v. Starr, before referred to, it is sufficient to say that defendant denies that either of such conversations had any reference to the mortgaged goods, or their proceeds, but says that he did tell them that he could do as he liked with a part of the proceeds of sales, for the reason that the mortgage covered but little more than half his stock. We think the affidavit of defendant, thus explaining these conversations, was sufficient to impair the force of the affidavits to which it was responsive, and that they do not seriously antagonize each other as to truthfulness. As this was substantially all the evidence tending to support the grounds upon which the warrant of attachment was issued, we think the court below was justified in concluding that there was no such preponderance of proof with the plaintiffs-upon whom rested the burden-as entitled them to a continuance of the warrant of attachment. The order of the court discharging the attachment is affirmed. All the All the judges concurring.

(1 S. D. 129)

HORNICK DRUG Co. v. LANE. (Supreme Court of South Dakota. May 12, 1890.)

ATTACHMENT-MOTION TO DISCHARGE.

1. A motion to discharge a warrant of attachment should be refused unless the defendant, or other moving party, denies the existence of every statutory ground alleged in the affidavit upon which the warrant was issued.

2. Where the warrant is issued upon an affidavit alleging, among other statutory grounds, that the defendant has secreted and is about to secrete his property with intent to defraud his creditors, and the defendant, on motion to discharge, controverts all the allegations of the affidavit except that of secretion, leaving that unnoticed and undenied, the motion to discharge should be refused.

3. The practical effect of denying a part of the allegations only, is to leave those undenied as though confessed.

(Syllabus by the Court.)

Appeal from district court, Spink county. H.C. & T. J. Walsh, C. T. Howard, and John B. & W. H. Sanborn, for appellant. N. P. Bromley and A. B. Melville, for respondent.

KELLAM, J. This case comes to this court on appeal from an order of the district court discharging an attachment therein. The warrant was issued upon an affidavit charging that the defendant had had "assigned, disposed of, and secreted his property, and was about to assign, dispose of, and secrete his property, with intent to defraud his creditors." The prinThe principal ground relied upon to justify the issuing of the warrant was the giving of a certain chattel mortgage on a portion of his stock, by defendant and respondent, to his brother, William A. Lane, which mortgage appellants claim as to them, creditors of said respondent, was at least presumptively fraudulent on its face. This question was fully considered and determined in Lane v. Starr, ante, 212, (decided at this term,) where it was held that there was nothing in the mortgage itself to impeach its validity; and the attachment must be sustained, if at all, upon grounds other than any appearing upon the face of the

mortgage. Under our statute, (section 4995, Comp. Laws,) one of the specific grounds justifying the issuing of an attachment is that the defendant has secreted, or is about to secrete, his property with intent to defraud his creditors, and this was one of the facts in the attachment affidavit alleged to exist, and one of the grounds upon which the warrant of attachment was issued. If the affidavit had shown this fact alone, it would have been sufficient ground for the attachment, and, if the defendant had sought a discharge of the warrant by the court, he must have positively and definitely denied such allegation. In the procuring affidavit in this case it was charged that the defendant "had assigned, disposed of, and secreted his property, and was about to assign, dispose of, and secrete his property, with intent to defraud his creditors," and it was incumbent on him, on his motion to discharge, to meet each substantive ground alleged, and upon which the warrant had been issued, with a full and unqualified denial. We have examined with great care all the affidavits which were used in the court below on the motion to discharge, and can find no denial, nor any attempt at a denial, of this charge of secretion. There was an effort, at least, to traverse all the other statutory grounds for attachment, as alleged in the affidavit. The practical effect of denying a part of the allegations only, is to leave those undenied as though confessed. With this specific and positive allegation of the attachment affidavit uncontradicted, or even explained, it being alone sufficient to support the attachment, it was error in the court below to sustain the motion to discharge. The order of the district court discharging the warrant of attachment is reversed. All the judges concurring.

(1 S. D. 131)

HAMLIN COUNTY V. CLARK COUNTY. (Supreme Court of South Dakota. May 12, 1890.) POOR-RELIEF IN SICKNESS-LIABILITY OF

COUNTY.

