Volume 1 — Minnesota Reports

<p>Where the Court undertakes to instruct the Jury as to tho law arising from a view of all the facts before them — all those facts, as detailed by each witness, should be incorporated in the Bill of Exceptions, whenever the ruling of the Court is excepted to.</p> <p>The term “ pleadings,” has a technical and well-defined meaning. They are the written allegations of what is affirmed on the one side, or denied on the other, disclosing to the Court or Jury having to try the cause, the real matter in dispute between the parties.</p> <p>Such pleadings must be filed under the 7th Sec. of the 4th Art. of the Act of this Territory, “ concerning Justices,” when required by the plaintiff', or defendant, or the Justice.</p> <p>It is error in a Judge, to instruct a Jury that they may disregard the declaration, if the evidence were such as to warrant a recovery; and that the right of the plaintiff could not be affected by the declaration on file.</p>

This was an appeal from a decree of the District Court of Washington County, allowing, the plea filed by the appellees, and dissolving the-injunction. The appellees moved to dismiss tlio appeal:— 1. Because the decrees appealed from are interlocutory, and not final. 2. Because the dissolution of an injunction is a matter resting entirely in the discretion of the Judge making the order, and therefore, not properly the subject of appeal.

<p>ERROR TO THE DISTRICT COURT OF WASHINGTON COUNTY.</p>

<p>ERROR TO THE DISTRICT COURT OF RAMSEY COUNTY.</p> <p>The facts of this case are fully set forth in 'the opinion of the Court.</p>

This was an action of trespass guwre olaus'um fregit et. de. bon. a. originally instituted before Justice Wakefield, by the plaintiff, agansit the defendants in error, to recover the sum of $25, the vclue of a cow alleged to have been driven from the close of the plaintiff by the defendants.

The Plaintiffs in Error were the Defendants below. This was an action of covenant instituted in the District Court for the Second Judicial District, upon an agreement in writing, under the hands and seals of the parties, plaintiff and defendant, dated September 4, 1848, whereby Johnson agreed to sell and convey, by a good and sufficient deed of conveyance, to Snow and Bryant, certain real estate in the town of Stillwater, for which Snow and Bryant agreed to pay $200 in…

<p>ERROR TO THE DISTRICT COURT OP RAMSEY COUNTY.</p> <p>The facts of this case appear sufficiently from the opinion of the Court.</p>

<p>G. & A. were indebted to various persons. Their personal property had been attached for their debts. B., one of the creditors, obtained a transfer of the property to hint in trust for the payment of himself and other creditors. He also procured releases from the plaintiffs in the several suits in attachment. Held, that B. having taken the property to market and sold it for cash funds, was liable for the indebtedness of C. & A., at the suit of one of the attaching creditors.</p> <p>Forbearance to use legal means, by one party to secure himself, at the request of another, and consequent loss, is sufficient consideration to support a contract.</p> <p>Taking a party in the sight of a raft of logs and declaring them to be his property, and marking them at his instance, held to be sufficient delivery.</p>

Prohibition issued to restrain a Judge of Probate from proceeding under Habeas Corpus issued by him.

The plaintiffs proceeded by attachment against the Steamboat Dr. Franklin, for damages done to logs of the plaintiffs, by the said boat, in a slough near the upper landing, in St. Paul. The canse was tried at the September Term of the said Court, 1851, and a verdict rendered in favor of the plaintiffs for $150 and costs. The defendants sued out a Writ of Error from this Court. The facts sufficiently appear in the opinion of the Court.

This wras an action of assumpsit commenced in the District Court of Kamsey County, for the recovery of the sum of two hundred and sixty-two dollars and a half.

This was an action of debt, founded on a Judgment obtained in a court in Illinois. The canse was tried by consent of parties by the Court without a jury.

This was an action commenced by the defendants in error, for a wrongful detention of certain real property, before B. W. Lott and O. Simons, Justices of the Peace for Bamsey County. The facts appear in the opinion of the Court.

Tliis was ail action brought in tlio District Court of Ramsey County, for the recovery of an amount claimed to be due the plaintiff from the defendants on a promissory note made by said Green, payable to Hartshorn, or bearer. A verdict was found for the plaintiff, and the defendant sued out a writ of Error from this Court.

