a procedure which has been practiced since time immemorial, both in this country and in England, will become a thing wholly of the past. Indeed, if defendant's contention be sound, and the court's decision be allowed to stand, this defendant can never have a final judgment rendered against him, even for the minor offense included in the principal charge; for by the order of the court a new trial is granted, and upon such trial the defendant cannot be compelled to interpose his special plea of once in jeopardy. Neither has the court any power to enter such plea for him. Therefore upon another conviction for the same offense he would again secure a new trial upon the same grounds which were previously successful, and the practice could be continued indefinitely. To allow a defendant, as was done in this case, to sit idly by during the progress of his trial, and then, upon conviction, set up, upon motion in arrest of judgment, or for a new trial, a special defense that he could have raised at the very inception of the trial, would be to sanction a practice which might well be termed trifling with the court. If a defendant could raise this question after trial and conviction, he could with equal success raise it after a plea of guilty, no trial having been had. The defendant's plea of not guilty puts in issue all the allegations of the indictment or information, and nothing more. In this case the defendant would not have been allowed to prove at the trial that he had been once in jeopardy, for there was no such issue in the case, and could be none unless he saw fit to make it by plea. To say that evidence could be introduced before the court upon his motion for a new trial that would not have been admitted if offered at the trial would be an anomaly, and is entirely without the law.

The authorities upon the foregoing question appear to be in entire accord. In Com. v. Olds, 5 Litt. (Ky.) 140, the court, speaking as to special pleas, said: "It is well settled that these two pleas must be pleaded in bar, and that they cannot be given in evidence under the general issue." And in People v. Olwell, 28 Cal. 462, this court said: "At common law, upon a second indictment for the same offense the prisoner could not avail himself of a former conviction under the plea of not guilty, but he was required to plead it specially." And again, in People v. Lee Yune Chong, 94 Cal. 386, 29 Pac. Rep. 778, this language is found: "Counsel for appellant argue the question of 'once in jeopardy,' but that question can arise only after an issue has been made by a plea of 'once in jeopardy.'" An eminent author upon criminal law declares: "The law's methods must be pursued by him who seeks the protection of the law. Hence, as to pleas, to be entitled to show a particular matter in defense he must tender the plea which the law has provided, in the law's form and at the law's time." Again the same author says: "The only method for taking advantage of the former conviction or acquittal we have seen is this plea. Thus there cannot be an arrest of judgment." Bish. New Cr. Proc. §§ 714. 813. See, also, Zachary v. State, 7 Baxt. 1; State v. Washington, 28 La. Ann. 129; Pitner v. State, 44 Tex. 578; State v. Barnes, 32 Me. 534; Rickles v. State, 68 Ala. 538. Section 1020 of the Penal Code in substance declares the same principle. We see nothing violative of any constitutional provision in adhering to the foregoing views. While it is true the constitution declares that no man is to be placed twice in jeopardy for the same offense, still, as Mr. Bishop says, "the law's methods must be pursued by him who seeks the protection of the law," and this the defendant has not done. Again, the fact that the first trial was had in the same court

and before the same judge, as the second trial, in no way excused the necessity of the plea of once in jeopardy. The whole question of once in jeopardy was entirely foreign to the case, unless raised by a special plea; and, when so raised, an issue of fact was presented, which the jury alone possessed the power to pass upon.

CONSTITUTIONAL LAW-ARREST OF DEBTOR. -It is held by the Court of Appeals of Kansas, in In re Roberts, that Gen. Stat. Kan. 1889, pars. 4872, 4873, in so far as they relate to the arrest and imprisonment of a judgment debtor upon the affidavit of the plaintiff, his agent or attorney, alone, are unconstitutional and void, for the reason that they are in violation of article 14, § 1, of the constitution of the United States, which declares that no State shall "deprive any person of life, liberty, or property without due process of law." The court says in part:

