulter-y. The facts are stated in the opinion. A motion to quash an indictment on the grounds of irregularities on the part of procuring a grand jury is addressed to the discretion of the court. Richards v. State, 82 Wis. 372; Adams v. State, 28 Fla. 511; State v. Colger, 30 Pac. 89 L; Early v. Commonwealth, 86 Ya. 921; ü. S. v. Gale, 109 U. S. 72; Elliot App.

Hon. E. Pakliman, Judge. Action to recover upon a debt incurred for property obtained under false pretenses. Judgment for plaintiff, and defendant appeals. The facts are stated in the opinion. The statute of exemptions being for the protection of the family, a debtor cannot waive, in advance, the benefit of said statute. Erazier v. Syas 4 N. W. 934; Kneéttle v. Newcomb, 22 N. Y. 249.

Hon. William Gaednee, Judge. Action to recover for service performed and money advanced. Judgment for defendant, and plaintiff appeals. Tbe facts are stated in tlie opinion. A president and general manager of a corporation bas implied powers to engage and discharge counsel. 1.

Hon. Frank E. Aikens, Judge. Action to recover damages. Judgment for plaintiff, and defendant appeals. The facts are stated in the opinion. Where a mortgagee is not guilty of unreasonably refusing a discharge, the statutory penalty will not be enforced. Huxford v. Eslon, 53 Mich. 179.

Hon. Frank R. Aikens, Judge. Action to foreclose a mortgage. From a judgment for plaintiff, defendant Jackson appeals. The facts are stated in the opinion. By the “Comity of Nations” the laws of one state must be recognized and executed in another where the rights of individuals are concerned. Burns v. Railroad, 113 Ind. 166; 3 Am. and Eng.

Hon, A. W, Campbell, Judge. Action to quiet title. A demurrer to the complaint was overruled, and defendant appeals. The facts are stated in the opinion. A lien, or contract for a lien, transfers no title to the property subject to the lien. Everett v. Buchanan, 2 Dak. 264; Minnesota v. Webb, 10 Minn. 59; Meighen v. Strong, 6 Minn. 177. Erroneous or illegal assessments of a municipal corporation may be reviewed by the courts on certiorari, and set aside.

Hon. Chas. M. Thomas, Judge. Action in attachment. The attachment was dissolved, and plaintiff appeals. The facts are stated in the opinion. Good faith on the part of husband and wife must be shown where transactions are had between them to the prejudice of the husband’s creditors.

Hon. E. Parliman, Judge. Action for damages on contract. From the judgment rend- ' ered, plaintiff appeals. The facts are stated in the opinion. The same rules, as to sufficiency of pleading, apply to counterclaims and complaints. Pom. Rem. & Rem. R. 516; Smith v. Hobart, 5 N. W. 666. After the reversal of an erroneous judgment the parties in the court below have the same right that they originally had.

Hon. A. W. Campbell, Judge. Action in claim and delivery. Plaintiff had judgment and defendant appeals. The facts are stated in the opinion. Property seized by an officer by virtue of a process is in the custody of the law and cannot be seized upon by any other court, and a defendant, and owner of a chattel, cannot maintain an action of replevin against an officer for possession of goods taken from him by virtue of legal process issued against him.

Hon. J. O. Andrews, Judge. Action to foreclose a chattel mortgage. A motion for leave to file a supplemental complaint was denied, and plaintiffs appeal. The facts are stated in the opinion. A supplemental pleading must relate to the same cause of action as the original and must be considered with and additional to the former pleading. Stafford v. Howlett, 1 Paige, 201; Maxwell, Code PI. 587; Code Civ.

