Volume 15 — North Dakota Reports

Action by James N. Brown against Mary S. Hodgson. Judgment for defendant, and plaintiff appeals. Question upon the correctness of the court’s conclusion from the findings may be reviewed without a statement of the case. Schneller v. Plankinton et at., 12 N. D. 561, 98 N. W. 77.

Action by Robert B. Blakemore, as executor, and others, against John Cooper and another. Judgment for plaintiff, and defendants appeal. A tax title is purely technical as distinguished from a meritorious one, and depends for its validity upon a strict coinpliance with all the provisions of the statute.

<p>Appeal from District Court, Richland county: Lauder, ].</p> <p>Action by Annie Kinney against the Brotherhood of American Yeomen. From a judgment for plaintiff, defendant appeals.</p>

Action by Knud Orvik and Ole G. Olson against John Casselman. Judgment for plaintiffs, and defendant appeals. The law in force at the time the mortgage was executed must be followed in foreclosing it, although there has been a change in the law regarding procedure.

<p>Justice of the Peace — Limitation of Period to Issue Execution.</p> <p>1. Section 6723, Rev. Codes 1899, which authorizes a justice of the peace to issue execution within five years after the entry of the j udgment, and not afterwards, is a limitation upon the remedy by justice court execution, and not upon the life of the judgment. The limitation upon the latter is fixed by section 5200, and is ten years.</p> <p>Same — Filing Transcript of Judgment — Effect on Power to Issue Execution.</p> <p>2. Under sections 6717, 5498, Rev. Codes 1899, the filing of a transcript of a justice court judgment in district court terminates the power of the justice to issue execution,and authorizes the district court .thereafter to issue its execution as upon judgments originally rendered and entered therein.</p> <p>Same — Filing Transcript in District Court — Effect.</p> <p>3. When a justice court judgment has been regularly transferred to the district court by the filing of a transcript, it has, for the purposes of lien and execution, the same effect as a judgment originally entered therein.</p> <p>Same — Limitation of Time for Issuance of Execution.</p> <p>4. The period for issuing district court execution is limited by section 5500, Rev. Codes 1899, to ten years from the entry of judgment. As applied to a justice court judgment, this means ten years form its entry by the justice, and not ten years from the filing of the transcript in district court.</p>

<p>. Contract — Construction — Intent of Parties Thereto.</p> <p>1. Courts of equity will not be controlled by the name given to a transaction or document by the parties, but will scrutinize the transaction or document and the contract of the parties in reference thereto, to ascertain what the parties intended it to be.</p> <p>Same — Mortgages — Collateral Security.</p> <p>2. The fact that a deed is referred to as collateral security will not conclusively, stamp the transaction as a security transaction.</p> <p>Contract for Sale of Land — Abandonment.</p> <p>3. A written contract for the sale of land may be waived or abandoned by the vendee by parol.</p> <p>Vendor and Purchaser — Abandonment of Contract.</p> <p>4. Evidence considered and held to show an abandonment of a contract by express terms, followed by more than ten years of silence concerning the same.</p> <p>Appeal — Costs — Unnecessary Record.</p> <p>5. Where a party causes unnecessary parts of the record to be printed, the Supreme Court will, on motion, make a special order in regard to the payment of the costs of such printing.</p>

<p>Appeal from District Court, Logan county; Burke, J.</p> <p>Action by Hattie M. Viets against Lewis Silver and Max Brodky. Judgment for defendants, and plaintiff appeals.</p>

Action by the state, for the use of the Hart-Parr Co., against the Robb-Lawrence Company and the Northern Trust Company. A complaint failing to allege compliance with the statutes of this state as to foreign corporations, is not demurrable. Acme Merc. Agency v. Rochford, 72 N. W. 466; American, etc., v. Smith, 73 Mo. 368; Knapp v. Nat., etc., 30 Fed. 607; Cassady v. American, etc,. 72 Ind. 95; Sprague v. Cutler & Savidge Lbr.

<p>Justice Court — Change of Venue — “May” Means “Must.”</p> <p>1. The word “may” in section 6652, Bev. Codes 1899, relating to change of venue in justice court, should be construed to mean “must.”</p> <p>Same — Determination of an Issue of Law Is a “Trial.”</p> <p>2. The hearing and determination of .the issue of law raised by a demurrer to the complaint in justice court is a “trial,” within the meaning of section 6652, Rev. Codes 1899.</p> <p>Same — Change of Venue — Time of Motion.</p> <p>3. It is too late to demand a change of venue in justice court after a demurrer to the complaint has been argued and overruled.</p>

<p>Appeal from District Court, Ransom county; Allen, J.</p> <p>Action by George Jacobson against Ransom county. Judgment for plaintiff, and defendant appeals.</p>

Action by the Marshall-McCartney Company against Thomas PIalloran. Judgment for plaintiff, and defendant appeals. Deceit consists of telling an untruth knowingly with intent to deceive another to his damage. Watson v. Poulson, 15 Jurist, 1111, 7 Eng.

, J. Action by Mary Zimmerman against Caroline McCurdy. Judgment for defendant, and plaintiff appeals. If the court has no jurisdiction to try the title to land, it can by injunction preserve the statu quo. Cosmos Exploration Co. v. Gray Eagle Oil. Co., 112 Fed. 4, 61 L. R. A. 230. A defendant is not entitled to an injunction. Forman v. Healy et al., 11 N. D. 563, 93 N. W. 866. Injunction will not be granted to take property from the possession of one and give it to another.

<p>Appeal — Brief — Error.</p> <p>Unless appellant’s brief contains an assignment of errors in compliance with rule 14, Supreme Court rules (74 N. W. x.), or the record discloses a cause for relaxation of the rule, the judgment will be affirmed.</p>

<p>Claim and Delivery — Liability oil Undertaking — Prosecution of the Action.</p> <p>1. The condition in plaintiff’s undertaking on commencing an action in claim and delivery “for the prosecution of the action,” etc., as prescribed by section 5334, Rev. Codes 1899, is broken if plaintiff fails to prosecute the action to a final termination on the merits, whether his failure to do so is due to his own fault or to the fault of the justice of the peace before whom the action is pending in entering up. a void j udgment.</p> <p>Same — Separate Conditions of Undertaking.</p> <p>2. The condition of the undertaking for the prosecution of the action may become effective independently of the other, conditions of the bond for the return of the property and for the payment of damages.</p> <p>Same — Evidence — Damages.</p> <p>3.On a- trial of an action for damages on account of the breach of the condition of the undertaking for the prosecution of the action, the value of the property taken on the writ of replevin and not returned is a material issue, and it is error to exclude evidence offered to prove its value.</p> <p>Same — Breach of Undertaking — Void Judgment in Replevin.</p> <p>4. The defendant brought an action in justice court to recover the possession of property on which he claimed a chattel mortgage lien, and recovered judgment. Plaintiff appealed to the district court on questions of law only, where judgment was rendered declaring the judgment void on jurisdictional grounds. The defendant did nothing thereafter towards maintaining his right to the property by action. Held, that the conditions of the undertaking for the prosecution of the action were broken.</p>

