Volume 14 — North Dakota Reports

Action by B. F. Berry against Adolphus Evendon. Judgment for plaintiff, and defendant appeals. Purchase of property, upon an oral agreement to convey to another upon repayment of the purchase price, does not create a trust. 15 Am. & Eng. Enc. Law (2d Ed.) 1148; Story Eq. Jur., section 1201A; Morton v. Nelson, 32 N. E. 916; Furber v. Page, 32 N. E- 444; Perry v. McHenry, 13 111. 221; Levy v. Brush, 45 N. Y. 589; Burden v. Sheridan, 36 Iowa, 125, 14 Am.

, J. Action by E. Torgrinson against the Norwich School District No. 31 and others. Judgment for defendants, and plaintiff appeals. An obligation incurred without a levy or appropriation is void. City of Fargo v. Keeney, 11 N. D. 484, 92 N. W. 836; Engstad v. Dinnie, 8 N. D. 1, 76 N. W. 292.

Action by Frank Welch against the Northern Pacific Railway Company. Judgment for defendant and plaintiff appeals. Defendant having moved for judgment notwithstanding the verdict and not in the alternative for a new trial, if the court erred in ordering judgment, the appellate court will order judgment for the amount of the verdict. Bragg v. C., M. & St. P. Ry.

Action 'by Thomas Beare against J. A. Wright and E. C. Bates. Judgment for plaintiff. Defendants appeal. Where one is deceived or defrauded, he can recover as damages the difference between the value of what he would have obtained had the .statement been true and the value of what he received. Fargo G. & C. Co. v. Fargo G. & E. Co., 4 N. D. 219, 59 N. W. 1066, 37 L. R. A. 593.

<p>Equity Will Reform or Rescind a Contract for Mistake as Circumstances Require.</p> <p>1. The defendant, by a mortgage foreclosure, 'had acquired title to real property formerly owned by plaintiff's father, and the defendant agreed to let the plaintiff buy that property -back, -and to make a written contract to that effect, whereby the purchase price was to be paid in installments and deed to be delivered when the payments were completed. By mistake of defendant’s agent, more land was described in the contract than the foreclosure covered. Held, that there was a mistake, for which equity would either reform or rescind the contract, as circumstances might require.</p> <p>Mistake — Means of Knowledge.</p> <p>2. Mere omission to resort to “means of knowledge” which would have obviated the mistake, where there is no neglect of legal duty, does not bar relief for mistake.</p> <p>Modification of Contract.</p> <p>3. When the defendant discovered the mistake, it proposed to plaintiff that the mistake be corrected by the -acceptance of a deed for that part of the property only which -t-he foreclosure covered. The plaintiff made no direct answer, but paid the remainder of the purchase price, and accepted the deed offered -by the -defendant, and his conduct, after defendant’s proposal until the delivery -of the deed, was -calculated to induce .the belief that he -assented to defendant’s proposal, and to cause the latter to forego resort to equitable relief. Held, that plaintiff will not be permitted to deny acceptance of defendant’s proposal to modify the contract.</p> <p>Parol Modification by Executed Agreement.</p> <p>4. The parol modification of the written contract, followed by the delivery and acceptance of the deed in accordance therewith, constituted ail alteration of the written contract by an executed parol agreement.</p> <p>Executed Parol Agreement — Action for Breach.</p> <p>5. The executed parol agreement was, in effect, a reformation of the written contract with respect to the land to be conveyed, and was a complete satisfaction of the contract as so reformed, which relieved the defendant from liability for breach of contract.</p>

<p>Mechanics’ Liens — Occupant Under Federal Homestead Law.</p> <p>Where materials are furnished for the erection of- a building-on lands held by an occupant under the homestead laws of the United States, the person furnishing such materials is not entitled to a lien upon the building nor upon the land. No lien attaches to a building unless the owner thereof has some interest in the land that can be sold to enforce the lien, except in the cases provided for under sections 4794 and 4795, Rev. Codes 1899. Gull River Lumber Co. v. Briggs, 9 N. D. 485, 84 N. W. 349, followed.</p>

<p>In an Action to Foreclose a Chattel Mortgage a Jury Trial Is Not a Matter of Right.</p> <p>1.Plaintiff brought an action ito foreclose a chattel mortgage, and made other mortgagees and lienholders, holding mortgages and liens on part of the property described in plaintiff’s mortgage, parties defendant, and asked to have defendants’ liens declared inferior and subsequent to plaintiff’s mortgage. Defendant Smith answered, and demanded that his liens be declared superior to that cf plaintiff, and asked judgment against plaintiff for the value of the property covered by his liens which plaintiff had taken possession of for the purpose of foreclosure. Defendant also prayed for general equitable relief. Plaintiff replied by a general denial. Held, that the -action is an equitable action, and that plaintiff was not entitled to a jury trial as a matter of right.</p> <p>Same.</p> <p>2. .Section 5032, Comp. Laws 1887, providing that all issues of fact for the recovery of money only must be -tried by a jury, did not entitle the plaintiff to a jury trial as a matter -of right in suoh an action.</p> <p>Section 5420, Rev. Codes 1899, Is Constitutional.</p> <p>3. Section 5420, Rev. Codes 1899, amending section 5032, -Comp. Laws 1887, and providing that all issues of fact in an action for the recovery of money only shall be -tried by a jury, does not restrict or change the right to a trial by'jury, and its enactment was not a violation of section 7 of article 1 of the constitution, providing that the right to a jury trial “shall be secured to all and remain inviolate.”</p> <p>Evidence — Measure of ^Damages.</p> <p>4. The evidence shows that the value of ten horses taken by plaintiff was $1,200, and the trial court found the value accordingly. The evidence further showed that plaintiff had taken only nine horses covered by defendant’s mortgages. There was no evidence as to the value of any of the horses separately. Held, that the judgment appealed from is not sustained by the evidence, and that this court cannot definitely determine the question of -the value of the property taken from such evidence, and, under such conditions, will not dispose of an appeal under section 5630, Rev. Codes 1899, but will order another trial.</p>

<p>Resulting Trust:— Evidence.</p> <p>1. To establish a resulting trust in real property by parol testimony the evidence must be clear, convincing and satisfactory, and of such a character as to leave in the mind of the judge no hesitation or substantial doubt.</p> <p>Res Judicata.</p> <p>2. A judgment in a former action between the-same parties is not conclusive evidence in a subsequent suit on a different cause of action, unless it is made to appear that the particular question sought to be concluded was necessarily tried and determined in the former proceeding.</p>

<p>Appeal from District Court, Barnes county; Lauder, J.</p> <p>Action by Jacob R. Harshman against the Northern Pacific Railway Company. Judgment for plaintiff and defendant appeals.</p>

<p>Schools — County Superintendents — Salaries.</p> <p>1. Schools in special districts are not under the official supervision of county superintendents, and are not to be taken into account in computing their salary, under ..section. 652, . Rev. Codes 1899, following Dickey County v. Denning,- 103 N. W. 422. : ■ . .</p> <p>Payment Under- Mistake — Recovery.</p> <p>2. To authorize'a recovery of money paid under mistake, it must appear that the plaintiff has not received the equivalent contemplated by the payment, and -that it is against conscience for the defendant to retain it. . ; ,</p> <p>County Superintendents— Clerir Hire.</p> <p>3. The county auditor' of Dickey county, in good faith', but without authority of law, included in the defendant’s monthly salary warrants the amounts which were due from the county to the clerks employed in his office. It was stipulated, and -the trial court found, that' defendant paid said clerks amounts in excess of those received from the county; that .the sums paid were the reasonable value of their services; that their services were necessary; and that such payments were accepted by the clerks “as a complete discharge and satisfaction for the work done by each.” Held, that a recovery by the county 'of the money thus paid to the defendant (its obligation to the clerks: -having- ■ been .discharged) cannot be sustained.</p>

<p>Appeal from District Court, Dickey county; Lauder, J.</p> <p>Action by the County of Dickey against W..W. Denning. Judgment for plaintiff and defendant appeals.</p>

<p>Appeal from District Court, Grand Forks county; Fisk, J.</p> <p>Action by Matilda Becker against Sydney C. Lough and others.</p> <p>From the judgment plaintiff and defendant George E. Becker appeal.</p> <p>An agreement to extend time for redemption, if made before the statutory time expires, is valid and enforceable, although based on no new consideration. Prondzinski v. Garbutt, 8 N. D. 191, 77 N. W. 1012; Butt v. Butt, 91 Ind. 305; Rector v. Shirk, 92 Ind. 31; Morrow v. Jones, 60 N. W. 369; Fisk v. Stewart, 24 Minn. 97; Steele v. Bond, 28 Mlinn. 267; Tice v. Russell, 44 N. W. 886; Schroeder v. Young, 161 U. S. 334, 16 Sup. Ct. Rep. 512, 40 L. Ed. 721; Union Mutual Life Ins. Co. v. White, 106 111. 67; Nicolas v. Otto, 132 Ilk 91, 23 N. E. 411; Spencer v. Frendendall, 15 Wis. 666; Dodge v. Brewer, 31 Mich. 227.</p> <p>Where a party agrees to hold a certificate of sale on foreclosure as security, no title passes to him under sheriff’s deed. Yankton Building & Loan Ass’n. v. Dowling, 74 N. W. 436. Smith v. Smith, 21 Pac. 4; Adair v. Adair, 29 Pac. 193; Macauley v. Smith, 132 N. Y. 524, 30 N. É. 997; Brinkman v. Jones, 44 Wis. 498; First National Bank v. Ashmead, 2 So. 657; Dodge v. Brewer, 31 Mich. 227.</p> <p>The Scandinavian-American Bank acquired no rights under the deed executed by Lough superior to plaintiff’s rights, as the latter was in open, visible and notorious possession when deed to the bank was executed. O’Toole v. Omlie, 8 N. D. 444, 79 N. W.' 849; Dickson v. Dows, 11 N. D. 407, 92 N. W. 798; Simmons Creek Coal Co. v. Doran, 142 U. S. 417, 35 L. Ed. 1063, 12 Sup. Ct. Rep. 239; Hodge’s Executors v. Amerman, 2 Ath 257; Springfield Homestead Association v. Roll, 137 111. 205, 27 N. E. 184, 31 Am. St. Rep. 3-58.</p> <p>The rule stated in section 4703; Rev. Codes 1899, which includes constructive as well as actual notice, is controlling in this case. Exon v. Dancke, 32 Pac. 1045; Petrain v. Kiernan, 32 Pac. 158; Murphy v. Plankinton Bank, 83 N. W. 575; New v. Wheaton, 24 Minn. 406; Groff v. State Bank of Minneapolis, 52 N. W. 651; Maupin v. Emmons, 47 Mo. 304; Brinkham v. Jones, 44 Wis. 498; Security Loan & Trust Co. v. Willamette Steam Mills Lbr. & Mfg. Co., 34 Pac. 321.</p> <p>Where land is occupied by husband and wife, and the recorded title is in one, the possession will be referred to-that title. Kirby v. Tallmadge, 160 U. S. 379, 40 L. Ed. 463, 16 Sup. Ct. Rep. 349; Iowa Loan & Trust Co. v. King, 12 N. W. 595; Hatch v. Munden, 94 N. W. 332; Leopold v. Krause, 95 111. 440; Gruhn v. Richardson, 128 Ilk 178; Olson v. O’Connor, 9 N. D. 504, 84 N. W. 359, 81 Am. St. Rep. 595.</p> <p>The deed to the Scandinavian-American Bank being given to secure a pre-existing debt, the bank cannot claim protection as a bona fide purchaser for value. DeLancey v. Stearns, 66 N. Y. 157; Howells v. Hettrick, 160 N. Y. 308, 54 N. E. 677; Commercial National Bank v. Pirie, 82 Fed. 799; Schloss v. Feltus, 61 N. W. 797; Lillibridge v. Allen, 69 N. W. 1031; Pride v. Whitfield, 51 S. W. 1100; March v. Ramsey, 36 S. E. 433; Morse v. Godfrey, 3 Story, 389.</p> <p>The mortgage from Lough to the Farmers & Merchants Savings Bank is yoid, as the plaintiff was in possession when it was given and is chargeable with notice of her equities. Seymour v. McKinstry, 106 N. Y. 230; Farmers & Traders Bank v. Kimball Milling Co., 47 N. W. 402; Prickett v. Muck, 42 N. W. 256; Nickerson v. Wells-Stone Mercantile Co., 74 N. W. 891; Lawton v. Gordon, 34 Cal. 36; Everdson v. Mayhew, 65 Cal. 163, 3 Pac. 641; County Bank of San Louis Obispo v. Fox, 51 Pac. 11; Richards v Snyder, 6 Pac. 186; Hyland v. Hyland, 23 Pac. 811; Lewis v. Lindley, 48 Pac. 765; Pride v. Whitfield, 50 S. W. 1100; Whitaker Iron Co. v. Preston Nat’l Bank, 59 N. W. 395; Schaible v. Ardner, 56 N. W. 1105; Let-son v. Reed, 45 Mich. 27, 7 N. W. 231; Wallace v. Wilson, 30 Mo. 335; Ledbetter v. Walker, 31 Ala. 177; Nickerson v. Meacham, 14 Fed. 881; Lakin v. Sierra Buttes Gold Mining Go., 25 Fed. 337; Newman v. Schwerin, 109 Fed. 942; Boone v. Chiles, 10 Peters, 177, 9 L. Ed. 388; Smith v. Orton, 18 Law Ed. 62.</p> <p>Either spouse may redeem from foreclosure sale. Armitage v. Davenport, '64 Mich. 412, 31 N. W. 408; Phelan v. Fitzpatrick, 54 N. W. 614; Rev. Codes, section 5854, sub. 1.</p> <p>Mere .breach of an oral agreement to extend .period of redemption is not sufficient in itself to entitle plaintiff to equitable relief, she must in addition show facts and circumstances amounting to an estoppel in pais. Schroeder v. Young, 161 U. S. 384, 16 Sup. Ct.' Rep. 512; Prondzinski v. Garbutt, 8 N. D. 191, 77 N. W. 1012; Tice v. Russell, 43 Minn. 67, 44 N. W. 886; Rector v. Shirk, 92 Ind. 31.</p> <p>If the agreement to allow a redemption was made after the period of redemption had passed, it must, in order to be valid, be supported by a new consideration. Davis v. Dresback, 81 111. 303; Smalley v. Hickok, 12 Vt. 153; Fisher v. Shaw, 42 Me. 32; Chase v. Mc-Lellan, 49 Me. 375; Stetson v. Everett, 59 Me. 376; Brown v. Law-ton, 87 Me. 83.</p> <p>The Scandinavian-American Bank acquired the Becker notes before maturity, for value, without notice of plaintiff’s claim, and became vested with the interest of the State Bank of Northwood in the property free of all equities on the part of the plaintiff. Nashville Trust Co. v. Smythe, 27 L. R. A. 666; Carpenter v. Longman, 16 Wal. 27-3, 21 L. Ed. 313; Sweat v. Stark, 31 Fed. 859; Bales v. Neddo, 1 McCreary,'U. S. 206; Sawyer v. Prickett, 19 Wal. 146, 22 L. Ed. 105; 20 Am. & Eng. Enc. Law (2d Ed.) 1043; 24 Am. & Eng. Enc. Law (1st Ed.) 240.</p> <p>Where plaintiff’s title had been divested by foreclosure sale and sheriff’s deed to Lough, and her husband, the maker of the notes transferred to the bank, was operating the farm in his own name, executing mortgages on the crops grown thereon without the signature of his wife, and applying the crops and their proceeds to his own uses, and in all respects holding himself out to the world as owner of the property, without objection on the part of the plaintiff, her possession jointly with her husband could not constitute any notice to the defendant of any secret claim on her part to the property. Thomas v. Kennedy, 24 Iowa, 401; Townsend v. Little, 109 U. S. 504, 27 L. Ed. 1013; Schumacker v. Truman, 66 Pac. 591; Goodwynne v. Bellerby, 43 S. E. 275; Rankin v. Coar, 11 L. R. A. 661; Harris v. McIntyre, 118 111. 275, 8 N. E. 182; Neal v. Pickerson, 61 Ga. 345; 1 Jones on Montgages, section 600; Red River Valley Land & Inv. Co. v. Smith, 7 N. D. 236, 74 N. W. 194; 2 Devlin on Deeds, section 763; Harms v. Coryall, 53 N. E. 87; Root v. Woolworth, 150 U. S. 401, 14 Sup. Ct. Rep. 136.</p>

<p>Appeal from District Court, Cass county; Pollock, J.</p> <p>Action by the Red River Valley National Bank 'against the city of Fargo. Judgment for plaintiff, and defendant appeals.</p> <p>The plaintiff failed to establish a cause of action and did not prove the material allegations of the complaint. The action is in tort for a wrong done the plaintiff, and proof to sustain the complaint ought to be in harmony with it. Plaintiff offered certain exhibits in evidence to which objection was made by the defendant. These exhibits were certain alleged contracts out of which the plaintiff’s claim grew. The objections to these were sound. The plaintiff did not plead the contracts, or base his action upon a contract, nor did he establish that they were lawfully made -by the defendant. The contracts were void, as the yeas and nays were not taken upon the proposition to create the liability against the city, or for the expenditure or appropriation of money. Section 2143, Rev. Codes 1899.</p> <p>The contracts were further void, as no appropriation had been previously made concerning the expense involved in the contracts. Section 2264, Rev. Codes 1899.</p> <p>Another of the contracts offered in evidence was void, as it contained a provision that the Northern Pacific Railway Co. should ship material for the paving to be done and its charges for freight should be applied upon its taxes. It is the duty of the city treasurer to receive all money belonging to the city from taxes and special assessments, and that such money should be paid out by the treasurer upon a warrant by the mayor countersigned by the auditor. Section 2176-77, Rev. Codes 1899. It is the duty of the city treasurer to hold all money received on special assessment in a special fund to be applied to payment of improvements for which the assessment was made, and such sums shall be used for no other purpose. Section 2183, Rev. Codes 1899.</p> <p>Under such provisions the city could not contract with the Northern Pacific Railway Co. to ship freight in payment of its taxes. Defendant may raise the question that the contract is ultra vires and void although the paving has been done. Engstad v. Dinnie, 8 N. D. 1, 76 N. W. 292; Goose River Bank v. Willow Lake School Twp., 1 N. D. 26, 44 N. W. 1002; City of' Litchfield v. Ballou, 114 U. S. 190, 29 L. Ed. 132; Roberts v. City of Fargo, 10 N. D. 230, 86 N. W. 726.</p> <p>The warrants were void because at the time of the making of the contract the city had -exceeded its debt limit. Const, of N. D., section 183; section 214S, subdiv. 5, Rev. Codes 1899.</p> <p>The entire cost of paving the streets, including street intersections, should have been assessed against abutting property. Section 2280, Rev. Codes 1895; Wright v. City of Tacoma, 19 Pac. 42; Walters v. Town of Lake, 21 N. E. 556; Wolf v. City’, 48 Iowa, 129; Smith v. Buffalo, 54 N. E. 62; Cunningham v. City of Peoria, 41 N. E. 1014.</p> <p>The warrants in suit were drawn upon the paving funds, and not upon -the street intersecting fund, and were -paid from special assessments. If the annual -appropriation bills, in which were included sums covering the cost of street intersections, were void because the yea and nay vote was not recorded, this would not affect that portion of the contracts as to which the cost was to he raised by special assessments. Ft. Dodge Electric L. &. P. Co. v. City of Ft. Dodge, 89 N. W. 7.</p> <p>A previous appropriation, where improvements are to be paid by special assessment, is not necessary.- Pine Tree Lumber Co. v.' Fargo, 12 N. D. 360, 96 N. W.-357. .</p> <p>The city had power to make the paving contracts in question; it permitted the contractors in good faith to'spend their money for its benefit and enjoy the fruits of the contract. It is now estopped to say the contracts and the warrants issued under them are invalid because the -city auditor neglected to record the yea and nay vote authorizing the making of the contracts. Moore v. N. Y., 73 N. Y. 238; Ft. Dodge Electric L. & P. Co. v. City of Ft. Dodge, 89 N. W. 7; Barber v. Denver, 72 Fed. 336; Argentó v. City of San Francisco, 16 Cal. 256; Hitchcock v. Galveston, 96 U. S. 341, 24 L. Ed. 659; Commercial Nat. Bank of Portland v. City of Portland, 33 Pac. 532; Erickson v. Cass County, 11 N. D. 494, 92 N. W. 841; Hockaday v. Board of County Commissioners, 29 Pac. 287.</p> <p>The city is liable for breach of its duties as trustee. Pine Tree Lumber Co. v. Fargo, supra.</p> <p>The city violated its duty to the holders of the warrants by diverting paving funds to the payment of warrants registered subsequently to those in suit. Pine Tree Lumber Go. v. Fargo, supra.</p> <p>' Independently of the contract, and without regard to its validity or invalidity, the appellant was liable for negligence in the execution of the trust which it voluntarily undertook to perform,'and which was within the scope of its municipal powers. Pine Tree Lumber Co. v. Fargo, supra; Argenti v. City of San Francisco, 16 Cal. 256.</p> <p>Contracts to be met by special assessments do not create a debt as to the city. Ft. Dodge Electric L. & P. Co. v. City of Ft. Dodge, 89 N. W. 7; Swanson v. Ottumwa, 91 N. W. 1048; Winston v. City of Spokane, 41 Pac. 888; 20 Am. & Eng. Enc. Law (2d Ed.) 1176; Pine Tree Lumber Co. v. Fargo, supra.</p>

