Volume 11 — North Dakota Reports

Action by Louis Freeman and others against W. B. Wood. Judgment for plaintiffs, and defendant appeals. The plaintiff has mistaken his remedy. He should have moved to set aside the judgment or order of which he complains. Section 5298, Rev. Codes. Where a court of law can do as full justice to the parties and to the matter in dispute as can be done in equity, a court of equity will not stay proceedings at law. 3 Pom. Eq.

Action by John Drinkall against the Movious State Bank. Judgment for plaintiff, and defendant appeals. Appellant'indorsed his cashier’s check and delivered it in return for poker chips used in a gambling game and when he was intoxicated. He was at the bank when it was presented for payment and advised the cashier not to pay the same. Pie did not deny his indorsement and gave no reason to the cashier why it should not be paid.

<p>Appeal from District Court, McIntosh County, Lauder, J.</p> <p>Application by the state, on the relation of George C. Wiles, for writ of mandamus. against Christ Albright, county auditor. Judgment for relator, and defendant appeals.</p>

Application by the state, on the relation of George C. Wiles, for a writ of mandamus to Gottfried Heinrich and others, board of county commissioners of McIntosh county. Writ granted, and the board appeals. The remedy by mandamus is based exclusively on the necessity that may exist in extraordinary cases for the administration of a. specific remedy in order to obviate a failure of justice. The doctrine of necessity inheres in the remedy.

<p>Ej ectment — Evidence—‘Pleading.</p> <p>This action is brought to recover the possession of land. The complaint alleges that the plaintiff owns the land in fee simple, and that the defendants unlawfully entered upon the land, and wrongfully withhold the possession from the plaintiff. Defendants answer jointly, and deny that plaintiff owns the land, and allege that the defendant B. S. Ricks owns the land in fee, and that the defendant Olson holds under Ricks. The answer alleges as a defense no equitable title or right whatsoever. At the trial evidence was offered by the defendants which was pertinent to the defense of title as alleged in Ricks, and said evidence was not in terms offered for any particular purpose. Held, that said evidence could not be resorted to by the defense to sustain an equitable right of possession not pleaded in the answer.</p> <p>Illegal Foreclosure of Mortgage — Possession.</p> <p>Under the statutes of this state governing mortgages of realty a mortgage conveys no title or estate in the land. Nor does such mortgage, either before or after condition broken, give the mortgagee or his assigns a right to the possession of the mortgaged premises, without the consent of the mortgagor, until after a lawful foreclosure is perfected. Accordingly, held, that the defendants, who took possession of the plaintiffs land without his consent, either express or implied, and did so under color of a mortgage foreclosure proceeding by advertisement, which was illegal and wholly void, were unlawfully in possession of the land.</p> <p>Right to Maintain Ejectment.</p> <p>Held, further, that the plaintiff, who gave the mortgage, and who is. the owner of the land, can maintain an action to eject the defendants from their unlawful possession, and do so without paying the mortgage debt.</p> <p>Judgment for Plaintiff.</p> <p>Held:, further, that the judgment dismissing the action must be reversed, and judgment entered for the plaintiff.</p>

<p>Appeal from District Court, Grand Forks County’, Morgan, J.</p> <p>Action by Alexandria Finlayson against Peter C. Peterson. Judgment for plaintiff, and defendant appeals.</p>

<p>Equitable Issues Interposed to Action at Law.</p> <p>When an answer interposed in an action at law presents issues which are cognizable only by a court of equity, proper practice requires that the equitable issues shall be tried and determined by the court before submitting the common-law issues to the jury.</p> <p>Contract to Sell Land — Default—Tender.</p> <p>Where the covenants in a written contract for the sale of real estate are mutual and dependent, the vendor’s obligation to convey being dependent upon a cash payment and the execution of notes and a mortgage by the vendee, and time for perfecting title is not made of the essence of the contract, the vendee can place the vendor in default only by tendering performance on his part; and, in the absence of such tender, he is not entitled to rescind the contract and recover back payments made when the contract was executed.</p> <p>Accord and Satisfaction.</p> <p>In order to establish the extinction of the obligations of a written contract by an accord and satisfaction, it is not enough to merely show an oral agreement to render satisfaction at a future date. The accord must be executed by a delivery and reception of the thing agreed to be accepted in satisfaction.</p> <p>Specific Performance'.</p> <p>The defendant, through an equitable defense and counterclaim, seeks to compel the plaintiff to specifically perform his covenants contained in a written contract wherein the plaintiff agreed to purchase and the defendant to sell and convey certain real estate owned by the latter. It is held, on the facts stated in the opinion, that the contract was not rescinded by plaintiff; neither was there a mutual rescission. Held, further,, that a certain oral settlement referred to in the opinion did not amount to an accord and satisfaction, and was without legal effect upon the rights and obligations of the parties as evidenced by the written contract. Held, further, that defendant had not been put in default by a tender of performance by plaintiff, and that defendant, who had fully complied with his- covenants in said contract in seasonable time, and orior to the commencement of this action, was entitled to a decree of specific performance.</p>

<p>Appeal from District Court, Cass County; Lauder, J.</p> <p>Action by Franklin S. Dalrymple and others, by Oliver C. Dalrymple, their guardian, against the Security Loan & Trust Company of Casselton and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>Appeal from District Court, Cass County; Pollock, J.</p> <p>Action by N. D. Gagnier against the city of Fargo. Verdict for plaintiff. From an order denying a new trial, defendant appeals.</p>

<p>Statutes — Title of Act — Constitutional Law.</p> <p>Section 61 of the state constitution, and chapter 5, Laws 1901, construed, and held that the body of chapter 5 embraces but one subject, and held, further, that the subject of the act is expressed in its title.</p> <p>Title of Act — Plurality of Subjects.</p> <p>Where the subject of a statute is- single, and the same is expressed in its title, the act will not be invalidated by the fact that the title announces a plurality of subjects.</p>

<p>Breach of Contract — Measure of Damages — Exchange of Property — Evidence.</p> <p>Plaintiff and defendant entered into an 'agreement to exchange an equal number of bushels of wheat in February, 1898. The defendants’ wheat being seed wheat, and the more valuable, plaintiff was to haul his wheat to the elevator, and deliver the storage tickets to defendant and was to pay storage charges until April 1st. Plaintiff was also to accept the seed wheat at defendant’s residence, and haul the same to his own place. Plaintiff complied with all the terms of the agreement and demanded the seed wheat, which demand defendant refused to comply with, he having previously sold such seed wheat. Held, that the measure of damages for the breach of such contract would be the difference between the value of the seed wheat at the time and place it was to be delivered and the market value of plaintiff’s wheat at the time of the refusal of the defendant to accept the tickets for the same.</p> <p>Statutory Measure of Damage.</p> <p>Held, that such damages are measured and determined under § 4985, Rev. Codes.</p> <p>Contract for Exchange.</p> <p>Held, further, that under § 3997, Rev. Codes, the provisions of § 3958, Id., apply to contracts for exchange of property, where the value of the property to be exchanged by either party is $50 or more.</p> <p>Same.</p> <p>Held, also, that the measure of damages laid down in § 4985, Rev. Codes, applies to cases of breach of valid contracts of exchange of personal property.</p> <p>Verdict Sustained by the Evidence.</p> <p>Held, further, upon a review of the evidence, that the verdict of the jury upon the question of the making of a contract by the parties and the delivery of a part of the property agreed to be exchanged by said contract is sustained by the evidence.</p>

<p>Constitutional Law — Legislative Powers.</p> <p>Sections 2440, 2441, Rev Codes, authorizing district courts to exclude territory from the corporate limits of cities in certain cases, are unconstitutional for the reason that they vest legislative powers in the courts.</p>

<p>Appeal from District Court, Cavalier County; Kneeshaw, J.</p> <p>Action by Allan Wilson against John Kartes. Judgment for plaintiff. From an order denying a new trial defendant appeals.</p>

<p>Appeal from District Court, Pembina County; Fisk, J.</p> <p>Action by Silas W. Prescott against George Brooks. Judgment for plaintiff, and defendant appeals.</p> <p>When a mortgage is executed as security for money due or to become due on a promissory note, bond or other instrument designated in the mortgage ,the record of the assignment of the mortgage is not, of itself, notice to a mortgagor, his heirs or personal representatives, so as to invalidate any payment made by them or either of them to the person holding, such note, bond or other instrument. § 4717 Rev. Codes. The implication from the statute is that the recording of the mortgage shall be notice, if the original payee no longer holds the note, bond or other instrument. Rogers v. Peclzham, 52 Pac. Rep. 483. This appeal is from a divisible judgment consisting of two parts; one part adjudging the validity of the $880 mortgage and decrees the foreclosure thereof; the other-adjudges the payment of the $500 mortgage and decrees the satisfaction thereof. There is nothing in our statute or system of procedure which does away with or calls for any modification of the settled rule, applicable alike to appeals in equitable as well as in legal actions, that, upon an appeal by one party from a distinct portion of the judgment, the respondent cannot ask for a review of either portion of the judgment adverse to him from which he, himself, does not appeal. Mackall v. Mackall, 135 U. S. 167-170; Winslow v. Wilcox, 105 U. S. 447; Chittenden v. Brewster, 2 Wall. 191; Clark v. Killian, 103 U. S. 766; U. S. v. Blackfeather, 155 U. S. 180; Building and, Loan Assn. v. Logan, 66 Fed.'Rep. 827; Mapes v. Coffin, 5-Paige, 296; Kelsey v. Western, 2 N. Y. 501-505; Schlazvig v. De Peyster, 49 N. W. Rep. 843; In re Stumpenhouse Estate, 79 N. W. Rep. 376; Matthews v. Imperial Acct. Assn., 81 N. W. Rep. 484; Sabin v. Burke, 37 Pac. Rep. 352; Poe Mut. Life Ins. Co. v. Fisher, 39 Pac. Rep. 758; Goldsmith v. Elwert, 50 Pac. Rep. 867; Hoslam v. Hoslam, 56 Pac. Rep. 243; Cox v. Stokes, 51 N. E. Rep. 316; Sanitary Dist. v. Adams, 53 N. E. Rep. 743; The Stebben Morgan v. Good, 94 U. S. 599; May v. Gates, 137 Mass. 389; Morse v. Smith, 83 111. 396; Talcott v. Noel, 78 N. W. Rep. 39-41; Buck v. Fitzgerald, 54 Pac. 942; Phillips v. Reynolds, 55 Pac. 316; 2 Beach Mod. Eq. Pr. § 935 and cases; Phoenix Ins. Co. v. Ward, 26 S. W. Rep. 762; Bank -v. Babbitt, 13 S. E! Rep. 177-179-180.</p> <p>Where the appellant, himself, draws up and enters an order he has notice in fact of the order atthe time he so enters the same. It is not necessary for the adverse party to give him formal notice to limit his right of appeal. Coal Co. v. Dyett, 4 Paige Ch. 273; Jenkins v. Wilds, 14 Wendall, 544. The Appellate Court cannot relieve appellant from the 'effect of misfortune, accident or mistake unless the statute expressly authorizes relief; therefore, the appellant’s right to appeal lapses with the expiration of the statutory period. 2 Enc. PI. & Pr. 245. The burden of proof to show legal service for appeal is on appellant. State v. Johnson, 109 N. C. Rep. 853; Finlayson v. Am. Acct. Co., 109 N. C. 196. Also to show that proper filing was made. Attoway v. Goldsmith, 18 S. W. Rep. 604; Tootle v. French, 2 Idaho, 744. Where the statute requires an appeal to be perfected within a prescribed period it is jurisdictional and the transcript must be filed within the time 'expressed or the appeal will be dismissed. 2 Enc. PI. & Pr. 277. Chamberlain v. Hedges, 73 N. W. Rep. 75. In cases tried to the court under § 5630, Rev. Codes, it is not legally permissible to appeal from a part only of the judgment; it must be taken from the entire judgment in all cases. Barkley v. Logan, 2 Mont. 296; Plaisted v. Nanulan, 2 Mont. 359; Hines v. Hines, 84 N. C. 122; Arrington v. Arrington, 91 N. C. 310; Thompson v. Thompson, 23 Wis. 624; Murphy v. Spatdding, 46 N. Y. 556; In Re N. Y. etc. Ry. Co., 44 Hun. 275; Bennett v. Van Sycle, 18 N. Y. 481; Taylor v. Taylor, 5 N. D. 58.</p>