<p>Appeal from circuit court, Olay county. Hon. D. Haney, Judge.</p> <p>Action to foreclose a mortgage. From tbe judgment rendered plaintiff appeals.</p> <p>Tbe facts are stated in tbe opinion.</p> <p>The release of the security for a negotiable note, made with-out any authority from the owner and holder thereof, does not effect his right to enforce the security. Carpenter v. Longon, 16 Wall. 271; Ins. Co. v. Eldredge, 102 U. S. 545; Keohan v. Smith, 97 111. 156; Burhause v. Hutcheson, 25 Kan. -625; Lee v. Clark, 1 S. W. 142; Hogerman v. Sulton, 4 Id. 73; Yandercook v. Baker, 48 la. L99; Mortendale v. Burch, 27 Id. 291; Braley v. Ellis, 71 la. 155; Sweet v. Stork, 31 Eed. 858; Gordon v. Mulhan, 13 Wis. 22.</p> <p>All that relates to the nature and validity of a contract is governed by the law of the place where executed. Baxter v. Talbot, 28 N. E. 164; Scudden v. Bank, 91 Y. S. 406; Pratt v. Adams, 7 Paige 638; Joslim v. Miller, 14 Neb. 91; Olmstead v. New, llld. 487; Thompson v. Edwards, 85 Ind. 421; Hoyt v. Thompson, 19 N. J. 224; Milliken v. Pratt, 125 Mass. 374; Richards v. Barlow, 140 Id. 218; Shoe v. Wood, 142 Id. 563; Howenstein v. Barnes, 5 Dillon 482; Wood v. Ripley, 11 Hump. 194; Brown v. Am. Co. 31 Fed. 519; New v. Yader, 28 Id. 268; Penensula v. Shaud, 3 Moore 272; 2 Jacob’s Fish. Dig. 2258; Scott v. Pilkington, Id. 2257. A maker of securities is not bound to pay them unless they are produced and their absense raises a presumption against him which he is bound to remove by proof of the agent’s authority with whom he deals. Smith v. Kidd, 68 N. Y, 130; Williams v. Walker, 2 Sandf. Oh. 325; Kellogg v. Smith, 26 N. Y. 18; Clark v. Ingelstrom, 51-How. Pr. 407; Guilford v. Stacer, 53 Ga. 618; Brown v. Blydenburg, 7 N. Y. 141; Security v. Graybeal, 52 N. W. 497; Cooley v. Willard, 34 111. 68; Keohaue v. Smith, 97 Id., 156. Though an agent has authority to receive payment of an obligation, this does not authorize him to receive it before it is. due. Mechem, § 380; Doubleday v. Kress, 50 N. Y. 410; Camp-' bell v. Hassel, 1 Stark 233; Fellows v. Nortkrud, 39 N. Y. 117; Hutchings v. Clark, 64 Cal. -228. Nor can he receive anything but money under such authority. Hayes v. Lynn, 7 Watts. 524; Mc-Culloch v. McKee, 16 Pa. St. 289; Robinson v. Anderson, 106 Ind. 152; Miller y. Edmonston, 8 Blackf. 291; Hayman v. Beringer, 1 Abb. 315.</p> <p>In the absence of any evidence, the presumption is that the laws of other states are similar to our own and that the holdings of their courts are in accordance with those of ours. Thomas v. Pendleton, 46 N. "W. 180; St. Louis v. Weaver, 11 Pac. 408; Crafts v. Clark, 38 la. 237; Hadley v. Gregory, 57 la. 157; Walsh v. Dark, 12 Wis. 709; Cooper v. Beaney, 4Minn. 413; Houghtalingv. Ball, 19 Mo. 84; Terrett v. Woodruff, 19 Vt. 183. The title of an assignee to a chose in action is not complete except as against the assignor until notice of the transfer has been given to the debtor. Loomis v. Loomis, 26 Yt. 208; Oampell v. Day, 16 Yt. 568; Heernans v. Ellsworth, 64 N. Y. 169; Dodd v. Brotl, 1 Minn. 205; McWilliams v. Webb, 32 la. 507; Noble v. Thompson, 79 Pa. St. 354; Bandolph Comm. Paper, 788; Bishop Cont. 1180.</p>

Hon. E. G. Smith,' Judge. Action for divorce. From an order setting aside a default decree for plaintiff, the latter appeals. The facts are stated in the opinion. Where a judgment of dismissal is made improperly, the remedy of the opposite party is by appeal from that judgment. Higgins v. Mahoney, 50 Oal. 444; Pinkney v. Hagaman, 4 Lancing 474; Harris v. Clark, 10 How. Prac. 415.

<p>Appeal from circuit court, Minnehaha county. Hon. J qseph W. Jones, Judge.</p> <p>Application in habeas corpus. Applicant was ordered discharged, and from an order refusing to vacate the order of discharge defendant appeals.</p> <p>The facts are stated in the opinion.</p> <p>The form of an action is governed by the statements of the complaint. Miller v. Scherder, 2 N. Y. 261; Parce v. Halbert, 1 How. Pr. 285; Parker v. Spear, 62 Id. 394; Thompson Pror. Rem. 137; Kloppenberg v. Neefus, 4 Bandf. 655; Philbrook v. Kellogg, 21 Hun. 238. Under section 5115 Comp. Laws a 'judgment debtor may be arrested, if the action be in tort. In re Luke Moory, 12 Wis. 52; Scybran v. Smith, 7 Hill 182; .Black Judg. section 9.</p> <p>An appeal from a court order should be taken within sixty days after the order is made. In re Weber, 59 N. W. 524. The justice court having no jurisdiction to issue a body execution on appeal the appellate court acquired no such power. Plunkett v. Evans, 2 Dak. 442.</p>

Hon. William Gardner, Judge. Action to recover damages for killing a horse. 'Plaintiff had judgment, and defendant appeals. The facts are stated in the opinion. Where a railway is shown to have fully complied with the statute as to the running of its train, the burden of proof is upon the plaintiff to show by a preponderance of evidence that the damage was done by the gross negligence of the railway or its employes.

Hon.. E. G-. Smith, Judge. Action to recover upon a fire insurance policy. Defendant had. judgment and plaintiff appeals. The facts are stated in the opinion. If an insurer denies liability, asserts that the policy is null and void, that it has been canceled or never attached, or that there was no contract or otherwise repudiated liability, the proof is entirely waived. Peet v. Dak. In. Oo., 47 N. W. 532; Johnson v. Dak. In. Co., 45 N..