<p>Appeal from District Court, Grand Forks county; Kneeshaw, J.</p> <p>Action by Louis Freeman and others against W. B. Wood. Judgment for defendant and plaintiffs appeal.</p> <p>The fallacy of the court in its former decision in this action is in its failure to distinguish between the case at bar and the decision of this court in Kitzman v. Minnesota Thresher Mfg. Co., 10 N. D. 26, 84 N. W. 585. In the Kitzman case the ground for setting aside the judgment was extrinsic to the merits of the case. The plaintiffs in this case claim that the judgment they seek to set aside is fraudulent, not because they were induced to keep away from the court, but because there was a fraud in the very accounting itself working a deception on the court to induce it to render a decree which it would not otherwise have rendered.</p> <p>Where there is actual litigation and parties try a controverted issue, each party must be on his guard against false swearing and false representations on the trial; where the fraud is not extrinsic, but is connected with the mere trial of the case, no redress in equity can be had as against the final judgment rendered. United States v. Throckmorton, 98 U. S. 61, 25 L. Ed. 93. But where there is no actual litigation in court and no contest between parties over a settled issue, but the proceeding is merely an accounting by a trustee in a court of equity for the benefit of the beneficiaries, the law looks upon the relation of the parties as different from those engaged in an actual lawsuit. And for fraud in the accounting itself, to wit, in false -swearing or presenting false vouchers or in making false entries in the account, the law will justify and compel a court of equity to set aside the judgment discharging such trustee and compel -him to make an honest accounting of his trust. Ridenbaugh v. Bumes, 14 Fed. 93; Anderson v. Anderson, 52 N. E. 1038; Perry on Trusts, section 924; Griffith v. Godley, 113 U. S. 89, 28 L. Ed. 934, 5 Sup. Gt. Rep. 385; Williams v. Herrick, 25 Atl. 1100; Pratt v. Northam, 19 Fed. Cas. 1254, 5 Mason, 95; West v. Wad-dill, 33 Ark. 575; Wringold v. Stone, 20 Ark. 526; Adair v. Cum-min, 48 Mich. 375, 12 N. E. 495; Holden v. Meadows, 31 Wis. 284; McLachlan v. Staples, 13 Wis. 448; Stetson v. Bass, 9 Pick. 27; Wiggin v. Sweet, 6 Mete. 194, 9 P. I. 166; 2 Leading Cases Eq. 208 and note; Nelson v. Rockwell, 14 111. 375; Bruce v. Doolittle, 81 111. 103; Bond v. Lockwood, 33 111. 212; 1 Woerner Admin. 1132, and note; Miller v. Steele, 64 Ind. 79; Greene v. Sargent, 23 Vt. 466, 56 Am. Dec. 88; 11 Am. & Eng. Enc. Law (2d Ed.) 1315 and 1316.</p> <p>The amended complaint alleges that the remedy by motion would not 'be adequate. The fraud on which we predicate our right to set aside the order discharging the assignee relates to the -very merits of the accounting, and the honesty and fairness thereof. To ■require a suitor to produce evidence covering the entire administration of this tru-st by the assignee so as to show that the accounting was not honest, on affidavits, is simply to deny him all remedy. It is only by the examination and cross-examination of the witnesses ■that the truth can be ascertained. It is absurd1 to require a party to' make a motion to set aside a judgment discharging the assignee, upon which motion the entire question of the court is involved and must be investigated; and when, after such investigation on motion it must be investigated a second time in a distinct proceeding in equity. It is not adequate remedy to compel a party to resort to two proceedings when one would suffice. 11 Am. & Eng. Enc. Law (2d Ed.) 201.</p> <p>Adequate remedy at law means one as practical and efficient as that which equity would afford under the same circumstances. 11 Am. & Eng. Enc. of Law, 200; Morse v. Nicholson, 38 Atl. 178; Hedlund v. Dewey, 105 Fed. 541; Springfield Milling Co. v. Barnard N. Co., 81 Fed. 261.</p> <p>The limitation upon proceedings by motion to open a judgment upon some ground going to the right of plaintiff to the relief granted does not militate at all against jurisdiction in equity to protect a person from a judgment obtained against him by fraud. California Beet Sugar Co. v. Porter, 9 Pac. 313; Baker v. Riordan, 4 Pac. 232; Brennan v. Bridge Company, 47 Atl. 668; Williams v. Pyle, 56 S. W. 833; Hendron- v. Kroner, 81 N. W. 783; Meyers v. Smith, 80 N. W. 273; Stong v. Gilbertson, 14 Mo. 116; Maberry v. McClu-rg, 51 Mo. 256-; Mock v. Pleasants, 34 Ark. 63; Hackley v. Draper, 60 N. Y. 88; Wickersham v. Comerford, 31 Pac. 358; Noyes v. Willard, 18 Fed. Cas. 469; Griffith v. Godley, 113 U. S. 89, 28 L. Ed. 934; Johnson v. Coleman, 23 Wis. 452; 99 Am. Dec. 193; Connell v. Stelson, 33 Iowa, 147; Caruthers v. Hartfield, 24 Am. Dec. 580; Hernandez v. James, 23 La. Ann. 484.</p> <p>The jurisdiction of a court of equity is not taken away by implication because another remedy has been afforded- the suitor. The original jurisdiction of equity remains intact. Waldron v. Simmons, 28 Atl. 629; Schroeder v. Loeber, 75 Md. 195, 23 Atl. 579, 24 Atl. 226 ; Wells v. Pierce, 27 N. H. 503 ; Irick v. Black, 17 N. J. Eq. 189 ; King v. Baldwin, 17 Johns. 384, 8 Am. Dec. 415; Phipps v. Kelly, 6 Pac. 707; McConihay v. Wright, 121 U. S. 201, 7 Sup. Ct. 940, 30 L. Ed. 932; Putnam v. New Albany, Fed. Gas. No. 11,481; Sweeny v. Williams, 36 N. J. Eq. 627; Weslay Church v. Moore, 10 Pa. St. 273; Corrothers v. Board of Education of Clinton Dist., 16 W. Va. 527; Ladd v. Stevenson, 19 N. E. 842, 8 Am. St. Rep. 748; Jones v. Newhall, 115 Mass. 224, 15 Am. Rep. 97.</p> <p>A court of equity may grant relief against the enforcement of a judgment at law, although a court of law having power to grant the relief has refused to do so. 12 Am. & Eng. Enc. Law, 139, 140; Baldwin v. Davidson, 40 S. W. 765; Stewart v. Caldwell, 54 Mo. 536; Mattern v. Gage, 15 Daly, 38; Foote v. Despain, 67 111. 28; How v. Mortell, 23 111. 478; Beams v. Denham, 2 Scam. 53; Wilday v. McConnell, 63 111. 278; Babcock v. McCommant, 53 111. 215; Brake v. Payne, 37 N. E. 140; Mosley v. Gilborn, 54 Pac. 121; Asbury v. Frisz, 47 N. E. 328; Burnett v. Milnes, 46 N. E. 464; Hayden v. Hayden, 46 Cal. 333; Ramsey v. Hicks, 53 Mo. App. 190; Link v. Link, 48 Mo. App. 345; Henderson v. Moore, 34 S. E. 446; Thompson v. Laughlin, 27 Pac. 752; Merriman v. Walton, 38 Pac. 1108.</p> <p>J. A. Sorley and Geo. A. Bangs, for respondent.</p> <p>An order discharging an assignee for the benefit of creditors is the final determination of a proceeding properly brought in a count of this state, and is a judgment. Section 4675, Compiled Laws of 1887; 17 Am. & Eng. Enc. Law (2d Ed.) 762; 1 Freeman on Judgments, sections 1 and 2; Joy v. Elton, 9 N. D. 428, 83 N. W. 875; Freeman v. Wood, 11 N. D. 1, 88 N. W. 721.</p> <p>The plaintiff Jones will not be permitted to proceed in equity against a judgment to which he was not a party and which did not at its rendition affect any of his rights. 2 Freeman on Judgments, ■section 512; 15 Enc. PL & Pr. 249; Packard v. Smith, 9 Wis. 184; Bank v. Heiman, 80 Ga. '624, 5 S. E. 795; West v. Carter, 129 111. 249, 21 N. E. 782; Walton v. Pearson, 111 N. C. 428, 7 S. E. 566; Ward v. Clark, 6 Wis. 509; Bean v. Fisher, 14 Wis. 57; ex parte McKenzie, 163 111. 48, 44 N. E. 413; Bough v. Bough, 37 Mich. 59, 36 Am. Rep. 495; Powell v. McDowell, 16 Neb. 434, 30 N. W. 371; Robinson v. Stevens, 33 Atl. 80.</p> <p>The right to complain of a judgment is nonvendible, and a cause of action that sounds in deceit or fraud is nonassignable. Zabriskie v. Smith, 13 N. Y. 333; Read v. Hatch, 19 Pick. 47; Cutting v. Tower, 14 Grey. 183; Leggate v. Mbulton, 115 Mass. 553; Crocker v. Bellangee, 6 Wis. 645, 70 Am. Dec. 489; Milwaukee & Minn. R. R. Co. v. Milwaukee & West. R. R. Co., 30 Wis. 174, 88 Am. Dec. 740.</p> <p>A cause of action sounding in a deceit is not assignable. Dayton v. Fargo, 45 Mich. 153, 7 N. W. 758; Brush v. Sweet, 38 Mich. 574; Norton v. Tuttle, 60 111. 130; Holmes v. Moore, 5 Pick. (Mass.) 357; Read v. Hatch, 19 Pick. 47; Cutting v. Tower, 14 Grey, 183; Leggate v. Moulton, 115 Mass. 553; Marshall v. Means, 13 Ga. 61, 56 Am. Dec. 444; Milwaukee & Minn. R. R. Co. v. Milwaukee & West. R. R. Co., 30 Wis. 174, 88 Am. Dec. 740; Crocker v. Bellangee,'6 Wis. 645, 70 Am. Dec. 489; Murray v. Buell, 76 Wis. 657, 45 N. W. 667, 30 Am. St. Rep. 93; Sanborn v. Doe, 93 Cal. 153, 38 Pac. 105, 37 Am. St. Rep. 101; Whitney v. Kelley, 94 Cal. 146, 39 Pac. 634, 15 L. R. A. 813, 38 Am. St. Rep. 106; Little v. Hawkins, 19 Gr. (Ont. 1873) 367; Pomeroy’s Eq. Jur. section 1376; 1 Perry on Trusts, section 69; 1 Bigelow on Fraud, pp. 314 and 545; 'Greenhood on Public Policy, p. 433.</p> <p>The complaint does not state facts sufficient to constitute a cause of action and is vulnerable to four objections, to wit: (a) The fraud and deceit pleaded is intrinsic to the judgment, (b) The bill fails to negative -laches, (c) The allegations of the bill are vague, indefinite and uncertain, (d) The plaintiff has an adequate and’speedy remedy other than by this bill.</p> <p>A count of equity will not interpose to vacate or set as-ide a judgment obtained by perju-ry or subornation of perjury. United States v. Throckmorton, 98 U. S. 61, 35 L. Ed. 93; Greene v. Greene, 3 Gray, 361, 61, Am. Dec. 454; Hass v. Billings, 43 N. W. 797;-Miller v. Morse, 33 Mich. 365; Gray v. Barton, 63 Mich. 180,'38 N.'W. 813; Faison v. Faison, 55 N. H. 78’; Smith v. Lowery, 1 Johns, ch.-433; Ross v. Wood, 70 N. Y. 8; Pico v. Cohn, 91 Cal. 139, 37 Pac. 357, 13 L. R. A. 336; Van Walters v. Bqard of Childrens’ Guardian of Marion County, 133' Ind. 567, 33 N. E. 568, 18 L. R. A. 431; Hamilton v. McLean, 139 Mo. 687,'41 S. W. 336; M-cDougall v. Walling, 21 Wash. 487, 58 Pac. 671; Earle v. Earle, 33 S. C. 504, 12 S. E. 165.</p> <p>An action does not lie against a successful litigant or his witnesses for damages on account of his or their perjury, nor may such perjury or subornation of perjury be pleaded as a defense to an action on the judgment. Smith v. Lewis, 3 Johns. 157, 3 Am. Dec. 469; Cunningham v. Brown, 18 Vt. 123, 46 Am. Dec. 140; Dunlap v. Gilden, 31 Me. 435, 52 Am. Dec. 625; Peck v. Woodbridge, 3 Day, 30; Denerit v. Lyford, 27 N. H. 541; Lyford v. Denerit, 32 N. PI. 234; Cottle v. Cole, 20 Iowa, 481.</p> <p>The bill fails to negative laches. If the judgment be unjust, as the plaintiff’s ignorance was without fault, laches or failure of diligence, equity may grant relief. - Wales v. Bank, Har. Ch. (Mich.) 308; Hubbard v. Hobson, Breese, 190; Inglehárt v. Lee, 4 Md. Ch. 514; Cape Sable Co.’s Cases, 3 Blad. 606; Blatzell v. Randolph, 9 Fla. 366.</p> <p>To entitle party to relief he must be free from all fault or negligence on -his part, including willful fault, want of care, diligence and prudence requisite in the ordinary business of life. Burton v. Wiiley, 26 Vt. 432; Story’s Equity Jr. 1574; Taylor v. Fore, 42 Tex. 256; Emerson v. Udall, 13 Vt. 477,'37 Am. Dec. 604; Pettes v. Bank of Whitehall, 17 Vt. 435; Carrington v. Holabird, 17 Conn. 530; Foster v. Wood, 6 Johns Ch. 87; Kinney v. Ogden, 2 Green Ch. 87; York v. Cloptor, 32 Ga. 362; Vilas v. Jones, _1 N. Y. 274.</p> <p>A judgment may be rendered against a litigant which is clearly inequitable and unconscionable. Accident, surprise, mistake, fraud or wrongful conduct of his adversary may have contributed to the result, and the circumstances may be such that there is no relief except in equity, and his equity may be such as to render the courts anxious to afford redress; but if a party is put in an unfortunate position through his own negligence or inattention, equity will not interpose in his behalf. Foster v. Mansfield, C. & L. M. R. R. Co., 146 U. S. 88, 13 Sup. Ct. Rep. 28; Champion v. Woods, 79 Cal. 17, 21 Pac. 523, 12 Am. St. Rep. 126; Stroup v. Sullivan, 2 Ga. 275, 46 Am. Dec. 389 ; Bellamy v. Woodson, 4 Ga. 175, 48 Am. Dec. 221; Ames v. Snider, 55 111. 498; Cairo, etc., R. R. Co. v. Holbrook, 92 111. 297; Ratcliff v. Stretch, 130 Ind. 282, 30 N. E. 30; English v. Aldrich, 132 Ind. 500, 31 N. E. 456, 32 Am. St. Rep. 270; Hollinger v. Reeme, 138 Ind. 363, 36 N. E. 1114, 46 Am. St. Rep. 402; Casey v. Gregory, 13 B. Mon. 505, 56 Am. St. Rep. 581; Amhurst .College v. Allen, 165 Mass. 178, 42 N. E. 570; Kelleher v. Boden, 55 Mich. 295, 21 N. W. 346; Yarborough v. Thompson, 41 Am. Dec. 629;-Jordon v. Thomas, 34 Miss. 72, '69 Am. Dec. 387; Norwegian Plow Co. v. Bollaran, 47 Neb. 187, 66 N. W. 292; Parker v. Jones, 5 Jones Eq. 276, 75 Am. Dec. 441; Brenner v. Alexander, 16 Or. 349, 8 Am. St. Rep. 301, 19 Pac. 9; Thompkins v. Brennen, 56 Fed. Rep. 694; Hendrickson v. Hinckley, 58 U. S. 443, 17 How. 443, 15 L. Ed. 123; Crim v. Handley, 94 U. S. 652, 24 L. Ed. 216; Evers v. Watson, 156 U. S. 527, 15 Sup. Ct. Rep. 430.</p> <p>The allegations of the bill are vague, indefinite and uncertain. What may seem ample to the plaintiffs as proof of fraud as a basis for their charge might if presented to the court seem entirely inadequate. Badger v. Badger, 69 U. S. 87, 17 L. Ed. 836; Foster v. Mansfield, C. &. L. M. R. R. Co., 146 U. S. 88, 13 Sup. Ct. Rep. 28; Marquez v. Frisbie, 101 U. S. 473, 25 L. Ed. 800; United States v. Atherton, 102 U. S. 372, 26 L. Ed. 213; Evers v. Watson, 156 U. S. 527, 15 Sup. Ct. Rep. 430; Smith v. Nelson, 62 N. Y. 286; Ohio & W. Mortgage & Trust Co. v. Carter, 58 Pac. 1040; Smith v. Bank, 18 R. I. 705, 30 Atl. 342; Kay v. Whittaker, 44 N. Y. 565.</p> <p>There is adequate remedy in the original proceeding. Freeman v. Wood, 11 N. D. 1, 88 N. W. 721; Kitzman v. Minnesota Thresher Mfg. Co., 10 N. D. 26, 84 N. W. 585.</p> <p>There is ample remedy by motion in the original proceeding. Section 5298, 3 Pom. Eq. Jur. section 1361; Headley v. Bell, 84 Ala. 346; Harding v. Hawkins, 141 111. 572, 31 N. E. 307, 33 Am. St. Rep. 347; Ratcliff v. Stretch, 130 I>nd. 282, 30 N. E. 30; Whitaker v. Wickersham, 5 Del. Ch. 187; Lininger v. Glenn, 33 Neb. 187, 49 N. W. 1128; Proctor v. Pettit, 25 Neb. 96, 41 N. W. 131; Phillips v. Pullen, 45 N. J. Eq. 5, 16 Atl. 9.</p> <p>Where a judgment may be set aside by a motion in the original action, on the grounds which would give jurisdiction to a court of equity, and the time within which such motion may be made has not expired, the remedy ait law is adequate and courts of equity will not take jurisdiction. Freeman on Judgments, section 497, p. 874; Logan v. Hillegass, 16 Cal. 201; Bibend v. Kreutz, 20 Cal.. 110; Sauchez v. Carriaga,.31 Cal. 170; Luco v. Brown, 73 Cal. 3, 14 Pac. 366, 2 Am. St. Rep. 772; Hart v. Lazaron, 46 Ga. 396; Morris v. Morris, 76 Ga. 733; Hollinger v. Reeme, 138 Ind. 363, 46 Am. St. Rep. 402, 36 N. E. 1114; Mason v. Miles, 63 N. C. 564; Gallop v. Allen, 103 N. C. 24; Whitehurst v. Merchants & Farmers Transp. Co., 109 N. C. 343, 13 S. E. 937; Crocker v. Allen, 34 S. C. 452, 13 ,S. E. 650, 27 Am. St. Rep. 831; Ede v. Hazen, 61 Cal. 3'60 ; Ketchum v. Crippen, 37 Cal. 223 ; Heller v. Dyerville Mfg. Go., 47 Pac. 1016; Yorke v. Yorke, 3 N. D. 343, 55 N. W. 1095; Kitzman v. Minnnesota Thresher Mfg. Co., 10 N. D. 26, 84 N. W. 585; Crandall, v. Bacon, 20 W.is. 639, 91 Am. Dec. 451; Buckley v. Hellbrunner, 7 Ind. 489; Grass v. Hess, 37 Ind. 193; March, Admr. v. Best, 41 Mo. 493; Vilas v. Plattsburg & M. R. Co., 125 N. Y. 440, 25 N. E. 941; Brown v. Chapman, 90 Va. 174, 17 S. E. 855, 20 Am. St. Rep. 771.</p> <p>The rules of equity are applicable to a complaint such as the one at bar. Bursinger v. Sleeper, 69 Wis. 219, 34 N. W. 149; In re Baker, 72 Wis. 395, 39 N. W. 764; Lawson v. Stacey, 51 N. W. 961; Commercial Bank v. McAuliffe, 66 N. W. 110; Kows v. Mowery, 10 N. W. 283; Carver v. Lewis, 2 N. E. '705, 2 N. E. 714; In re Plawle)1', 3 N. E. 68; Field v. Ridgley, 6 N. E. 156; Casttetter v. State ex rel. Bradburn, 14 N. E. 388; Braiden v. Mercer, 7 N. E. 155.</p>