<p>Appeal from District Court, Dickey County; Glaspell, J.</p> <p>Action by the Minneapolis, St. Paul & Sault Ste. Marie Railway Company against Dickey county and another. Judgment for defendants, and plaintiff appeals.</p> <p>The Board of County Commissioners did not prepare, record or publish an itemized statement of the county expenses as a basis for tax levy, and their failure so to do defeated the jurisdiction of the board to levy a tax. § 1228, Rev. Codes; Shattuck v. Smith, 6 N. D. Rep. 70; Dever v. Cornzvell, 10 N. D. 123, 86 N. W. Rep. 227. Mandatory provisions of the statute must be specifically observed by taxing officers and a disregard or violation of said provisions is fatal to the tax and defeats the jurisdiction of the taxing officers. Szveigle v. Gates, 9 N. D. 538; Eaton v. Bennett, 10 N. D. 346, 87 N. W. Rep. 188; Pozsier v. Larrabee, 2 N. D. 149; Matteson v. Tozvn, 37 Wis. 254. A levy being void, it can be made valid by a curative act. Ch. 159, Laws 1901. Curative laws may heal irregularities in action but they cannot cure a want of authority to act at all. There being no jurisdiction to make a levy in the first place, same can be accomplished through retrospective legislation. Cooley on Taxation 302; Desty on Taxation 620; Weity on Assessments 231; Pickton v. City of Fargo, 10 N. D. 469, 88 N. W. Rep. 95; Hart v. Henderson, 17 Mich. 222; People v. Goldtree, 44 Cal. 323; Maxzvell v. Goetschins, 40 N. J. Law, 383; Conde v. Schenectady, 51 N. Y. Supp. 854; State v. Dougherty, 60 Me. 504; Houseman v. Kent, 25 N. W. Rep. 369; Hagner v. Hall, 42 N. Y. Supp. 63; Sessions v. Crunkilton, 20 O. St. 349. It is not within the power of the legislature to make a void proceeding valid. McDaniel v. Correll, 19 111. 226; Gridins Exrs. v. Cunningham, 20 Gratt. 109. Nelson v. Roundtree, 23 Wis.'367; Israel v. Arthur, 1 Pac. Rep. 438; Conway v. Cable, 37 111. 82; Bryor v. Dozvney, 50 Cal. 388; Cromwell v. Maclean, 123 'N. Y. 474; Kimball v. Town, 42 Wis. 412; Richards v. Rote, 68 Pa. St. 248; Columbus v. Board, 65 Ind. 427; People v. City of Brooklyn, 71 N. Y. 495; Hamilton v. City, 25 Wis. 490. The rights of suitors are to be determined by the law in force when the cause of action arose and such rights cannot, excepting as mere rules of procedure and evidence, be measured by the different legal statutes created while the action is pending, either by judicial decision or by statute. Schaffner v. Young, xo N. D. 245, 86 N. W. Rep. 734; Conrad v. Smith, 6 N. D. 337; Ma-hon v. Szirerus, 9 N. D. 57, 81 N. W. Rep. 64; Norman v. Boaz, 4 S. W. Rep. 316; Thweat v. Bank, 81 Ky. 1; Turney v. Tozvn, 100 Ky. 288. A party cannot pay a part of his taxes without paying the whole. Wells County v. McHenry, 7 N. D. 246, 74 N. W. Rep. 241; State v. Cert. Lands, 42 N. W. Rep. 476.</p> <p>The burden of proof is on appellant to establish invalidity of tax levy. Farrington v. Inv. Co., 1 N. D. 102; N. P. Ry. Co. v. McGinnis, 4 N. D. 494, 61 N. W. Rep. 1032. The constitution does not prohibit the passage of retrospective laws except in so far as they destroy vested rights or impair the operation of contracts. Garrison v. N. Y., 21 Wall. 196; Freeland v. Wideman, 131 U. S. 405; Louisiana v. Neiv Orleans, 3 Sup. Ct Rep. 285. Tax proceedings are in no manner founded upon'contract. New Orleans v. Tel. Co., 8. Am. St. Rep. 506 and note. The legislature can ratify and approve by subsequent legislation any act performed for the benefit of the state which it had original authority to legislate and provide for. O’Hara v. N. Y., 2 L. R. A. 603; Fuller v. Morrison County, 36 Minn. 309; Anderson v. Santa Anna, 116 U. S. 356; Iowa Land Co. v. Soper, 36 la. 112; Smith v. Callahan, 36 la. 552; Gordon v. San Diego, 40 Am. St. Rep. 73. So long as a statute is within the spirit of legislative power and not an encroachment upon the provisions of another department of ’government it will be upheld, unless clearly in conflict with some provision of the constitution. Wadszvorth v. Ry. Co., 36 Am. St. Rep. 309; Fox v. McDowell, 46 Am. St. Rep. 98; Burlington & Ced. Rap. Ry. Co. v. Dey, 31 Am. St.Rep. 477. If the proceedings of the commissioners are void for want of jurisdiction and the thing wanting in the proceeding which they have failed to perform is something the legislature might have dispensed with a prior statute it is within the power of the legislature to dispense with it by a subsequent act. Richmond v. Supervisors, 77 la. 531, 14 Am. St. Rep. 308; Iowa Savings & Loan Co. v. Heigdt, 77 N. W. Rep. 1050; Shattuck v. Smit, 6 N. D. 78.</p>

Action by Mary Donovan against Mary A. Welsh. Judgment for defendant, and plaintiff appeals. The deed from McHugh to Moran conveyed no title or interest. McHugh had not title to convey, as the power of attorney authorized him to convey, not in his own, but in the name of Amelia Burritt. Subd. 3 § 3584, Rev. Codes. Conveyance must be an act of the principal and not of the attorney, otherwise the conveyance is void. The attorney must convey in the name of the principal.

<p>I11 the matter of the proceedings for the disbarment of Martin C. Freerks.</p>

Certiorari by the state of North Dakota, on the relation of A. W. Clyde against Hon. W. S. Lauder, judge of the Fourth judicial district, and Paul Kretschmar, clerk of the district court for McIntosh county, to review an order of the court deducting from relator’s salary as state’s attorney the compensation to another attorney appointed to prosecute a criminal action.

<p>Purpose of the Australian Ballot Law. .</p> <p>The purpose of the Australian ballot law is to secure a secret ballot to electors, to the end that they may express their choice of candidates uninfluenced by threats, intimidation, or corrupt motives.</p> <p>Statute Mandatory.</p> <p>The provisions of the statute governing the conduct of elections will-be held mandatory, not only when made so by its express language, but also when the purpose of the lawmaking power would be plainly defeated if its command to do acts in a particular way did not imply,an inhibition to do them in any other. In construing such provisions, every positive requirement which, if disobeyed, would necessarily defeat the purpose of the requirement, should he held mandatory, and those which do not have that effect should be held directory.</p> <p>Booths — Duty of Election Inspectors.</p> <p>Section 521, Rev. Codes, requires inspectors of elections to provide booths where voters may mark their ballots screened from observation, and a guard rail to prevent persons from coming within 10 feet of the ballot boxes and booths. Held, that said requirements are but means employed to secure the purpose of the law, viz., a secret ballot, and that a violation of the same does not necessarily destroy the secrecy of the ballot.</p> <p>Irregularities Not Affecting Result.</p> <p>In this case the ballots were marked by the electors in secret, the persons voting at the contested precinct were qualified electors, and their votes were counted and canvassed as cast, and the election was free from fraud. It is held that the trial court did not err in refusing to throw out the precinct because of the failure of the precinct officers to comply strictly with the statute prescribing the manner of preparing booths and guard rails, inasmuch as such irregularities did not defeat the purpose of the requirement, or in any way affect the result of the election.</p>

Action by Maxwell V. Woodhull against the Farmers’ Trust Company of Sioux City, Iowa, and George H. Hollister, its receiver. Judgment for defendants, and plaintiff appeals.

Action by Gaar, Scott & Co. against J. A. Sorum, as sheriff. Judgment for defendant, and plaintiff appeals.

Action by Lillian Adair against Amanda M. Adair and others. Judgment for plaintiff, and defendants appeal. The will and codicil should be construed together as one and the same instrument. The intention of the testator is to be ascertained from the words of the will. It is apparent that the testator intended taking $500.00 of the money willed his daughter and giving it to his wife.

Action by George Mahon, trustee, against W. F. Leech and others. Judgment for defendants. Plaintiff appeals. Each land contract was a written contract which cannot be altered except by another written contract or by an executed oral agreement. §3936, Rev. Codes. Foster v. Furlong, 8 N. D. 282. The contracts secured the payment of the purchase price by reserving title of the land in the vendors.

