Volume 1 — North Dakota Reports

<p>1. Transfer of Cases to Federal Court Under Omnibus Bill.</p> <p>Under § 23 of tbe Omnibus Bill, the federal court which might have had jurisdiction of a case under the laws of the United States, had such federal court existed at the time of the commencement of such action, becomes, upon the written request of either party for a transfer of the case, the complete successor of the territorial court in which such action was pending at the time of the admission of this state into the Union; provided, the record, which closes with the filing of the request, discloses a proper ease for transfer. All proceedings in the state court thereafter axe comm nonjudice.</p> <p>2. Same — Jurisdiction of State Court.</p> <p>The filing of the request in open court, the attention of the court being called thereto, works an immediate destruction of the jurisdiction of the state court, and at the same moment vests such jurisdiction in the proper federal court. The only power that remains in the state court is to perform the merely ministerial act of making the formal transfer.</p> <p>3. Same, Prior to Bequest for Transfer.</p> <p>The proper state court, however, is until such request the successor of the territorial court in which the case was pending.</p> <p>4. Citizenship —- Administrators.</p> <p>The personal citizenship of an administrator, executor, trustee, or receiver determines the question of diverse citizenship, on which federal jurisdiction depends. Neither the fact that the representative was appointed such in the state of which the opposite party íb a citizen, nor the fact that the beneficiary whom the representative acts for may be a citizen of the same state, affects the question.</p> <p>5. Void Judgment — Reversal on Point Not Raised.</p> <p>A judgment shown by the record to be void will be reversed on appeal, though neither party raises the question.</p> <p>Reporter: See also the following cases, arising under the Omnibus Bill: Dorne v. Richmond, (S. D.) 44 N. W. Rep. 1021; same case in 43 Fed. Rep. 690; Herman v. McKinney, 43 Fed. Rep. 689; U. S. v. Taylor, 44 Fed. Rep. 2; Nickerson v. Crook, 45 Fed. Rep. 658; Gull River Lumber Co. v. School Dist. No. 39, infra; Murray v. Bluebird Min. Co., 45 Fed. Rep. 387; Dunton v. Muth, id. ib. 390; Carr v. Fife, 44 id. 713.</p>

<p>1. Intoxicating- Liquors — Article 20 of tlxe Constitution of If or tli Dakota.</p> <p>When a party was held by a magistrate for a violation of the laws against selling intoxicating liquor as a beverage without license, in force on that subject when the constitution was adopted, and committed, in default of bail, and brought before this court on habeas corpus proceedings, claiming that he was unlawfully restrained of his liberty, because all pre-existing laws against selling intoxicating liquor without license were repealed by article 20 of the constitution, (being prohibition article,) as being repugnant thereto, held that, if article 20 of the constitution be self-executing and operative^ it repeals the pre-existing license law, including penalties.</p> <p>2. Article 20 Not Self-Executing.</p> <p>But, held, further, that said article is not self-executing; that it cannot be enforced by the penalties in the former license law; that the provision in that article that “the legislative assembly shall by law prescribe regulations for the enforcement of the provisions of this article, and shall thereby provide suitable penalties for the violation thereof,” clearly indicates the intent of the' constitutional convention that supplemental legislation should be the means of enforcing said article.</p> <p>3. Article 20 Does Not Kepeal License Law.</p> <p>Further, that, until such supplemental legislation is had, article 20, while prohibitory in form, is in fact only a declaration of principles, and without force to repeal the prior license law; and' hence relator’s restraint is not unlawful.</p> <p>Reporter: See also State v. Dorr, 19 Atl. Rep. 171; S. C. 82 Me. 212.</p>

PPEAL from district court, Barnes county; liam H. Francis, Judge. Hon. IVIL- Action by Edward L. Baker and others, trustees of the estate of Robert H. Baker, deceased, against Lucius D. Marsh, as administrator of John Marsh, deceased, John Kurtz, Phebe Marsh, and others, to foreclose a mortgage on three parcels of land executed by John Marsh and John Kurtz to Robert H. Baker.

PPFAL from district court, Stutsman county; Hon. Roderick Rose, Judge. . This was an action for money loaned. It appeared from the evidence that one Newhauser procured the loan, and the contention of plaintiff was that he procured it as agent for defendant. The defendant contended that Newhauser had no authority as agent to borrow money.