So far as the discussion of the proposition involved in this case is concerned, we consider that the subse. quent steps are not material. The contention of the petitioner is that he has been deprived of his liberty without due process of law, and, if this be true, it is immaterial whether the petitioner is actually confined in the jail of Bourbon county, or compelled to re main within the prison limits of said county by rea son of the bond set forth in the answer of the sheriff. It is admitted that no provision is made by the Code for a hearing with regard to the question of fraud, where the affidavit is filed by the plaintiff after judg. ment is rendered, and that the only provisions for the discharge of a debtor so arrested are contained in paragraphs 4609, 4610, 4613, Gen. St. 1889. The first of these sections provides, in substance, that any person taken on execution, where the process is issued from a justice of the peace, may obtain his release by setting off to the officer personal property sufficient to satisfy the judgment and costs; the second provides for the giving of a bond by the execution debtor to remain within prison bounds; and the third provides for his release upon his showing to the satisfaction of the justice who issued the execution that he was un. able to perform the act therein commanded, or to endure the imprisonment, and such discharge is al lowed upon terms that may seem just to the justice of the peace making the order. Section 16 of the bill of rights provides: "No person shall be imprisoned for debt except in cases of fraud." The obvious meaning of this is that there shall be no imprisonment for debt except in case where fraud has been established. Fraud is never presumed. It is something which must be proven, and proven before a court having jurisdiction to pass upon the question. Consequently, before one, in this State, may be imprisoned for fraud, there must have been a judicial finding, upon due process of law. Section 1 of article 14 of the constitution of the United States provides that no State shall "deprive any person of life, iiberty, or property, without due process of law." In the famous Dartmouth College Case, 4 Wheat. 518, Daniel Webster enunciated the following definition of what is meant by "due process of law," which is copied approv ingly by Judge Cooley in his work on Constitutional Limitations (page 408, § 353): "By the law of land

is most clearly intended the general law,-a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial." Taking this definition as a basis, we are forced to the conclusion that the sections in controversy are contrary to the letter and spirit of our bill of rights and the constitution of the United States. Nowhere is there any provision for a hearing and determination of the question of fraud, where the affidavit of the plaintiff in an action is filed after judgment. No opportunity is given for an appeal from this portion of the judg ment. Under this provision a plaintiff might sue upon an ordinary promissory note, to which the defendant admitted he had no defense, and therefore made no appearance. An ordinary judgment might be rendered by the justice of the peace, and upon this ordinary judgment, if plaintiff should file an affidavit under the statute, the arrest and incarceration of the defendant would follow, for fraud, without any hearing ever having been had, or any determination made that fraud had been perpetrated by said defendant. It is argued by counsel for the respondent that if the affidavit is false the maker thereof may be punished for perjury, or the defendant may obtain his release by one of the methods prescribed by statute. Neither of these arguments answers the objection to the statute. The plaintiff making the affidavit might not be guilty of perjury, for in his own mind he might honestly believe the statements contained in his affidavit to be true; and, even if they were willfully false, the law never intended that one man should be imprisoned upon the affidavit of another, without a hearing and determination by a competent court of the truth of the grounds alleged which warrant such imprisonment. And, so far as the provisions of the statute with regard to the release of a defendant are concerned, they in no manner relieve him from the finding of fraud made by the court. In this case the record shows that the petitioner filed a counter affidavit denying the grounds of fraud alleged by the plaintiff, and denying the facts set up as a basis for the allega tions of fraud, but he was denied a hearing for the reason that the statute nowhere provided for a hearing after judgment upon this question. In San Mateo v. Southern Pac. R. Co., 13 Fed. Rep. 722, the court uses the following language: "By 'due process' is meant one which, following the forms of law, is appropriate to the case, and just to the parties to be affected. It must be pursued in the ordinary manner prescribed by law, it must be adapted to the end to be attained, and it must give to the party to be affected an opportunity of being heard respecting the justice of the judgment sought. Without these conditions entering in it, the proceeding would be anything but due process of law. If it touched life or liberty, it would be wanton punishment, or rather wanton cruelty." We do not consider it necessary to cite a large number of cases, or to continue a discussion of this question. The principle here enunciated is too well recognized at this date to demand it. But we are forced to the conclusion that the paragraphs in question, so far as they permit the arrest of a judgment debtor upon the affidavit of the plaintiff, his agent or attorney, and the incarceration of such debtor in the jail of the county, without an opportunity of having a hearing upon the question of fraud, are contrary to the bill of rights, and to the constitution of the United States. The petitioner will therefore be discharged. All the judges concurring.