<p>Appeal from District Court, Cass County; Pollock, J.</p> <p>Action by John Deacon against C. L. Mattison. Judgment for defendant, and plaintiff appeals.</p>

<p>Fraudulent Conveyances — Judgment Creditor.</p> <p>In actions to set aside conveyances of real estate as fraudulent, as against a creditor claiming under a judgment, proof of such judgment is requisite to maintain such action.</p> <p>Proof of Judgment.</p> <p>The fact that such judgment was rendered in an action before the same court and judge is not, of itself, ground for dispensing with such proof.</p> <p>Manner of Proving Judgment.</p> <p>If a proper objection is made, such judgment cannot be proven by introducing in evidence the executions issued thereunder, nor by the judgment docket containing an abstract of such judgment, .nor by parol, in the absence of a showing that will allow the offer of secondary evidence.</p> <p>Judicial Notice.</p> <p>Under section 5713d, Rev. Codes, a trial court is not required to take judicial notice of such judgment without being called upon to do so, and the introduction in. evidence of the judgment docket, which is competent for some purposes in the case, is not, of itself, tantamount to calling upon the judge to take judicial notice of such judgment.</p>

<p>Claim and Delivery — Conditional Sale — Contract—Failure to Record— Attachment.</p> <p>Construing section 4732, Rev. Codes: This is a claim and delivery action to recover the possession of a stallion owned by the plaintiff, and delivered by him to one Thomas Creath, upon conditions embodied in a contemporaneous writing, signed by plaintiff and Thomas Creath, which writing was never filed as required by said statute. The writing embraced a contract of conditional sale, and by its terms gave Creath only the naked possession of the stallion until the stipulated conditions were performed, and the title was expressly reserved and continued in the plaintiff until performance. Creath never fulfilled the conditions of the contract, but abandoned • the stallion and left the country. The defendant seized the animal as the property of Creath, under an attachment issued by a justice of the peace, and when this action commenced defendant held the stallion under said attachment. At the trial plaintiff put the written contract in evidence, together with oral testimony tending to show that Creath had not complied with the terms of the writing, and had not paid for the stallion. Defendant offered no testimony. On defendant’s, motion the trial court directed a verdict for the defendant upon the ground that the plaintiff had not made out a prima facie case, inasmuch as the conditional contract had not been filed under said statute. Held, that the order directing such verdict was error.</p> <p>Pleading and Proof.</p> <p>Held, further, for reasons stated in the opinion, that the defendant neither alleged nor proved a state of facts bringing the defendant within the benefits of said statute.</p>

<p>Appeal from District Court, Cavalier County; Sauter, J.</p> <p>Action by John C. Witte, doing business as the John C. Witte Manufacturing Company, against J. J. Reilly and D. P. Jameson. Judgment' for plaintiff. Defendants appeal.</p>

<p>Claim and Delivery — Evidence—Demand—Necessity.</p> <p>This action was brought to recover the possession of personal property owned by the defendant, and which was in _ defendant’s possession when suit was brought. Plaintiff alleges a right of possession under a chattel mortgage, and alleges breaches of the conditions of the mortgage, and also a demand of the property, and refusal to deliver, before suit brought. Defendant answered, admitting the execution and delivery of the mortgage and notes secured thereby, but specially denied plaintiff’s ownership of the notes and mortgage, and alleged that nothing was due on the notes. The answer also denied the alleged demand, and specially denied all the breaches, of the conditions of the mortgage as set out in the complaint. At the trial the defendant offered evidence to sustain the various defenses pleaded in his answer, and throughout the trial the defendant contested plaintiff’s right to recover upon the ground of a superior right of possession in himself. Held, under this state of the pleadings and the evidence, that the issue of a demand and refusal before bringing suit was eliminated as an issue for the jury, inasmuch as it appeared that any such demand, if made, would have been unavailing.</p> <p>Demand — Instruction to Jury.</p> <p>The trial court, in an instruction to the jury, set out at length in the opinion, charged the jury, in effect, that a demand and refusal before suit were essential to any recovery by the plaintiff. Held, under the evidence, that such instruction was prejudicial error.</p>

<p>Divorce — Reference.</p> <p>This action was brought to obtain a divorce from the bonds of matrimony upon the ground of extreme cruelty. Defendant appeared by attorney, who served and filed an answer to the complaint, which admitted the marriage and denied all other allegations of the complaint. After issue was joined, the trial court, upon the written consent of counsel, by its order referred the case, with directions to take the testimony and report the same to the court; and thereafter the referee took the testimony, and reported the same to the court, but did not make or report any findings in the case.. Held, that such reference was properly made despite the fact that the statute (article 7, c. 10, Code Civ. Proc.) does not in terms authorize such limited reference. In divorce cases the jurisdiction is-of statutory origin, but the procedure, unless the statute otherwise directs, is that which obtains in courts of chancery. In such courts the authority to require a master or a referee to take and report the evidence, either with or without findings is. inherent.</p> <p>Waiver of Objections.</p> <p>A reference having been consented to, counsel cannot object to-the same for the first time in this court.</p> <p>Corroboration as to Marriage.</p> <p>The fact of the intermarriage of the parties was alleged in the complaint, admitted in defendant’s answer, and testified to by the plaintiff, but such testimony was not corroborated. Held, construing section 2757, Rev. Codes 1899, that said testimony of the plaintiff did not require corroboration.</p> <p>Residence Sufficient.</p> <p>Evidence examined, and held, that the plaintiff’s residence in this state in good faith for go days prior to commencing this action is established, and that the plaintiff’s testimony as to such residence is sufficiently supported by corroborating evidence.</p> <p>Hearsay — Corroboration by Physician.</p> <p>The plaintiff testified fully and in detail to the facts- alleged as grounds of action and to the 'results produced upon his health by the alleged extreme cruelty of the defendant, and testified also that lie consulted a physician and took medical treatment as a means of obtaining relief from bodily ailments caused by the cruel and inhuman treatment he received at the hands of defendant. This testimony was corroborated by the physicians who treated the plaintiff for the bodily ailments which the plaintiff stated to his physician were caused by the strain and worry arising from his domestic troubles. Held, that the testimony of the physicians was competent under an exception to the rule excluding hearsay evidence, and that such testimony constituted corroboration, within the meaning of section 2757, supra.</p> <p>■Collusion Excluded by Evidence.</p> <p>The statute requiring corroborating evidence in support of the statements, admissions, or testimony of the parties voices a rule of ancient origin, and the purpose of the rule is to guard against the evil of granting collusive divorces. Accordingly, it is held, where the element of collusion is excluded, that the reason for the rule falls; and in such cases, while there must be corroborating evidence to satisfy the statute, such evidence need not extend to every feature of the matrimonial offense. The degree of corroboration is not defined or specified in the statute. Said statute is adopted from the Code of California, and the adjudications of that state construing the same are adhered to in this case.</p>

Action by Lizzie Fleischer, administratrix of William Fleischer, against Ernstenia S. Fleischer. Judgment for plaintiff. Defendant appeals. A married woman whose husband has deserted her can hold and prove up a timber culture entry. In re Waltenburger, 2 Copp. L. O. 828; Gla'ser v. Bogaréis, 2 L. D. 311. So, when her sons informed appellant that she could not hold her timber culture claim because she was married 'she was misled to her prejudice.

Action by E. W. Kneeland against Thomas Beare. Judgment for plaintiff. Defendant appeals. The lease was in writing and contained no covenant of warrant of the condition of the building and no agreement to keep it in repair and the appellant is not liable for defects arising after .the making of the lease. - Hctrple v. Fall, 65 N. W. Rep. 913; Kruger v. Farrant, 13 N. W. Rep. 158; Edmison v. Asleson, 27 N. W. Rep. 82; Miller v. Rinaulda, 47 N. Y. 636.

<p>Appeal from District Court, Cass County; Pollock, J.</p> <p>Action by the County of Cass against the American Exchange State Bank of Buffalo and others. From the judgment, plaintiff appeals.</p> <p>Where a surety claims to be released by reason of • transactions occurring before delivery of the bond, he must establish, First, that he signed the bond and left it with a third party for delivery only on certain express or implied conditions and that the obligee had actual or implied notice of the conditions. State v. McGonigle, 8 L. R. A. 735. The obligee of the bond had no notice that the delivery was unauthorized by reason of the violation of the implied conditions under which the bond was signed. The absence of such knowledge is fatal to the defense. State v. Potter, 63 Mo. 212; Dair v. U. S., 83 U. S. 1; State v. Peck, 53 Me. 284; Taylor County v. King, 73 la. 153; State v. Pepper, 31 Ind. 76. Notice to one member of a board consisting of several persons is not notice to the board, unless notice was communicated to the other members, or unless the member notified was acting as a committee or agent for the board in the particular transaction in reference to which the knowledge was acquired.</p> <p>National Bank v. Norton, 1 Hill 572; Beech on Corp. 185; Shaw v. Clarke, 49 Mich. 384; Plank v. Paine, 25 Conn. 444; Bank v. Cornen, 37 N. Y. 320; Wheel Co. v. Wagon Co., 20 Fed. Rep. 699; West, etc., Bank v. Thompson, 127 Mass. 506; Yellow Jack v. Stephenson, 5 Nev. 224; Farrell Foundry Co. v. Dart, 26 Conn. 376; Cuter v. Tompkins, ■- Pa. St. -; Armtrong v. Abbott, 17 Pac. Rep. 517. It is conceded that notice to the board of county commissioners was a notice to the county, x Am. & Eng. Enc. Law, 1146. Stafford was not acting for the board in reference to-the bond when he suggested an erasure. The board was not in session and he was acting in his private business. He wished to withhold from the board the fact that Jones could not justify on the bond. Under such circumstances, notice to the agent is never notice to the principal. 1 Am. & Eng. Enc. Law, X145 (note 2). On the trial a full hearing was had and all facts either conceded or settled by the jury. This appeal presents questions of law only. Under such circumstances no new trial is required.</p> <p>Allen V. Bank, 120 U. S. 20; Roberts v. Corbin, 28 la. 355;: Marquart v. Marquart, 12 N. Y. 336. Swift v. Agnes, 33 Wis. 228.</p> <p>The alteration complained of was made before the delivery and approval of the bond. A county officer is not authorized, in behalf of the county, to make an alteration in the bond given to the county,, or to release surety from such bond. The power of the county commissioners is exhausted by the approval of the bond. An alteration by them has the same effect, and no greater, than an alteration by a stranger. Hunt v. Gray, 35 N. J. L. 227, Bigelow v. Stelfen, 35, Vt. 519; State v. Berg, 50 Ind. 496; Me dim v. Platt County, 8 Mo. 235; State v. McGonigle, 8 L. R. A. 7339, 13 S. W. Rep. 758. The question is whether the bond is the deed of the sureties. The doctrine of spoilation has nothing to do with the controversy. State. v. McGonigle, 13 S. W. Rep. 758; Renville County v. Gray, 61 Minn. 242, 63 N. W. Rep. 635; State v. Blair, 32 Ind. 313; Cheek v. Nall, 17 S. E. Rep. 80; State v. Churchill, 3 S. W. Rep. 352 and' 880. The bond must be delivered before the liability of the sureties-is affixed. The bond which the sureties executed was not delivered and the bond approved was not the one signed by them. People-v. Kneeland, 31 Cal. 288; State v. Polk, 7 B'lackf. 27; Bracken County v. Daum, 80 (?) 388; Howe v. Peabody, 2 Gray 556-Fairhaven v. Cow gill, 8 Wash. 683, 36 Pac. Rep. 1093; Smith v.. U. S. 2 Wall. 219, 17 L. Ed. 788. The bond was strictly statutory. It showed in its recitals that it was a public depository bond, provided for in § 1941, Rev. Codes. The statute is mandatory and the presentation of a bond in compliance with § § 1941 and 5319, Rev-Codes, was jurisdictional to the action of the commissioners. The full number of sureties obtained was required to secure the approval. Cass C'ounty v. American Exchange State Bank, 9 N. D. 363-267, 83 N. W. Rep. 12. Each surety who signed could rely upon the agreement implied by law, that the persons who signed 01- who signed the bond as co-sureties with him would be liable to him in contribution in case of loss. It is not sufficient that he may sustain no injury by the change of the contract or that it may even be for his benefit; a surety has a right to stand upon the very terms of his contract. Miller v. Stewart, 9 Wheat. 703; Smith v. U. S. 2 Wall. 219, 17 L. Ed. 792; Northern Light v. Kennedy, 7 N. D. Rep. 146; § 4651, Rev. Codes; State v: Churchill, 3 S. W. Rep. 357; State v. Allen, 10 So. Rep. 473. Bullamore was released because he signed the bond while Jones’ name was upon it as surety, and the erasure was made without his knowledge or consent/ Farnham v. Cowgill, 36 Pac. Rep. 1093; Hessell v. Johnson, 30 N. W. Rep. 209; State v. Findley, 14 S. W. Rep. 11 x; Smith v. Weld, 2 Pa. St. 54; Cass County v. American Exchange State Bank„ 9 N. D. Rep. 267, 83 N. W. Rep. 12. The erasure of Jones’ name by drawing through it a red ink line was patent on the face of the bond at the time it was presented to the board for approval and amounted to constructive notice to the board. § 5118, Rev. Codes; State V; Allen, 10 So. Rep. 473; 16 Am. & Eng. Ene. L. 792; State v. McGonigle, 13 S. W. Rep. 578. Winslow was the agent of the sureties only for the purpose of getting a sufficient number to sign to comply with the statutes and had no authority to release any person who signed the bond as surety, or to change in any manner the obligation of any person who should sign as surety without his consent. City of Fairhaven v. Cowgill, 36 Pac. Rep. 1095; State v. McGonigle, 13 S. W. Rep. 758; State v. Craig, 12 N. W. Rep. 301. Stafford, one of the members of the board present at the meeting of the approval of the bond, had actual knowledge of the fraud on the other sureties. The corporation for which he acted is affected by his knowledge. Bank v. Dennis, 2 Hill, 451 j National Savings Bank v. Kushman, 121 Mass. 490; Innerarity v. Merchants’ State Bank, 139 Mass. 332; Davis Imp. Co. v. Davis Iron Co., 19 Fed. Rep. 701; Clerks’ Savings Bank v. Thomas, 2 Mo. App. 367; Union Bank v. Campbell, 4 Hump. 394.</p>