This was an action commenced before II. K. McKinstry, Esq. Justice of the Peace for Washington County, by the plaintiff in error, against the defendant in error. 'The plaintiff declares on a promissory note made by defendant, for the sum of $380, claiming a balance due of $98 36. Two other persons were named as defendants in the summons, • but Brewster was the only one summoned.

This was an action commenced before tlie President of the Town of St. Paul, to recover of the defendant a sum claimed. to be due the plaintiff for wharfage, under the ordinances of the Town of St. Paul. Judgment was rendered by the President of said Town, in favor of the plaintiff for the sum of ten dollars and costs.

This cause was commenced before Albert Harris, Esq. a Justice of the Peace for said County. The facts appear in the opinion of the Court.

This was an action of assumpsit in the usual form, for work and labor; commenced by Carlton and Patch, plaintiffs, against Pierre Chotean, Jr. John B. Sarpy, John F. A. Sandford, Jos. A. Sires, Henry H. Sibley, Henry PI. Bice, and Sylvanns B. Lowry, defendants. By stipulation, a jury trial was waived, and the cause tried by the Court. On the 9th of October, 1851,. after hearing the evidence, and argument of counsel, the Court rendered judgment against Henry PI.

This was an action commenced before a Justice of the Peace of Ramsey County, on the 20th day of June,' 1851, upon the following instrument, in the name of the assignee thereof: “I do agree to cut and split two thousand rails on the northwest quarter of Section 20, Township 29 north, and Range 22 west, on or before the first day of May next, to be delivered to Elliott Adams or bearer. (Signed) “WARREN WOODBURY.” Dated Eeb. 18, 1850.

This was an appeal from an order overruling a demurrer to a supplemental bill, in the District Court of the United States for the Second Judicial District, aud brought into this… Held: Where new events or' new matters have occurred since the filing of a bill, a Supplemental Bill is in many cases the proper mode of bringing them before the Court, for, generally, such facts cannot be introduced by way of amendment. Story’s Eg. PI. p. 381, Sec. 332; p. 385, Sec. 335, 336. ■ 2.

<p>Section 11, page 414, Revised Statutes of Minnesota, 1849, does not authorize an Appeal to this Court, from an order made hy the Court helow, setting aside a Judgment, or the Report of Referees, and awarding a new trial.</p> <p>The Statute clearly denies ;an Appeal from any Judgment or order which, in effect, retains the cause for further hearing in the Court helow.</p>

The case, or bill of exceptions in the case, is not attainable, and the facts cannot be stated further than they appear from the opinion of the Court-..

This was an action of trespass commenced in the County of ■Goodhue, charging the Defendant with entry upon lands of the Plaintiff, on the 12th of October, 1854, and at divers other days and times, and the commission of injuries thereupon to the Plaintiff’s damage of one thousand and ten dollars.

This was an action of Keplevin, brought in the year 1850, in the County of Washington. The Declaration charges the Defendant with the taking, and unjust detention, of a quantity of lumber and lath, of the estimated value of $800, on the 12th day of September, 1850, of the Plaintiffs.

This was an action of Slander, tried at the April Term of the District Court, in the County of Ramsey. The Declaration charged, among others, the utterance of the following slanderous words : “ You stole my belt! ” “ You have stolen my belt. You might as well have stolen my belt, as you broke open my. two cassets (trunks) two years ago!” The Defendant pleaded the general issue.

<p>The facts and the points made are stated, in the opinion of the Court.</p>

<p>A denial of any knowledge or information sufficient to form a belief as to whether a Bill of Exchange made by the Plaintiff and accepted by the Defendants was presented at the place of payment indicated in the Bill, is a denial of an immaterial allegation.</p> <p>Where a Plaintiff sues as survivor of a Co-partnership, a denial of any knowledge or information sufficient to form a belief as to the survivorship, or as to whether the Plaintiff was one of the copartners, is a denial of an immaterial allegation.</p> <p>A denial that the Plaintiff is the legal owner and holder of the instrument sued upon, and of indebtedness, simply denies a conclusion of law, and is bad.</p> <p>Where a complaint contains immaterial allegations, and the answer takes issue upon such allegations, it is doubted that a motion to strike out such denials, where they are coupled with other good matter of defence, would be entertained: otherwise» where the answer is entirely bad.</p> <p>A motion to strike out an answer, and for judgment, need not be made within twenty daj’s after the service of the answer.</p> <p>Although, as a general rule, it is too late to move for judgment — notwithstanding the answer — after tlie action has been noticed for trial, exception will be made to this rule in oases where the answer contains no merits.</p>

