facturing company, in which they are interested, not only as its treasurer, secretary, and directors, but as holders of two-fifths of all its capital stock. The case of McGill v. Young, 16 S. Dak. 360, 92 N. W. 1066, is an authority to the point that the jury may disregard, as not entitled to credit, the uncontroverted testimony of interested witnesses, where the circumstances are such as to reasonably allow 241 the inference of suspicion; and in support of the proposition we say: "In Honegger v. Wettstein, 94 N. Y. 252, the testimony was not directly contradicted, and the court therefore refused to submit the question of the credibility of the witness to the jury. On appeal this ruling was assigned as error, and in disposing of it the court of appeals says: "We also think that the court erred in refusing to submit to the jury the question made as to the credibilty of the witness Ochninger. Although not contradicted, he was an interested party, and had a direct interest in increasing the fund in the hands of the receiver and preventing its payment to the plaintiff.' The same view of the law was taken by the court in McNulty v. Hurd, 86 N. Y. 547. The case of Joy v. Diefendorf, 130 N. Y. 6, 27 Am. St. Rep. 484, 28 N. E. 602, is analogous to the case at bar. The principal defense relied on in that case to defeat the action was that the plaintiff. was not a bona fide holder of the note. The court, in its opinion, says: "The evidence given on the part of the defendant was sufficient to warrant the conclusion that the note had been obtained from him through fraud practiced upon him by Henderson and Van Valkenburgh, and the burden was thus cast upon the plaintiff to show that he was a bona fide purchaser: Vosburgh v. Diefendorf, 119 N. Y. 357, 16 Am. St. Rep. 836, 23 N. E. 801, and cases cited. This burden the plaintiff met by his own evidence as to the circumstances attending the purchase, and his knowledge of the party from whom he obtained it, and the credibility of his testimony was for the jury to determine. That question was decided in Canajoharie Nat. Bank v. Diefendorf, 123 N. Y. 191, 25 N. E. 402, 10 L. R. A. 676. The case was upon a note obtained by the same parties from this defendant, and grew out of the same transaction as the note in suit, and was transferred to the Bank 242 of Henderson. The question of the good faith of the bank's purchase depended entirely upon the evidence of its cashier, and it was held that his relation to the bank and his interest in the transaction brought him within the rule

that the credibility of a party or an interested witness is a question for the jury to determine.'"' To the same effect are the following cases: Blount v. Medbery, 16 S. Dak. 562, 94 N. W. 428; Seehorn v. American Nat. Bank, 148 Mo. 256, 49 S. W. 886; Dysart v. Terrell, 70 S. W. 986. The relation of these officers to the respective corporations interested in the collection of the note, the proceeds of which were applied in partial satisfaction of an existing indebtedness, and their manner of doing business, as shown by the record, suggests the likelihood of knowledge on the part of the bank that the makers of the note had a valid defense, and the credibility of such witnesses and their testimony ought to have been determined by the jury.

Disaffirming our former opinion in this particular only, the judgment appealed from is reversed, and a new trial granted.

The Evidence of a Witness may be Disregarded, though he is not contradicted, if he is a party or is interested, and therefore the court must submit to the jury the question of his credibility. Hence where a plaintiff seeks to recover as a bona fide purchaser of a note which was obtained from the maker by fraud, and testifies to facts tending to show that he is such a holder, the question of his good faith cannot be withdrawn from the jury: Joy v. Diefendorf, 130 N. Y. 6, 27 Am. St. Rep. 484.

FARNHAM v. COLMAN.

[19 S. Dak. 342, 103 N. W. 161.]

MANDAMUS does not Lie to Review the Action of an Inferior Tribunal on account of error therein. (p. 946.)

CONTEMPT-Inferior Tribunals are Without Inherent Power to Punish for Contempt.-This rule applies to a justice of the peace engaged in the preliminary examination of a criminal charge. (pp. 949, 950.)

Chambers Kellar, James G. Stanley, Polley & Stewart and Ivan W. Goodner, for the appellants.

William H. Parker, state's attorney, R. C. Hayes, attorney general, and Aubrey Lawrence, for the respondent.

343 FULLER, J. This appeal is from an order of the circuit court quashing an alternative writ of mandamus issued therefrom 344 against a justice of the peace engaged in con

