Volume 12 — North Dakota Reports

Fisk, J. Action by F. S. Sargent, as receiver of'the Security Trust Company, against John E. Cooley and Minnie E. Clifford. Judgment for defendants, and plaintiff appeals. Proof to break down a mortgage must be “clear, satisfactory and specific, and of such a character as to leave in the mind of the Chancellor no hestitation or substantial doubt.” McGnin v. Lee, 10 N. D. 160, 86 N. W, 717.

Action by Melvina De Roche against Leon De Roche. Judgment for plaintiff, and defendant appeals. Granting of alimony is a statutory, not a common law right. Davol v. Davol, 13 Mass. 264. Alimony should be a sum payable from time to time, and in the absence of special agreement, or statutory authorization, should not be allowed in gross amount, or specific property. 2 Am. and Eng.

<p>Appeal from District Court, Grand Forks County; Fisk, J.</p> <p>Action by J- W. Ross against Alvin Robertson. Verdict for plaintiff. From an order granting a new trial, plaintiff appeals.</p>

Action by S. A. Ireland against Lillian Adair. Judgment as entered as by default. Defendant appeals. Complaint is not properly verified since its matter could not be-with the personal knowledge of plaintiff’s attorney; and so far as-affidavit of verification states, that he “believes it to be true,” it carries no force, since none of the matters contained in such complaint is alleged upon information and belief. The verification does not comply with section 5281, Rev. Codes.

Benjamin K. Climie was convicted of assault and battery, and appeals. Held: inasmuch as a battery is not included in an assault, an information alleging an aggravated assault and battery would be double and subject to a demurrer. The crime of simple assault and battery is necessarily included in the charge of aggravated assault and battery, defined in section 7145.

H. Winchester, J. Action by First National Bank of Casselton against William F. Holmes. From an order dissolving an attachment, plaintiff appeals- Under section 4993 Rev. Codes, providing that personal service of summons must be made, or publication commenced, within thirty days, means thirty days from the issue of the writ.

Cowan, J. Action by B. S. Brynjolfson against Andrew Osthus and others.. Judgment for plaintiff. Defendants appeal. A sale under a void foreclosure of a mortgage, has the effect of assigning the mortgage to the purchaser at such sale, and a sale by him has also the effect of assigning the mortgage.

Pollock, J. Action by A. E. Clendening, trustee of Thomas Kleinogel, bankrupt, against the Red River Valley National Bank of Fargo. Judgment for plaintiff. Defendant appeals. A bank may require written authority from a customer for payment, or transfer of his account, certainly when “subject to check,” before it is called upon to make a distribution of it. Aetna National-Bank v. Fourth National Bank, 46 N. Y. 82, p. 88.

Action by Margaret Ann Brown against the Chicago, Milwaukee •& St. Paul Railway Company to recover for personal injuries. Ver•dict and judgment for plaintiff, and defendant appeals. Section 3263, and subdivisions 5 and 6, of section 5252, afford ■methods of serving process on a foreign corporation. If a foreign corporation has empowered the secretary of state to receive service, then process, if not served upon him, must be served on a managing agent.

<p>Compliance with Statute Requisite to Lien.</p> <p>1. A thresher’s lien is purely of statutory creation, and one who would avail himself of it' must comply with the requirements of the statute creating it. Courts are not at liberty to extend it by construction to cover cases not provided for in the statute.</p> <p>Statement for Lien — Quantity of Grain Threshed Must Be Stated.</p> <p>2. Section 4824, Rev. Codes 1899, requires a lien claimant, as a condition prerequisite to perpetuating his lien, to file a statement in the office of the register of deeds showing, among other things, “the amount and quantity of grain threshed.” It is held, in an action to foreclose an alleged thresher’s lien, that the omission of the lien claimant to set forth in the statement filed by him the quantity of grain threshed by him for defendant was fatal to his lien, and that the trial court erred in directing a foreclosure of the same.</p>

Glaspell, J. Action by John G. Johns against Chris. Ruff. Judgment for plaintiff. Defendant appeals. One desiring to challenge the sufficiency of evidence to support a verdict must either— 1. Request that a verdict be directed in his favor, or 2. Except to the charge of the court submitting questions of fact to the jury, or 3. Move for a new trial on the ground of the insufficiency of the-evidence.

<p>Work and Labor — Evidence—Payment.</p> <p>Upon a trial de novo of an action to recover wages, it is held that the judgment for plaintiff should be sustained.</p>

<p>Substitution of Parties.</p> <p>Ludwig Friese and Wilhelmina Friese, his wife, made a contract with their son Albert whereby they sold to him all their real and personal property in consideration that he should make certain provisions for their support, pay all their existing debts, and pay them $1,000 in money in certain annual installments; the balance of this $1,000 after their death, to be paid to their sons Frank and Henry. The payment of this $1,000 was to be secured by mortgage on the land conveyed to Albert, but the mortgage was never given. The wife died, and Ludwig became dissatisfied with Albert's treatment of him, left Albert's home, and commenced a suit to enforce the contract. He died soon thereafter. In District Court the sous Frank and Henry were substituted as plaintiffs, as Ludwig’s successor in interest. Held, that such substitution was without authority of law, for reasons recited in the opinion.</p>