This action was brought in the County of Chisago, to recover the possession of certain personal property. The complaint alleges that in June, 1852, the Defendant wrongfully took and detained from the Plaintiff the property in suit, which was of the value of two hundred dollars. The 'answer denies property in the Plaintiff, and asserts it to have been in a third person.

This was an action of forcible entry and detainer under Chapter 87, Revised Statutes, commenced before a Justice of the Peace of Washington County. The complaint charged that the Defendants forcibly entered and did detain certain lands, describing them, and demanded restitution of the premises. The summons was served by reading it in the presence of the Defendants. There was no appearance on the part of the Defendants before the Justice.

on behalf of the Appellant, insisted upon the following points: First, This was a final order, affecting a substantial right, made on a summary application of the judgment, and is therefore appealable. Vide Rev. Sbat. Qliatp. 81, S. 11, Sub. 3. Second, The relief sought by this proceeding, if at all attainable, must be sought in a Court of Equity. The Court will not foreclose the rights of strangers to the record, summarily upon motion.

This was an action for an accounting between Co-partners, commenced on the 9th day of .October, 1819. The action was entitled: “ In the United States District Court, sitting in Chancery in and for the County of St. Croix and Territory of Minnesota.” The bill was addressed to the “ lion.

Complainant, on the 2d day of April, 1853, filed his bill in the District Court for the County of Ramsey, to which Defendants filed sundry exceptions. These exceptions were heard, and a portion of them allowed by the Court below, from which order Complainant appeals to this Court.

Points and authorities relied upon by the Defendant and Appellee. First, It was proper to open the order pro oonfesso, as the Defendant showed a good excuse for his default. 1 Bwrb. Ghy. Pr. 595. 1 Hoff. Ghy. Pr. 551-2. Second, The order dissolving the Injunction was proper, as there was no equity in the Bill.

This was a criminal prosecution against Wyman Baker and Thomas Baker for assault and battery, before Orlando Simons, Esq., a Justice of the Peace for Bamsey County. Wyman Baker was fined, and the cause was removed to the District Court by Certiorari, in which Court the judgment of the Justice was affirmed, and now comes to this Court by Writ of Error to the District Court of Bamsey County. The facts appear in the opinion of the Court.

<p>This was an Appeal from a judgment in the District Court of Ramsey County.</p> <p>The complaint sets forth that on the 7th day of May, 1852, one Lyman Dayton leased to Hoyt & Ames, for the term of five years, certain lands therein described, “ for the purpose of booming, hauling, rafting, securing and keeping logs and lumber, and removing the same therefrom,” &c. and reserving the right to the lessor to “ fill up and raise said land, for building purposes and other improvements.”</p> <p>That said Dayton was, at the date of said lease, the owner of said land, and that the Plaintiffs took possession thereof as tenants under said lease.</p> <p>That, afterwards, the Defendant Sandford entered said land, hauled and placed thereon certain logs, &c. to the damage of the Plaintiff in the sum of fifty dollars.</p>