<p>Appeal from District Court, Ransom county; Allen, J.</p> <p>Action by Walter A. Satterlee against the Modern Brotherhood of America. Judgment for plaintiff, and defendant appeals.</p> <p>The provisions of the certificate and application meet all the requirements of our statute on the subject of warranties. Sections 4505, 4507, 4511, 4512, Rev. Codes 1899.</p> <p>The burden of proving express warranties, whether affirmative or negative, in a policy of insurance rests upon the assured. Dreier v. Cont. Life Co., 24 Fed. 670; McLoon v. Ins. Co., 100 Mass. 472, 97 Am. Dec. 116; Wood on Ins. 867; Price v. Phoenix Mut. Life Ins. Co., 17 Minn. 497, 10 Am. Rep. 166; Wilson v. Plampden Ins. Co., 4 R. I. 159; Herrorn v. Peoria M. Fire Ins. Co., 28 111. 238; Leete v. The Gresham Life Ins. Co., 7 Eng. Law and Eq. 578.</p> <p>An express warranty is a statement of fact or promise of performance, relating to the subject of insurance or to the risk, inserted in the policy itself or by reference expressly made a part of it, which must be literally true or strictly complied with, or else the contract is avoided. Rev. Codes 1899, section 5713, par. 28; Richards on Insurance (2d Ed.) p. 62, par. 52; Johnson v. Dakota Fire & Marine Ins. Co., 1 N. D. 167, 45 N. W. 799.</p> <p>Plaintiff was not entitled to a directed verdict, since his motion therefor did not point out specific defects in plaintiff’s proof, and overruling it is not error. Kolka v. Jones, 6 N. D. 461, 71 N. W, 558; Hayne on New Trial and Appeal, section 116 ; Baker v. Joseph, 16 Cal. 173; Tanderup v. Hansen, 66 N. W. 1073.</p> <p>The direction of a verdict for the plaintiff cannot be made the foundation of error, as it was not excepted to. DeLendrecie v. Peck, 1 N. D. 422, 48 N. W. 342; Dahl v. Stakke et al., 96 N. W, 353.</p> <p>The appeal being from the judgment only, the only matter before the court is error of law occurring- at the trial and excepted to. Weis v. Schoerner et al., 9 N. W. 794; Morris v. Niles, 30 N. W. 353; Barnard & Leas Mfg Co. v. Galloway et al., 58 N. W. 565; Latimer v. Morrain, 43 Wis. 107; Hawkins v. Hubbard, 51 N. W. 774.</p> <p>Where false and untrue answers in an insurance application are alleged, the -burden to prove such answers false is upon the defendant. Piedmont & A. Life Ins. Co. v. Ewing, 92 U. S. 377, 23 L. Ed. 610; Penn. Mut. Life Ins. Co. v. Mechanics Sav. Bank and Trust Co., 72 Fed. 413, 19 C. C. A. 286, 38 L. R. A. 33; Jones v. Brooklyn Life Ins. Co., 61 N. Y. 79; O’Connell v. Knights of Damon, 102 Ga. 143, 66 Am. St. Rep. 159; Chambers v. N. W. Mut. Life Ins. Co., 64 Minn. 495, 67 N. W. 367; Price v. Phoenix Mut. Life Ins. Co., supra.</p> <p>The effect of statements, representations and warranties in an application for insurance is controlled by statute, to the extent that they are not material or do not defeat or avoid the policy unless made with intent to deceive, or unless the matter misrepresented increased the risk of loss. Rev. Codes 1899, section 4485; White v. Prov. Sav. Life Assn. Society of N. Y., 27 L. R. A. 398; Levie v. Metropolitan Life Ins. Co., 39 N. E. 792; Price v. Standard Life & Acc. Ins. Co., 95 N. W. 1118.</p> <p>These are matters of defense to be shown by the defendant. Chambers v. N. W. Mut. Life Ins. Co., supra; Hale v. Life Indemnity & Inv. Co., 65 Minn. 548, 68 N. W. 182.</p> <p>Appellate court will not adopt a theory different from that of the trial court. Noyes v. Bunt, 9 S. D. 603; Barrett v. Fisch, 76 Iowa, 553, 41 N. W. 310; Louisville, N. A. & C. Ry Co. v. Wood, 113 Ind. 544, 14 N. E. 572, 16 N. E. 197.</p> <p>Where a contract of insurance is open to construction, assured is entitled to the construction most in her favor. 17 Minn. 497; Supreme Lodge Knights v. Edwards, 41 N. E. 850; N. W. Mut. Life Ins. Co. v. Woods, 39 Pac. 189.</p> <p>Courts do not favor a construction imposing a warranty. Phoenix Mut. Life Ins. Co. v. Raddin, 120 U. S. 183, 30 L .Ed. 644; Mouler v. Amer. Life Ins. Co., Ill U. S. 341, 28 L. Ed. 477; First Nat. Bank v. Hartford Fire Ins. Co., 95 U. S. 673, 24 L. Ed. 563; Grace v. American Cont’l Ins. Co., 109 U. S. 278, 27 L. Ed. 932; Fitch v. Amer. Popular Life Ins. Co., 59 N. Y. 557, 12 Cush. 416.</p> <p>Applicant’s statement of her not being pregnant, if there was nothing to indicate it to her mind, was but an expression of an opinion. Conover v. Phoenix Mut. Life Ins. Co., Fed. Cas. No. 3143; Goucher v. N. W. Traveling Men’s Assn., 20 Fed. 598; Conn. Mut. Life Ins. Co. v .Union Trust, 112 U. S. 251, 28 L. Ed. 708; Aetna Ins. Co. v. Simpson, 69 N. W. 125.</p> <p>Pier answers were only “to the best of her knowledge and belief.” Clapp v. Mass. Benefit Assn., 146 Mass. 519, 16 N. E. 433; Hann v. Nat. Union, 97 Mich. 413, 56 N. W. 834; Campbell v. N. Eng. Mut. Life Assn., 98 Mass. 381; Fidelity Mut. Life Assn. v. Jeffords, 53 L. R. A. 193._</p>

J. Kneeshazv, J. Action by Celina Patnode against Joseph Deschenes and W. C. Leistikow. Judgment for defendants, and plaintiff appeals. Both spouses must sign and acknowledge instrument affecting homestead. Rev. Codes 1899, section 3608. Statute must be literally complied with.

<p>Appeal from District Court, Cavalier county; Kneeshaw, J.</p> <p>Action by George W. Buckingham against William Flummerfelt and others. Judgment for plaintiff, and defendant W. J. Edwards appeals.</p>

Allen, J. Action by the Acme Harvester Company against Roland Magill. Judgment for plaintiff, and defendant appeals. There is no life in this judgment, and it could not be executed if reinstated. Sections 6723, 5489, Rev. Codes 1899; Phelps v. McCollam, 10 N. D. 536, 88 N. W. 292. Application to vacate a satisfaction must be made within one year after the judgment is satisfied. Section 5298, Rev. Codes 1899. The remedy is by action, not motion. 18 Enc.

<p>Homestead — Exemption — Definition of Same.</p> <p>1. Section 3605, Rev. Codes 1899, is not to be construed as a definition of the term “homestead,” but as a definition and limitation of the homestead exemption.</p> <p>Same — Rights of Widow and Children.</p> <p>2. The surviving widow or minor children are entitled to a homestead estate to the extent prescribed by the statute in the property owned and occupied by the decedent at the time of his death as a family home, although the homestead exceeds in value the statutory limits of the homestead exemption.</p> <p>Same — Surviving Husband or Wife and Children May Hold Title, Although Value Exceeds Statutory Dimit.</p> <p>3. Where the homestead is indivisible without material injury the surviving husband or wife or minor children, as the case may be, are entitled as against the heirs or devisees, to hold the entire premises ■as a homestead estate, even though the property exceeds $5,000 in value.</p> <p>Same — Excess Applied to Debts After Other Assets Are Exhausted.</p> <p>4. To the extent that such indivisible homestead exceeds $5,000 in value it may be subjected to the payment of the -debts of the deceased, but not until all other available assets of the estate are exhausted.</p> <p>Same — Value — Deduction of Liens.</p> <p>5. In determining the value of the homestead for the purpose of ascertaining and selecting therefrom the homestead exemption or estate, the amount -of existing mortgages or liens thereon cannot be deducted from the value -of the property.</p> <p>Same — Decree Assigning Homestead Must Show the Excess Value.</p> <p>6. When a-homestead estate is decreed by the county court in a homestead which exceeds $5,000 in value, and is indivisible, the decree should show the amount of the excess in value and the fact that the property is indivisible.</p>

<p>Appeal — Court Will Not Review the Excusing of a Juror Unless the Examination Is Preserved.</p> <p>1. Under the rule that a party urging error must present a record of the facts upon which the error .is predicated, this court will not review the trial court’s action in excusing a juror when the record contains merely the exception, and wholly omits the .examination and challenge.</p> <p>Same — Error Without Prejudice.</p> <p>2. Error without prejudice in the order of eliciting evidence is not ground for reversal.</p> <p>Same — Incompetent Evidence to Prove Admitted Facts.</p> <p>3. The admission of incompetent evidence which tends merely to prove facts that are .expressly admitted in the pleadings As not prejudicial, and is not, therefore, reversible error.</p>

Action by the McCormick Plarvester Machine Company against the Citizens’ Bank of Drayton. Judgment for defendant, and plaintiff appeals. A debtor cannot, as against other .creditors, transfer his property . to one creditor, by an instrument purporting to convey an absolute title, but in fact as security; such conveyance, irrespective of intent, is a fraud on creditors. First Nat.

<p>Quieting Title — Failure of Court to Determine All Claims Asserted Is Error.</p> <p>1. It is the duty of the trial court in actions brought to determine adverse claims to real property, under chapter 5, p. 9, Laws 1901, to adj udicate and determine all claims set forth in the defendant’s answer, and the failure to do so is error.</p> <p>Equity — Action Tried Without a Jury — Mode of Appeal.</p> <p>2. An equity action in which a jury is called to find part or all of the facts is not “an action tried * * * without a jury,” within the (meaning of section 5630, Rev. Codes 1899, and is therefore not governed by that section, either as to the manner of trial in the district court or the review in this court upon appeal. Following Peckham v. Van Bergen, 80 N. W. 759, 8 N. D. 595.</p>

<p>Appeal from District Court, Cass county; Pollock, J.</p> <p>Action by the Continental Hose Company No. 1 against Charles H. Mitchell, city treasurer. Judgment for plaintiff, and defendant appeals.</p>

Action by Amund Olson against the county of Sargent and others. From an order setting aside a default judgment and granting leave to answer, plaintiff appeals.