<p>New Trial — Newly Discovered Evidence — Discretion of Court — Review on Appeal.</p> <p>Where an application to the district court for a new trial is based upon newly discovered evidence, and also upon the ground that the evidence adduced at the trial is insufficient to justify the verdict, the same is addressed to the sound judicial discretion of the trial court. In such cases the trial court will weigh the evidence, and its decision of the application cannot be governed by any fixed rules of law. Such discretion, however, is not a personal discretion of the judge, to be exercised capriciously or arbitrarily, but is a sound legal discretion.</p> <p>No Abuse of Discretion.</p> <p>On appeal from an order made in such cases the order will be affirmed unless it appears that there was an abuse of discretion in making the same, and in such cases the reviewing court will consider and weigh the evidence only so far as may be1 necessary to determine the question whether the trial court acted within its discretion.</p> <p>Discretion of District Judge.</p> <p>An order granting a new trial is in such cases rarely reversed, and then only upon grounds which are strong and convincing. Courts discriminate in favor of such orders because the same are not final, but are such as require a retrial of the facts and merits.</p> <p>Finding of District Court Sustained.</p> <p>Applying the rules of law as above stated, it is held in this case that the order of the district court granting a new trial must be affirmed.</p>

<p>Appeal — Grant of New Trial — Abstract—Sufficiency.</p> <p>Upon an appeal from an order granting a motion for new trial, which is made upon a statement of the case, it is. essential to a review of the order by this court that the appellant shall embody in his abstract such portions of the statement of the case as will establish the errors upon which he relies for a reversal and the particular grounds and errors upon which the trial court acted in making the order; and in case of a failure to do so the order will be affirmed.</p>

<p>Partner — Compensation—Agreement.</p> <p>In this state a partner is not entitled to any compensation for services in the regular, course of the partnership work, in the absence of an express contract therefor, or in the absence of conduct on the part of the partners, or of a course of dealing between partners, from which it can be fairly and justly implied that it was the understanding between them that compensation was to be given when unequal or unusual services were performed.</p> <p>Judgment Affirmed.</p> <p>The evidence examined, and it is held that the plaintiffs are not entitled to compensation under the facts shown.</p>

<p>Sale — Acceptance of Goods — Action for Price.</p> <p>One who contracts to purchase personal property of 'a particular kind and description is under no legal obligation to receive other or different property in satisfaction of his bargain, and, if the property tendered is not the property bargained for, he may reject it. When property which does not comply with the description in the contract of purchase is accepted and retained, the purchaser by such acceptance affirms the contract, and his sole remedy, in cases where a remedy survives the acceptance, is for breach of the contract.</p> <p>Damages for Breach.</p> <p>In an action to recover a balance due upon the purchase price of a set of books sold under a written subscription contract, which particularly described the books agreed to be purchased, and in which the defendant, who had accepted and retained the books, sought to recoup damages for defects, the court instructed the jury that, if the books substantially complied with the contract, they should return a verdict for the plaintiff for the full amount of the purchase price. Held error, for the reason that only by a complete performance by the plaintiff could he avoid liability for a breach unless there was a waiver. Held, further, that the erroneous instruction was without prejudice, for the reason that the -jury in fact found that there was not a substantial compliance, and awarded damages to defendant for the defect alleged.</p> <p>Verdict Sustained.</p> <p>It is held that the trial court did not err in refusing to direct a verdict for defendant, or in ruling on evidence, or in denying defendant’s motion for new trial on the alleged insufficiency of the evidence to justify the verdict. .</p>

<p>Appeal from District Court, Cass County; Pollock, J.</p> <p>Action by Jennie B. Angelí against Cass County and another. Judgment for defendants, and plaintiff appeals.</p> <p>Statute, Chap. 161, Laws 1901, is a general statute and is not a uniform operation. It is a law for the collection of delinquent taxes. Its title declares it to be an act to enforce the payment of taxes. Under § 2 the list filed by the auditor must contain all real estate against which there appears to be any taxes charged for the year 1896 or any prior year or years. Also if any piece shall have been sold to the county at the sale for 1895 or 1896 the list shall include each year’s taxes for the years subsequent to 1896, except as to the taxes of 1896 and as to the limitation of the operation of the law to certain counties. The statute is a substantial re-enactment of Chapter 67, Laws 1897. The provisions of the statute are identical with the laws of Minn. 1881, Chap. 35, § 1, and Laws of Minn. 1893, § 1, Chap. 150, construed by the Minn, court. Crosweil v. Benton, 54 Minn. 264, 55 N. W. Rep. 1125. By these provisions the legislature voluntarily surrenders all title, right or lien which the state had theretofore acquired under tax sales of land bid off for the state or county, whether such sales were valid or invalid. McHenry v. Kidder County, 8 N. D. 418. The statute in question is a general law. The constitution requires that it should be, (§ 176, Const.), and prohibits its special laws for the collection of taxes. § 69, Subd. 23, Const. . The statute must have a uniform operation in all parts of the state where are found the objects of the legislation. §11, Const.; State v. Bargus, 53 Ohio St. 94, 53 Am. St. Rep. 628; Vermont L. & T. Co. v. Whithed, 2 N. D. 93; Duluth Banking Co. v. Koon, 84 N. W. Rep. 337. The statute is not a uniform operation because its title limits its operation to those counties wherein proceedings under Ch. 67, Laws 1897, were not instituted, or where such proceedings were defective. Vermont L. & T. Co. v. Whithed, 2 N. D. 94; Duluth Banking Co. v. Koon, 84 N. W. Rep. 337; McHenry County v. Kidder County, 8 N. D. 413. Classification by counties is permissible only when it has reference to, is connected with, or affects some function of local county government. Weinman v. Ry. Co., 12 Atl. Rep. 288. The act is broader than its title. The entire subject of legislation is not included in the title, but a portion of it is specifically excluded therefrom. ¡5 61, Const.; Cooley on Constitutional Limitations, 177; Sutherland’s Statutory Construction, 87; State v. Nomland, 3 N. D. 432.</p> <p>Chapter 67, Laws 1897, was not available for more than one effort for its enforcement in the same county. It did not stand to be used at any time at the discretion of the county officials; it was available for a reasonable length of time and not indefinitely. Emmons County v. Lands of First Nat. Bank, 9 N. D. 583, 84 N. W. Rep. 379; Cass County v. Security Inv. Co., 7 N. D. 528, 75 N. W. Rep. 775. Certain counties proceeded under this act and the proceedings were upheld by this court. Wells County -v. McHenry County, 7 N. D. 246; Emmons County v. Lands of First Nat. Bank, 9 N. D. 583.' It is not the form but the effect of a statute which determines its special character. Edmonds v. Herbrandson, 2 N. D. 270. A public law of universal interest, embracing all the people of the state or all of a certain class of citizens and not limited to any particular locality is a general and not a special law. Vermont L. & T. Co. V. Whithed, 2 N. D. 82. The constitutional requirement that all laws of a general nature should have a uniform operation is satisfied if the benefits and burdens fall equally upon all members of the class upon which it operates. Vermont L. & T. Co. v. Whithed, 2 N. D. 82. A classification by the legislature must be natural and not artificial. It must stand upon some reason. Edmonds v. Herbrandson, 2 N. D. 270; Plummer v. Borsheim, 8 N. D. 565. Where a general law uniform in its operation is required, this law is none the less general and uniform because it divides the subjects of its operation into classes and applies different rules to the different classes. Nichols v. Walter, 33 N. W. Rep. 800. A classification of legislation should' be based upon some operation under reasons suggested by necessity. Cobb v. Bord, 42 N. W. Rep. 396; State v. Hamre, 42 N. J. Laws, 439; Louisville Ry. Co. v. Wallace, 11 L. R. A. 787. Law are general and uniform, not because they operate upon every person in the state, for they do not, but because every person who is brought within the relations and circumstances provided for is affected by the laws. People v. Wright, 80 111. 388; Hawthorne v. People, 109 111. 302; McAunich v. Ry. Co.. 20 la. 343; Iowa, etc., Co. v. Soper, 31 la. 116; Buck-low v. Ry. Co., 64 la. 603; Central Trust Co. v. Sloan, 65 la. 655; Honoré v. Home Nat. Bank, 80 111. 489. Chapter 67, Laws 1897, relates only to real property taxes delinquent in the year 1895 and prior years. It waived all right arising to the state or county on account of prior sale or forfeiture, and only retained the right to the tax and its lien upon the property upon which assessed and levied. McHenry County v. Kidder County, 8 N. D. 413. While a statute must stand or fall by its opration, rather than by its mere form, yet, in passing upon the constitutionality of a statute, the court can judge of its operations only through facts of which it can take official notice. The court cannot take testimony to determine the operation of a statute and thereby declare it unconstitutional. State v. Nelson, 26 L. R. A. 317. A classification made by the act in question is upon necessary and constitutional lines; it is of a general nature and has o uniform operation. It is not local or special. State v. Nelson, 26 L. R. A. 317; Sutherland’s Statutory Construction, 152, note 3.</p> <p>Chapter 161, L. 1901, conflicts with the provision in the state constitution that all laws of a general nature shall have a uniform operation and that the legislative assembly shall not pass local or special laws for the assessment or collection of taxes. Vt. L. & T. Co. v. Whithed,, 2 N. D. 82; Plummer v. Borsheim, 8 N. D. 565; Edmonds v. Herbrandson, 2 N. D. 27; State v. Nomland, 3 N. D. 427; Divet v. Richland County, 8 N. D. 65; Sutherland’s Statutory Construction, § 116-128.</p>