<p>This suit was commenced by Bill in Chancery, in the District Court for the County of "Washington, Second Judicial District, and was brought to compel the specific performance on the part of Appellant of a written Agreement to sell and convey a town-lot in the City of Stillwater, in said County.</p> <p>And further states, that the Complainant had tendered and offered unto the Defendant the full balance of said purchase money and interest due and owing by virtue of the Agreement, and that he had always been ready and willing to perform his part of the said agreement, &c. and that the balance was unproductive in his hands: with the usual prayer for a specific performance, Injunction, &c.</p> <p>Elijah A. Bissell testified that he was at the house of Complainant in Stillwater about the 20th of December, 1852, when he. visited said Ahl on his own business, when Defendant,, Johnson, called and said he understood that he, the Complainant, had a sum of money for him for the lot, and that he, Defendant, was ready to give him a deed for the lot upon the receipt of the money, which money Johnson then demanded of the Complainant and called witness to notice the same. The amount of money demanded by Defendant was $106,12. At the same time, Johnson tendered the deed for the lot, (which is exhibited to witness,) upon which witness put his private mark (the letter “ B ”) at that time. Complainant replied that he had had some money, but that he had paid it out. He had not the money then, and did not offer to give the Defendant any money.</p> <p>Opon cross examination, witness states that the deed was not read to or by Complainant at the time of the tender. Witness put his private mark on the deed at Dr. Ahl’s house. Witness never read the deed before to-day, and had not seen it since he put his mark on it. It was tendered in the evening about seven o’clock, at the same time the money was demanded. Witness knows the deed only by his private mark ; does not know whether the same was filled up when tendered, as it now appears. About the time Johnson was leaving the house, Complainant stated that he had deposited some money with Bartlett, which witness understood to be to pay Johnson for the lot.</p> <p>Charles D. Gilfillan testified that he was a Notary Public, and took the acknowledgment of the deed from Johnson and wife to Complainant on the 18th of December, 1852, and tliat said deed was filled up and executed as it purports to have been, at the time he took the acknowledgment. He witnessed the execution thereof. Said deed was tendered to Complainant by M. E. Ames on the 23d of December, 1852, at his law office in Stillwater, and at the same time demanded the money due the Defendant for the premises mentioned in the deed, stating that he was instructed by Defendant to make such tender and demand, and that Complainant replied that he had no money, not even enough to pay his taxes. That he had given some money to Bartlett, and Johnson ought to have taken it from him then. That Bartlett was away, and Johnson must wait until he came back. Harley Curtis was present at the time.</p> <p>Harley Curtis, in his testimony, corroborates the evidence ■of Gilfillan; and says further, that at the time of the tender, Solicitor Ames “ demanded from Ahl the sum of money which “the Complainant’s Bill in this suit alleges had been tendered “to the Defendant.” He, witness, marked the deed with his name, “ H. Curtis,” at the time of the tender.</p> <p>Second. That it was the intention of the parties in this case to make the time of payment specified an essential part of the contract to sell, and the time oí payment was an essential element by the terms of Agreement, and the Agreement is conclusive evidence thereof. 7 Paige's Oh. Rep. p. 22, Wells vs. Smith; 4 Johnson's Oh. Rep.p. 559, Hatch vs. Galb ; 2d Yol. Story's Eg. Juris, p. 96, Sec. 771; 1 Johnson's Oh. Rep. p. 370, Benedick vs. Lynch.</p> <p>Third. That the payment of the whole amount of the consideration money, and the interest at the time it became due, viz: on the first day of Afay, 1851, — was a condition precedent in the agreement to be performed by the Complainant at the time specified.</p>

This was an Appeal to the Supreme Court from an order of the District Court for the County of Ramsey.

<p>This was an Appeal from, an order of the District Court for the Second Judicial District and County of Ramsey.</p>

This cause was originally commenced before N. Gibbs, Esq. a Justice of the Peace for Ramsey County. The Plaintiff filed as a Complaint an account amounting to Twenty-Four Dollars, which was not verified. The Defendant answered, denying the indebtedness and setting up a counter claim amounting to Seventy-Four Dollars and Forty Cents, which Answer the Defendant in his verification thereto alleged that he believed it to be true.

This was an appeal from an order of the District Court ©f Ramsey County, dismissing a Bill of Complaint.

The affidavit of Henry L. Moss was also used in the hearing of the motion, which corroborated the statements of the Defendant in regard to the ownership of the house and lot occupied by him.

This cause was brought to this Court by Writ of Error, to the District Court of the County of Ramsey, and Second Judicial District.

This was a Writ of Error to the District Court of Barnsey County. The action was brought in the District Court to recover the amount of a Bill of Exchange, made by Ard. Codfrey as Agent for the Saint Anthony Mill Company, Defendant below, bearing date on the 3d day of July, 1852, for the sum of $328 97, payable to the order of Clement Yandall, the Plaintiff below, and directed to Henry M. Bice. The Complaint further alleged that the same was duly presented to the said IT.

