Volume 13 — North Dakota Reports

Action by Ezra Block against E. I. Donovan. Judgment for plaintiff and defendant appeals. A clear and explicit written instrument supersedes all contemporaneous oral negotiations concerning the subject to which the same relates, and parol evidence is inadmissible. Strunk v. Smith, et ah, 66 N. W. 926; Northwestern Fuel Co. v. Bruns, 1 N. D. 137, 45 N. W. 699 ; Western Twine Co. v. Wright et al., 78 N. W. 943; Wm.

Aotion by F. A. Patrick & Co. against the Grand Forks Mercantile Company. Judgment for defendant and plaintiff appeals. The contract in question was carefully drawn, so that it would not be subject to attack under Red River Valley Nat. Bank v. Barnes, 8 N. D. 432, 79 N. W. 880, and Bergman v. Jones, 10 N. D. 520, 88 N. W. 288. The case at bar is analogous to Hubbard v. Tenbrook, 124 Pa. St. 291, 10 Am. St. Rep. 585, 16 Atl. 817.

Action by George W. Fifer against William J. Fifer. From a judgment for plaintiff, defendant appeals. Title is a legitimate defense in an action of forcible entry and detainer in this state. Murry v. Burris et al., 6 Dak. 170, 42 N. W. 25; section 6677, Rev. Codes 1899, subdiv. 1.

Pollock, J. Action by Sophia A. Signor against G. Lee Clark. Judgment for defendant, and plaintiff appeals. Payment of judgment either before or after execution, or before or after appeal, is no bar to an appeal, nor evidence of intent to abandon the appeal. By accepting benefits under the judgment, right to appeal is waived. Tyler v. Shea, 4 N. D. 377, 61 N. W. 468; Easton v. Lockhart, 89 N. W. 75.

Action by Mabel Manning against city of Devils Lake and others. Judgment for plaintiff, and defendant appeals. A municipality may establish and maintain public improvements outside of its territorial limits, where necessity requires them for city purposes.

Action by the state, on the relation of George D. Kelly, state’s attorney, against Allan McMaster and others. Judgment for defendants, and the state appeals. The defendant J. M. C. McMaster appearing generally by Geo.

Action by the state, on the relation of George .M. Register, state’s attorney, against Edward G. Patterson and Arthur E. McGahey. Judgment for plaintiff and defendants appeal. Briefs substantially the same as in State ex rel. Register v. Mc-Gahey, 12 N. D. 535, 97 N. W. 865.

Action by the National Bank of Commerce against R. G. Pick. Judgment for defendant and plaintiff appeals. The mere selling of a machine is not doing business in the sense of section 3265, Rev. Codes 1899. Cooper Mfg. Co. v. Ferguson, 113, U. S. 727, 28 L. Ed. 1137; Gilchrist v. Helen, etc., Ry., 47 Fed. Rep. 593; Florsheim Bros. Dry Goods Co. v. Lester, 29 S. W. 34; Colorado Iron Works v. Sierre Grande Mining Co., 25 Pac. 325; Gates Iron Works v. Cohen, 43 Pac. 667.

Action by Alice M. McClure against John J. Hunnewell. Judgment for plaintiff and defendant appeals. The plaintiff had adequate remedy at law; the action itself was an action at law, only a money judgment being asked. No injunction lies. Stone ,v- Snell, 94 N. W. 525; Ganow v. Denney, 94 N. W. 959; Forman v. Healey, 11 N. D. 563, 93 N. W. 866.

Action by Irene C. King against Mary D. Hanson (now Mary D. Thompkins). Judgment for plaintiff. Defendant appeals. A wife cannot maintain an action against a person for alienating her husband’s affections, unless her husband has been enticed from her. The gist of the action is not the’loss of affection, but the loss of consortium.

Action by Louis Kaster against Henry C. Mason and Julia D. Mason. Judgment for defendants and plaintiff appeals. Burden of showing lack of consideration lies with him who assails the instrument; the recital of a consideration therein is prima facie evidence of its existence. Rev. Codes 1899, sections 3880, 3881; 6 Am. & Eng. Enc. of Law, 765; want of consideration must be pleaded. 4 Enc. PI. & Pr. 746.

Action by the Robertson Lumber Company against Andrew H. Jones. Judgment for plaintiff and defendant appeals. Defendant has a legal right to have his case tried in the county of his residence, unless some of the statutory grounds for a removal exist; and no showing is made that the convenience of witnesses demands a change of place of trial. The discretion to be exercised by the court in ordering such change is a legal one to be exercised only upon a sufficient showing.

Action by John Pewonka, by Frank Pewonka, his guardian ad litem, against Alex Stewart. Judgment for defendant and plaintiff appeals. That a street or highway may become such by public use without dedication, is well established. Mason v. Sioux Falls, 51 N. W. 770; (S. D.) ; Coulter v. Great Northern Ry. Co., 5 N. D. 568, 67 N. W. 1046; Walcott Tp. v. Skauge, 6. N. D. 382, 71 N. W. 544.

Action by the state, on the relátion of George D. Kelly, as state’s attorney, against Theodore B. Nelson and others, to abate a nuisance. Judgment for defendants and plaintiff appeals. If the nuisance existed in the particular place proceeded against, then such nuisance must be abated and its continuance enjoined, irrespective of any questions of title or ownership in the property harboring the nuisance. State ex rel.

Certiorari by William Barry against John E. Traux, clerk of the District Court for the county of Cavalier, to review an order granting a change of venue in a prosecution of plaintiff for murder. The right of trial by jury as guaranteed by the constitution is that recognized by the usage of the common law. Debates Constitutional Convention N. D., pp. 361, 362.

Action by L. H. Burton and wife against A. A. Walker, justice of the peace, and M. L. Shanks. From an order granting an injunction, defendants appeal. Extraordinary relief by injunction granted only when irreparable injury will be suffered, and there is no adequate remedy at law. 10 Enc. PI. & Pr. 950-958; 16 Am. & Eng. Enc. of Law, 360 ; High on Injunctions, 24, 25, 118-120; Pom. Eq. Jur., sections 1347-1358. It is not claimed that defendant is insolvent.

Action 'by Ward & Murray against James McQueen. Judgment for plaintiffs. Defendant appeals. Without written authority to him, an agent cannot execute a contract of sale of real estate of his principal as agent.

Action by Reeves & Co. against John Bruening. Judgment for plaintiff and defendant appeals. Plaintiff cannot recover without proof that sale was executed and title passed. Section 4987, Rev. Codes 1899; Benjamin on Sales, section 1117; Mechem on Sales, section 1665. If the sale is not consummated, and no title passes, plaintiff must seek his redress under sections 4988 and 5009, Rev. Codes 1899.

Action by Hannah Karstensen Helgebye against CaTl O. Dam-men. Judgment for defendant and plaintiff appeals. Partial performance of an oral agreement for the sale and purchase of real estate, satisfies the statute of frauds.

Action by J. H. Clements against A. L. Miller and others. Judgment for plaintiff, and defendants appeal. In a plea of abatement for nonjoinder, proof not necessary that plaintiff knew of partnership. Norwood v. Sutton, 1 Cranch C. C. 327. All joint obligors should be made parties to a suit. Gilman v. Rivers, 10 Peters, 298, 9 L. Ed. 432.

Action by Thone Salemonson against Julia Thompson. Judgment for plaintiff, and defendant appeals. A conveyance fraudulent as to existing creditors, is fraudulent and may be avoided by subsequent creditors as well. Rev. Codes, 1-899 section 5052. Romans v. Maddux, 41 N. W. 763; Day v. Cooley, 118 Mass. 527; McLane v. Johnston, 43 Vt. 48; Nichols v. Ward, 73 Am. Dec. 177; Whitmore v. Woodard, 28 Me. 392; Smyth v. Carlyle, J6 N. H. 464; 14 Enc. of Law. 269.

Action by W. S. Conrad and Libbie Roll against Mina Adler and Charles Adler. Judgment for defendants, and plaintiffs appeal. At common law plaintiff -had to allege and prove possession and ownership of fee to maintain suit to determine adverse claim; but statutes have enlarged the remedy of quieting title both as to plaintiffs and. defendants. Holland v. Challen, 110 U. S. 15, 28 L. Ed. 52; Wehrman v. Conklin, 155 U. S. 314, 15 Sup. -Ct.

<p>Appeal from District Court, Steele -county; Pollock, J.</p> <p>Action by W. E. Hayes against Martha T. Cooley and A. W. Cooley. Judgment for plaintiff, and defendants appeal.</p> <p>If by the thresher’s delay crops are exposed to storms, the fault is his and he must pay for them. Our statute on the rule of damages was intended to adopt the rule recognized by the great weight of modern authorities. Our statute is adopted from Field’s Code, New York, which has excluded a clause therefrom, to wit: “Which the party in fault had notice at the time of entering into the contract or at any time before the breach, and while it was in his power to perform the contract upon his part.” This is considered to be a proper restriction upon the measure of damages, and such limitation is recognized and adopted in several English cases. See Hadley v. Baxendale, 9 Exch. 341; also American cases, Gee v. Ry. Co. 6 H. & N. 211.</p> <p>Our statute was intended to adopt the rule recognized by the great weight of authority. Hauser v. Pearse, 13 Kan. 104; Hammer v. Schoenfelder, 47 Wis. 455, 2 N. W. 1129; Holt Mfg. Co. v. Thornton, 68 Pac. 708; Schoemaker v. Acker, 48 Pac. 62; Goodloe v. Rogers, 61 Am. Dec. 205; Baldwin v. Blanchard, 15 Minn. 489; Hobbs v. Davis, 30 Ga. 423; Passenger v. Thornton, 34 N. Y. 634; McAfee v. Crofford, 13 How. 447, 14 L. Ed. 217.</p> <p>The rule- limiting the recovery of damages to the natural and proximate consequences of the act complained of is universally admitted. Dubuque v. Dubuque, 30 la. 176.</p> <p>There is no difference in the case where a piece of farm machinery is to be furnished for use in securing a crop, from where one is hired to thresh a crop; or where a servant leaves his master’s service when harvest is on. Loss'of crop is too remote as an item of damages. Fuller v. Curtis, 100 Ind. 237,-50 Am. Rep-. 786, 5 Am. & Eng. Enc. Law, (1st Ed.) 14; Reich v. Bolch, 27 N. W. 507; Sycamore Marsh Harvesting Co. v. Sturm, 13 N. W. 202; McEwen v. McKinnon, 42 Am. Rep. 458, 11 N. W. 838, 8 Am. & Eng. Enc. Law, (2d Ed.) 583; Brayton v. Chase, 3 Wis. 456.</p> <p>Loss of crop is too remote to be an element of damages. Prosser ■ v. Jones, 41 la. 674; Fuller v. Curtis, 50 Am. Rep. 786.</p>

Proceeding in mandamus on the relation of the Attorney General against the district court of the Fourth Judicial District; Glaspell, J. The court refused to entertain the application, hear proof and decide the motion on the ground that it had no jurisdiction to do so. Under such circumstances mandamus is the proper remedy. 19 Am. & Eng. Enc. of Law, 827.

