Holding this, we necessarily, and in legal logic, reach the conclusion that the only portion of the gross earnings of the respondent for the year 1886 upon which, under said gross-earnings law, the territory could claim the per cent. in lieu of taxes, was said sum of $395,330.63, the amount of its gross earnings for business beginning and ending in the territory of Dakota, and which, for distinctness, we will term "local business" in this territory, or business not interstate.

Manifestly the gross earnings of respondent for this local business for said year 1886, as alleged in the amended complaint, did not exceed the sum of $400,000, and, following the allegation of the complaint, and the course of counsel, for convenience, we take this sum as the amount upon which the said respondent railroad company was to pay for said year 1886 the per centum of 3 per cent. provided for in said gross-earnings law, amounting to $12,000.

It must be noted that the validity or constitutionality of said gross-earnings law, in its application to the gross earnings of the respondent, for what we have denominated its "local business" in this territory, is not assailed in this appeal, and is therefore neither questioned nor passed upon by this court, which, for the purposes of this appeal, takes said act or law as it exists with respect to said local earnings; its legal force in this regard being entirely conceded by counsel for both appellant and respondent, and made the basis of their contention in this case.

The real question to be determined in deciding the case is this, namely: Was any sum due from the respondent railroad company to the territorial treasurer, appellant,-that is, to the territory,-under the said gross-earnings law, for said year 1886, when the said property of the respondent was seized by the appellant?

The appellant claims as due and unpaid the sum of $6,000, being the one-half of the amount of three per cent. on the gross earnings of the respondent from its said local business in this territory for said year 1886.

The respondent asserts that nothing is due from it to the ap

pellant on its said local gross earnings for said year, the whole of said 3 per cent., $12,000, having been paid by it to the territorial treasurer, the appellant, long prior to the seizure of its said property by appellant.

By the terms of said gross-earnings law the payment of the 3 per cent. is to be made, "one-half on or before the 15th day of February, and one-half on or before the 15th day of August, in each year," the per cent. for 1886 being payable in 1887.

It is alleged in said complaint, and admitted, that "on the 5th day of March, A. D. 1887, said plaintiff (respondent) duly paid to the defendant, (appellant,) treasurer as aforesaid, the sum of $38,095.31 as and for taxes on its earnings under the terms and provisions of the act last mentioned," (said gross-earnings law.)

The plaintiff (respondent) then paid to the defendant (appellant) on that date more than three times the amount due from it to said defendant, under said gross-earnings law for said year 1886.

The court is, however, asked by the attorney general for the defendant, to hold that as only one-half of the 3 per cent. for said year 1886 was due and payable at the time said sum of $38,095.31 was paid by the respondent to and received by the territorial treasurer, defendant, said payment operated only as the discharge or satisfaction of said one-half ($6,000) due on the 15th day of February, 1887, and that the remaining onehalf of the 3 per cent. (another $6,000) became due and payable August 15, 1887, and has not been paid.

Such a holding would shock the conscience of equity, and is not demanded by the letter or spirit of said gross-earnings law. The attorney general, for the defendant, (appellant,) contends that "the judgment of the court below, so far as it declares the amount due the territory August 15, 1887, 'fully paid long prior to the seizure by the defendant of the personal property described in the complaint,' is clearly erroneous. There is no allegation in the complaint that it has been paid, or any part thereof; therefore the demurrer admits no such fact. True,

there is an allegation in the complaint that plaintiff, on the 5th day of March, 1887, paid into the territorial treasury $38,095.31, but it is not alleged that it was made in payment of the amount due for any particular year, or part of a year, and the court cannot presume that it was intended to satisfy the tax which defendant is now seeking to collect."

The attorney general, however, entirely saves us from the necessity of venturing upon any presumption, violent or otherwise, and plants us upon the solid footing of fact, when he immedidiately informs us in his brief that "in fact the amount paid by plaintiff, March 5, 1887, was paid in satisfaction of the installment which became due February 15, 1887, and was the exact amount of such installment, as appeared by the voluntary statement made by the plaintiff."