1. A person who had a lawful settlement in the county of C. was severely injured while temporarily residing in the county of H., and the latter county furnished him medical attendance, nurses, etc., for several months. Held, on suit brought to recover for such relief by the county of H. against the county of C., that the county of H. could not recover, in the absence of any provision of the statute authorizing such recovery.

2. Section 2143, Comp. Laws, provides that "every county shall relieve all poor and indigent persons lawfully settled therein, whenever they shall stand in need thereof." Held, that under this section no legal duty was imposed upon a county to provide relief or support to one who had a lawful settlement therein while without the county.

3. Section 2161 provides that it shall be the duty of the overseers of the poor of a county to furnish temporary relief to one who is sick and in distress, and without friends or money, therein, though not an inhabitant of the county. Held, that this duty is imposed upon a county, in addition to the legal duty of supporting its own poor and indigent..

4. Further held, that the obligation or duty of a county to relieve and support the poor is purely statutory, and to make a county liable the case must fall within the liability created pursuant to, and in the manner prescribed by, the statute.

5. Further held, there are none of the elements of a contract, express or implied, in a demand for

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It will be observed from an examination of these sections that it is made the duty of the county-First, to relieve and support all poor and indigent persons lawfully settled therein; second, to relieve, temporarily, poor and indigent persons, not lawfully settled therein, but who stand in need of aid therein; third, to grant temporary relief to persons not inhabitants of the county, lying sick or in distress therein, without friends or money; and, fourth, that authority is given the county to remove, on proper proceedings taken, poor and indigent persons, liable to become a public charge, to the county in which such persons have a legal settlement. It will be further observed that in the sections cited, except section 2161, "poor" or "poor and indigent" persons are referred to, while in the latter section the words any person" are used as designating the persons entitled to temporary relief under that section. This latter section, therefore, seems to contemplate that persons who are not in the class designated as "poor and indigent" persons may, from accident, sickness, or other misfortune, require temporary relief in a county of which such persons may not be inhabitants. It is quite clear from the findings of the referee in this case that the man Luther was within this class, and that the temporary relief furnished him was uuder the provisions of the latter section. The legal duty imposed upon a county to grant temporary relief to such persons, as are designated in section 2161, is quite as obligatory upon the county as the duty imposed of relieving all poor and indigent persons lawfully settled therein. The duty, in either case, is imposed in positive terms. The legal duty of a county to relieve and support the poor and indigent lawfully settled therein seems to be limited to the poor and indigent within the county, there being no provisions in the law requiring a county to provide for its poor outside of the county; and a county, neither upon notice or otherwise, is required to remove a person having a legal settlement therein from a county where he is, or is liable to become, a public charge, but such duty of removal is imposed upon the county in which such person may be. In our opinion the legal duty to furnish temporary relief to a person sick or in distress, and without friends or money, is imposed upon the county, in addition to the duty of providing relief and support for its own poor and indigent, and is placed as an additional burden upon such county. This is quite apparent from the fact that no provision is made for reimbursing a county for the relief so furnished, and that no provision is made for any notice to be given to the county in which such person has a legal settlement. That this is the proper construction of our statute is confirmed by the further fact that in adopting a system of poor-laws our legislature has followed substantially the system in force in the state of Indiana, in which no provisions are made for reim