<p>Life Insurance Policy — Forfeiture.</p> <p>A life insurance policy contained the following provision: “This policy shall not take effect unless the first premium is actually paid while the insured is in good health.” The policy was issued on September 4, 1900, upon an application dated August 23d. The policy was delivered to a third party on September 15th, for delivery^ to the insured, at the request of the insured, said third party having paid the premium at the request of the insured. On September 28th the insured died from a sickness claimed to have existed before September 15th. The premium paid on September 15th to the agent was received at the main office on October 12th. The company had no notice until about October 15th, and after insured’s death, of any change in insured’s health since he made his application for insurance. Held, that the company is entitled to interpose such defense without a tender or payment back 'of the premium.</p> <p>Waiver.</p> <p>Held, further, that receipt and retention of premiums with knowledge of forfeiture of policy or of defenses against an action on the same is ordinarily a waiver of such forfeiture or defense.</p> <p>Return of Benefits.</p> <p>Held, also, that the rule in equity actions to cancel or annul contracts, that the party moving must return everything of value received pursuant to the contract, is not applicable to the facts of this case.</p> <p>Evidence — Error.</p> <p>On the trial an answer was allowed to the following question, duly objected to: “Did the defendant corporation, "* * * or any one of them, pay back to you the $53.24?” Held prejudicial error for which a new trial will be granted.</p>

Action by the First National Bank of Fargo against the Minneap>olis & Northern Elevator Company. Judgment for plaintiff, and defendant appeals. The acts of a former general agent within the scope of his original authority will, notwithstanding it revocation, continue to bind the principal to those parties who have been and still are dealing with him in good faith in reliance upon his former authority until they have had notice of its revocation.

<p>Appeal from District Court, Cavalier County; Kneeshaw, J.</p> <p>Action by E. I. Donovan against H-. D. Allert and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Nelson County; Fisk, J.</p> <p>Action by the J. B. Streeter, Jr., Company against Marit Fredrickson and another. From a judgment for plaintiffs, defendants appeal.</p>

<p>In the matter of the admission of George C. Oimstead to the bar.</p>

Application by the state, on the relation of F. T. Granvold, for a writ of mandamus to E. F. Porter, secretary of state. R. A. Fox and others intervene.

<p>Application by the state, on the relation of C. W. Buttz, for writ of mandamus to A. A. Liudahl, county auditor of Benson county,</p> <p>N. D.</p>

<p>Application by the state on relation of P. E. Byrne for an injunction against Peter Wilcox and others.</p>

<p>Appeal from Part of Judgment.</p> <p>In this action a judgment was entered in the district court, which as to one feature was wholly favorable to the defendant and unfavorable to the plaintiff, and as. to another feature was wholly favorable to plaintiff and unfavorable to the defendant. The plaintiff attempted to appeal to this court from said judgment, and served a notice of appeal and an undertaking upon respondent’s counsel. The notice of appeal is set out in the opinion, and shows upon its face that the appeal was attempted to be taken from one, and only one feature or portion of the judgment, viz., that which was adverse to the plaintiff. Held, under the rule established in Prescott v. Brooks, (N. D.) 90 N. W. Rep. 129, that the attempted appeal was abortive.</p>

<p>Appeal from District Court, Nelson County; Fisk, J.</p> <p>Action by E. E. Wheeler against Ed. Castor and others. Judgment for plaintiff. From an order setting aside the same, he appeals.</p>

Application by the state, on the relation of George J. Walker, for leave to file an information in the nature of quo warranto against McLean county, N. D.

<p>Statute — Amendment.</p> <p>When a particular section of a statute is amended by retaining some of the provisions of the original section without change, and complete in themselves, and omitting other provisions which in no way affect the parts retained, and there is no express repeal of the original section, the provisions of the original section which are retained will not be deemed to have been repealed and re-enacted, but to have been continued in force from their first enactment, with such modifications as. have been made by subsequent acts; and the omitted portions only will be deemed to be abrogated and repealed by the amendment.</p> <p>Statute — Repeal—County Treasurers.</p> <p>Construing chapter 149, Laws 1901, which in terms amends section 2496, Rev. Codes 1899, which section was enacted as a part of chapter 102, Laws 1897, and in part provides for the payment by county treasurers of penalties and interest collected on city taxes to city treasurers and in part to the county treasurers’ commissions upon such collections, it is held that the amendatory act only repeals that part of said section which authorizes, county treasurers to retain a commission, and that the remaining portions of said section were in ho way affected by the amendment.</p> <p>Payment of .Penalties,</p> <p>Held, further, that said amendatory act did not, by implication, repeal section 1260, Rev. Codes 1899, which was enacted in chapter 4, Laws 1899, and modifies section 2496, and provides that all interest and penalties, except on special assessments, shall belong to the counties collecting them.</p>

<p>Quieting Title.</p> <p>It is held, upon a review of the entire case in this court, in an action to quiet title to real estate, that the finding of the .trial court that the plaintiff is the owner of the land in controversy is fully sustained by the evidence.</p> <p>Lost Deed.</p> <p>One who relies upon a lost deed to sustain his title to real estate must establish its original existence, its loss, and the material parts thereof, by clear and convincing evidence.</p>

<p>Contract to Sell Realty — Authority of Agent.</p> <p>In this state, under the provisions of sections 3887, 3960, Rev. Codes, it is essential to the validity of a written contract for the sale of real property, which is signed by an agent of the vendor, that the authority of such agent to execute it shall be in a writing subscribed by the principal.</p> <p>Agent’s Power to Sign.</p> <p>The ordinary .authority of a real estate broker with whom lands are listed for sale does not extend to signing a contract of sale, and this is true whether the authority of the broker is conferred by writing or by parol. The authority to execute a contract of sale is an additional authority. It follows, therefore, that when a real estate owner executes and delivers a written authority for the sale of real estate to real estate brokers, and the instrument confers no further or additional authority than is common to such brokers, they have no authority to sign contracts for the owner. It is held that the written instrument set out in the opinion conferred upon the defendant’s agents only the ordinary authority of real estate brokers, and did not authorize them to sign the defendant’s name to the contract of sale which is sought to be enforced in this action.</p>

<p>Appeal from District Court, Richland County; Fisk, Special J.</p> <p>Action by J. H. Little and Katie A. Little against Fred. Worner and others. Judgment for defendants, and plaintiffs appeal.</p>

Otto W. Thoemke was convicted of maintaining a place wherein intoxicating liquors were sold in violation of law, and appeals.

<p>Sale — Action for Price — Evidence.</p> <p>The plaintiff, who is a contractor and dealer in cut stone, sues to recover a balance claimed to be due upon an alleged sale of stone curbing delivered to the defendant, to be used in- connection with the latter’s contract for paving the streets of Grand Forks. The defendant denies having purchased the curbing, and alleges that his contract with the plaintih was merely to take the curbing from the cars and set it in place on the streets. The case was tried to the court without a jury. The trial court found that there was no sale of the curbing to the defendant, and that the defendant’s contract was merely one of employment, as alleged by him, and rendered judgment .accordingly. Upon plaintiff’s appeal from the judgment, and a review of the entire case in this court, the findings and conclusions of the trial court are sustained, and the judgment affirmed.</p>

<p>Appeal from. Ditsrict Court, Cass County; Pollock, J.</p> <p>Action by O. P. Nokken against the Avery Manufacturing Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Discretion of Court — Reversal only for Error or Abuse.</p> <p>The granting or refusal of a preliminary injunction, as well as the dissolution of the same, rests in the sound judicial discretion of the trial court, and the exercise of such discretion will not be reversed or controlled by this court except for error or abuse.</p> <p>Preliminary Injunction — General Rule.</p> <p>The general rule is that a preliminary injunction will not be granted for the purpose of taking property from the possession of one person and placing it in the possession of another.</p> <p>Order Dissolving Temporary Injunction Properly Made.</p> <p>It is held that the order of the trial court dissolving a temporary-injunction issued in this action was properly made, and is therefore affirmed.</p>

Action by Kernahan Dickson against Elizabeth M. Dows. Edwin L. Dows, by H. W. Gearey, his guardian, intervened. From an order refusing a motion to set aside an order permitting the intervention, plaintiff appeals.