<p>Appeal from District Court, Eddy county; Glaspell, J.</p> <p>Action by P. H. West against the Northern Pacific Railway Company. Judgment for plaintiff. Defendant brings error.</p> <p>Where the driver of mature years, accustomed to driving horses who had lived and worked near the crossing where the accident occurred, and was familiar with it for a period of six months prior to such accident; had actual notice of the approaching train, saw it coming, estimated its distance and the time it would require him to pass over the crossing as compared with the time Which he thought it would take the train to do so; went into the house after he saw it coming and thought he had ample time to get over the crossing before it arrived; and who knew his view was obstructed by buildings and other structures, but nevertheless drove his team in a trot until his horses were on the main line of the road, and looked and listened for the train, knew it had not yet passed over the crossing, and if not visible must be very close; and who did not stop the team anywhere to look or listen but trotted clear down and upon the track, and who would have heard the train but for the unusual noise made by his lumber wagon, and whose horses -were quiet and tractable, and at all times under his control; and who was depending upon the sound of the whistle or ringing of the bell, to warn him of the train’s near approach, and his attention not being distracted by any -other occurence, in the face of all this to say the plaintiff is entitled to recover, is to fly in the face of reason and disregard all well settled principles of law.</p> <p>The defendant, as a matter of law, was guilty of no negligence. If a traveler upon a highway has notice of the train’s approach otherwise than by ringing of the bell or the sounding of the whistle, in season to avoid a collision upon the crossing, the object of the whistle, and bell has been subserved, and failure to sound them is not the cause of the traveler’s injury. Railroad v. Bell, 70 Ills. 103; McManamee v. Railway, 37 S. W. 119; McDonald, v. Railroad, 33 S. W. 943; Baker v. Receivers, etc., 30 N. J. E. 340; Chicago, Rock Island & Pac. Ry. Co., v. Houston 95 U. S. 703, 34 Sup. Ct. Rep. 543; Burnet v. Railroad, 39 Atl. 663; Helm v. Railroad, 33 S. W. 396.</p> <p>Nor, in view of the driver’s knowledge of the team’s approach, was its unusual speed a matter of negligence. Korrady v. Lake Shore & M. S. Ry. Co. 39 N. E. 1069; Pepper v. Southern Pac. Ry. Co. 38 Pac. 974; Kelly v. Railroad, 75 Mo. 138; Taylor v. Railroad, 86 Mo. 457; Pyle v. Clark, 79 Fed. 744; State v. Maine Cent. R. Co. 1 Atl. 673; Chicago, R. I. & P. R. Co. v. Crisman, 34 Pac. 386.</p> <p>It was the duty of the driver, who knew that the train was approaching and had not yet passed the crossing, to stop and listen, or if not to stop, at least to bring his -horses to a walk before entering upon the track. It was negligence to drive them upon a trot to a point where, upon seeing the train, he could not possibly avoid a collision. Elliot on Railroads, section 1167; Houghton v. Chicago & G. T. Ry. Co., 58 N. W. 314; Brady v. Toledo, Ann Arbor & N. M. R. Co., 45 N. W. 1110; Shatto v. Railroad, 131, Fed. 678.</p> <p>The presence of buildings and structures intercepting the driver’s view, when coupled with his knowledge of the approaching train, rendered it imperative that he stop and listen before going upon the track. The greater the danger the greater the precaution required. Seefeld v. Chicago, M. & St. P. Ry. Co., 35 N. W. 378; Brady v. Toledo, Ann Arbor & N. M. R. Co. supra; Barnhill v. Railway, 33 So. 63; Day v. Railroad, 53 Atl. 771; Railway v. Holden, 49 Atl. 635; Hook v. Railway, 63 S. W. 360; Chase v. Maine Cent. R. R., 45 N. E. 911; Carter v. Railway, 47 Atl. 797.</p> <p>Travelers are bound to make vigilant use of both senses of sight and hearing; and when the driver’s failure to hear an approaching train was due to the unusual noise of his own vehicle, he thereby directly contributed to his -injury. Carter v. Railway, 47 Atl. 797; Chase v. Maine Cent. R. Co., 5 Atl. 771; Allen v. Maine Cent. R. Co., 19 Atl. 105.</p> <p>A motion for judgment notwithstanding the verdict must be made before judgment is entered on the verdict. Scheible v. Hart, 12 S. W. 628; 11 Enc. of PI. & Pr. 920.</p> <p>Appellant did not move the District Court, at the close of the testimony, to direct a verdict in its favor. Such motion at such time is a necessary preliminary to a motion for judgment notwithstanding the verdict. Session Laws 1901, Chap. 63, page 74; Hemstad v. Hall, 66 N. W. 366 ; Sayer v. Harris Produce Co., 87 N. W. 617; Johns v. Ruff, 12 N. D. 74, 95 N.- W. 440.</p> <p>When a motion for a new trial is addressed to the sound judicial discretion of the trial court and an order made thereon based upon such ground will not be reversed by the Appellate Court, unless the record discloses a case of abuse of discretion. Gull River Lumber Co. v. Osborne-McMillan Elevator Co., 6 N. D. 276, 69 N. W. 691; Pengilly v. J. I. Case Thresher Co., 11 N. D. 249, 91 N. W. 63; O’Conor v. Clark, 44 Pac. 482; 14 Enc. of PI. & Pr. 982 and cases under note 2.</p> <p>A verdict can only be directed when the undisputed evidence, giving the construction most favorable to the party directed against that it will bear, and after allowing him the benefit of all reasonable inferences arising in his favor, will not sustain a verdict in his favor. Pirie, Carson et al. v. Gillett, 2 N. D. 255, 50 N. W. 710.</p> <p>It was the duty of the court to- submit the case to a jury, unless upon the trial the evidence of respondent’s contributory negligence was so clear and convincing that all reasonable minds could draw but one conclusion therefrom. Struck v. Chicago', M. & St. P. Ry. Co., 59 N. W. 1022; Bronson v. Oakes, 76 Fed. 734; N. P. Ry. Co., v. Austin, 64 Fed. 211; Chicago, etc. Ry. Co., v. Netolicky, 67 Fed. 665. ” /</p> <p>Respondent was warranted in assuming that the signals and warning required by law would be given. Vandewater v. N. Y. etc. R. Co., 26 N. Y. S. 397; 8 Am. & Eng. Enc. of Law (2d Ed.) 407.</p> <p>In view of the obstructed condition of the crossing, respondent might assume that greater care than ordinary in approaching would be observed, and trains would not be run at a high and unnusual rate of speed. Beanstrom v. Northern Pacific. R. Co., 48 N. W. 778; Thomas v. Delaware, etc. Ry. Co., 8 Fed. 729.</p> <p>Where the use of either the sense of sight or hearing would be unavailing, even its non-use may be excused. Terre Haute & I. R. Co., v. Voelker, 22 N. E. 20.</p> <p>The rule that a traveler before going upon a railroad track must 'look and listen, and that failure to do so is negligence per se, has been refused recognition by the Federal Courts and by the courts of almost all the states. St. Louis & Ry. Co, v. Barker, 77 Fed. 810; Peck v. Oregon Short Line Ry. Co., 69 Pac. 153; Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. Rep. 679; 7 Am. & Eng. Enc. of Law (2d Ed.) 433.</p> <p>If a traveler approaching a crossing takes every reasonable precaution a prudent man would observe to avoid injury from passing trains, he has done all that can be required of him, and whether his conduct, under all the circumstances shows ordinary care is generally a question for the jury under proper instructions. Cobleigh v. Ry. Co., 75 Fed. 247; Beanstrom v. N. P. Ry. Co., supra; St. Louis, etc. Ry. Co. v. Barker, 77 Fed. 810; Northern Pacific Ry. Co. v„ Austin, 64 Fed. 211; Selensky v. Chicago, Great Western, 94 N. W; 272; 7 Am. & Eng. Enc. of Law (2d Ed.) 434.</p> <p>The speed of his horses together with other circumstances of his conduct, should be left to the consideration of the jury. Atchison, Topeka & S. F. R. Co., v. Shaw, 43 Pac. 1129; Moore v. Chicago, St. P. & K. C. Ry. Co., 71 N. W. 569; Hicks v. N. Y., N. H. & H. R. Co., 41 N. E. 721; Selensky v. Chicago, Great Western Ry. Co., 94 N. W. 272; Chicago & I. R. Co., v. Lane, 22 N. E. 513 ; Northern Pacific R. Co. v. Austin, 64 Fed. 211; Chicago, etc. Ry. Co. v. Netolicky, 67 Fed. 665.</p> <p>A prudent man in tire exercise of ordinary care may keep moving towards a railroad track with his vehicle making a certain amount of noise. St. Louis, etc. Ry. Co. v. Barker, 77 Fed. 810; Chicago, etc. Ry. Co. v. Netolicky,. 67 Fed. 665; Beanstrom v. N. P. Ry. Co., 48 N. W. 778.</p>