This cause was brought to the Supreme Court by Writ of Error to the District Court of Ramsey County.

Alonzo Nutting, the Plaintiff below, commenced this action in the District Court for Bamsey County, to recover the value of certain baggage alleged to have been lost by the Steamboat “War Eagle.” The complaint set forth facts sufficient to con.stitute a cause of action under Chapter 86 of the Bevised Statutes, (concerning proceedings for the collection of demands against boats and vessels,) and in addition, set forth a special contract made with the Captain of the boat at…

This suit was brought in the District Court for Bamsey County by the President, Directors and Company of the Bank of Hallowell, against the Defendants Baker and Williams, to recover the amount of a promissory note for $5,000, dated July 20, 1854, made by the Defendant Baker, payable three months' after date to the order of the Defendant Williams, and by him endorsed to Plaintiffs.

The Plaintiff below, William B. Dodd, recovered a judgment against tbe Defendant Brott, for tbe sum of $166 él, in tbe District Court for Bamsey County, on tbe 22d day of October, 1853.

The opinion in this cause contains a sufficient statement of its 'history, to enable us to perceive the application of the points and authorities cited. It was an appeal from an order of the District Court of Ramsey County, in Chancery. The following are the points and authorities relied upon by the Appellants’ Counsel: First. The said order appealed from was improperly granted, for the reason that all the grounds on which it was asked were untrue and insufficient. Second. .

And deny that the said note was due, because the Plaintiffs bad, for a valuable consideration, extended the time for the payment thereof, of which extension, the Defendants allege, “ they had the written acknowledgment of said Plaintiffs.” And because the summons in the action could be served upon the Defendants in any County in the Territory. Eighth.

Tbe facts in the case appear in the opinion of the Court. The Defendant (the Plaintiff in ‘Error) will rely in argument upon the following points and authorities : Fvrst. The District Court had no jurisdiction of the action, the judgment of the Justice of the Peace being for a sum less than fifteen dollars. Minnesota Statutes, page 315, Sees. 123, 128, 131, page 309, Sec. 31, page 318, Sec. 154. Second.

This cause comes to the Supreme Court, upon a report of the ■ case made by the Judge of the Third Judicial District. The Defendant was indicted in the District Court of Hennepin County, for maliciously killing a dog. A demurrer to the indictment was overruled by the Court, and on the trial of the cause the Court charged the jury upon certain questions of law, to which charges the Defendant excepted.

<p>Where an appeal is talcen from a judgment rendered in the District Court, the evidence given upon the trial of the cause in that Court is no part of the record, and cannot properly be considered by this Court upon appeal.</p> <p>Although the evidence in this ease consisted of Depositions read in the Court below, there is no more propriety in sending up written than oral testimony; we have no right to look beyond the records in the cause.</p> <p>The record consists only of the pleadings, the decision of the Judge, and the judgment.</p> <p>Upon an appeal, this Court will not undertake to revise the judgment below or give judgment upon the evidence; but will only consider the facts as they are exhibited by the record.</p> <p>Under the Statute of this Territory, a party to a suit is a competent witness, and his testimony may properly be taken out of the Territory under a commission and used upon the trial in the same manner as the testimony of other witnesses. ,</p>

The Plaintiff below sued the Defendant before a Justice of the Peace for Ramsey County, and recovered Judgment for the sum of $55 and costs, from which Judgment the Defendant appealed to the District Court.

' The Plaintiffs, the Sandusky City Bank, brought their action to recover the amount of two promissory notes made by the 'Defendant, George L. Becker, payable to the Columbus Insurance Company, and by them endorsed to the Plaintiffs. The notes were dated the 6th of September, 1851, each for the sum of $327, and interest, and payable in three and four months, respectively.