<p>Attachment — Dissolution by Bankruptcy.— Exempt Property.</p> <p>1. The lien of an attachment is not dissolved by the bankruptcy of the attachment debtor, where the property .attached is exempt as against the trustee in bankruptcy, 'but is not exempt from seizure for the debt upon which the attachment is based.</p> <p>Attachment May Hold Until Decision of the Bankrupt Court as to Exemptions.</p> <p>2. Where it is conceded tha-t part and possibly all of the property attached is exempt from the 'bankruptcy proceedings, the property may be held under the attachment until it has been determined in the bankruptcy proceedings what part, if any, of the attached property has .passed to the trustee in bankruptcy, freed from the bankrupt’s claim for exemptions.</p> <p>False Pretenses as Applied to Attachment Not a Part of Cause of Action.</p> <p>3. False pretenses which are relied upon solely as a basis for the provisional remedy by attachment, and to defeat the defendant’s right ■to exemptions, do not constitute part of the cause of action, where •the plaintiff sues on contract to recover the purchase price of goods sold and delivered.</p> <p>Trustee in Bankruptcy Cannot Intervene to Get Possession of Attached Property.</p> <p>4. The fact that the warrant of attachment has been levied upon the property of the bankrupt does not authorize the trustee in .bankruptcy to intervene in the action in which the .attachment issued for the purpose of obtaining possession of the attached property.</p>

<p>Appeal from District Court, Cass county; Pollock, J.</p> <p>Action by Peter Clemens and others against the Royal Neighbors of America. Judgment for defendant and plaintiffs appeal.</p> <p>It was error to admit proofs of death on the trial, they being made on hearsay by the guardian of the minor plaintiffs. Stevens v. Continental Casualty Co., 12 N. D. 463, 97 N. W. 862; 15 Am. & Eng. Enc. Law (2d Ed.) 71; 2 Jones on Evidence, section 361.</p> <p>It was error denying motion to strike out coroner's certificate in medical proof of death. 2 Jones on Evidence, section 368.</p> <p>It was error to admit parol evidence of the contents of the note alleged to have been found in the room where deceased’s body was found, there being no proof that it was in the bandwriting of decedent, or that it was written contemporaneously with or immediately prior to his death; and is not a confession or admission of an intent to commit suicide, or -any other wrongful act, and is no part of the res gestae. Fitch v. Popular Life Ins. Co., 59 N. Y. 557, 17 Am. Rep. 372; Bridges v. Eggleston, 7 Am. Dec. 212; Rawls v. American Mut. Life Ins. Co., 27 N. Y. 282, 84 Am. Dec. 280: Swift v. Massachusetts Mut. Life Ins. Co., 63 N. Y. 186, 20 Am. Rep. 522; Seiler v. Economic Life Ass’n, 74 N. W. 941.</p> <p>Unless the note was part of the res gestae it would not be binding on the plaintiffs. Metcalf v. Conner, 12 Am. Dec. 340.</p> <p>There must be proof by competent evidence of death resulting from a bullet wound in the head before any admission or declaration of the deceased is admissible. I Bish. Crim. Pro., section 1058; Wharton Crim. Ev., section 632; Wills Circumstantial Ev. 88; People v. Jones, 31 Cal. 566; Mathews v. State, 28 Am. Rep. 698.</p> <p>Parol proof of the contents of the note found in the room with decedent’s body was not admissible, there being no evidence of the loss or destruction of the original. Jones on Evidence, section 599.</p> <p>It was error to admit the opinion of the witness Samuel Mitchell as to the cause of death, there being no proper foundation laid by showing the witness to be qualified to express an opinion, and such opinion not being based upon any examination made by the witness or any other person. 2 Jones on Evidence, section 370.</p> <p>Expert opinion must be based upon facts within the knowledge of the witness or upon proper fejqpotbetical questions. Rogers on Ex. Testimony, 113.</p> <p>It was error to admit the evidence of the same witness as to the cause of the wound and as to who inflicted it, such facts being solely for the jury. Rogers on Ex. Testimony, 129 ; People v. Hare, 57 Mich. 505, 24 N. W. 843; State v. Rainsbarger, 37 N. W. 153.</p> <p>It was error to direct a verdict for the defendant. The cause of death and by whom inflicted can only be drawn 'from the facts proved, and the jury alone can draw such inferences. Stevens v. Continental Casualt}'' Co., supra; Anthony v. Mercantile Mut. Accident Ass’n, 162 Mass. 354, 38 N. E. 973, 26 L. R. A. 406, 44‘ Am. St. Rep. 367.</p> <p>Suicide cannot be presumed, it must be proved by competent evidence. Modern Woodmen of America v. Kozak, 88 N. W. 248; Mitterwallner v. Sup. Lodge of the Knights of the Golden Star, 76 N. Y. Supp, 1001; Mutual Life Ins. Co. v. Wiswell, 44 Pac. 996; Sartell v. Royal Neighbors of America, 88 N. W. 985.</p> <p>Evidence of suicide must be of a character to exclude with reasonable certainty any other cause of death. Leman v. Manhattan Life Ins. Co , 24 L. R. A. 589; Mutual Life Ins. Co. v. Wiswell, supra; Mallory v. Travelers Ins. Co., 47 N. Y. 52, 7 Am. Rep. 410; Equitable Life Ins. Ass’n v. Patterson, 5 Am. Rep. 535; N. W. Life Ins. Co. v. Hazlett, 55 Am. Rep. 392.</p> <p>The language in the benefit certificate is vague and uncertain as to its meaning, and its obvious purpose being to mislead plaintiffs, defendant is estopped from claiming forfeiture under it. N. Y. Ins. Co. v. Eggleston, 96 U. S. 572, 24 L. Ed. 841; Phoenix Mut. Life Ins. Co. v. Doster, 106 U. S. 30, 27 L. Ed. 65.</p> <p>Being ambiguous it must be construed against the insurers. Cook v. Benefit League of Minnesota, 79 N. W. 320; Wallace v. German Ins. Co., 41 Fed. Rep. 742; Rev. Codes, sections 3912 and 3778.</p> <p>A contract of insurance will, if possible, be construed so as to avoid forfeiture. Bridge v. National Union, 76 N. W. 270.</p> <p>Forfeiture is not to be declared unless the terms of the contract expressly require it. Warwick v. Supreme Council K. of D., 32 S. E. 951.</p> <p>Parol evidence of the contents of the note found in the room with the body of deceased was properly admitted. Notice was served to produce the original. The presumption is that the writing would be among the effects of the deceased and pass to the possession of the plaintiffs. It was shown that it was not in such possession. It was shown to be lost and beyond the reach of the defendant. Under such circumstances parol evidence was clearly admissible. Kerr v. Modern Woodmen of America, 117 Fed. 593; Renner v. Bank of Columbia, 22 U. S. 581, 6 L. Ed. 166; Clark v. Hornbeck, 17 N. J. Eq. 430; Wade v. Wark, 13 Tex. 482.</p> <p>The sufficiency of the proof that a written instrument cannot be procured by the party desirous of proving its contents by secondary evidence is for the trial court. Milford v. Veazie, 14 Atl. 730; Smith v. Brown, 151 Mass. 389, 24 N. E. 31; United States v. Sutter, 62 U. S. 170, 16 L. Ed. 119; Stratton v. Hawks, 43 Kan. 541, 23 Pac. 591; Carr v. Miller, 43 111. 179; Walker v. School Dist., 22 Conn. 326.</p> <p>Its decision will not be reviewed unless based upon an error of law. Smith v. Brown, 151 Mass. 338, 24 N. E. 31; Bonds v. Smith, 106 N. C. 553; Gorgos v. Hertz, 150 Pa. St. 538; Bain v. Welsh, 85 Me. 108.</p> <p>Evidence of the contents of the note was admissible as part of -the res gestae, and as showing the intention with which the act was ■done and the character and nature of the act. Hale v. Life Indemnity & Inv. Co., 68 N. W. 182; Weld v. Mutual Life Ins. Co., 61 111. App. 187; Rens v. N. W. Mut. Relief Ass’n, 75 N. W. 991; Conn. Life Ins. Co. v. McWhirter, 73 Fed. 44; Railway Co. v. Jackson, 81 Ind. 19; Kerr v. Modern Woodmen of America, 117 Fed. 593; Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285, 12 Sup. Ct. Rep. 909; Rodgers v. Manhattan Life Ins. Co., 71 Pac. 348; Robbins v. Spencer, 38 N. E. 522.</p> <p>The rule regarding the proof of the corpus delicti does not require that before evidence of who is the cause or perpetrator of the act or result may be introduced that the act itself must first be proved as done, but that before conviction may be had it must be proved that the act was in fact done. 3 Greenleaf on Evidence, section 30; State v. Davis, 48 Kan. 1; State v. Patter, 52 Vt. 33.</p> <p>The opinion of Dr. Mitchell as to the cause of the death and who inflicted the wound was properly admitted. He was a physician and surgeon of fifteen years’ experience; had had experience with bullets, and bad actually examined the body and the wound. His opinion, based upon knowledge derived as attending physician and coroner and .actual official examination, was clearly admissible as to the cause of the death and the instrument which caused it. 12 Am. & Eng. Enc. Law, 444; State v. Tippett, 94 Iowa, 646, 63 N. W. 445 ; People v. Hare, 57 Mich, 505, 24 N. W. 843; People v. Foley, 59 Mich. 440, 26 N. W. 699; Prince v. State, 100 Ala. 144, 46 Am. St. Rep. 28; People v. Wong Chuey, 117 Cal. 624, 49 Pac. 833; State v. Cross, 68 Iowa, 180, 26 N. W. 62.</p> <p>The admissibility of the evidence as to deceased’s social and business standing cannot be raised in this court, as the question was not followed up by an offer of evidence and it does not appear upon its face to be competent. Halley v. Folsom, 1 N. D. 325, 48 N. W. 219.</p> <p>If such evidence was improperly excluded, it was immaterial error, as the evidence shows conclusively that the death of deceased was caused by his own act — -intentionally.</p> <p>Proofs of death are competent evidence as to the admission contained therein, and are binding upon the person in whose favor and for whose benefit they are made. Hart v. Trustees of Supreme Lodge of Fraternal Alliance, 84 N. W. 851; Hassencamp v. Mutual Ben. Ins. Co., 120 Fed. 475; Spruil v. Insurance Co., 27 S. E. 39; Travelers’ Ins. Co. v. Nitterhouse, 38 N. E. 1110; Mut. Benefit Life Ins. Co. v. Higginbotham, 95 U. S. '380, 24 L. Ed. 499; Modern Woodmen of America v. Kozak, 88 N. W. 248; Supreme Lodge v. Beck, 181 U. S. 49.</p> <p>Such evidence is admissible and competent but not conclusive. The evidence shows that the physicians made a personal examination of the body, wound and the surrounding circumstances, and their statements were based upon personal knowledge and observation and not hearsay. Under such circumstances the statements were clearly admissible. United States Life Ins. Co.'v. Kielgast, 22 N. E. 467, 6 L. R. A. 65; Supreme Lodge L. of H. v. Fletcher, 29 S. 523; Fien v. Association, 60 111. App. 274; Mut. Benefit Life Ins. Co. v. Higginbotham, supra; Metznadt v. Modern Brotherhood of America, 84 N. W. 498; 1 Greenleaf on Evidence, 566; Grand Lodge v. Weiting, 68 111. App. 408, 168 111. 408, 48 N. E. 59; Walther v. Mutual Ins. Co., 4 Pac. 413.</p> <p>If there is sufficient competent evidence to justify a directed verdict upon any of the grounds upon which it is requested, such verdict will stand, although other evidence which was inadmissible was admitted or the verdict was directed upon an improper ground. Tabin v. McKinney, 84 N. W. 228; Meyers v. Kingston Coal Co., 17 A-tl. 891.</p> <p>Where the facts proven require a finding of suicide the court should direct a verdict to that effect for the party setting -up such defense. Bowman v. Eppinger, 1 N. D, 21, 44 N. W. Í000; Inghram v. Nat’l Union Ins. Co., 72 N. W. 559; Komfield v. Supreme, Lodge, 72 Mo. App. 604; Supreme Lodge v. Fletoher, 28 So. 523; Pagett v. Conn. Mut. Life Ins. Co., 55 N. Y. App. Div. 638; Mutual Life Ins. Co. v. Tillman, 84 Tex. 31; Mutual Life Ins. Co. v. Haywood, 27 S. W. 36; Agen v, Metrqpolitan Life Ins. Co., 80 N. W. 1020; Rens v. N. W. Mutual Relief Ass’n, 75 N. W. 991; First Nat’l Bank v. Comfort, 4 Dak. 167, 28 N. W. 855; Metropolitan R. R. Co. v. Moore, 121 U. S. 558, 30 L. Ed. 1022.</p> <p>The by-laws of a fraternal beneficiary society are a part of the contract of insurance as much as the certificate of application. It makes no difference whether they were adopted before or after the contract was entered into. Supreme Lodge K. of P. v. Trebbe, 179 111. 348, 53 N. E. 730; Supreme Commandery v. Answorth, 71 Ala. 436, 46 Am. Rep. 332; National Union v. Thomas, 10 App. Cases, 277.</p>

<p>Money Had and Received — Action.</p> <p>1. A complaint alleged that plaintiff intrusted certain money to defendants, to be used by -them, for the purpose of securing bail for -one B, and also alleged that defendants were to return the same to plaintiff when such bail was exonerated, and further alleged that such bail was thereafter exonerated, and defendants received said money into their possession, and converted the same to their own u-se, and refused to repay -the same to plaintiff. Held, that the cause -of action should be -treated as ex contractu, instead of ex delicto, and a recovery permitted upon the theory of money had and received under an implied promise to repay the same. Held, further, that it must be so treated in view of defendant’s answer, and the issues thereby tendered.</p> <p>Although a Party Proceeds to Trial on a Mistaken Theory, He Is Entitled to Relief Consistent With the Issues and Proof.</p> <p>2. The fact that a party proceeds to trial upon -a mistaken idea as to the nature of an action and the scope of the issues framed by -the pleadings does not deprive -him of the right -to such relief as is consistent with the real issues and the -proof in the case.</p> <p>Burden of Proof — Evidence.</p> <p>3. Defendants, who were attorneys, admitted the receipt -of the money from plaintiff, and its retention by -them, and sought to justify their conduct by alleging that plaintiff employed them to defend another, charged with crime, and authorized- them to retain said money for the purpose of paying for such legal services and for their disbursements. Held, that the burden was upon defendants to establish such defense.</p> <p>Books of Account Used to Refresh Memory May Be Offered in Connection With Gross-Examination of Witness Using Them.</p> <p>4. A certain ledger belonging to defendants was used by one of them to refresh his memory while testifying -to -the account kept by defendants against plaintiff therein for alleged services and disbursements. Held, error -to deny plaintiff’s offer to introduce -said ledger in evidence in connection with the cross-examination of such defendant.</p>

<p>Intoxicating Liquors — Indictment.</p> <p>1. Under section 8047, subd. 7, Rev. Codes 1899, an indictment otherwise sufficient will be 'held sufficient when “the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition and in such a manner as •to enable a person of common understanding to know what is intended.”</p> <p>Common Nuisance.</p> <p>2. The indictment in this case charges the defendant with committing the crime of keeping and maintaining a common nuisance, and, -in charging the acts constituting the crime, alleges that the defendant “willfully and unlawfully” kept a place (describing it) where intoxicating liquors were sold, bartered and-given away, without first requiring the persons receiving -the same to subscribe affidavits, etc. Held, (1) that the allegation that the defendant unlawfully kept a place where intoxicating liquors were sold necessarily implies that the sales were unlawful; and (2) that the further allegations which attempt to expressly negative lawful sales may be treated as surplus-age, and -are not misleading or prejudicial, and the indictment is sufficient.</p>

<p>Appeal from District Court, Walsh county; Lauder, J.</p> <p>Action by the Bank of Park River against the town of Norton. Judgment for plaintiff, and defendant appeals.</p> <p>The order not being drawn upon the fund out of which it is payable is void. 1 Dill on Mun. Cor. 505 ; Argenti v. City of San Francisco, 16 Cal. 256; Martin v. City and County of San Francisco, 16 Cal. 285; Minor v. Loggins, 37 S. W. 1086; 15 Am. & Eng. Enc. Law (1st Ed.) 1214; People ex rel. J. G. Cooke v. Lewis Wood, 71 N. Y. 371; Baber v. City of Seattle, 27 Pac. 462; Rev. Codes, sections 1919, 1294, 2598, 1115f.</p> <p>The mode of contracting constitutes the measure of the power of the officer of a municipal corporation. Rev. Codes, section 2538; 1 Dill on Mun. Cor. 447; Zottman v. City and County of San Francisco, 20 Cal. 97.</p> <p>Burden is on plaintiff to show their power. Crawford v. Albany Ice Co., 60 Pac. 14; 14 Enc. PI. & Pr. 241.</p> <p>Where an order has not been .presented and indorsed “Not paid for want of funds,” no interest can be had. Rev. Codes, section 2614; Freeman v. City of Huron, 73 N. W. 260.</p> <p>Township warrants are not negotiable. Gilman v. Township of Gilby, 80 N. W. 889, 8 N. D. 627; Goose River Bank v. Willow Lake Twp., 1 N. D. 26, 44 N. W. 1002; 1 Dill on Mun. Cor. sections 503, 487, 504; Miner v. Vedder, 33 N. W. 47; Hubbell v. Town of Custer City, 87 N. W. 620 ; Storey v. Murphy, 81 N. W. 23.</p> <p>A city is liable on its warrants issued by it, although no funds have been collected for their payment, where such city has had time to levy and collect a tax for the purpose and has failed to do so. Blackman v. City of Hot Springs, 85 N. W. 996; Warner v. City of-New Orleans, 87 Fed. 828.</p> <p>The meeting -of the board of supervisors was -regular and the notice -was waived. Beaver Creek v. Hastings, 52 Mie-h. 528, 18 N. W. 250; Lord v. Anoka, 36 Minn. 176; States v. B-orough of Washington, 2 Am. & Eng. Co-rp. Cas. 39; 15 Am. & Eng. Enc. Law (1st Ed.) 1034.</p> <p>The former order of the Supreme Court granting judgment for the relief demanded in the complaint was with prejudice and is an affirmance of the order of the lower -court appealed from. Rules of Supreme Court, Rule XXXVI.</p>

<p>Statute of Limitation in Mortgage Foreclosure — Suspension of the Statute.</p> <p>1. Action to foreclose a mortgage on real property is not a proceeding in rem, but is an action in personam, and comes within the operation of section 5210, Rev. Codes 1899, which excepts from the period limited for commencing an action the time during which the person against whom the cause of action has accrued is absent from the state.</p> <p>Same — Foreign Corporation May Plead tlie Statute.</p> <p>2. A foreign corporation which has complied with the laws of this state governing such corporations, and which has been regularly and continuously doing business in this state -during the entire period required to bar an a-ction, and during all that time has had an agent resident here upon whom process could be served, can avail itself of the statute of limitations of this state.</p> <p>Same — Absence of Mortgagee After Parting With Title.</p> <p>3. The absence of the mortgagee from the state after he has parted with the title to the mortgaged property does not prevent the statute of limitations from running in favor of his .grantee.</p> <p>Foreclosure of Mortgage May Be Barred Although the Debt Secured' Is Not Outlawed.</p> <p>4. An action to foreclose a mortgage on real property is a remedy distinct from the remedies by which the creditor may enforce the personal obligation for the debt secured by the mortgage, and may become barred by the statute of limitations, even though the debt is not outlawed.</p> <p>Mortgagor’s Grantee May Plead Statute of Limitation Although Mortgage Debt Is Neither Barred nor Discharged.</p> <p>5. Although the property passed to the defendant’s grantor subject to the mortgage, and was in equity the primary fund for the payment of the mortgage debt, that doctrine cannot be extended so as to prevent the defendant from availing himself of the statute of limitations as a defense against an action to foreclose the mortgage, even though the debt is neither discharged nor barred as against the debtor.</p> <p>Young, J., dissenting.</p>