<p>Appeal from District Court, Grand Forks county, Fisk, J.</p> <p>Action by John D. Kennedy against Anthony Stonehouse. Judgment for plaintiff and defendant appeals.</p> <p>Words of contract against the principal may be disregarded as surplusage, and the action brought against the prinicpal on the contract itself. Cochran v. Baker, 56 Pac. 641; White v. Madison, 26 N. Y. 117.</p> <p>A warranty of authority -arising by implication does not constitute a “covenant of warranty.” 8 Am. & Eng. Enc. Law, 54; 1 Jones on Real Property and Conveyancing, 827, 833 et seq.</p> <p>If the action is in tort for the deceit practiced on plaintiff by defendant, in assuming to have authority that he did not have, the action is barred by the statute of limitations. Subdiv. 6 of section 5201, Rev. Codes, 1899;'19 Am. & Eng. Enc. Law, 193.</p> <p>The rule is the same whether the damage results immediately or not. 19 Am. & Eng. Enc. Law. 200; Wood v. Currey, 57 Cal. 208; Lattin v. Gillette, 30 Pac. 545; Northrop v. Hill, 57 N. Y. 351; Everett v. O’Leary, 95 N. W. 901.</p> <p>The statute begins to run without regard to the time that plaintiff was aware of -his right of action. 19 Am. & Eng. Enc. Law, 213.</p> <p>Plaintiff’s right of action accrued upon the delivery and execution of the contract to wit: April 20, 1891.</p> <p>The action is not for relief on the ground of fraud in a case heretofore solely -cognizable in chancery; and the running of the statute is not postponed until the facts constituting the fraud are discovered, and therefore not within subdivision 6, section 5201, Rev. Codes, 1899. Foote v. Farrington, 41 N. Y. 164; Jaffray v. Bear, 9 S. E. 382; Relf v. Eberly, 23 la. 467; Carr v. Thompson, 87 N. Y. 160; Jacobs v. Fredrick, 51 N. W. 320; Clausen v. Meister et al, 29 Pac. 232; Miller v. Wood, 22 N. E. 553.</p> <p>Plaintiff was informed by one Warren, the agent of the owner of the land, in 1893, that defendant had no authority to sell plaintiff the land, and demanded possession, which the plaintiff refused until he was paid for his improvements. Plaintiff claims that he was guaranteed his deed by defendant when the delivery of the wheat was complied with under the contract, but this does not exempt him from prosecuting his inquiries upon the information from Warren. If a party would avoid the bar of the statute, on account of fraud, he must show due diligence to detect it, and will be deemed to have known it, if the means of discovery were within his power. Wood v. Carpenter, 101 U. S. 135, 25 L. Ed. 807; Norris v. Haggin, 28 Fed. 275; Peall v. Slaven, 40 Fed. 774; Murray v. Chicago & N. W. Ry. Co., 92 Fed. 868; 19 Am. & Eng. Enc. Law, 250.</p> <p>Fraudulent concealment does not postpone the running of the statute of limitations. There is no statute making such concealment postpone the running of the statute of limitations. Without statutory authority the courts can create no such exception. Jailary v. Bear, 9 S. E. 382; Lenhardt v. French, 35 S. E. 761; Fee’s Adm’r v. Fee 10 Ohio, 470; Jacobs v. Frederick, 51 N. W. 320; Murray v. Chicago & N. W. Ry. Co., 92 Fed. 868; Amy v. City of Water-town, 130 U. S. 320, 9 Sup. Ct. Rep. 537; Pollock et al. v. Wright et al, 87 N. W. 584.</p> <p>A contract of warranty of authority is analogous to a covenant of seizin, and the latter is broken upon the execution and delivery of the deed, if the grantor has no title. Mitchell v. Kepler, 39 N. W. 241; Sherwood v. Landon et al., 23 N. W. 778; Union Pac. Ry. Co. v. Barnes, 64 Fed. 80.</p> <p>The implied warranty of title to -personal property is broken immediately if vendor has no title. Chancelor v, Wiggins, 39 Am. Dec. 499. And so the warranty implied in the indorsement of a note, if it is forged. Ware v. McCormack, 28 S. W. 157, 959; Blethen v. Lovering, 58 Me. 437; Graham v. Robertson, 3 S. E. 611; Jefferson Co. v. Burlington & M. R. R. Co. 23 N. W. 899; Marton v. City of Nevada, 41 Fed. 582; Bartlett v. Bulleve, 23 Kan. 606; Northrop v. Hill, 57 N. Y. 351; Russell & Co. v. Po'llc County Abstract Co., 54 N. W. 212; Lattin v. Gillette, 30 Pac. 545; Miller v. Wood, 22 N. E. 553.</p> <p>Where an agent has executed a contract for his principal without authority, the agent is not bound as principal, unless the contract contains apt words to bind him. White v. Madison, 26 N. Y. 117; Dung v. Parker, 52 N. Y. 494; Ba'ltzen v. Nicolay, 53 N. Y. 467; Johnson v. Smith, 21 Conn. 627; Ogden v. Raymond, 22 Conn. 379; Taylor v. Shelton, 30 Conn. 626; Duncan v. Niles, 32 111. 532; Wheeler v. Reed, 36 111. 61; Abbey v. Chase, 6 Cush. 56; Bartlett v. Tucker, 104 Mass. 341, 6 Am. Rep. 240; Ballou v. Talbot, 16 Mass. 461, 8 Am. Dec. 146; Noyes v. Loring, 55 Me. 411; Sheffield v. Ladue, 16 Minn. 388; C-ole'v. O’Brien, 34 Neb. 68, 51 N. W. 316; Brong et al. v. Spence, 77 N. W. 54; Farmers’ Co-op. Trust Co. v. Floyd, 26 N. E. 110; Cochran v. Baker, 56 Pac. 641; Clark v. Foster, 8 Vt. 98; McCurdy v. Rogers, 21 Wis. 199.</p> <p>In these cases it is held, that aciton is either on an implied warranty of authority, or for deceit, according to the circumstances of each particuler case.</p> <p>In California, whose statute is like that of North Dakota, it is held, where the contract is in terms the contract of the principal, the agent cannot be held as principal thereon. Hall v. Crandall, 29 Cal. 568; Lander v. Castro, 43 Cal, 497; Wallace v. Bentley et al., 77 Cal. 19, 18 'Pac. 788; Senter et al. v. Monroe, 77 Cal. 347, 19 Pac. 580. See also Clark v. Foster, 8 Vt. 98.</p> <p>The fact that section 4995 lays down a rule of damages for a breach of an agent’s warranty of authority, does not preclude the adoption of another. Browne v. Wolcott, 1 N. D. 415, 48 N. W. 336.</p> <p>We believe the rule applicable to this case is found in section 4978. The contract which the agent made was without authority and invalid. The wrong was immediate, and the plaintiff had a right of action for damages. If the 'land had been worth more than the plaintiff agreed to pay he was entitled to the difference. Skaaraas v. Finnegan, 16 N. W. 456.</p> <p>If the rule of this case is the correct one, the plaintiff’s action is not only barred, but he has failed to prove the value of the real estate at the date of the contract.</p> <p>One who assumes to contract for another to sell land to a third party, is supposed to know whether he has authority so to deal, and how he obtained it; and when he acts without such authority the law presumes his intent and purpose fraudulent, and shifts to him the burden to show that he acted in good faith under the belief that he had authority. Clark v. Lewis, 8 Vt. 96 ; Wear v. Gove, 44 N. H. 196; Farmers’ Co-op. Trust Co. v. Floyd, 26 N. E. 110.</p> <p>The defendant by signing the contract represented that he had authority to sign it, and so warranted, and this became an implied warranty and a part of the contract. He assumed, himself, the fulfilment of the contract as fully as his principal could have done. Section 4343, Rev. Codes 1899.</p> <p>The liability for falsely assuming to act as agent does not arise, until some suit against, or by, the principal determines that he had no such authority. Section 4995, Rev. Codes, 1899, assumes this when it provides that the cost of such suit is to become a portion of the damages recoverable against the agent.</p> <p>As between grantor and grantee, where grantee is put in possession until the time arrives for a deed, the statute of limitations is suspended. Love v. Watirins, 40 Cal. 547 (565). Where a grantee goes into possesion and gets no title to the land, as long as his possession is not disturbed, before he can sue on the covenants, he must either surrender possession and sue, or wait until he is ejected. Montgomery v. N. P. R. R. Co. 67 Fed. 445; Burr v. Greeley, 52 Fed. 926; Fowler v. Smith, 2 Cal. 568; Norton v. Jackson, 5 Cal. 263; Clements v. Collins, 59 Ga. 124; Fowler v. Chiles, 27 Kan. 504; Hopkins v. VanWickle, 2 La. Ann. 143; Waugh v. Good, 6 Mo. App. 600; Holladay, v. Menifee, 30 Mo. App. 207; Pence v. Gabbert, 63 Mo. App. 302; Roomis v. Bedel, 11 N. H. 74; Griffith v. Hemshall, 1 Clarke Ch. 571; Blydenburgh v. Catheal, (1 Duer 176); Lewis v. Cook, 35 N. C. 193; Talbot v. Bedsford’s Heirs, 3 Tenn. 442; Scott v. Kirlcendall, 88 111. 465; Wilson v. Irish, 17 N. W. 511; Allis v. Nininger, 25 Minn. 535; Jones v. Richmond, 13 S. E. 414.</p> <p>Statutes are interpreted with reference to the common law. Sutherland on Stat. Const., section 29.</p> <p>The only damage that could be fixed would have to calculate the value of the land, when the deed was earned, and an action in deceit would not lie so long as plaintiff was in possession; and there was no time for a suit until ejectment and an action on the principalship of the agent was the only remedy. 8 Am. & Eng. Enc. Law, (2d Ed.) 110.</p> <p>As to necessity of surrender of purchase, see 8 Am. & Eng. Enc. Law, (2d Ed.) 111. Sufficiency of hostile assertion, see 8 Am. & Eng. Enc. Law, 113. Burden of proving title paramount, see same, page-198.</p> <p>This action is properly brought. It is upon the warranty and principalship liability of the agent contained in the contract, and the complaint is in proper form. Cochran v. Baker, 56 Pac. 641; Farmers’ Cooperative Trust Co. v. Floyd, 26 N. E. 110.</p> <p>The measure of damages is the value of the land in the fall of 1901, the time when the conveyance should have been made. Pinkston v. Huie, 9 Ala. 252; Gibbs v. Jemison, 12 Ala. 820; Wells v. Aberenthy, 5 Conn. 222; Bu-chmaster v. Grundy, 1 Scam. (111.) 310; McKee v. Brandon, 2 Scam. (111.) 339; Plummer v. Rigdon, 78 111. 222; Hill v. Hobart, 16 Me. 484; Lawrence v. Chase, 54 Me. 196; Dyer v. Dorsey, 1 Gill & J. 440; Cannel v. McAhean, 6 Har. & J. 297; Kirkpatrick v. Downing, 58 Mo. 32; Drake v. Baker, 34 N. J. L. 358; Barbour v. Nichols, 3 R. I. 187; Bordman v. Keeler, 21 Vt. 84; Hopkins v. Lee, 19 U. S. 109, 5 L. Ed. 218.</p> <p>A party by his own fraud may be estopped from pleading the statutes of limitation where he has done an act that prevented suit being brought while the statute was running. 13 Am. & Eng. Enc. Law (1st Ed.) 719 ; Armstrong v. Levan, 109 Pa. St. 177; Lingar v. Hazelwood, 11 Lea (Tenn.) 539; Simplot v. Chicago, etc., Car Co. 16 Fed. 350; Bailey v. Glover, 88 U. S. 342, 22 L. Ed. 636; Prondzinski v. Garbut, 8 N. D. 191, 77 N.W. 1012; Cox v. Huntsville Gas Light Co., 106 Ala. 373, 17 So. 626; Board of County Commissioners v. State, 7 N. E. 254; Davis v. Hoopes, 33 Miss. 175; Union Mortgage Banking & Trust Co. v. Peters, 18 So. 496; Talmadge v. Renselaer and S. R. Co. 13 Barb. 493; Ransom v. Shuler, 43 N C. 304; Chase v. Carney, 31 S. W. 43; Wilson v. McElroy, 50 N. W. 55; Tucker v. Bentley, 2 S. W. 769.</p> <p>Ordinary prudence and diligence do not require a person to test the truth of representations made to him by one as to his own knowledge, with the intention that they should be acted upon. Fargo Gas & Coke Co. v. Fargo Gas & Electric Co., 4 N. D. 219, 59 N. W. 1066. Section 5713, Rev. Codes, 1899.</p>