A PPEAL from district court, Steele county; Hon. Roderl \ • iok Rose, Judge. This was an an action on three warrants issued by defendant in payment of wages of a teacher.

TERROR to district court, Traill county; Hon. William. B. J2j McConnell, Judge. argued: Twelve names must be drawn by the clerk, and defendant allowed to examine the twelve before exercising the right of peremptory challenge; citing People v. Scoggins, 37 Cal. 676; People v. lams, 57 Cal. 115; Lamb v. State, 36 Wis. 424. A writing known to be in the handwriting of a party may be introduced for the purpose of comparison.

PPEAL from district court, Grand Forks county; O. F. Templeton, Judge. Hon. Action in equity by Tbomas Hennessy against Alexander Griggs, Jacob S. Esbelman, and tbe Dakota Gas & Fuel Com- ' pany.

PPEAL from district court, Ramsey county; Charles F. Templeton, Judge. Hon. contended that the transfer of the goods mentioned hereafter in the opinion was in the nature of a pledge; that plaintiffs never claimed to be absolute owners thereof, never sold or disposed of any of them prior to the levy of the attachment by the defendant. The recording of a bill of sale, there being no statute requiring it or authorizing it, is of no effect and is not an assertion of title.

<p>1. Action to Recover Attached Property Claimed to be Exempt; Debt Incurred Under False Pretenses.</p> <p>In an action of claim and delivery, brought against a sheriff, the defendant justified his seizure and detention of the property under two certain writs of attachment in his hands against the property of plaintiff; and, anticipating- that plaintiff would claim such property exempt from seizure under the general exemption law of the state, defendant alleged, further, that the debts sought to be recovered in the actions in which the attachments were issued were debts incurred, by plaintiff under false pretenses, setting forth such false pretenses. Held a good defense, under § 5139, Comp. Laws. Held, further, that the refusal of the court to allow defendant to prove the false pretenses as alleged was reversible error.</p>

PPEAL from district court, Cass county; Hon. William B. McConnell, Judge. Action by John W. Jasper against Arthur H. Hazen, to recover tbe value of certain real estate, and of tbe products thereof, and of certain personal property of which plaintiff claimed to be the owner, and which it was alleged defendant wrongfully disposed of, and converted to his own use. Trial to a jury. Yerdict and judgment for plaintiff.

The case was argued by W. E. Dodge, for relators, and by . Jesse A. Frye, states attorney for Stutsman county, for defendants. In the supreme court of the territory of Dakota, briefs had been filed by Dodge & Camp and John S. Watson, for relators, and by Roderick Rose, then district attorney, for the defendants. The latter contended that the granting of relief by mandamus rests-in the discretion of the court; citing 4 Hill 583; 13 Barb. 450; 1 Cow. 501; 2 Johns. 207.

THIS is a proceeding brought in the supreme court by application made for leave to file an information in order to procure an injunction restraining defendant from issuing seed-grain bonds. No briefs were filed.

<p>1. Taxation — Assessment—Resignation of Assessor; Roll Hot Verified.</p> <p>In an action in equity brought to cancel certain tax certificates and annul tax proceeding, held, that a county assessment made by the proper assessor, in the proper time and manner, on the proper blank forms for listing and assessing property, but not copied into the assessment roll until after such assessor had resigned, was not void in equity when it appears that said assessment was in fact copied accurately into the assessment roll, and there is no showing that said assessment was in any manner unfair or inequitable. Held, further, that the absence of any verification of such assessment roll did not invalidate the assessment in equity.</p> <p>2. Same; Proceedings Presumed Legal.</p> <p>Presumptions are in favor of the legality of tax proceedings; and a levy properly made will, in equity, be held void only when it clearly appears that such levy was for purposes not authorized by law.</p> <p>3. Assessor; Power to Appoint Deputy — Assessment ISTot Made by Proper Officer Void.</p> <p>The duties of an assessor in fixing values upon property are judicial in their nature, and cannot be performed by deputy, in the absence of an express statute. The city assessor of a city organized under chapter 24 of the Political Code of Dakota Territory has no authority to appoint a deputy; and an assessment of the property of such- city by a pretended deputy assessor, which, was never in any manner adopted or ratified by the city assessor, is a nullity, and no tax can be predicated thereon.</p> <p>4. Same; When Court Will Restrain Tax Proceedings.</p> <p>Courts of equity should, in general, interfere to restrain the collection of a tax, or annul tax proceedings, only where it appears either that the property sought to be taxed is exempt from taxation, or that the tax itself is not warranted by law, or the persons assuming to assess and levy the same are without authority so to do, or where the proper taxing officials have acted fraudulently; and, in addition, plaintiff must bring himself within some recognized head of equity jurisdiction; and in the absence of statutory provisions regulating the subject, as a condition to relief in equity, the applicant must pay or tender the amount of taxes properly chargeable against his property.</p> <p>5. Same; Court Should Enter Judgment for Amount of Legal Tax.</p> <p>Held, further, that such action, in this state, comes within the provisions of section 1613 of the Compiled Laws, and that, instead of requiring the payment of the legal charges as a condition precedent to relief in equity, it becomes the duty of the trial court to enter judgment against the applicant for the amount of such legal taxes.</p> <p>Wallin, J., dissents.</p>

