clear. Sections 336, 340, Rev. Code Civ. Proc; McLaughlin v. Alexander, 2 S. D. 226, 49 N. W. 99. But a judgment is not leviable except by authority of such statute, and such mode of levy must be strictly pursued. Section 98, c. 28, p. 65, Laws 1897 (section 2162, Rev. Pol. Code), provides: "No demand of taxes shail be necessary in order to fix the liability of the person against whom they are assessed, but it shall be the duty of every person subject to taxation under the law to attend at the office of the treasurer having charge of the collection of such taxes and pay his taxes; and if any person neglect so to attend and pay his taxes until after the first day of February in the year next succeeding the levying of the taxes, such treasurer is directed and required to collect the same by distress and sale. * * *” That an action will not lie for recovery of personal taxes has been repeatedly held by this court. Brule Co. v. King, 11 S. D. 294, 77 N. W. 107; Danforth v. McCook Co., II S. D. 258, 76 N. W. 940. And in Hanson Co. v. Gray, 12 S. D. 124, 80 N. W. 175, the question was again reexamined and the former decisions adhered to. These cases fully establish the doctrine in this state that the collection of personal taxes by distress and sale is the only and exclusive method of procedure. It may be proper to note, however, that the legislative assembly, by chapter 209, p. 308, Laws 1909, has expressly authorized county treasurers to maintain an action in the circuit court to collect delinquent personal property taxes against any person who is not a resident of the county and has no property therein, and this proceeding is applicable to all taxes which have theretofore been levied; but this enactment in no way affects the case now under consideration.

It is contended by appellant that the sale of the judgment under the tax warrant was legal and valid, and that therefore the demurrer to the complaint should have been sustained. Respondent contends that such levy and sale were absolutely void for two reasons: First, that the judgment, which is conceded to be personal property, is intangible property and cannot be taken or levied upon in distress proceedings; second, that said levy is void because not made in the mode provided for execution issued on judgments. We are inclined to believe respondent is right in his first

contention, and therefore deem the second point immaterial. We may, however, point out that under the decision of this court in. McLaughlin v. Alexander, 2 S. D. 226, 49 N. W. 99, the levy of an execution on a judgment, by serving notice on the attorney and filing same with the clerk, would be invalid; but this question is not before us for the reason that the law relating to the collection of delinquent taxes does not make the provisions of the law relating to levies upon attachments or executions applicable to the collection of delinquent taxes by distress and sale. No provision is found prescribing the mode in which choses in action may be levied upon by the tax collector.

In Davis v. Arledge, 3 Hill (S. C.) 172, 30 Am. Dec. 361, in discussing a seizure of books of account upon distraint, the court says: "However, in the origin of the common-law remedy of distress, it was considered only in the light of a pledge, for the ultimate security of the rent in arrears, or rather for the perform. ance of the feudal services. It has long since ceased to be re garded in that light, and it is now become, by numerous statutes, merely a summary mode of enforcing the payment of rent, by sale of the tenant's effects. Now books of account are not susceptibie of this process. There is no provision in any known statute by which they can be appraised, sold, or assigned to the landlord, and, indeed, they are not goods and chattels in the ordinary sense of the word, but merely evidences of debt, choses in action, which we think have never been held liable to distress for rent, any more than to be taken in execution."

A distress is not a judicial process. Ross v. Holtzman, 3 Cranch, C. C. 391, Fed. Cas. No. 12,075. A tax collector derives his authority to sell from the statute. No authority to sell existed at common law. Caldwell v. Eaton, 5 Mass. 399. Section 2180, Rev. Pol. Code, provides that delinquent taxes may be collected "by seizure of personal property of such person. *** If the property so distrained cannot be sold for want of bidders, the treasurer shall return a statement of the fact, and return the property to the possession of the person from whom he took the same. This statute plainly contemplates the actual manual seizure of the property distrained, and its sale, or return to the person from

whom it was taken. "Distress" at common law is said to be "the taking of a personal chattel out of the possession of a wrongdoer, into the custody of the party injured, to procure satisfaction of the wrong committed." "The act of taking possession of personal property to hold as a pledge for the payment of a debt, the discharge of a duty or for reparation of some injury done." 14 Cyc. 523. Therefore nothing can be taken under a distress but tangible property capable of seizure and sale. Therefore choses in action cannot be taken. Mitchell v. Coates, 47 Pa. 202. "Hence it follows that unless personal property is of that character and so situated that actual possession thereof can be taken, or there is some statutory provision for distraining it, without taking such possession, it cannot be distrained at all." J. W. Barnes v. B. C. Hall, 55 Vt. 418. The same doctrine is equally applicable to a distress for nonpayment of rates or taxes. Smith v. Atkins, 18 Vt. 461. In Barnes v. Hall, supra, an attempt was made to levy upon and sell bank stock for delinquent taxes. The court says: "Said section provides that the capital stock of private corporations may be taken and soid on execution like other personal property, and how it shall be done; but it does not include tax warrants any more than did the statute providing for taking property on 'a writ of attachment or execution' by leaving a copy in the town clerk's of fice. Although a tax warrant is in the nature of an execution, it is not an 'execution,' as the terms are used in our statute or understood in common parlance; and although this court always has been, and still is, desirous of upholding and carrying into effect all laws for the assessment and collection of taxes, yet it cannot go beyond the law and commit the error of judicial legislation. The result is, we regard this as casus omissus, and that prior to the passage of St. 1882, No. 11, § 2, expressly providing therefor, there was no mode provided by law for taking and selling bank stock on a tax warrant. ***"

The order of the trial court overruling the demurrer is sustained, and the case remanded.