'Hon. D. Haney, J udge. Action on a county treasurer’s bond. From a judgment for plaintiff, entered on the report of a referee, defendants appeal. The facts are stated in the opinion. A county has no power to bring suit, only as such power is conferred by statute, and the statute must be strictly followed. Sections 617 and 1656 Comp. Laws; State v. Aberdeen, 9 Neb. 429.

Hon. J. O. Andrews, Judge. Action on a guaranty. From an order denying a motion to vacate a judgment by default, defendant appeals. The facts are stated in the opinion. The power to open a judgment, for sufficient reason in furtherance of justice, is inherent in the court. Lord v. Hawkins, 39 Minn. 73; Nye v. Swan, 44 . N. W. 9; Keifer v. Bail-, road, 8 N. Y. 230; Am.

Hon. J. O. Andrews, Judge. Action in attachment. From an order dissolving an attache ment, plaintiff appeals. Tbe facts are stated in tbe opinion. A chattel mortgage is fraudulent as to creditors when there is an agreement between tbe parties that tbe mortgagor may use and dispose of tbe mortgaged goods in tbe usual course of trade.

Hon. Joseph W. Jones, Judge. Action to recover life insurance. Judgment for plaintiffs, and defendants appeal. The facts are stated in the opinion. The charter, constitution and by-laws and rules of a society enter into and become a part of the contract between the organization and member and are to be construed together.

<p>Appeal from circuit court, Minnehaha county. Hon. Joseph W. Jones, Judge.</p> <p>Action on a promissory note. Defendants had judgment, and plaintiff appeals.</p> <p>The facts are stated in the opinion.</p> <p>A cashier of a bank may bind it by acts done outside of the scope of his authority. North v. Stebbins, 2 S. D. 74; U. S. v. City, 21 How. 346; Buffalo v. Shorp. 58 N. W. 734; Horngon v. Bank, 10 Legal News, 112.</p> <p>A party who affirms a contract made for him by his agent must adopt all the instrumentalities employed by his agent to bring it to a consummation. Elwell v. Chamberlain, 31 N. Y. 619; Hickland v. Minasha, 68 Wis. 34; 2 Beach Priv. Corp. 448; Boone. Corp. 79; Caley v. Railroad, 80 Pa. 363.</p>

Hon. J. O. Andrews, Judge. Adion for conversion of wheat. From a judgment for defendant, plaintiff appeals. The facts are stated in the opinion. Under an agreement that all the produce shall be owned by the-employer until a division is made according to the terms of the contract, the property can not be taken on execution until the contract is performed and a division made. Putman v. Wise, 27 Am.

Separate original actions for mandamus. The two cases were consolidated for trial. Judgment for plaintiffs. The facts are stated in the opinion.

Original action in quo warranto to try defendant’s title to the office of regent of education. The facts are stated in the opinion.

Hon. Howard G. Fuller, Judge. Action for damages for breach of contract. Judgment for plaintiff, and defendants appeal. The facts are stated in the opinion. Oral testimony cannot be received to interpret the meaning of a written contract. Bishop Cont. 871; Martin v. Cole, 104 U. S. 80. No damages can be recovered for a breach of a contract which are not clearly ascertainable, both in their nature and origin. Section 4581, Comp.

Appeal frpm circuit court, Brown county. Hon. A. W, Campbell, Judge. Mary H. Yorks, having been appointed guardian for Urso A, Engle, a minor, George S. Engle appealed to the Circuit court, The appointment was there affirmed, aird appellant appeals. The facts are stated in the opinion.

Hon. William Gardner, Judge. Action to recover money deposited in bank. Plaintiff had judgment and defendant appeals. The facts are stated in the opinion. Issues raised by the averment of new matter in the defendant’s second amended answer are material. Dale v. Burleigh, 1 Dak. 218; Jandt.v. South, 2 Dak. 46; Gear, Scott & Go. v. Spaulding, 51 N. W. 867; Holt v. Van Epps, 2 Dak. 214.

Hon. J. O. Andrews, Judge. Action for a writ of mandamus. From a judgment awarding the writ, defendants appeal. The facts are stated in the opinion. An alternative writ of mandamus must contain a statement of all the facts necessary to justify the order sought for by the proceeding, and at the hearing the omissions in the writ cannot be supplied by the affidavit or application on which it was allowed.

<p>Error to circuit court, Day county. Hon. A. W. Campbell, Judge.</p> <p>Henry Serenson was convicted of embezzlement and brings error.</p> <p>The facts are stated in the opinion.</p>

<p>1. An appeal from a judgment only, that is entered before a new trial is applied for, presents for review errors of law brought to this court by a proper bill of exceptions.</p> <p>2. It is within the sound discretion of a trial court to allow any question to be asked on redirect examination that was proper and admissible on the examination in chief.</p> <p>3. In a suit by real estate brokers to recover a commission which it is claimed defendant contracted to pay upon the sale of certain real property, one of the plaintiffs testified that on the 10th day of October, 1889, he sold the property, and the defendant orally agreed to pay the firm of which he was a member a commission of S150 if the sale was consummated. On the redirect examination of the defendant his counsel offered to prove by the witness that the sale was never consummated; that plaintijfs were never authorized to sell the property, and never had anything to do with the sale of the same. This offer was denied, and, upon the ground that' a question relating thereto was incompetent, irrelevant and immaterial, an objection was sustained. Held, error.</p> <p>(Syllabus by the Court.</p>