Wm. B. McConnell, Judge. This case was argued before the supreme court of Dakota Territory, and an opinion was handed down. (See 42 N. W. 658.) Afterwards a rehearing was ordered and the case was, on the admission of the state of North Dakota, transferred to this court. argued: That the writing quoted in the following opinion was a judgment; citing, Freeman on Judgments §§ 15 and 16; Rogers v. Gosnell, 51 Mo. 468; Hunniston v. Stainthorp, 2 Wall. 106.

<p>1. Mortgages — Satisfaction; Reinstatement; Priority.</p> <p>Mortgagee in a lost, and for that reason unrecorded, mortgage, having executed and recorded an instrument certifying that such mortgage had been paid and satisfied, cannot reinstate the prior lien of his mortgage as against an innocent assignee for value of a second mortgage, who buys relying upon- the satisfaction as an extinguishment of the prior mortgage, although the mortgagees in the second mortgage knew of the unrecorded mortgage, and took their lien expressly subject to it.</p> <p>2. Same; if o tice.</p> <p>The fact that, about the time of the execution and recording of the satisfaction, another mortgage for about the same amount as the unrecorded mortgage, given to the same mortgagee, by one who had assumed the unrecorded mortgage, but given subsequently to the second mortgage, was executed and recorded, is not sufficient to put the purchaser of the second mortgage upon inquiry as to whether the unrecorded mortgage had in fact been paid and satisfied, as against the recorded satisfaction given by the first mortgagee, although such substituted mortgage recites that the property is free from all incumbrances.</p>

<p>1. Written Contract — Parol Evidence.</p> <p>Defendant having written plaintiff asking if it could furnish defendant coal at same prices and tenns as previous season, if he used about one-half to two-thirds of amount used the previous season, and plaintiff having, by letter, in answer to this inquiry, offered to sell at the price of §3.50 per ton, and defendant having thereafter, by letter, accepted the offer, held, that parol evidence to show that, intermediate plaintiff’s offer and defendant’s acceptance, the parties fixed the amount of coal to be delivered at the full amount used by defendant the season before, instead of one-half to two-thirds, as stated in defendant’s letter, was inadmissible, because it varied the terms off the written contract.</p>

<p>PPEAL from district court, Cass county; Hon. William B. McConnell, Judge.</p> <p>Action for damages from fire claimed to have been set out by defendant on his own land. Plaintiff testified that he traced the fire back from his field to the defendant’s land; that he saw smoke on defendant’s land September 20; the plaintiff’s property was destroyed on the 20th and 22d; that he saw smoke on Job’s land Sept. 22. William Hermanson testified that on the 20th day of September he saw two men go to that point on defendant’s land to which plaintiff said that he traced the fire. The two men were then working at the fire. Witness did not see them start it. They stopped work because it began to rain. Defendant’s horse came after them and they went to defendant’s house. Witness saw smoke at the same point after the men had left.</p> <p>The deposition of Luke Holman was read in evidence for the defendant, but in the abstract nothing of it appears except two questions, with the objections and rulings, but without the answers.</p> <p>argued: That the court erred in charging that there was no evidence that respondent set the fire or authorized it; that there was circumstantial evidence from which the jury might have found otherwise; citing, Field v. N. T. E. E. Co., 32 N. T. 339; Kaisen v. Milwaukee, etc., E. E. Co., 29 Minñ. 12; Adams v. Eoberts, 2 How.. U. S. 486; Jewell vs. Jewell, 1 id. 219; Greenleaf v. Birth, 9 Pet. 292. That Holman’s testimony was incompetent, and immaterial, and hearsay; citing, King v. Frost, 28 Minn. 417; Carrig v. Oakes, 110 Mass. 144; Pickering v. Cambridge, 144 id. 244.</p>