curred for relief furnished in cases like the one at bar, in preference to the system in force in many of the states, where provisions are made for such reimbursement, and the method of proceedings to enforce the remedy are fully and specifically pointed out. If we are correct in our construction of the statute, Hamlin county has furnished no relief to the man Luther which it was the legal duty of Clark county to have furnished. It has only furnished the relief legally imposed upon it, to furnish to one lying sick and in distress, without friends or money, therein, though not an inhabitant of that county. The obligation or duty of a county to relieve and support the poor and indigent is purely statutory, and to make a county liable the case must fall within the liability created pursuant to and in the manner prescribed by the statute. Cooledge v. Mahaska Co., 24 Iowa, 211; Mitchell v. Cornville, 12 Mass. 333; Miller v. Somerset, 14 Mass. 396; Kellogg v. St. George, 28 Me. 255; Ives v. Wallingford, 8 Vt. 224. There are none of the elements of a contract, express or implied, in a demand for the support or relief of the poor. The liability, if any, originates solely in the positive provisions of the statute. City of Augusta v. Chelsea, 47 Me. 367. The duty of supporting the poor, aiding poor people, or those temporarily requiring assistance, may be imposed by the legislature upon counties or towns in such manner as it may deem expedient. There is no question of moral obligation involved, nor any question of absolute right as between the counties. It is simply a question of public policy, and, being such, is entirely within the control of the legislature. We are therefore of the opinion that the judgment in this case should be reversed. Judgment reversed, with instruction to the court below to conform its conclusions of law to the views expressed in this opinion, and to render judgment on the findings in favor of the defendant. All the judges concurring, except BENNETT, J., who did not sit in this case, nor take any part in the decision.

(1 S. D. 138)

HEGELER V. COMSTOCK. (Supreme Court of South Dakota. May 12, 1890.) NEGOTIABLE INSTRUMENTS.

1. The term "negotiable instrument "has a definite signification in the law merchant, and the meaning of the term has not been changed by the Code. A negotiable instrument is one that is simple, certain, and unconditional.

2. Certainty as to the payer and payee, the amount to be paid, and the terms of payment, is an essential quality of a negotiable promissory note, and that certainty must continue until the obliga tion is discharged.

3. The following is a copy of a note held to be non-negotiable: "On or before the 1st day of December, 1884, for value received, I or we, the undersigned, living 5 miles of Howard P. O., county of Miner, territory of Dakota, promise to pay Marsh Binder Manufacturing Company or order one hundred dollars, at the Miner County Bank, in Howard, with interest from date until paid at the rate of ten per cent. per annum, eight per cent. if paid when due. The indorsers, signers, and guarantors severally waive presentment for payment, protest and notice of protest, and notice of

(Syllabus by the Court.)

Appeal from district court, Miner county; BARTLETT TRIPP, Judge.

Gott

D. D. Holdridge, for appellant. Gottleib Engel, for respondent.

BENNETT, J. This is an action brought by the plaintiff and appellant against the defendant and respondent upon two promissory notes. The following is a copy of said notes: "On or before the 1st day of December, 1884, for value received, I or we, the undersigned, living 5 miles of Howard P. O., county of Miner, territory of Dakota, promise to pay to Marsh Binder Manufacturing Company or order one hundred dollars, at the Miner County Bank, in Howard, with interest from date until paid at the rate of ten per cent. per annum, eight per cent. if paid when due. The indorsers, signers, and guarantors severally waive presentment for payment, protest and notice of protest, and notice of non-payment of this note, and diligence in bringing suit against any party to this note, and sureties agree that time of payment may be extended without notice or other consent. EDWIN W. COMSTOCK." Upon the trial the cause was submitted to the court, sitting as a jury, upon the following agreed statement of facts: "(1) That on the 18th day of August, 1883, the defendant, Edwin W. Comstock, made, executed, and delivered to the Marsh Binder Manufacturing Company or order his two certain promissory notes of $100 each. A copy of said notes are set out in the complaint hereto attached. (2) That said notes were given in part payment for a machine. That said machine was warranted by said company, and that said Comstock purchased said machine on the faith of said❘ warranty, and the consideration for said notes wholly failed. That the said defendant had a good and sufficient defense to said notes in the original parties' hands. (3) That on the 9th day of November, 1883, the Marsh Binder Manufacturing Company borrowed of the plaintiff, E. C. Hegeler, the sum of $22,500." That to secure the payment of said sum of money so borrowed the said company, on the 9th day of November, 1883, the same day the said sum was so borrowed, transferred to the plaintiff, E. C. Hegeler, a large number of notes, amounting to about $30,000, and among the notes so transferred were the above-described notes. (4) That said notes were so transferred as above stated before they were due, and that the plaintiff had no notice of any defense to the same, but received them in perfect good faith. (5) That at the time of the transfer above mentioned, the Marsh Binder Manufacturing Company properly indorsed said notes to the plaintiff. (6) That at the commencement of this action several thousand dollars of the $22,500 borrowed by the Marsh Binder Manufacturing Company of the plaintiff, E. C. Hegeler, as before stated, and for which the abovedescribed notes were taken as security,

