Volume 8 — South Dakota Reports

Hon. D. Haney, Judge. Action for damages for conversion of property. Judgment for plaintiff and defendant appeals. The facts are stated in the opinion. Statements against his own interests made by a party are competent against him and are to be received with great weight. Cook v. Barr, 44 N. Y., 156; Smith v. Shulenberg, 84 Wis. 41; Winebrerner v. Brunswick, 47 N. W. 1089; Blake v. Barrett, 15 N. W. 845.

Hon. Loring E. Gappy, Judge. Action on promissory note. Judgment for plaintiff. Defendants appeal. The facts are stated in the opinion. A national bank cannot become the owner of commercial paper by purchase. Farmers v. Baldwin, 23 Minn. 198; First v. Pierson, 24 Id. 140; Lazear v. Bank, 52 Md. 78; Wechler v. Bank, 42 Md. 591.

Hon. Frank R. Aikens, Judge. Action on a promissory note. Judgment for plaintiff, and defendants appeal. The facts are stated in the opinion. The power conferred upon courts to relieve parties from judgments taken against them by reason of their mistake, in-advertance, surprise or excusable neglect, should be exercised by them in a liberal spirit in furtherance of justice.

Hon. E. G. Smith, Judge. Action in claim and delivery. From [an order denying a new trial, after verdict for defendant, plaintiffs appeal. The facts are stated in the opinion. Evidence tending to show an intent on part of an insolvent purchaser to buy without paying for the goods is admissible.

Hon. Loring E. Gappy, Judge. Action by Frederick Dupree against the county of Stanley and John Hayes, treasurer thereof. Judgment for defendants, and plaintiff appeals. The facts are stated in the opinion. The court cannot extend the time for an appeal. Burns v. Phinney, 55 N. W. 540. An injunction to restrain the collection of a tax cannot be maintained solely on the ground of the illegality of the tax. Hannemuklev. Georgetown, 15 Wall. 547.

Hon. William Gardner, Judge. Action to recover for services. Judgment for plaintiff. Defendants appeal. The facts are stated in the opinion. A general denial puts the plaintiff upon the proof of the joint liability of defendants, if he would obtain a joint judgment. Stafford v. Nutt, 51 Ind. 535.

Hon. A. W. Campbell, Judge. Application for a writ of habeas corpus. From a refusal to discharge, applicant appeals. The facts are stated in the opinion. The contracting of a debt in a fiduciary capacity is not such a cause of action, as in case of judgment thereon, will warrant an execution against the body, unless there has been an order of arrest served. Wood v. Henry, 40 N. Y. 124; Sherman y. Strauss, 52 Id. 404; Prouty v. Swift, 51 Id. 594; Elwood v. Gardner, 45 Id. 349.

Hon. D. Haney, Judge. Election contest between William H. McKittrick and O. A. Pardee. Judgment for plaintiff, and defendant appeals. The facts are stated in the opinion.

Hon. Frank R. Aikens, Judge. This case was first decided by this court in an opinion reported in 5 S. D. 402, 59 N. W. 217, in which opinion the judgment of the court below in favor of plaintiff was reversed. Thereafter a rehearing was ordered in the case. This opinion is upon the rehearing. The former decision adhered to. • The facts are stated in the opinion. Negligence cannot be predicated alone upon the fact of the injury. Minty, v. Railroad 4 L. R. A. 409.

<p>On appeal from taxation of costs. For former opinions, see 4 S. D. 105; 463; 55 N. W. 759 and 65 N. W. 37.</p> <p>The facts are stated in the opinion.</p>

Hon. Joseph W. Jones, Judge. ' Action on a note. From á judgment for plaintiff, and an order denying a new trial, defendant appeals. The facts are stated in the opinion. The courts of a state will follow its own precedents in the expounding of the general common law applicable to commercial transactions. Faulkner -y. Hart, 82 N. Y. 413; Swift v. Tyson, 41 U. S. 16; Oats v. Bank, 100 Id. 239; Ray v. Peru, 138 Pa. 576.

Hon. A. W. Campbell, Judge. Action for an accounting. From a judgment of dismissal, plaintiff appeals. The facts are stated in the opinion. Where the demurr,er is overruled and defendant answers all questions raised by the demurrer are waived, except the question of jurisdiction and that the complaint does not state facts sufficient to constitute a cause of action.

Hon. J. 0. Andrews, Judge. Peter Isaacson was convicted of maliciously exposing - poison, and brings error. The facts are stated in the opinion. An indictment for a statutory crime should state the offense in the words of the statute, and it is not sufficient unless every fact necessary is charged, or necessarily implied, by following the words of the statute. Comm. v. Stout, 7 B. Mor. 247; Antony v. State, 29 Ala. 27; State v. Raines, 3 McCord, 533; 10 Am. and Eng. Ency.

<p>1. It is only when the action is brought on a claim not due that the plaintiff is entitled to an attachment, on the ground that his debtor is about to remove his property with the intent “of hindering and delaying” him in the collection of his debt. Comp. Laws, Sec. 5014.</p> <p>2. When the attachment affidavit shows the plaintiff’s claim to be past due, and alleges that the defendant “has sold, conveyed and disposed of his property with a fraudulent intent to cheat and defraud his creditors,” which allegation is denied by defendant, and, on the hearing of defendant’s motion to discharge, is not supported by plaintiff’s evidence, the attachment will not be sustained, because the defendant has not properly denied the allegation “that defendant is about to remove his property with intent and to the effect of hindering and delaying plaintiffs in the collection of their debts.”</p> <p>(Syllabus by the Court.</p>

Hon. A. J, Plowman, Judge. Petition for a writ of habeas corpus. From an order granting the prayer of petitioner, defendants appeal. The facts are stated in the opinion. Judgments upon habeas corpus cannot be attacked, however erroneous they may be, on appeal or writ of error, where jurisdiction- of the person and subject matter has been acquired. Williamson’s Code, 26 Pa. St. 9; 67 Am. Dec. 374. Habeas corpus proceedings cannot be converted into a writ of error.

Hon. Joseph W. Jones, Judge. Action for breach of contract. Demurrer of defendants overruled, and Edmison appeals. The facts are stated in the opinion. Where a grantee assumes a mortgage in the deed it places him in the position of principal debtor and his grantor as his surety. Warvelle on Vendors, 664; Wilcox v. Campbell, 106 N. Y. 325; Wadsworth v. Lyon, 93 N. Y. 201; Johnson v. Zink, 51 N. Y. 336. Actual compensation is given only for actual damages.

<p>Where, after the decision of a case in this court, the remittitur goes down, UDder the rules of the court, and without fraud, accident, or inadvertence, this court loses jurisdiction of the case, and will not entertain an application for rehearing.</p> <p>(Syllabus by the Court.</p>

Hon. Joseph W. Jones, Judge. Action, to recover the value of water converted by defendant. Judgment for defendant, and plaintiff appeals. Tbe facts are stated in the opinion. Absolute title need not be shown in an action for conversion. A bailee may sue. Van Bokkelin v. Ingersol, 5 Wend. 315; Baker v. Hoag, 7 N. Y. 555; Faulkenerv. Brown, 13 Wend. 63. The mere fact of lawful possession in plaintiff of property and wrongful taking by defendant is sufficient for recovery.