<p>1. Deed — Ag reement to Reconvejr — Effect of Dependent on Intention.</p> <p>A separate agreement was executed between grantor and grantee in a deed, by which latter agreed to reconvey to former on payment of a specified sum. Held, that such separate agreement did not show conclusively that such deed was executed to secure a debt, but that the question whether the transaction was a sale with an Optional right of purchase, or a mortgage, was one of fact resting upon the intention of the parties, to be determined from all the evidence in the case.</p> <p>2. Partners; Action at Law Between.</p> <p>An action at law will not lie in favor of one partner, against his co-partner, to recover the profits made by the latter on sale of property formerly belonging to the firm, but procured to be transferred by defendant from the firm to himseif, through a third person, and after-wards by him sold at an advance; no settlement of the partnership accounts and transactions having been had.</p>

PPEAL from district McConnell, Judge. court, Cass county; Hon. Wi. B. Action by mortgagee on-a policy of insurance issued to mortgagor, loss, if any, payable to mortgagee, by defendant California Insurance company. Complaint alleged that the risk of the California Company was reinsured and assumed by defendant Phenix Company. Defendants demurred (but not separately) on ground that complaint stated no cause of action.

PPEAL from district court, La Moure county; Hon. Eoleriok Eose, Judge. Tbis action was commenced in justice court in La Moure county in 1888, was tried de novo on appeal in district court of La Moure county and was taken on appeal to supreme court of Dakota territory. Pending in that court when North Dakota was admitted, the case was transferred to this court. cited: First National Bank v. North, 41 N. W. Bep. 736: Dodge v. Childs, 16 Pac.

PPEAL from district court, Grand Forks county; Hon. Charles F. Templeton, Judge. cited upon the proposition stated in paragraph 3 of the foregoing syllabus the following cases: Globe Ins. Co. v. Wolf, 95 U. S. 329; Ins. Co. v. Norton, 96 id. 240; Am. Ins. Co. v. McWharter, 11 Ins. Law Journal, 147; Susquehanna Ins. Co. v. Swank, 12 Ins. Law Journal, 625; Ryan v. Worlds Ins. Co., 41 Conn. 68; N. Y. Life Ins. Co. v. Fletcher, 117 U. S. 519. As to paragraph No. 4 they cited: Am.

PPEAL from district court, Ransom county; Hon. W. S. Lauder, Judge.

<p>1. Assignments fox- Benefit of Creditors — Reservation of Exemptions.</p> <p>Under the statute regulating assignment? for the benefit of creditors, defendant in due form made a voluntary assignment of all of his property for the benefit of his creditors, “except such property only as is exempt by law from attachment and execution, as provided by sections 323, 324 and 325 of the Code of Civil Procedure.” In proper time defendant filed a duly-verified inventory, showing a schedule of his property claimed by him as absolutely exempt under section 323, id.; also a schedule of his personal property, valued at $1,499.77, claimed as additional exemptions under section 324, id.; and a final schedule of all of his property not claimed as exempt property. Held, that such assignment was npt prima facie fraudulent in law, under section 2023 of the Civil ' Code; nor void on its face, as against non-assenting creditors, under subdivision 3, § 2030, id.</p> <p>2. Same; Same; Debtor Entitled to “Additional Exemptions.”</p> <p>Held, further, that a debtor making such assignment, who claims additional exemption of personal property to an amount not exceeding $1,500 in value, is entitled to such exemptions; and, when the debtor’s duly-verified inventory embraces a schedule oi such additional exemptions, that such inventory and schedule, in the absence of fraud, is sufficient, prima facie, as a claim by the debtor of such additional exemptions.</p> <p>3. Same; Duty of Assignee.</p> <p>Held, further, that, under the statute regulating such assignments all property not exempt from execution passes to the assignee, and that it becomes his duty, as assignee, to follow and take into his possession all of the debtor’s non-exempt property, not voluntarily turned . over to him by the assignor. Such voluntary assignment creates a trust, and district courts, sitting as courts of equity, have, under the statute, and by virtue of their inherent powers, jurisdiction over the subject-matter of the trust; and such courts will, on proper application, put forth their equity powers to aid the administration of the trust.</p> <p>4b. Same; Reservation of Exemptions not Ground for Attachment.</p> <p>Held, further, that, in the absence of actual fraud, attachment will not lie against an assignor, for the sole reason that in making an assignment for the benefit of creditors he reserves all his property “exempt from execution.”</p> <p>5. Appealable Order.</p> <p>An order vacating an attachment is an appealable order.</p>

