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specified rate from the time it fell due until paid, was valid and legal. This has since been the law in this territory and state, and we see no reason for overruling that decision, and hence it may be regarded as the settled law of this state. We fully recognize the law contended for by the counsel for appellants-that, when a scheme is intentionally devised by the lender of money to extort from the borrower a larger amount of interest than the law permits to be reserved or taken, it is the duty of the court to declare the interest forfeited; but where, as in this case, there was clearly no such intention, and the illegal 416 interest, if any, was reserved by mistake, simply, and not with any intention of evading the statute, it would be manifestly unjust and inequitable, and this court would be very reluctant, to declare the interest forfeited in such a case. It clearly appears from the testimony of the defendant Mrs. Wallace that her husband, Mr. Wallace, acted as her agent in the transaction. In her testimony she says: "I had no talk with Mr. Price except when the notes became due and he came in to collect them. That was after they had been executed. I never talked to Mrs. Goodale at all, in any shape, until a year ago this winter. Mr. Price acted for her." She further says in regard to her husband: "He acted for me in arranging with Mr. Price for the loan, and he delivered the notes after they were signed by me to Mr. Price."

It is further contended by the appellants that as there was a stipulation in the mortgage that if the mortgagors should fail to pay any portion of the above-mentioned sum, either principal or interest, promptly at the times they should become due, the whole sum-both principal or interest— should at once become due and collectible, therefore the contract was clearly usurious, as the whole amount of the principal of the notes would become due and payable upon default in the payment of the first note; but this contention is untenable, for the reason that such stipulation is in the nature of a penalty from which the mortgagors could relieve themselves by a prompt payment of the notes when due: Webb on Usury, sec. 120; 2 Am. & Eng. Ency of Law, 486. The author, in speaking of this class of cases, says: "So, if the provision for the payment of excessive interest is dependent on contingency which the borrower may avoid by 417 paying the debt, with legal interest, the loan will not be deemed usurious": State v. Elliott, 61 Kan. 518, 59 Pae. 1017; Tholen v. Duffy, 7 Kan, 405. A similar clause is fre

quently inserted in mortgages, but the stipulation has never been held as constituting a contract for the payment of usurious interest, so far as our researches extend.

It is further contended by the appellant that there is compound interest in these notes, and therefore the case comes within the principle of the case of Drury v. Wolfe, 134 Ill. 294, 25 N. E. 626, but in our view the case at bar is not analogous to that case. There it is clear, as stated by the court, that the effect of the computation was to charge compound interest and that the amount of those several notes could only be reached by compounding the interest. In the case at bar, however, no compound interest seems to be included in the notes; but the effect of the transaction would seem to be simply providing for the payment of the interest monthly as it should become due, and providing for the payment of such interest monthly would not be an evasion of the usury law, as it is perfectly competent to provide for the payment of interest annually, quarterly, or monthly: See 29 Am. & Eng. Ency. of Law, 492; also Meyer v. City of Muscatine, 1 Wall. 384, 17 L. ed. 564; Hatch v. Douglas, 48 Conn. 116, 40 Am. Rep. 167; Briggs v. Iowa Sav. & Loan Assn., 114 Iowa, 232, 86 N. W. 320; Hawley v. Howell, 60 Iowa, 79, 14 N. W. 199; Ragan v. Day, 46 Iowa, 239.

We have not deemed it necessary to cite authorities, as the law governing this class of cases seems to be well settled that, where there is an intention on the part of the contracting parties to reserve or receive interest in excess of the sum allowed by statute, the interest, under our law, is forfeited, but where 418 the excessive interest is reserved or taken under an honest mistake, with no intention on the part of the parties to violate the statute, no such forfeiture will result.

The judgment of the court below and order denying a new trial are affirmed.

Usury is a Matter of Intention, and to avoid a contract it must appear that the lender knew the facts and acted with a view of evading the law. A contract for interest at higher than the legal rate, both before and after judgment, without a corrupt intent on the part of the lender to exact an unlawful rate of interest, is not usurious: Anderson v. Creamery Package Mfg. Co., 8 Idaho, 200, 101 Am. St. Rep. 188. The question as to what contracts are usurious is discussed in the note to Bank of Newport v. Cook, 46 Am. St. Rep. 178. That the compounding of interest after it becomes due at the end of a year does not amount to usury, see Blake v. Yount, 42 Wash. 101, 114 Am. St. Rep. 106.


[19 S. Dak. 644, 104 N. W. 451.]

LIBEL, Jurisdiction of Criminal Prosecution, for, Where It is Printed in One County and Circulated in Another.-If the editor and proprietor of a newspaper prints a libel therein, he is subject to a criminal prosecution in a county of the state other than that in which his printing office is located, but in which he has circulated copies of such paper by mailing it to subscribers residing therein. (pp. 970, 971.)