Hon. LoriNG E. GrAFFY, Judge. Action for balance due on a contract for the purchase of land. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. The facts are stated in the opinion. In the absence of fraud or mistake, a written contract of sale of land cannot be varied by proof of antecedent or contemporaneous verbal agreement as to what the vendor should do in consideration of the purchase.

Appeal irom circuit court, Edmunds county. Hon. Loring E. Gappy, Judge. Action on a promissory note. Judgment for defendants, and plaintiff appeals. The facts are stated in the opinion. The title need not describe the parties as partners and give the partnership name, if that fact appears in the body of the complaint. Bliss Code PL 145; 17 Am. & Eng. Ency. Law 496; 1 Lindley Partnership, 635.

Hon. William Gardner, Judge. Action on a promissory note. From the judgment reducing plaintiffs’ claim, plaintiffs appeal. The facts are stated in the opinion. A creditor to whom a payment of money is made by a debtor may credit the payment on either an account or note as he may choose — nothing being said as to how it should be applied. Blair v. Hillis, 41 N. W. 6; Whiting v. Eichelberger, 16la. 422; Firsh v. Roberts, 49 N. W. 722; Munson v. Plummer, 7 Id. 95; 18 Am. & Eng.

Hon. Loring E. Gaffy, Judge. This case was first decided by this court in an opinion reported in 8 S. D. 4, 65 N. W. 437, in which opinion the judgment of the court below in favor of the plaintiff was affirmed. Thereafter appellant filed a petition for a rehearing in the case. Tbis opinion is npon the rehearing. The former decision adhered to.

Hon. William Gardner, Judge. Action by plaintiff to recover damages for the death of her husband. From a judgment for plaintiff, defendant appeals. The facts lare stated in the opinion. Usage can never change the written stipulations of parties, though it may aid in the explanation of their terms. Ledyard v. Hibbard, 12 N. W. 637; Eager v. Ins.

Hon. E. G. Smith, Judge. This case was first decided by this court in an opinion reported in 5. S. D. 418, 59 N. W. 214, in which opinion the judgment of the court below in favor of plaintiff was affirmed. Thereafter a rehearing was ordered in the case. This opinion is upon the rehearing. The former decision adhered to.

Hon. D. Haney, Judge. • Action on contract. . From a judgment for defendant plaintiff appeals. The facts are stated in the opinion. Wherever the law specifically defines the power of public officers such specification is restrictive and exclusive. Farmers v. School, 6 Dak. 259; Jewell v. State, 56 N. W. 113, 4 S. D. 213. A cause of action, based upon a contractual amount that is fixed both as to the amount per day and the number of days worked is assignable. Comp.

Action to recover damages for breach of contract. Demurrer to first cause of action overruled, and sustained as to second cause of action. The facts are stated in the opinion. Where a contract has been assigned by one party, the acceptance by the other of the benefit under such contract is a ratification of the assignment. Devlin v. Mayor, 63 N. Y. 8; Horner v. Wood, 23 Id. 354; Cutting v. Packers, 10 Law R. 369.

Hon. Joseph W. Jones, Judge. This case was first decided by this court in an opinion reported in 7 S. D. 527, 64 N. W. 1122, in which opinion the judgment of the court below in favor of defendant was affirmed. Appellant asks for a rehearing.

Hon. A. J. Plowman, Judge. Action on contract for sale of property. Judgment for plaintiff, and defendant appeals. The facts are stated in the opinion. A general allegation of payment admits evidence of payment in cash or in any other mode or by any agency. Abb. Trial Ev. 799; Pom. Rem. § 701; 18 Am. & Eng. Ency.

<p>Appeal from circuit court, Beadle county. Hon. A. W. Campbell, Judge.</p> <p>This case was first decided by this court in ah opinion reported in 7 S. D. 9, 62 N. 975, in which opinion the judgment of the court below in favor of the plaintiff was reversed. The respondent filed a petition for a rehearing.</p>

<p>Upon facts stated in the opinion petition for writ of certiorari denied.</p> <p>(Syllabus by the Court.</p>

Hon. E, G. Smith, Judge. Action to recover excess freight charges. Judgment for defendant, arid plaintiff appeals. The facts are stated in the opinion. A bill of lading is both a receipt and a contract, and parol evidence is admissible as to amount of goods delivered. Bank v. Railroad, 67 la. 526, 25 N. W. 769; Chapin v. Railroad, 44 N. W. 820, 79 la. 582.

Hon. Loring E. Gappy, Judge. Action on promissory note. Judgment for plaintiffs, and defendant Millett appeals. The facts are stated in the opinion. Any agreement upon a consideration between the creditor find the principal for any extension of time to the principal without the surety’s consent will release the surety. 24 Am. & Eng. Ency. Law. 822; 2 Daniels Neg. Inst. § 1312.

Hon. A. W. Campbell, Judge. Action on account. Judgment for plaintiff. Defendant appeals. The facts axe stated in the opinion. If an agent chooses to act in matters beyond his authority and in a way antagonistic to the interests of the principal and inconsistent with the duties imposed by the agency contract he cannot complain of resulting damages. Konkey v. Bond, 36 N. Y. 427; Tisdale v. Tisdale, 64 Arm Dec; People v. Township, 11 Mich. 222; 1 Am. & Eng. Ency. Law, 375.

<p>Appeal from circuit court, Bon Homme county. Hon. E. C. Smith, Judge.</p> <p>Action to try the right of ownership of property. From an order setting aside a verdict for plaintiff, and granting a new trial, plaintiff appeals.</p> <p>The facts are stated in the opinion.</p> <p>Where a party claiming to have been surprised by the testimony of his own witness, makes application for a new trial on the ground of surprise, he should produce the affidavits of other persons to show his ability to make a different case by them. 2 Thompson Trial 2097; 3 Wait’s Prac., 403; Phoenix v. Baldwin, 14 Wend. 62; Rogers v. Hiñe, 1 Cal. 433; Arnold v. Skagge, 35 Id. 687.</p> <p>When a party is surprised by the testimony of his own witness, a new trial should be granted, if he can show that he will be able on the new trial to supply the testimony required. Roderiquez v. Comstock, 24 Cal. 85; Hayne New Trial amb App. 78; Delmas v. Margo, 25 Tex. 1, 78 Am. Dec. 516; Monday v. State, 79 Id. 311; McFarland’s v. Clark, 9 Dana 13; Levy v. Brown, 11 Ark. 16. An abuse of discretion in the trial court in denying a continuance is ground for reversal. People v. Dodge, 28 Cal. 445; Id. v. McCroney, 41 Id. 458; Id. v. Brown, 45 Id. 103; People v. Brown, 54 Id. 243. An affidavit on a motion for a continuance must be taken as true and it is improper to hear evidence to contradict it. Wick v. Weber, 64111. 167; Quincy v. Tillson, 64 Id. 351; Barton v. McKay, 54 N. W, 968; Stone v. Railroad, 53 N. W. 189.</p>