<p>Statute of Limitations in Mortgage Foreclosure — Suspension of Statute.</p> <p>1. An action to foreclose a mortgage is an action in personam, and comes within the operation of section 5210, Rev. Codes 1899, which excepts from the period limited for commencing an action the time during which the person against whom the cause of action accrued is absent from the state.</p> <p>Foreclosure of Mortgage May Be Barred Although the Mortgage Debt Is Not Outlawed.</p> <p>2. An action to foreclose a mortgage on real property is a remedy distinct from the remedies by which the creditor may enforce the personal obligation for the debt secured by the mortgage, and may become barred by the statute of limitations, even though the debt is not outlawed.</p> <p>Mortgage Foreclosure — Failure to Appoint Administrator Does Not Bar Deceased Mortgagor’s Heirs from Pleading Statute of Limitations.</p> <p>3. The failure to appoint an administrator of the estate of the deceased mortgagor and debtor does not prevent the statute of limitations from running in favor of the mortgagor’s heirs against an action to foreclose the mortgage.</p> <p>Mortgagor’s Grantee May Plead Statute of Limitation Although the Mortgage Debt Is Neither Barred Nor Dischax'ged.</p> <p>4. Although the property passed to the defendant’s grantor subject to the mortgage, and was in equity .the primary fund for the payment of the mortgage debt, that doctrine cannot be extended so as to prevent the defendant from availing himself of the statute of limitations .as a'defense against an action to foreclose the mortgage, even though the debt is neither discharged nor barred as against the debtor.</p> <p>Mortgage Foreclosure — Statute of Limitations Barred as to Pox»tion of Land.</p> <p>5. The mortgagor died intestate, seized of the mortgaged land, before the mortgaged debt was due, and left four heirs, only one of whom was a resident of the state. No administrator was ever appointed. Nearly fourteen years after the debt was due the heirs conveyed the land to defendant. Held, that an action to foreclose the mortgage was barred as to one-fourth of the land, but was not barred as to the remaining three-four.ths.</p> <p>Young, J., dissenting.</p>

<p>Appeal from District Court, Nelson county; Fisk, J.</p> <p>' Action by J. A. Paine against Helen Dodds and others. Judgment for defendants, and plaintiff appeals.</p> <p>An action for the foreclosure of a mortgage is equitable in its nature, and in personam. Rev. Codes 1899, section '5156; Brainard v. Cooper, 10 N. Y. 356.</p> <p>An action to foreclose a mortgage is barred ten years after the cause of action accrued, subject to the 'same exception. Rev. Codes, section 5207; chapter 120, Laws of 1901; Peters v. De La Plaine, 49 N. Y. 36-2; Ozmun v. Reynolds, 11 Minn. 459; W'hal-ley v. Eldridge, 24 Minn. 358; Clinton County v. Cox, 37 Iowa, 570; Iianchett v. Blair, 100 Fed. 826.</p> <p>Such action is not barred; debt secured by the mortgage is barred. Rev. Codes 1899, sections 5200, 5201; 13 Am. & Eng. Enc. Law (1st Ed.) 704; Wiltsie on Mortgage Foreclosure, section 63, note 5.</p> <p>The provisions of the Probate Code have no application, they only operate to prevent payment of debt from assets -of decedent’s estate; nonpresentation of claim to administrator does not affect this action. Jones on Mortgages, section 1214; Wiltsie on Mortgage Foreclosure, section 64; Allen- v. Moer, 16 Iowa, 307; Rev. Codes 1899, section 6401.</p> <p>Statute of limitations was suspended when decedent’s heirs and administrator -departed from and resided out of the state. Rev. Codes, section 5210.</p> <p>Homestead descends to heirs, subject to homestead rights of widow, charged with .the mortgage debt, -and becomes a primary-fund for the -payment of the debt, which could not be a charge upon the assets -of the estate. Comp. Laws, section 4367; Jummel v. Jummel, 7 Paige, 591; Halsey v. Reed, 9 Paige, 446; Johnson v. Corbett, 11 Paige, 265.</p> <p>The defendant Frich took the land 'subject to the mortgage debt, and it continued in her hands a primary fund for the payment of the debt, and, t-o the extent of the value -o'f the mortgaged premises., she became the principal debtor. Johnson- v. Zink, 51 N. Y. 33-3; Sands v. Church, -6 N. Y. 347; Hartley v. Harrison, 24 N. Y. 170; Freeman v. Auld, 44 N. Y. 50-; Insurance Co. v. Nelson, 78 N. Y. 137; Bennett v. Bates, 94 N. Y. 354; Murray v. Marshall, 94 N. Y. 611; Colgrove v. T-allman, 67 N. Y. 95, 23 Am. Rep. 90; Horton v. Davis, 26 N. Y. 495; Fuller v. Hunt, 48 Iowa, 163; Tice v. Annin, 2 Johns. Ch. 125; Palmer v. Butler, 36 Iowa, 576; Sanger v. Nightingale, 122 U. S. 176, 30 L. Ed. 1105.</p> <p>She holds the premises under an agreement to apply the premises to the satisfaction of the mortgage debt, an-d the statute of limitations does not run upon this obligation so assumed by her prior to its assumption. Murray v. Marshall, 94 N. Y. 611; S-chmucker v. Si-ebert, 18 Kan. 104, 26 Am. Rep. 765.</p> <p>The land being in the hands o-f the defendant Frich the primary fund for the payment of -the -debt, secured by the mortgage, and she, having purchased subject to the mortgage, -cannot plead the statute o-f limitations. Hyer v. Pruyn, 7 Paige Ch. 46-5, 34 Am. Dec. 355; Hughes v. Edwards, 9 Wheaton, 4-89, 22 U. S. 489, 6 L. Ed. 142; Waterson- v. Kirkwood, 17 Kan. 9; Schmucker v. Siebert, 18 Kan. 104, 26 Am. Rep. 765; Life Ins. & Trust Co. v. Covert, 6 Abb. Pr. N. S. 154; Murdock v. Waterman, 145 N. Y. 55, 39 N. E. 829, 27 L. R. A. 418.</p> <p>Any person in privity with the claim of which enforcement is sought, such as heirs and personal representatives of a deceased mortgagor, junior mortgagees and subsequent assignees or grantees of the mortgagor, is entitled to plead the statute of limitations. 19 Am. & Eng. Enc. Law, 184; Ewell v. Daggs, 108 U. S. 143, 27 L. Ed. 682; Sanger v. Nightingale, 122 U. S. 176, 30 L. Ed. 1105; Lord v. Morris, 18 Cal. 482; McCarthy v. White, 21 Cal. 495, 82 Am. Dec. 754; Grattan v. Wiggins, 23 -Cal. 16; Coster v. Brown, 23 Cal. 143; Schmucker v. Siebert, 18 Kan. 104, 2'6 Am. Rep. 765; George v. Butler, 67 Pac. 263, 90 Am. St. Rep. 756; Anderson v. Baxter, 4 Ore. 105; Brandehstein v. Johnson, 73 Pac. 744.</p> <p>The statute of limitations began to- run when plaintiff’s cause of action accrued, unless some recognized exception postponed its operation. 19 Am. & Eng. Enc. Law, 193. The debt fell due Jan-uarjr 1, 1887, and the cause -of action -accrued January 6, 1887, and unless some disability on the part o’f the plaintiff postponed the running of the statute, it then- commenced to run. Death -of a debtor prior to maturity of the debt is not such disability. If the debt is due at the debtor’s death, the statute begins .to run immediately even if he is a nonresident, and if it ceases to run on his becoming a nonresident, it revives at his death. Hibernian Banking Ass’n v. Com. Nat’l Bank, 41 N. E. 919; Savage v. Scott, 45 Iowa, 130; Teal v. Ayers, 9 Tex. 588.</p> <p>On the -accrual of a -cause of action after the debtor’-s death, the statute commences to run whether there is a party competent to sue or be sued, or not. Hibernia S. & L. Soc. v. Conlin, 7 Pac. 477 ; Tjuran v. Walker, 35 Cal. 634, 9-5 Am. Dec. 152.</p> <p>Section 5212 only suspends the running of t-h-e statute upon the death of a party against whom -action may be brought.</p> <p>Neither of the defendants owing the plaintiff any legal -duty, no cause of action ever accrued against them, and the -absence of -one, or all, from t-h-e state w-ou-ld not -suspend the running of the statute. Von Campe v. City of Chicago, 29 N. E. 892; Hill v. To-wn-ley, 47 N. E. 653; Bel-loc v. Rogers, 9 Cal. 1-24; S-chadt v. Heppe, 45 Cal. 433; Carpenter v. Ingalls, 51 N. W. 348, 44 Am. St. Rep. 753.</p> <p>The mortgagor is the only person charged with any legal duty towards the mortgagee. His estate might be obligated on his death if the claim was duly presented, but failure to do so does not affect the right to foreclose or the running of the statute of limitations. Section 6401, Rev. Codes 1899; Schadt v. Heppe, supra; McMillan v. Heyward, 39 Pac. 744; Tburber v. Miller, 75 N. W. 900; Gleason v. Hawkins, 73 Pac. 533.</p> <p>If the action is barred as to the mortgagor, it is barred as to the subsequent owner of the land, and the converse of the proposition is true. Hanchett v. Bla-ir, 100 Fed. 817; Ewell v. Daggs, 108 U. S. 143, 27 L. Ed. 682; Sanger v. Nightingale, 122 U. S. 176, 30 L. Ed. 1105.</p> <p>Notwithstanding the death of the mortgagor and the absence of his administrator and heirs from the state, plaintiff always had, and has, a full and complete remedy upon his mortgage. Hogaboom v. Flower, 72 Pac. 547; Fowler v. Wood, 28 N. Y. Supp. 976; Eubank v. Leveridge, 4 Sawyer, 274; Jones on Mortgages, section 1197.</p> <p>Section 5210, Rev. Codes 1899, suspending the statute by reason of absence, relates only to personal action; .this action is not “against the person,” and though, perhaps, not strictly in rem, is of the nature of an action in rem, and the reason for the exceptions in that section does not obtain in an action like .this, when no personal responsibility is imputed to any defendant. Wiltsie on Mortgage Foreclosure, section 61; Fields v. Daisy Gold Mining Co., 73 Pac. 531; Fallon v. Butler, 21 Cal. 24, 81 Am. Dec. 14.0; Nagle v. Macy, 9 Cal. 426; Frisohe v. Kramer’s Lessee, 16 Ohio, 125, 47 Am. Dec. 368; Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565; Freeman v. Alderson, 119 U. S. 185, 30 L. Ed. 372; Cole v. Conner, 10 Iowa, 300; Iowa Loan & Trust Co. v. Dory, 19 N. W. 301; 9 Enc. PI. & P-r. 220; Kershaw v. Thompson, 4 Johns. Ch. 609; Stevens v. Terry, 48 Fed. 7; Palmer v. McCormick, 28 Fed. 541; 17 Ene. PI. & Pr. 43; 2 Wood on Limitations (2d Ed.) section 224; Eubanks v. Leveridge, 4 Sawy. 274; Martin v. Bond, 30 Fed. 15; Anderson v. Baxter, 4 Ore. 105; Hartzell v. Vigen, 6 N. D. 117, 69 N. W. 203, 35 L. R. A. 451, 60 Am. St. Rep. 586; Hurley v. Cox, 2 N W. 705; Rector v. Rotten, 3 Neb. 177; Peters v. Dunnells, 5 Neb. 460; Henley v. Estes, 6 Neb. 386; McNaughton v. Burke, 89 N. W. 274; Frerking v. Thomas, 89 N. W. 1005; Colgrove v. Tallman, 67 N. Y. 95; Culp v. Culp, 32 Pac. 1118; Bauserman v. Charlott, 26 Pac. 1051; Hill v. Townley, 47 N. W. 653.</p>

<p>Robbery — Evidence — Intent — Intoxication — Instructions.</p> <p>1. In a trial for robbery, where the defendant, besides denying the commission of the acts charged, claims that ihe was, by reason of intoxication, incapable of forming an intent, it is error to instruct the jury, in effect, that the intent to steal should be conclusively presumed from the unlawful and forcible taking unless the defendant was so .intoxicated as to be incapable of forming an intent.</p>

<p>Appeal from District Court, Cass county; 'Pollock, J.</p> <p>John Sanders was convicted of robbery, and appeals.</p> <p>Where there is no testimony describing the property taken in the robbery as of the kind and character described in the information, such absence of proof is fatal. People v. Jones, 5 Lans. 340.</p> <p>Robbery involves larceny from the person. It must, therefore, be proved that the property taken was of the same description as that alleged in the information. People v. Jackson, 8 Barb. 637; State v. Longbottoms, 11 Humph. 39; State v. Glark, 8 Reid, 226; Merwin v. People, 26 Mich. 298, 12 Am. Rep. 314; 1 Green’s Criminal Rep. 349; People v. Bogart, 36 Cal. 245; People v. Ball, 14 Cal. 101, 73 Am. Dec. 631; Lord v. State, 20 N. H. 404, 51 Am. Dec. 231; Boyle v. State, 37 Tex. 359.</p> <p>No assault was alleged. The term that complaining witness was put in fear was used. It was at variance with the allegations of the information to prove an assault by one of the defendants by pointing something at him and ordering him1 to throw up his hands. 2 Bish. New Criminal Law, p. 676, section 1174, and cases cited.</p> <p>The court should instruct on every phase involved in the trial. State v. Fordham, 13 N. D. 494, 101 N. W. 888. The court failed to instruct the jury that it was essential to the crime of robbery that the property taken from the person of the complaining witness was taken with intent to steal it. Nor did the court instruct that larceny from the person was involved in robbery, and that, ■ under the statutes of this state, the defendant could have been convicted of larceny from the person. Nor did the 'court instruct that the state should prove: First, that an assault was made upon the complaining witness, and he was, therefore, put in fear of his life; second, that the property was taken from the person of the complaining witness without his consent, and with the felonious intent on the part of the defendant, to take, steal and carry away. This was reversible error.</p> <p>It is not necessary to allege evidence in the' information, hence the fact that no assault was charged is of no weight. Appellant held a gun and said “hold up your hands,” and pointed it at complaining witness. He held up his hands. He testified that lie held up his hands because he was scared. The only explanation why he did so was complainant’s fear, and this makes the allegation in the information in regard to putting in fear sufficient and 'complete, and disposes of the objection of variance. The information charges taking a hunting knife, a small gold frame photograph and a leather pocket book. The proof shows a knife subsequently described as a deer knife, with deer hair on the handle, also a picture which Sandberg said was of himself, with a gold frame on it, also a pocket book not described. Thus the question of variance was disposed of. The evidence shows that the appellant “held up” Sand-berg and Johnson, by means of putting them in fear, took certain property, which was found upon them, apd such evidence unquestionably supports a verdict of guilty.</p> <p>Defendant asked for the following charge: “Physical force may consist in pointing a revolver at a man. Therefore, if you find that the complaining witness held up his hands as the result of the gun being pointed at him, and not as a result of fear, then I charge, you must acquit the defendant.” It is impossible to distinguish between the act of pointing a gun and the effect upon the person at which it is pointed, so far as the necessary ingredients of the crime of robbery charged are concerned. Force may consist in pointing a revolver at a person, but the state of mind of the party at which it is pointed, during such act, becomes the proximate condition upon which the subsequent unlawful act may be based, and such unlawful act is properly charged as the means whereby the crime is ■committed, hence the asked for instruction was properly refused.</p>

<p>Appeal from District Court, Ransom county: W. S...Lauder, J. .</p> <p>Action by Emma- V. Hulet against Amos A. Gates. Judgment for plaintiff. Defendant appeals.</p> <p>An intention to give is essential to the validity of the gift., but it is only one of the requisites to vest title to the thing given in the donee. Thornton on Gifts and Advancements, section 133; Donover v. Argo et ux, 7-9 Iowa, 574, 44 N. W. 818; Thomlinson v. Ellison, 10 Mo. 105; Richardson v. Gray, 52 N. W. 10;. McKenna v. Kelso, 3 N. W. 152.</p> <p>Delivery of the thing given is essential to the validity of the gift. Thornton on Gifts and Advancements, section 133. The delivery of a deed is essential to convey title. . Hooper v. Vanstrom, 100 N. W. 230; Thompson v. Easton, 31 Minn. 99 ; Bernard v. Thurston, 90 N. W. 574.</p> <p>Until the deed was delivered with intent to part with dominion over it, and that it should take effect according to its terms, the title remained in the railroad company. Longworth v. Glose, Federal Cases, 8489; Newell v. Cochran, 43 N. W. 86; O’Connor v. O’Connor, 69 N. W. 676; Cobb v. Chase et al., 6 N. W. 300; Deere et al. v. Nelson et al., 34 N. W. 809; Moody et al. v. Dryden et al., 34 N. W. 210.</p> <p>Even filing for record will not transfer title, unless done in pursuance of a previous agreement. O’Connor v. O’Connor et al., 69 N. W. 676; Cobb v. Chase et al., 6 N. W. 300; Deere et al. v. Nelson et al., 34 N. W. 809; Moody et al. v. Dryden et al., 34 N. W. 210. The burden of proof on- the donee to show gift. Dotty v. Wilson, 47 N. Y. 580; Perly v. Perly, 144 Mass. 104; Scott v. Reed, 25 Atl. 604.</p> <p>When the grantor issued its deed and delivered it to the appellant, running to the respondent, the grantee, the grantor parted with all dominion and control over it, and such delivery was good. Young v. Guilbeau, 3 Wall. 636, 18 L. Ed. 262; Porter v. Wood-house, 59 Conn. 63; Arnegard v. Arnegard, 7 N. D. 475; Munro v. Bowles, 54 L. R. A. 865 and note; Plosley v. Holmes, 27 Mich. 416; Cook et al. v. Patrick et al., 11 L. R. A. 573; Shrader v. Bonker, 65 Barb. 615.</p> <p>One of the requisites of the delivery of a deed is the intention of the grantor, and of the person to whom 'it is delivered, that it shall presently become effectual and operative. Walter v. Way et al., 170 111. 96, 48 N. E. 421; Fisher et al. v. Hall et al., 41 N. Y. 416; Crocker v. Lowenphel, 83 Ind. 576.</p> <p>Acceptance of the deed will be presumed from the beneficial nature of the deed. De Le Villain v. Evans et al., 39 Cal. 120; Ferguson v. Miles, 8 111. 358, 44 Am. Dec. 702; Thompson v. Candor, 60 111; 244; Rivard v. Walker, 39 111. 413; Haenni et al. v. Bleisch, 146 111. 262, 34 N. E. 153; Crabtree et al. v. Crabtree et al., 159 111. 342, 42 N. E. 787; Ward v. Small, 90 Ky. 198, 13 S. W. 1070; Holmes v. McDonald et al., 78 N. W. 647; Wall v. Wall, 30 Miss. 91, 64 Am. Dec. 147; Rose v. Baker, 13 Barb. 233; Munoz v. Wilson et al., Ill N. Y. 303, 18 N.. E. 855.</p> <p>The assent of the party to the grant made for hi's benefit is presumed until the contrary appears. Peavy v. Tillman, 45 Am. Dec. 365; Halluch v. Bush, 1 Am. Dec. 60; Treadwell v. Bulkley, 4 Am. Dec. 225; Churdh v. Gillman, 30 Am. Dec. 82; Merrills v. Swift, 46 Am. Dec. 315; Lady Superior v. McNamara, 49 Am. Dec. 384; Blight v. Scheuck, 51 Am. Dec. 478; Boody v. Davis, 51 Am. Dec. 210.</p> <p>Acceptance of a deed to a minor by a father is a sufficient delivery, the conveyance being beneficial to him. Where the grantee is under disabilities, as in the case of an infant grantee, assent to a beneficial conveyance is presumed, and knowledge of conveyance and delivery is not essential. Baker v. Haskell, 47 N. H. 479; Spencer v. Carr et al.; 45 N. Y. 410; Gregory v. Walker, 38 Ala. 26; Rivard v. Walker, 39 111. 413; Cecil v. Beaver, 28 Iowa, 241.</p> <p>A purchase of land by a-parent in- tlhe name of a child will be considered as an advancement, not a trust. James v. James, 41 Ark. 301; Brown v. Burke, 22 Ga. 574; Taylor v. Taylor, 9- 111. (4 Gill.) 303; Cartwright v. Wise, 14 111. (4 Peck) 417; Bay v. Cook, 31 111. 3-36; Maxwell v. Maxwell, 10-9 111. 588; Hodgson v. Macy, 8 Ind. 121; Mutual Fire Ins. Co. v. Deale, 18 Md. 26, 79 Am. Dec. 673; Tremper v. Barton-, 18 Ohio, 418; Murphy v. Nathan's, 46 Pa. (10 Wright) 508; Douglas v. Brice, 4 Rich. Eq. (S. C.) 322; Dudley v. Bosworth, 29 Ten-n. (10 Humph.) 9.</p>