<p>Postponement in Justice Court — Objections Specifically Stated.</p> <p>1. On an appeal to the district court from a judgment of a justice of the peace, alleged to have been rendefed without j urisdiction, a party' will not be allowed to avail himself of a loss of jurisdiction by reason of the alleged insufficiency of an affidavit for a postponement unless such insufficiency was specifically pointed out to the justice in an objection to the postponement. A general objection to the postponement is not sufficient.</p> <p>On Appeal, Failure to File Bond Must Be First Objected to in Justice Court.</p> <p>2. On such an appeal, the party appealing cannot avail himself in the district court of the fact that no undertaking was furnished under section 6651, Rev. Codes 1899, when this fact was in no way brought to • the attention of the j ustice.</p> <p>Postponement Pending Trial.</p> <p>3. A justice of the peace has authority, under section 6650, Rev. Codes 1899, to grant a postponement of the trial after it has commenced, upon a satisfactory showing of the necessity therefor, on account of matters arising or coming to the applicant’s knowledge since the trial commenced.</p> <p>Authority to Postpone Exists Only by Statute in Justice Court.</p> <p>4. A justice of the peace has no jurisdiction or power to grant a continuance unless authority therefor is given him by statute, as a justice court is one of limited jurisdiction.</p>

S. Lauder, J. Action by Carl Wegner against David Lubenow and others. Judgment for plaintiff, and defendants appeal. Held: that the two constituted one lease, and the same was held void in toto. The lease is void under section 3608 relating to conveyance of homestead. Homestead can be conveyed only in the mode pre7 scribed by law, and failure of wife to join in deed renders it void.

<p>Appeals on Law Alone, Regularly Taken, Not Dismissed for Errors in. Justice Court.</p> <p>1. It is not error for the district court to deny a motion to dismiss an appeal from justice court taken upon questions of law only, when the appeal has been regularly taken and perfected, and the only grounds of the motion relate to alleged irregularities in the proceedings in justice court, which do not affect the jurisdiction of the district court over the appeal.</p> <p>Demurrer Lies for Defect, Not Excess, of Parties.</p> <p>2. A demurrer for defect of parties is proper when the pleadings-show there is a deficiency cf parties, but it is not a proper method of attack for an excess of parties. Accordingly, held, that, where the only-claim is that too many parties have been joined, a demurrer upon this-ground was properly overruled.</p> <p>Under Sec. 6771a, Rev. Codes, Where Justice’s Judgment is Reversed,, District Court Retains the Action.</p> <p>3. Under section 6771a, Rev. Codes 1899, which regulates appeals from justice court taken upon questions of law only, and provides that when the decision of the district court reopens the case for trial, the-trial shall be had in the district court, it is held that the effect of a reversal of the justice’s judgment dismissing plaintiff’s action was to reopen the case, and that the district court did not err in hearing the case and rendering judgment upon the merits.</p>

Pollock. J. Action by the Aetna Indemnity Company against Fred Schroeder and Jacob Biewer. Verdict for defendants. Motions for a judgment notwithstanding the verdict and for a new trial w.ere denied, and plaintiff appeals. Knowledge possessed by Mitchell not imputed to plaintiff for two reasons: 1st. In procuring the bond, he was not doing the things which ordinarily raise the relationship of agency. If agent at all, he was Clemens’ agent.

<p>Burden of Proof to Establish Payment.</p> <p>1. The burden of proof to establish payment is upon the party alleg- . ing it.</p> <p>Defense of Statute of Limitations Waived, if not Pleaded.</p> <p>2. The defense of the statute of limitations can only be taken advantage of by answer, and is waived if not so pleaded. 'Section 5184, Rev. Codes 1899.</p> <p>Must Aver Facts, Not Conclusions of Law, to Sustain Such Defense.</p> <p>3. In pleading the statute of limitations a mere averment of the pleader’s conclusion of law will not answer, but the facts constituting, the bar must be set out.</p> <p>Amended Pleading Must be Rewritten.</p> <p>4. The mode of amending pleadings recognized by the practice o£ this state is by rewriting the pleading, leaving out such allegations, and inserting such other allegations, as may be desired, so that all parts of the pleading shall be in one instrument, complete in itself — following. Caledonia, etc., Co. v. Noonan, 14 N. W. 46, 3 Dak. 189.</p> <p>Amendment Deemed Abandoned, Unless Leave to Amend is Acted Upon..</p> <p>5. The mere granting of leave to amend a pleading does not amend' it. Unless the leave is acted upon and the pleading redrawn, including tne desired change, the amendment is deemed abandoned.</p> <p>Application to Amend — When Court Shall Decide Thereon.</p> <p>6. In cases tried to the court without a jury, under section 5630, Rev. Codes 1899, the trial court is not relieved of the duty of deciding, at the time the request is made, whether a desired amendment to the pleadings shall or shall not be allowed. The parties have a right tO' know at every stage of the trial the exact condition of the pleadings,, so as to conform their proofs and methods of proof to the known issues.</p> <p>Judgment Supported by Pleadings.</p> <p>7. A judgment must be warranted by the pleadings of the party in whose favor it is entered. When not supported by the pleadings, it is as fatally defective as if not supported by findings.</p> <p>Mortgage Foreclosure When Debt is Barred.</p> <p>8. Because . the debt secured by mortgage is barred by the statute of limitations in six years after it becomes due, it does not follow that the right to foreclose the mortgage is gone. The statute fixes the; period within which foreclosure may be had at ten years.</p>