OFFICE AND OFFICERS-PAYMENT OF SALARY TO DE FACTO OFFICER.-The case of Fuller v. Roberts County, 68 N. W. Rep. 308, furnishes an interesting application of the principle that a county or municipality which has paid a salary to a de facto officer, who performed the duties of the office under color of title, while the right to it was in litigation, cannot be held liable therefor again to another who may thereafter establish his title to the office. The following is the opinion of the court:

The plaintiff, claiming to be the legally elected county judge of the defendant county for the term commencing on the first Monday in January, 1893, brought this action to recover the sum of $750, balance claimed to be due him as such county judge. Judgment was rendered in his favor for $600, and the defendant appeals.

The action was tried by the court without a jury, and its findings of fact are as follows: "First. That a general election was held in said Roberts county on the 8th day of November, 1892, and that at said election the plaintiff, Burt Fuller, was duly elected to the office of county judge of Roberts county for the term commencing January 1, 1893, and thereafter a certificate was duly issued to the plaintiff by the county auditor of said Roberts county, and that on the 3d day of January, 1893, the plaintiff qualified for said office, filing his bond and subscribing the oath of office as provided by law, and immediately thereafter demanded possession of said office, and was during the entire term of said office the de jure officer, and ready and willing to perform the duties of said office. Second. That the salary of the county judge of Roberts county was fixed, and was, at and during the term of office for which plaintiff was elected, the sum of six hundred dollars per annum, payable quarterly, and that the salary for the entire term of office for which said plaintiff was elected was twelve hundred dollars. Third. That no part of said salary has been paid by the defendant county to plaintiff, Burt Fuller, except the sum of four hundred and fifty dollars which was paid on the 8th day of January, 1895. Fourth. That prior to the time when said plaintiff qualified to enter upon the duties of his office, an election contest was commenced by J. J. Batterton, the then county judge of Roberts county, contesting the election of the said Burt Fuller, and that on the 18th day of September, 1893, judgment was rendered in the said contest action in favor of the said J. J. Batterton and against the said Burt Fuller, sustaining said contest, and that during the time of said term of office the said J. J. Batterton was incumbent in, and performed the duties of county judge in said office. Fifth. That on the 11th day January, 1894, an order was made by the court setting aside and vacating the judgment in said contest proceedings, and granted to the plaintiff, Burt Fuller, who was defendant in said contest proceedings, a new trial therein. Sixth. That defendant county has paid to said J. J. Batterton, as salary for the office of county judge for said term, the sum of seven hundred and fifty dollars." From these findings the court concludes, as matter of law, that the defendant county was indebted to the plaintiff for the salary for the term, less $450 paid, and $150 paid Batterton for the quarter ending December 31, 1893. This was the quarter following the judgment in favor