<p>Deed Absolute in Form — When a Mortgage.</p> <p>Action to have a deed of warranty, which is absolute in form, adjudged to be a mortgage in effect, and to redeem from the same as a mortgage. The complaint alleges, in substance, that the defendant loaned the plaintiff -the sum of $302 and that to secyre such loan it was agreed that plaintiff should execute and deliver the deed of warranty in question, and that such deed was executed and delivered with the express agreement that, as between the parties thereto, it should operate as a mortgage to secure the loan. The complaint further avers that' in making the loan and in entering into said agreements the defendant was represented by one M. A. Wipperman as defendant’s agent. Evidence examined, and held that plaintiff and defendant did not, at- any time, or in any manner, agree to, accept the deed in question as a mortgage to secure the alleged loan, and that no such loan was ever made in fact.</p> <p>Agreement by Agent.</p> <p>Held, further, under the evidence, that said M. A. Wipperman did not, at any time in question, act in the premises as the agent of the defendant; nor did he, as such agent, agree to any loan to plaintiff, nor did he ever agree, in behalf of the defendant, that the deed should operate as a mortgage.</p> <p>Evidence — Intention of Parties — Parol Defeasance. „</p> <p>Held, further, under the evidence, that the deed, when delivered, was intended to operate as a deed absolute, and that the evidence to show a parol defeasance falls short of that high degree of proof required by an established rule of evidence in this class of cases. Jasper v. Hazen,_4 N. D. 1, 58 N. W. Rep. 434, 23 L. R. A. 58, followed and applied.</p>

<p>Appeal from District Court, Grand Forks County; Fisk, J.</p> <p>Action by the Standard Sewing Machine Company against Jeremiah R. Church and George Salisbury. Judgment for defendants, and plaintiff appeals.</p>

<p>Evidence — Objection Properly Sustained.</p> <p>Onthe trial of an action which involved the issue whether a promissory note was given for a valuable consideration, or was given as an accommodation note, it became a material question as to what transpired between the parties at the time the note was executed and an arrangement made, under which certain notes endorsed by Fuller ■& Co., and deposited with the bank as collateral security, were turned over to a collection agency for collection. While testifying on that issue, the following question was asked a witness for the plaintiff, and an objection thereto sustained, viz: “Did the bank exercise any ownership over those notes?” Held, that the objection was properly sustained, as it called for a conclusion, and not for a fact.</p> <p>Objection Overruled — Held Error.</p> <p>Questions were propounded to the defendant as to whether he had ever received these notes, or proceeds of these notes, or had anything to do with them, and an objection thereto overruled. Held n'ot error.</p> <p>Harmless Error.</p> <p>Held, further, that error cannot be predicated on a ruling sustaining an objection ’to a question when the answer called for is thereafter fully given by the witness.</p> <p>Verdict Sustained by Evidence.</p> <p>The evidence is considered, and it is held that the verdict was sustained by competent evidence.</p>