<p>1. Attachment Papers Not Part of Pleading's.</p> <p>Attachment proceedings are incidental to the main case, and form no part of the pleadings proper; and it is error to render judgment on the pleadings while a material issue raised by the complaint and answer remains untried.</p>

<p>1. Costs in Supreme Court — How Taxed.</p> <p>An appeal from the taxation of costs.by the clerk of the supreme court will not be considered, as the rule of the court prescribes that costs of said court, in cases originating in a lower court, shall be taxed below after remittitur sent down.</p>

A PPEAL from district court, Cass county; Hon. ¥m. B. Ijl McConnell, Judge. cited: Williad v. Massani, 1 Cow. 37; Blanchard v. Strait, 8 How. Pr. 85; Allen v. Allen, 14 How. Pr. 249; Yan Wyckv. Hardy, 20 How. Pr. 222. argued: That the court below had power to correct the defect in the summons and that if not corrected the irregularity did not invalidate the judgment, citing: Kirk v. Murphy, 67 Am. Dec. 640; Yan Wyck v. Hardy, 39 How.

PPEAL from district court, Cass county; Hon. William B. McConnell. Judge. argued: That the will did not direct a conversion of the real property into personalty;-that there was no express direction to sell the realty; nor does it express any clear intention that the realty should be converted.

<p>PPEAL from district court, Griggs county; Hon. Roderick Rose, Judge.</p>

<p>PPEAL from district court, Stutsman county; Hon. Roderick Rose, Judge.</p>

<p>1. Appealable Order; Order Denying Motion for Judgment is Not.</p> <p>An order of the district court refusing an application for judgment upon the findings of a jury is not an appealable order, within the meaning of subdivision 1, § 5236, Comp. Laws 1887, which subdivision is as follows: “An order affecting a substantial right, made in any action, when such order in effect determines the action, and prevents a judgment from which an appeal might be taken.” Such an order neither determines an action nor any issue in an action, nor is it the le- ' gal effect of such an order to prevent the entry of a judgment from which an appeal might be taken.</p> <p>2. Same; Same; Not Even if Court Refuses to Order Judgment for Either Party.</p> <p>Held, further, that the order is not rendered appealable by the fact that the district court had previously denied defendant’s application for judgment on the findings of the jury.</p>

^JABEAS CORPUS. filed a brief containing points and authorities without argument. Mr. Francis presented the case to the court in an exhaustive oral argument. The points and authorities were as follows: Section 27 of the State Bank Law of 1890 amounts to a palpable and arbitrary interference with the right of personal liberty: People v. Marx, 99 N. Y. 377; in re Jacobs, 98 id. 98; B. Un.

A PPEAL from district court, Stutsman county; Hon. Rod-/I erick Rose, Judge. Complaint was defective because it did not negative contributory negligence on the part of plaintiff: Wanner v. N. Y. C. R. R. Co., 44 N. Y. 465; Wilson v. Charlestown, 8 Allen 137; Wheelock v. Boston, 105 Mass. 203; Lake v. Miller, 25 Mich. 274; Moore v. Central, etc., 24 N. J. L. 268; Murphy v. Chicago, etc., 45 Iowa 661; Penn.

<p>1. Evidence Examined; Case Should Have Gone to tlxe Jury.</p> <p>In this action, after a trial by jury, and at the close of plaintiff’s testimony, the defendant moved the trial court to direct a verdict in defendant’s favor, which motion was granted, and plaintiff duly excepted to the order. Evidence examined. Reid, that the order directing a verdict was substantial error to plaintiff’s prejudice, and that a new trial must be granted for the reason that the evidence reasonably tended to sustain the allegations of the complaint, and hence such evidence should have been submitted to the jury.</p>

PPEAL from district court, Cass county; Hon. William B. McConnell. Judge. Action in equity to cancel of record and declare illegal and void a certain proceeding by advertisement for the foreclosure of a mortgage on real estate as constituting a cloud upon plaintiffs’ title.