<p>Estoppel — Evidence.</p> <p>1. The defendants, who were the real owners -of a note and mortgage, foreclosed the mortgage by action in the name of the nominal ' holder, and' collected the greater part of the debt. They concealed from the present plaintiff, who was a defendant in the foreclosure suit, the fact that they were the real owners of the cause of action in the foreclosure suit, and represented to her that the nominal plaintiff was the- real creditor. The plaintiff was not misled thereby to her prejudice, but, after discovering the facts as to the true ownership, procured from the nominal creditor an instrument purporting to assign to her said creditor’s claim for the money so collected. Held, that the defendants were not estopped to assert that they were the real owners of the money collected.</p>

<p>Appeal from District Court, Nelson county; Fisk, J.-</p> <p>Action by William C. Hagler against Fannie E. Kelly and William A. Marin. Judgment for plaintiff and defendants appeal.</p> <p>In this state, when order for the entry of a judgment is given, it is the duty of the clerk; under section 5095, to enter judgment in the judgment book and then place a copy of said judgment in the roll. In re Weber, 4 N. D. 119, 59 N. W. 523.</p> <p>A judgment cannot be entered without ah order of the court. In re Weber, supra; Gould v. Duluth & D. Elevator Co., 54 N. W. 316.</p> <p>There is a difference between an order for a judgment and a judgment. McTavish v. Gt. N. R. R. Co., 8 N. D. 94, 79 N. W. 443; Black on Judgments, section 115.</p> <p>The vitality of a tax lien being dependent upon the law of 1890, its repeal without reservation, prior to any disposition of the tax by the state or its corporate agencies, destroyed the lien. A lien is a creature of statute, and its extent and operation is fixed by law. 17 Am. & Eng. Enc. Law, 770; Gull River Lumber Co. v. Brock and Lee, 6 N. D. 135, 73 N. W. 430.</p> <p>A county, through its board of county commissioners, can make no disposition of a tax judgment. It has only the powers expressly granted by words of the statute or the constitution, or are incident to such powers. 1 Am. & Eng. Enc. Law, 426; Shally v. Lash, 14 Minn. 498; James v. Wilde, 25 Minn. 305; Black on Tax Titles, section 153.</p> <p>A county can enforce the collection of a judgment, but not barter away or compromise it, 'When against parties not shown to 'be insolvent. State v. Davis, 75 N. W. 897.</p> <p>A county is but the agent of the state, as townships, cities and school districts. An agent authorized to collect a claim has no power to sell or compromise it. 1 Am. & Eng. Enc. Law, 1030; Smith v. Johnson, 71 Mo. 382; Bank v. Davis, 14 N. J. Eq. 286; Rodgers v. Bur., 46 Tex. 505; Mallory v. Martiner, 15 W-is. 172.</p> <p>Unless taxes are expressly or impliedly authorized to be assigned, they are incapable of assignment, and no one can be subrogated to the rights and remedies of the state or municipality. 27 Am. & Eng. Enc. Law (2d Ed.) 380; Mclnery v. Reed, 23 Iowa, 410.</p> <p>The remedy provided by .statute for the enforcement of taxes is exclusive. Brule County v. King, 77 N. W. 107; McHenry County et al. v. Kidder County, 79 N. W. 875, 8 N. D. 413.</p> <p>Taxes are not debts and are not assignable. Brule County v. King, 77 N. W. 107.</p> <p>The judgment under which the sale was made was valid. In re Weber,--4 N. D. 119. The instrument under consideration was an order' for dismissal, not signed -or -attested by the clerk, nor entered in the judgment book? McTavish v¡ Gt. N. R. R: Co., 8 -N. D. 333.</p> <p>' The word “render” instead- of “enter” was used, and -the judgment failed to .provide that plaintiff recover a specified amount. The law of 1890 provided for the entry of a “judgment.” In State v. Red River Valley El. -Co., 69 Minn. 131, the court says: “This proceeding is in the nature of a personal action.” An appeal from a judgment entered in- such a proceeding was entertained in State v.-Rand. 30 Minn. 502; Collins v. Welch et al., 12 N. W. 121. ‘</p> <p>The tax ceased to exist upon- the' entry of the judgment in which it merged. ■ A final determination by judgment or' sentence is a vested right, and therefore unaffected by the subsequent repeal of th-e statute upon which it depends. 23 Am. & Eng. En-c. Law (1st Ed.) 573; Osborne v. Sutton, 108 Ind. 443.</p> <p>It has been the -policy -of the state to vest county 'boards with ample powers. They -can place taxes on the list of uncollectible •taxes. Comp. Codes, 1616, section 1243; Rev. -Codes 1895, section Gl, ch. 126, Laws 1897. They -can- cancel taxes when un-collectible. Laws 1890, ch. 132, section 56. They -can abate. Laws 1891, ch. 120. -Can compromise-. Laws' of 1-897, ch.'126, section 59.</p> <p>■ Having put the tax into a judgment, the board did not lose its power and control over ib:except to require its -payment in full. The county board-has' the sanie power as to 'cancellation, abatement, etc., over -city, town,, school and state taxes as county taxes.</p> <p>The -county has the power to sell debts, judgments and other evidences of debt. Br-own- County v. Jenkins et al., 77 N. W. 579; State -v. 'Davis et'al., 75 N. W. 897; Collins v. Welch et al., 43 Am. Rep.. ■ 111, 12 N. W. 121; Hall' v. Baker, 42 N. W. 104; Washburn Co-unty v. Thompson et al., 99 Wis. 585, 75 N. W. 309; State et'al. -v. Martin (Neb.) 43 N. W. 244; Agnew et al. v. Brail, 124 111. 312; 16 N. E. 230; Prest v. Mappin, 14 111-. 193; Supervisors v.-Birdsall, 4 Wend. 454; Railway Co. v. Anthony, 73 Mo. 431; Board v. Bowen, 4 Lans. 31;--Prout v. .Inhabitants, 154 Mass. 450. ' • - -</p> <p>The- personal 'property tax judgment was a right accrued within the meaning of section 2686, Rev. Codes 1895; 26'Am. &'Eng.-Enc. Law, 746; Wright Lumber Co. v. Hixon et al., 80 N. W: 1110; Smith, v. Kelly, 33 Pac. 642; Louisville Water Co. v. Com., 34 S. W. 1064; People v. N. Y. R. Co., 156 N. Y. 570; Oakland v. Whipple et al., 44 Cal. 303; U. S. v. Iselin, 87 Fed. 194; U. S. v.. Burr et al., 159 U. S. 78, 15 Sup. Ct. Rep. 1002; Bruee County -v. Cook et al., 35 N. E. 992; Danforth v. McCook County et al., 76 N. W. 940; Commonwealth Appeal, 128 Pa. St. 603.</p> <p>In case of the amendment or revision of the tax laws, the presumption is very strong that the legislature did not intend .to. cancel outstanding tax. obligations. Cooley on Taxation, 499, 22; Alliance Trust Co. v.. Multnomah County, 63- Pa. 496; Wells County v. McHenry County et al., 7 N. D. 246, 74 N. W. 241.</p> <p>The tax in question was put in judgment and could be collected only under the former laws. . Greensborough v. McAdoo, 112 N. C. 359; In re Munn, 165 N. Y. 149; Oakland v. Whipple, 44 Cal. 303; Louisville Water Co. v. Commonwealth, 34 S. W. 1064; State v. Bank, 68 Mo. 515.</p>

<p>Without the Principal’s Consent a Broker Cannot Contract in His Own Name.</p> <p>' 1. A broker employed to negotiate a sale of grain for future delivery has no authority, without his principal’s consent, to make the contract for such sale in his own name.</p> <p>Where a Broker So Contracts He Can Recover for Neither Services Nor Advances.</p> <p>2. A broker cannot recover from his principal either for services or for money advanced by reason of a sale of grain negotiated for the principal, where, without the latter’s consent, the broker has contracted in his own name.</p> <p>Custom.</p> <p>3. The fact that it was the custom of brokers at the place of sale to negotiate sales in their own names, without disclosing their principals, and to assume personal liability for the completion of such sales, is not sufficient to prove authority to sell in the broker’s name, if it is not shown that the principal had knowledge of the custom.</p>

<p>Appeal from District Court, Richland county; Pollock, J.</p> <p>Action by John R. Jones against Ferdinand Hoefs and Theodore Heling. Judgment for defendants, and plaintiff appeals.</p> <p>Evidence of threats to transfer propertyTo baffle creditors’ efforts to collect their -claims, undisputed, warrants the sustaining of the attachment. Liv-ermore v. Rhodes, 27 H-ow. Pr. 506; Chaffee v. Runkel, Rowley & Co., 77 N. W. 583 ; Nebraska Moline Plow Co. v. Fuehring, 72 N. W. 1003; Reed Bros. v. First N-at’l Bank, 64 N. W. 701; Kingman v. Weiser, 67 N. W. 941.</p> <p>A preponderance of the evidence is all that is required to sustain the attachment. Toler-ton & Stetson -Co. v. Casperson, 63 N. W. 908; Symns Grocery Co. v. Snow, 78 N. W. 1066; Fir-st Nat’l Bank v. Randall, 37 N. W. 799; Miller v. McNair, 27 N. W. 333; Bowles v. Hunter, 91 Mo. App. 333.</p> <p>Affidavits, introduced after plaintiff has rested, to the effect that “defendants are straightforward, honest business men, and in affiant’s opinion have not dealt dishonestly with their property,” are not rebuttal, and ar-e incompetent and should not be received. Section 5376, Rev. Codes 1899; 19 Am. & Eng. Enc. Law (1st Ed.) 1093; 23 Am. & Eng. Enc. Law (2d Ed.) 972; 14 Enc. PI. & Pr., 161.</p> <p>The question of irregularity is reached by motion, which is substantially a demurrer to a pleading. William Deering & Co. v. Warren, 1 S. D. 35, 44 N. W. 1068.</p> <p>Notice of motion is usually treated as sufficient, -notwithstanding defects in respect to some essentials, provided none was misled thereby. 14 Enc. PI. & Pr. 132. Case will not -be reversed because ground of motion- is not pointed out in the notice, if such ground was fully stated in the moving affidavit, met by .the opposing affidavit and discussed by the court below. Livermore v. Bainbridge, 14 Abbots’ Pr. 227 (N. S.).</p> <p>When the notice is for irregularity, it should set forth the irregularity, otherwise it is sufficient to state generally the ground of the motion. 2 Wait’s Pr. 183; Ellis v. J-ones, 6 Pr. 296; 4 Wait’s Pr. 596.</p> <p>Good faith as to payment of the claim su-ed on is not in issue on motion to dissolve attachment. It is the actual fraud and evil intent toward creditors, not refusal to pay debts, that supports an attachment. Durr v. Jackson, 59 Ala. 203 ; Totle v. Cadwell, 30 Kan. 125; Weare Com. Co. v. Durley, 30 L. R. A. 465, and note.</p> <p>Burden of proof is upon plaintiff to sustain the attachment affidavit. Noyes v. Lane, 1 S. D. 125, 45 N. W. 327; Wyman v. Wilmarth, 1 S. D. 17.2, 46 N. W. 190; Jones v. Myers, 7 S. D. 155, 63 N. W. 773.</p>

Action by Charles De Foe against the Zenith Coal Company and E. A. Lane. Judgment for plaintiff, and defendant appeals. An appeal will not be dismissed where there is no fault or laches on the part of the appellant, but the fault, if any, is with the justice. Jackson v. Haisley, 9 So. 648; Muller v. Humphreys, 14 S. W. 891; Union Pac. Ry.

<p>Deed Absolute as Mortgage — Recording.</p> <p>1. A deed absolute on its face, but intended to be a mortgage under a parol contract, is properly recorded in a book provided for the record -of deeds, and such record is notice to subsequent incumbrancers or purchasers.</p> <p>State Banks — Real Estate as Secui’ity.</p> <p>2. A bank organized under the state banking act has authority, under section 3230, Rev. Codes 1899, to receive deeds of real property as security for past indebtedness, as well as for contemplated advances agreed upon.</p> <p>Deed as Mortgage — Future Advances.</p> <p>3. A deed absolute in terms, but in equity a mortgage under a parol agreement for reconveyance, is security for the present indebtedness for which it was given, as well as for moneys advanced, after its execution, pursuant to a parol contract that such deed should be security therefor; and, before a reconveyance will be decreed, payment must 'be made, or a -willingness to do so shown, of all sums due thereon in accordance with the contract, whether furnished before or after the deed was executed.</p> <p>Grantee in Deed Held for Future Advances Cannot Make Further Advances After Notice of Accrual of Subsequent Liens, by Innocent Lienors.</p> <p>4. A grantee in a deed intended as security for a present debt and for future advances, based on a parol agreement, is not permitted to make advances under such parol contract after actual notice that subsequent incumbrancers or purchasers have a lien on the property covered by the deed taken without notice of the parol contract for future advances.</p> <p>Advances Made Before Notice of Subsequent Judgment, Secured.</p> <p>5. All advances made under such a deed before actual notice of a judgment obtained against the grantor are secured by such deed as against the judgment lien.</p> <p>Judgment Creditor Has Same Bight to Contest Advances as Grantor.</p> <p>G. In such a case the judgment creditor stands in the same position as the grantor in the deed, so far as his right to contest the amount secured by the deed or mortgage is concerned.</p> <p>Deed as Mortgage — Judgment Creditors — Marshaling Securities.</p> <p>7. In an action brought to have a deed declared to be a mortgage ■and -for its foreclosure, in which judgment creditors are made defendants, and it appears that the grantee in the ideed has other ■security for his indebtedness besides the deed, and that the judgment creditors have security on. the land only, a court of equity will, in a proper case, compel the grantee to exhaust his security in the property not covered by the judgment lien.</p>

Action by J. K. Sonnesyn against L. W. Akin and' G. M. Babcock. Judgment for defendants, and plaintiff appeals. The fifth ground for a motion for a new trial, viz; “Excessive damages appearing to have been given under the influence of passion or prejudice,” is available only where, though the case may be properly submitted, the jury have given damages in an unreasonable amount on account of passion or prejudice. 14 Ene.

Action by Leonard Weicker against Joseph A. Stavely. Judgment for plaintiff, and defendant appeals. The causes of action are different, one being to recover a statutory penalty, the other to recover an over payment made by mistake. The transactions out of which they arose are different, one being an -ordinary loan of money, the other -the purchase of grain and other commodities.

<p>Clerk of District Court Can Satisfy Judgment Only as Authorized by Statute.</p> <p>1. A clerk of the district court has no authority to satisfy a judgment upon a deposit with 'him of the full amount of the judgment. He .has authority to satisfy judgments .only in the cases where the statute gives him authority so to do.</p> <p>Receipt of Money by Clerk, Except as Provided by Daw, Not an Official Act.</p> <p>2. The receipt .of money by a clerk of the district court for the satisfaction of a judgment, except as provided by law, is no.t an official act of the clerk.</p> <p>Amercement.</p> <p>3. A clerk of the district court cannot be amerced under sections 5555 and 5556, Rev. Codes 1899, for failure to pay over money paid him for the satisfaction of a judgment on file in his office except in cases where such money is paid him under the terms of a statute.</p> <p>Appeal — Affirmance.</p> <p>4. Failure to comply with rules of court in reference to appeals under section 5630, Rev. Codes 1899, is not ground for affirming the judgment or dismissing the appeal in case of an appeal from a judgment rendered pursuant to section 5555, Rev. Codes 1899.</p>

<p>Mortgage — Foreclosure.</p> <p>1. Rev. Codes 1899, section 5200, subdivision 2, limiting to ten years the -time for commencing an action to foreclose a real estate mortgage, had no application to a proceeding to foreclose by advertisement, before the amendment of that section by chapter 120, p. 152, Laws 1901.</p> <p>Limitations.</p> <p>2. The time that had run since the accrual of the right to foreclose by advertisement before the taking effect of chapter 120, p. 152, Laws 1901, is not to be computed as part of the time limited by that amendatory act for commencing a proceeding to foreclose by advertisement.</p>

<p>Appeal from District Court, Billings county; Winchester, J.</p> <p>T. E. Johnson was convicted of willfully killing a horse, and appeals.</p> <p>The evidence was wholly circumstantial, and such that each-circumstance depends for its probative value and effect upon the existence of other -circumstances in the evidence. The charge -of .the court was erroneous. State v. Y-oung, 9 N. D. 165, 82 N. W. 420.</p> <p>The instruction reverses the rule, that the jury must be satisfied beyond a reasonable doubt -of defendant’s guilt before they can convict him. State v. Y-oung, su-pra; State v. Evans, 81 N. W. 893.</p> <p>The cou-r-t cannot charge, -if you find from the evidence that any witness has sworn falsely as to any material fact or issue in this case * * * you have the right to- reject the statements of such witnesses excepting in so far as they are -corroborated by other -credible evidence. This was -clearly error. McPh-errin v. Jones, 5 N. D. 261, 65 N. W. -685; State v. -Campbell, 7 N. D. 58, 72 N. W. 935; 2 Enc. PI. & Pr. 340.</p>

Robert Momberg and Frank Bauer were convicted of keeping a liquor nuisance, and appeal. The court .erred in -this instruction: “By prima facie evidence is meant evidence which you must receive as conclusive unless the same is explained by -the defendants by other evidence produced before you in this case.” State v. Barry, 11 N. D. 428, 92 N. W. 809.

Georgé L. Virgo was convicted of keeping a common nuisance, and appeals. Former acquittal, by reason of variance between the information or indictment and the proof, is not an acquittal of the same offense. See sections 8235 and 8106, Rev. Codes 18-99. In the absence of evidence an acquittal will be presumed to be upon the merits, and it is upon tire state to show otherwise.

<p>Appeal from District Court, Grand Forks county; Fisk, J.</p> <p>Hans Nelson was indicted for selling liquors unlawfully, and from an order advising an acquittal the state appeals.</p> <p>The subterfuge of collecting the money in a cap or a keg or otherwise, does not alter the true nature of the sale of intoxicants, it is still a sale, and a violation of the law. State v. Wiggin, 20 N. H. 4-49; Black on Intox. Liquors, section 405; 17 Am. & Eng. Ene. Law, 299; State v. McMinn, 83 N. C. 668; Grant v. State, 13 S. E. 554.</p> <p>It is presumed that defendant owned the beer from the fact of bis possession and control of it, and no previous arrangement for procuring it. If he was disposing of it for someone else he was guilty. State v. Wadsworth, 30 Conn. 55; Paschal v. State, 10 S..E. 821; Hartgraves v. State, 43 S. W. 331.</p> <p>One who solicits others to join him in the purchase of whiskey, receives from each pay for the share each person wants, and after-wards buys and distributes it among them is guilty of selling liquors without a license. Hunter v. State, 30 S. W. 42.</p> <p>A mere volunteer who. assists in making sales is criminally liable. State v. Herselus, 86 Iowa, 214, 53 N. W. 105; State v. Bugbee, 22 Vt. 32.</p> <p>A person who procures liquors at the request of an assembled party for their common refreshment, all, he among the others, contributing to the expense is not a seller; and it makes no difference that after the liquor is procured other members of the party are taken into the arrangement, contributing their share and drinking their proportion. Hogg v. People, 15 111. App. 288; Commonwealth v. Peters, 2 Pa. Sup. Ct. 1, 38 W. N. C. 511; Cressey v. Commonwealth, 76 S. W. 509; Miller v. Commonwealth, 76 S. W. 515; Trueue v. State, 44 S. W. 829; Reed v. State, 44 S. W. 1093; Johnson v. State, 63 Miss. 228.</p>

<p>Judgment By Default — Notice.</p> <p>1. A judgment taken by default, without notice, in an action for equitable relief, after the -defendant had appeared, -is irregular, but is not void.</p> <p>Answer to Amended Complaint — Default.</p> <p>2. Where, after an answer has -been served, the complaint is amended, -but the amendment is merely formal, and does not make -any substantial change in the facts alleged as .grounds for relief, it is not necessary to serve another answer, and the defendant is not in default for failure to do so.</p> <p>Homestead Filing — Possession not Granted by Injunction Although Defendant Is Insolvent.</p> <p>3. Where the plaintiff claims the right to possession of land under a homestead filing, and the land is in the actual adverse -possession of ■the defendants, he cannot resort -to equity to recover possession by means of an injunction, even though the defendants are insolvent.</p> <p>Vacating Temporary Injunction Superseded by Judgment — Irregular Judgment.</p> <p>4. Where a temporary injunction pending the action had been ordered, and the injunction had been superseded by a judgment which was irregular, but not void, a motion to vacate the injunction was ineffectual, unless.it was coupled with a motion to vacate the judgment for irregularity.</p> <p>Vacating Judgment for Irregularity — Lapse of Time.</p> <p>5. A motion to vacate a judgment for irregularity may be heard and granted, even though more than one year has -elapsed since notice -of the entry of judgment.</p> <p>Vacating Irregular Judgment — Discretion — Waiver of Irregularity!</p> <p>6. In granting or denying a motion to vacate a judgment for irregularity,' the court exercises a discretion governed by equitable principles; and the relief will not be granted if the moving party has, by conduct or otherwise, waived the irregularity, or if .his conduct has -been such as to render it inequitable to grant relief.</p> <p>Homestead Contest — Effect of Executive Department’s Decision Upon Courts.</p> <p>7. While this action was pending there was a contest in progress before the federal land office between the same parties, involving the validity of the conflicting homestead filings, under which the respective parties claimed the right -to occupy the land. The contest had resulted in a .decision by the secretary of the interior in favor of defendants, but .there was a petition for reveiw of that decision still pending and undetermined. Held, that if the petition for review resulted in a decision for plaintiff, the judgment should not be vacated, except as to costs, but, if the secretary affirmed the decision under review, then the judgment ought to be vacated.</p>

Action by Charles S. Roberts against George G. Bope. Judgment for defendant, and plaintiff appeals. Elector must express his choice of candidates by mark made by himself. Vallier v. Bralcke, 64 N. W. 180; Fletcher v. Wall, 40 L. R. A. 617; McKittrick v. Pardee, 6-5 N. W. 23. Other than official ballot shall not be cast -or -counted in any -election. Re Contested Election School Directors, 27 L. R. A.-234. Candidate’s name must appear in one -column only.