<p>On rehearing.</p> <p>The facts are stated in tbe opinion.</p>

Hon. D. Haney, Judge. Action to recover damages. Plaintiff had judgment, and defendant appeals. The facts are stated in the opinion. The acceptance of freight by a common carrier for a place beyond his usual route, and naming the shipper a through rate, does not therefor amount to a through contract. Stewart v. Railroad, 3 Fed. 768; Converse v. Trans. Co., 6 Am. L. Reg. 214; McCarthy v. Railroad, 9 Mo. App. 159; Railroad v. Kerr, 8 So. 330.

Hon. Joseph W. Jones, Judge. Proceedings for the establishment of a highway. From the judgment rendered on appeal from an order of the town supervisors, plaintiff appeals. The facts are stated in the opinion. Civil townships can assume and exercise corporate functions for such purposes only as are provided by the law. Dillon, Mun. Corp. 41; .VanAntwerp v. Dell Rapids, 59 N. W. 209.

<p>1. Chapter 124, Laws 1887, being section 117 et seq., Comp. Laws, and known as the ‘‘Public Examiners’ Act,” providing that upon the filing of a report of his examination, as required by said law, with the governor, he, the governor, “may cause the résults of such examination to be published or at his discretion, to take such action for the public security as the exigency may demand; and if he should deem the public interests to require, he may suspend any such officer from further performance of duty until an examination be had, or such security obtained as may be demanded for the prompt protection of the public funds,” — was not intended to, and does not authorize the governor to remove from office any officer so madq the subject of the examiner’s report.</p> <p>2. Even if such law were originally intended to authorize the governor to so remove from office at his discretion, the law in that respect and to that extent is inconsistent with, and therefore abrogated by, section 4, art. 16, of the state constitution.</p> <p>Fuller J., dissenting.</p> <p>(Syllabus by the Court.</p>

Original application for alimony pending an appeal by applicant in an action for divorce. The facts are stated in the opinion. An application for suit money and temporary alimony may be made to the supreme court to enable a wife to prosecute her appeal and to support her pending a hearing of the same. Friend v. Friend 27 N. W. 34; Wagner v. Wagner, 30 N. W. 766; McBride v. McBride, 23 N. E. 1065; Bohnert v. Bohnert, 27 Pac. 732; Grant v. Grant, 5 S. D. 1.

Hon. H. G. Fuller, Judge. Action to set aside a mortgage sale and for foreclosure. There was judgment for defendants, and plaintiff appeals. The facts are stated in the opinion. Where land is described and used as one tract, it should be sold at sheriff’s sale en masse. Lalor v. McCarthy, 24 Minn. 417; Willard v.- Finnegan, 44 N. W. 985; Johnson v. Williams, 4 Minn. 260; Paquin v. Braley, 10 Id. 379; Abbott v. Peck, 29 N. W. 194.

Hon. Boring E. Gaeey, Judge. Action to recover money received for rents during year of redemption. From a judgment for plaintiff, defendant appeals. The facts are stated in the opinion. The rents and profits of property belong during the redemption period, to the purchaser at a foreclosure sale. Guy v. Middleton, 5 Oal. 392; Reynolds v. Yathrop, 7 la. 43; Harris v. Reynolds, 13 la. 515; Walker v. McOusker, 15 Pac. 723; Clement v. Shipley, 51 N. W. 414.

Hon. Joseph W. Jones, Judge. Election contest. Defendant had judgment and plaintiff appeals. The facts are stated in the opinion. The ballots themselves are the primary evidence of the votes cast. People v. Holden, 28 Cal. 124; Harpman v. Young, 20 Pac. 17; Dorey v. Lynn, 31 Kas. 758; Coughlan v. Beard, 67 Cal. 303; State v. Judge, 13 Ala. 805; Hudson v. Solomon, 19 Kas. 177.

Hon. A. W. Campbell, Judge. Action to recover money alleged to bave been obtained fraudulently. Plaintiff had judgment, and defendants appeal. The facts are stated in tbe opinion.

<p>1. As a general rule, a negotiable promissory note, like any other written instrument, has no legal or operative existence as such until it has been delivered in accordance with the purpose and intention of the parties.</p> <p>2. Promissory notes delivered by a person who has executed the same, upon the express condition that such notes shall not be deemed the notes of the party so executing them, or as delivered, unless they are also executed by another person named as a comaker, cannot be enforced by the payee against the person so executing them, unless also executed by the other person so named in the condition as a comaker.</p> <p>3. In such case evidence tending to prove the condition upon which such notes were executed and delivered to the payee, and that such condition had never been complied with, is competent, and does not come within the rule that parol evidence is inadmissible to contradict or vary the terms of a written instrument.</p> <p>4. Where the evidence leaves the facts undisputed, and they are such that different conclusions or inferences could not reasonably be drawn from them, it becomes the duty of the court to declare their legal effect.</p> <p>5. The evidence in this case examined, and the conclusion reached by the court that the material evidence on the part of the defendant was undisputed, and that it was such that only one conclusion or inference could reasonably be drawn therefrom, and that the court committed no error in directing a verdict for the defendant.</p> <p>(Syllabus by the Court.</p>

Hon. J. O. Andrews, Judge. James Dempsey Beddington, having been convicted of murder, brings error. The facts are stated in the opinion. Any omission or failure in the record to show that a defendant was properly arraigned and that Ms pipa of guilty or not ‘ guilty was entered before the trial cannot be cured by any subsequent corrections or insertions. 10 Am. and Eng. Enc. Law, 528; McQuillen v. State 16 Miss, 587; Com. v. Roby, 29 Mass. 496.