of Batterton, and before the new trial was granted, and was evidently allowed to the county upon the theory that, having been paid by it after judgment in Batterton's favor, it was properly paid. We may add that the order granting a new trial, referred to in the fifth finding, was, on appeal to this court, affirmed, The case is reported" under the title of Batterton v. Fuller, 60 N. W. Rep. 1071. Prior to the trial the court, on motion of plaintiff's counsel, struck out three para. graphs of the answer, to which the defendant excepted, and it now assigns as error the ruling of the court in so striking them out. But, in the view we take of the case, it will not be necessary to discuss this, and many other assignments of error in the record, and we shall confine ourselves to the consideration of the following assignments: "The court erred in finding, as a matter of law, that the defendant county is indebted to plaintiff, Burt Fuller, on account of the salary of county judge, for the term of office commencing on the 1st day of January, 1893, and ending on March 31, 1894, except the salary of said office for the quarter ending December 31, 1893. (12) The court erred in finding, as a matter of law, that the sum due to plaintiff from defendant on account of said salary is the sum of six hundred dollars with interest from and after the 8th day of January, 1895." It will be observed that the court finds that Batterton discharged the duties of the office of county judge during the entire term, and that the county had paid him therefor the sum of $750, which, with the $450 paid to the plaintiff, made up the salary of the entire term. So far as the record discloses, no judg ment was at any time rendered against Batterton during the term, and hence the county, by its board of commissioners, made no payments of salary to him, with knowledge of any judgment in favor of the plaintiff, as did the commissioners in the case of Fylpaa v. Brown Co. (S. D.), 62 N. W. Rep. 962. The only judgment in the case of Batterton v. Fuller, so far as the record discloses, was one in favor of Batterton's title to the office. It is true, that judgment was set aside, and vacated, and a new trial granted, but the granting of the new trial did not determine the respective rights of the parties to the office. It would seem that the weight of authority sustains the position that payment made to public officer de facto, who discharges the duties of an office pending the litigation as to the title, is a bar to the recovery of the money so paid, in an action by the officer de jure. The rule is thus stated by Mr. Justice Fuller in Chandler v. Hughes Co. (S. D.), 67 N. W. Rep. 917: "The rule is that payment by a municipality to an officer de facto, who has entered upon and performed the duties of an office, under color of title, pending litigation to establish the right of a de jure officer, is a bar to a recovery from the public of the amount thus paid before the entry of judgment, and the only remedy available to the officer de jure is an action for damages against the officer de facto. Mechem, Pub. Off. 871; Commissioners v. Auderson, 20 Kan. 298. Payment by the public to one with color of title, actually in an office, discharging its duties, whose right thereto has not been by a competent judicial tribunal adversely determined, is full protection against any fur ther liability." The decision of the court, therefore, upon the facts found, cannot be sustained, and must be reversed.

It is contended by the respondent that such a rule will encourage parties to hold over offices to which they have in fact no title, in order to draw the salary. There is force in this contention. But it is for the interest of the community that public offices should

be filled, and the duties of the office discharged by either an officer de jure or an officer de facto; and, in order to secure this service, the officer performing it must ordinarily be paid. And the public should not be allowed to suffer by reason of litigation between conflicting claimants to an office; and the payment, in good faith, to the officer discharging the duties of the office, should be held a bar to any other action. Ordinarily, it would be the duty of the circuit court, in a contest case, to put the claimant, who has the certifi cate of election, and therefore, prima facie, the title to the office, in possession by mandamus proceedings, without in any manner determining the real title to the office, if the court is satisfied that an election duly authorized by law has been held, or an appointment provided for by law has been made. This was declared to be the law in Driscoll v. Jones, 1 S. D. 8, 44 N. W. Rep. 726, after a full consideration of the subject. In this case, so far as the record discloses, the plaintiff made no application for such a writ, and seems to have allowed Batterton to retain the office during the pending of the contest proceedings. It is to be presumed that, if the application had been made to the court, it would at once have issued its man. date, and placed the plaintiff in possession of the office pending the litigation, upon the production of his certificate of election, and proof that he had duly qualified. This prima facie title may be impeached in the proper proceeding, but cannot be on an ap plication for a mandamus. In that proceeding no question of the actual title is involved. Who, upon the face of the papers, is entitled to the office? is the only question involved in such a proceeding. The judgment of the circuit court is reversed.

LEGITIMATE COMPETITION.