The Reply of the Plaintiffs states that the Defendant knew that there were two landings at Sauk Rapids — the lower one called “Baptist’s Landing” — and that it was the custom of said boat to leave goods at either landing, at the discretion of the master; That the Defendant well knew that the boat could not land and discharge freight above Baptist’s Landing, except at high water, and that when this contract of affreightment was made it was understood and considered that a…

<p>Second. That, before the maturity of this note, the Plaintiff appointed N. Corwith & Co. of Galena his agents to receive payment thereof when due, and sent said note to them for collection ; that, by an arrangement with the Plaintiff, said note _was to be paid to said Corwith & Co. by a draft of Thomas Stinson, of Hamilton, Canada, the father and agent of Defendant, payable to order of said Corwith & Co.; that said Thomas Stinson, on behalf of Defendant, on the 21st day of August, 1854, drew his draft on B. K. Swift, at Chicago, for the sum of $2,138 75, and, at the request of Plaintiff, forwarded the same by mail to said Corwith & Co. having first made arrangements for the acceptance and payment thereof, and having reason to-believe that lie bad funds in tbe bands of said B. K. Swift to meet tbe same; that said draft was duly received by said Cor-with & Co. at Galena, as agents of tbe Plaintiff, on tbe 25th day of August, 1854, and by them, with tbe consent of said Plaintiff, used and appropriated in their individual business as bankers; that on tbe 28th of August, tbe draft was presented at said Swift’s office for payment, but owing to tbe absence ot said Swiff and bis principal clerk, payment was refused by mistake, and on tbe same day tbe draft was protested for nonpayment ; that, on tbe 1st day of September, 1854, said Cor-with & Co. .returned said note to Plaintiff, although tbe same bad not matured, nor bad said note been dishonored; that Tbomas Stinson was not notified of such protest until tbe 7th day of September, whereupon be forwarded to tbe Plaintiff at Prairie du Chien, for tbe payment of said note, another draft, upon Messrs. "Ward & Co. New-York, for tbe sum of £530, 2s. 4/1. currency; that tbe same reached Prairie du Chien on the 11th of September, before tbe commencement of this action and prior to tbe date of tbe notice set forth in said complaint; that said last named draft was returned to said Tbomas Stinson on or about tbe 25th day of September, but without objection as to tbe character, amount or value thereof.</p> <p>That if Douseman intended to declare the contract void upon Stinson’s failure to perform at the day, he was bound to do SO' at the day; and his omission so to do was an acquiescence in the delay, and a waiver of his right to declare it void after the Defendant had offered to pay. 2 Lead. Gases in Eg. 30; 5 Paige, 225; 6 idem, 107; 7 idem, 37.</p> <p>That the acceptance by the Plaintiff of Defendant’s note,— which would not mature until after the day named in the contract for the payment of the first $2000, — even if it was not a satisfaction pro tanto of the contract, and Plaintiff’s conduct respecting the first draft, had a tendency to induce the Defendant to believe that the precise day was not essential and would not be insisted-on. 2 Lead. Oases im Eg. 19, and cases there cited; 8 Paige 423 — 600.</p> <p>That had the parties intended to have made time of the essence of the contract, they would have so declared it in the proviso; and naming a day for payment is merely formal, and means nothing more than that the payment shall be made in a reasonable time. 2 Lead. Cases i/n Eq. 18; Story’s Eq. Juris. 1360.</p>