<p>Appeal — Motion to Dismiss Record.</p> <p>On an appeal to this court from a judgment dismissing an appeal from a judgment of a justice of the peace, this court cannot review the judgment dismissing the appeal unless the motion to dismiss, or the grounds on which it is based, appear on the face of the record.</p>

<p>Appeal from District Court, Stutsman county; Burke, J.</p> <p>Action by J. L. Rapp against Fred Flansen. From a judgment on appeal from a justice plaintiff appeals.</p>

<p>Appeal from District Court, Morton county; Winchester, J.</p> <p>Action by L. D. Gilbreath against Margaret Teufel and others. Judgment for plaintiff, and defendants appeal.</p>

Action by Ellen Pyke against the City of Jamestown. From a judgment for plaintiff defendant appeals. The amendment of a pleading is by rewriting it, leaving out such allegations and inserting such others as the pleader may desire. Satterlund v. Beál, 1 N. D. 122, 95 N. W. 518. Where one knows of a defect in a sidewalk, it is contributory negligence not to remember and avoid the danger, unless satisfactory excuse is given for forgetting it.

<p>Affidavit for Publication — When Findings of Fact Thereon Sustained.</p> <p>1. The finding’s of the district court that it is satisfied that the facts stated in an affidavit, on which an order of publication of a summons is requested, are true, will not be disturbed, where it fairly and reasonably appears that the facts stated in the affidavit show due diligence.</p> <p>Same — Findings Based Upon Conclusions.</p> <p>2. It is only where such recitals in an order for the publication of the summons are merely conclusions that a finding of due diligence will not be upheld.</p> <p>Same — Residence.</p> <p>3. A finding that the residence of a party is in a specified place is a finding of a fact and not a conclusion.</p> <p>Affidavit of Publication — Jurisdiction.</p> <p>4. The facts stated in an affidavit for the publication of the summons considered, and held, sufficient to sustain an order of publication; and that the publication of the summons, pursuant to such order, conferred jurisdiction on the court to enter judgment of foreclosure of a real estate mortgage against a nonresident defendant.</p> <p>Same — Failure to File Affidavit and Order Until After Complaint Is Filed.</p> <p>5. The failure to file the affidavit and order for publication, until one day after the filing of the summons and complaint, does not invalidate a publication of a summons, as the statute does not prescribe that the affidavit or order shall be filed at the time the complaint is filed.</p> <p>Specific Performance — Tender of Deed and Abstract of Title — Interest.</p> <p>6. In an action for specific performance, the allowance of interest on the purchase price due on a contract for the sale of real estate in favor of the vendor was proper,, where the vendee did not pay the same when a valid deed and abstract was tendered pursuant to the contract, although the contract did not provide for interest, as the vendee had taken possession.</p> <p>Same — Equity Will Adjust Rights of Parties to Contract.</p> <p>7. Courts of equity will adjust the rights of parties to such contracts in such aotions, so as to give .to each what he would have received under the contract, if there had been no default by the vendee.</p>

<p>Appeal from District Court, Dickey county; Kneeshazv, J. Action by Ezra Miller against W. B. Shelburn and Josephine Shelburn. Judgment for defendant and plaintiff appeals.</p> <p>A contract to convey lands affords an equitable title only upon the purchaser performing all the conditions that entitle him to a deed. Warvelle on Vendors (2d Ed.) 176 ; Bispham’s Equity, 365 ; Phinizy v. Gurnsey et al., 50 L. R. A. 680; Chappell v. McKnight, 108 Ill. 570.</p> <p>Where the contract to convey is void — embracing homestead and lacking wife’s signature and acknowledgment- — -vendor’s only recovery is to claim his money paid on the purchase. Rev. Codes 3608, 5032; 15 Am. & Eng. Enc. Law (2d Ed.) 681 and 683; Solt v. Anderson, 89 N. W. 306, 93 N. W. 204, 99 N. W. 678; Scott v. Bush, 26 Mich. 418; Larson v. Butts, 35 N. W. 190; Horback v. Tyrrell et al., 67 N. W. 485; Interstate Sav. & Loan Assn, v. Strine, 78 N. W. 377; Gleason v. Spray, 81 Cal. 217; 15 Am. St. Rep. 47; Donner v. Redenbaugh et al., 16 N. W. 127; Cowgell v. Warrington, 24 N. W. 267; Hall v. Loomis, 30 N. W. 374; Weitzner v. Thingstad, 56 N. W. 817; DeKalb v. Kingston, 73 N. W. 350.</p> <p>Where the vendor defaults in making title, the vendee can recover the purchase money paid. Warvelle on Vendors (2d Ed.) 836 and 919; Kicks v. State Bank, 98 N. W. 408, 12 N. D. 576; Moore v. Williams, 115 N. Y. 586; 12 Am. St. Rep. 844; Judson v. Wass, 11 Johns. 525; 6 Am. Dec. 392; Wright v. Dickinson et al., 35 N. W. 165; Scott v. Bush, supra; Cowgell v. Warrington, supra; Donner v. Redenbaugh, supra; Primm v. Wise & Stern, 102 N. W. 427; Gregory v. Christian, 44 N. W. 202; Proctor v. Stevens Land Co., 102 N. W. 395; Payne v. Hackney, 84 Minn. 195, 87 N. W. 608; Goetz v. Walters, 25 N. W. 404; Bastón v. Clifford, 68 Ill. 70; Demesney v. Gravelin, 56 Ill. 96; Smith v. Lamb, 26 Ill. 396.</p> <p>The allegation of homestead is insufficient. The pleading must set out the facts to establish the right. Meyer v. Pfeifer, 50 111. 485; Over v. Shannon, 75 Ind. 352; Helfenstein v. Cave, 6 Iowa, 374; Union National Bank v. Harrison, 21 N. W. 446.</p> <p>Respondents were in possession when the contract was made and appellant is presumed to know of their homestead rights, and having paid money under a mistake of law, he cannot recover it. Keener Quasi Contracts, 85; 2 Pom. Eq. Jur. 851; Billie v. Lumley, 2 East. 469; Clark v. Dutcher, 9 Cow. 679.</p> <p>An action for damages will not lie until the contract is rescinded. Brumagim et al. v. Tillinghast, 18 Cal. 265; Harralson v. Barret et al., 34 Pac. 342; Erkens v. Nicolin, 40 N. W. 567; Valley Ry. Co. v. Lake Erie Iron Co., 18 N. E. 486; Mutual Sav. Inst v. Euslin, 46 Mo. 200; Wessel v. D. S. B. Johnston Co., 3 N. D. 160, 54 N W. 922.</p> <p>The equitable estate in the land conveyed by the contract may be disposed of by the vendee and it may descend to his heirs. Pom. Eq. Jur., section 105; Clapp v. Tower et al., 11 N.-D. 556, 93 N. W. 862.</p> <p>There is no allegation of the restoration or offer to restore the equitable estate passing under the contract, and without its surrender there can be no rescission of the contract. Telford v. Frost, 44 N. W. 835; Kneeland v. Schmidt, 47 N. W. 438; O’Donnel v. Brand, 55 N. W. 154.</p>

<p>Void Marriage — Statutory Action for Annulment.</p> <p>1. An action to annul a marriage, which is void because the defendant had contracted a prior marriage which was still in force, is not an an action to annul a marriage for fraud within the meaning of the statutes relating to that subject, even though it is alleged and found that the plaintiff was the innocent victim of defendant’s fraudulent representation that -her former husband had died.</p> <p>Same — Custody of Children.</p> <p>2. Section 2734, Rev. Codes 1899, relating to the custody of the children of an anulled marriage, applies only in actions for the annulment of a voidable marriage, in which the fraud or force are essential facts to be proved in order to establish the cause of action.</p> <p>Same — Rights and Obligation of Parents.</p> <p>3. By virtue of section 2733, Rev. Codes 1899, the children resulting from a marriage annulled for any cause are legitimate, and both parents have the same rights and are under the same obligations with respect to such children as if the marriage were valid.</p> <p>Same — Evidence.</p> <p>4. Evidence examined, and held, that the mother has a better right to the custody of the child in question than the father.</p>

<p>Appeal from District Court, Cass county; Pollock, J.</p> <p>Action by Charles O. Smith and Walter W. Smith, doing business as the North Dakota Harness Company, against the Great Northern Railway Company. Judgment for defendant, and plaintiff appeals.</p>