<p>Deceit and Injury Must Concur.</p> <p>1. Unless it is shown that inj ury or damages -resulted or must result from the making of fraudulent representations which induced the making of a contract, such representations do not constitute a defense to such contract.</p> <p>Allegation of Fraud Not Sustained.</p> <p>2. Evidence examined, and found not sufficient to sustain the allegations of fraud as a matter of fact.</p> <p>Where There Is an Issue for the Jury, Judgment Non Obstante Will Not be Sustained.</p> <p>3. A motion for judgment notwithstanding the verdict will not be sustained in a case where there is an issue for the jury to pass upon under the evidence.</p> <p>Motion for New Trial Need Not Be United With One for Judgment Non Obstante.</p> <p>4. By failing to unite a motion for a new trial with a motion for judgment notwithstanding the verdict, the right thereafter to make a motion for a new trial in the usual statutory way is not waived.</p>

L. Glaspell, J. Action by Maynard Crane against John T. Odegard. From an order affirming the taxation of costs on a remittitur from the Supreme Court after an unsuccessful appeal by plaintiff, he again appeals. There is no cost allowed for reargument. Kirby v. Western Union Telegraph ‘Co., 8 S. D. 54, 65 N. W. Rep. 482. Cost is dependent on statute. Courts have no inherent power to award costs to a litigant.

Pollock, J. Action by C. B. May and others against Cass County and others.. Judgment for defendants, and plaintiffs appeal. Powers derived wholly from a statute are extinguished by its repeal. If a proceeding is in progress when the statute is repealed,, and the powers it confers cease, it fails, for it cannot be pursued.. Sutherland on Statutory Construction, section 165 and cases cited..

John Rooney was convicted of murder in the first degree, and. his punishment fixed at death. He appeals from the judgment, The court erred in sentencing appellant on March 31, 1903, as the law in force, when the crime was committed, was repealed by a statute taking effect March 9, 1903. Section 5142, Rev. Codes 1899, is a general saving clause, to be read into statutes repealing punishments for crime, unless a different purpose is plainly expressed by the legislature.

Action by F. P. Wright against the Minneapolis, St. Paul & Sault 'Ste. Marie Railway Company for the killing of plaintiff’s stock. Verdict and judgment for plaintiff. From an order denying its motion for a new trial, defendant appeals.

Action by John P. Galbraith against J. A. Payne and others. Judgment for plaintiff, and defendant Payne appeals. Plaintiff must recover under his deed from St. Paul Harvester Company. Dever v. Cornwall, 10 N. D. 123, 86 N. W. Rep. 227. His deed is void as to the defendant, under section 7002, Rev. Codes. The statute applies to all titles whether good or bad. 1 Russell on Crimes 180; 2 Bishop on Criminal Law, section 136 ; Tomb v. Sherwood, 13 Johnson 291; Bacon’s Abrs.

Glaspell, J. Action by -Jennie A. Forester against Belle R. Van Auken. Judgment for defendant, and plaintiff appeals. A deed absolute on its face but intended as a trust deed, may be-reformed to express the relation and intention of the parties. Rev. Codes 1899, section 4703. Pugh v. Davis, 96 U. S. 333, 24 L. Ed. 775; Farmer v. Grose, 42 Cal. 169; Hickman v. Cantrell, 9 Yerg. 171; Teal v. Walker, 111 U. S. 242, 28 L. Ed. 415; Rodgers v..

Pollock, J.. Action by John Hertzler against the county of Cass and others» Judgment for defendants, and plaintiff appeals. The statutory requirement, that taxes on land be assessed in the name of the -owner, if known, and if unknown to so state, is for the benefit of the taxpayer, and is mandatory, and failure to so assess is fatal to-the tax.

S. Lauder, J. Action by George E. Nichols and William C. McFadden against Matilda M. Roberts. Judgment for defendant, and plaintiffs appeal. In Lee v. Cravuford, 10 N. D. 482, 88 N. W. Rep. 97, the court overlooked section 1417, Comp. Laws, in computing costs legally chargeable. Chapter 50, Laws of 1887, did not repeal the statutes of fixing fees of officers.

Pollock, J. Action by C. E. Fisher against N. N. Betts and O. P. Smith. Judgment for defendants, and plaintiff appeals. Held: that such limitations cure all irregularities except as to jurisdiction to act generally. 11 Am. & Eng. Enc. of Law (2d Ed.) 1130; Streeter v. Wilkinson, 24 Minn. 288; Rice v. Dickerman (Minn.) 50 N. W. Rep. 698. Statutes of limitation as to tax sales are of the same nature- and receive a similar construction.