<p>Appeal from District Court, Cavalier County; Kneeshaw, J.</p> <p>William Barry was convicted of murder, arid appeals.</p> <p>Clarence Hears had known Barry since 1892. Had business relations with him in 1898 and 1899. Saw him frequently since 1898, and had talked with him. Saw him on January 3rd, and recounted his observations to the jury. It \yas error to exclude his opinion as to defendant’s sanity.' Bolling v. State, 16 S. W. Rep. 658; Jamie-son v. Peo., 34 N. E. Rep. 486; Peo. v. Sanfofd, 43 Cal. 29; Peo. v. Wredden, 59 Cal. 392; Peo. v. Lewis, 22 Pac. Rep. 241. In his instruction the court read to the jury § 6814, Rev. Codes, describing persons incapable of crime, and omitted to read in that section Su'bd. 6 thereof, as follows: “Persons who commit an act or make an omission, otherwise criminal or punishable, without being conscious thereof.” At the close of the case the court’s attention was called to this omission by a request that he charge the jury in the following language: “If you find that the defendant was not conscious of the act which resulted in the death of Andrew Hallem, you must acquit the defendant.” This request was refused because not presented in time, and as substantially covered by the general charge. § 6814, Rev. Codes. The court erred in charging the jury as a matter of law “that if you believe the evidence of the prosecution as to the killing, that the defendant is guilty of murder as charged in the information or he is innocent of any crime.” Kearney v. Cooper, 17 Pac. Rep. 782; Peo. v. Webster, 39 Hun. 398, 13 N. Y. Supp. 414. The charge should be free from intimating any opinion as to the weight of the evidence. State v. Whitney, 7 Ore. 386; Benedict v. State, 14 Wis. 424; Snyder v. State, 59 Ind. 105; State v. Bidge, 84 N. W. Rep. 518; Peo. v. Lington, 32 Hun. 461; Peo. v. Cogwill, 29 Pac. Rep. 228; Stokes v. Peo., 53 N. Y. 164; McKenna v. Peo., 81 N. Y. 360; Rice v. State, 3 Tex. App. 451; Peo. v. Johnson, 39.Pac. Rep. 622; 14 Cent. Dig. § 1732. The court erred in instructing the jury that “in this case there is very little comment required from the court except upon one question, the others being hardly matters of dispute. That the defendant struck Mallem is abundantly proved, if you believe the testimony of the state in this case. That the wound caused his death has been testified to by the surgeons most competent to speak, and they are uncontradicted.” §§ 8176, 8217, Rev. Codes; State v. Asbury, 37 La. Ann. 124; 14 Cent. Dig. § 1731; Peo. v. Dick, 34 Cal. 663; Peo. v. Roberts, 55 Pac. Rep. 137; State v. Lightfoot, 78 N. W. Rep. 41; State v. Whitney, 7 Ore. 386; Peo. v. Lee, 15 Pac. Rep. 322; State v. Porter, 38 N. W. Rep. 514; State v. Hecox, 83 Mo. 531; State v .Austin, 80 N. W.. Rep. 303; State v. Mackey, 6 Pac. Rep. 648; Ty. v. Kay, 21 Pac. Rep. 152. The court’s instruction that a number of witnesses testified that defendant had admitted forming an idea to kill the deceased, and that he struck him on the neck with a knife — causing his death — was also erroneous as expressing an opinion as to the weight of evidence. Snyder v. State, 59 Ind. 105; Brewster v. State, 63 Ga. 639; Peo. v. Kindleberger, 34 Pac. Rep. 852; Thomp. Tr. § 2330. It was also erroneous as singling out certain evidence, and ignoring other evidence of equal importance. Logg v. State, 92 111. 598; Hoge v. Peo., 6 N. E. Rep. 796; Williams v. State, 65 N. W. Rep. 783; Peo. v. Clark, 62 N. W. Rep. ix 17. The court erred in instructing the jury that the defense of insanity has been abused and brought into discredit as the last resort in cases of unquestionable guilt, and that it has been an excuse to juries for acquittal when their own and public sympathy have been with the accused, especially when the provocation to homicide has excused it according to public sentiment. This language was calculated to prejudice the 'jury against the defense of insanity. It was an expression of opinion that the defendant was guilty and had resorted to an unwarranted defense. Simmons v. State, 62 Miss. 243; Dazvson v. State, 62 Miss. 241; 14 Cent. Dig., § 1837; Spencer v. State, 50 Ala. 124; Peo. v. Kelly, 35 Hun. 295; Walker v. State, 37 Tex. 366; Albin v. State, 63 Ind. 598, 14 Axn. St. Rep. 43, and note; Assam v. State, 23 N. E. Rep. 123. An instruction that assumes the exitsence of a fact which should be left to the jury for ascertainment, is erroneous, and is not cured by a general instruction that the jury are the exclusive judges of all questions of fact,‘and that the burden was on the state to establish the allegations of the indictment beyond a reasonable doubt. State v. Hatcher, 44 Pac. Rep. 584; Belt v. Peo., 125 111. 584; Cannon v. Peo., 30 N. E. Rep.</p> <p>1030. The court erred in instructing the jury that “while the accused party cannot make evidence for himself by his subsequent declarations, on the other hand he may make evidence against himself, and when these declarations amount to admissions against himself, they are evidence to be considered by the jury.” 1 Greelf. Ev., § 201; State v. Laliyer, 4 Minn., 281; State v. Young, 24 S. W. Rep. 1038; Blackburn v. State, 23 O. St. 146; State v. Martin, 28 Mo. 530; State v. Brooks, 12 S. W. Rep. 633; State v. Brown, 16 S. W. Rep. 406; Jones v. State, 25 Am. St. Rep. 715; Peo. v. Strong, 30 Cal. 151; Griswold v. State, 24 Wis. 144; Wharton’s Cr’im. Ev., § 688. To single out a party and discredit his testimony, to place him upon a different plane from that of other witnesses, to tell the jury, as was done in this case, that the testimony of the defendant should not be weighed by them, except by short measure, was unfair to the defendant and prejudicial to his rights. Unruh v. State, 105 Ind. 117; Flicks v. U. S., 150 U. S. 442; Peo. v. Pearsall, 15 N. W. Rep. 98 •,State v. White, 39 Pac. Rep. 160; State v. Nordstrom, 7 Wash. 506; Harris v. Peo., 82 111. 430; Peo. v. Van Eman, 45 Pac. Rep. 522; State v. Hoy, 86 N. W. Rep. 98; Ty v. O'Hara, x N. D. 30. The court erred in instructing the jury “that no verdict could safely be rendered upon the evidence of the accused party only, under such circumstances. If it were recognized, by such a verdict, that a man on trial for his life could secure an acquittal by simply testifying himself that he had committed the crime charged under a delusion, an inspiration, an irresistible impulse, this would be to proclaim an universal amnesty to criminals in the past, and an unbounded license for the future, and the courts of justice might as well be closed.” Greer v. State, 53 Ind. 420; State v. Bird, 8 N. E. Rep. 14; Buckley v. State, 62 Miss. 705; State v. Johnson, 16 Nev. 36; State v. Holloway, 23 S. E.. Rep. 168; Ryder v. Peo., no 111. 11; Newman v. Peo., 63 Barb. 630; Com. v. Pipes, 27 Atl. Rep. 839. Defendant’s request for an instruction to the jury “that if the defendant was not conscious of the act, he should be acquitted,” was not too late but in proper time. Preston v. State, 26 So. Rep. 736; Peo. v. Demasters, 39 Pac. Rep. 35; Brooks v. State, 23 S. E. Rep. 413; Peo. v. Garbutt, 17 Mich. 9.</p> <p>The witness Clarence Hears did not show himself qualified to give a non-expert opinion. He had a speaking acquaintance with defendant, only; didn’t see anything particular or out of the ordinary in his appearance on January 3rd, except that he was rubbing his hands and walking up and down with his head down. Rog. Exp. Test. 8; First Nat. Baiik v. Wirebach, 106 Pa. St. 37; Peo. v. Levy, 12 Pac. Rep. 791; State v. Crisp, 29 S. W. Rep. 172; O'Connor v. Madison, 57 N. W. Rep. 107; State v. Gaddis, 42 la. 268; Shaver v. McCarthy, 5 Atl. Rep. 614. To warrant an opinion as to sanity or insanity by a non-expert witness, some knowledge of the acts and conduct of the person whose sanity is questioned must appear. The facts stated should show a rational ground for an opinion, and show that the witness is qualified to give it. State v. Brooks, 4 Wash. 328; Prentiss v. Bates, 17 L. R. A. 494; Yanke v. State, 51 .Wis. 464; Woodcock v. Johnson, 36 Minn. 217; Foster v. Dickerson, 64 Vt. 233. The determination of the competency of this witness to give an opinion was within the discretionary power of the court. I Clevenger Med. Jur. 576; Peo. v. Levy, 12 Pac. Rep. 794; Peo. v. Pico, 62 Cal. 53; Colle v. State, 75 Ind. 513; Denning v. Butcher, 59 N. W. Rep. 569; Boorman v. Ass’ll., 62 N.'W. Rep. 934. It was not error to receive the opinion of John L. Robertson, the sheriff who made the arrest. Bolling v. State, 16 S. W. Rep. 661; Peo. v. Borgetto, 58 N. W. Rep. 328. The omission of the words “without being conscious thereof,” when the court read § 6814, Rev. Codes, to the jury, was clearly an inadvertence. His attention not having been called to it by an exception made at the time, and no request made upon the court to re-read the section or correct his omission, the error was waived. Peo. v. Kernagham, 14 Pac. Rep. 568 \ Benton V. State, 30 Ark. 335; Carroll v. State, 45 Ark., 548; West v. Ty., 36 Pac. Rep. 207; Peo. v. Olson, 22 Pac. Rep. 125; Peo. v. Barney, 47 Pac. Rep. 41; State v. Smith, 31 Atl. Rep. 206; State v. Potter, 15 Kan. 311; 8 Enc. PI. & Pr. 266, 288; n Enc. PI. & Pr. 217; Paulson v. Peo., 63 N. E. Rep. 144; State v. Montgomery, 9 N. D. 409; Peo. v. Hamm, 44 Cal. 100; Mason v. Peo., 2 Colo. 373; Lewis v. State, 16 S. E. Rep. 986; Barnett v. State, 100 Ind. 177; § 8176, Rev. Codes. Defendant’s request for an instruction that if he was not conscious of the act which resulted in Mallem’s death, he was entitled to an acquittal, having been presented to the judge too late, as shown by the bill of exceptions, was the same as if not presented at all. U. S. v. Gilbert, 25 Fed. Cas. 1287; Grubb v. State, 20 N. E. Rep. 257; Benson v. State, 21 N. E. Rep. 1109; State v. Rowe, 4 S. E. Rep. 506. And this feature of the law was fully and fairly covered by the court’s general -charge, hence no error could result to appellant by the omission. State v. McGahey, 3 N. D. 293; Dealey v. Elev. Co., 4 N. D. 269; State v. Kent, 5 N. D. 516; State v. Campbell, 7 N. D. 63. The court’s instruction that if the evidence was believed that the defendant was guilty of murder, or innocent of any crime, could not be prejudicial, because there was no evidence in the case making an instruction as to the lower degrees of murder or manslaughter necessary. Kerr on Homicide, § 526; State v. Kronstett, 61 Pac. Rep. 805; Peo. v. Estrado, 49 Cal. 171; Teal v. State, 68 Am. Dec. 482; State v. Downs, 3 S. W. Rep: 319; Peo. v. Littlejohn, 11 S. E. Rep. 639; State v. Rose, 4 S. W. Rep. 734; Love v. State, 11 Tex. App. 502; State v. Mears, 66 Mo. 13; Lewis v. State, 15 S. E. Rep. 697; Ragland v. State, 27 So. Rep. 987; Jackson v. State, 15 S. E. Rep. 677; Sanders v. State, 38 S. E. Rep. 841; Gardner v. Statej 17 S. E. Rep. 86; Rockmore v. State, 19 S. E. Rep. 32; Peo. v. Lee Gam, 11 Pac. Rep. 183; State v. Parigo, 45 N. W. Rep. 399; Strong v. State, 88 N. W. Rep. 772. The instruction challenged under this assignment is in the samé language as in the Guiteau case. U. S. v. Guiteau, xo Fed. Rep. 163; 3 Guiteau’s Tr., 2607, 2331, 2569; Teal v. State, 68 Am. Dec. 482; State v. Hall, 68 S. W. Rep. 344; Peo. v. DeGarmo; 76 N. Y. Supp. 477; Slate -v. Cole, 63 la. 700; State v. Jones, 64 Mo. 392; Peo. v. King, 25 Cal. 507; Jackson v. Pta/e, 15 S. E. Rep. 677; Peo. v. Cannon, 139 N. Y. 645. Appellant’s tenth, eleventh and twelfth assignments of error are directed to expressions of opinion by the court as to the weight of the evidence. The instructions éxcepted to were taken literally from the Guiteau case. U. S. v. Guiteau, 10 Fed. Rep. 163. The sole issue in the case was upon the question of défendant’s insanity. The defendant became a witness in his own behalf, but did not deny the killing or any circumstances proven by the state, connected therewith. He produced no evidence in contradiction of any of the circumstances proven by the state. He admitted a dream-like memory, of the killing, and said that Mallem would forgive him if they could meet., Tlxe defendant having failed to deny material facts testified against him, the inference was as adverse as against a party to a civil action. State v. Anderson, 1 S. W. Rep. 141; Anderson v. State, 4 N. E. Rep. 63; Stover v. Peo., 56 N. Y. 315; Peo. v. O’Brien, 6 Pac. Rep. 695; State v.. Wit ham, 72 Me. 533. Where there is and can be no other deduction from the evidence than the one stated by the court, the rights of the defendant are not prejudiced by such instructions as were here given. Sawson v. State, 33 Tex. 496; Beers v. Ry. Co., 19 Conn. 566; State v. Smith, 49 Conn. 388; Beurmann v. Van Burén, 44 Mich. 496; Peo. v. Carey, 84 N. W. Rep. 1087; Gregg V: Mallet, 15 S. E. Rep. 937; State v. Fountain, 81 N. W. Rep. 162; State v. Huff, 40 N. W. Rep. 720. The court repeatedly instructed the jury that it was their province and not the province of the court to decide the facts; that if at any time he seemed to express an opinion on the facts, that it was not binding upon the jury, saying: “I want to particularly reiterate here that while I have stated and commented upon a part of the evidence in the case, if I at any time seem to express any opinion upon it, which I did not, or do not design to do, you are the sole and exclusive judges of all such facts, and the weight of the evidence and credibility of the witness, and you must draw your own conclusions from the evidence. You are the sole and exclusive judges of all questions of fact arising in the case. Your verdict must be arrived at from a consideration only of the evidence.” In the light of this caution to the jury the expressions would be deemed advisory only, and not prejudicial. § 8217, Rev. Codes; 11 Enc. PI. & Pr. 91; Peo. v. Cannon, 139 N Y. 645; Johnson v. Com., 85 Pa. St. 54; State v. Meshek,. 61 la. 316; Peo. v. Zachello, 60 N. E. Rep. 1051; Peo. v. Hawkins, 64 N. W. Rep. 739; Peo. v. Warren, 81 N. W. Rep. 360; State v. Fountain, 81 N. W. Rep. 162; State v. Riley, 18 S. E. Rep. 168; State v. Burton, 18 S. E. Rep. 657; State v. McIntosh, 13 S. E. Rep. 1033; State v. McLean, xo S. E. Rep. 518; Taylor v. State, 24 So. Rep. 689; State v. Mitchell', 6 So. Rep. 785; Duffy v. Peo., 5 Parker’s Crim. Rep. 321; Hemmingway v. State, 8 So. Rep. 317; Peo. v. Carey, 84 N. W. Rep. 1087; State v. Rose, 47 Minn. 47; Peo. v. Johnson, 38 Pac. Rep. 91; Peo. v. Speigel, 28 N. Y. Supp. 1040, 38 N. E. Rep. 284. Our statute permits the court to sum up the evidence, and was passed in the light of the foregoing cases, the rule of which it establishes for this state. § 8217, Rev. Codes; Com. v. Dougherty, 21 Atl. Rep. 228; 11 Enc. PI. & Pr. 195, and note. In some jurisdictions where the evidence for the state was unchallenged, as in this case, it is permissible for the court to advise conviction. Taylor v. State, 25 So. Rep. 689; Peo. v. Richmond, 26 N. E. Rep. 770; Peo. v. Ackerman, 45 N. W. Rep. 367; Peo. v. Warren, 81 N. W. Rep. 361; Peo. v. Neumann, 48 N. W. Rep. 291. It was error for the court to instruct the jury to the effect that if they believed the testimony for the state, the homicide was committed with malice aforethought, providing defendant was capable of criminal intent; and that there was no denial made by the defendant of having committed the act. Wooten v. State, 5 So. Rep. 39, 1 L. R. A. 819; U. S. v. Guiteau, 10 Fed. Rep. 163; State v. McLean, 10 S. E. Rep. 518; Ettinger v. Com., 98 Pa. St. 338; Peo. v. Hazvkins, 64 N. W. Rep. 739; State v. Walker, 78 Mo. 380; State v. Cleaves, 8 Am. Rep. 422; State v. Anderson, 1 S. W. Rep. 141; Stover v. Peo., 56 N. Y. 315; Bo gland v. State, 27 So. Rep. 983; Com. v. Eckerd, 34 Atl. Rep. 306. Malice is presumed from the killing, and it was proper for the court to so charge. Peo. v. Kernagham, 14 Pac. Rep. 568; Lewis v. State, 15 S.. E. Rep. 697; Butler v. State, 19 S. E. Rep. 51; Cathcart v. Com., 37 Pa. St. 112; Vance v. State, 9 S. E. Rep. 945; Com. v. Drum, 58 Pa. St. 17; Dorsey v. State, 35 S. E. Rep. 651. The cases cited by appellant to the point that a grouping of the facts on one side is prejudicial are all cases where there was a conflict of evidence. It is apparent that no objection can arise to a grouping of facts where there .is no dispute or conflict as to the facts stated. Beers v. Ry. Co., 19 Conn. 570; Keyes v. Fuller, 9 111. App. 528; Peo. v. King, 27 Cal. 513; Peo. v. Dick, 34 Cal. 663; Peo. -v. Burns, 30 Cal. 207; State v. Garrand, 5 Ore. 220; State v. Whitney, 7 Ore. 393; 10 Enc. PI. & Pr. 168. The right to state the evidence includes the right to state that there is no evidence as to particular facts. Peo. v. Dick, 34 Cal. 663; Driskill v. State, 7 Ind. 338; Barker v. State, 48 Ind. 167; Peo. v. Fanning, 131 N. Y. 665; Whiting v. State, 27 N. E. Rep. 99; State v. Moorman, 2 S. E. Rep. 621; Lovejoy v. U. S., 128 U. S. 171. It is not proper ground for exception that the court stated a part of the testimony on a certain point without stating all. Allis v. U. S., 15 Sup. Ct. Rep. 38; Hozvell v. Peo., 5 Hun. 620, 6q N. Y. 607; U. S. v. Babcock, 24 Fed. Cas. 14486; Brown v. Com., 78 Pa. St. 122. The giving of an argumentative instruction cannot constitute reversible error in such a case, because the jury cannot be misled by it. McQueen v. State, 10 So. Rep. 433; Peo. V. Penzvick, 45 Cal. 287; Peo. v. Donahue, 45 Cal. 321; Mackey v. Peo., 2 Colo. 13; Pascal v. State, 3 S. E. Rep. 2; Case v. State, 17 So. Rep. 379; State v. Brooks, 30 Pac. Rep. 147; Edelhoff v. State, 36 Pac. Rep. 627. The assignment as to the court’s instruction as to the abuse of the defense of insanity is not well taken. U. S. v. Guiteau, 10 Fed. Rep. 163, 3 Crim. L. Magazine, 347; Sawyer v. State, 35 Ind. 86; Sanders v. State, 84 Ind. 148; Butler v. State, 97 Ind. 388; Peo. v. Kernagham, 14 Pac. Rep. 568; Com. v. Webster, 5 Cush. 295; McKee v. Peo., 36 N. Y. 113; Peo. v. Dennis, 39 Cal. 625; Peo. v. Bumberger, 45 Cal. 650; State v. Richards, 39 Conn. 595. The court’s instruction to the jury to satisfy themselves about the condition of the prisoner’s mind for a considerable period of time before the conception of the homicide entered into it, was not prejudicial, because the defendant testified on the trial that when his sister confessed to him, it worked on his. passions and he made up his mind to kill Mallem; that after thinking the matter over all night he decided to kill him. In view of this testimony, and there being no contradiction of the facts assumed,, excepting by the mere plea of “not guilty,” no error could result. Peo. v. McDowell, 3 Pac. Rep. 724; State v. Gray or, 16 Mo. App. 558, 1 S. W. Rep. 365; Kline v. State, 10 S. W. Rep. 225; Pe,o. v. Phillips, 11 Pac. Rep. 493; Peo. v. Lee, 14 Pac. Rep. 310; Davis v. Peo., 24 N. E. Rep. 192; Smith v. State, 28 Ind. ¿21; Brewer v. Com., 12 S. W. Rep. 672; Wesley v. State, 75 Am. Dec. 62; Hilt v. State, 60 N. W. Rep. 916; State V. Doziglas, 28 W. Va. 297; State v. Herold, 9 Kan. 194. Appellant cannot predicate error upon any of the instructions which assumed that Mallem was killed by accused, because, by the requests for instructions presented by appellant to the court, the court was asked to assume this fact. Having invited this construction of the evidence, he cannot complain of it now. Com. v. Lawless, 103 Mass. 425; Com. v. Brigham, 123 Mass. 248; Peo. v. Lopes, 59 Cal. 362; Com. v. Locke, 114 Mass. 288; Peo. v. Biggins, 3 Pac. Rep. 853; Tuller v. State, 8 Tex. App. 501; Hudson v. State, 13 S. W. Rep. 388.</p>