<p>New Trial — Statement of Case — Extending Time Discretionary — Abuse of Discretion.</p> <p>1. In granting or refusing extensions of time within which to settle statements of the case, under section 5477, Rev. Codes 1899, the trial court is invested, with wide discretionary power, and its action will not be -disturbed, except where there has been a manifest abuse thereof.</p> <p>Appeal —- Burden of Showing Error.</p> <p>2. The burden is upon the party objecting to such extension to show that it was unauthorized.</p> <p>Justice of the Peace — Time of Entering Judgment.</p> <p>3: The mere fact that a justice of the peace did not enter judgment on the same day on which a verdict was returned into court is too indefinite a showing to sustain an objection to the offer of the judgment in evidence.</p> <p>Same.</p> <p>4. Section 6707, Rev. Codes 1899, providing that justices of the peace must enter judgment on receipt of verdict at once, construed to mean within a reasonable time in view of the circumstances of each case.</p>

<p>Motion to tax costs.</p>

<p>Appeal from District Court, Bottineau county; Kneeshaw, J.</p> <p>Action by the J. I. Case Threshing Machine Company against John Balke and Bertha Balke. Judgment for plaintiff and defendants appeal.</p>

<p>Appeal from District Court, Grand Forks county; Fisk, J.</p> <p>Action by M. A. Cosgriff and others against the Tri-State Telephone and Telegraph Company. Judgment for defendant, and plaintiffs appeal.</p> <p>A telephone line in a street is an additional burden on the fee of the abutting owner. Donovan v. Allert, 11 N. D. 289, 91 N. W. 441, 58 L. R. A. 715, 95 Am. St. Rep. 720.</p> <p>The rights of an urban are more restricted than those of a suburban owner. Penn. R. R. Co. v. Montgomery County Pass. R. Co., 27 L. R. A. 766; Palmer v. Larchmont Electric Co., 158 N. Y. 231, 52 N. E. 1092; 2 Dillon Mun. Corp. 688; Van Brunt et al. v. Town of Flatbush et al., 27 N. E. 914; McDevittt v. Company, 28 Atl. 948.</p> <p>Telegraph and telephone lines are an additional serviture upon county highways. Elliott, Roads and Streets (2d Ed.) section 706; Board of Trade Telegraph Co. v. Barnett, 107 111.- 453; Western Union Tel. Co. v. Williams, 8 L. R. A. 429; Eels v. Am. Telephone and Telegraph Co., 143 N. Y. 133, 38 N. E. 202; Postal Telegraph Cable Co. v. Eaton, 170 111. 513; Dailey v. State, 24 L. R. A. 724; Cook on Corp. (5th Ed.) section 933.</p> <p>Sections 5263 and 5268, U. S. Rev. Statutes 1866, conferring on telegraph companies the right to construct and operate their lines over post routes, have no application to telephone lines. City of Richmond v.' Company, 19 Sup. Ct. Rep. 778.</p> <p>The federal statutes give no foreign corporation the right to enter upon private property without the owner’s consent, but provides that where the owner’s consent has been obtained no legislation shall prevent the occupation of post roads by telegraph companies. Pensacola Tel. Co. v. W. U. Tel. Co., 96 U. S. 1, 24 L. Ed. 708; St. Louis v. Telephone Co., 148 U. S. 92, 13 L. Ed. 485; W. U. Tel. Co. v. Commonwealth of Mass., 125 U. S. 530, 8 Sup. Ct. Rep. 961; Kester v. W. U. Tel. Co., 108 Fed. 926; Phillips v. Postal Tel. Cable Co., 41 S. E. 1022; W. U. Tel. Co. v. Ry. Co., 20 Sup. Ct. Rep. 867; Cook on Corp. (5th Ed.) sections 933, 934, 935; Am. Tel. & Tel. Co. v. Smith, 18 Atl. 910; W. U. Tel. Co. v. Ry., 120 Fed. 362; Postal Tel. Cable Co. v. Southern Ry. Co., 89 Fed. 190.</p> <p>Congress has the right to dispose of public lands as it deems will best serve public interests. Iowa Homestead Co. v. DesMoines Navigation & R. R. Co. et al., 17 Wal. 153, 21 L. Ed, 622.</p> <p>The interest of the United States in public lands' is that of owner and sovereign. Iowa Homestead Co. v. DesMoines Navigation & R .R. Co., supra; People v. Shearer, 30 Cal. 645; Lux et al. v. Plaggin et al., 69 Cal. 255, 10 Pac. 674 at 719; Woodruff v. Mining Co., 9 Saw. 441, 18 Fed. 753.</p> <p>Section 2477, Rev. Statutes U. S., granting right of way for roads over public lands is a'present grant. Walcott Twp. v. Skauge, 6 N. D. 382, 71 N. W. 544; Wells v. Pennington Co., 2 S. D. 1, 48 N. W. 305; Tholl et al. v. Koles, 65 Kan. 802, 70 Pac. 881; St. J. & D. City R. R. Co. v. Baldwin, 103 U. S. 426, 26 L. Ed. 578; M. K. & T. Ry. Co. v. K. P. Ry. Co., 97 U. S. 491, 24 L. Ed. 1095; Leavenworth L. & G. R. R. Co. v. U. S., 92 U. S. 733, 23 L. Ed. 634.</p> <p>All public land entries are subject to the right of way for highway purposes. Wells v. Pennington Co., supra; Keen v. Board of Supervisors, 8 S. D. 588, 67 N. W. 623; Walcott Twp. v. Skauge, supra; Riverside Twp. v. Newton, 11 S. D. 120, 75 N. W. 899.</p> <p>The right of way being so reserved, congress had the right to establish and declare post roads over it. Searight v. Stokes, 3 Plow. 151, 11 L. Ed. 537; Luxton v. North River Bridge Co., 153 U. S. 525, 38 L. Ed. 88; Cal. v. C. Pac. R. R. Co., 127 U. S. 1, 32 L. Ed. 150, 8 Sup. Ct. Rep. 1073; Kohl et al. v. U. S., 91 U. S. 367, 23 L. Ed. 449.</p> <p>The grant of a right of way for highway by a private owner, carries with it the right to use same for telephone purposes and such purposes impose no additional servitude upon the fee. Keasbey on Electric Wires, 102-3; Pierce v. Drew, 136 Mass. 75, 49 Am. Rep. 7; McCormack v. District of Columbia, 54 Am. Rep. 284; Ass’n v. Bell Co., 57 Am. Rep. 398; Lockhart v. Co., 21 Atl. 26; Hershfield v. Rocky Mountain Bell Tel. Co., 29 Pac. 883; People v. Eaton, 100 Mich. 208, 59 N. W. 145, 24 L. R. A. 721; McGee v. Overshiner, 150 Ind. 127, 49 N. E. 951, 40 L. R. A. 370, 65 A. S. R. 358; Coburn v. New Tel. Co., 156 Ind. 90, 59 N. E. 324; Palmer v. Larchmont Electric Co., 158 N. Y. 231, 52 N. E. 1092, 43 L. R. A. 672; McCann v. Johnson Co. Tel. Co., 69 Kan. 210, 76 Pac. 870.</p> <p>The telephone is the telegraph. Wis. Tel. Co. v. City of Oshkosh, 21 N. W. 828; Roberts v. Wis. Tel. Co., 46 N. W. 800; Iowa U. Tel. Co. v. Board of Equalization, 25 N. W. 155, Franklin v. N. W. Tel. Co., 28 N. W. 461; Bell Tel. Co., v. Com., 3 Atl. 825; P. T. & T. Co. v. Road, 49 Atl. 284; C. & P. T. Co. v. B. and O. Co., 66 Md. 399, 7 Atl. 809; St. L. v. B. T. Co., 97 Mo. 623, 10 S. W. 197, 9 A. S. R. 370; State v. C. N. J. Tel. Co., 53 N. J. L. 341, 21 Atl. 460, 11 L. R. A. 664; State v. Mayor, 11 N. J. L. 168, 48 Atl. 1022; Hudson River Tel. Co. v. W. T. R. Co., 135 N. Y. 393, 32 N. E. 148, 17 L. R. A. 674, 31 A. S. R. 838; S. A. & A. P. Ry. Co. v. S. W. Tel. and Tel. Co., 93 Tex. 313, 56 S. W. 201, 49 L. R. A. 459, 77 A. S. R. 884; Davis v. P. T. Co., 127 Cal. 312, 59 Pac. 698.</p> <p>Telephone poles, when erected in a public highway, do not create an additional servitude. Taggert v. Newport Street Ry. Co., 19 Atl. 326; Rafferty v. Central Traction Co., 23 Atl. 884; Williams v. Electric Street Ry. Co., 41 Fed. 556; Palmer v. Larchmont Electric Co., 158 N. Y. 231, 52 N. E. 1092.</p> <p>There is no real distinction between city streets and rural highways. Abbott v. City of Duluth, 104 Fed. 833; N. W. Tel. Ex. Co. v. Minneapolis, 81 Minn. 140, 83 N. W. 527, 86 N. W. 69; Chamberlain v. Iowa Tel. Co., 93 N. W. 596; Cater v. N. W. Tel. Ex. Co., 60 Minn. 539, 63 N. W. Ill; Julia Building Ass’n v. Bell Tel. Co., 88 Mo. 258; McCann v. Johnson Tel. Co., 76 Pac. 870. 66 L. R. A. 171; People v. Eaton, 100 Mich. 208, 59 N. W. 145.</p>