RBOR to district court, Richland county; Hon. Charles F. Templeton, judge. Section 6303 of the Compiled Laws relates to the.taking of emolument, gratuity or reward in the nature of a bribe, and does not reach the demand or reception of excessive fees except when taken as a bribe, and the indictment should allege that the asking or receiving was an inducement for the act done: People v. Kalloch, 60 Cal. 116; Hutchinson v. State, 86 Texas 293; Lawson’s Crim.

PPEAL from district court, Walsh county; Hon. Charles F. Templeton, Judge. Plaintiff accepted salary un-, der the ordinance, which he now claims was invalid; by such acceptance his salary was fixed: Thomas v. St. Clair Co. Supervisors, 8 N. W. 45; Brick v. Plymouth Co. 19 id. 304; Bryan v. Des Moines, 51 Iowa, 590.

A PPEAL from district court, Stutsman county; Hon. Rod-/I erick Rose, Judge. The oral contract made before the plaintiff made final entry was confessedly void, but the written contract made afterwards entirely supersedes the former: § 3545 Compiled Laws. The inhibition of the United States Statutes applies only while the land belongs to the government: Sutphen v. Sutphen, 2 Pac. Rep. 100.

<p>1. Seed Lien — Description of Land.</p> <p>■ Under the statute authorizing a seed lien, (Comp. Laws, § 5490,) the “account in writing” must embrace a description of the land on which the seed has been or is to be planted. Where such description of the land was omitted, held, fatal to the lien.</p> <p>2. Same; Pleading- in Action to Foreclose.</p> <p>In an action to foreclose such lien, where the complaint shows affirmatively that the land is not described in the account in writing which was filed, held, that such complaint does not state a cause of action so far as the lien is concerned, and that an order of the district court overruling a demurrer thereto will be reversed.</p> <p>3. Same; Court Will Not Amend Claim of Lien.</p> <p>Held, further, that a court of equity will not reform such “account in writing” to make it conform to an oral understanding between the parties to the seed-lien transaction by inserting a proper description of the land therein. The lien arises on the statute, and does not depend for its existence upon a contract. Such lien can only be acquired by a substantial compliance with the statute which authorizes the lien.</p> <p>4. Same; Same; Not Even if Error Was Caused by Fraud of Lienee.</p> <p>Held, further, that the fact that a description of a different tract of land from that upon which the seed was sown was inserted through either the design or inadvertance of the party to whom the seed was furnished will make no difference with the rule above laid down.</p>

PPEAL from district court, Bamsey county; Hon. Charles F. Templeton, Judge. The case was elaborately briefed on both sides, but as the opinion cites most of the cases they are not noted here.

PPEAL from district court, Grand Forks county; Hon. Charles F. Templeton, Judge. Many cases hold that purchaser at tax sale .has no remedy if his tax title fail, but those cases, with one exception, relate to tax sales for general taxes, not to sales based, like this, on local assessments.

<p>1. Contract — Executory — W arr anty.</p> <p>In an executory contract for the sale of personal property, the vendor may warrant the quality of the goods contracted to be sold, and such warranty will have the binding force of a warranty upon a sale in prcesenti, and no greater.</p> <p>2. Same; Patent and Latent Defects — Action on Warranty.</p> <p>Such warranty will not cover defects that are patent or readily discovered on inspection, and it is the duty of the vendee to reject the property if it does not conform to the representations; but if the vendee ■ accepts the property without knowing or having reason to believe that it does not fulfill the terms of the warranty, and the defect is one that might not be readily discovered, the vendee may, upon a subsequent discovery of the defect, bring an action for damages on the warranty without returning or offering to return the property.</p> <p>3. Evidence; Jury Sole Judges of Weight of.</p> <p>Where there is a substantial conflict in the testimony, the jury are the sole judges of the weight of evidence; and, where the trial court charged the jury that certain propositions' must be established by a clear preponderance of evidence, this court cannot say that the jury disregarded the charge of the court, simply because we might think the preponderance of testimony was not in favor of such proposition.</p> <p>4. Evidence Held Incompetent to Rebut Proof of Warranty. ,</p> <p>The poor credit of the vendee cannot be shown to rebut evidence of a warranty where the sale was made on credit, but at a price above the cash market value of the article, and security taken for the purchase price.</p> <p>5. Evidence; Competency of Question Not Apparent — Exclusion Not Error.</p> <p>Where an objection is sustained to a question propounded to a wit, ness, and the competency of the question is not apparent on its face, the party must offer to prove the facts sought to be elicited before he can assign error upon the ruling upon the objection.</p>