<p>Appeal from district court, Cass county; Pollock, J.</p> <p>Action by Willis Richmire against the Andrews & Gage Elevator Company. Judgment for defendants, and plaintiff appeals..</p>

<p>Specific Performance — Waiver of Conditions.</p> <p>Page and Foley entered into a contract for the sale of land, to be paid for in the proceeds of wheat raised on the land. Balances due on the contract were to draw interest at 8 per cent., payable annually at the office of Morton & Co., where proceeds of wheat ■crop were also payable. It contained no provision for payment in money. It also provided that the vendee should continuously occupy and improve the land, and farm it in a manner particularly specified in the contract. The contract also contained a provision that no assignment thereof should be valid or binding without written consent from Page. The contract was assigned by Foley, the purchaser, to Ross, who made a payment on the contract in money not derived from crops raised on the land; and Ross went into possession by a tenant, who raised potatoes on the land. Ross tendered the balance due on the cantract in money. Page refused to accept the tender, saying that he did not recognize Ross in the transaction. Held, under the evidence narrated in the opinion, and for reasons given therein, that Page had waived all violations of ' the terms of the contract by retaining moneys paid by Ross to Morton & Co. under circumstances charging Page with notice of the conditions under which it was paid.</p> <p>Assignment Given as Security no Defense.</p> <p>The assignment showed on its face that it was made to secure advances, and it also contained a provision that authorized Page, in positive terms, to convey to Ross when the conditions of the contract were' fully complied with. Held, that the fact that the assignment was given as security is no defense to Page, and does not entitle him to refuse to convey.</p> <p>Demurrer — Defect of Parties.</p> <p>The defendant demurred to the complaint because it did not state facts sufficient to constitute a cause of action. There was no demurrer on the ground that there was a defect of parties. The complaint showed on its face that the assignor of the contract to Ross was not a party to the action. Held, that the objection that the assignor. was not a party was waived, and could not thereafter be raised by answer.</p>

<p>Contracts — Alteration not. Materia .</p> <p>A writen order for a threshing, machine contained no provision for security on growing crops or on a secondhand engine. The machine company refused to deliver the machine unless such security was given. In order to get the possession of the machine for imediate use, the defendants gave such security, and the machine was delivered to the defendants. The order for the machine, as exhibited at the trial, had been changed so as to contain a provision that security should be given on such crops and engine. It is not shown when the alteration was made, nor by whom made. Held, that the alteration was not a material one, in view of the fact that the defendants had given such security, and received the machine uninfluenced by the contents of the order as changed.</p> <p>Agent’s Acts not a Waiver.</p> <p>The order for the machine provided that, in case the machine failed to work well, the company should be notified, at Racine, Wis., and the agent of whom the purchase was. made should also be notified. The company was not notified at the Racine office in any manner, but a general agent, who had no authority to waive any of the provisions of the contract, was notified by telephone that the machine would not work well,, and an expert was sent by him, pursuant to request, to remedy defects. The agent from whom the machine was purchased was also notified. Held, that such general agent’s acts, independent of any orders or communications from the plaintiff, was not a waiver of the terms of the order requiring the company to be notified at the home office.</p>

<p>Appeal from District Court, Cass county; Pollock, J. '</p> <p>Action by Otto Buchholz against Arthur E. Leadbetter and Anna Leadbetter. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from district court, Cass county; Pollock, J.</p> <p>Action by Ole Torreson against Mrs. O. N. Walla. Judgment for plaintiff, and defendant appeals.</p>

Action by the city of Fargo against Gordon J. Keeney and others to condemn land. Judgment set aside, and defendants appeal.

<p>Appeal from district court, Cass county; Lauder, J.</p> <p>Action by August Erickson and others against Cass county, the board of county commissioners of Cass county, and O. J. Olson, auditor. Judgment for defendants, and plaintiffs appeal.</p>

Action by Andrew Turnquist against the Cass county drain commissioners and others. Judgment for defendants, and plaintiff appeals.

<p>Appeal from District Court, Cass County; Charles A. Pollock, J.</p> <p>Action by A. F. Anderson against the Cass County Drain Commissioners and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Cass County; Charles A. Pollock, J.</p> <p>Action by Andrew Hagman against the Cass County Drain Commissioners and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Cass County; Charles A. Pollock, J.</p> <p>Action by Swan Monson against the Cass County Drain Commissioners and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Cass County; Charles A. Pollock, J.</p> <p>Action by Robert J. Percy, as guardian, against the Cass County Drain Commissioners and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Cass County; Charles A. Pollock, J.</p> <p>Action by Eric Peterson against the Cass County Drain Commissioners and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Cass County; Charles A. Pollock, J.</p> <p>Action by Ellen B. Potter against the Cass County Drain Commissioners and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Cass County; Charles A. Bollock, J.</p> <p>Action by James Thompson against the Cass County Drain Commissioners and others. Judgment for defendants, and plaintiff appeals.</p>

<p>In the matter of Leslie A. Simpson. Motion to reinstate attorney. Granted.</p>

<p>Appeal from District Court, Rolette county, D. E. Morgan, J.</p> <p>Action by Andreas Ueland, receiver of the Washington Bank, against Michael Dealy and S. A. Dealy. Judgemnt for plaintiff.</p> <p>Defendants appeal.</p>

<p>Application of the Duluth Elevator Company for a writ of certiorari to Frank White and others, members of the board of equalization.</p>

<p>State’s Attorney — Duty of.</p> <p>It is the duty of attorneys and counselors at law to maintain the respect due to courts of law, and to refrain from offensive language, either towards the court, counsel, or witnesses.</p> <p>Violation of Duty.</p> <p>A state’s attorney who renders professional asistance to a defendant in a criminal action violates his duties as state’s attorney and his duties as an attorney at law.</p> <p>Frequenting Gambling Place a Violation of Official Oath.</p> <p>A state’s attorney, who, on several occasions, enters a public gambling house, and bets money on a roulette wheel, or gambles for money there, .and wilfully refrains from informing and prosecuting the keeper of such place, is guilty of a -misdemeanor involving moral turpitude, as such failure to inform and prosecute such keeper involves the violation of an official oath and the violation of the express command of section 7243, Rev. Codes 1899.</p> <p>Justice of the Peace not Bound to Dismiss a Prosecution on Motion of State’s Attorney.</p> <p>A justice of the peace is not bound, as a matter of duty, to dismiss a prosecution of a criminal offense on motion of the state’s attorney, although such a course may, in the absence of-special circumstances or conditions known to him, be the better course to pursue.</p> <p>Official Misconduct — Sufficient to Warrant Disbarment.</p> <p>A state’s attorney of this state who neglects to prosecute offenders against the prohibition law, when the proofs of such violations are furnished to him, is, under section 7620, Rev. Codes, guilty of a misdemeanor, and, such misdemeanor is one involving moral turpitude, authorizing disbarment or suspension. In re Simpson, 83 N. W. 541, 9 N. D. 379, followed.</p> <p>Suspension from Practice — Evidence Sufficient.</p> <p>Evidence in this case considered, and found to justify the suspension of the defendant from practising as an attorney at law, by virtue of his license, for neglect to prosecute to judgment proceedings instituted by him for .the abatement of nuisances created by violations of the prohibition law of this state as enacted in.chapter 63, Rev. Codes 1899.</p> <p>Adverse Local Sentiment will not Excuse State’s Attorney from Good Faith Attempt to Perform his Duty.</p> <p>A state’s attorney is not excused from performing his official duties as state’s attorney because local sentiment .largely predominates in favor of the nonenforcement of laws that have been violated, nor is he .excused from in good faith attempting to perform such duties because convictions are difficut to obtain.</p>

Action by Samuel Eldridge against Joseph E. Knight to recover possession of personal property. Plaintiff recovered judgment in justice court for the possession of the property and for his costs. Defendant appealed from this judgment in proper time to the district court upon questions of both law and fact. The notice and undertaking for appeal were in proper form, and -were served upon plaintiff’s attorneys, and service thereof admitted by them in writing.

<p>Appeal from District court, Cass county; Charles A. Pollo'ck, J.</p> <p>Action by Isaac P. Clapp against Charlemange Tower, Jr., and others. Demurrer to answer sustained, and defendants appeal.</p>

Action by William Ely against John Rosholt. Judgment for plaintiff, and defendant appeals.

S. Lauder, J. Action by Frank N. Forman against Simon P. Healey and another. Plaintiff secured a temporary injunction to prevent threatened waste. Defendants subsequently, pendente lite, secured an order setting aside the injunctional order of plaintiff, directing the vacation of the disputed tract by plaintiff, and enjoining plaintiff from interfering with or obstructing defendants’ use and pccupation of the land. From this order the plaintiff appealed.

<p>Appeal from district court, Cass county; Charles A. Pollock, J.</p> <p>Action by Charles A. Morton and others against Cass county and another. Judgment for defendants, and plaintiffs appeal.</p>