Action by -N. D. Gagnier against the qity of Fargo. Judgment-for plaintiff and defendant appeals. The plaintiff was guilty of contributory negligence as a matter-of law, and motion for a new trial should have, bee'n granted. Collins v. City of Janesville, 83 N. W. Rep. 695; 6 Mun. Corp. Cases. 600; Gilmar v. Inhabitants of Deerfield, 15 Gray. (Mass.) 557; Bunker v. Town of Covington, 69 Ind. 35, 35 Am. Rep. 202. The plaintiff claimed damages for physical injuries.

<p>Attachment When Debt Incurred for Property Obtained Under False Pretenses — Statute Construed.</p> <p>1. Subdivision six of section 5352, Rev. Codes 1899, which provides that the plaintiff may have the property of the defendant attached “when the debt upon which the action is commenced was incurred for property obtained under false pretenses,” construed. Held, that this ground of attachment is available only when the action is commenced upon a debt which has been assented to by the defendant, and that it does not apply in actions to recover damages for torts.</p> <p>Attachment Vacated, When Affidavit as Foundation Thereof, is False.</p> <p>2. Under section 5376, Rev. Codes 1899, the court or judge is required to discharge an attachment when, on motion therefore, it appears that the affidavit upon which it was issued is untrue. The plaintiff, in his affidavit, set out the sixth subdivision of section 5352, Rev Codes 1899, above quoted, as ground for the attachment of defendants’ property; that is, that • his action was commenced upon a debt, etc., whereas, in fact, his action was commenced to recover damages for deceit. It is held that the ground of attachment relied upon was not available, and that, because of the falsity of the affidavit in this particular, the attachment was properly vacated by the trial court, and the order vacating the same is affirmed.</p>

L. Glaspell, J. Action by Richard Sykes against W. H. Beck. Judgment for plaintiff, and defendant appeals. Held: that the proceedings in taxation thereunder were entirely in rem, and the requirement as to making assessment in the name of the owner was directory and not mandatory. McQtiade v. Jaffray, 50 N. W. Rep. 233.

Action to recover for the negligent burning of hay and straw, 'by George H. Balding against A. C. Andrews and J E. Gage, .partners under the firm name of Andrews & Gage. Judgment for plaintiff and defendants appeal. Statements of elevator agent as to his acts done several hours prior to fire, and his opinion as to cause thereof, inadmissible to bind principals. Short v. N. P. Elevator Co., 1 N. D. 159, 45 N. W. Rep. 706; Luby v. Ry.

Original application for mandamus by the state of North Dakota,, on the relation of the Board of University and School Lands, against D. H. McMillan, as state treasurer.

I. Fisk, Judge. Action by Frederick B. Wells and another against Jacob Geyer -and another. Judgment for defendants, and plaintiffs appeal. The evidence is not of such conclusive character as is required to •change an absolute deed into a mortgage. Lee v. McGuin, 10 N. -D. 160, 86 N. W. 714.

J. Kneeshaw, J. Action on purchase money notes by Hans C. Dahl against Andrew J. Stakke and another. Judgment for plaintiff, and defendants appeal. The note described in the first cause of action is barred by the statute of limitátions. Section 5201, Rev. Codes 1899. It was given July 1, 1891, and was payable December 1, 1892, and the action was not begun until November 27, 1899. The evidence showed no new promise, or payment to take it out of the statute.

Action by C. M. Johnson and George Hal'land against' the Kindred State Bank. From a judgment of dismissal, entered for defendant after' an order sustaining a demurrer to the complaint, plaintiff appeals. s Parol evidence is admissible to explain a written contract which is equally capable of two constructions. Ripon College v. Brown, 68 N. W. Rep. 837. To vary elements of contract, admissible, Ingersoll v. Truebody, 40 Cal. 603.

Action by John R. Jones & Son against the Great Northern Railway Company. From an order overruling a demurrer to the complaint, defendant appealed. While under the Code, pleadings are liberally construed as to matters of form, yet the rule does not dispense with the necessity of properly pleading the facts; and as to all substantial matters and allegations, a complaint will be strictly construed against the pleader. Nation et al. v. Cameron, 2 Dak. 347; State ex rel.

S. Lauder, J. Action by the city of Lidgerwood against Albert Michalek and others. Judgment for plaintiff, and defendants appeal. The procedure for laying out and improving highways is found in sections 2279 and 2280 only; under these provisions the first step is to declare the work or improvement necessary, and this the city council of Lidgerwood did.

Action by S. Paul Paulson against L. O. Lyson. Judgment for defendant, and plaintiff appeals. A party to litigation may settle his own law suit and put an end to it, without the knowledge or consent of his attorney, in the ab-sense of any statutory provision to the contrary. Anderson v. Itasca Lumber Company, 91 N. W. Rep. 12; Williams et al. v. Miles et al., 89 N. W. Rep. 455; Swanston v. Morning Star Mining Co., 13 Fed.

Action by the Pine Tree Lumber Company against the City of Fargo to recover on certain city warrants. Plaintiff had judgment and defendant appeals. Under section 2183 of Political Code, the council and every city officer are prohibited from transferring money from one special fund to another.