PPEAL from district court, Stutsman county; Hon. Roderick Rose, Judge. argued that the contract between the trustees and the parties to this action, together with the first resolution of the city council, constituted a dedication of land for public purposes: Dillon Mun.

Tbe judgment can be sustained only by tbe adoption of tbe superior servant limitation of tbe fellow-servant rule. Held: that the general rule, that the master is exempt from .liability to one servant for an injury caused by the negligence of a fellow servant, does not apply where the injured servant is inferior in rank to the one by whose negligence he is injured, and is under the direction and control of such other and is bound to obey his orders:…

PPEAL from district court, Stutsman county; Hon. Boderick Bose, Judge. The degree of care which a railroad is bound to exercise is not dependent on the weather.: Mich. Cen. B. B. Co. v. Anderson; and the instruction quoted above in paragraph 5 of the syllabus is erroneous.

PPEAL from district court, Stutsman county; Hon. ¥m. H. Francis, Judge. In April, 1883, defendent McGee, owner of part of section 4-149-67, mortgaged said land to appellant to secure payment of his note to her in sum of $1,900. At the same time he had a building on said premises insured against fire for $2,500, with loss payable to appellant. In June, 1883, McGee mortgaged the same and other premises to plaintiffs to secure payment of $2,600.

PPPJAL from district court, Cass county; Hon. Vm. B. McConnell, Judge. In absence of a statute the maxim caveat emptor applies to the fullest extent to purchaser of tax-title. Cooley on Taxation, (2d Ed.) 546; Devlin on Deeds, vol. 2, §§ 1349-51; Black on Tax Titles, §§ 263,269; Blackwell on Tax Titles, §§ 53, 66,67,442; ■ Desty on Taxation, vol. 2, p. 1011.

<p>1. Measure of Damages on Breach, of Warranty.</p> <p>The measure of damages on breach of warranty on sale of personal property being the difference between what' it would have been worth had it been as warranted and its actual value, held reversible error to allow defendant’s counsel to ask a witness to testify as to the value of the machine, a self-binding harvester, on the assumption that it was useless, the evidence clearly showing that it could be, and was in fact, u«ed, although it tailed to bind all the sheaves; the answer to such question being prejudicial.</p>

PPEAL from district court, Stutsman county; Hon. Roderick Rose, Judge. cited: State v. Caskell, 18 Wend. 478; Zuel v. Bowen, 78 111. 234; Blodgett v. Weed, 119 Mass. 215; Deets v. Lonsdale, 49 Ind. 525. Plaintiff cannot hold the partners without showing their authority for or assent to the guaranty. Bank v. Bank, 60 N. Y. 285; Williams v. Well-bridge, 3 Wend. 415; Henderson v. Birkevootz, 37 Cal. 113; Frend v. Durgee, 35 Am. Rep. -92.

<p>1. Transfer of Causes Under Omnibus Bill.</p> <p>Respondent, after'the admission of North Dakota into the federal Union, argued the appeal in this case in the supreme court of the state, applied for a rehearing after defeat, and after securing a rehearing applied for and obtained a continuance. Held, he could not thereafter obtain a transfer of the case to the federal court on the ground of diverse citizenship, under the provisions of the enabling act:</p>

PPEAL from district court, Cass county; Hon. William B. McConnell, Judge. The statute providing for service on defendant not in the state must be strictly followed. Forbes v. Hyde, 31 Cal. 351; Beach v. Beach, 43 N. W. 702; Barber v. Morris, 33 id. 560. Wortman v. Wortman, 7 Abb. Pr. 72. The statute must be strictly followed but should be liberally construed. See 2129 Civil Code.