William Barry was convicted of murder, and appeals. A constitutional provision must be interpreted in the light of the common law, from which it is inherited, as known to the framers.

Action by the Houghton Implement Company against Thomas Doughty. Judgment for defendant, and plaintiff appeals. In face of a waiver of all damages for a failure to ship promptly a purchaser cannot rescind his purchase. If he had such right of rescission, lie should have refused to receive the article purchased, and promptly given notice of his right to rescind.

Ella Forrester was convicted of grand larceny, and appeals. The verdict of a jury arrived at in any other way or manner than by the sound judgment, dispassionate consideration and conscientious reflection of an individual juror should be set aside.

<p>Counties — Purchase of Supplies.</p> <p>1. The purchasing of blank books, blanks and stationery for the use of county officers is to be made by a committee consisting of the county treasurer, county auditor and chairman of the board of county commissioners, pursuant to section 1906, Rev. Codes 1895, as amended •by chapter 59, p. 69, Laws 1899.</p> <p>Competitive Bids.</p> <p>2. The purchase of blank books, blanks and stationery for the use of county officers need not be made under competitive bids under ■section 1925, Rev. Codes 1895, as amended by chapter 59, p. 69, Laws 1899.</p> <p>Injunction.</p> <p>3. The allegations of the complaint considered, and held not to state a cause of action for an injunction against the board of county commissioners to prohibit it from carrying out the terms of a contract for the furnishing of blank books, blanks and stationery to the county officers, although the power -to enter into such contract is not vested in such board.</p>

Proceedings by the Petersburg school district of Nelson county against Levi H. Peterson to condemn land. Judgment for plaintiff, and defendant appeals. The voters never selected the site sought to be condemned. The. proposition submitted was too indefinite as a designation. The boundaries were subsequently fixed by the board.

<p>Justices of the Peace — Undertaking — Service.</p> <p>1. Under our statute regulating appeals from justice courts, the service and filing of the notice of appeal, and the filing of the undertaking with the clerk of the district court are not alone sufficient to transfer jurisdiction. The undertaking must be served and the service must be made within thirty days after the judgment is rendered. Richardson v. Campbell, 81 N. W. 31, 9 N. D. 100, followed.</p>

Action by William O’Keefe against William C. Leistikow. Judgment for plaintiff, and defendant appeals. When the agreement of sale is for a part of a specified stock or mass, a separation and appropriation of the part are necessary, and until they are made the contract is executory and the property in the thing does not pass. 2 Shouler’s Personal Property, 256, 257; Meser v. Woodman, 53 Am. Dec. 274; 24 Am. & Eng. Enc.

Action by Luther A. Couch against the state of North Dakota. M. M. Weeks and Robert Cotton intervened. From the judgment Couch appeals. If one makes an offer to another or to all persons in general, and another goes forward and does the thing, the latter accepts the offer and the person who made it must pay or do what he proposed. Bishop on Contracts, section 330; Reif v. Paige, 55 Wis. 496, 42 Am. Rep. 731; Springer v. Cooper, 11 Bald. 267.

Application 'by the State, on the relation of C. N. Frich, Attorney General, for writ of mandamus to Stark county and others. The act is void under section 1671 of the constitution. An act relating to persons or things as a class is general; one relating to persons or things of a class is special. Sutherland on Stat. Const. 149; Wheeler v. Philadelphia, 17 Pa. 338; Ex parte Lichenstein, 67 Cal. 359, 7 Pac. 728, 56 Am.

Action by G. J. Schwoebel against George E. Fugina. Judgment for plaintiff, and defendant 'appeals. Neither failure to .pay rent, nor owner’s- demand of possession, terminated his tenancy in the absence of agreement to that effect, or notice to quit the premises. Section 3346-3350, Rev. Codes 1899; Sto-ppelkamp v. Mangeot et al., 42 Cal. 316.

Action by P. P. Spoonheim and Anna Spoonheim against Halvor P. Spoonheim. Judgment for plaintiffs, and1 defendant appeals. Intoxication so deep and excessive as to deprive one of his understanding is a good defense to. an alleged1 contract made while the defendant is in -that condition. 14 Cyc. 1103; 17 Am. & Eng. Enc. Law, 401; Story Eq.

Action by Mary Weisbecker against John Cahn. Judgment for plaintiff, and defendant appeals. That judgment debtors have property within the state subject to levy does not operate to continue the running of the statute of limitations during his absence from the state. 55 Ky. 554; 66 Cal. 202; Richards v. Continental Ins. Co., 47 N. W. 350; 36 N. Y. App.

Action by Jacob Friedlander against John B. Taintor. Judgment for plaintiff, and defendant appeals. The services of an. architect in drawing plans and specifications for the construction of a. house, directing the builder in charge of the work, cannot be called “work or labor upon a building.” Raeder v. Bensberg, 6 Mo. App. 445; Murphy v. Murphy, 22 Mo. App. 18; Bank of Pennsylvania v. Gries, 35 Pa. St. 423.

Action by Rena Stevens against Charles A. Meyers. Judgment for plaintiff, and defendant appeals. Voluntary conveyances by insolvents are fraudulent and void although consummated without fraudulent intent. Stickney v. Borman, 2 Pa. St. 69; Kimel v. M’Right, 2 Pia. St. 38; Thompson v. Crane, 73 Fed. 327; Wooten v. Steele, 109 Ala. 563, 55 Am.

<p>Appeal from District Court, Burleigh county; Burke, S'. J.</p> <p>Action by Harry A. Thompson against the Fargo Plumbing & Heating Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Nelson county; Fisk, J.</p> <p>Action by the Scott & Barrett Mercantile Company against Nelson county and Henry Telander, auditor. Judgment for plaintiff, and defendant appeals.</p> <p>A state levy in percentage and not in specified amounts does not invalidate the tax. Fisher v. Betts et al., 12 N. D. 197, 96 N. W. 132.</p> <p>County levy not based on an itemized statement of expenditure for the ensuing year is not a void levy and does not invalidate the tax. Sykes v. Beck, 12 N. D. 242, 96 N. W. 844.</p> <p>That taxes were excessive is not ground for canceling a certificate or enjoining its 'enforcement, unless the maximum amount that might have been imposed upon plaintiff’s property is either paid or tendered before action. Wells Fargo Express Co. v. Crawford County et al., 37 L. R. A. 371; Wilson et al. v. Longendyke et al., 4 Pac. 361; Douglas v. City of Fargo et al., 13 N. D. 467, 101 N. W. 919; Farrington v. The N. E. Investment Co. et al., 1 N. D: 103, 45 N. W. 191.</p> <p>Whether a description of land in an assessment list is sufficient or not for the purpose of identification is a question of law, and a pleading should show the exact facts touching the assessment. Absence of assessor’s oath from the assessment list does not vitiate either the tax or certificate. Douglas v. City of Fargo, supra; Farrington v. The N. E. Investment Co. et al., supra.</p> <p>The postponement of the sale was to plaintiff’s advantage, and no prejudice could arise to impair the validity of the certificate. Pa-den v. Akin, 7 Watts & S. 456; Little v. Gibbs et al., 30 Pac. 986; Colman v. Shattuck, -62 N. Y. 348.</p> <p>Villages, townships and school districts are essential parties to an action to annul tax proceedings. Adams v. Auditor General, 5 N. W. 457; Railway Co. v. Robinson, 42 N. W. 83; Hope v. Gaines-ville, 72 Ga. 246; Hill v. Flayes, 17 Id. 360; Gilmore v. Fox, 10 Id. 509; Voss v. Union School District, 18 Id. 467; 10 Ene. PL & Pr. 911.</p> <p>The tax in question was not equalized. This is fatal. Powers v. Larabee, 2 N. D. 141, 49 N. W. 724.</p> <p>Tiie village taxes are in excess of the taxes that the village had power to levy. This is expressly excepted from the curative feature of chapter 158, Laws 1903. Where the complaint negatives the existence of a tax, plaintiff is not required to pay or tender what does not exist. Cooley on Taxation, 1427; Jaggard on Taxation, 758; Bode v. New England Investment Co., 1 N. D. 121, 42 N. W. 658; Gage v. Kaufman, 133 U. S. 408, 10 Sup. Ct. Rep. 406; Greenley v. Hovey, 73 N. W. 808.</p> <p>The part of the demurrer that charges a defect of parties is not well taken. Demurrer itself is defective in that it fails to point out the proper panties. Jaeger v. Sunde et al., 73 N. W. 171; Kreling v. Kreling, 50 Pac. 546; Leedy v. Nash, 67 Ind. 311; Gunderson v. Thomas, 58^ N. W. 750; Schwartz v. Wechler, 20 N. Y. S. 861.</p>

<p>Intoxicating Liquors — Sale of Patent Medicine.</p> <p>1. A sale of a patent medicine as medicine by a storekeeper in good faith is not a violation of law under section 7281, Rev. Codes 1899, although the same contains alcohol as one of its ingredients.</p> <p>Same — Question for Jury.</p> <p>2. ■ Whether a sale of liquids is made as a-medicine or as a beverage, under section 7598, Rev. Codes 1899, is a question of fact for the jury.</p> <p>Same — Instructions.</p> <p>3. Instructions considered, and held erroneous, as stating -to the jury that the sale of patent medicines is unlawful unless made by a registered pharmacist.</p>

<p>Justice of the Peace — His Duty When Title to Hand Is in Controversy.</p> <p>1. Under section 6670, Rev. Codes 1899, as amended by chapter 201, -p. 259, Laws 1901, a justice of the peace does not lose complete jurisdiction of a case because a question of the title -to or boundary of real property arises. He is authorized, and it is his duty, to certify ■the case to -the district court for trial.</p> <p>Same — Appeal — Jurisdiction.</p> <p>2. Where a justice of the peace dismisses a case, instead of certifying it, as - required by the above section, and the plaintiff appeals generally from the judgment, the district court has jurisdiction to try ■the action.</p>

<p>Appeal from District Court, Traill county; Pollock, J.</p> <p>Action by R. I. Simonson against Jens Jenson. Judgment for plaintiff, and defendant appeals.</p>

<p>Setting Aside Judgment — Moving Promptly.</p> <p>1. To warrant a court in setting asi-de a judgment upon a showing of surprise under section 5298, Rev. Codes 1899, the party must move promptly', and within one year after notice.</p> <p>Same.</p> <p>2. In cases of motions to set aside judgments not within the provisions of section 5298, Rev. Codes 1899, the party seeking relief must move seasonably.</p> <p>Same — Discretion of Court.</p> <p>3 In applications for relief under section 5298, Rev. Codes 1899, trial courts are vested with -large discretion, and their action will not be disturbed unless such discretion has been abused.</p>

<p>Judgment Quieting Title Bai’s Easement and License Existing at the Time of Its Entry — Res Judicata.</p> <p>1. In an action to quiet title to real estate, in which the complaint alleges that the plaintiff is the owner of the land in fee and that the •defendant has no right, title or interest therein., a judgment that the plaintiff does own the land and that the defendant had no rig'ht, title or interest therein conclusively adjudicates all questions affecting the title to such land, and bars a claim to an interest in the real estate in the nature of ail easement in or license or consent to use the land existing when such adjudication was made, in a subsequent action ■by the same plaintiff for damages on account of the unlawful occupation of said real estate by the defendant.</p> <p>Evidence — Expert Testimony — Opinions as to Value of Real Estate Must Rest on Knowledge Thereof, or of Other Similarly Situated.</p> <p>2. A witness is not competent to testify in reference to the rental value of real estate, concerning which rental value he has no knowledge nor any knowledge of the rental value of real estate similarly located. The knowledge of the witness as .to the rental value of lots used for business purposes does not render such witness competent to testify as to' the rental value of real estate of different character and location, and having no rental value for business purposes.</p>

<p>Justice of the Peace — Summons — Amendment.</p> <p>1. A summons in justice oourt, which -contained a partnership name without showing the Christian name of each partner, is not a nullity, but is merely irregular, and may be cured -by amendment.</p> <p>Dismissal — Irregularity in Practice.</p> <p>2. An action should not be dismissed for a mere irregularity of practice which can be remedied -by amendment without prejudice to the substantial rights of the parties.</p> <p>Mistakes in Pleading or Process May Be Amended in Justice Oourt.</p> <p>3. The provisions of section 5297, Rev. Codes 1899, relating to the correction of mistakes in pleading, process or proceeding, is applicable to justice court.</p>

<p>Gaming — Dealing in Options — Evidence.</p> <p>1. An agent sues its principal to recover for losses sustained in transactions on the Duluth Board of Trade in the sale of grain for future delivery. Held, that there was no sufficient evidence requiring the trial court to submit to the jury the issues raised by defendant’s answer, and hence the ruling of the oourt in directing a verdict for the plaintiff was proper. Sales of commodities for future delivery are presumed to 'be legitimate, and the burden is .upon the party asserting the contrary to establish such fact.</p> <p>Same — Validity of Contract.</p> <p>2. A contract for the sale of a commodity for future delivery is valid if the parties intend that there shall be an actual delivery; but if the parties do not contemplate an actual delivery of the commodity sold, but agree that one party shall pay the other the difference between the contract price and the market price at the date set for the execution of the contract, it is void as a wagering or gaming contract.</p> <p>Same — Delivery — Intent of Parties.</p> <p>3. In an action on such a contract, it is no defense that the vendor did not intend an actual delivery of the commodity, if the other party ■contemplated such delivery. The test of illegality is the intention, not alone of one of the parties, but of both.</p>

<p>Appeal from District Court, Ransom county; Lauder, J.</p> <p>Action by Levi B. Hanson against Joseph E. Skogman. Judgment for defendant, and plaintiff appeals.</p> <p>The tort was not connected with the subject of the action so as to make it the subject of a counterclaim. Braithwaite v. Akin, 3 N. D. 365, 56 N. W. 133; section 5274, subdivision 1, Rev. Codes 1899.</p> <p>The property was turned over to the plaintiff as security in the nature of a pledge, with the condition that he might sell, if he could get enough to pay the debts secured, and plaintiff was not to be accountable for the use, nor defendant for the keep, of the horses. Defendant must comply with the conditions of the pledge if !he would get possession, or sue in equity for a redemption. Plaintiff has the right to sue on the note and still retain possession of the horses. Wilson v. Burhans, 71 N. W. 879.</p> <p>That a counterclaim has been filed in an action in which it is not permissible is not a statutory ground for demurrer; it must be met by a motion to strike out or by objection to evidence under it. Howlett v. Dilts, 30 N. E. 313.</p> <p>Conversion of horses, for which a note was given, and for the judgment of which they were pledged, was a proper subject of counterclaim in a suit on the note. Ainsworth v. Bowen, 9 Wis. 348; Rush v. First Nat. Bank, 71 Fed. 102, 17 C. C. A. 627 Hyman v. Jockey Club Co., 48 Pac. 671; Paxton v. Vincennes Mfg. Co., 60 N. E. Rep. 583; First Nat. Bank v. O’Connell et al., 51 N. W. Rep. 163.</p> <p>A statute authorizing counterclaims should be liberally construed. First National Bank v. Parker, 28 Wash. 234, 92 Am. St. Rep. 828, 68 Pac. 756. .</p> <p>The defendant’s counterclaim was ’’connected with the subj ect of the action,” and proper. Gordon v. Bruner, 49 Mo. 570; Vilas v. Mason, 25 Wis. 310; Smith v. Fife, 2 Neb. 10; Goebel v. Hough, 26 Minn. 252; Littleman v. Coulter, 7 N. Y. Supp. 1; First Nat. Bank v. Parker, 28 Wash. 234, 92 A. S. R. 828.</p> <p>A motion for a new trial is not available procedure to reach defects in pleading. Ross v. Wait et al., 51 N. W. 866; Mason et al. v. Austin, 46 Cal. 385; Jacks v. Buell, 47 Cal. 162; Spelling, New Trial & App., vol. 1, section 6.</p>

<p>Appeal from District Court, Richland county; Pollock, J.</p> <p>Action- by Simon P. Healey against Frank N. Forman. Demurrer to answer sustained-, and defendant appeals.</p> <p>One person -cannot enter upon the possession of another for the -purpose -of acquiring title from the government. Quimby v. Conlan, 104 U. S. 420, 26 L. Ed. 800; Kendall v. W-atters et al., 8 Pac. 510; Hambleton v. Duhain, 71 -Cal. 136; Atherton -v. Fowler, 96 U. S. 513, 24 L. Ed. 732; Trenouth v. San- Francisco -et -al., 100 U. S. 251, 25 L. Ed. 626; Goodwin v. McCabe, 75 Cal. 584, 17 Pac. 705.</p> <p>Redress may be had w-here fraud or deception have been practiced, which affects the judgment -or -decision of the officers of the land department. 26 Am. & Eng. Enc. Law, 382; Stinson Land Co-, v. Hollister, 75 Fed. 941; Freese v. Scouton, 53 Kan. 347.</p> <p>Where fraud -or imposition, necessarily affecting ‘the judgment of the land department, has been practiced by the patentee, the courts will -compel the transfer -o-f the title to him who, but for the fraud, would- have received the patent. 26 Am. & Eng. Enc. Law, 399; Starks v. Starrs, 6 Wall. 402; Lytle -at al. v. Arkansas et al., 23 Plow. 193; Garland- v. Wynn, 20 How. 8; Lindsey v. H-owes, 2 Black. 559; Moore et al. v. Robbins, 96 U. S. 530; Rector v. Gibbon- et al., Ill U. S. 276, 2-8 L. Ed. 427; Corbet v. Wood, 32 Minn. 509; Berni-er et al. v. Bernier et al., 147 U. S. 242, 13 Sup. -Ct. Rep. 244,</p> <p>Where a patent is issued by mistake or -misconstruction of the law to one who- is not -entitled to it, he will be -declared a trustee and compelled in equity to -convey to the rightful owner. 26 Am. & Eng. Enc. Law, -399; Curtner v. United States, 149 U. S. 662, 13 L. Ed. 1041; Silver v. Ladd, 7 Wall. 219, 19 L. Ed. 138; Barnard et al. v. Ashley et al., 18 How. 43, 15 L. Ed. 285; Minnesota v. Bach-elder, 1 Wall. 109, 17 L. Ed. 551; Johnson et al. v. Towsley, 13 Wall. 72, 20 L. Ed. 485; Shepley et al. v. -Cowan et al., 91 U. S. 330, 23 L. Ed. 424; Moore et al. v. Robbins, 96 U. S. 530, 24 L. Ed. 848; Quimby v. Conlan, 104 U. S. 420, 26 L. Ed. 800; St. Louis, etc., Co. v. Kemp et al., 104 U. S. 636, 26 L. Ed. 875; Rector v. Gibbon, 111 U. S. 276, 28 L. Ed. 427; Bernier v. Bernier, 147 U. S. 242, 13 L. Ed. 244; Manley v. Tow, 110 Fed. Rep. 241; Starks v. Starrs, 6 Wall. 402, 18 L. Ed. 925; Marques v. Frisbie, 101 U. S. 473, 25 L. Ed. 800.</p> <p>M-istake of law by registers and receivers may be corrected 'by the courts. Hosmer v. Wallace, 47 Cal. 461; Hess v. Bolinger, 48 Cal. 349.</p> <p>So as to commissioner of the general land office. Parsons v. Venzke et al., 4 N. D. 452, 61 N. W. 1036, 164 U. S. 89, 17 Sup. Ct. Rep. 27.</p> <p>So where title is secured by false swearing. 26 Am. & Eng. En-c. Law, 399, 400; Garland v. Wynn, 20 How. 6; Lytle et al. v. Arkansas et al., 22 How. 193 ; Aldridge v. Aldridge, 37 111. 32; Climer v. Selby, 10 La. Ann. 182.</p> <p>Equity will set aside for fraud a decision of the register and receiver confirmed by the commissioner. Mezer -v. Greer, Fed. Cases No. 9, 520.</p> <p>Legal title to public land remains in the United States until patent -issues, unless the receipt is canceled for cause by the land department. Parsons v. Venzke, 4 N. D. 452; affirmed in 164 U. S. 89; Guaranty Savings Bank v. Bladow, 6 N. D. 108; affirmed in 176 U. S. 448.</p> <p>Fraud in acquiring title to public lands is solely a question between plaintiff and the United -States, and -cannot avail defendant as a defense. Clark v. Lockwood, 21 Cal. 220; Paldi v. Paldi, 54 N. W. 903; Depuy et al. v. Williams -et al., 26 Cal. 309; Lestrade v. Barth, 19 Cal. 660; Bloom v. Robertson, 24 Cal. 128.</p> <p>While legal title to public land remains in the government, the land department 'has sole jurisdiction to try title, and the courts will not interfere. An equitable title, set up in an action of ejectment, must be suc-h as may be ripened into- legal title by the decree. Lestrade v. Barth, 19 Cal. 660; Bloom v. Robertson, 24 Cal. 128.</p>