Action by George S. Montgomery, as receiver of the Red River Valley Mutual Hail Insurance Company of North Dakota, against Andrew Whitbeck, to recover an assessment upon a policy. Plaintiff recovered in justice court, and afterwards, on appeal to the district court, a verdict was returned in his favor by direction. Defendant appeals from the judgment entered upon the verdict.

<p>An Executor or Administrator May Sue to Quiet Title to Real Estate.</p> <p>1. An executor or administrator is authorized, under the Revised Codes, to bring an action to quiet title to real estate belonging to a decedent, pending administration of the estate.</p> <p>Complaint Setting Forth Several Tax Liens States But One Cause of Action.</p> <p>2. A complaint to determine adverse claims under chapter 5, p. 9, Laws 1901, setting forth several tax liens as the basis of plaintiff’s interest in the real estate involved in the suit, does not state more than one cause of action.</p> <p>Complaint, Statutory Form, Need Not Allege Regularity of Tax Proceedings.</p> <p>3. In an action brought under chapter S, p. 9, Laws 1901, and based on a tax. lien, the complaint need not allege that such tax lien was based on a regular assessment and levy of taxes.</p> <p>Statutory Complaint Stating Additional Facts, Not Demurrable.</p> <p>4. The fact that a complaint, under said chapter 5, states facts-additional to those necessary, does not render the complaint demurrable, if it appears that all the matters required thereby are stated, and. that no other or different cause of action is stated.</p> <p>Complaint Sufficient.</p> <p>5. A complaint to determine adverse claims under chapter 5, p.. 9, Laws 1901, considered, and held not demurrable.</p>

Action by Harrison Wilson against the Atlantic Elevator Company. Judgment for defendant before a justice, and on appeal by plaintiff the appeal was dismissed, and he again appeals.

Action by Simon E. Persons against Charles G. Smith, Mary L. Smith and Phineas P. Persons. A judgment was entered dismissing the case as to the defendants Smith, and for a money recovery against defendant Phineas P. Persons. The defendant Persons, appealed from the judgment.

Action by John Johnson against the Great Northern Railway Company. Judgment for plaintiff, and defendant appeals. Under the statute the trial court should require pleading to be made certain and definite, where the claim of the pleader, or facts. Upon which it is based, are not apparent. In any event, the court can require him to furnish his opponent the particulars with respect to the claim or demand made. Rev. Codes 1899, sections 5282 and 5284.

William B. Tough was convicted of entering a railroad car with intent to steal, and appeals. At common law a second indictment might be returned, but the-practice cannot be sustained in this state. The Code of Criminal Procedure governs all criminal actions. Under our code provisions, it is disclosed that a person charged with crimes cannot be harrassed with repeated indictments.

S. Lauder, J.. Action by Willis H. Griswold and others against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. Judgment for plaintiffs, and defendant appeals. The condition contained in the conveyance of the right of way to the defendant, was a condition subsequent, and the land owner cannot eject the corporation for a breach of a condition subsequent.. Wood on Railway Law, 604; Hornback v. Cincinnati, etc., R. R. Co., 20® Oh.

Action by William H. Brown against Theodore Skotland and-others to foreclose a certain mortgage upon real property. From a. judgment in favor of defendant Skotland, plaintiff appeals. The ¡power of attorney was a power coupled with an interest. It was for the benefit of the Mortgage Bank & Investment Company; and being for the benefit of another than the author it was coupled with an interest, and survived its author. Rev. Codes 1899, section 3403.

Action by Thomas Wadge against Annond Kittleson. Judgment for plaintiff. Defendant appeals.

<p>Burden of Proof Where Death Is Intentionally Inflicted.</p> <p>1. In an action to recover upon an accident policy insuring against injuries incurred through external, violent, and purely accidental causes, but providing that in loss of life from injury intentionally inflicted upon the insured by himself or another person the limit of the company’s liability should be one-tenth the amount which would otherwise be payable under the policy, where the defendant alleged in its answer that the death of the insured was from an injury intentionally inflicted by a person other than the deceased, the burden was on it to prove that the injury of the deceased was intentionally and not accidentally infiioted.</p> <p>No Presumption that Death from Gunshot Was Intentional.</p> <p>2. Upon proof of death from a gunshot wound, in the absence of evidence as to how the wound was inflicted, it will be presumed that the wound was accidental, and not that it was illegally inflicted.</p> <p>Statements of Guardian,,in Preliminary Proofs of Death, Not Binding Upon His Wards.</p> <p>3. While primary proofs of death are ordinarily admissible on the trial as prima facie evidence of the facts stated therein against the insured and on behalf of the insurer, where the preliminary proofs were made by a guardian of the infant beneficiaries under the policy, and the statements made by him as to the cause of death were based entirely upon hearsay, such statements could not be considered as competent evidence of matters therein recited, as against the infant plaintiffs, so as to relieve defendant from the necessity of proving such facts. Such statements are admissions of the guardian alone, and not of the infants, and the guardian has no authority to make admissions against the interests of his wards.</p> <p>Infliction of Injury Raises No Presumption of Intent — It Is a Matter of Proof.</p> <p>4. Where defendant sought to reduce its liability under an accident policy by bringing the case within a proviso therein limiting its liability to one-tenth of the face of the policy in case death resulted from an injury intentionally inflicted by insured or another person, the intent to injure or kill, on the part of the person inflicting the injury, becomes an essential part of the proof, and the infliction of the injury does not raise a presumption that it was done intentionally.</p> <p>Intention a Question of Fact — Court Cannot Direct a Finding Where the-Proof May Justify Different Conclusions.</p> <p>5. Intention is a question of fact to be inferred from the act itself and the surrounding circumstances. So, where the burden of proof is upon a party to show that a shooting was done with intent to kill or injure, the court cannot require the jury to find that the act was intentionally done if the facts and circumstances proved can be reconciled with an accidental or nonintentional injury.</p> <p>Case Properly Submitted to Jury.</p> <p>6. The evidence in this case is consistent with an intentional shooting of the insured by a third person, but is not inconsistent with and does not negative an accidental or nonintentional shooting. The case, therefore, was properly submitted to the j ury to determine whether the injury resulting in the death of insured was" intentionally inflicted.</p>