Action by Peter Picton against the County of Cass and others. Judgment for defendants, and plaintiff appeals. The act in question, Chap. 161, Laws of 1903, vests in the board of county commissioners, power to decide upon the expediency and advisability of the collection of the general revenues of the state, and its municipalities within their respective counties. This is delegating legislative power to such board, and the legislature has no power to do this.

Action by the Dowagiac Manufacturing Company against O. H. Hellekson. Judgment for defendant, and plaintiff appeals. Where title to goods sold is reserved by the seller as security only, he -can -waive the security and sue for the purchase price.

Action by Albert Wrege against John R. Jones. Judgment for plaintiff. Defendant appeals. One tort may be set up as a counter-claim against another where they both arise out of the same transaction. Pelton v. Powell, 71 N. W. 887; Barholt v. Wright, 12 N. E. 185; Gutzman v. Clancy, 90 N. W. 1081; Wallace v. Plomestead Co. et ah, 90 N. W. 835; Maxwell on Code Pleadings, chapter 12, p. -544; 22 Am. & Eng. Enc. Law, 359.

Action by Celestia E. Van Dusen against Benjamin F. Bigelow. Judgment for plaintiff, and defendant appeals. Power to superinted, make contracts, release and bind as to personal and -real property, does not constitute agency to sell real estate. Authority to sell real estate must be clear, concise and express.

Action .by W. C. Cruser and W. J. Baker against Erastus A. Williams. Judgment for plaintiffs, and defendant appeals. The holder of a certificate of sale under the Woods law has not the fee simple title until it is perfected by serving notice of expiration of period of redemption, and filing proof of such service with the clerk. No affidavit of service was filed and there was no record of such filing.

Action by Charles W. Darling and E. D. Angelí against W. E. Purcell and others. Judgment for defendants, and plaintiffs appeal. The tax judgment is void. Certificate to copy of resolution designating paper, does not show that it is a copy, and is fatally defective. Sykes v. Beck, 12 N. D. 242, 96 N. W. 844. Certified copy of such paper must be filed with the clerk of court. Cass County v. Security Improvement Co., 7 N. D. 528, 75 N. W. 775.

Action by Ole Simensen against Rhoda Simensen. Judgment for plaintiff. Defendant appeals. Affidavit for publication of summons must not follow in the language of the statute merely, but state the evidential facts showing the existance of ultimate facts requisite to the granting of an order for the publication. Beach v. Beach, 6 Dak. 371, 43 N. W. 701; Coughran v. Markley, 87 N. W. 2; Bothell v. Hoellwarth, 74 N. W. 231.

Action by Victor L. Josephson against Sigurjon Sigfusson. Judgment for plaintiff, and defendant appeals.

. Appeal from District Court, Steele county; Pollock, J. Action by J. J. Hogen against Tosten T. Klabo. Judgment for defendant, and plaintiff appeals. Indebtedness of stranger not material. 7 Am. & Eng. Enc. Law (2d Ed.) 78. Self-serving statements are inadmissable. Boston & A. R. Co. v. O’Reilly, 158 U. S. 334, 15 Sup. Ct.

Action by William E. Purcell and E. A. Divet against the Farm Land Company and the Middlesex Banking Company. Judgment for plaintiffs, and defendants appeal. The defendants and appellants had paid their taxes and received their receipts from the proper officer of the county; they had done all the law asked of them, and had perfect right to expect the proper record would be made by such'officer and that the title to said land would appear clear from such claims on the record.

Frank J .Cruikshank was convicted of assault, and appeals. The verdict is a nullity because the jury did not find the character of the weapon used. State v. Johnson, 3 N. D. 150, 54 N. W. 547; Ex parte An Qha, 40 Cal. 426.

Action by O. A. Braseth against the County of Bottineau. Judgment for defendant, and plaintiff appeals. Affidavit should be made by the chairman of defendant’s county commissioners, not the attorney. The only reason for the failure to answer was the negligence of such chairman in not correctly informing the state’s attorney of the correct time of service of summons. The excuse is entirely insufficient. Elliott v. Shaw, 16 Cal. 377; 6 Enc.

<p>Taxation. — Lands Sold to State Not Taxable After Three Years from Sale.</p> <p>1. Lands bid in for the state at a tax sale under chapter 132, p. 376, Laws 1890, and not redeemed or assigned within three years from such sale, become forfeited lands, and are not thereafter subject to sale for taxes while .they remain forfeited lands.</p> <p>Tax Deed from County Auditor — Validity.</p> <p>2. Lands bid in for the state under the revenue law of 1890 (Laws 1890, p. 376, c. 132), and becoming forfeited lands in 1893, cannot be lawfully sold for taxes attempted to be levied thereon for 1896 after becoming delinquent in 1897. If offered for sale in 1897 on such tax, and bid in for the state, and the county auditor, without direction from the state auditor, assigns the certificate to one who pays the amount for which sold, and subsequent taxes, and thereafter procures a deed from the auditor, such deed is not authorized and conveys no title.</p> <p>Authority of County Auditor.</p> <p>3. A county auditor has no authority except such as is expressly •or impliedly conferred upon him by statute.</p>

<p>Appellate Court Will Not Discuss Law or Facts on Application for Bail.</p> <p>1. In order that it may not prejudice the rights o-f a defendant in a ■criminal case upon his final trial, this court will not ordinarily, in refusing an application for bail, discuss either the facts or the law of the case.</p> <p>Applicants Not Entitled to Bail.</p> <p>2. Upon the record presented in this application it is held, that (1) ■the*.petitioners are not entitled to bail as a matter of strict legal right, and (2) that -no cause is shown for granting it as matter of discretion.</p>

<p>Injunction — Uncertain Order.</p> <p>1. An injunctional order which is uncertain with respect to the acts enjoined thereby is void.</p>

<p>Action Not Triable De Novo Under Chapter 201, Laws of 1903.</p> <p>1. An action at law for the recovery of money, only tried since the taking effect of chapter 201, p. 277, Laws 1903, is not triable in the district court under the provisions of section 5630, Rev. Codes 1899, as amended, and hence cannot be tried de novo on appeal.</p> <p>Statement ot the Case — Specification of Error.</p> <p>2. In cases not triable de novo on appeal neither errors of law occurring at <the trial nor the sufficiency of the evidence to sustain the findings can be considered by the supreme court without specifications of error embodied in a statement of the case.</p>

<p>Mistrial — Right of Jury Trial — Reversal on Appeal.</p> <p>1. A statement of case which shows that a law action triable to a jury as a matter of strict legal right was tried -to the court without a jury, under section 5630, Rev. Codes 1890, over defendant’s objection, and a jury was not waived, -presents a mistrial, which requires a reversal of the judgment -and a new trial.</p>

<p>Appeal from District Court, Cass county; Pollock, J.</p> <p>Action by Peter Nelson against Olaf Grondahl. Judgment for defendant and plaintiff appeals.</p> <p>Tire notary’s certificate recites that presentment was made and the instrument set out in such certificate shows where it was payable, this is sufficient to -show that presentment was made where the note was payable. Ashe v. Beasley, 6 N. D. 191, 69 N. W. 188.</p> <p>If a bill is not payable at a particular place, it need not be stated in the notary’s certificate where it was presented and demands made; if payable at a specified place, the certificate is insufficient it it fails to- show a presentment and demand there.- 2 Daniels on Negotiable Instruments, section 952; Gage v. Dubuque, etc., 77 Am. Dec. 145; People’s Bank v. Brooke, 7 Am. Rep. 11; Duckert v. Von Lileinthal, 11 Wis. 56.</p> <p>The notary’s certificate should have been excluded, as it did not state to whom the presentment was made, and it contains nothing from which such name can be inferred. Nave v. Richardson, 36 Mo. 130; Duckert v. Von Lileinthal, supra.</p> <p>Neither the certificate nor the testimony shows a demand and presentment, and the indorser is not liable.</p>

<p>Application by the state, on the relation of John Poul, for a writ of habeas corpus to John McLain, sheriff of Ramsey county.</p>

Action by Samantha Cughan against Bennie Larson and others. Judgment for defendants, and plaintiff appeals. Burden is upon defendant to show the authority of plaintiff’s agent in the performance of acts by which he seeks bind the plaintiff. Mechem on Agency, section 376; Ritz v. Martin, 74 Am. Dec. 315; Rice v. Peninsular Club, 17 N. W. 708; Pursley v. Morrison, 63 Am. Dec. 434; Rossiter v. Rossiter, 34 Am. Dec. 63.