<p>William W. Taylor makes application for a writ of habeas corpus.</p> <p>The facts are stated in the opinion.</p>

<p>1. Under Section 8 Chapter 14, Laws 1891, personal property of the character and under the conditions described in the complaint must be listed and assessed in the county, town or district where the owner or agent resides.</p> <p>2. A taxpayer may apply to a court of equity for protection against the seizure and sale of his personal property in satisfaction of a tax wrongfully and unlawfully levied thereon.</p> <p>3. When the same personal property has been assessed in different counties for the same year, and the owner has paid the tax thereon in the county of his residence, he may maintain an action to prevent the collection of the tax assessed in another county, although the question of which is the proper county for its assessment has never been presented to the state auditor under Sec. 14, Chap.14, Laws 1891.</p> <p>(Syllabus by the Court.</p>

Hon. LoriNG E. Gaeey, Judge. Joseph W. Parmley filed a notice of contest of election on John J. Healy. Judgment for plaintiff, and defendant appeals. The facts are stated in the opinion. The intent of the voter, when not in violation of the election law, should govern, if that intent is made apparent by the ballot itself. In re Election, 3 Pa. His. Rep. 122; Weidknecht v. Hawk, Id. 124.

Hon. William: GARDNER, Judge. Action in claim and delivery. Judgment for plaintiff. Prom an order allowing defendant Bailey to set off mutual final judgments, plaintiff appeals. The facts are stated in tlie opinion. Judgments to be set off against each other must be such as are due to and from the same persons in the same capacity.

<p>Appeal from circuit court, Beadle county. Hon. A. W. Camppell, Judge. .</p> <p>Action to recover money due on account. Judgment for plaintiff, and defendant appeals.</p> <p>The facts are stated in the opinion.</p> <p>An incidental or collateral memorandum of a transfer made verbally is not primary evidence. Dunn v. Hewitt, 2 Den. 638; Abbott’s Tr. Ev. 303.</p>

Hon. D. Haney, Judge. Action on fire insurance policy. Judgment for plaintiff, and defendant appeals. The facts are stated in the opinion. A provision of a lease for a lien for rent is in effect a chattel mortgage. Greeley v. Winsor, 1 S. D. 117, 45 N. W. 325, 1 S. D. 619; 1 Oobbey, Chat. Mtges., Sec. 6. A writing in the nature of a lease may be a chattel mortgage even if the words sell, transfer or assign is not found therein.

<p>1. A rehearing will only be allowed when it is made to appear that some question which might have been controlling in the case has been overlooked by the court, or where it is made to appear that this court has probably committed an error in the decision of a question raised and argued.</p> <p>2. But where the petition for rehearing only restates the positions taken, and reiterates the claims made on the original argument, whether oral or printed, a rehearing will not be allowed upon the suggestion that upon a reargument the petitioner could satisfy the court that its former decision was wrong.</p> <p>(Syllabus by the court.</p>

Hon. Loring E. Garry, Judge. Action to recover money paid for a tax certificate. Judgment for plaintiff, and defendant appeals. The facts are stated in the opinion. A county is not liable for the wrongful acts of its officers unless made so by statute. Marquette v. Treas., 13 N. W. 609; Township v. County, 12 N. E. 305; 4 Am. and Eng. Ency. L. 367.

<p>Appeal from circuit court, Edmunds county. Hon. Loring E. G-aeey, Judge.</p> <p>Election contest. Judgment for plaintiff, and defendant appeals.</p> <p>The facts are stated in the opinion.</p> <p>The intent of the voter, when not in violation of the election law, should govern, if that intent is made apparent by the ballot itself. In re election, 3 Pa. Dist. Pep. 122; Weidknecht v. Hawk, Id. 124; Provisions of an election law, requiring the ballot to be marked in á certain manner, are mandatory. Curran v. Clayton, 27 Atl. 933; In re East, 3 Pa. List. Rep. 377; Parvin v. Winberg, 30 N. E. 790.</p> <p>The findings of fact cannot be reviewed except from an appeal from an order denying a new trial.1 Pierce v. Manning, 2 S. D. 517, 51 N. W. 33; Gaar, Scott & Co., v. Spalding, 51 N. W. 868. The judgment of "the court takes the place of the verdict of a jury. Ball v. Busch, 31 N. W. 565; Merrick v. Barry, 4 O. St. 60; Booth v. Reaves, 17 111. 175; Erye v. Ferguson, 61 N. W. 161. The omission of the lower court to make a proper finding constitute no ground for reversing the judgment where the court was not asked to make the finding and on refusal an exception taken. Williams v. Stevens, 40 N. W. 154; Ginin v. Williams, 21 Kas. 64; Warner v. Foot, 41 N. W. 195; Lanier v. Faust, 16 S. W. 994; Bowten v. Fritts, 15 Kas. 323; Barnhill v. Mills, 55 Ind. 1.</p>