was still unpaid. (7) That at the commencement of this action the said notes were the property of the plaintiff, due and unpaid. (8) That at the commencement of this action, to-wit, February 11, 1888, there was due on both of the above-described notes the sum of $290.80." The following were the stipulations entered into by the parties as to the legal questions involved in said action, to-wit: "(1) Whether the plaintiff, under the above statement, was a bona fide holder. (2) Whether said notes are negotiable instruments so as to cut off in the hands of said plaintiff, procured by him as above stated, all defenses that might have been set up and proven between the original parties to the notes." Upon the hearing the court found the following conclusions of law: "(1) That said notes are not negotiable instruments, and that said defendant is entitled to prove any defense to said notes that he could have proven in an action between the original parties to said instruments; (2) that the defendant has a good and valid defense against said notes, and to the whole thereof, and is entitled to a judgment of dismissal of plaintiff's action, and for costs,-and rendered a judgment dismissing the plaintiff's complaint, and that the defendant recover of said plaintiff the costs and disbursements of this action. Whereupon the plaintiff perfects his appeal, and makes the following assignment of errors: "(1) The court erred in finding that said notes were not negotiable. (2) The court erred in finding that the defendant is entitled to prove any defense to said notes that he could have proven in an action between the original parties to said instruments. (3) The court erred in finding that the plaintiff, under the statement and stipulation of the parties, was not a bona fide holder. (4) The court erred in finding that the defendant has a good and valid defense against said notes, and that defendant is entitled to a dismissal of plaintiff's action. (5) The judgment is erroneons, and against law."

By stipulation of the parties, and the assignment of errors, the only legal questions involved in this action are these: First. Are the written instruments sued upon negotiable notes? Second. Is the plaintiff a bona fide holder of the same? It is claimed that the following clause renders these notes non-negotiable: "With interest from date until paid, at the rate of ten per cent., eight per cent. if paid when due."

1. Aresaid instruments negotiable? The statutes of Dakota, independent of the common law and decisions of state courts, define negotiable instruments and settle their ingredients. We quote from the Compiled Laws: "Sec. 4456. A negotiable instrument is a written promise or request for the payment of a certain sum of money to order, or bearer, in conformity to the provisions of this article. Sec. 4457. A negotiable instrument must be made payable in money only, and without any condition not certain of fulfillment. Sec. 4462. A negotiable instrument must not contain any other contract than such as is specified in this article." The term negotiable instrument" has a definite

signification in the law merchant, and the meaning of the term has not been changed by the Code. The principal importance which is to be attached to the question of negotiability arises from the rule of law which subjects all non-negotiable bills and notes to any equities which may exist between prior parties, even when they are transferred before due to a bona fide purchaser for value. A negotiable instrument is one that is simple, certain, and unconditional. Lord ELLENBOROUGH, in Smith v. Nightingale, 2 Starkie, 375, held that an instrument wherein the promise" to pay J. S. the sum of sixty-five pounds, with lawful interest for the same, and all other sums which should be due him," was not a promissory note. Byles, Bills, 147. Lord KENYON, in Carlos v. Fancourt, 5 Term R. 485, observed: "It would perplex the commercial transactions of mankind, if paper securities of this kind were issued out into the world incumbered with conditions and contingencies, and if the persons to whom they were offered in negotiation were obliged to inquire when these uncertain events would probably be reduced to a certainty." In Ayrey v. Fearnsides, 4 Mees. & W. 168, PARKE, B., held that the words "and all fines according to rule" destroy the negotiability. In Thompson v. Sloan, 23 Wend. 71, the court held that a promise to pay a certain sum in Canada money is not negotiable. In the case of Jones v. Radatz, 6 N. W. Rep. 800, the supreme court of Minnesota held the following not a negotiable promissory note: "$135. P. O. St. Paul, County of Ramsey, State of Minnesota, September 7, 1878. Three months after date we, or either of us, promise to pay to H. K. White & Co. or bearer $135, payable at the Second National Bank of St. Paul, Minnesota, for value received, with 12 per cent. interest per annum from date, and reasonable attorney's fees, if suit be instituted for the collection of this note. Chief Justice GILFILLAN, in this case, said: "The instrument before us has this certainty as to the $135 and the interest. But the whole instrument must be taken together. The promise to pay the $135, and interest, is not the whole of the promise, not the entire obligation created. The entire promise and obligation is to pay absolutely that sum, and interest, and in a particular contingency, to-wit, the bringing suit by the payee after default, to pay a further amount not fixed, and not capable of being ascertained from the instrument itself. The supreme court of Pennsylvania, in the case of Woods v. North, 84 Pa. St. 407, held the following instrument to be a non-negotiable promissory note: "$377. Huntington, Pa., May 5th, 1875. Sixty days after date I promise to pay to the order of W. H. Woods, at the Union Bank of Huntington, three hundred and seventyseven dollars, and five per cent. collection fee, if not paid when due, without defalcation, value received. SAMUEL STEFFEY. Indorsed: W. H. WOODS." In this case Justice SHARSWOOD said: "In the paper now in question there enters, as to the amount, an undoubted element of uncertainty. *** If this collateral agreement may be introduced with impunity,