The boundary of legitimate competition is Former decisa discovery of recent years. ions afforded only an outline. It was left for the litigation which has sprung from our modern trusts and trade combinations to definitely fix the dividing line between legitimate competition and illegal commercial piracy. The courts of a majority of the States have not yet passed upon all the propositions involved in this discussion; but recent leading cases1 have so exhaustively argued the subject, and by cross references so strengthened the authority of each other, that we consider it safe to say the main principles of law involved are authoritatively settled, and to predict that courts in States where the subject has not yet been considered, will, when called upon, decide in accordance with these well settled

1 Bowen v. Hall, 6 L. R. (Q. B. D.) 333; Carew v. Rutherford, 106 Mass. 1; Haskins v. Royster, 70 N. C. 601; Chipley v. Atkinson, 1 S. R. 934; Van Horn v. Van Horn, 52 N. J. Law, 284; Curran v. Galen, 22 N. Y. S. 826; Temperton v. Russell, 4 Reports (Q. B. A.) 376; Delz v. Winfree, 16 S. W. Rep. 111; Olive v. Van Patten, 25 S. W. Rep. 428; Mogul Steamship Co. v. McGregor, Gow & Co., 23 L. R. (Q. B. D.) 598.

principles. The authorities upon our subject do not entirely agree in all respects; but the differences, as we shall try to show, are less serious than would appear to a casual student, and may all be harmonized into certain basic propositions. In this class of cases the courts have found antagonistic principles of law requiring to be reconciled without impairment of either. It is frequently a part of the necessities of trade that where one man gains another man must lose, and it often happens that one who seeks to build up his own business must necessarily plan to injure or possibly ruin the business of his neighbor. To clearly mark, in the presence of such conditions, the dividing line between a person's right to use his own as he sees fit and the injunction laid upon him to so use his own property and rights as not to injure another in a like use of his property and rights, has called for clear, judicial discernment. In transactions involving competition the interests of the public at large are at stake, and in consequence it some times happens that one may deprive another of his trade and the law pronounces it legitimate competition, while if he should take from the other the money which that trade is worth, the law would stamp his act as stealing. If the law could consider only the rights of two individuals in such cases, without regard for the interest of the public, the judgment would undoubtedly be quite different. Each person derives many and great advantages through his civil relation in society; but, on the other hand, he is at times called upon to suffer disadvantage for the good of society in general, and endure what would be injustice, if it were not necessary for the good of the many. The law recognizes free competition as of the utmost concern to the general welfare of all, and will protect it, even though individuals suffer. As a necessity of free competition the law allows a person to buy or not to buy as he pleases, from whom and where he pleases; to sell or not to sell as he pleases, and to whom and where he pleases;2 to employ or to discharge from his employment

ter into or refuse to enter into, may continue or refuse to continue business relations with each and every one else. This proposition we presume will upon first thought appear to be both reasonable and just, for we are inclined to include in this proposition the presumption that a person exercises such control of his own business for the sole purpose of advancing his trade interests; but the law, as found in these decisions, takes a radical step further than this, and declares, however unjust it may seem, that a person may buy and sell, or refuse to buy and sell, work for or refuse to work for another, employ or refuse to employ another, as above stated, whatever his motives may be, whether actuated by malice, whim or caprice, and even though he seeks by so doing no benefit to himself, but solely injury to another. This radical position has led some jurists into what we must consider a grave error-that of concluding that the law sanctions an evil motive, or has no regard for the motives with which actions are done.7 Such a conclusion we believe to be untenable and wholly contradicted by the great weight of authority. We believe the law never regards an act done for the sole purpose of injuring another in the same light that it regards the same act done without intention to injure. We think the more correct view is that the courts in a certain class of cases are estopped from considering the motive. the courts in a certain class of cases eliminate the motive from consideration, the presence of a bad motive does not carry with it the sanction of the court. That we believe to be true in these cases which we are discussing, involving the right of a person to control his own trade relations. The importance to the public of free competition is such that the courts are precluded from considering the motives that prevail between the individuals.

5 Bowen v. Matheson, 14 Allen, 499; Hunt v. Simonds, 19 Mo. 583; Mogul Steamship Co. v. McGregor, 23 L. R. (Q. B. D.) 598; Cote v. Murphy, 159 Pa. St. 420; Continental Insurance Co. v. Board of Fire Underwriters, 67 Fed. Rep. 310.

6 Cooley on Torts, p. 278; Delz v. Winfree, 16 S. W. Rep. 111.