Hon. William Gardner, Judge. Action for damages caused by fire. Judgment for plaintiff, and defendant appeals. The facts are stated in the opinion. In an action for damages caused by sparks from a locomotive, the plaintiff must not only prove that the fire may have proceeded from the locomotive, but must show by reasonable affirmative evidence that it did so originate.

Hon. A. W. Campbell, Judge. Action to foreclose a mortgage. From a judgment for a deficiency, defendant bank appeals. The facts are stated in tbe opinion. A covenant to pay cannot be implied from a deed unless its express terms so indicate. Yan Brunt v. Mismer, 8 Minn. 232; Hunt v. Louis, 4 Stewart. 132; Equitable v. Boswick, 100 N. Y. 628; Gage v. Jenkinson, 58 Micb. 169.

Hon. D. Haney,' J udge. Action to recover sheriff's fees for keeping personal property, Judgment for plaintiff, and defendant appeals. The facts are stated in the ■ opinion. To constitute a valid levy upon personal property, the officer must take actual possession, and exercise such control as in the absence of the writ, would amount to trespass. Powell v. Kechnie, 3 Dak. 319; Kix v. Silkmitter, 10 N. W. 553; Hibbard v. Lenor. 39 N. W. 714; Davis v. Bugliss, 1 N. W. 212.

Hon. J. O. Andrews, Judge. Action for services. From a judgment in the circuit court reversing the judgment for defendant, the latter appeals. The facts are stated in the opinion. A party contracting to labor for a definite term, who fails to fulfill his contract by reason of sickness, is liable to have the amount of his recovery reduced from the contract price by the damages sustained by his employer in consequence of his not being able to complete the full term of service.

Hon. J. O, Andrews, Judge. Action upon promissory notes. Judgment for defendant, and plaintiff appeals. The facts are stated in the opinion. Attorneys fees are costs, being an incident of the judgment and- arp no part of the amount Qlaimed; Mipey v. Crum, 48 la. 52; Spierbeeger v. Thomas, 13 N. W. 745; Watson v. Ward, 6 N. W. 407; 12 Am. & Eng. Enoy. Law, 426. With a statute prohibiting a clause in notes or contracts, providing for attorney fees, is illegal and void.

Hon. Joseph W. Jones, Judge. Application for writ of certiorari. Writ denied, and plaintiff appeals. Tlie facts are stated in tlie opinion. Tbe requirements as to what a summons shall contain are mandatory and in case of default no other or greater relief can be granted than is specified in the summons.

Hon. Joseph W. Jones, Judge. Action to recover on fire insurance policy. Judgment for plaintiff, and defendant appeals. The facts are stated in the opinion. The question of increase of risk is always one of fact for the jury to determine.' Schmidt v. Peoria, 41 111. 295; Williams v. Ins. Go., 57 N. Y. 274; Martin v. Ins. Co., 52 N. W. 534.

Joseph W. Jones, Judge. Action for false imprisonment. Defendants had judgment, and plaintiff appeals. The facts are stated in the opinion, and in Winton v. Knott, 63 N. W. 783 and 7 S. D. The justice court being without such authority, the action being one in which the defendant could not originally have been arrested, a like inhibition follows the case into the appellate court. Wells on Jurist, § 65; Cooban v. Bryant 36 Wis. 612; Taylor v. Smith, 64 111. 446; 1 Am. Eng.

Hon. Joseph W. Jones, Judge. Action to recover for goods sold and delivered. Judgment for defendants, and plaintiff appeals. The facts are stated in the opinion. Written contracts cannot be varied by parol evidence. McCormick v. Wilson, 40 N. W. 571; Aultman v. Brown, Id. 159; Dyer v. Walem, 7 S. E. 220; Harrison v. Morrison, 40 N. W. 66; Blair v. Buttolph, 33 N. W. 349; Marcus v. Loratson, 76 la. 23.

Hon. A. W. Campbell, Judge. Action to set aside a foreclosure sale and cancel the certificate. Defendants bad judgment, and plaintiffs appeal. Tbe facts are stated in tbe opinion. In cases of attempted revivor of mortgages, tbe creditor can only be protected by tbe doctrine of equitable mortgage. Peckont v. Haddock, 36 111. 38.

Hon. J. O. Andrews, Judge. Action to recover for breach of warranty. Defendants had judgment and plaintiff appeals. The facts are stated in the opinion. Under the statutes of Illinois exhibiting claims to the court means filing with court for allowance. Wallace v. Gotchell, 106 Ills. 314. Executors and administrators should interpose the statute of limitations against claims, but their failure to do so, will not deprive the heirs and devisees of its protection.