<p>The Words “Not Admitted to Bail ” Mean that Accused Is Under Commitment for Want of Bail.</p> <p>1. The words “not admitted to bail,” as used in section 8679, Rev. Codes 1899, mean that the accused has not been discharged on bail,, but is in custody under commitment because unable or unwilling to-furnish the bail required.</p> <p>Prisoner Not Under Bail Will Not Be Discharged, Under Section 8679,, When the Delay Is on His Application.</p> <p>2. One committed for trial on a criminal charge, not admitted, to bail, and not brought to trial at or before the second term of court subsequent to his commitment, will not be released on habeas corpus-under section 8679, Rev. Codes 1899, when the delay of trial was upon the application of the prisoner.</p> <p>When Court Offers to Summon Jury, and Prisoner Declines the Offer, Delay-Is Upon His Application.</p> <p>3. The relator was committed for trial upon a criminal charge,, and at the second term of the district court thereafter, interposed a. plea of not guilty to the information filed against him, whereupon the; presiding judge offered to order and have a jury immediately summoned for the trial of his case, no jury being in attendance at this-term. Relator’s counsel declined the offer. Held, that the delay of his trial over the second term of court after his commitment was upon relator’s application, and that he was not entitled to discharge, under-section 8679, Rev. Codes 1899.</p>

Action by the Chaffee-Miller Land Company against Edward W. Barber and another. Judgment for plaintiff. Defendant Edward W. Barber appeals. A judgment entered without findings disposing of all material issues of fact, is erroneous. Loto v. Irvine, 60 Ca'l. 436; People v. Forbes, 51 Cal. 628; Phipps v. Harlow, 53 Cal. 87; Shaw v-.

<p>Contract — Action for Breach — Substantial Performance.</p> <p>1.Before a contractor is entitled to recover on his contract, not fully complied with as to the work done or materials used, on the principle of substantial performance, he must show not only that he endeavored in good faith to comply with the contract, but has complied with it except as to unimportant matters susceptible of remedy without material injury to the other parts of the building. Failure to perform the contract, or omissions or deviations from it, must be through mistake or inadvertence, and not intentional, and not such as to result in giving the owner a building different from the one contracted for in substantial matters. Anderson v. Todd, 77 N. W. 599, 8 N. D. 158, followed.</p> <p>Same.</p> <p>2. Where defects or omissions or deviations from the contract pervade the work on the whole building, the contractor cannot recover on the theory of substantial performance.</p> <p>Evidence.</p> <p>3. Evidence examined, and held not to warrant a recovery on the contract as substantially performed.</p>

<p>Appeal from District Court, Nelson county; Fisk, J.</p> <p>William H. Howser and Lizzie Anthony were convicted of a conspiracy. From an order granting a new trial, the state appeals.</p>

, sitting by request. Action by Bank of Park River against the town of Norton. Judgment for plaintiff. Defendant appeals. Township order not drawn on the fund out of which it is payable, is void. I Dil. Mun. Corp. 505; Argenti v. City of San Francisco, 16 Cal. 255; Martin v. City and County of San Francisco, 16 Cal. 285; Wilson v. City of Aberdeen, 52 Pac. Rep. 524; Minor v. Legging, 37 S. W. Rep. 1086, 15 Am. & Eng. Enc. of L. (1st Ed.) 1214; People ex rel.