<p>Drains — Drainage Commissioners Act Judicially in Assessing Benefits.</p> <p>1. A board of drainage commissioners, appointed under statutory authority and acting regularly in the discharge of its statutory duties, is exercising functions in their nature judicial when it assesses the benefits to lands in the drainage district established by it.</p> <p>Same — Action Final Unless Assailed for Fraud, or Other Ground for Equitable Interference.</p> <p>2. After such board has assessed the benefits to lands under such circumstances, and has proceeded in all things in accordance with the statutory requirements, its action in assessing benefits is final unless assailed for fraud or other ground for equitable interference.</p> <p>Same — Disqualification of Commissioner.</p> <p>3. The fact that one of the members of a board of drainage commissioners owns land in the drainage district that will be benefited by the drain will not disqualify such member from acting, nor render the proceedings in which ihe participated void or subject to attack by a court of equity.</p> <p>Same — Writ of Prohibition.</p> <p>4. When a district court enjoins proceedings by a board of drainage commissioners acting regularly and within its exclusive jurisdiction, a writ of prohibition from this court is a proper remedy to be invoked against further proceedings by the district court.</p> <p>Same — Adequate Remedy at Daw.</p> <p>5. An appeal from the action of the district court, under such circumstances, is not a speedy nor adequate remedy.</p>

<p>Appeal from District Court, Richland county; Glaspell, J.</p> <p>Application by the state on the relation of C. N. Frich, Attorney General, to remove George E. Moody from office. Judgment for defendant, and relator appeals.</p>

Action by E. C. Raymond, doing business as the LaCrosse Credit Association, against E. M. Edelbrock and Peter Massoth. Judgment for defendants, and plaintiff appeals. Right to move for a dismissal of an appeal is waived by any act recognizing it as before the court, such as motion for continuance, submission of the cause on its merits, etc. 2 Enc.

<p>Vendor and Purchaser — Compensation in Lieu of Forfeiture.</p> <p>1. Under section 4970, Rev. Codes of 1899, one who has'subjected himself to a forfeiture by committing a breach of contract may by making compensation be relieved therefrom, when the breach is not grossly negligent, willful, or fraudulent.</p> <p>Same — Relief from Forfeiture.</p> <p>2. Upon the facts stated in the opinion, the plaintiff is entitled to be relieved from the forfeiture upon which the defendant .relies to defeat ■his action for specific performance.</p> <p>Same — Grounds of Forfeiture Must Be Those of the Contract.</p> <p>3. The grounds upon which a contract may be forfeited must be contained in the contract; and a contract will not be extended by construction to include other grounds than those specified in.it. Following Coughan v. Larson.</p> <p>Same — Fraud, Unless Affirmed, Is a Ground for Rescission.</p> <p>4. Fraud inducing the execution of a contract, and by reason of which consent is not free, renders it voidable, and, unless the contract ' . has been affirmed, is available as a ground for rescission or as a defense against its enforcement.</p> <p>Same — Taking Benefits Under Contract With Knowledge of Fraud Affirms It.</p> <p>5. One who, with full knowledge of the facts which entitle him to rescind a contract or defeat its enforcement, voluntarily takes benefits under if, thereby affirms it; and he cannot thereafter assail its validity.</p> <p>Specific Performance — Parties.</p> <p>6. One who is not a party -to a contract and disclaims any interest in it is not a necessary party plaintiff in an action to enforce it.</p>

<p>Appeal from District Court, Barnes county; Glaspell, J.</p> <p>Action by John Tracy, administrator, and others, against Henry O. Wheeler and William A. Scott. Judgment for plaintiffs and defendants appeal.</p>

<p>Certiorari by W. A. Scott and H. O. Wheeler to the District Court of the Fifth Judicial District for the county of Barnes and others to review an injunction.</p> <p>The fact that an action to foreclose a mortgage by action is barred by the statute of limitations, in no way affects foreclosure by advertisement. Hayes v. Frey et al., 11 N. W. 695; Stevens v. Osgood et ah, 100 N. W. 161; Gulcher v. Brisben, 20 Minn. 453; Menz v. Hintil, 44 S. C. 385; Cone v. Hyatt, 44 S. E. 678.</p> <p>The act of the legislature, providing an ex parte injunctional order to restrain the foreclosure of a mortgage, is unconstitutional; it impairs the obligation of contracts and divests the mortgagee of contractual property rights without due process of law. Power v. Larabee, 2 N. D. 141, 49 N. W. 724; Stuart v. Palmer, 74 N. Y. 181; Philadelphia v. Miller, 49 Pa. 444; Flarwood v. N. Brookfield, 130 Mass’. 561; Cooley on Con. Lim., chapter 11; Den et al. v. Hoboken Land & Imp. Co., 59 U. S. 272, 15 L. Ed. 372; Rees v. Watertown, 86 U. S. 107, 22 L. Ed. 72; Gilman v. Tucker, 13 L. R. A. 304; Hayward v. Judd, 4 Minn. 375, 383, 388.</p> <p>A tax title purchaser cannot enjoin a foreclosure by advertisement. 8 Enc. Law, 222; Comstock v. Comstock, 24 Mich. 39; Summers v. Bromle}', 28 Mich. 125; Roberts v. Wood et al., 38 Wis. 60, 68; Wilkinson v. Green, 34 Mich. 220; Pelton v. Farmin et al., 18 Wis. 222; Bell v. Pate, 47 Mich. 468, 11 N. W. 275; Banning v. Bradford, 21 Minn. 308, 310, 311.</p> <p>Upon the return of a writ of certiorari, the appellate court can only determine whether the inferior court or tribunal exceeded or pursued its authority. State ex rel. American Exp. Co. v. State Bd. of Assessment and Equalization, 3 S. D. 338, 53 N. W. 192; Sioux Falls Nat. Bank v. McKee, 50 N. W. 1057; Henshaw v. Bd. of Supervisors of Butte County, 19 Cal. 150; Murray v. Bd. of Supervisors of Mariposa County, 23 Cal. 493; People v. Dwindle, 29 Cal. 633; Finch v. Bd. of Supervisors of Tehama County, 29 Cal. 454; People v. Johnson, 30 Cal. 98; Winter v. Fitzpatrick, 35 Cal. 269; Central Pac. R. Co. v. Bd. of Equalization, 43 Cal. 365; State v. Smith, 101 Mo. 171; State v. Second Judicial District Court, 39 Pac. 316.</p> <p>Tax deed did not give a title superior to the mortgage lien. Miller v. Anderson et al., 47 N. W. 957; Bibbins v. Clark et al., 57 N. W. 884; O’Neill v. Dringer, 31 N. J. Eq. 507; Gull River Lbr. Co. v. Brock et al., 73 N. W. 430, 7 N. D. 135; Chapter 90, Laws of N. D., 1890.</p>

<p>Appeal from District Court, Griggs county; Winchester, J. George R. Lonne was convicted of embezzlement, and appeals.</p> <p>Where the statute enumerates several acts disjunctively which separately or together constitute an offense, if the indictment or information charges more than one of them, it must do so conjunctively. People v. Cooper, 53 Cal. 47; People v. Frank, 28 Cal. 507; People v. De La Guerra, 31 Cal. 460; Wharton’s Cr. PI. & Pr. (9th Ed.) 161.</p> <p>The information states two different ways of committing the same offense, which is permitted. Rev. Codes 1899, section 8042. State v. Watrous, 13 Iowa, 489; State v. McPherson, 9 Iowa, 53; State v. Barrett, 8 Iowa, 536 ; State v. Vaughn, 5 Iowa, 369; Burdine v. State, 25 Ala. 60; also People v. Ah Woo, 28 Cal. 206; 10 Enc. PI. & Pr. 536.</p>

<p>Appeal from District Court, Wells county; Burke, J.</p> <p>Action by A. G. Becker & Co. against the First National Bank of Harve}L Judgment for defendant and plaintiff appeals.</p>

<p>Appeal — Trial De Novo.</p> <p>1. When an action involving both legal and equitable issues, which ought to be separately tried and determined, is tried to the court, all the issues being tried together, and a single judgment rendered, disposing of all the issues, the case is not triable de novo on appeal, under section 5630, Rev. Codes 1899, as amended in 1903 (Laws 1903, page 277, chapter 201). Cotton v. Butterfield (N. D.) 105 N. W. 236. distinguished.</p> <p>Same — Case Triable by Jury.</p> <p>2. In such an action wherein the determination of the equitable counterclaim does not conclude all issues on the law side of the case, and the equitable and legal issues are tried together, the case is one “properly triable with a jury,” within the .meaning of the proviso added to section 5630, Rev. Codes of 1899, by chapter 201, page 2i7, Laws of 1903, which withdraws such .cases from the operation of section 5830.</p>