J. Palda, Jr. J. Leslie R. Carroll was convicted of bastardy, and appeals. Where a continuance is asked on the ground of absence of witnesses, and there is a showing of due diligence and that the testimony can be procured for a later date, it is abuse of discretion to refuse such continuance. Adams v. Grand Island & W. C. R. Co., 72 N. W. 577.

'Action by Stewart Cairncross against O. M. Omlie. Judgment for plaintiff, and defendant appeals. Account books in which the entries are made by the bookkeeper from slips sent up by the clerk selling and delivering the goods are not admissible to prove the account, when unsupported by the evidence of such clerk, that at the time the entries were made upon the slips the goods therein charged were actually delivered.

<p>Appeal from District Court, Cass county; Pollock, J.</p> <p>Action by H. P. Lough against A. A. White. Judgment for plaintiff; defendant appeals.</p>

<p>Appeal from District Court, Ward county; Palda, Jr., J.</p> <p>Martin Mattison and others were convicted of shooting with intent to kill, and appeal.</p>

<p>Corporations — Stockholders’ Liabilities Enforced Without Reducing Claim to Judgment.</p> <p>1. A creditor whose claim has not been reduced to judgment may maintain an action against an insolvent corporation on behalf of himself and all other creditors to enforce stockholders’ liabilities as defined by section 2902, Rev. Codes 1899. Sections 5767-5770 authorize such an action.</p> <p>Enjoining Creditors’ Action to Enforce Lien — Abuse of Discretion — Receiver.</p> <p>2. Section 5773, Rev. Codes 1899, authorizes an injunction prohibiting creditors from proceeding with actions against an insolvent corporation where a creditor has 'brought an action under sections 5767-5770. But it is an abuse of discretion to issue an injunction under said section against a creditor who lias brought an action to foreclose a lien in his favor, when it is shown that general creditors can in no event derive any benefit from the proceeds of the property covered by the liens; and it is also an abuse of discretion to grant an injunction against the foreclosure of a lien in .such a case or to restrain a pending action by a creditor against such corporation owning •property without first appointing a receiver to preserve such property,</p>

Application by the state, on the relation of Charles J. Fisk, for writ of mandamus to E. F. Porter, Secretary of State.

<p>Adverse Claim — Proof of Passive Trust Upon Allegation of Absolute Title Not Fatal Variance.</p> <p>1. In an action brought to establish plaintiff’s ownership of land, and to prevent a conveyance thereof by a defendant apparently clothed with an absolute title, which the complaint alleges the defendant holds as security only for a debt, proof that the defendant’s apparent title is a mere passive trust is not such a variance as to constitute a failure of proof.</p> <p>Objection to Evidence on Ground of Variance Must Also Show Objector Misled to His Prejudice.</p> <p>2. An objection to the -admission of evidence on the ground that it is a material variance from the pleadings is of no avail unless the objection is supported by proof that the variance has misled the objecting party, to his prejudice, in maintaining his cause of action or defense on the merits.</p> <p>Bona Fide Purchaser — Passive Trustee.</p> <p>3. The land in dispute was wrongfully conveyed by the apparent but not real owner to H., who was only a nominal grantee to hold the title as trustee for a third party, who was the real buyer, and who paid the entire cash portion of the purchase price, and agreed to pay the remainder. Held that, as against the rightful owner of the land, H. was not a bona fide purchaser, but was a mere passive trustee for the real purchaser, even though H. signed a note and mortgage on the land to the seller for the unpaid portion of the purchase price.</p> <p>Bona Fide Purchaser — Payment After Notice of Defect in Title.</p> <p>4. Where one person is the cashier of a bank and secretary of another corporation, and is the active manager of both, a deposit by him in the bank of the consideration for a conveyance of land to the corporation of which he is secretary is not equivalent to payment to the grantor, so as to protect the grantee, as a bona fide purchaser, when such deposit is retained in the bank under the direction of such person, and subject to his actual control, and is voluntarily paid over to the grantor after notice of the invalidity of the grantor’s title.</p> <p>One Who Receives Conveyance Befoi’e Notice of Defect But Pays Purchase Price Thereafter, Not a Bona Fide Purchaser.</p> <p>5. One who pays to the grantor the entire consideration for a conveyance after notice of ,the grantor’s invalid title is not a bona fide purchaser, even though he received the conveyance before such notice.</p> <p>Appellate Court Notices Only Errors Affecting Appellant.</p> <p>6. On appeal 'by one of several defendants, this court will not notice alleged errors which do not affect the appellant.</p>

<p>Determination of Contest by State Central Committee Approved by Convention Is Conclusive Upon Courts.</p> <p>1. Where the state central committee of a political party has heard and determined a contest, after notice and upon the merits, between contesting delegates to a state convention, as to the regularity of the county conventions by which they ware elected, and its aotion has been affirmed by the convention, such determination is conclusive upon the counts, even as between -rival nominees of such conventions for county -offices. Following and affirming State v. Liudahl, 91 N. W. 950, 11 N. D. 320.</p> <p>Same — Rival Conventions — County Auditor’s Duty as to Official Ballot.</p> <p>2. The relator was nominated by one of two rival Republican conventions for the office of county treasurer of Ward county. Both conventions elected delegates to the state convention. The question of regularity was presented by -the delegates to the state central committee upon the merits for decision, and -was determined in favor of the relator’s convention, which action was affirmed by the state convention, and subsequently by a second state convention. Held, that it was the legal duty of the county auditor to print, the names of the relator and 'his co-nominees upon the official ballot as the nominees of the republican parity, and a writ of mandamus iwill be issued to compel him to do so.</p>

<p>Appeal from District Court, Cass county; Charles A. Pollock, Judge.</p> <p>Action by Alice E. Johnson against Treadwell Twichell. Judgment for plaintiff, and defendant appeals.</p> <p>The .property involved, when sold under the Pierce judgment, either was or was not respondent’s homestead. If the fatter, it was rightfully seized: and sold in satisfaction of the judgment, if the former it seems equally clear that its sale under execution carried no title to the purchaser.</p> <p>The homestead is exempt from forced sale to satisfy claims like those merged in the Pierce judgment. 'Const. North Dakota, section 208; sections 3605, 5517, 5490, Rev. Codes 1899.</p> <p>The pretended sale, if land was homestead, conferred no title and this action was not maintainable. Kendall v. Clark, 10 Cal. 17, 70 Am. Dec. 691; Speller v. Lee, 43 Ala. 381; Harmon et al. v. State, 82 Ind. 197.</p> <p>As to legal effect of statutes exempting property from forced sale, see Ketchin v. McCarley, 11 S. E. 1090; Roth v. Insley, 24 Pac. 853; Waggle v. Warthy, 74 Cal. 266, 15 Pac. 831; Ray v. Yarnell, 20 N. E. 705; Phillips v. Taber 10 S. E. 270; Trameek v. Martin, 14 S. W. 564.</p> <p>While a void sale of homestead passes no title, it casts a cloud upon the title that necessitates a removal. Proceedings to- remove a cloud can only be brought by one in possession of the property. N. P. Ry. Co. v. Paine, 119 U. S. 561, 30 L. Ed. 513; Lee v. Simpson, 2 L. R. A. 660.</p> <p>Party out of .possession must pursue remedy at law, i. e. restitution or damages against officer. Krippendorf v. Hyde, 110 U. S. 276, 28 L. Ed. 145; Corvell v. Hayman, 111 U. S. 176; 28 L. Ed. 390.</p> <p>If sheriff is liable for sale of exempt personalty, why not for homestead after notice? Northrop v. Cross, 2 N. D. 433, 51 N. W. 718.</p> <p>An action for trespass will lie against an officer and judgment creditor for sale of exempt homestead. Waples on Homestead and Exemptions, 756.</p> <p>If itlie -law requires the sheriff to sell off the homestead, he can not disregard it with impunity, and save die title from nullity and himself from damages. Waples on Homesteads and Exemptions, 7.31.</p>

<p>New Trial — Review.</p> <p>1. Upon an appeal from an order granting a new trial, when the motion is made upon several grounds, the question is not whether ■ the trial judge was warranted in granting it -upon a particular ground referred to by him in the order, but whether, upon the whole record, and upon any of the grounds urged, it should have been granted.</p> <p>It Is the Correctness of an Order, Not the Grounds Assigned’for It, That Will Be Reviewed.</p> <p>2. An order granting a new trial will not be reversed merely because the trial judge assigned a wrong reason for it. It is the correctness of the order, and not the reason assigned, that is involved upon the appeal.</p> <p>Statement of the Case on Motion for New Trial.</p> <p>3. Where a motion for a new trial is made in part upon the court’s minutes, the order granting or denying the motion cannot be reviewed in the absence of a statement of the case embodying such portions of the evidence or proceedings as are necessary to a review of the specifications based thereon.</p>