<p>The Plaintiff below brought suit to recover damages for injuries to his dwelling and the furniture therein, by reason of the wrongful and unlawful acts of the Defendants in removing said dwelling, situated upon a certain lot in the city of Stillwater in the county of Washington, the property of the Plaintiff. Damages claimed, five thousand dollars.</p> <p>The answer further states, that the building mentioned in the complaint was in and upon Main-street in said city, according to the plot thereof recorded on the 12th day of September 1818, and that said building obstructed the free use of said Main-street, and that the same was a public nuisance; that, on the 30th day of October 1851, the Marshal of said city, in pursuance of said ordinance had served a notice upon the Plaintiff, requiring him to remove the said building from said Main-street, which the said Plaintiff had failed and refused to do; and that, on the 1th day of November thereafter, the said Defendant, Jonathan McKusick, the then Marshal of said city, did remove said building, and had called to his assistance the other of the Defendants.</p> <p>Thvrd. The reply farther states that a plot of the Town of Stillwater in St. Croix County,“Wisconsin Territory, was acknowledged by one John McKusick; that the said John McKusick was not a County Commissioner of the County of St. Croix in the Territory of Wisconsin, or the sole owner or proprietor of said Town of Stillwater at the time said plot was acknowledged ; that he acknowledged the same in his own name, and not as the agent of the proprietors of said town; that on the first day of July, 1848, and when the title to the land included in the alleged plot of the City of Stillwater was in the United States, the Plaintiff, with other persons, was settled and resided upon lands included in said alleged plot — the Plaintiff occupying and possessing the premises mentioned in the complaint and the buildings therein mentioned.</p> <p>The Defendant demurred to the first subdivision of the Plaintiff ’s reply, — Because the Act of Incorporation of the “City of Stillwater” set forth in the answer, is not a “general law” within the legal meaning of the sections of the [Revised Statutes specified in that portion of said reply, and it was not necessary that it should be published as in said sections directed, but that the same toot effect from and after its passage, according to Its terms-, and because, a failure on the part of the,Secretary of the Territory to comply with the provisions of Section 4 [Revised Statutes, referred to in said reply, will not invalidate an act of the Legislature; and because it is impossible to know what is intended in the said portion of said reply, as the publication of such a document in a newspaper can have no effect upon the issues of this action, nor is such publication in any manner responsive to any portion of the answer: it is not pretended that the act specified in the answer is not the act passed by the Legislature, nor is it alleged that the act quoted in the reply was ever so passed and enacted.</p> <p>2. It is to a fragment of an integral defence. V. 8. PI. pp. 369, 370, 353, 439; Cobb vs. Frnz&r, 4 H. P.B- 413; ib. 373; 5M.P.B.p.5; ib. 206.</p> <p>The matter embraced in the last count of the demurrer contains a valid and sufficient defence to the new matter of the answer.</p>

The opinion in this cause contains a full statement of its history, and fully explains the issues decided; Specifications of Errors, Points and authorities submitted by Plaintiffs in Error: First.

The Opinion of the Court contains sufficient reference to the history of the cause to enable us to understand the issues in. the Supreme Court. Points and authorities of Plaintiff in Error: First. The case was not tried by a jury in contemplation of law. Second. The jury which tried the case was not chosen or selected or drawn or summoned according to law. Third. There was no jury returned at the opening of the Court, as required by law, or drawn for the term. Fourth.

The following are the points and authorities upon which the Plaintiff in Error relies in the above-entitled cause: First. The Court below erred in decreeing the payment of interest upon the promissory notes mentioned in the decree at a greater rate than seven per cent, per annum from the maturity of the said notes respectively, by the Defendant Brewster. Second.

The Defendants further set forth in full the act of Congress, •entitled “ An Act to aid the Territory of Minnesota in the con- “ struction of a Rail Road therein,” appi’oved June 29th, 1854.

<p>ERROR FROM THE DISTRICT COURT OF RAMSEY COUNTY.</p> <p>That said Wilkinson & Babcock had been engaged in business as co-partners since the dissolution of the old firm, and that said account had been duly assigned by the old firm to the new, of which assignment the Defendant had notice, and that they were now the lawful owners and holders of said account.</p> <p>Fwst. The Complaint of the Defendants in error does not show that the firm of Wilkinson, Babcock & Brisbin and the firm of Wilkinson & Babcock were both in existence at the time of the supposed assignment, so that there was one party to transfer and the other to receive. Vide QlviUy on Contracts^ 107.</p> <p>Tlwrd. But if it was admitted that the two firms existed at the time of the assignment, still as the two films were composed of some of the same parties, they could not make the assignment, because there would be only in effect an assignment of one to himself, and, therefore, bad because no action could be brought by one firm against the other, as it would be but an action by one against himself, which cannot be done. Vide Ei/oen vs. Spickerman, 12 Johns: B., 401.</p> <p>Sixth. A writ of error lies from a judgment by default. 1 Chit. PI., 674; 9 Wend. B., 149; Organic Act M. T., Sec. 9; B. S. 285-6, See. 4, 5, 6; Amend., p. 5, See. 8,p. 18, Sec. 51.</p>

This cause came to the Supreme Court upon a statement of an agreed case, from the District Court of Ramsey County. It seems that Oliver Ames, the Plaintiff below, brought Ms action against the Defendants, to recover certain pine logs wMch, he alleged, were wrongfully detained by the Defendants.