Hon. J. O. Andrews, Judge. Action to-foreclose a mortgage. Judgment for defendants, and plaintiff appeals. The facts are stated in the opinion. Mergers never take place unless the parties so intend and nothing intervenes to prejudice the new relation. Smith v. Roberts, 91 N. Y. 470; Franklin v. Hayward, 61 How.

Hon. Charles M, Thomas, Judge. Action upon official bond. Judgment for plaintiff. Defendants Albien and EJeeman appeal. The facts are stated in tbe opinion. The verdict must conform to the issue, and must not go beyond or contradict the pleadings. And if the court, instead of having the verdict corrected by jury, attempt to correct it by the judgment, and go beyond theverdict, it is error.

Hon. William: Gardner, Judge. Action for breach' of contract. Plaintiff had judgment, and defendant appeals. The facts are stated in the opinion. Damages that are special in character must be specifically alleged. Stephen v. Smith, 28 Cal. 103; Havemeyer v. Puller, 60 How. Pr. 316; Malony v. Daws, 15 How. Pr. 265; Shaw v. Hoffman, 21 Mich. 151; Solms v. Lias, 16 Abbt. Pr. '311; Devilin v. City, 23 N. Y. 388; Corbett v. Anderson, 54 N. W. 727; Company y. Hopkins, 53.

Hon. A. J. Plowman, Judge. Action to have certain deeds declared mortgages, and for foreclosure of the. same. Defendant had judgment, and plaintiff appeals. The facts are stated in the opinion. A counter claim is intended to secure to a defendant all the relief which either an action at law, or a bill of equity, or a cross bill would have secured on the same state of facts. 7 Wait’s Act. and Def. 558; Connor v. Winton, 7Ind. 623; Lovejoyv.

Hon. William Gardner, Judge. Action for an injunction. From an order granting the writ, defendants appeal. The facts are stated in the opinion. A court of chancery has no more power than any other to dispossess a person of property prima facie his. Arnold v. Bright, 2 N. W. 16. A court of equity cannot change the possession of lands in conflict, from one party to another until the merits have been finally passed upon.

Hon. E. G, Smith, Judge. Action on undertaking on appeal. Defendants had judgment and plaintiffs appeal. The facts are stated in the opinion. The statutory undertaking on appeal is not required to run to any designated person. Ins. Go. v. Park, 37 Wis. 133. A debt due from an administrator to an estate is considered in law as having already been paid to himself ás administrator, for the use of the estate, and he is compelled to account for it to^ the probate court.

Hon. Joseph W. Jones, Judge. Action on a statutory undertaking in claim and delivery. Defendants had judgment, and plaintiff appeals. The facts are stated in the opinion. A qualified denial of the defendant in his answer is in legal effect an admission of the plaintiff’s allegations. Clark v. Dillon, 97 N. Y. 370; Mattoon v. Railroad, 60 N. W. 69. Where a person gives a receipt for property, he is estopped from denying that he received the property.

Hon. Joseph W. Jones, Judge. Action to restrain the collection of taxes. From a judgment sustaining a demurrer to the bill, plaintiff appeals. The facts are stated in the opinion. An injunction will lie at the suit of a bank to restrain a tax assessed against its shareholders. Cummings v. National, 101 U. S. 153; Pelton v. National, Id. 143. An injunction will lie to restrain the collection of personal taxes.

. Appeal from circuit court, Hutchinson county. Hon. E. G. Smith, Judge, Action to recover taxes. Judgment for plaintiff, and de-' fendant appeals. The facts are stated in the opinion.

Hon. Loring E. Gappy, Judge. William Walter Taylor, having been convicted of embezzlement, brings error. The facts are stated in the opinion. Embezzlement is purely a statutory offense, created to reach a class of offenses, not punishable as larceny. 2 Bishop, Grim. Law, 318; 6 Am. & Eng. Ency. Law, 451; 1 Whorton Crim. Law, 1009. The state is not an association, society, or corporation, but a body politic. 23 Am. &Eng. Ency.

<p>This court will not consider, and therefore will not allow a rehearingfor the discussion of, the constitutionality of a law in a respect or particular not affecting the controversy to be decided.</p> <p>(Syllabus by the Court.</p>

Hon. D. Haney, Judge. . Action to recover for wages as public school teacher.' Defendant had judgment, and plaintiff appeals. The facts are stated in the opinion. Where a teacher contracts to teach in a department where the duties of the position have been fixed and established, the presumption is that the duties to be performed under the contract will be the same as previously prevailed. Comp. Laws, § 3551.

Hon. Joseph W. Jones, Judge. Action to recover money advanced for support. Judgment for plaintiff, and defendants appeal. The facts are stated in the opinion. A complaint alleging an open and a balance due states two causes of action. Eisenhauer v. Stein, 15 Kan. 167; Werlitzer v. Suppe, 15 P. 863; Union v. Traube, 59 Mo, 355; Weinland v. Cochran, 9 Neb. 480. A summary proceeding may not be joined with any other cause of action, although arising out of the same transaction.