<p>Appeal from circuit court, Minnehaha county. Hon. Joseph W. Jones, Judge.</p> <p>Action to subject personal property to payment of debt. Judgment for defendants, and plaintiffs' appeal.</p> <p>The facts are stated in the opinion.</p> <p>A chattel mortgage is void as against creditors whose debts are incurred after its execution and before it is filed. Jewett Bros. & Jewett v. Sundback, 58 N. W. 21; Paper v. Gunther, 67 Wis. 101; Thompson v. Van Vechten, 27 N. Y, 568; Feary v. Cummings, 41 Mich. 383; Crippen v. Fletcher, 56 Mich. 386. A chattel mortgage that contains a clause allowing mortgagor to dispose of the property as he sees fit and use the proceeds, is void. Greely v. Winsor, 45 N. W. 325; Bank v. Comfort, 28 N. W. 855; Russell v. Winne, 37 N. Y. 591; Horton v. Williams; 21 Minn. 187; Wilson v. Vaight, 13 Pac. 726; Potts v. Hart, 99 N. Y. 168; Gardner v. McEwens, 19 Id. 123; Southard v. Ben-ner, 72 Id. 429; Anderson v. Patterson, 25 N. W. 541; Crooks v. Stuart, 7 Fed. 800.</p> <p>Where a trustee has accepted a trust he is estopped from claiming any interest adverse to the beneficiary. Comp. Laws § 3923; Andrews v. Pratt, 44 Cal. 309; San Diego v. Railroad,' Id. 106; Chamberlain v. Wool, 54 Cal. 103; Davis v. Rook, 55 Id. 359.</p> <p>A creditor, in order to place himself in position to attack a mortgage for failure to record, must secure some legal lien on the property covered by the mqrtgage. Coffey Chattel Mort. 614; Jones v. Graham, 77 N. Y. 628; Kennedy v. Bank, 23 Hun. 494; Ranson v. Schinda, 13 Neb. 73; Cameron v. Marvin, 26 Kan. 627; Richardson v. Sybold, 76 Ind. 627. A provision in a chattel mortgage allowing mortgagor to sell the goods, pay expenses and turn proceeds over to mortgagee does not render it void. Lane v. Starr, 1 S. D. 107; Ford v. Williams, 24 N. Y. 359; Miller v. Lockwood, 32 Id. 293; Brackett v. Harvey, 91 Id. 215; Conklmg v. Shelly, 28 Id. 360: Kleiue v. Katzenbefger, 20 O. St. 110; Murray v. McNealy, 86 Ala. 234; Fish v. Horshaw, 45 Wis. 665; Goodhart v. Johnson, 88 Ill. 58; Mezner v. Graham, 57 Mo. 404.</p>

Hon. Howard G. Fuller, Judge. Action to foreclose a mechanic’s lien. Judgment for defendants. Plaintiff appeals. The facts are stated in the opinion. Though a party seeking to foreclose a mechanic’s lien should not allege such facts as to entitle him to a mechanic’s lien or fail to establish it by evidence, he might still be entitled to a personal judgment on the contract — and it would be error to refuse the introduction of any evidence under such complaint.

Hon. J. O. Andrews, Judge. Action to cancel a lease. From a judgment for plaintiffs, and from an order denying a new trial, defendants appeal. The facts are stated in the opinion. A stockholder in a corporation can bring an action to remedy an injury to it only after he has requested the proper officers to do it and they have refused, or neglected it.

Hon. Joseph W. Jones, Judge. Action on a draft. From a judgment of dismissal, and an order denying a new trial, plaintiff appeals. The facts are stated in the opinion.

Hon. A. J. Peowman, Judge. Action to recover statutory penalty for taking usurious interest. Judgment for plaintiffs, and defendant appeals. The facts are stated in the opinion.

Hon. Frank R. Aikens, Judge. This case was first decided by this court in an opinion filed Dec. 15, 1894, reported in 6 S. D. 364, 61 N. W. Rep. 479, in which opinion the judgment of the trial court in favor of the defendants was affirmed. A rehearing was subsequently granted and the case reargued. This opinion is upon the rehearing.

Hon. A. W, Campbell, Judge. Action to impress funds derived from a sale of real estate in the hands of receiver of defendant bank, with payment of plaintiff's mortgage debt to the extent of the face value of alleged fraudulent securities substituted therefor. ' The receiver intervened. From a judgment for defendant and from an ov-der.denying a new trial, plaintiff appeals.

Hon. J. W. Jones, Judge. Action by Emily Southard against Isabella M. Smith to foreclose a contract or bond for a deed, and to foreclose such right, title and interest as W. and A. McArthur, St. Croix Lumber Co. and Oshkosh Lumber Co., as holders of mechanic’s liens, have in the premises described in such contract. These interests have been assigned to defendant Charles E. Judd, who appeals from a judgment in favor of plaintiff. The facts are stated in the opinion.

Hon. J. O. Andrews, Judge. ' This case was first decided by this court in an opinion filed February 23, 1895, reported in 62 N. W. Rep. 435, in which opinion the judgment of the trial court in favor of the plaintiff was reversed. A rehearing was subsequently granted and the case reargued. This opinion is upon the rehearing.

<p>Appeal from circuit court, Minnehaha county. Hon. J. W. Jones, Judge.</p> <p>Action by Elisha E. Lindsay against Frederick W. Petti-grew. Joe Kirby intervenes. From an order of the trial court denying an application to set off a judgment for costs in defendant’s favor against a judgment in plaintiff’s favor, defendant appeals.</p> <p>The facts are stated in the opinion.</p> <p>In cases where the mutual judgments arise from the same action, the right to set off is superior to the attorney’s lien. Pjjnkin y, Vanderbergh, 1 Paige Ch. 622; Porter y. Lane, 8 Johns. Rep. 357; Spence v. White, 1 Johns, Cas. 102; Ross v. Dole, 13 Johns. R. 306; Cooper v. Bigelow, 1 Cow. 206; Mohawk Bank v. Burrows, 6 Johns. Ch. 317; Irvine v. Meyers, 6 Minn. 562; Yorton v. Ry. Co., 62 Wis. 367.</p> <p>The attorney’s lien was paramount to any rights of the appellants’ offset. Hroch v. Aultman & Taylor Co., 3 S. D. 477, S. C. 54 N, W- 269; Johnson v. Ballard, 44 Ind. 270.</p>

Hon. D. Haney, Judge. Action by *E. B. Hart against G. S. Grant, to recover money belonging to plaintiff, alleged to have, been obtained by defendant from one Thompson, by false pretenses, and converted to defendant’s use. From an order vacating an order of arrest, plaintiff appeals. The facts are stated in the opinion. States whose constitutions forbid imprisonment for debts originating in contract, authorize and sustain it in actions growing out of fraud. Stimson’s Am.

Hon. J. O, Andrews, Judge. Action by B. J, Kelsey against John Welch, individually and as guardian, and others, to revive and foreclose a mortgage. From an order overruling a demurrer to the complant, defendant appeals. The facts are stated in the opinion.

<p>1. When a party has pleaded the statute of limitations as a defense to a promissory note, and such note is introduced in evidence by the opposing party, and it appears upon its face to be barred by the statute — the court taking judicial notice of when the action was commenced — the burden of proving such facts as will show the note is not in fact barred devolves upon the party claiming under the note.</p> <p>2. In such case, if the party claiming under the note fails to rebut the prima facie case which the introduction of- the note in evidence makes for the party pleading the statute, the court is justified in finding that the note is barred.</p> <p>8. The note, though appearing upon its face to be barred by the statute, cannot be held to be barred, until the opp.osing party has had an opportunity , to rebut such prima fade case made by the note itself.</p> <p>(Syllabus by the Court.</p>

Hon. A. J. Plowmam, Judge. This case was first decided by this court in an opinion filed June 17, 1894, reported in 5 S. D. 508, 59 N. W. 731, in which the judgment of the trial court in favor of plaintiffs was modified. A rehearing was subsequently granted and the' case re-argued. This opinion is upon the rehearing. The facts are stated in the opinion. Exemption laws are to be liberally construed, with a view to effecting their object and promoting justice.