<p>Appeal from District Court, LaMoure county; Burke, J.</p> <p>Action by W. A. Marin against C. A. Potter. Judgment for plaintiff. From an order granting application to open default, plaintiff appeals.</p> <p>Proof by affidavit can only be made by a statement of facts from which the ultimate conclusion may be drawn. 1 Enc. PI. & Pr. 322; Noble v. Kreuzhamp, 111 Pa. St. 68; Bank v. Loucheim, 8 N. Y. Supp. 520; Thompson v. Best, 4 N. Y. Supp. 229; Powell v. Kane, 5 Paige, 265; Duanesburgh v. Jenkins, 40 Barb. 574.</p> <p>An affidavit denying personal service was not submitted to attack the jurisdiction but to show that respondent had no notice of the entry of judgment.</p>

<p>Appeal from District Court, Cavalier county; Knee show, J.</p> <p>Action by H. A. Libby against Thomas Barry. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Foster county; Burke, J.</p> <p>Action by Thomas Doughty against the Minneapolis, St. Paul & Sault Sainte Marie Railway Company. Judgment for plaintiff, and defendant appeals.</p> <p>In some of the grants to aid railroad building there was a separate grant of right of way giving title as of the date of the grant the moment the line was located. St. J. & D. C. R. R. Co. v. Baldwin, 103 U. S. 426, 6 L. Ed. 578.</p> <p>The first in time in proceedings to acquire title to public lands, if the latter are followed up, is first in right. Shepley et al. v. Cowan et al., 91 U. S. 338, 23 L. Ed. 424.</p> <p>When a map of location is approved, the title rests as of the date of location. St. Paul & S. C. R. R. Co. v. W. & St. P. R. R. Co., 112 U. S. 720, 28 L. Ed. 872; Sioux City & St. P. R. R. Co. v. C. M. & St. P. R. R. Co., 117 U. S. 406, 29 L. Ed. 928.</p> <p>Until a grantee under act of congress of March 3, 1875, is specifically named and a definite location given to the line of the route, either by the filing and approval of a plat or profile of the time of route, or by actual construction and operation of the road, no rights accrue to the railroad company. Dakota Central R. R. Co. v. Downey, 8 Land Dec. 115; Jamestown and N. Ry. Co. v. Jones, 7 N. D. 619, 76 N. W. 227.</p> <p>When a settler takes possession of a tract with a view to preemption before the map of definite location of a railroad right of way thereover has been filed and approved, the railroad company must condemn the possessory right of the preemptor. Jamestown and N. Ry. Co. v. Jones, supra.</p> <p>Where a railroad company claims title to the right of way under the provisions of section 4 of the act of congress approved March 3, 1875, its rights attach at the date of the last act to be done by the railroad company, i. e., of the approval of the plat and profile of its time of route by the secretary of the interior. Circular of. Commissioner Williamson, 2 Copp’s Public Land Laws, 816; opinion Sec. Vilas, in R. R. Co. v. Downey, 8 Land Dec. 115; Circular of Commissioner Stockslager, 12 Land Dec. 423; Red River & Lake of the Woods R. Co. v. Sture, 20 N. W. 229; Lilienthal v. Southern Cal. Ry. Co., 56 Fed. 701; Spokane Falls & N. Ry. Co. v. Zeigler, 61 Fed. 392; Larson v. Oregon Ry. and Nav. Co., 23 Pac. 974; Hamilton v. Spokane & P. Ry. Co. et ah, 28 Pac. 408; Enoch v. Spokane Falls & N. Ry. Co., 33 Pac. 966 ; Chicago K. & N. Ry. Co. v. Van Cleave, 33 Pac. 472; Reidt v. Spokane Falls & N. Ry. Co., 34 Pac. 150; Denver & N. G. R. Co. v. Wilson, 62 Pac. 843. '</p> <p>Title acquired to public land by patent relates back and takes effect as of the date of the filing. Act of Congress of May 14th, 1880 (Supp. U. S. Stat. 140) ; Shepley v. Cowan, supra; Johnson v. Bridal Veil Lbrg. Co., 33 Pac. 528; Sturr v. Beck, 133 U. S 541, 10 Sup. Ct. Rep. 350.</p>

<p>Appeal from District Court, Grand Forks county; Fisk, J.</p> <p>Action by Florence I. Kerr against the city of Grand Forks. Judgment for plaintiff, and defendant appeals.</p>

<p>Bills and Notes — Payment of Forged Chedk — Recovei’y Back.</p> <p>1. The drawee of a forged check ■who has paid the same without ■detecting the forgery, may upon discovery of the forgery, recover the money paid from the party who received the money, even though the latter was a good faith holder, provided the latter has not been misled or prejudiced by the drawee’s failure to delect the forgery.</p> <p>Same — Burden of Proof.</p> <p>2. The burden of showing that he has been misled or prejudiced by the drawee’s mistake in such a case rests upon him who claims the right to retain the money for that reason.</p>

<p>Appeal from District Court, Walsh county; Gem, J.</p> <p>Action by the Houghton Implement Company against Frank Vavrosky. Judgment for defendant, and plaintiff appeals.</p>

<p>County Courts — Form and Contents of Judgment.</p> <p>1. In county court the final decree consists of the findings of fact, conclusions of law and statement of the relief awarded, and all these should be embodied in one document, signed by the judge, and filed.</p> <p>Same.</p> <p>2. In a proceedings in the county court for the probate of a will, the county court, following the practice prevailing in the district court, made and filed findings and conclusions, and subsequently made and filed a separate document purporting to be the judgment. Held, that this so-called judgment should be regarded as a completion or amendment of the previous document containing the findings, and that both documents, taken together, constitute the final decree.</p> <p>Appeal — Notice — Construction.</p> <p>3. A notice of appeal, dated and served after the perfection of the decree, clearly indicating that the appellant desired to appeal from the whole final decree in said proceedings, and describing the decree as one dated the day the findings and conclusions were filed, should be c'onstrued to be a notice of appeal from the final decree, and not from the findings and conclusions alone.</p> <p>Same — Amendment of Notice.</p> <p>4. The county court has power, in furtherance of justice, to permit the service of an amended notice of appeal to the district court, after the statutory time for appeal has expired, where the appeal was taken in good faith in the proper time, but by mistake the original notice was technically defective by reason of the omission of some of the necessary parties.</p>