Hon. J. O. Andrews, Judge. Action by H. B. Greenly against John M. Hopkins. Judgment for defendant, and plaintiff appeals. Tbe facts are stated in the opinion. A summons issued out of a justice court must contain a sufficient statement of tbe cause of action in general terms to apprise the defendant of the nature of the claim against him. Sec. 6053 Comp. Laws; McPherson v. Bank, 10 N. W. 707; Berrick v. Muir, 23 Pac. 389; Behlow v. Shorb, 27 Pac. 546; 12 Am. and Eng. Ency.

Hon. A. W. Campbell, Judge. Action to recover for board and lodging. Plaintiff had judgment, and defendant appeals. The facts are stated in the opinion. To enable a third party not a party to the contract to sue upon it, it must appear that there was a clear intent on the part of both parties that the one party shall become the debtor of the third. 3 Am. and Eng.

The facts are stated in the opinion. Mandamus will not lie to compel a city to appropriate a part of its revenues already raised to pay demands not provided for in raising it, when all such revenue is appropriated and the law forbids any diversion, and will not be employed to compel the payment of judgments to an extent that would deprive the municipality of means for ordinary and necessary municipal expenses. E. St. Louis v. Trustees, 6 111.

Hon. A. W. Campbell, Judge. Action for damages for breach of contract. Judgment for plaintiff. Defendant appeals. The facts are stated in the opinion. An undertaking at least equal to the amount of the claim specified in the affidavit must be required before issuing the writ of attachment.

Hon. Joseph W. Jones, Judge. Action in attachment. From an order dissolving the attachment plaintiffs appeal. The facts are stated in the opinion. The denial of plaintiff’s affidavit for attachment puts the burden on them to sustain the grounds of attachment by further proof. Wyman v. Wilmarth, 46 N. W. 190; 1 S. D. 35; Benedict v. Ralya, 46 N. W. 188; Wilcox v. Smith, 55 Id. 1107.

Hon. Loring E. Gaefy, Judge. Action for damages for killing of stock. Judgment for plaintiff, and defendant appeals. The facts are stated in the opinion. If one makes another an offer, verbal or written, of a sort implying nothing to be done except to assent or decline, and the other accepts it, adding no qualifications, there is thus constituted a mutual consent to the samp thing, in other words, a contract.

Hon. Joseph W. Jones, Judge. Action by Mary Malloy against S. H. Brewer. From an order setting aside service of summons, plaintiff appeals. The facts are stated in the opinion. A. witness cannot be sued in a county in which he does not reside by being served with% summons in such county, while going, returning, or attending in obedience to a subpoena only. Gomp. Laws, § § 2505 and 5274; Fisk v. Westover, 55 N. W. 961; 4 S. D. 233.

Hon. Wha ljam Gardner, Judge. Action on promissory note. Judgment for plaintiff, and defendants appeal. The facts are stated in the opinion. If all the recitals or stipulations in a promissory note leave the promise absolute to pay a certain sum at the time limited they do not destroy its negotiability. 1 Daniel Neg.

Hon. A. W. Campbell, Judge. This case was first decided by this court in an opinion reported in 7 S. D. 1; 62 N. W. 982, in which opinion the judgment of the court below in favor of the defendant was reversed. Thereafter a rehearing was ordered in the case. This opinion is upon the rehearing.

Hon. Chas. M. Thomas, Judge. Action to determine the right to the possession of a mine. Defendants had judgment and plaintiffs appeal. The facts are stated in the opinion. Service upon the agent of a foreign corporation, who is agent in the very transaction out of which the suit arises, is sufficient. Estes V. Belford, 22 Fed. 275; Merchants v. Railroad, 13 Id. 358; Moch v. Ins. Co., 10 Id. 696; Berlin v. Norton, 17 Atl. 1079; 22 Am. Ency. Law 129; 2 Morowetz Corp. 980.

Hon. E. Parliman, Judge. John B. Scott was convicted on a complaint for bastardy, and brings error. The facts are stated in the opinion. Proceedings under Chap. 24 of Session Laws of 1893, are quasi criminal. Yan Tassel v. State, 59 Wis. 351. The proof, under bastardy proceedings, as to the paternity of the child, need not be sufficient to establish the fact beyond a reasonable doubt, a preponderance of' the evidence is sufficient. Baker v. State, 47 Wis.

Hon. E. Parliman, Judge. This case was first decided by this court in an opinion reported in 4 S. D. 105, 55 N. W. 759, 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. As to matters which do not limit its duties or liabilities, a common carrier can make its own regulations for the conduct of its business, so long as they are reasonable.

Hon. J. E. Adams, Judge. Ernest I. Bunker, having been convicted of bastardy, brings error. The facts are stated in the opinion. A proceeding for bastardy is in the nature of a civil action to enforce the performance of a civil and moral obligation, and is not a criminal action.

Hon. Feank B., AikeNS, Judge. Action upon a foreign judgment. From an order denying a new trial after verdict for plaintiffs, defendant appeals. The facts are stated in the opinion. Courts of another state will not receive as evidence of a foreign judgment in a suit brought upon it any record thereof which does not show upon its face that the defendant foreign corporation was doing business in the state. Black on Judgment, Sec. 910; Henning v. Ins. Co. 28 Fed. 440.