<p>Opinion Evidence Incompetent Upon Facts Which Jury Can Understand and Form Opinions On.</p> <p>1. The opinion of expert witnesses as to which of two or more causes produced a given effect are not admissible in evidence, where ■the conditions necessary to the operation of the different causes can be described with sufficient clearness, so that the jury can understand them, and intelligently form an opinion.</p> <p>Plaintiff Must Show That His Injury Arises from a Cause for Which Defendant Is Responsible.</p> <p>2. In an action .to recover damages for an injury alleged to have been caused by defendant’s negligence, where it appears that there ■were two or more possible causes of -the injury, only one of which is chargeable to defendant’s negligence, the burden is upon the plaintiff to make it appear that it was more probable that the injury resulted from the cause for which the defendant was responsible.</p> <p>Master Must Keep in Repair Appliances Furnished Employes.</p> <p>3. It is the master’s duty not only to provide proper appliances for .the use of his employes, but also to exercise ordinary care to keep the appliances in good repair.</p> <p>Same — Cannot Delegate the Duty.</p> <p>4. The master’s duty to provide proper appliances and to keep them in good repair cannot be delegated so as to avoid personal responsibility for the due performance of the duty.</p> <p>Master Liable Only When He Knows, or Ought to Know, of Defect.</p> <p>5. The master is not liable to his -employe for an injury caused by a defect in appliances resulting solely from use, unless the master knew .or ought to have known of and remedied the defect.</p> <p>Same.</p> <p>6. The employe does not assume the risk of injury caused by the ■master’s negligence, where he !had no knowledge of the existing danger.</p> <p>Judgment Notwithstanding the Verdict.</p> <p>7. To justify an order for judgment notwithstanding the verdict, ■the record must affirmatively show, not only that the verdict is not justified by the evidence, but it must also appear that there is no reasonable probability that the defects in the proof necessary to support the verdict may be remedied on another trial.</p>

<p>Appeal from District Court, Barnes county; Glaspell, J.</p> <p>Action by May V. Thompson against the Travelers Insurance Company. Judgment for plaintiff, and defendant appeals..</p> <p>The evidence is insufficient to support the verdict on the ground of good health. Good health is that condition wherein the body is free from any disease or ailment which tends to shorten life or permanently impair the health; a state of health which is free from any disease or ailment that seriously affects the general healthfulness of the system. Richards on Insurance (2d Ed.),.199; Grattan v. Met. Life Ins. Co., 92 N. Y. 274; Bancroft v. Home Benefit Assn., 120 N. Y. 14; Plumb v. Penn. Mutual Life Ins. Co., 65 N. W. 611; Met. Life Ins. Co. v. Howie, 62 Ohio St. 204; Manhattan Life Ins. Co. v. Carder, 82 Fed. 986.</p> <p>The evidence was insufficient to establish a waiver. An agent to solicit applications, deliver policies and collect premiums upon receipts countersigned by the state agent, cannot waive conditions or forfeitures, and his knowledge is not to be imputed to the insurer. Kirlcman v. Farmers Ins. Co., 57 N. W. 952; Globe Mut. of N. Y. Ins. Co. v. Wolff, 95 U. S. 326, 24 L. Ed. 387; Heath v. Springfield Fire Ins. Co., 58 N. H. 414; Maier v. Fidelity Mut. Life Ins. Co., 24 C. C. A. 239; Clemens v. Superior Assem. Royal Society of Good Fellows, 30 N. E. 496; Barteau v. Ins. Co., 67 N. Y. 595; Levell v. Royal Arcanum, 30 N. Y. Supp. 205; Wood on Ins., sections 413 and 435; Alexander v. Germania F. Ins. Co., 66 N. Y. 464; Northern Assurance Co. v: Building Assn., 183 U. S. 308; Richards on Ins., 99; Sun Ins. Co. v. Texarkana F. & M. Co., 4 Tex. Civ. App. 398.</p> <p>Good health does not necessarily mean absolute freedom from any ill, pain or indisposition. May on Insurance (2d Ed.), 387; Connecticut Mutual Life Ins. Co. v. Union Trust Co., 112 U. S. 250, o Sup. Ct. Rep. 119, 28 L. Ed. 708; Brown v. Metropolitan Life Ins. Co., 32 N. W. 610; Clemens v. Mutual Life Ins. Co., 20 Pa. Sup. Ct. 567; Woodmen etc. v. Locklin, 67 S. W. 331.</p> <p>The defendant by accepting, retaining and appropriating the premium and delivering the policy with full knowledge of assured’s health on the date when the premium was paid and the policy was delivered, has by such acts waived the provision in the policy that it should not take effect if the assured was not in good health and it is estopped to deny the validity of the policy. Lightbody v. North American Ins. Co., 23 Wend. 18; Hubbard v. Hartford Ins. Co., 33 la. 325, 11 Am. Rep. 125.</p> <p>Knowledge of the soliciting agent material to a risk would be the knowledge of the insurance company, and it would be bound thereby. Jordan v. State Ins. Co., 19 N. W. 917; Stone v. Hawkeye Ins. Co., 28 N. W. 47; Goodwin v. Provident Sav. Life Ins. Co., 66 N. W. 157.</p> <p>When an agent to .procure and forward applications for insurance makes out an application incorrectly, notwithstanding all the facts are correctly stated to him by the applicant, the error is chargeable to the insurer and not to the insured. American Life Ins. Co-, v. Mahone, 21 Wall. 152, 22 L. Ed. 593; Miner v. Phoenix Ins. Co., 27 Wis. 693; Wians v. Allemania Fire Ins. Co., 38 Wis. 342; Brandup v. Insurance Co., 27 Minn. 393, 7 N. W. 735; Wood on Insurance, chapter 12; May on Ins., section 120; Power v. Morton Ins. -Co., 80 N. Y. Ill; Mut. Reserve Fund v. Summers, 107 Fed. 418; Johnson v. Dak. F. & M. Ins. Co., 1 N. D. 167, 45 N. W. 799.</p> <p>Knowledge of its agent for soliciting insurance and collecting premiums, or facts justifying insurer in forfeiting a policy, is binding on it, though not communicated. N. W. Life Assurance Co. v. Bodurtha, 53 N. E. 787; Union Cent. Life Ins. Co. v. Hallowed, 43 N. E. 277; M-cElroy v. British Am. Assurance Co., 94 Fed. 990; Dietz v. Providence Washington Ins. Co., 8 S. E. 616; North British & Mercantile Ins. Co., v. Steiger, 16 N. E. 95; Newman v. Association, 40- N. W. 87; Lumberman’s Mutual Ins. Co. of Chicago v. Bell, 45 N. E. 130.</p> <p>Notice to a- subagent while engaged in soliciting, of any fact material to the risk, is notice to the company and binds it the same as if given directly to the agent himself. Carpenter v. German-Amer. Ins. Co., 31 N. E. 1015; Goode v. Georgia Home Ins. Co., 23 S. E. 744; Steele v. German Ins. Co. of Freeport, 53 N. W. 514-; Arff v. Star Fire Ins. Co., 25 N. E. 1073; 'Bennett v. Council Bluffs Ins. Co., 31 N. W. 948; Phoenix Ins. Go. v. Ward, 26 S. W. ■ 763; Schoeneman v. Western etc. Ins. Co., 20 N. W. 284.</p> <p>An insurance company may waive the payment of the premium at the time it is 'due. If it is afterwards paid after loss occurs and is retained and appropriated by the company and the policy delivered, it will be a waiver of the terms of the policy and the company cannot retain the premium and refuse to pay the loss. Schoeneman v. Western etc. Ins. Co., supraj Lobee v. Standard Live Stock Ins. Co., 33 N. Y. S. 657; Smith v. St. Paul Fire & Marine Ins. Co., 13 N. W. 355; Bloom v. State Ins. Co., 62 N. W. 810.</p> <p>Acceptance of premium after loss has occurred is a waiver of the right to declare a forfeiture of the policy and not a mere act of revival. Joliffe v. Madison Mutual Ins. Co., 39 Wis. Ill; Johnson v. Dak. Fire & Marine Ins. Co., 1 N. D. 167, 45 N. W. 799; Cotten v. Fidelity & Casualty Co., 41 Fed. 506; Os'hkos'h Gas Light Co. v. Germania Fire Ins. Co., 37 N. W. 819; Phoenix Life Ins. Co. v. Raddin, 120 U. S. 183, 7 Sup. Ct. Rep. 500, 30 L. Ed. 644; Wood on Fire Insurance, 50-51;'Schoeneman v. Western etc. Ins. Co., supra; Weiberg v. Minnesota Scandinavian Relief Assn., 76 N. W. 37; Erdmann v. Mutual Ins. Co., 44 Wis. 376; McQuillan v. Mut. Reserve Fund Assn., 87 N. W. 1069; Gray v. National Benefit Assn., 11 N. E. 477.</p>