<p>1. Public Lands; Title After Location With Scrip and Before Patent.</p> <p>Where a party locates government scrip upon government land at the proper local land office, and where, at the time, the land so entered was subject to entry with such scrip, and the entry was accepted by the officers of the local land office, and the patent certificate issued to the entryman, such entryman holds the full equitable and beneficial title to such land, but until the patent actually issues the naked legal title remains in the United States.</p> <p>2. Same; Grant by Entrymen With Covenant of Seisin.</p> <p>Where, in such case, the grantee of the entryman, prior to the issuance of the patent, again conveys the land by warranty deed, with covenant that he is “well seized in fee” of said land, such covenant of seisin is broken, because the grantor is not seized of the legal title.</p> <p>3. Same; Same; Damages For Breach of Covenant.</p> <p>But such deed does convey to the grantee the full equitable and beneficial title to said land; and until some paramount or hostile title is in some manner asserted, or the grantee is in some manner disturbed in bis possession, such, breach, is a mere technical breach, for which the grantee can recover nominal damages only.</p>

<p>APPEAL from district court, Ransom county; Hon. W. S. Lauder, Judge.</p>

<p>PPEAL from district court, Cass county; Hon. William B. McConnell, Judge.</p>

<p>PPEAL from district court, Cass county; Hon. William B. McConnell, Judge.</p>

PPEAL from district court, Burleigh couuty; Hon. W. H. Winchester, Judge. This action was tried in the territorial district court before Hon. Roderick Rose and a jury. After verdict, but before judgment, North Dakota was admited into the Union. The steamer Eclipse having been lost before the beginning of this action plaintiff’s agency for her owners had terminated, and he could not maintain this action. Ins. Co. v. Ruggles, 12 Wheaton, 498.

<p>1. Intervention to Obtain Judgment Against Defendant— Equities Between Plaintiff and Intervenor.</p> <p>Where an intervention complaint was framed on the theory only of co-operation by the intervenors with plaintiff in the effort to secure judgment against defendants, and the prayer for relief merely requested a payment of the money into the hands of a person to be designated by the court, no claim in the complaint or on the trial being made that the rights of the plaintiff and the intervenors, as between themselves, were to be adjusted in the action, but the verdict being a joint verdict, in favor of the plaintiff and intervenors, for the amount of the recovery, held error to award to intervenors any specific portion of the recovery against defendants, there having been no adjustment of the "equities between plaintiff and intervenors. Such portion of the judgment reversed, with directions that rights of plaintiff and intervenor be settled as between themselves.</p>

Roderick Rose, Judge. Mr, Tripp argued as follows: The court below directed the verdict as appears from the abstract upon the ground that “the district exceeded its authority in issuing orders for a greater amount than could be raised by the levy of a tax in one year,” and was governed no doubt by the language of the supreme court of Dakota Territory in Farmers & Merchants Nat. Bank v. School District No. 53, 42 N. W. 767.

<p>1. Grant — Covenant of Seisin.</p> <p>Where, in a covenant of seisin in a warranty deed, the grantor cove-' nants “for his heirs, executors, and administrators,” no action will lie against the grantor for a breach of such covenant.</p> <p>2. Same; Damages for Breach.</p> <p>Where A. contracts to sell realty to B., and subsequently B. contracts to sell the land to C., and at B.’s request A. conveys direct to C. by deed with general covenant of seisin, the amount of recovery against A. for breach of such covenant would in any event be limited to the consideration received by him with interest thereon. § 4584 Comp. Laws.</p> <p>3. Covenant of Seisin Does Not Kun With the Land.</p> <p>Under §§ 3444, 3445, 3446, Comp. Laws, the covenant of seisin does not run with the land in this state.</p>

<p>1. Practice — Findings of Fact.</p> <p>Where the trial court determines the issues of fact without a jury, the requirement of the statute as to findings is mandatory, and not directory. In such cases it is the duty of the trial court without request to make express findings of the ultimate facts which are material and arise upon the pleadings. Accordingly where the district court, in such case, made no express findings of the ultimate facts which were in issue, but instead of doing so adopted certain documentary evidence, and a certain stipulation of facts, as its findings of fact, and from such findings drew certain legal conclusions, upon which judgment was efitered, held reversible error.</p> <p>2, Capital Bank v. School District Followed.</p> <p>Upon the merits this case will be governed by the principles of law laid down in another case like it, decided at the present term of this court, i. e., Capital Bank of St. Paul v. School District No. 53, ante, 479.</p>