<p>Appeal from District Court, Barnes county; Burke, J.</p> <p>Action by Roy Beleal, by E. J. Beleal, his guardian ad litem, _ against the Northern Pacific Railway Company. Judgmeut for plaintiff, and defendant appeals.</p> <p>It was unnecessary to warn plaintiff of dangers which were obvious and which he understood, and the rule applies to minors. Naylor v. C. & N. W. Ry. Co., 11 N. W. 24; Casey v. St. P., M. & O. Ry. Co., 62 N. W. 624; Berger v. St. M. & M. Ry. Co., 38 N. W. 814; Burkley v. Gutta Percha & Rubber Mfg. Co., 21 N. E. 717; Ogley v. Miles, 34 N. E. 1059; Hickey v. Taafe, 12 N. E. 2'86; Downey v. Sawyer, 32 N. E. 654; De Souza v. Stafford, Mills, 30 N. E. 81; Hightower v. Gray, 83 S. W. 254; Williamson v. Sheldon Marble Co., 29 Atl. 669; Tinkham v. Sawyer, 27 N. E. 6; Plerold v. Pfister, 66 N. W. 355; Terry v. Schmidt, 115 Fed. 627; Cirach v. Woolen Co., 15 N. E. 579; Levy v. Bigelow, 34 N. E. 128.</p> <p>A master need furnish only such appliances as are suitable to accomplish the work. Richards v. Rough, 18 N. W. 785; Sweeney v. Berlin & Jones Envelope Co., 358; Delaware River Works v. Nut-tel, 13 Atl. 65; Naylor v. C. & N. W. Ry. Co., supra.</p> <p>Chap. 131, Laws of 1903, is unconstitutional and void in toto or its purpose and scope must be referred to “railroad hazards” proper. Lavall v. St. P., M. & M. Ry. Co., 41 N. W. 974; Pearson v. C. M. & St. P. Ry. Co., 41 N. W. 34; Johnson v. St. P. & D. Ry. Co., 45 N. W. 156; Weisel v. Eastern Ry. of Minn., 82 N. W. 576; ITerrick v. Same, 127 U. S. 210, 8 Sup. Ct. Rep. 1176.</p> <p>In Minnesota cases holding railroad companies liable, the line of demarcation limiting liability to hazards peculiar to railroads is consistently maintained. Bloomquist v. Gt. N. Ry. Co., 67 N. W. ,804; Leier v. Transfer Co., 65 N. W. 269; Nichols v. C. M. & St. P. Co., 62 N. W. 386; Steffenson v. C. M. & St. P. Co., 47 N. W. 1068; Smith v. St. P. & D. Co., 46 N. W. 149; Schus v. Bowers-Simpson Co., 89 N. W. 68; Iowa sustains the same rule. Pierce v. Cent. Ia. Ry., 34 N. W. 783; Frandson v. Railway Co., 36 Iowa, 372; Deppe v. Ry. Co., 36 Iowa, 52; Nelson v. C. M. & St. P. Ry. Co., 35 N. W. 611; Rayburn v. Cent. Iowa Ry. Co., 35 N. W. 606; Scbroeder v. Ry. Co., 47 Iowa, 375.</p> <p>The statute of Iowa was adopted in Kansas, and the same construction given it there. Missouri, etc., Ry. Co. v. Haley, 25 Kan. •26.</p> <p>Where a master orders a servant into dangerous service, without proper warning or instructions, and sometimes where they are given, the employer would be answerable for the minor’s injury. 4 Thompson on Neg., section 3818; McMillon Marble Co. v. Black, 14 S. W. 479; Turner v. Norfolk & W. Ry. Co., 22 S. E. 83; Wolski v. Knapp, Stout & Co., 63 N. W. 87; Palmer v. Mich. Cent. R. R. Co., 49 N. W. 613; Allen v. Jakel, 73 N. W. 555; Hoffman v. Adams, 64 N. W. 7; Kailar v. N. W. Bedding Co., 48 N. W. 779.</p> <p>Whether the minor warned was negligent, or whether there was negligence of the master in failing to warn and instruct, are questions for the jury. Chopin v. Badger Paper Co., 53 N. W. 452; N. Y. Biscuit Co. v. Rouss, 74 Fed. 608; Chicago Am. Pressed Brick Co. v. Re'innieger, 29 N. E. 1106, 33 Am. St. Rep. 249 ; Hanson v. Ludlaw Mfg. Co., 38 N. E. 363.</p> <p>The master must provide and maintain reasonably safe places and instrumentalities in which and with which to work. Mayer v. Leibman, 44 N. Y. Sup. 1064; Shoemaker v. Bryant Lbr. Co., 68 Pac. 380; Meyer v. Morgan, 52 N. W. 174; Thomas v. Ross, 75 Fed. 552; Peerpont Fireproof Const. Co. v. Plansen, 69 111. App. 659; Knickerbocker Ice Co. v. Bernardt, 95 111. App. 23.</p> <p>Chap. 131, Laws of 1903, is constitutional. Ga. etc., Co. v. Gold-wire, 56 Ga. 196; Marsh v. S. Car. R. Co., 56 Ga. 274; So. R. Co. v. Johnson, 114 Ga. 329; Ga. R., etc., v. Hicks, 22 S. E. 613.</p> <p>Limiting the operation of the law to railroad business proper, it is constitutional. Mo. Pac. R. Co. v. Mackey, 127 U. S. 205, 8 Sup. Ct. Rep. 1161, 32 L. Ed. 107; Minn. & St. L. Ry. Co. v. Herrick, 127 U. S. 109, 8 Sup. Ct. Rep. 1176; Ch., M. & St. P. Ry. Co. v. Artery, 137 U. S. 515, 11 Sup. Ct. 129; Chicago, Kan. & W. Ry. Co. v. Pontius, 157 U. S. 209, 15 Sup. Ct. 185.</p> <p>Persons assisting in loading and unloading railroad material, fixing a dead engine are within the rule as to liability for neglect of co-employes. A. T. & S. F. Ry. Co. v. Koehler, 15 Pac. 567; A. T. & S. F. Ry. Co. v. Brassfield, 32 Pac. 814; Ch., R. I. & P. R. Co. v. Stahley, 62 Fed. 363; 11 C. C. A. 88; Butler v. Ch., B. & Q. R. Co., 54 N. W. 208; Mikkelson v. Truesdale, 65 N. W. 260.</p>

<p>Appeal from District Court, Cass County; Pollock, J.</p> <p>Application by the state, on the relation of Charles FI. Mitchell, for writ of mandamus to M. S. Mayo, -treasurer of Cass county. Judgment for relator, and defendant appeals. Reversed.</p>

<p>Appeal from District Court, Bottineau county; Falda, J.</p> <p>Action by B. S. Brynjolfson against Christina Dagner and others. Judgment for plaintiff, and defendants appeal.</p> <p>Deed from one, while others are in adverse possession which they have asserted, and received rents and profits for over a year ,is void. Rev. Codes 1899, section 7002, and section 3920; Galbraith v. Paine, 12 N. D. 164, 96 N. W. 258; Schneller v. Plankinton, 12 N. D. 561, 98 N. W. 77.</p> <p>Failure to make inquiry of one in possession of land, charges one with knowledge of all that such inquiry would reveal. Thompson v .Pioche, 44 Cal. 508; Fair v. Stevenot, 29 Cal. 486; Davis v. Baugh, 59 Cal. 569; Lestrade v. Barth, 19 Cal. 66; Metropolitan Bank v. Godfrey, 23 Ill. 531; Williams v. Brown, 14 Ill. 205.</p> <p>Where a party’s conduct has induced action by another, he is precluded from asserting to the prejudice of that other, that which is contrary to what his conduct has induced the belief. Hill v. Epley, 31 Pa. St. 331; Coogler v. Rogers, 7 So. 391; Wise v. Newatney, 42 N. W. 339 ; Birch v. Steppler, 18 Pac. 530; Ratcliff v. Belford, I. W. Co., 10 S. W. 365; Gruber v. Baker, 23 Pac. 858.</p> <p>One in priority with one so inducing is likewise estopped. Snodgrass v. Ricketts, 13 Cal. 360; Coogler v. Rogers, supra; Ions v. Harrison, 44 Pac. 572; Mull v. Orme, 67 Ind. 95; Stinchfield v. Emerson, 52 Me. 465; S. C., 83 Am. Dec. 524.</p> <p>Purchaser at a void foreclosure sale under a power is an assignee of the mortgage sought to be foreclosed. Finlayson v. Peterson, 89 N. W. 855, 11 N. D. 45; Brynjolfson v. Osthus, 12 N. D. 42, 96 N. W. 261; Anderson v. Minn. L. & T. Co.,'71 N. W. 665; Johnson v. Sandhoff, 14 N. W. 889; Rogers v. Benton, 38 N. W. 765; Smithson, etc., Laird Co. v. Brantigan, 47 Pac. 434; Stillman v. Rosenberg, 78 N. W. 913; Taylor v. Agr’l & Mechanical Ass’n, 68 Ala. 229; Sawyer v. Barker, 77 Ala. 461; Stallings v. Thomas,</p> <p>18 S. W. 184; Robinson v. Ryan, 25 N. Y. 320; Miner v. Beck-man, 50 N. Y. 337; Investment Securities Co. v. Adams, 79 Pac. 625; Eq. Mtge. Co. v. Gray, 74 Pac. 614; Stauffer v. Harlan, 74 Pac. 610.</p> <p>A deed on such purchase constitutes the purchaser equitable assignee of the mortgage. Finlayson v. Peterson, supra; Cooke v. Cooper, 22 Pac. 945; Jackson v. Bowen, 7 Cow. 13; Olmsted v. Elder, 4 N. W. Super. Ct. (2d Sanf.) 325; Holton v. Boweman, 19 N. W. 734; Rogers v. Benton, supra; Brynjolfson v. Osthus, supra.</p> <p>A conveyance of land held in adverse possession to a creditor having a lien thereon is not void under the statutes against maintenance. Tutwiler v. Atkins, 17 So. Rep. 394.</p> <p>The possession of a mortgagee is never adverse to the owner of the legal title, unless he has repudiated the relation and asserted absolute title in himself. 2 Jones on Mort., section 1152; Chalmers v. Wright, 28 N. Y. Sup. Ct. 713; Finn v. Laley, 37 N. Y. S. 437; Borst v. Boyd, 3 Sandf. Ch. 501; Gordon v. Lewis, Fed. Cas. 5613 (2 Sumn. 143) 1835; Waggner v. Dyer, 11 Leigh, 384; Steed v. Baker, 13 Gratt. 378.</p> <p>To effect an estoppel in pais the same facts' must co-exist as would be necessary to constitute a cause of action for deceit. Brigham Young Trust Co. v. Wagner, 40 Pac. 764; Roberts v. Trammel, 40 N. E. 162; 11 Am. & Eng. Enc. Law, 431; Blodgett v. Perry, 10 Am. St. 307; Roberts v. Trammel, supra; Bynum v. Preston, 5 Am. St. 49; Martin v. Zellerbeck, 99 Am. Dec. 35, 38 Cal. 300; Newman v. Plook, 90 Am. Dec. 378; Ross v. Banta, 34 N. E. 8G5; Underwood v. Deckard, 70 N. E. 383; Sup. Tent v. Stensland, 68 N. E. 1098; 99 Am. St. 137; Fredenburg v. Lyon Lake M. E. Church, 37 Mich. 476, 11 Am. & Eng. Enc. Law, page 424, note 2.</p> <p>Knowledge is essential on the part of the person to be estopped. Anderson v. Hubbell, 93 Ind. 570.</p> <p>An estoppel does not occur where both parties have equal knowledge. McPherson v. Rollins, 1 Am. St. 826; Morrill v. St. Anthony Falls W. P. Co., 26 Miss. 222; Tinsley v. Fruits, 51 N. E. Ill; Blodgett v. Perry, 10 Am. St. 307; Brant v. Virginia C. & I. Co., 93 U. S. 326, 23 L. Ed. 927.</p> <p>To work an estoppel representation must be with intent to deceive. Griffith v. Brown, 18 Pac. 372; Brant v. Virginia C. & I. Co., supra.</p> <p>Party must have relied on the representations. Halcomb v.' Boynton, 37 N. E. 1030; Lincoln v. Gay, 42 N. E. 95; Jewell v. Miller, 61 Am. Dec. 751; Colo. Fuel & Iron Co. v. Lenhart, 41 Pac. 834; O’Mulchay v. Knapp, 28 Minn. 31; Dean v. Crall, 57 N .W. 813; Coffelt v. First Natl. Bank, 35 Pac. 289; Priewe v. Wis. State L. & I. Co., 89 N. W. 780; Lingonner v. Ambler, 62 N. W. 486; Mullaney v. Duffy, 33 N. E. 750; Gillespie v. Gillespie, 42 N. E. 305.</p>