<p>Appeal from District Court, McHenry county; Palda, J.</p> <p>Action by J. D. Bacon against Robert Mitchell and Charles Mitchell. Judgment for defendants, and plaintiff appeals.</p> <p>An attorney cannot delegate his authority or substitute another attorney in his place. Johnson v. Cunningham, 1 Ala. 249; Hitchcock v. McGehee, 7 Port. 556; Hendry et al. v. Benlisa, 37 Fla. 609, 34 L. R. A. 283; Morgan v. Roberts, 38 111. 65; Porter v. Elizalde, 57 Pac. 899; Cornelius v. Wash, 1 111. 98, 12 Am. Dec. 145; Crotty et al. v. Eagle, 35 W. Va. 143, 13 S. E. 59; Buckley v. Buckley, 18 N. Y. S. 607; Clegg v. Bamberger, 110 Ind. 536, 9 N. E. 700; McDowell v. Gregory et al., 14 N. W. 899; Antrobus v. Sherman, 21 N. W. 579; Danley v. Crawl, 28 Ark. 95; Kellogg v. Norris, 10 Ark. 18; Dickson v. Wright, 52 Miss. 585, 24 Am. Rep. 677; O’Connor v. Arnold, 53 Ind. 203; Masecar v. Chambers, 4 U. C. Q. B. 171.</p> <p>Bringing suit without authority does not bind plaintiff. Atkinson v. Hewlett, 11 Ky. L. Rep. 364; Hurste v. Hotaling, 20' Neb. 178; Robson v. Eaton, 1 T. R. 62.</p> <p>One dealing with an agent must ascertain the fact and extent of his agency. Corey v. Hunter'et al., 10 N. D. 5, 84 N. W. 570; Fargo et al. v. Cravens, 70 N. W. 1053.</p> <p>An attorney, acting under a general employment, has no implied powers or authority -to dismiss or compromise an action. Biglier v. Toy, 28 N. W. 17; Luce et al. v. Foster et al., 60 N. W. 1027; Erskine v. Mcllrath, 62 N. W. 1130; Mayer v. Sparks et al., 45 Pac. 249; Porter v. Elizalde, 57 Pac. 899; Kilmer v. Gallagher, 84 N. W. 697; 3 Am. & Eng. Enc. Law (2d Ed.) 358; Flanagan v. Elton, 51 N. W. 967; Rhutasel v. Rule, 65 N. W. 1013; Steinkamp v. Gaebel, 95 N. W. 684; Hallack v. Loft, 34 Pac. 568.</p> <p>An attorney cannot enter a retraxit or discontinuance concluding a olient’s rights except by express authority. 3 Am. & Eng. Enc. Law, 360; Crotty v. Eagle, supra; Flanagan v. Elton, supra; Steinkamp v. Gaebel, supra; Hallack v. Loft, supra.</p> <p>Nor can he compromise client’s case. MeClintock v. Heiberg, 48 N. E. 145; Dalton v. West End St. Ry. Co., 34 N. E. 261; Lewis v. Duane, 36 N. E. 325; Cox v. Adelsdorf, 51 S. W. 616; McMurray v. Marsh, 54 Pac. 852; Stoll v. Sheldon, 13 N. W. 201; Bigler v. Toy, 28 N. W. 17; Pitkin et al. v. Harris, 37 N. W. 61; Martin v. Capital Ins. Co., 52 N. W. 535; Smith v. Jones et al., 66 N. W. 19; Fosha v. Proser et al., 97 N. W. 925.</p> <p>Where one compromises a claim or takes less than the full amount due thereon, he must investigate the authority of the attorney dealing with him. MoClintock v. Halberg, supra.</p> <p>One deals with an agent at his peril. Corey v. Hunter, supra. In the absence of a statute, exhibit need not be attached to and returned with depositions, and may be identified by parol. Weeks on Dep., sections 527, 358, 194; Dailey v. Green, 15 Pa. St. 118; Mobley v. Leonart, 51 Ala. 587.</p> <p>Same as to a pleading. Whitworth v. Malcomb, 82 Ind. 455; Carper v. Kitt, 71 Ind. 24; Wall v. Garvin, 80 Ind. 447; Read v. Broadbelt, 68 Ind. 91.</p> <p>The judgment was rendered against the plaintiff herein, and the cause dismissed through inadvertance, mistake or surprise; and the judgment should have been vacated and the cause reinstated under the provisions of section 5298, Rev. Codes 1899. Downing v. Still, 43 Mo. 309; 1 Black on Judgments, 77, 319; Palace Hardware Co. v. Smith, 66 Pac.. 474; Brackett v. Banegas, 34 Pac. 344; Vermont Marble Co. v. Black, 38 Pac. 512; Flannagan v’. Elton, supra; Holbrook v. Nichol, 36 111. 161; Farnham v. Jones, 32 Minn. 7; Shaw v. Henderson, 7 Minn. 480, 7 Gil. 386.</p> <p>Negligence of an attorney is sufficient ground to vacate a judgment, if client himself is not directly at fault. Hanson v. Milcelson, 19 Wis. 498; Babcock v. Perry, 4 Wis. 31; 1 Black on Judgments, section 341; Ordway v. Suchard, 31 Iowa, 481; Benwood v. Tappan, 56 Miss. 659; People v. New York, 11 Abb. Pr. 74; Sharp v. Mayor, 31 Barb. 578; Baron v. Cohen, 62 How. Pr. 367; Herbert v. Lawrence, 21 Civ. Pro. 336; Quin v. Lloyd, 36 How. Pr. 378; Dalton v. West End St. Ry. Co., supra; Flannagan v. Elton, supra; Palace Hardware Co. v. Smith, supra; Hiñe v. Grant et ah, 96 N. W. 796; Norton v. Atchison, T. & S. F. Co., 97 Cal. 388, 30 Pac. 585.</p> <p>Although there be no fraud or mistake, a court may relieve from a stipulation, or judgment entered thereon, inadvertently, unadvisedly or improvidently entered into, to one’s prejudice, if the parties can be restored to the existing condition at time of the agreement. 20 Enc. PI. & Pr. 664; McClure v. Sheek’s Heirs, 4 S. W. 552; Ward v. Clay, 23 Pac. 50; Porter v. Holt, 11 S. W. 494; Keens v. Robertson, 46 Neb. 837, 65 N. W. 897.</p> <p>Christianson was employed to try the case, as appears from his and Murphy’s affidavit. He has conducted this appeal alone, and ■where his attorney began or ended does not appear, but he is in charge of this appeal. When an attorney has an appointment in two places at the same time, he may hire another to attend at one of them.</p>

<p>Appeal from District Court, Burleigh county; Glaspell, J.</p> <p>Action (by I. E. Mills against Thomas Fortune. Judgment for defendant, and plaintiff appeals.</p> <p>The procedure in taking up estrays is ex parte and in invitum and the statutory requirements must be strictly pursued. If defendant was not qualified to take up the estray when he did, or failed in pursuing the statutory requirements, he was a trespasser. Section 1576, Rev. Codes 1899; James v. Fowler, 90 Ind. 563; Bucher v. Wagoner, 14 N. W. 160; Weber v. Hartman, 7 Col. 13; Dierks v. Weilage, 24 N. W. 728.</p> <p>Defendant took up the estray wrongfully, as it does not appear that he was a householder in the county, and is presumed not to be. Weber v. Hartman, supra; Shepard v. Hawley, 4 Ore. 206; Newton v. Hart, 14 Mich. 233.</p> <p>The verdict cannot be sustained because nothing shows that defendant ever sought to have the horse appraised. Section 1577, Rev. ’Codes 1899. And because he failed to make the affidavit before a justice as provided in section 1575, Rev. Codes 1899; and, further, because the description of the horse and brands in the notice was insufficient. Section 1572, Rev. Codes 1899.</p> <p>Defendant’s conduct was so remiss that he lost whatever lien he may have had. Bucher v. Wagoner, 14 N. W. 160; McGrossin v. Davis, 100 Ala. 631; Harryman v. Titus, 3 Mo. 302; Haffner v. Barnard, 123 Ind. 429; Davis v. Calvert; 17 Ark. 85.</p> <p>Estray proceedings are stricti juris and claimant of title thereunder must show .strict compliance with the statute. Dillard v. Webb, 55 Ala. 468; Cory v. Dennis, 93 Ala. 440; Stewart v. Hunter, 16 Ore. 62; Fort Smith v. Dodson, 57 Ark. 447; 2 Am. & Eng. Enc. Law (2d Ed.) 378; 2 Cyc. L. & Pr. 360-363.</p> <p>Defendant was qualified to take up an estray. He was a householder and resident of Burleigh county, N. D. Section 1571, Rev. Codes 1899. The estray was taken up in the vicinity of plaintiff’s place, trespassing upon his leased land. Section 1571, supra. On substantial compliance, the proceedings regarding estrays will be liberally construed. Dierks v. Weilage, 24 N. W. 728; Bucher v. Wagoner, 14 N. D. 160.</p> <p>In claim and delivery, possession, not right of property, is the issue, and plaintiff must show exclusive possession in himself as against the defendant. 20 Am. & Eng. Enc. Law (1st Ed.) 1050.</p> <p>The burden of proof lies on tlie plaintiff to do this. Hamilton v. Iowa Nat. Bank, 40 Iowa, 307; Cartside v. Nixon, 43 Mo. 138; Mathias v. Sellers, 86 Pa. St. 466; Harwood v. Suet, Hurst, 29 N. J. L. 195.</p> <p>A householder is a head of a family; a person who occupies a house and has charge of and provides for a family. 15 Am. & Eng Enc. Law (2d Ed.) 774; Katzenberg v. Lehman, 80 Ala. 514; Griffin v. Sutherland, 14 Barb. 456.</p>

<p>Where an Equitable Counterclaim Is Pleaded in an Action at Law, Issue Thereon Must Be First Tried.</p> <p>1. Wihe-re, in an action at .law, the answer interposes an equitable counterclaim, the issues arising on the latter should be heard and determined by the court before a trial of the legal issues, as if the counterclaim were a separate suit in equity.</p> <p>Same — Final Determination.</p> <p>2. If the decree entered oil the equity side of the case renders unnecessary the trial of any question arising on the law side, then such .decree is the final determination of the action.</p> <p>Same — Cause Triable De Novo on Appeal.</p> <p>3. The cause .of action -was at law and the counterclaim in equity, ¡but the issues on the equity side of the case involved all disputed questions on the law side. The action was tried as if both the cause of action and counterclaim Were in equity. Held, that the case is triable de novo on appeal.</p> <p>Where There Is No Rescission by Vendee, Vendor Is Entitled to Specific ' Performance.</p> <p>4. Evidence examined, and held, that there has been no rescission by the plaintiff of her contract to .buy defendants’ land, and that the latter are entitled to specific performance thereof.</p> <p>Same — Deduction of Valué of Use or Net Profits from Purchase Px'ice — Decree.</p> <p>5. Where a decree of specific performance of a contract, under which the vendee i.s not entitled to possession until conveyance, is awarded to 'the vendor, who appears to have used some or all of the land after the time when, as determined by the decree, the conveyance should .take effect, the value of such use or the net profits thereof, as the vendee -may elect, will be deducted from the purchase price remaining unpaid.</p>

<p>Quieting Title — Judgment on the Pleadings — Denial of Plaintiff’s Title Creates an Issue.</p> <p>1. In an action to determine adverse claims under chapter 5, p. 9, Laws 1901, the granting of plaintiff’s motion for judgment on the pleadings is error, when the answer denies plaintiff’s title to real estate, although it does not set forth a valid adverse interest.</p> <p>Intoxicating Liquors — Lien of Fine and Costs — Execution Upon . Judgment Thereof.</p> <p>2. On a conviction for keeping and maintaining a nuisance, in violation of section 7605, Rev. Codes 1899, the court adjudged that the fine imposed and costs acorued should be a lien on the real estate on which the nuisance was kept, pursuant to section 7610, Rev. Codes 1899. These premises were owned by the .plaintiff in this action, who was not a party in the criminal action. Execution was issued on the judgment in the criminal action, and plaintiff’s land levied on and sold to defendant. Held, that the sale was void, as based on a j udgment or proceeding to which plaintiff was not a party.</p> <p>Same — Enforcement of Lien for Fines and Costs.</p> <p>3. The enforcement .of the lien for fines and costs assessed under section 7610, Rev. Codes 1899, should be by action, and not by execution, in cases like the one under consideration.</p> <p>Same — Nuisance — Knowingly Permitting.</p> <p>4. The word “permit” as used in section 7610, Rev. Codes 1899, is to be construed as authorizing the enforcement of a lien on the premises on which a nuisance is maintained in violation of section 7605, Rev. Codes 1899, when the proof shows that the owner 'knowingly permitted such use.</p>

<p>Trustee in Bankruptcy Succeeds to Bankrupt’s Title to His Property and Can Enforce a Trust.</p> <p>1. Under section 70 of the national bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3451]), a trustee in bankruptcy -is vested with the title of all the bankrupt’s property as -of the date he -was adjudged bankrupt, except exempt property, and he may enforce a trust in real estate existing in favor of the bankrupt.</p> <p>Trusts — Involuntary Trustee — Property Gained by Fraud.</p> <p>2. It 'is a settled doctrine in equity, and one declared by section 3386, Rev. Codes 1899, that “when a transfer of real property is made to one person, and the consideration thereof is paid by or for another, a trust is presumed to result in favor of the person by or for whom such payment is made,” and under section 4263, Rev. Codes 1899, “one wiho gains a thing by fraud” is an involuntary trustee * * * for the benefit of the person w.ho> would otherwise have liad it.”</p> <p>Bankruptcy — Conveyance to Wife — Recovery by Trustee.</p> <p>8. Upon the facts stated in the opinion, and upon a review ,of the entire case in this court, in an action prosecuted by a trustee in bankruptcy to subject certain real estate which had been transferred to the bankrupt’s wife to the payment of his debts, it is held (1) that the bankrupt’s wife was merely a trustee of the title, and (2) that the plaintiff is entitled to a decree transferring title to him.</p>

<p>Application of Otis Kolstad for the disbarment of Guy L. Whittemore.</p>

Lewis O'. Hazlett was convicted of rape, and appeals. Upon examination in chief leading question are not allowed. 1 Green on Ev. (Wig. Ed.) 434; Hardtke v. State, 30 N. W. 723; Cannon v. People, 30 N. E. 1027; Proper v. State, 55 N. W. 1038; State v. Watson, 46 N. W. 868; State v. Porath, 63 N. W. 1061. The same rule applied to leading questions asked by the court. Hopperwpod v. State, 9 Tex. 15; State v. Crofts, 60 Pac. 403; People ex rel.

Marie Harris was adjudged guilty of contempt, and appeals. Affidavits upon .information and belief without personal knowledge are usually condemned. State v. McGahey et al., 12 N. D. 547, 97 N. W. 865'; Swart v. Kimball, 43 Mich. 451; Kaeppler v. Red River Valley Nat. Bank, 8 N. D. 411, 79 N. W. 869; Thomas v. People of the State of Col., 9 L. R. A. 569. Objections to the interrogatories should have been sustained. Section 5942 contains provisions that are mandatory.

<p>Appeal from District Court, Cass county; Pollock, J.</p> <p>Action by Robert Rae against the Chicago, Milwaukee & St. Paul Railway Company. From a judgment affirming a judgment in a justice court for plaintiff, defendant appeals.</p> <p>The amendment proposed changed substantially the cause of action and should not have been allowed. 1 Enc. PI. & Pr. 548, 569; Mares v. Wormington et al., 8 N. D. 328, 19 N. W. 441; Hans■berger v. Railway, 43 Mo. 196; Box v. Chi., R. I. & P. Ry. Co., 18 N. W. 695; Exposition Cotton Mills v. Western A. Ry. Co., 10 S. E. 113; Bolton v. Georgia Pac. Co., 10 S. E. 352; City v. Hart et al., 51 Pac. 938; Swedish American National Bank v. Dickinson, 6 N. D. 222, 69 N. W. 455; section 5291, Rev. Codes 1899.</p> <p>The judgment is void as the complaint does not state facts sufficient to constitute a cause of action. Wadsworth v. Union Pacific Ry. Co., 33 Pac. 515; Conway v. Railway, 19 Am. & Eng. Ry cases, 650.</p> <p>The plaintiff, when damaged, can set out all the facts possible, which might have occurred or been proximate causes to the injury inflicted, and if he has omitted any, his right to amend is clear. Martin v. Luger Furniture Co., 8 N. D. 220, 11 N. W. 1003; Jeffersonville, Mo., I. R. R. v. Hendricks, Admr., 41 Ind. 48; Wood-worth v. Thompson, 62 N. W. 450; Greer v. Louisville R. R. Co., 21 S. W. 649; Smith v. Bogensohutz, 19 S. W. 661; Smith v. Missouri R. R. Co., 56 Fed. 458; Buel v. Transfer Co., 45 Mo. 562; Kuhns v. Wisconsin R. R. Co., 40 N. W. 92; Wilhelms Appeal and Grubb’s Appeal, 19 Pa. St. 120; Colley v. Gate City Coffin Co., 18 S. E. 811; Coby v. Ibert, 25 N. Y. Supp. 998.</p> <p>Appellate tribunal will not review the action of the lower court in allowing an amendment, unless prejudice affirmatively appears. Martin v. Luger Furniture Co., supra; Scherar v. Prudential Co., 56 L. R. A. 611; Halloran v. Holmes, 13 N. D. 411, 101 N. W. 310; Dunn v. Bozarth et al., 80 N. W. 811; Central City Bank v. Rice, 63 N. W. 60; Swift v. Mulkey, 12 Pa. 78; Knott v. Taylor, 96 N. C. 553; Kirstein v. Madden, 38 Cal. 158; Cheney v. O’Brien, 10 Pac. 479; Ene. Pl. & Pr. 533.</p> <p>Amendments are in the discretion of the court in furtherance of justice, and the statutes allowing it are to be applied liberally. Martin v. Furniture Co., supra.</p>

Action by the Robertson Lumber Company against the State Bank of Edinburg. From a judgment for plaintiff, defendant appeals. In an action by a subcontractor or material-man he must allege •that something was due the original contractor at the time the lien was filed. 13 Enc.

Action by Ann Johns-on against Nel-s V. Erlandson. Judgment for defendant, and pl-aintiff appeals. Where one of two innocent persons must suffer, he whose negligence caused1 the loss must bear it. Blight v. Schenck, 10 Pa. St. 293; Noble v. Moisés, 74 Ala. 604; Hill v. Howe, 6 Mackey, 428; McLellan-d v. Bartlett, 13 111. App. 236; Her.tell v. Bogart, 9 Paige, 52; Wilson v. Scott, 13 .Ky.

Ernest Malmberg and John Malmberg were convicted of maintaining a liquor nuisance, and appeal. A witness may be cross-examined so as to test his bias, prejudice or hostility towards a party to the suit, and asked whether he has a controversy with him against whom he is testifying. Atwood v. Welto-n, 7 Conn. 66; Selph v. State, 22 Fla. 637; State v. McFarlan, 6 So. 728; Blessing v. Hapr, 8 Md. 31; People v. Christie, 2 Abb.