E. P. Wanzer, for the appellant.

W. T. Scott and Aikens & Judge, for the respondent.

644 FULLER, J. All the facts set forth in the sheriff's return to a writ of habeas corpus being admitted by a demurrer thereto, the only question presented by this appeal from an order of the circuit court denying the petitioner's application for a discharge from custody is whether the editor and proprietor of a newspaper, who prints a libel therein, with the willful and malicious intent to injure another by the publication of such defamatory article, is subject to a criminal prosecution in a county of this state other than that in which his printing office is located, but into which he has circulated copies of such paper by mailing the same to subscribers residing therein. At common law, where a bullet discharged from a rifle aimed by an assassin in one county takes murderous effect in another county, jurisdiction is concurrent; and our statute expressly 645 provides that where a public offense is committed partly in one county and partly in another, or within five hundred yards of the boundary line of two or more counties, the jurisdiction of the offense is in either of such counties. Reasoning by analogy therefrom, it seems conclusive that an editor of this state, who writes and mails a libelous newspaper article in one county to be published in another, consummates the offense in the latter county, and may be indicted therein and placed upon his trial: Rev. Code. Crim. Proc., secs. 72, 73. Such is the rule at common law, so far as traceable, and in Commonwealth v. Blanding, 3 Pick. 304, 15 Am. Dec. 214, it was held that the transmission of a newspaper published in another state to one of the counties of Massachusetts for circulation rendered the publisher of a libel contained therein amenable to prose

cution in such county. So in Belo v. Wren, 63 Tex. 686, the court say: "The fact that the crime of libel may have been completed by a publication of the paper in Galveston county does not make it any less of a crime to circulate the number containing the alleged libelous article in other places. By the common law the sale of each copy is a distinct offense, and the prosecutor may at least choose for which of the distinet offenses he will call the guilty party to account. A copy of the paper may first be sold to A, then one to B, and another to C, but, because the publication is completed by selling to A, the government is not bound to select that particular fact as the one upon which it will rely to prove the completion of the offense. It may indict for either of the sales, and it makes no difference which was first in point of time. So, for the same reason, it is unimportant in what place the publication first took place." In conformity with the principles upon which the law of libel is based, Chancellor McClain makes the following observation: "The crime is committed where the publication is made; but if the publication is in a 646 newspaper intended for circulation, it may be deemed made in each county into which it is sent, even though printed in another state': McClain on Criminal Law, sec. 1058. The following cases are to the effect that a prosecution for libel is sustainable in any county where a periodical containing it circulates or to which it is mailed for publication: Baker v. State, 97 Ga. 452, 25 S. E. 341; Commonwealth v. Macloon, 101 Mass. 1, 100 Am. Dec. 89; Haskell v. Bailey, 63 Fed. 873, 11 C. C. A. 476; Bailey v. Chapman, 15 Tex. Civ. App. 240, 38 S. W. 544; Mills v. State, 18 Neb. 575, 26 N. W. 354. The act of publication with malicious intent being the gravamen of criminal libel, our conclusion is that the editor of a newspaper who thereby starts in motion unlawful means to injure the good name of another may be prosecuted, in the absence of legislative restriction, in any county where his libelous publication is circulated.

The order appealed from is therefore affirmed.

If a Libel is, at the request of the accused, inserted in a newspaper published in an adjoining state, which usually circulates, and which in fact was circulated, in this state, he is guilty of a publication in this state: Commonwealth v. Blanding, 3 Pick. 304, 15 Am. Dec. 214. The place where a crime is deemed committed is discussed generally in the note to Simpson v. State, 44 Am. St. Rep. 79.


[19 S. Dak. 663, 104 N. W. 470.]

JUDGMENT, Relief from in Equity, Denial of for Laches.A judgment will not be relieved against in equity when its rendition might have been prevented by the production of evidence which for five years before the commencement of the action for relief had been a matter of public record, though the complainant seeking relief is a municipal corporation. The allegation in its complaint that it was a difficult matter to locate the papers and records relating to the cause of action sued upon furnishes no sufficient excuse for the delay and the failure to defend. (p. 973.)

LACHES in Defending an Action and in Seeking Relief from a Judgment.-Ample means of information is equivalent to knowl edge, and courts of equity will not interfere on behalf of an ag grieved party who has slumbered on his rights for an unreasonable time in full view of a defense which might have been reasonably known and asserted by the exercise of ordinary diligence. (p. 974.)

JUDGMENTS, Relief from in Equity.-A court of equity will not relieve from a judgment unless the party seeking its interference can assail the judgment by facts or on grounds of which he could not avail himself at law, or was prevented from doing so by fraud or accident, or the act of the opposite party, unmixed with negligence or fault on his part. When a party has once had as opportunity of being heard and neglects to do so, he must abide the consequences of his own neglect. (p. 975.)

John F. Hughes, for the appellant.

John A. Holmes, for the respondent.

664 FULLER, J. At the trial of this action to permanently restrain the enforcement of a judgment based on two city warrants, aggregating five hundred and twenty-three dollars and thirty cents, the sufficiency of the facts stated in the complaint 665 was challenged by a general demurrer, and this appeal is from an order sustaining the same.

Eliminating incongruous averments and some of the conelusions of law, it is alleged, in substance, that one of the warrants issued in legal form by the proper officials of the city of Fort Pierre on the fifth day of February, 1894, and upon that day duly registered, "Not paid for want of funds,” was drawn by mistake on the general fund, instead of a fund derived from special assessments against property in front of which the payee named in the warrant had constructed a sidewalk, and that the defendant thereupon purchased the same at a very liberal discount, with full knowledge of such mistake; that afterward the defendant, Eliza Hall, instituted

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