<p>Appeal from District Court, Stutsman county; S'. L. Glaspell, J.</p> <p>Action by Richard Sykes against M. C. Allen. Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from District Court, Richland county; Lauder, J.</p> <p>Action by George S. Montgomery, as receiver, against George A. Tucker. From a judgment for plaintiff, defendant appeals.</p>

<p>Purchaser With Knowledge of Outstanding Title, Takes Subject to It— Payment to Purchaser From Vendor.</p> <p>1. One who purchases real estate with notice of an outstanding contract of sale takes .it subject to such contract, and may be compelled, in an action of specific performance, to convey the same upon the performance of the conditions of the contract. The decree in . such a case should require the purchaser to pay to the vendee, from the unpaid purchase price, a sufficient amount to reimburse the latter for payments made to his vendor.</p> <p>Decree of Specific Performance Discretionary.</p> <p>2. The granting or refusal of a decree of specific performance rests in the sound discretion of the court. It may grant or refuse the decree, or grant it only upon conditions, in view of the equities peculiar to each case.</p> <p>The Seeker of Equitable Relief Must Pay for Improvements Made in Good Faith, Before Action, With His Knowledge.</p> <p>3. The holder of a contract for the purchase of real estate, who has knowledge that the owner 'has conveyed to another, and that the latter, although chargeable with constructive notice of his contract, honestly believes that he has perfect title, and, induced by such belief, is making valuable improvements thereon, and yet makes no protest or objection thereto prior to the institution of an action for specific performance of the contract, is not entitled to a decree as against the vendee except upon a condition that he reimburse the latter for such permanent improvements as have been placed upon the premises prior to the commencement of the action.</p>

<p>Appeal from District Court, Williams county; Cowan, J.</p> <p>. Action by Frank Newville and twenty-six others against the Great Northern Railway Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>Parol Evidence to Vary Terms of Written Lease.</p> <p>1. Parol evidence is not admissible to show that the terms of a lease of land, providing for the payment of a specific sum as annual rent, were changed so as to provide for payment of a less sum, as such parol testimony would defeat the operation of the written lease in part.</p> <p>Executed Contract.</p> <p>2. A parol agreement for the leasing'of real estate for a longer period than one year does not become an executed contract, and therefore valid, when no possession is taken under such agreement, and the rental for one year is assumed to be paid by indorsing the amount of the annual rent upon a past-due note.</p> <p>Without Possession Given and Partial Performance, Oral Will Not Supersede Written Lease.</p> <p>3. One Browning, the owner of the land, leased it to the defendant for one year from April, 1899, for $200 as rent, with the privilege of extending the lease for another year if Browning was in possession of the land. Defendant did not expressly avail himself of the privilege of extension for another year under the lease. In October, 1899, ■the defendant and Browning made an oral and new lease of the land. Possession was not given defendant under the oral lease. An indorsement of $160 was made by defendant on Browning’s note for the possession for 1900. The oral lease was to continue until Browning’s note of $340 and interest was fully paid — more than two years. In January, 1900, Browning assigned the written lease of April, 1899, to plaintiff, and, by a writing, gave it the right of possession. Plaintiff notified defendant of its right to the possession of the land. Defendant answered that his lease was still in force, and refused possession, and. cropped the land for 1900. Held, that plaintiff was entitled to the rent as specified in the written lease.</p> <p>Election.</p> <p>* 4. Under such facts the plaintiff had the right to treat the defendant as a trespasser or as a tenant, and, having treated him as a tenant, could recover the rent specified in the written lease.</p>

Wesley Styles, after a preliminary examination before a committing magistrate, was held to answer upon a charge of manslaughter in the first degree, committed upon the person of one Peter J. Selseth. He was committed in default of bail, and petitions for a writ of habeas corpus, alleging that there was not sufficient or probable cause to justify his commitment and detention.

Arthur E. McGahey was convicted of contempt, and appeals. Contempt cannot be charged for resisting void process. The resistance must be predicated and have its foundation upon lawful process. 2 High on Injunctions, 1425. Disobedience of an order of court not authorized by law is not contempt.

Action by F. I. Luce against Frank Jestrab, Jr. Judgment for plaintiff, and defendant appeals. The horses bought by the minor were not necessaries under the statute. Norse v. Alexander, 55 A. R. 189; Decell v. Lowenthal, 34 A. R. 449; Rainwater v. Durham, 10 A. D. 637; Brave v. Hole, 21 Tenn. 27; Wornack v. Loas, 11 S. W. Rep. 438; Horstmeyer v. Connors, 36 Mo. App. 115. Minor is not bound to pay contract price, but “the reasonable value” of necessaries.

<p>National Guard — Incorporation—Armory Buildings — Mechanics’ Liens.</p> <p>1. A corporation organized under chapter 101, p. 159, Laws 1897, which authorizes three or more members or ex-members of the national guard to incorporate for the purpose of erecting an armory building, is a private, and not a public corporation; and, save as to taxes and charter fees, which are excepted by the act, it has the same powers, and is subject to the same duties and liabilities, as any other private corporation, and its property is subject to the operation of mechanics’ lien laws.</p>

<p>Maintenance — Conveyance by One Out of Possession.</p> <p>1. A conveyance of real estate held adversely by another under color of title, by one who has not been in possession or taken rent for the space of one year prior thereto, is void as against such adverse possessor. Following Galbraith v. Paine, 96 N. W. Rep. 253, 12 N. D. 164.</p> <p>Vendee’s Possession, That of Vendor.</p> <p>2. The possession of real estate by a vendee under an executory contract of purchase is, in law, the possession of his vendor.</p> <p>Adverse Possession — Quieting Title.</p> <p>3. On an appeal from. a j udgment quieting title to certain real estate in plaintiff, the defendant assigns error upon the conclusion of law of the trial court that the plaintiff is entitled to a decree quieting title in him. It appears from the findings of fact upon which the conclusion is based that the plaintiff’s'grantor, when he executed the deed of conveyance upon which plaintiff bases his title and right of action, had not been in possession or taken the rents for the space of one year prior thereto, and that the defendant was then, and for ten years prior thereto had been, in adverse possession under color of title. Held, that the conclusion of the trial court was erroneous, and that the judgment must be reversed and the action dismissed.</p>

Action by John McNab against the Northern Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Courts have jurisdiction to entertain garnishment proceedings at the suit of a resident, or nonresident plaintiff against a resident garnishee owing a debt to the principal debtor and defendant, whether the latter is a resident or nonresident, and whether process is served upon him personally or by publication.