<p>Const. Art. 5, 13, provides that the governor shall have authority to require the opinion of the judges of the supreme court upon important questions of law involved in the exercise of his executive powers and upon solemn occasions. Ilélü, upon request by the governor for an opinion upon the construction of Session Laws 1890, Chap. 6, with reference to the appointment of regents of education, involving the duration of the terms of office of certain regents, that an opinion thereon should not be given, as involving rights of persons not given an opportunity to be heard.</p>

Hon. J. O. Andrews, Judge. Action by Dora L. Scaman against Edward M. Galligan and Mattie Galligan upon a promissory note and to foreclose real estate mortgage securing samé. There was á judgment in favor of the latter defendant, and from an order denying a new trial plaintiff appeals. The facts are stated in the opinion. Motion for injunction after issuance of summons must be made upon affidavits and a copy of the affidavit must be served with the injunction. Comp.

Hon. A. W. Campbell, Judge. Action to recover money due upon a lease. From an order denying a motion for a change of venue, defendant appeals. The facts are stated in the opinion. The right to a change of venue is absolute, and cannot be resisted by considering the convenience of witnesses. §§ 4890 and 4881, Comp. Laws; McSherry v. Pennsylvania C. G. Min.

D. Haney, Judge. Action upon a promissory note. There was a judgment for plaintiff, and from an order denying a motion to vacate the same defendant appeals. The facts are stated in the opinion.

Hon. Joseph W. Jones, Judge. Action to recover for legal services. From a judgment for plaintiffs, defendant appeals. The facts are stated in the opinion. An attorney has no implied power to employ counsel at his client’s expense. Mechem on Agency, § 813. An attorney employed to prosecute a suit, in the absence of directions from his client, cannot delegate his authority as such to another attorney. Crotty v. Eagle’s Adm’r, 13 S. E. 59; Voorhis v. Harrison, 22 La.

Hon. Jos’. W. Jones, Judge. Action in claim and delivery. Plaintiff had judgment, and defendant appeals. The facts are stated in the opinion.

Hon. J. O. Andrews, Judge. Defendants were convicted of contempt of court, and bring error. The facts are stated in the opinion. If the defendant declares that nothing improper was intended and that he acted in good faith, the declaration is in many instances sufficient. 3 Am. & Eng. Ency. of Law, 797; People v. Pew, 2 Johns (N. Y.), 290; Spink v. Francis, 19 Fed. 678. The meddling with property constructively attached does not constitute a contempt.

Hon. J. O. Andrews, Judge. Defendant was convicted of manslaughter, and brings error. The facts are stated in the opinion. Defendant having been once convicted on a valid indictment, and sentenced and imprisoned, and the judgment having been reversed without motion for new trial, or motion in arrest of judgment, is entitled to be discharged under his plea of former conviction and former jeopardy for the same offense. Const. S. D., § 9, Art. VI; Rudder v. State.

Hon. A. J. Plowman, Judge. Action to foreclose a mechanic’s lien. Defendants had judgment, and plaintiffs appeal. The facts are stated in the opinion. The lien of plaintiffs is not such a claim as, in contemplation of the probate law of this state, is required to be presented to the administrator for rejection or allowance as a claim against the estate. Purdin v. Archer, 4 S. D. 54, 54 N. W. 1043; Fallon v. Butler / 21 Cal. 32; Estate of McCausland, 52 Cal 568.

Hon. Chas. M. Thomas, Judge. Action to quiet title to a mining claim. Plaintiff had judgment and defendants appeal. The facts are stated in the opinion. In order to raise the question as to the sufficiency of the eyi dence to support the court’s findings, a motion for a new trial is necessary. Pierce v. Manning, 2 S. D. 517, 51 N. W. 332; Hawkins v. Hubbard, 2 S. D. 631, 51 N. W. 774; Norwegian Plow Co. v. Bellon, 4 S. D. 384, 57 N. W. 17.

Hon. Wm. Gardner, Judge. Action upon a bail bond. Plaintiff had judgment and defendants appeal. The facts are stated in the opinion. The county was the real party in interest, in whose name the action should have been brought.

Hon. Jos. W. Jones, Judge. Action in conversion. Defendant had judgment, and plaintiff appeals. The facts are stated in the opinion. The regulations of the statute for the seizure and sale of personal property should be lawfully and strictly complied with. Carrier v. Esabough, 70 Pa. St. 239; Pierce v. Benjamin, 14 Pick. 356; Pennington v. Lorring, 7 Mass, 388; Sutton v. Beach, 2 Vt. 42; Russell y. Dwyer, 40 N. H. 184; Griswold v. Sundback, 4 S. D. 441, 57 N. W. 339.

Hon. J. O. Andrews, Judge. Action to quiet title. Plaintiff bad judgment, and defendant appeals. The facts are stated in the opinion. The right to foreclose a mortgage by advertisement depends solely upon the provisions of the statute, and the statutory provisions must be strictly complied with, or the sale is invalid. 2 Jones on Mortgages, § 1839; Wiltsie on Mortgage Forecl. (2d Ed.), § 784 et seg.

Hon. William Gardner, Judge. Application for mandamus. Plaintiff had judgment, and defendants appealed. Plaintiff moved to dismiss appeal. The facts are stated in the opinion.

Action by P. E. Sparks, receiver of the Western Bank & Trust Company against the Sturgis Creamery Company. Plaintiff had judgment and defendant appeals. Plaintiff moves to dismiss appeal.

Hon. E. S. Johkston, Judge. Bastardy proceedings by the state against Newton Hughes. From a judgment against defendant, he appeals. The facts are stated in the opinion. This is a criminal action. Chap. 24,' Laws 1893. The county courts of this state are courts of limited jurisdiction, and can exercise only such jurisdiction as is conferred on them by the constitution and the legislature in accordance with the terms of the constitution.

Hon. E. Parliman, Judge. Action to recover commissions for the sale- of machinery. Prom a judgment for plaintiffs, and an order denying a new trial, defendant appeals. The facts are stated in the opinion. The subagent is the agent, not of the principal, but of the intermediate agent.

<p>After judgment for plaintiff in justice court, his attorney perfected a lien for fees, as against the judgment debtor, as provided in Oomp. Laws, Sec. 470, Subd. 4; and, after affirmance of the judgment on appeal to the circuit court, an action was brought by plaintiff against defendant and the sureties on his appeal bond. Meld that, by filing his lien, the attorney obtained an interest both in the judgment and in the cause of action on the appeal bond, which was not affected by a subsequent assignment of plaintiff’s interest in the judgment to one of the defendant . sureties on the bond.</p> <p>(Syllabus by the Court.</p>

Hon. J. O. Andrews, Judge. Action by Ella J. Busb against Henry J. Froelick and others in foreclosure. From an order overruling their demurrer to the complaint, certain defendants appeal. The facts are stated in the opinion. There is a misjoinder of causes of action. Bliss Code PL § 122; Crow v. Hildreth, 39 Cal. 618; Gardner v. Ogden, 22 N. Y. 327; Slipperly v. R. R. Co., 9 How.