McCOY, J., taking no part in the decision.

Vol. 23 S. D. 33

INTERNATIONAL HARVESTER CO. OF AMERICA v.

HAYWORTH.

Under Rev. Civ. Code, § 1169, providing that the person offering a thing, other than money, by way of performance, must, if he means to treat it as belonging to the creditor, retain it as a depositary for hire till the creditor accepts it, or till he has given reasonable notice to the creditor that he will retain it no longer, and section 1164, providing that, when a debtor is entitled to performance of a condition precedent or concurrent with performance on his part, he may make his offer depend on the due performance of such condition, it is only when a seller unconditionally offers the property to the buyer that, it being refused, the seller may, retaining it for the buyer, sue for the price; and, the offer being on condition of the buyer then paying, or giving notes, for the property, in accordance with the contract, the seller, on the buyer refusing to accept and perform, can sue only for damages for breach of the contract.

Under Rev. Civ. Code, § 1163, providing that a thing, when offered by way of performance, must not be mixed with other things from which it cannot be separated immediately and without difficulty, where defendant contracted to buy a machine of plaintiff, to be consigned to the care of plaintiff's agent A., and on receipt of the machine to pay, or give notes, therefor, it was necessary, in order to constitute a valid offer of delivery to defendant, on refusal of which he could be sued for breach of the contract, that it be separated and set apart from the other machinery with which it was mixed when received by it.

(Opinion filed, June 26, 1909.

Appeal from Circuit Court, Clark County. Hon. GEORGE H. MARQUIS, Judge.

Action by the International Harvester Company of America against J. H. Hayworth. From a judgment for plaintiff and from an order denying a new trial, defendant appeals. Reversed.

Hanten & Loucks, for appellant. S. A. Keenan, for respondent. CORSON, J. This is an appeal by the defendant from a judgment entered upon a verdict of the jury and order denying a new trial. The action was instituted by the plaintiff, a corporation, to recover of the defendant the contract price of certain farm machinery alleged to have been sold and delivered by the plaintiff to the defendant. The complaint is based upon a contract of sale, the material part of which is as follows: "Gentlemen: The undersigned hereby purchases of you, to be shipped in time for the coming harvest, one of your Deering 7 ft. Ideal H. & B. with

tongue trucks to be consigned to the care of Chas. Aldrich, agent at Henry, S. D. Upon receipt of the machine, the undersigned agrees to pay you $135.00 cash or execute and deliver to you approved notes as follows: $48.00 payable on the 1st day of October, 1904; $48.00 payable on the 1st day of October, 1905; $49.00 payable on the 1st day of October, 1906. Said notes to draw interest at the rate of 8 per cent. per annum from September 1, 1904, until maturity, and 10 per cent. per annum from maturity until paid." The plaintiff alleges: That it complied with the terms and conditions of said contract; that in pursuance of said order, and relying entirely thereon, it, on or about June 15, 1904, duly shipped and consigned to said Charles Aldrich, for said defendant, the said machinery; that on or about July 1, 1904, said plaintiff, by and through said Charles Aldrich, duly offered to deliver to said defendant said machine, and demanded that he pay the sum of $135, or execute and deliver said promissory notes; that said defendant refused to execute and deliver said promissory notes, or to make said payment, and still refuses so to do; that said machine is still at Henry, S. D., the property of said defendant.

The defendant in his answer denies any knowledge or information and belief as to plaintiff's shipment of the machinery in controversy; denies that plaintiff offered to deliver to said defendant the said machine; denies that said plaintiff demanded that said defendant pay for the said machine the sum of $135; denies that said plaintiff demanded of said defendant to execute and deliver any promissory notes; denies that said machine described in paragraph 2 of plaintiff's complaint is still at Henry, S. D.; denies that said machine is the property of the defendant; denies that said plaintiff has performed the conditions of said order; alleges that said plaintiff never offered to deliver said machine to the defendant; alicges that said defendant canceled said order on or about July 10, 1904, and refused to accept the said machine, and so notified the plaintiff corporation; alleges that said plaintiff corporation never accepted said defendant's order, or at any time gave said defendant notice of the acceptance thereof; alleges that said machine was not in the possession of the said plaintiff corporation at the business place of Charles Aldrich, at Henry, S. D., at the commencement of this