<p>Appeal from District Court, Emmons county, Winchester, J.</p> <p>Action by George Gussner against Stephen A. Hawks. Judgment for defendant, and plaintiff 'appeals.</p> <p>A portion of a deposition may be read. VanHorn v. Smith, 12 N. W. 789. When in the taking of a deposition of a witness the adverse party has appeared and cross-examined, he is entitled to the benefit of the deposition, and may read such portions of it as he chooses without being compelled to read the whole. Converse v. Meyer, 14 Neb. 190, 15 N. W. 340; Southwark Ins. Co. v. Knight, 6 Whar. Pa. 327; Geilatly v. Lowry, 6 Bosw. 13 (N. Y.) ; Calhoun v. Hayes, 8 Watts & S. 127.</p> <p>The defendant on moving for a directed verdict admits in favor of the plaintiff every fact which the evidence submitted tended to show and all proper inferences therefrom of every fact and inference which the jury might find from the evidence submitted upon which the motion is based. Bohl v. City of Dell Rapids, 15 S. D. 619, 91 N. W. 315; Marshall v. Harney P. T. & M. M. Co. 1 S. D. 350, 47 N. W. 290; Sanford v. Duluth & Dak. Elevator Co. 2 N. D. 6, 48 N. W. 434; Warnken v. Langdon M. Co., 8 N. D. 243, 77 N. W. 1000.</p> <p>Extraneous evidence is admissible to ascertain the circumstances under which a writing was made, and the subject matter to be regulated by it. Wilson v. Troup, 2 Cowen 229; Summer v. Williams, 8 Mass. 214; Fowle v. Bigelow, 10 Mass. 384; Whallon v. Kaufman, 19 Johns. 104; Prairie School Twp. v. Haseleau, 3 N. D. 328, 55 N. W. 938; Morris v. Railway Co. 21 Minn. 91; Burke v. Ray, 41 N. W. 240.</p> <p>Where evidence is received without objection at the trial, no objection can be made on appeal. Warder et al. v. Ingli, 46 N. W. 181; Goode v. Smith 13 Cal. 81; Janson v. Brooks, 29 Cal. 214; Becker v. Becker, 45 la. 239; Hayne New Trials and Appeals, 398.</p> <p>An agent or trustee may, even though wrongfully as to his principal or beneficiary, dispose of his principal’s property to a stranger acting in good faith and without knowledge of the facts, or of facts imposing inquiry, and for value. But such stranger must be such in fact to the agent’s duplicity, and act in entire good faith, or he becomes a confederate in the wrong and cannot be protected, and as to the one not acting in good faith, as the trust property may be traced through any changes in whomsoever hands it may have come, he having notice, or into whatever form it may have been changed, and recover. Dow et al. v. Berry et al., 18 Fed. 121; May v. LeClaire, 78 U. S. 217, 20 L. Ed. 50; 1 Am. & Eng. Enc. Law, 427; 27 Am. & Eng. Enc. Law, 250; 1 Am. & Eng. Enc. Law, (2d Ed.) 1172.</p> <p>The doctrine is applied to implied as well as express trusts, to personal property as well as real. 12 Fed. 124.</p> <p>Under proper instructions, the question of ownership and right to possession of the cattle in question, and of Hawk’s knowledge of the plaintiff’s interests and- rights therein, should have been submitted to the jury. The questions of fact could not be decided adversely to the plaintiff by directing a verdict for the defendant. Drakely v. Dregg, 75 U. S. 242, 19 L. Ed. 409; Hickman v. Jones, 76 U. S. 197, 19 L. Ed. 551; Barney v. Schneider, 76 U. S. 248, 19 L. Ed. 648; Kelsey v. Oil Co., 45 N. Y. 505; Way v. R. R. Co., 35 la. 585.</p> <p>Where the thing bailed is sold by the bailee, such act determines, ipso facto, the bailee’s right of possession, and raises the right of the bailor to immediate possession, and he may maintain trespass, trover or replevin. Swift v. Mosley, 10 Vt. 208; Briggs v. Oakes, 26 Vt. 138; Briggs v. Bennett, 26 Vt. 146.</p> <p>The intention of the parties reduced to writing must be obtained therefrom alone if possible. Harris v. State, 9 S. D. 453, 69 N. W. 825.</p> <p>Under an executory contract, title cannot pass until delivery was made and all terms of said contract complied with. Nichols & Shepard Co. v. Paulson, 6 N. D. 400; 71 N. W. 136; Cook v. Logan, 7 Iowa, 141; 1 Par. on Con. 441; Story on Sales, section 286; C'hitty on Con. (10th Am. Ed.) '396; Óber v. Carson, 62 Mo. 209; Addison on Con. (2d Am. Ed.) 225.</p>

<p>Surface Water — Improvement of Highways — Liabilities of Township.</p> <p>1. A township is not liable for the loss suffered by a landowner by the increased flow of surface water upon his land, resulting solely from the improvement of a highway in the ordinary manner without negligence.</p> <p>Same.</p> <p>2. Whether or not any liability would ensue if the surface water had been diverted from a definite channel is not decided.</p>

<p>In an Equitable Action to Set Aside Tax Sale and Cancel Assessment, Absence of Assessor’s Affidavit from Assessment Boll Does Not Invalidate Sale or Bevy.</p> <p>1. In an equitable action brought to set aside a tax sale made in 1897 for the delinquent taxes of 1896, and to cancel the assessment of (taxes and levies of taxes for subsequent years up to and including 1902, the absence of an assessor’s affidavit from the assessment does' not invalidate the sale or levies in such equitable action. Farrington v. New England Investment Co., 45 N. W. 191, 1 N. D. 102, followed.</p> <p>Such Omission Fatal in an Action at Law — In Equity, Without an Allegation That the Assessment Was Unfair, Unjust or Fraudulent It Will Not Invalidate.</p> <p>2. The omission to attach the assessor's affidavit to an assessment roll is an illegal aot, and renders such assessment void in an action at law; but such admission will not invalidate an assessment where there is no allegation that the assessment was un.just, unfair or fraudulent, in an equitable action to cancel sales or certificates or taxes made, issued or levied under such assessment.</p> <p>Equitable Action to Set Aside Taxes — Invalid Assessment — Necessity of Tender.</p> <p>3. Courts of equity should, in general, interfere to restrain the collection of a tax or annul tax proceedings only where it appears either that the property sought to be taxed is not subject to taxation, or the tax itself is not wholly authorized by law, or the taxes are assessed or levied by unauthorized persons, or the taxing officers have acted fraudulently, or the taxes have been unjustly levied, or the assessment made unjustly or .without uniformity; and the plaintiff 'must,, in addition, bring himself within some recognized head of equity jurisprudence, and must also tender or pay the taxes justly chargeable upon his property, before an injunction should issue to restrain the collection of the taxes, unless statutory provisions make such tender unnecessary. Farrington v. New England Investment Co., supra, followed.</p> <p>Sections 1640, 1643, Comp. Laws of 1887, Repealed.</p> <p>4. Sections 1640, 1643, Comp. Laws 1887, authorizing the court to render judgment for the taxes due, in lieu of tender, were repealed in 1897 (Laws 1897, p. 297, c. 126, section 110), and no substitute therefor has since been enacted.</p> <p>In an Equitable Action to Cancel and Set Aside Tax Sale and Levy, Complaint Must Show Tender.</p> <p>5. In such an action the complaint should show payment or tender of the taxes justly due, or it will be held not to state a cause of action.</p> <p>Where a Part of Tax Is Legal and Part Illegal, the Legal Portion Must Be Tendered as Condition to Equitable Relief.</p> <p>6.If the complaint or evidence shows that a portion of the taxes are. legal and the amount ascertainable, and a part illegal, a court of equity will not restrain the collection of the illegal portion, except on condition that the legal portion has been paid or tendered.</p>

, sitting by request. Action by Catherine Timmins against Peter Russell. Judgment for defendant, and plaintiff appeals. A waiver of a stipulation in a contract, to be effectual, must be with knowledge and intent to waive. 28 Am. & Eng. Ene. Law, 527; Bfennecke v. Continental Mut. Ins.

<p>Robbery — Information.</p> <p>1. An information for the crime of robbery, as defined in section 7117, Rev. Codes 1899, is sufficient to charge a taking with intent to steal the property taken when it charges that the defendant “unlawfully, wrongfully and feloniously * * * did .take and carry away,” etc.</p> <p>Same — Instruction as to Intent — Request.</p> <p>2. It is the duty of the trial court to charge the jury in direct or equivalent terms that, to constitute robbery, -the taking of the property must have been with intent to steal it, even though not .requested so to do, such intent being a substantive element of this crime.</p> <p>Preliminary Examination.</p> <p>3. The record before the committing magistrate examined, and held to show that the defendant was given a legal preliminary examination on the crime for which an information was filed against him.</p> <p>“Wrongful” Equivalent to “Felonious.”</p> <p>4. The word “wrongful,” as used in the statute defining the crime of robbery, is to be construed as synonymous in meaning with the word “felonious.”</p>

Action by Ole Teigen against Robert J. Drake. Judgment for defendant, and plaintiff appeals. Chapter 120, Laws 1901, is wholly inoperative so far as the mortgage in suit is concerned, it having been- passed Feb. 27, 1901, when more than ten years had already run since the right to foreclose accrued, said act having an emergency clause. Merchants National Bank v. Braithwaite, 7 N. D. 358, 75 N. W. 244; Osborne v. Lindstrom, 9 N. D. 1, 81 N. W. 72.

Action by Andrew Thurston against the Osborne-McMillan Elevator Company. Judgment for plaintiff. Defendant appeals. To recover upon a seed lien, the plaintiff must show that the grain alleged to have been converted was grown by the person to whom 'he sold the seed, and upon the land described in his alleged seed lien. Joslyn v. Smith, 2 N. D. 53, 49 N. W. 382; Martin v. Hawthorne, 3 N. D'. 412, 57 N. W. 87.

In the matter of the estate of James T. Smith, deceased. From a judgment reversing a judgment allowing a creditor’s claim, he appeals.

Action by the Dowagiac Manufacturing Company against John Mahon and J. B. Robinson. From an order sustaining demurrer to the answer and counterclaim, defendants appeal. If any one of three defenses alleged is good, demurrer should be overruled. Flint v. Dulany, 15 Pac. 208; Pryse v. Bank, 48 S. W. 415; Lee v. Mehew, 56 Pac. 1046; Hill v. Walsh, 61 N. W. 440.

Action by William S. Lauder against Evan S. Jones. Judgment for plaintiff, and defendant appeals. The office of the inducement is to set out the circumstances, and of the colloquium to show that the words were spoken with reference thereto. Townshend on Slander and Libel, sections 335, 336, 337; Sturtevant v. Root, 27 N. H. 69; Com. v. Child, 13 Pick. 198; 13 Enc. PL & Pr. 49-54 and 32-36.

The officers of the subordinate lodges are the agents of the members thereof in the transaction of all official business required of them by the beneficiary rules, and are not the agents of the grand lodge. 'Graves v. M. W. A., 89 N. W. 6; Elder v. Grand Lodge A. O. U. W„ 83 N. W. 987; Grand Lodge A. O. U. W. v. King, 38 N. E. 353.