Hon. J. W. Jones, Judge. Action to enforce specific performance of a contract. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. The facts are stated in the opinion. There is no defect of parties; no one other than plaintiff and defendant has any interest in or to the subject matter in dispute. Coierick v. Hooper, 56 Am. Dec. 505; Currier v. Howard, 14 Gray, 511; 22 Am. & Eng. Encyc. of Law, 1064; Pomeroy’s Code Rem. 3d. Ed. §§ 263 and 366.

<p>Appeal from circuit court, Brookings county. Hon. J. O. Andrews, Judge.</p> <p>Action for conversion by attachment of the proceeds of grain while in the hands of the vendee. Plaintiff had judgment and defendant appeals.</p> <p>The facts are stated in the opinion.</p> <p>In order to render books of accounts or entries therein admissible as evidence, it must first be shown that the books were kept in the usual course of business; that the entries are th e original entries and that they are in the handwriting of some person authorized to make the same. Stickney v. Bronson, 5 Minn. 178; Newell v. Holton, 22 Minn, 19; Paine v. Sherwood, 21 Minn. 225-239; M’Coul v. Lekamp’s Admx. 2 Wheat. Ill; 1 Wharton on Evi. § 238; Burby v. German American Bank, 111 IT. S. 216. Evidence given by a witness in a previous action or proceeding is ■ competent, for the purpose of proving the matter stated, in a subsequent action, when the witness has died after giving his testimony in the former action or proceeding, only (1) when the person against whom the evidence is to be given had the right and opportunity to cross examine the declarant, when he was examined as a witness. (2) When the questions in issue were substantially the same as in the second proceeding; and. (3) when the action was between the same parties or their representatives in interest. Stephens Dig. Evi. 48; Mayor v. Day, 3 Taun. 265; Doe v. Tathan, 1 A. & E. 319; 1 Wharton on Evi. (2d. ed.) 167-177; Marshall v. Hancock, 80 Gal. 82.</p> <p>The rule invoked by appellant as to admissibility of the books of account in evidence is not the rule applicable in this case, wherein the books of a third party are offered as a part of the res gestae. The rule ,is not the same as in a case where a party seeks to prove an account of his own keeping by his own books. Lassone v. B. &L. R. R. Go., 17 L. R. A. 525; 1 Greenl. Ev. §§ 116 and 120. The testimony of the deceased witness was a part of appellant’s return, and be is esstopped from questioning it as an instrument to identify tbe property attached. Griswold v. Sunback, 4 S. D. 441, 57 N. W. 840; Greenleaf on Evi. 27, 207-8J</p>

Hon. D. Haney, Judge. Defendant was convicted of burglary, and brings error. The facts are stated in the opinion. Ownership of both building and personalty are material facts, which must be proved as laid. 1 Bish. Cr. Proc. (3d Ed.), § 4882; 2 Russell on Crimes, (5 Ed.), 41.; Neiderluct v. State, 17 S. W. 467; State v. Dudley, 7 Wis. 664; Bromley v. People, 37 N. E. 209. The firm name was correctly given, and it was the firm which owned the goods.

<p>1. On a second appeal the supreme court will not review a question decided on the former appeal.</p> <p>2. A motion to direct a verdict must state specifically the ground on which the motion is based.</p> <p>3. A motion to direct a verdict because “no, cause of action has been made against the defendant under the pleadings,” and “under the evidence in this case the plaintiff is not entitled to recover,” does not raise the question whether there was “evidence showing or tending to show that the plaintiff, before commencing this action, notified the defendant of any damage done by his cattle, or the probable amount thereof.”</p> <p>4. On a second trial a witness for plaintiff testified that a witness on the former trial was dead, that deceased testified on such trial, and that defendant was present. He was then asked to state what such witness testified to with reference to certain facts, to which defendant objected, on the ground that the evidence was incompetent, irrelevant, and immaterial, and that no proper foundation had been laid. Held,, that the objection was too general to raise the question that no proper foundation was laid for such evidence by showing that the deceased witness was duly sworn, and that the witness could give the substance of the testimony of such deceased witness, both on direct and cross-examination.</p>

<p>Appeal from circuit court, Hand county. Hon. Loring E, pAFFY, Judge. ,</p> <p>Action to foreclose a real estate mortgage. A demurrer to defendant’s counterclaim was overruled, and plaintiff appeals.</p> <p>The facts are stated in the opinion.</p>

Hon. A. W. Campbell, Judge. Action on contract. A motion to strike out plaintiff’s claim for damages having been sustained, plaintiff appeals. The facts are stated in the opinion. If the contract had been completed, or fully performed by the employe, then the damages or compensation is expressed in the contract; but when the contract is broken by the exth ployer then the employe has two remedies, either of which he can elect to pursue, but not both.

Hon. A. W. Campbell, Judge. Action in claim and delivery. Defendant had judgment, and plaintiff appeals. The facts are stated in the opinion. If there was any question of identity of the property, it was for the jury. Cobbey Chat. Mortgages, § 160. Peterson v. Foie, .25 N. W. 677; Andregg v. Brunskiel, 54 N. W. 135.

<p>1. Where, in an action to recover for stock killed by a railway train, the testimony as to the circumstances of the killing, on which the question of defendant’s negligence depended, was conflicting, the verdict of the jury will not be disturbed.</p> <p>2. A judgment will not be reversed because of the erroneous admission of evidence, where it is not prejudicial to appellant.</p>

Hon. D. Haney, Judge. Action for damages for the conversion of personal property. Defendant had judgment, and from the judgment and an order denying his motion for a new trial, plaintiff appeals. The facts are stated in the opinion. If the property was in the possession of a third party, and the third party agreed to hold it for the purchaser, the delivery was complete.

Hon. Jos. W. Jones, Judge. Action by Peter Strunk against George M. Smith and James Smith, co-partners as George M. Smith & Co., and John Smith. Judgment for plaintiff. Defendants appeal. The facts are stated in the opinion. Parol evidence is admissible to establish the terms of a sale, although a memorandum of sale has been given; and although the memorandum may be valid and conclusive so far as it goes, yet parol evidence may be used to show the rest of the agreement.

Joseph W. Jones, Judge. Action, by Daniel L. Hilton against the Advance Thresher Company. Plaintiff had judgment, and defendant appeals. The facts are stated in the opinion. The complaint does not state facts sufficient to constitute a cause of action, and it appears that respondent waited an unreasonable length of time before attempting to rescind the alleged contract for the purchase of the notes, no excuse for such delay being either pleaded or proven.

Hon. Jos. W. Jones, Judge. Action to foreclose real estate mortgage. Plaintiff had judgment by default, and from an. order denying a motion to vacate or modify such judgment, defendant appeals. The facts are stated in the. opinion. A judgment for a deficiency cannot be rendered against a surety after the principal has been released. Calvo v. Davies; 73 N. Y. 211; Murray v. Marshall, 94 Id. 611; Spencer v¡.