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what may not be? It is the first step in the wrong direction which costs. These instruments may come to be lumbered up with all sorts of stipulations, and all sorts of difficulties, contentions, and litigation result." In Bank v. Purdy, 56 Mich. 6, 22 N. W. Rep. 93, the supreme court decided that the following was not a negotiable promissory note: "$366.66. Coldwater, Mich., Feb. 27, 1883. On the 1st day of November, 1883, we, the undersigned, whose post-office address is Algansee, county of Branch, and state of Michigan, jointly and severally, for value received, promise to pay E. M. Birdsall & Company or order three hundred and sixty-six 66-100 dollars, with interest at seven per cent. per annum if paid when due; if not so paid, then the interest shall be ten per cent. per annum from date. We also agree to pay exchange and all expenses, including attor ney's fee incurred in collecting, payable at the First National Bank in Coldwater, Mich. We do hereby relinquish and waive the benefit of all laws exempting real and personal property from levy and sale, and all benefit or relief from valuation and appraisement laws. GEORGE R. PURDY. ELNATHAN George. Mr. Justice CHAMPLIN, in this case, says: "The modern tendency to interpolate into such instruments engagements and stipulations not recognized by the law merchant, affecting the certainty as to the amount due and payable thereon, or the time of maturity,

* * should be discountenanced and held to destroy their negotiability and deprive them of the character of promissory notes, and they should be relegated to the domain of ordinary contracts." In the case of Altman v. Rittershofer, 36 N. W. Rep. 74, 68 Mich. 287, the note before the court was as follows: "130. Bay City, Michigan, October 17, 1885. Six months after date I promise to pay to the order of M. Cohn one hundred and thirty dollars, at the Bay National Bank of Bay City, Michigan, for value received, without any relief whatever from valuation or appraisement laws, with eight per cent. interest from date until paid, and attorney fees. FREDERICK RITTERSHOFER. Indorsed: M. COнN." Mr. Justice LONG, in delivering the opinion, says: "A promissory note is an unconditional written promise, signed by the maker, to pay absolutely and at all events a sum certain in money, either to the bearer, or to a person therein designated, or his order. The only question upon the negotiability of this instrument is whether the words 'and attorney fees,' added thereto, renders the sum to be paid uncertain. * The better reasoning, in my judgment, holds such instruments non-negotiable." In Bank v. Taylor, 25 N. W. Rep. 810, the instrument sued on was as follows: "$40.00. Coon Rapids, Iowa, 5-4-1881. On the twenty-fifth day of December, 1881, for value received, I promise to pay J. W. Stoddard or bearer forty dollars, with interest at ten per cent., payable annually from date until paid, and ten per cent. is to be added to the amount if this note remains unpaid after maturity, and is collected by suit. For the consideration mentioned above, the undersigned hereby sells and conveys to J. W.

*