<p>Specific Performance — Evidence.'</p> <p>1. Up.on a review of the entire case in an action for the specific performance of a contract to convey real estate, the findings of fact, conclusions of law, and judgment of the trial court awarding specific performance are sustained.</p> <p>Contract Must Be Mutual Both as to Obligation and Remedy.</p> <p>2. The contract in this case obligated the vendor to convey the land upon the delivery to him of a specified quantity of merchantable wheat, or its equivalent in money, determined by the market value of wheat when delivery was due, and bound the vendee to make such delivery or payment. When this action was brought and tender of performance by plaintiff was made, the time- for delivery of the deed had arrived. It is held, that the contract is enforceable under the rule which requires, as a condition for the enforcement of a contract by specific performance, that it shall be mutual both as to obligations and remedy.</p>

<p>Vendor and Purchaser — Recovery of Mohey Paid on Contract. ■</p> <p>1. On a vendor’s breach of a contract to convey land after payment therefor out of crops raised thereon, the vendee may recover the money paid on such contract as money had and received.</p> <p>Measure of Damages on Breach of Contract.</p> <p>2. As a general rule, the measure of damages in such a case is the money paid on the contract, with interest if the vendor retains possession, "and without interest if the vendee has possession.</p> <p>When Vendee Is Not in Default, Tender Unnecessary.</p> <p>3. In such a case, if the vendee has fully complied with the contract by turning over the prescribed share of the annual crops, and is not in default, a tender of the unpaid purchase price is not necessary before commencement of an action to recover the money paid.</p> <p>Waiver of Default — Promptness in Cancellation.</p> <p>4. Nonpayment of taxes by the vendee, as required by the contract, is no defense to an action for money had under such a contract, as defendant has waived such nonpayment by not promptly canceling the contract on that ground.</p>

<p>Mover of Houses Liable for Damage to Telephone Lines.</p> <p>1. A person licensed to move houses in the city of Grand Forks is legally liable for damages done by him while moving a house, such damage being done to the wires and property of a telephone company, duly authorized by ordinance to establish a telephone system in said city and maintained therein.</p> <p>City Franchise to Telephone Company Creates a Vested Right, Not Impair-able by Subsequent Private Grants.</p> <p>2. By the passage of such ordinance, which gave the city benefits, and its acceptance by the company, and its expenditures thereunder, a contractual relation was created between the company and the city, which became" a vested right that could not be impaired by subsequent action of the city directly or indirectly annulling it for purposes not public and for purposes of a personal or private nature.</p> <p>Removal of Buildings Is an Extraordinary Use of Streets, Subject to Public and Vested Rights.</p> <p>3. The use of a street for moving houses is an extraordinary use thereof. Such use may be permitted, but not so as to destroy the use of the street for travel or necessary public purposes, and cannot be legally done in destruction or impairment of vested rights.</p>

<p>Notice to Sureties of Obligee’s Acceptance.</p> <p>1. Where an employe, as principal, and two others, as sureties, in consideration of the principal’s employment as agent by a sewing machine company, and his agreement to furnish a bond for the faithful performance of the duties of his agency, and to pay over and account for all moneys and property which might come to his hands by virtue of his employment as such agent, executed the bond in suit as the undertaking which their principal had agreed with such company to give, and left such bond with the principal for delivery to the company, such bond was and became a binding and enforceable undertaking on delivery, and no notice of its acceptance by the obligee was required.</p> <p>Principal in Bond as Sureties’ Agent for Delivery,</p> <p>2. Where the signers of a bond, which the employer of the principal had agreed with him to accept to secure the performance of the duties of his employment, executed the same and left it with the principal for delivery to the obligee, with knowledge that the obligee had agreed to accept it, they thereby constituted such principal their agent for the delivery of the bond; and when the employer, after . delivery of such bond, intrusted the principal with money and properties in the course of his employment, which he embezzled, the sureties on such bond could not thereafter be heard to question its binding obligation, or to assert that it was a mere unaccepted offer of guaranty.</p>

Proceedings between William J. Clapp, special administrator of Louis Houg, and Louis Houg, otherwise known as Louis H. Olson. From the judgment the administrator appeals. It is conceded that the property in the special administrator’s hands should be turned over to the respondent; but appellant should be allowed his disbursements and fees. The case at bar differs from Scott v. McNeil, 154 U. S. 34, 14 Sup. Ct. Rep. 1108, 38 L. Ed. 896, and cases therein cited.