Hon. J. 0. Andrews, Judge. Action for money had and received. Plaintiff had judgment, and defendant appeals. The facts are stated in the opinion. When a vendee enters upon the performance of his contract to purchase, and paying part of the consideration, makes inexcusable default, he cannot maintain an action to recover the money paid. Carlson v. Dow, 47 Minn. 535. See, also, Grant v. Murch, 54 Minn.

. . Appeal from circuit court, Brookings county. Hon. J. O. Andrews, Judge. Action to enforce specific performance of a contract, to convey land. Plaintiff had judgment, and defendant appeals. The facts are stated in the opinion. Where an action is brought for the specific performance of an agreement to sell real estate, the evidence must be clear, competent, direct and satisfactory of the terms of the contract and the authority of the agent to make it.

Hon. Jos. W. Jones, Judge. Action for damages. Plaintiff had judgment, and defendant appeals. The facts are 'stated in the opinion. It was error for the court to modify and change certain instructions requested by defendant, without the consent of its counsel. Galloway v. McLean et al., 2 Dak. 372. The court having gone over the ground covered by the request, is not obliged to reiterate the charge or give it in the language of the attorney. Parliman v. Young, 2 Dak. 175;.

Hon. A. W. Campbell, Judge. Contempt proceeding for violation of an order in an action of John C. Freeman against the city of Huron and others. The accused were found guilty, and bring error. The facts are stated in the opinion. The state not being made a party and the state’s attorney not appearing to prosecute, the court did not acquire jurisdiction.

Hon. E. G. Smith, Judge. Defendant was convicted of keeping a tippling shop in violation of a city ordinance, and brings error. The facts are stated in the opinion. The complaint was insufficient as to form and matter, and did not state an offense. State v. Burchard, 4 S. D. 548, 57 N. W. 491.

Hon. A. W. Campbell, Judge. Action to abate a public nuisance. Plaintiff had judgment and defendant appeals. The facts are stated-in the opinion. “Though the jurisdiction of equity in restraining a public nuisance is well established, it will not be exercised where the-object sought can be as well attained in the ordinary tribunals, unless upon the application of one who suffers a personal injury aside from the injury to the public.” 1 High on Injunc. 761.

Hon. Loring E. Gaffy, Judge. Action to compel defendant to accept plaintiffs’ bid for printing the notice of sale of real property for taxes for the year 1894, and to award them the contract therefor. Defendant had judgment, and plaintiff’s appeal. The facts are stated in the opinion.

Hon. J. O. Andrews, Judge. Certiorari to review the proceeding by which plaintiff was found guilty of violation of a city ordinance, and fined. Prom a judgment of the circuit court declaring the proceedings regular, plaintiff appeals. The facts are stated in the opinion.

Hon. J. O. Andrews, Judge. Two actions — one in claim and delivery, to recover the possession of property described in a chattel mortgage, and the other to foreclose such mortgage — were consolidated and tried together. From a judgment for defendant, and from an order denying a motion for a new trial, plaintiff appeals. The facts are stated in the opinion.

Hon. Loring E. Gappy, Judge. Action to recover possession of certain real estate. Plaintiff had judgment, and defendants appeal. The facts are stated in the opinion. Real- estate belonging to a co-partnership is subject to the same rules as the personal property of such co-partnership. Betts v. Letcher, 1 S. D., 197, 46 N. W. 193.

Beadle county. Hon. A. W. Campbell, Judge. Action to rescind a contract. Plaintiffs had judgment, and defendants appeal. The facts are stated in the opinion. This action should not be maintained to rescind a contract for fraud, while the complaint fails to allege or proof to show that the consideration was returned or offered to be returned before suit was brought, l^urge v. Ry.

Hon. Jos. W. Jones, Judge. Petition by Lillian Schlegel against George W. Sisson and another, executors of John O. G. Schlegel, and others. From a decree for petitioner the executors appeal. The facts are stated in the opinion. Chapter 51, Session Laws of 1890, is in conflict with § 21, Art. 3, Const., and is of no validity, or if the whole of said chapter is not for that reason invalid and unconstitutional, at least §§ 21 and 22 thereof are.

Hon. Jos. W. Jones, Judge. Action for injunction and for damages. Plaintiff had judgment, and defendants appeal. The facts are stated in the opinion. An injunction will not be granted to restrain a public officer in the performance of his official duties. Story Eq. Jurisp. 13th Ed. § 955a; Throop on Public Officers, § 842; 2 High on Injunctions §§ 1309, 1311; Appeal of Delaware County i 13 Atl. Rep. 62; Emmons v. Campbell, 22 Hun. 582.

Hon. Jos. W. Jones, Judge. Action for injunction and for damages. Plaintiff had judgment, and defendant appeals. The facts are stated in the opinion.

Hon. E. G. Smith, Judge. Action to restrain Douglas county and its treasurer from selling real estate for the collection of personal taxes assessed against the former owners of such real estate. Plaintiff had judgment, and defendants appeal. The facts are stated in the opinion.

<p>Appeal from circuit court, Minnehaha county. Hon. Jos. W. Jones, Judge.</p> <p>Action for injunction and for damages. Plaintiff had judgment, and defendant appeals.</p> <p>Eosmer H. Keith, for appellants.</p>

Hon. Loring E. Gappy, Judge. Action to enjoin defendants from operating a ferry across the Missouri river at Forest City, South Dakota. Defendants’ demurrer to the complaint was overruled, and they appealed. The facts are fully stated in the opinion. This lease does not in terms nor in legal effect grant an exclusive ferry privilege. Fanning v. Gregoire, 16 How. 524; S. C., 14 Law Ed., 1043. A legislative grant is not necessarily exclusive, nor is the one in question.

Hon. J. 0. An-dkews, Judge. Defendant was convicted of the crime of seduction, and brings error. The facts are stated in the opinion. There is no direct corroborating testimony to the fact of a promise of marriage, and in the absence.of such testimony the evidence should be such as to indicate an affianced relation. ‘ ‘The mere evidence of defendant’s attention was not sufficient to carry the case to the jury.” Rice v. Com., 102 Pa. St. 408; S. C. 4 Am. Crim. Rep. 262.

Hon. Wm. Gardner, Judge. Action to recover the value of certain property claimed to be exempt which had been seized and sold under execution. Defendant had judgment and plaintiff appealed. The facts are stated in the opinion. Under the laws of this state the judgment debtor has five days after notice of levy to demand exemptions. Laws 1893, p. 40. Exemption laws in this state are liberally construed, and are for the benefit of both the debtor and his family.

Original information in the nature of quo toarranto, charging the defendant with usurpation of the office of regent of education, and praying an injunction to restrain him from exercising the duties of such office. The facts are stated in the opinion.

<p>Motion to modify judgment.</p> <p>Original action for trees and shrubbery planted upon the state agricultural college grounds at Brookings. In an opinion reported in 5 S, D. 623, 59 N. W. 1025, plaintiff was given judgment for $1,377.95 and costs. Plaintiff now moves to modify that judgment. Denied.</p>

<p>Original information in the nature of quo luarrcmto to test defendant’s right to the office of state regent of education, and for an injunction to restrain him from exercising the duties of that office.</p>

Hon. Wm. Gardner, Judge. Ejectment. On motion of the plaintiff, defendant’s answer was set aside as frivolous, and judgment entered for plaintiff. Defendants appeal.