That the said payment of $38,095.31, made by the respondent, March 5, 1887, related to the year 1886, is beyond question, and what we are to inquire and determine is this, namely: Did that payment discharge and satisfy only the installment of the 3 per cent. payable on or before February 15, 1887, and leave unpaid the remaining installment, payable on or before August 15, 1887, or did said payment of $38,095.31, (which it is conceded was more than three times the amount of the full 3 per cent. due for said year 1886,) operate as a discharge and satisfaction of the two installments, or, in other words, the whole sum due for 1886 ?

When a payment is required to be made on or before a fixed date, it may be made on said date or at any time prior thereto. A payment to be made on or before August 15th can assuredly be made in March prior thereto. The respondent could pay the 3 per cent. in two installments, at the precise dates named in the act for that purpose, or, waiving the full extent of the limit, could avail itself of the effect of the words of limitation, and obey the law by making the payment of the whole amount for the year in one payment, or in two payments prior to the expiration of the last date fixed by the act; the evident purpose of the gross-earnings law in this particular being to provide for

the payment of the whole amount before the expiration of August 15th, and thus fix a time or limit within which the amount due for each year should be paid.

The provision for payment in installments is not so much for the benefit of the territory as for the accommodation of the railroad company; and the party to whom, or for whose benefit, a right or privilege is given by statute, may waive or surrender that right or privilege in whole or in part if he does not thereby impair, injure, or destroy the rights or benefits conferred upon, or flowing to, another, in or from said statute or other legal or equitable source.

After an examination of the case before the court I am convinced that, without resort to presumption, or the violation of any legal principles, but, rather, as a plain extraction of fact from clearly perceptible evidence, and in accord with sound legal and equitable doctrine, we may conclude that the said payment of said sum of $38,095.31 was in satisfaction and discharge of the full amount due from the respondent railroad company to the territory under said gross-earnings law for the said year 1886.

The amount, then, claimed by the territory, and for the alleged non-payment of which the defendant, treasurer of the territory, seized the personal property of the plaintiff railroad company, had been paid prior to the date of said seizure, and before the expiration of the last date fixed or limited by the act for its payment, and at the time of said seizure nothing was due from the respondent to the territory under said gross-earnings law for said year 1886.

The demurrer was properly overruled, and the judgment for plaintiff (respondent) fully warranted by the allegations of the complaint admitted to be true by the demurrer.

The errors assigned having no substance, the judgment of the district court is affirmed.

All the justices concurring.

1. Appeal

HARRIS, Respondent, v. WATKINS, Appellant.

Justice of the Peace-Default Judgment.

In an action before a justice of the peace, the defendant, by his attorney, on the return-day appeared and had the case continued to another time, when he again appeared and filed an answer of general denial, but the defendant himself failed to appear within the hour and until after judgment had been rendered against him. Held not a judgment by default, and that the defendant might appeal therefrom and have the case tried in the district court.

2. Same-Perfecting-Filing Record-Jurisdiction.

Section 96, Justice's Code, as amended, chapter 5, Laws 1881, provides that if the appeal is not filed with the clerk of the district court within 15 days after it is perfected, it shall be dismissed. It appeared the clerk received the papers within the time, but, his costs not having been paid, did not indorse them with his filing until after the time had expired. Held, that the district court had acquired jurisdiction and it was error to dismiss the appeal under that section.

(Submitted May 21, 1888; reversed May 25; opinion filed October 13, 1888.)

Appeal from the district court of Spink county; Hon. L. K. CHURCH, Judge.

N. D. Walling, for appellant.

When a general appearance and answer have been interposed there can be no judgment by default, but the trial must proceed on its merits. Jus. Code, §§ 42, 43. See, also, §§ 11, 12.

The appellant had perfected his appeal within the time allowed by law, and had paid the justice his fees for forwarding the transcript, yet the justice did not forward the papers to the clerk of the district court until 12 days thereafter, though the law says he must forward them within five. This neglect of the officer to perform his duty was the result of appellant's not filing the papers within 15 days from the time of perfecting the appeal. "When a party entitled to an appeal uses diligence in endeavoring to perfect the same, the law will not permit him to be deprived of it through the neglect of the officer whose duty it was to prepare the transcript." Rep. V. R. R. v. McPherson,