<p>Appeal from District Court, Barnes county, Winchester, Special J.</p> <p>Action by James Moore, executor of Donald McFadgen, against Herbert Weston and Phebe E. A. Weston. Judgment for plaintiff. Defendants appeal.</p> <p>One seeking to recover upon an express contract must plead all of its terms, andi if any appear on the face to defeat plaintiff’s right to recovery he must plead the facts that take the contract out of the exception. Bliss on Code Pleading, 202; 4 Ene. PI. & Pr. 919.</p> <p>It was error to admit the note in suit over objection with the defeating condition thereon. It was error to refuse the admission of the inscription on the back of the note. Blake v. Coleman, 22 Wis. 396 ; Wait v. Pomeroy, 20 Mich.- 425, 4 Am. Rep. '395; Franklin Savings Institution v. Reed, 125 Mass. 365; Selover Negotiable Instruments Law, section 93.</p> <p>A note made payable after the payee’s death is not testamentary in character and is enforceable. Miller v. Western College of Toledo, 52 N. E. 432, 69 Am. St. Rep. 242; Carnwright v. Gray, 127 N. Y. 92, 27 N. E. 835, 12 L. R. A. 845, 24 Am. St. Rep.. 424; Krell v. Codnran, 14 L. R. A. 860; Perry v. Cross, 132 Mass. 454.</p> <p>The stipulation or indorsement is absolutely void as being an attempt to dispose of the proceeds of a note after the death of the payee and being revocable and testamentary in its character. Schuyler on Wills, section 274; Jarman on Wills, 26; Hunt v. Hunt, 4 N. H. 434, 17 Am. Dec. 438; Priester v. Holeck, 75 N. Y. S. 405; Crispin, Adm’x, v. Winkleman, 10 N. W. 919; Knight v. Tripp, 54 Pac. 267; Comer v. Comer, 11 N. E. 848; Roberts v. Coleman, 16 S. E. 482; Tuttle v. Raish, 90 N. W. 66.</p>

<p>Special Proceeding.</p> <p>1. 'The procedure by which an injunction against the foreclosure of a mortgage by advertisement may be obtained under section 5845, Rev. Codes 1899, is not a special proceeding within the meaning of that term as used in the Code.</p> <p>Appealable Order.</p> <p>2. An order denying a motion to vacate such injunctional order is not appealable.</p> <p> ON PETITION FOR REHEARING. </p> <p>Costs.</p> <p>3. The respondent is entitled to costs upon the dismissal of an appeal from an order which is not appealable.</p>

<p>Appeal from District Court, Benson county; Cowan, J.</p> <p>Action by W. I. Brown against J. C. Smith and Russell & Co. Judgment for plaintiff. Defendants appeal.</p> <p>The holder of a second chattel mortgage is not an assignee under the provisions of section 5849, and could only redeem the mortgage debt, and this he could not do after a foreclosure sale. Martin v. Fridley, 23 Minn. 13; Collins v. Riggs, 14 Wall. 491, 20 L. Ed. 723 ; Gage v. Brewster, 31 N. Y. 218.</p> <p>Notice of intent to- redeem was not given in time. Mortgagor or his assignee can only -redeem -at the time of sale, not after.</p> <p>Plaintiff’s alleged tender was not kept good. It should have been kept good to the time of trial. This was as -essential as the tender itself. Burlock v. Cross, 26 Pac. 142; Aulger v. Clay, 109 111. 487; Lantry v. French, 33 Neb. 524, 50- N. W. 679; Sanders v. Bry-er, 25 N. E. 86; Sanders v. Peck, 131 111. 407; 25 N. E. 508.</p> <p>Redemption was in time. He had a reasonable time after the sale, and thirty-three minutes after the sale was a reasonable time.</p> <p>It is stipulated that the tender was made and it is a presumption that it continues to exist. Rev. -Codes, section 5713c, No. 32.</p> <p>A subsequent mortgagee is an assignee of the mortgage for the purpose of redemption, the same as he is for the purpose of reclaiming the surplus. Nichols v. Tingstand, 10 N. D. 172, 86 N. W. 694; Nopson v. Horton, 20 Minn. 268; Fowler v. Johnson, 3 N. W. 986; Brown v. Crookston Agricultural Ass’n, 26 N. W. 907; Aultman & Co. v. Siglinger, 50 N. W. 911. - *</p>

Action by J. H. Bosard against the city of Grand Forks. Judgment for plaintiff. Defendant appeals. A contract with a city is void, which is entered into without prior provision therefor in the appropriation bill and tax levy. Engstad v. Dinie, 8 N. D. 1, 76 N. W. 292; Roberts v. City of Fargo, 10 N. D. 230, 86 N. W. 726; City of Fargo v. Keeney, 11 N. D. 484, 92 N. W. 836. The retention of the fruits of the contract does not subject the corporation to liability.

<p>General and Special Verdict.</p> <p>1. In returning a .general verdict, the jury apply the law to the facts, and pronounce generally upon all of the issues. In a special verdict they “find the facts only,” and the trial judge determines their legal effect.</p> <p>Instruction Should Be Appropriate to the Character of the Verdict Required — Legal Conclusions in Verdict.</p> <p>2. Where a case is submitted for á special verdict; general instructions are not proper. The jury should only be given' instructions which are appropriate to the question which they are to answer, and it is error to inform them as to the effect their answers will have upon the ultimate rights of the parties, or to authorize them to answer in the form of a legal conclusion.</p> <p>General Instructions — Special Verdict.</p> <p>3. In an action tried as one to recover for an injury resulting from defendant’s negligence, the jury were given general instructions; and, as part of their special verdict, they were instructed to answer whether the plaintiff “was guilty of such contributory negligence as would bar him from recovery under the law as laid down in the instructions.” Held error.</p> <p>Complaint .Construed.</p> <p>4 Complaint construed, and held to charge an intentional injury, and not an injury resulting from negligence.</p>

Action by the Northwestern Fire & Marine Insurance Company against Sidney C. Lough and others. Judgment for defendant, and plaintiff appeals. Lough as equitable owner, and Loe as receiver, as the holder of legal title should be compelled to respect plaintiff’s mortgage, as its proceeds have enriched the fund in the hands of the receiver for the benefit of the creditor. A warranty deed properly executed expresses upon its face its true meaning, intent and purpose.

Action by Joseph F. Waldner against the Bowden State Bank. Judgment for plaintiff. Defendant appeals. Under section 4066, Rev. Codes 1899, the plaintiff must allege that the usurious interest was- knowingly taken. The statute is penal, and the illegal contract must be precisely set forth. Blaine v. Curtis, 59 Vt. 120, 59 Am.

<p>Resident Freeholder and Taxpayer May Restrain County Commissioners from Making Unlawful Expenditures.</p> <p>1. The plaintiff who is a resident freeholder and taxpayer of McHenry county, N. D., is a proper party to bring and maintain this action to restrain the board of county commissioners and one A. H. Jones, a nonresident, from proceeding further in the performance of a contract whereby -the said board employed said Jones to collect a final judgment in favor of said county.</p> <p>Where Contract is Ultra Vires, Laches in Bringing Action no Defense.</p> <p>2. Whether the plaintiff was .or was not guilty of negligence and unnecessary delay in instituting this action, he may nevertheless maintain the same, because the contract made by and between the board of county commissioners and the defendant Jones was ultra vires and void.</p> <p>Powers of County Commissioners.</p> <p>3. A contract made by the board of county commissioners of McHenry county with A. H. Jones, whereby he was employed to collect a judgment for $6,565, belonging to said county, from which no appeal had been taken, and the time for an appeal had expired, which contract contemplated the bringing of supplementary proceedings and divers actions against the judgment debtors and others, is not within the .powers of such board, but, on the contrary, is exclusively within the control and jurisdiction of the district court.</p>

Aotion by George O. Haugen against Ole C. Skjervheim. Judgment for defendant, and plaintiff appeals. A collateral covenant restraining the assigning of an agreement will not be enforced in equity where it appears in the contract that such restraint is but an incident to tlje objects of the principal covenants which have been substantially performed. Griggs v..

Action by B. G. Canfield against A. L. Orange. Judgment for defendant, and plaintiff appeals. Where a broker closed a deal and sent notice by mail within the prescribed time, his right to commissions was not affected by any failure of the mails to deliver the information. Gibbons v. Sherwin, 44 N. W. 99; O’Connor -v. Semple, lo N. W. 136.

Action by William F. Leonard against Robert L. Fleming and others. Judgment for defendants; plaintiff appeals. An unrecorded deed or mortgage prevails over a subsequent attachment. Kohn v. Lapham, 82 N. W. 408; Murphy v. Plankihton Bank, 83 N. W. 575; Bateman v. Backus, 4 Dak. 433, 34 N. W. G6; Roblin v. Palmer, 67 N. W. 949; Norton v. Williams, 9 la. 528; Plant v. Smythe, 45 Cal. 161. Notice of lis pendens must state that the land described has been attached.

<p>Appeal from District Court, Cass county; Pollock, J.</p> <p>Action by H. L. Loomis against Arthur G. Lewis, county auditor of Cass oounty. Judgment for defendant, and plaintiff appeals.</p>

Action by the Beidler & Robinson Lumber Company against The Coe Commission Company. Judgment for plaintiff, and defendant appeals. There must be a concurrence of both the contracting parties of the unlawful purpose or the contract will not be void. If one acts in good faith it is valid. Mohr v. Miesen, 49 N. W. 862; McCarthy v. Weare Com. Co., 91 N. W. 33; Donovan v. Daiber, 82 N. W. 848.

Lawrence Wisnewski was convicted of keeping a nuisance, and appeals. The place in which a common nuisance is maintained is of the substance of the charge and must be correctly described, or the complaint affords no basis for a preliminary examination. And an information for an offense for which accused has had no preliminary examination confers no jurisdiction upon the district court.

Charles Currie was convicted- of burglary, and appeals. A confession must not be obtained from the accused by any direct or implied promise on the part of officials 'concerned in his prosecution. 3 Am. & Eng. Enc. of Law, 499, 464; 14 Cent. Dig. section 1175. A subsequent confession following a previous one, made under the influence of promises of favor, is inadmissible, if such previous promises continue their influence on defendant’s mind at the time of the examination.

<p>Criminal Law — Appeal —: Record.</p> <p>This court cannot review alleged errors of the trial court in the absence of a .proper and sufficient record of the facts upon which the trial court acted in making the orders and rulings complained of.</p>

<p>Appeal from District .Court, Bottineau county; Palda, J.</p> <p>Robert A. Scholfield was convicted of maintaining a common nuisance, and appeals.</p>