Hon. William Gardner, Judge. Action for an injunction, etc. From an order sustaining a demurrer to the complaint, plaintiff appeals. The facts are stated in the opinion. Defendant bank upon receiving the deposits of Bradley, with knowledge as to their character as public funds, became the trustee of the county, and the county as cestui que trust can maintain this action, and the complaint is sufficient. §§ 1662, 1665, Comp. Laws; Ind. Sch.

Hon. A. J. Plowman, Judge. Action upon a written instrument. From an order overruling his motion for a new trial, defendant Robinson appeals. The facts are stated in the opinion.

Hon. Joseph W. Jones, Judge. James Smith and others were indicted ior robbery. Smith having been granted a separate trial, was convicted, and brings error. The facts are stated in the opinion. The locus delicti must be proven. State v. Bank, 3 S. D. 52; Commonwealth v. Call, 21 Pick. 509; People v. Aleck, 61 Cal. 137; Boston v. State, 32 Am. Rep. 575; People v. Bevans, 52 Cal. 470.

Hon. Granville G. Bennett, Judge. Action for the recovery of rent. Judgment for plaintiff, and defendant appeals. The facts are stated in the opinion. There was no judgment in court below. Miller v. B. & M. R. R„ 7 Neb. 227; Preuit v. The People, 5 Neb. 377; Allen v. Corlew, 10 Kan; 70; Black on Judg., Vol. 1, § 115, and cases cited.

Hon. A. W. Campbell, Judge. Action to vacate a conveyance of real property, and to compel the execution of a quit claim deed. From a decree for plaintiff, defendants appeal. The facts are stated in the opinion.

Hon. Joseph W. Jones, Judge. Action to restrain a board of township supervisors and others from opening a highway. From an order continuing in force a temporary restraining order until the final determination of the action, defendants appeal.

Hon. J. W. Jones, Judge. Action to recover the value of a half interest in a threshing machine. Verdict was rendered in favor of defendant, but set aside and a new trial granted. Defendant appeals. The facts are stated in the opinion.

Hon. Jos. W. Jones, Judge. Action to recover $1,880 alleged to be due plaintiff as the balance of the price of the stock of goods sold by defendants after deducting $3,000 owing them by plaintiff. The court directed a verdict in favor of defendants, and from a judgment entered thereon plaintiff appeals. The facts are stated in the opinion, Every element of a pledge is wanting in this case.

Hon. E. G. Smith, Judge. In an action before a justice of the peace, plaintiff had judgment by default. On defendant’s appeal to the circuit court, an order made by the justice, as to costs, was reversed. Plaintiff appeals. The facts are stated in the opinion. “The court may also, on such terms as may bé just, andón payment of costs, relieve a party from a judgment by default taken against him by his mistake, inadvertance, suprise or excusable neglect.” Comp. Laws, § 6065.

Hon. Jos. W. Jones, Judge. Action to recover commissions alleged to be due under a contract of agency. There was a verdict for defendant, and from an order denying a new trial plaintiff appeals. The facts are stated in the opinion.

Hon. A. J. Plowman, Judge. Action to recover a balance due on a contract for work and labor, commenced in justice’s court and taken on appeal by defendants to the circuit court, which directed a verdict for plaintiff. From an order denying a motion for a new trial, defendants appeal. The facts are stated in the opinion. An execution constitutes a lien upon the personal property of the debtor from the date of delivery to an officer.

<p>Error to circuit court, Yankton county. Hon. E. G. Smith, Judge.</p> <p>Defendant was convicted of keeping a tippling shop, and brought error to the supreme court, where the judgment was affiimed. This opinion is upon a motion to correct the judgment of affirmance by awarding the costs of the appeal against plaintiff in error.</p>

<p>1. Comp. Laws, Sec. 5215, provides that an appeal must he taken by service of notice, and perfected on service of the undertaking’ for costs, or a deposit of money instead, or a waiver thereof. Sec. 5219 provides that, to render an appeal effectual for any purpose, an undertaking must be executed, or a deposit, with service of notice, or waiver thereof, made. Sec. 5281 provides that the undertaking must be filed, and a copy thereof served with the notice of appeal. Held, that where the notice of appeal was served on the adverse party and on the clerk, add was duly filed, but no undertaking executed, or deposit made, or waiver thereof, as prescribed, the appeal was a nullity.</p> <p>2. Comp. Laws, Sec. 5219, makes an undertaking, or a deposit in lieu thereof or a waiver, an essential requisite of an appeal. Held, that an offer of waiver by an appellee, refused by the appellant, will not confer jurisdiction on the appellate court.</p>

<p>1. Where on the issue as to the ostensible authority of an agent to receive payment of a mortgag'e for his principal, arising from the negligence of the principal in holding the agent out as having such authority, the facts, though not disputed, are such that reasonable minds might draw different conclusions therefrom, the issue is properly left to the jury.</p> <p>2. Comp. Laws, Sec. 4497, providing that a person paying a negotiable instrument may require as a condition precedent that the same be surrendered, does not prevent a payment to an agent, made without demanding the instrument, who has, through the negligence of the principal, been given ostensible authority to receive payment, from being binding on the principal.</p>