ducting a preliminary examination under an information charging appellants with the crime of murder. In the alternative form the writ commanded the respondent magistrate to compel the state's attorney, William H. Parker, by punishment for contempt, to produce at the hearing certain statements or dying declarations pursuant to previously served subpoena duces tecum which the witness, though called, sworn, and examined, had refused to obey. It appears from the petition that the cross-examination of one of the witnesses for the state disclosed that Richard Galvin, the victim of the homicide, after all hope of life was abandoned, and with the realization of immediately impending death, had made a dying declaration which was taken in shorthand by two competent persons, one of whom was the state's attorney's stenographer, and the same, after being typewritten, was signed by such declarant, whose death occurred soon afterward. It is conceded that the state's attorney, when called as a witness, was, and now is, in actual possession of, and wholly able to produce, both the signed statement of Richard Galvin, since deceased, and the shorthand notes taken by the stenographers; that counsel for appellants urgently requested respondent to compel their production by punishing the witness for contempt, and that such magistrate refused to resort to such procedure. If there are any other essential facts, they may be stated as well in connection with the principles and usages of law applicable to a case of this character. Nor need anything be said concerning the propriety of resorting to the extraordinary remedy of mandamus to require a public prosecutor to produce before a committing magistrate evidence on behalf of the accused after all 345 the witnesses for the state have been sworn and examined. Were it to be assumed that the respondent had the same authority to fine or imprison the state's attorney for contempt that is given him to discharge from custody or hold appellants to answer for the crime of murder, it would of necessity follow that his power to refuse to impose the penalty for contempt is equally ample, and, having thus decided in this instance, there could be no interference on the part of the circuit court by means of mandamus. In other words, had the magistrate power to punish the witness, he had power to refuse to do so, and mandamus from a court having no supervisory jurisdiction does not lie to review the action of such inferior tribunal: Territory v. Nowlin, 3 Dak. 349, 20 N. W. Am. St. Rep., Vol. 117-60

430; Ex parte Burtis, 103 U. S. 238, 26 L. ed. 392; Matlock v. Smith, 96 Tex. 211, 71 S. W. 956; Montgomery v. Palmer, 100 Mich. 436, 59 N. W. 148; High on Extraordinary Legal Remedies, secs. 153-158. In derogation of the common law, section 141 of the Revised Code of Criminal Procedure pr vides that "when the examination of the witnesses on the part of the state is closed, any witness the defendant may produce must be sworn and examined," and counsel for appellants contend that under the statute and the constitution their clients were deprived of an absolute and unqualified right to the production of the evidence demanded. Formerly all inquiry at preliminary examinations might be confined to the prosecution, and, as a matter of strict legal right, the accused was not entitled to offer evidence in his own behalf; but in some jurisdictions it seems to have been considered entirely proper to permit him to make an unsworn statement and have his witnesses examined under oath. Consistent with the theory that the constitutional right of the ac cused 346 "to meet the witnesses against him face to face, and to have compulsory process served for obtaining witnesses in his behalf," does not apply to a preliminary examination, Mr. Justice White makes the following observation: "The contention at bar that, because there had been no preliminary examination of the accused, he was thereby deprived of his constitutional guaranty to be confronted by the witnesses, by mere statement, demonstrates its error': Goldsby v. United States, 160 U. S. 70, 16 Sup. Ct. Rep. 216, 40 L. ed. 343. In the recent case of State v. Belding, 43 Or. 95, 71 Pac. 330, Chief Justice Moore, in delivering the opinion of that court, by which a judgment inflicting the death penalty is affirmed, employs the following language: "When a defendant in a criminal action is examined before a magistrate, the state is expected to produce sufficient testimony to prove that a crime has been committed, and also to make a prima facie showing that the person accused thereof is apparently guilty. By this means the defendant, without offering any testimony in exculpation, is generally enabled to ascertain the nature of the indictment likely to be returned against him, and also to anticipate the extent and character of the testimony that will probably be produced in support of the charge; thus enabling him intelligently to prepare for his defense.. The guaranty of the organic law of the state that the accused in a criminal prosecution shall have the right to meet the

witnesses face to face is satisfied when at some stage of the trial the defendant is confronted with the witnesses and given an opportunity to cross-examine them."

While it is clear that the refusal of the magistrate to compel obedience to the subpoena duces tecum did violence to no constitutional guaranty, and that mandamus from the circuit 347 court will never lie to reverse the judicial action of such officers, we prefer to rest this decision upon the well-grounded principle that inferior tribunals are without inherent power to punish for contempt, and that the extraordinary jurisdiction which the writ of mandamus commanded respondent to exercise is not given by statute. In holding that a United States court commissioner, sitting as a committing magistrate, has no power under the laws of Minnesota to punish a witness for contempt, Judge Nelson says: "It is claimed by counsel that the power to examine gives the right to subpoena witnesses, and, as an incident to it, the power to enforce obedience to the subpoena by arrest and punishment for contempt. To arrest and punish for contempt is the highest exercise of judicial power, and belongs to judges of courts of record or superior courts. Where jurisdiction exists there can be no review. A pardon by the executive is in most cases the mode of release. This power is not, and never has been, an incident to the mere exercise of judicial function, and such power cannot be upheld upon inferences and implications, but must be expressly conferred by law. . . . . But there is authority of the courts of the United States directly upon this question. In Re Perkins, on habeas corpus before Circuit Court Judge Gresham, the particular question raised here was decided. Judge Gresham said: 'It is a stretch of language to say that the punishment of a witness for contempt, and by a commissioner, is a necessary part of the usual mode of process against offenders, or essential to the exercise of any power expressly conferred on him by the federal law.' So, in Ex parte Doll, 7 Phila. 595, Fed. Cas. No. 3968, before the late United States Judge Cadwalader, Doll had been arrested on complaint made by an officer of 348 the internal revenue for failing to appear and testify in relation to his income. At the examination before the commissioner, an order was made that 'Doll produce his books before the commissioner, or be committed for contempt.' On refusal to comply, he was committed. Upon hearing the power of the commissioner to arrest and punish for contempt was raised. The judge, in dis

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