John Brown was convicted of maintaining a liquor nuisance, and appeals. The place where a crime is committed must be so set forth as to show that the court has jurisdiction; and when it is matter of essential description it must be particularly and truly stated, and proved as stated. State v. Redington, 64 N. W. 170; State v. Burchard, 5Í N. W. 491; State v. Butcher, 47 N. W. 406; State v. Cotton, 24 N. H. (4 Frost.) 143.

<p>Application by the State, on the relation of George Rusk, for a writ of'injunction against William Budge and others, as members of the board of state capítol commissioners.</p> <p>Certificates of indebtedness, whether in shape of bonds or otherwise, issued by any unincorporated board of officials is indebtedness of the state. State ex rel. vs. McMillan, 12 N. D. 280, 96 N. W. 310; Sackett v. City of New Albany, 45 Am. Rep. 467; Beard v. City of Hopkinsville, 23 L. R. A. 402; Grant v. Davenport, 36- Iowa, 396; Council Bluffs v. Stewart ,51 Iowa, 395; Litchfield v. Ballou, 114 U. S. 190, 29 L. Ed. 132; Baltimore v. Gill, 31 Md. 375; State v. Fayette Co., Com’rs, 27 Ohio St. 526; Grant v Co. Com’rs, 21 Fed. 45; Scott v. Davenport, 34 Iowa, 208; Prince v. City of Quincy, 105 111. 138; Re Appropriations, 13 Col. 323; City of Joliet v. Alexander, 62 N. E. 861.</p> <p>The law is an insufficient appropriation bill, in that it specifies no amount for the information of legislators voting for it, or of the people whose property is disposed of, or of the auditor to enable him to comply with section 98, Rev. Cbdes, but the act itself indicates the necessity for further appropriation. People v. Spruance, 9 Pac. 628; Institute for Education of Mute, etc., v. Henderson, 31 Pac. 714; Ingram v. Colgan, 38 Pac. 315, 366, 39 Pac. 437, 106 Cal. 113, 46 Am. St. Rep, 22, 28 L. R. A. 187; Kingsberry v. Anderson, 51 Pac. 744; 'Shattuck v. Kincaid, 49 Pac. 758; Gooclkuntz v. Acker, 35 Pac., 911; Baggett v. Dunn, 10 Pac. 125; Clayton v. Berry, 27 Ark. 129, State v. Grave, 41 Pac. 1075, 62 Am. St. Rep. 764; Stratton v. Green, 45 Cal'. 149; Martin v. Francis, 13 Kan. 220; State v. Wallichs, 11 N. W. 860; State v. Wallichs, 21 N. W. 397.</p> <p>If the bill is an appropriation bill, it embraces more than one subject, viz.: An appropriation for the construction of the capítol, the governor’s mansion, and payment of interest on the indebtedness authorized, and it violates sections 187, 62 and 80, Const. North Dakota. People v. Board, 52 N. Y. 556; People v. Denahy, 20 Mich. 349; Grand Rapids v. Burlingame, 53 N. W. 620; Murray v. Colgan, 29 Pac. 871; Sullivan v. Gage, 79 Pac. 537; H. B. 168, 39 Pac. 1096.</p> <p>Chapter 166, Laws of 1905, is void as a delegation of legislative power. It commits to the capitol commission to assign the amounts to the three different obj ects, viz: Construction of the capitol, governor’s mansion and1 payment of interest on the indebtedness authorized, a duty belonging to the legislature under the constitution. The bill .should be complete when it leaves the legislature, with items so' distinct as to enable the governor to approve or disapprove each, with nothing left to- the judgment of the appointee or delegate of the law making body. Dowling et al. v. Lancashire Ins. Co., 65 N. W. 738, 31 L. R. A. 112; State v. Burdge, 70 N. W. 347; O’Neil v. American Fire Ins. Co., 166 Pa. 72, 30 Atl. 943, 26 L. R. A. 715; Anderson v. Manchester Fire Ass. Co., 60 N. W. 1095, 63 N. W. 241, 28 L. R. A. 609; Slinger v. Henneman, 28 Wis. 504; In re Village of No. Milwaukee, 67 N. W. 1033, 33 L. R. A. 638; Ex parte Cox, 63 Cal. 21; Cooley Const. Lim. 137; Galesburg v. Hawkinson, 7-5 111. 152; People v. Bennett, 29 Mich. 451; State v. Simons, 21 N. W. 750.</p> <p>Payment of interest upon the certificates provided for in chapter 166, Laws of 1905, does not involve a diversion of funds. Board v. McMillan, 12 N. D. 309, 96 N. W. 310; sections 186-187 Rev. Codes 1899; In re Canal Certificates, 34 Pac. 274 ( 275); Strieb v. Cox, 12 N. E. 481 (485).</p> <p>Such certificates do not create a debt of the state. Subdivision 6 of section 11, chapter 166, Laws 1905; Kelly v. Minneapolis, 65 N. W. 115; Winston -v. Spokane, 41 Pac. 888; Hockaday v. Commissioners, 29 Pac. 290; Baker v. Seattle," 27 Pac. 464; Allen v. Grimes, 37 Pac. 662; State v. McGraw, 43 Pac. 176; State v. Cook, 43 Pac. 928; Johnson v. Harrison, 50 N. W. 923; Attorney General v. Weimar, 26 N. W. 773; Ritchie v. People, 40 N. E. 460; Ala. G. S. Ry. Co. v. Reed, 27 So. 20; State v. Sloan, 74 Am. St. Rep 106; Board Co. Com’rs et al. v. State, 13 Pac. 558.</p> <p>The law contains within itself a complete and effective appropriation, and does not contravene the provisions of the constitution as to manner of appropriation or unity of subject. Ristine v. State, 20 Ind. 328 (329) ; Henderson v. Gx Com’rs. 28 N. E. 129; Carr v. State, 22 Am. St. Rep. 628; Campbell v. Com’rs, 18 N. E. 33; State v. LaGrave, 23 Nev. 25, 62 Am. St. Rep. 764; State ex rel. Brainerd v. Grimes, 34 Pac. 833; Ritchie v. People, 40 N. E. 460; Richman et al. v. Muscatine Co., 4 L. R. A. 452; People v. Dunn. 3 Am. St. Rep. 121; McCauley v. Brooks, 16 Cal. 29; State v. Mc-Graw, supra; State v. Cook, supra.</p> <p>Chapter 166, Laws of 1905, complies with the enabling act, the constitution of the state, and properly provides for carrying out the provisions of the grant. Allen v. Grimes, supra, State v. Mc-Graw, supra; State v. Cook, supra; Kingman et al. v. Met. Sewerage Com’rs, 27 N. E. 778; Territory v. Scott et al., 3 N. D. 357, 20 N. W. 401; Comonwealth v. Kitc'hing, 5 Gray, 486; In re De Vaneene, 31 How. Prae. 343; People v. Hazelwood, 6 N. E. 480; Mills v. Sargent, 36 Cal. 379; Martin v. Tyler, 4 N. D. 278, 60 N. W. 392.</p>

<p>Criminal Law — Change of Venue — Judge Not Limited to Adjoining Counties and Districts in Ordering Change.</p> <p>1. Under the statutes of the state regulating changes of place of trial in criminal cases upon defendant’s application, because of prejudice which precludes a fair and impartial trial in the county where the indictment or information is laid, the presiding judge is not limited, in seleoting a place for trial, to adjoining counties or judicial districts. The single statutory requirement is that he shall send the case “where .the cause complained of does not exist.”</p> <p>Same — Discretion of Trial Judge.</p> <p>2. When a change of place of trial is obtained by a defendant because of local prejudice, the duty of selecting the place for trial rests exclusively upon the presiding judge, in the exercise of sound judicial discretion.</p> <p>Same — Abuse of Discretion.</p> <p>3. When a change has been granted, and another county selected, it will be presumed that the discretion of the presiding judge was exercised properly, and the burden is upon one attacking his order to show, affirmatively a manifest case of abuse; and this court will not, under its superintending power over inferior courts, revise his order, in the absence of such a showing, and in no case will it substitute and enforce its discretion as against the discretion of the presiding judge.</p> <p>Same.</p> <p>4.The defendant, who stands charged with the crime of forgery in the third degree in the district court of Ward county, applied for a change of place of trial and of judges, because of local prejudice and prejudice of the presiding judge, and requested a speedy trial. A change was granted to Cass county, and the judge of that district was designated as the judge to preside at the trial. After the order was made the defendant objected upon two grounds: (1) Because the case was not sent to an adjoining or neighboring county; and (2) because of the added expense of taking- witnesses to Cass county. It is shown that a speedier trial could be had in Cass county than elsewhere, and it is conceded in this court that the court’s action was proper in not selecting an adjoining county, and it is also conceded that a fair and impartial trial is assured in Cass county and before an unprejudiced judge, and it is not claimed or shown that the defendant will be prejudiced in making his defense. It is held. ■upon defendant’s application for a writ of certiorari to review said order, that these facts and those set out in the opinion do not show an abuse of discretion by the presiding judge such as will warrant the exercise of the superintending jurisdiction of this court; and the writ is therefore denied.</p> <p>Engerud, J., dissenting in part.</p>

<p>Appeal from District Court, Pierce county; Cowan, J.</p> <p>John Poull was convicted of maintaining a nuisance, and appeals.</p>

<p>Application 'by John S. Murphy for writ of certiorari to the district court of the Eighth Judicial District, and E. B. Goss, judge.</p>

C. H. Foster was convicted' of larceny, and appeals. By a continuance for more than three days the magistrate lost jurisdiction and the commitment was void, there being no preliminary examination to support it. State v. Barnes, 3 N. D. 131, 54 N. W. 541; State v. Weltner, 7 N. D. 522, 75 N. W. 779. An information should charge the same offense as that of the complaint on preliminary examination.

Action by George W. Hart against P. S. Evanson and others. Judgment for plaintiff, and defendant Evanson appeals. Solvency or insolvency is an ultimate fact to be submitted to a jury, and it was incompetent for a witness to give an opinion upon the subject.

<p>Appeal from District Court, Walsh county; Kneeshaw, J.</p> <p>Action by John Vallely against the fcirst National Bank of Grafton and others. Judgment for defendant, and plaintiff appeals.</p> <p>Where a deed is given as a mortgage, parol agreement as to defeasance is inoperative as to creditors of the grantee. Tomlin-son v. Monmouth Mut. Fire Ins. Co., 47 Me. 232; Foote v. Hartford Ins. Co., 119 Mass. 259; Red River Valley Land & Inv. Co. v. Smith, 7 N. D. 236, 74 N. W. 194.</p> <p>Filing of a .petition in bankruptcy is equivalent to a seizure of the property by execution or .attachment. In re Perkins Plow Co., 112 Fed. 308; In re Garcewich, 115 Fed. 87; Mueller v. Nugent, 46 L. Ed. 405; In re Rodgers, 125 Fed. 169, 180.</p> <p>Whatever estate the bankrupt had or his trustee as representing his creditors acquired, passed under the trustee’s deed. AVood v. Chapin, 13 N. Y. 509; Lacustrine Fertilizer Co. v. L. G. & Fer. Co., 82 N. Y. 476; Cole v. Gourlay, 79 N. Y. 527; East v. Pugh et al., 32 N. W. 309; Hayes v. Nourse, 114 N. Y. 595, 22 N. E. 40; Pierce v. France, 47 Me. 507; Bell v. Twilight, 45 Am. Dec. 367; Pringle v. Dunn, 37 Wis. 449; Craig v. Zimmerman, 56 Am. Rep. 466; Doyle v. Waile, 11 Am. St. Rep. 334; Red River Valley Land & Inv. Co. v. Smith, supra; Gunnison Co. Commissioners v. Rollins & Sons, 137 U. S. 255, 43 L. Ed. 689.</p> <p>The bank cannot claim the rights of bona fide purchasers, as its cashier had actual notice, and the mortgage was given to secure a pre-existing debt. Rev. Codes 1899, section 5130; Porter et al. v. Andrus et al., 10 N. D. 558, 88 N. W. 567; De Lancy v. Stearns et al., 66 N. Y. 157; Howells v. Hettrich, 54 N. E. 677; Commercial Nat. Bank v. Pir-ie, 82 Fed. 799; Schloss et al. v. Feltus, 61 N. W. 797; Lillibridge v. Allen et al., 69 N. W. 1031; Pride v. Whitfield, 51 S. W. 1100; March v. Ramsey, 35 S. E. 433; Morse v. Godfrey, 3 Story, 389.</p> <p>At the time of the transaction in- question, the recording acts protected only bona fide purchasers and incumbrancers in good faith without notice, but mot creditors. Rev. Codes 1899, sections 3594, 4703, 4713; 2 Dembitz on Land Titles, 134; footnote, Stephens v. Keating, 17 S. W. 37; 1894 Minn. Stat. 4180; 24 Am. & Eng. Enc. Law, 125 (2d Ed.) ; Murphy v. Plankinton Bank, 83 N. W. 575; Columbia Bank v. Jacobs, 10 Mich. 349; Wolf v. Theresa Village Mut. Fire. Ins. Co., 91 N. AV. 1014; Bryan v. Traders Ins. Co., 145 Mass. 389, 14 N. E. 454.</p> <p>Under the bankruptcy act of 1867 the assignee took the bankrupt’s property subject to all equities, liens or incumbrances which existed against the property in the bankrupt’s hands, except such' attachments and transfers as .the law avoids. Yeatm.an et al. v. New Orleans Sav. Institution, 95 U. S. 764, 24 L. Ed. 589; Stewart v. Platt, 101 U. S. 731, 25 L. Ed. 816; Donaldson v. Farwell, 93 U. S. 631, 23 L. Ed. 993; Bush on Bankruptcy, 398 and 392.</p> <p>The rule is the same under the present bankrupt act. Collier on Bankruptcy, 408; Loveland on Bankruptcy, 285; 5 Enc. 352; Bush on Bankruptcy, supra.</p> <p>At the time of the adjudication of bankruptcy a judgment becomes a lien upon the interest which the judgment debtor has in land, and nothing more, even though land appears of record to- stand in his name. Dakymple v. Security Loan & Trust Co., 11 N. D. 65, 88'N. W. 1033; Fitzgerald v. Miller, 63 N. W. 221; Bank v. Petaluma Sav. Bank et al., 35 Pac. 170; 17 Am. & Eng. Enc. Law, 778; 1 Black on Judgments, 421; Moore v. Thomas, 36 N. E. 712.</p> <p>A mortgagee whose mortgage debt is- fully paid1, not only has no interest in the land mortgaged', but is liable to a penalty if he does not release it on demand. Sections 3792, 3797 and 4724, Rev. Codes 1899; Kronebusch v. Raumin, 6 Dak. 243; Decker v. Decker, 89 N. W. 795; McMillan v. Richards et al., 9 Cal. 365; 1 Jones on Mortgages, 889.</p>

Action by John- L. Schmidt against Arthur N. Beiseker. Judgment for defendant and plaintiff appeals. Where a contract relating to real estate and required- by the statute of frauds to be in writing is pleaded with- no averment as to whether it is in writing or not, a demurrer on that ground will be overruled, as it -is presumed: to- be in -writing. Lewin v. Stewart, 10 How.

<p>Appeal from District Court, Pierce county; Cowwi, J.</p> <p>Action by Thomas Regan and others as executors of the last will of T. S. Edison, deceased, against A. H. Jones. From a judgment for plaintiff, defendant appeals.</p> <p>The test of a counterclaim is, could defendant maintain an independent action on the demand set forth in it. McKinney v. Sundbaclc, 52 N. W. 322; Heebner v. Shepard, 5 N. D. 56, 63 N. W. 892; National Bank of Commerce v. Feeney, 80 N. W. 186; Morris et al. v. Ewing, 8 N. D. 99, 76 N. W. 1047.</p> <p>Section 5653, subdivision 2, does'not exclude a party from testifying if he does not testify to any statement made by deceased or give facts relative to a transaction between the deceased and the said party. St. John v. Lofland, 5 N. D. 140, 64 N. W. 930.</p> <p>The vendee may treat a breach of warranty in reduction of damages in an action for the purchase price, or bring a cross action. Thoreson v. Minneapolis Harvester Co., 13 N. W. 156.</p> <p>Where it is doubtful whether an answer is a counterclaim or a defense, it cannot be held a counterclaim and admitted for want of a reply unless plainly denominated a counterclaim. 2 Abbott’s Trial Brief, section 100; Bates v. Rosenkrans, 37 N. Y. 409, 412; Equitable Life Ass. G>. v. Cuyler, 75 N. Y. 51T; Ravicz v. Nickells, 9 N. D. 536, 84 N. W. 353 ; Seiberling v. Mortinson, 70 N. W. 835 ; Pomeroy’s Code Remedies, section 748; Brannan v. Paty, 58 Cal. 330; Stowell v. Eldred, 39 Wis. 630.</p> <p>The purpose of section 5653, subdivision 2, is to do away with the opportunity for perjury, where, the other party to tire transaction being dead, it could be committed with impunity. Hutchinson v. Cleary, et al., 3 N. D. 270, 55 N. W. 729; Bunker v. Taylor, 83 N. W. 555; Redding v. 'Godwin, 46 N. W. 563; Madson v. Mad-son et al., 71 N. W. 824; Babcock v. Murray et al., 71 N. W. 913; Robins v. Legg et al., 83 N. W. 379; Ewing v. White, 30 Pac. 984; Jones on Evidence, section 790.</p> <p>The word “transaction” is very broad. Jones on Evidence, section 793; Auchampauch v. Schmidt, 34 N. W. 460; Montague v. Thompson, 18 S. W. 264; 29 Am. & Eng. Enc. Law (1st Ed.) 701.</p>

<p>Parol Evidence to Vary Written Consideration — Statute of Frauds — Action for Breach of Contract.</p> <p>1. While either party to a written contract may show that .the true consideration therefor .is different from that recited in the writing, yet it is not permissible, under the guise of proving the true consideration, to establish as a cause of action an oral agreement within the statute of frauds, or one which violates the rule embodied in section 3888, Rev. Codes 1899, that a written contract supersedes all prior or contemporaneous oral agreements or stipulations concerning its matter.</p> <p>A Deed Is to Determine Grantor’s Undertaking as Well as to Pass Title.</p> <p>2. The function of a deed is not only to transfer to £he grantee the grantor’s rights, but is also a written contract evidencing the obligations, if any, assumed by the grantor with respect to the nature and condition of the estate or .title which the deed purports to convey.</p> <p>Quitclaim Deed — Effect — Warranties.</p> <p>3. A deed delivered and accepted merely transferring the grantor’s right, title, and interest in the land described, and containing no express or implied covenants as to title or incumbrances, is, in the absence of actionable deceit, conclusively presumed, in an action at law, to show that the grantor assumed no obligations as to the validity or extent of his title or interest, or as to incumbrances.</p> <p>Evidence — Grantee in Quitclaim Deed Cannot Recover on Oral Warranties.</p> <p>4. The .grantee who has accepted a quitclaim deed cannot recover in an action at law, on the grantor’s alleged oral promise, made before or at the time the deed was delivered and accepted, to pay certain taxes which were then an incumbrance on the land conveyed.</p>

Action by the St. Anthony & Dakota Elevator 'Company against the County of Cass and others'. Judgment for defendants, and plaintiff appeals. ■A sale from any motive is lawful except to defraud creditors, and such motive is not the subject of inquiry. Weimer v. Louisville Water Co., 130 Fed. 244; Robertson v. Carson, 19 Wall. 106 ; Draper v. Hatfield, 124 Mass. 53; Thayer v. Boston, 26 Am. Rep. 650.

Action by George Walker against C. J. Rein. Judgment for defendant, and plaintiff appeals. A contract for insurance consummated in Minnesota is a Minnesota contract, although the assured and risk are in North Dakota. Seamans v. Knapp, Scott & Co., 89 Wis. 171, 61 N. W. 757; Whiston v. Stodder, 13 Am. Dec. 281; Hyde v. Goodnow, 3 N. Y. 266; Scudder v. Union Nat. Bank, 91 U. S. 406, 23 L. Ed. 245. The place of mailing the policy is the place of the contract.

Action by Aaron J. Bessie against the Northern Pacific Railway Company. Judgment for plaintiff, defendant appeals. A firm of attorneys is entitled to no lien in an action of tort until the claim is merged in a judgment. Nanna v. Coal Co., 31 N. E. 846; Abbott v. Abbott, 26 N. W. 361; Randall v. Van Wagenen, 22 N. E. 361; Sherry v. Nav. Co., 72 Fed. 565; Simmons v. Almy, 103 Mass. 33. A claim for unliquidated damages cannot be assigned before judgment.

<p>Application of M. Lipschitz for writ of habeas corpus.</p>