<p>Appeal from circuit court, Lawrence county. Hon. A. J. PLOWMAN, Judge.</p> <p>Action to establish a resulting trust and to compel the conveyance of certain real estate. Defendants had judgment, and plaintiff appeals.</p> <p>The facts are stated in the opinion.</p> <p>The trial judge was disqualified. Curtis v. Wilcox, 41 N. W. 863; State ex rel. Routh v. Burks, 18 S. W. 661; Howell v. Budd, 27 Pacv 747; State ex rel. Ambler v. Hocker, 15 So. 581; O’Connell v. Gavett, 7 Colo. 40; Kern Valley Water Co. v. Mc-Cord, 70 Cal. 646; Moses v. Julian, 45 N. H. 52; S. C. 84 Am. Dec. 114; Pister v. Hatfield, 46 N. Y. 249; Turner v. Hitchcock, 20 la. 310; Allerton v. Bldridge, 56 la. 709; Ryan v. Boyd, 7 Wis. 134; Runals v. Brown, 11 Wis, 193; Goodno v. Oshkosh, 31 Wis. 127.</p> <p>An agent or servant whose compensation is measured by a certain portion of the profits is not thereby made a partner. Meehan v. Valentine, 145 U. S. 608; Berthold v. Goldsmith, 24 How. 536; London Ass. Co. v. Drennen, 116 U. S. 461; Beck-with v. Talbot, 93 U. S. 289; Musser v. Brink, 68 Mo. 242; Donnell v. Harshe, 97 Mo. 170; Clifton v. Howard, 1 S. W. 26; Clark v. Barnes, 34 N. W. 419; Loomis v. Marshall, 12 Conn. 69; Chase v. Barrett, 4 Paige 147.</p> <p>“When a transfer of real property is made to one person and the consideration therefor is paid by or for another, a trust is presumed to result in favor of the person by or for whom such payment is made.” Comp. Laws, § 2796. Under the same statute in California, see, Heilman v. Messmer, 16 Pac. 766; Hidden v. Jordan, 21 Cal. 93; Bayles v. Baxter, 22 Cal. 575; Millard v. Hathaway; 27’Cal. 119; Currey v. Allen, 34 Cal. 254; Jenkins v. Frink, 30 Cal, 586; Osborne v. Endicott, 6 Cal. 149; Walton v. Karnes, 7 Pac. 676; Barroilhet v. Anspacher, 8 Pac. 8044; see, also, Taylor v. Miles (Ore.), 25 Pac. 143; Reynolds v. Sumner (Ill.), 14 N, E. 661; Kluender v. Penske (Wis.) 10 N. W. 370; Jackson v. Miller, 6 Wend. 228; Strimpfier v. Roberts, 18 Pa. St. 383.</p> <p>The court properly declined to call in another judge to try the case. 12 Am. & Eng. Encyc. of Law, pp. 40, 52, 54, 55; Const. So. Dak., Art. 5, § 29; Comp. Laws §§ 4888, 4890, 4891, Subd. 2, 5658, 7312; State v. Palmer, 4 S. D. 543, 57 N. W. 490; Laws 1890, Ch. 79; State v. Chapman, 1 S. D, 414; State v. Rodway, 1 S. D. 575; White v. C. M. & St. P. Ry. Co., 5 Dak, 508; Walters-Pierce Oil Co. v. Cook, 26 S. W. 96; Fry v. Bennett, 28 N. Y. 324, 329; McDonnell v. Van Dusen, 12 Johns (N. T-). 356; People v. Williams, 24 Cal, 31.</p> <p>The law of resulting trusts. See White v. Carpenter, 2 Paige Ch. 217, 265; Bank v. Kimball Milling Co., 1 S. D. 388; 47 N. W. 4Q4; St. Johns v. Benedict, 6 Johns. Ch. Ill, 116; Ryers V. Danley, 27 Ark, 89; Irving v. Idarshall, 7 Minn. 286; 10 Am. & Eng. Encyc. of Law, pp. 13 and 15; Baples v. Baxter, 22 Cal. 575, 580; 2nd Pom. Eq. Jur., § 1037 and note; 01-cott v. Bynum, 17 Wall. 44, 60; Decker v. Decker, 108 N. Y. 128, 136; Niver v. Crane, 98 N. Y. 40, 47, 49; Parsons v. Phe-lan, 134 Mass. 109; 10 Am. & Eng. Encyc. Law, p. 11, note 2; 1 Perry on Trusts (2nd Ed.), § 135; Sheldon v. Harding, 44 Ill. 68, 73; White v. Sheldon, 4 Nev. 280 and 293; Appeal of Walter, 8 Atl. (Pa,) 506, 412; Bailey v. Hemenway, 145 Mass. 326; Hadley v. Stewart, 62 Iowa 267; Plickett v. Durham, 109 Mass. 419, 422; Buck v. Swazy, 35 Me. 51; Comer v. Lewis, 4 Shepley 274.</p>

<p>Appeal from circuit court, Lawrence county. Hon. A. J. Plowman, Judge.</p> <p>Action by Charles H. Graham and John Treber against William Selbie, administrator of the estate of James K. P. Miller, deceased, and others. There was judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from circuit court, Lincoln county. Hon. Joseph W. Jones, Judge.</p> <p>Action to restrain defendants from opening a highway. From an order vacating a temporary restraining order so far as it affects property not owned or controlled by the plaintiff, plaintiff appeals.</p>

Hon. A. J. Plowman, Judge. Defendant was convicted in a police justice court of violating a city ordinance, and from a reversal by the circuit court ' of the judgment of conviction the city appeals. The facts are stated in the opinion. The complaint is sufficient. § 7250, Comp. Laws; State v. Harris, 50 Minn. 128, 52 N. W. 387; 1 Dill. Mun. Corp., § 414 (347); 1 Bish. Cr. Prac. § 611 and cases cited; Wharton’s Cr.

<p>Appeal from circuit court, Minnehaha county. Hon. J. W. Jones, Judge.</p> <p>'Action on a contract for a loan. Defendants bad judgment and plaintiff appeals.</p> <p>The facts are stated in the opinion.</p> <p>If the money advanced is to be repaid absolutely and in all events, the transaction will be regarded as a loan; if the sum to be received exceeds legal rate, the transaction will be usurious. It is not necessary that there should be an express agreement to repay, if the court can see that repayment was evidently contemplated by the parties. Tyson v. Rickard, 5 Am. Dec. 424; 27 Am. & Eng. Encyc.’ of Law, 923; see, also, Id. 1026. Under the statute of this state a pledgee has no right to sell evidence of debt pledged to him, except the obligations of governments, states or corporations. Comp. Laws, § 4412. Prom the moment, therefore, that defendants sold this note to the bank, they became liable to Mr. Cole for its conversion and were answerable to him for the value of his- interest therein. Comp. Laws, § 4342; Everett v. Buchanan, 2 Dak. 248-271; Hawkins v. Hubbard, 2 S. D. 631.</p> <p>The evidence shows that the note was the property of the Citizens’ Bank from the time of its purchase from Cole; that the Citizens’ Bank was organized into the Citizens’ State Bank; that there was no other change of possession; and even if plaintiff’s contention that the note was only pledged, is true,no sale or unlawful disposition of the note is shown to have been made by defendants. The organization was required by law, and the defendant could not have continued business without organizing according to the provisions of the act of March 10, 1891. The right of succession is given by the same act, and when so organized the new corporation assumes the rights and liabilities of the old. See, also, Railroad Co. v. Boney (Ind.), 3 L. R. A. 435; Thompson v. Abbott, 61 Mo. 176; Mount Pleasant v. Beckwith, 100 U. S. 514; Pullman Car Co. v. Mo. Pac. Ry. Co., 115 U. S. 587; 2 Morawetz Priy. Corp., § 955; 4 Am. & Eng. Encyc. Law, 272.</p> <p>None of the allegations of the complaint are sustained by-plaintiff’s evidence, and there is a complete .failure of proof. Plaintiff cannot avail himself of the contract set out in defendants’ answer, to prove that he is entitled to,recover part of the amount sued* for. Comp. Laws, § 4936; Creimor v. Miller, 57 N. W. 318; Inhoff v. House, 53 N. W. 1032; Tomlinson v. Monroe, 41 Cal. 94; Christian College v. Hondly,' 49 Cal. 349; Moore v. Tice, 22 Cal. 515; Johnson v. Moss, 45 Cal. 515.</p>

<p>Appeal from Circuit court, Lawrence county. Hon. A. J. Plowman, Judge.</p> <p>Defendant was convicted in a police justice’s court of a violation of a city ordinance, and from a reversal by the circuit court of the judgment of conviction the city appeals.</p>

<p>1. Under the rules, the supreme court will not examine the bill of exceptions except to settle a disagreement between abstracts; and an objection by an appellee, on reversal, to the taxation of costs for the printing of so much of appellant’s abstract as contains the evidence, on the ground that the bill of exceptions contains no specification of errors relating thereto, occurring at the trial arid excepted to, cannot be considered unless the fact relied on is shown by the'abstract or by an additional abstract.</p> <p>3. An appellant is not required to recito in his abstract the exceptions to evidence reserved during the trial. *</p>

Hon. A. J. Plowman, Judge. Action to enjoin defendant from diverting the waters of a running stream and from committing a trespass. Defendant had judgment and plaintiff appeals. The facts are stated in the opinion. Defendant, by his assertion of ownership of the ditch, and of his right to divert the waters of Higgins Gulch Creek, and flow them through the ditch across plaintiff’s land, claims an ownership in -the realty.