A. Davis made his promissory note in' writing, payable to the order of Irvine, Stone & McCormick, and delivered the note to Allen Pierse, who endorsed it and re-delivered it so endorsed to Davis, who, afterwards, and before maturity, delivered it to the payees.

;WRIT OF ERROR TO THE DISTRICT COURT OF RAMSEY COUNTY. The questions arising in this case are similar in all respects to those in the case of Allen Pierse against Irvine, Stone & McCormick, supra. Eey made his note and delivered it to Marshall & Co., who endorsed it for the purpose gf guaranteeing its payment, and immediately re-delivered it to Eey, who delivered it before maturity to Simpson, the payee — Simpson relying only upon Marshall & Co.’s guaranty.

The Plaintiffs below, Boyden & Willard, brought their suit to recover $1,945 08, the alleged value of goods, wares, and merchandize, furnished by them to Messrs. Eaton & Denison, upon a letter of credit signed by the Defendant Winslow. The Complaint contained three counts: the first upon the letter of credit, the second for goods sold and delivered at Defendant’s request, and the third upon a promissory note for the amount of the purchase made by Messrs.

Gatey, MeCune & Co., the Plaintiffs below, brought their suit against the Defendants, Ames & Hoyt, to recover the value of certain boilers and mill machinery furnished them by the Plaintiffs. Tlvi/rd. The Court erred in allowing the amendment, as it substantially changed the claim of the Plaintiff. Rev. Stat... v. 340. Sec.. 90.

The Complaint set forth that the “ Plaintiff furnished and loaned to J. B. Gilbert, who was the master and manager of said boat and in command thereof, the sum of $416 51 in money, for the use of said boat, to buy and purchase stores and supplies for said steamboat: which sum was immediately laid out, expended and used in purchasing and furnishing stores, provisions and supplies for the use and benefit of said boat, and which were afterwards used on said boat to enable her…

One Joseph McAlpin had been arrested in a civil action, at the suit of Charles L. Stephenson, (Plaintiff below,) and was held to bail upon an undertaking, signed by Joseph Moody and Geo.

This was a motion to dismiss the writ of Error issued in the above-entitled cause, upon the ground that an appeal had already been taken thereon.

Second. The answer discloses a sufficient consideration for the note, to wit: a deed with covenants to A. G-. Fuller. Third. The alleged failure of title to the land is a matter solely between the Plaintiff and A. G-. Fuller.

Tlie Opinion in this canse contains a sufficient history to enable us to understand the’issues presented by the pleadings. The following are the points and authorities relied upon by tlie Plaintiffs in Error: The Court below erred in sustaining the demurrer to a portion of Defendants’ answer; such demurrer should have been overruled, because,— First. It was interposed to only a part of an entire defence.

These two actions were commenced in the District Court of Washington County, by Bill in Chancery, by differents parties Complainants against the same Defendant (William Woodruff), to cancel certain deeds of conveyance for town-lots in the town, of Point Douglas, upon the ground that the same were obtained by false and fraudulent representations. The facts and issues in each case are the same, and the causes-were submitted upon the same points and arguments.

That he had levied upon the property mentioned in the Plaintiff’s complaint, as the property of Josph Bergfeld, by virtue of said execution.

<p>APPEAL FROM THE DISTRICT COURT OF RAMSEY COUNTY.</p>

Nelson, J. A hill for relief was filed and suit commenced for the Complainant, Symonds, on the 26th day of January, A. D. 1853, in. the District Court for the County of Bamsey, against Castner & Ilincldey. The Defendants, Castner & Hinckley, were allowed, on the 24th of October, 1853, to put in their joint and several answers after a decree %>ro confesso had been entered against them.

This was an Appeal from the judgment of the District Court of the County of Dakota, Third Judicial District, (Judge Chat-field.) The cause was decided upon questions of fact — as contained in the evidence which forms part of the record. The following are the points and authorities relied upon by the Appellant: First.

Upman, the Plaintiff below, set forth in the complaint that he was, on and before the 18th August, 1854, the Register of the Land Office of the United States, for the district of lands subject to sale at Winona; that said office was opened on the 5th day of December, 1854, and that the Plaintiff performed his duties as such Register until about the 5th February, 1857, when he was removed therefrom by the President; and that he performed the duties of said office faithfully…