<p>Appeal from District Court, Ramsey county; Fisk, J.</p> <p>Action by William E. Higbee against Richard Daeley and others. Judgment for defendants, and plaintiff appeals.</p> <p>Foreclosure must be by a legal owner of the mortgage, and if he is the assignee, his assignment must be recorded.</p> <p>Section 3419, R. C. 1899; Pardee v. Lindley, 31 Ill. 174; Strother v.. Law, 54 Ill. 413; Niles v. Ransford, 1 Mich. 338; Dunning v. McDonald, 55 N. W. 864; Hathorn v. Butler, 75 N. W. 743; Clark v. Mitchell, 84 N. W. 327.</p> <p>If not so done the foreclosure is void. Section 3419, Rev. Codes 1899; Niles v. Ransford, supra; Bauseman v. Kelly, 36 N. W. 333; Burke v. Backus, 53 N. W. 458; Backus v. Burke, 51 N. W. 284; Backus v. Burke, 65 N. W. 459.</p> <p>Foreclosure being void, title to the note and mortgage passed to the purchaser. Brynjolfson v. Osthus, 12 N. D. 42, 96 N. W. 261.</p> <p>They were transferred by such subsequent conveyance of the premises. Finlayson v. Peterson, 11 N. D. 45; Johnson v. Sandhoff, 14 N. W. 889; Stillman v. Rosenberg, 78 N. W. 913.</p> <p>Doctrine of bona fide purchaser cannot be invoked. against a prior innocent legal holder. 2 Pom. Eq. Jur., sections 735 and 739; Williams v. Rand, 30 S. W. 509.</p> <p>Good faith cannot create a title where none existed. Story Eq. Jur., Vol. 1, section 64c; Dodge v.'Briggs, 27 Fed. 166; Vattier v. Plinde, 32 U. S. 269, 8 L. Ed. 249; Boon v. Chiles, 35 U. S. 209, 9 L. Ed. 176; Steffian v. Milmo National Bank, 6 S. W. 823; Oakley v. Ballard, Federal Cases, 10, 393; Evarts v. Agnes, 4 Wis. 343; Tisher v. Beckwith, 30 Wis. 55; Henry v. Carson, 96 Ind. 422; Fitzgerald v. Goff, 99 Ind. 28; Fallon v. Chidester, 46 Iowa, 588.</p> <p>A grantee can convey no more than he acquires. Sampeyriac v. U. S., 32 U. S. 222, 8 L. Ed. 220; Polks, Lessees, v. Wendell, 5 Wheaton, 308; Sumner v. Seaton, 19 Atl. 884; Dimond v. Manheim, 63 N. W. 495.</p> <p>The appellant seeking to redeem from the mortgage, offers to pay it, asks for an accounting and that respondent be allowed his just claim against the premises. This is all that equity can require and no laches can be imputed to the appellant. Lasher v. Mc-Creary, 66 Fed. 834.</p> <p>There was no name of a grantee in the assignment and it was void. Druary v. Foster, 69 U. S. (2 Wall.) 24, 33; Swartz v. Ballou, 47 Iowa, 188; Bums v: Lynde, 6 Allen, 305; 1 Devlin on Deeds, section 456.</p> <p>Where the debt is assigned and the mortgagee retains title to the mortgage, he is an indispensable party to a foreclosure by advertisement, and a foreclosure by him is valid, if made with the consent of the owner of the debt. Burke v. Backus, 51 Minn. 174, 53 N. W. 458; Backus v. Burke, 48 Minn. 260, 51 N. W. 284; Bausman v. Faue, 45 Minn. 412, 48 N. W. 13.</p> <p>A foreclosure by advertisement in the name of the mortgagee on a mortgage assigned in blank is regular where the assignee’s name is not inserted until after service. Curtis v. Cutler, 37 L. R. A. 737.</p> <p>Respondent is an innocent purchaser for value without notice of defect in the proceedings and should be protected. See Vol. 3, Ballard on Real Property, section 461; 65 N. H. 646; Mandil v. Luce, et al., 61 N. W. 43; 2 Story Eq. Jur., section 1502.</p>

<p>Appeal from District Court, Ward county; Falda, Jr., J.</p> <p>Action by A. Y. More and John L. More against R. B. Burger and L. W. Movius. Judgment for plaintiffs, and defendants appeal.</p> <p>A new cause of action must not be set up by amendment. Mares v. Wormington, 8 N. D. 329, 79 N. W. Ml.</p> <p>Judgment cannot be had for property not in defendant’s possession. Heidman-Benoist Saddlery Co. v. Schott, 80 N. W. 47; Gardner v. Brown, 37 Pac. 240.</p> <p>Market value must be proved. Towne v. St. Anthony & D. Elevator Co., 8 N. D. 200, 77 N. W. 608.</p> <p>Demand must be first made before action for conversion will lie. Sanford v. Duluth & Dak. El. Co., 2 N. D. 6, 48 N. W. 434; Towne v. St. Anthony & Dak. El. Co., supra; Dowd v. Wadsworth, 18 Am. Dec. 567.</p> <p>So long as the identity of action is preserved, the form is immaterial. 1 Enc. PL & Pr. 575; Chapman v. Barney, 129 U. S. 677, 9 L. Ed. 426; Keighan v. Hopkins, 19 Neb. 33; Lyon v. Tolmage, 1 Johns. Ch. 184, 188.</p>

<p>Sales — Warranty — Fidings Sustained by Evidence.</p> <p>1. In an action to recover damages upon an alleged warranty of the value of certain bank stock, which was tried to the court without a jury, it is held, that the findings for plaintiff are sustained by the evidence.</p> <p>Same — Damages — Prima Facie Value of a Note Is Its Face and Accrued Interest.</p> <p>2.The face or prima facie value of a promissory note at any point of time is the principal with the interest then accrued; and this is true, even though the unearned interest has in form been added to the face of the note.</p> <p>Same.</p> <p>3. The defendants, in the sale of certain bank stock to plaintiff, guaranteed that it was, when estimated by the assets and liabilities of the bank as disclosed by its books, of a certain value. In making tire computation they included the unearned interest upon the bills receivable as an asset. Held, that the recovery awarded plaintiff by the trial court for the difference in value resulting from the erroneous computation was proper and correct in amount.</p> <p>Pleading — Variance in Civil Action — Prejudice.</p> <p>4. Under our statute (section 5293, Rev. Codes 1899) a variance in a civil action is not material unless it has .actually misled the adverse party to his prejudice in maintaining 'his action or defense.</p> <p>Same.</p> <p>5.Upon the facts stated in the opinion it is held that there was no material variance between the pleadings and proof, .and, further, that the trial court was not guilty of an irregularity in its proceedings.</p>

Action by L. A. Leu against the Commercial Mutual Fire Insurance Company of North Dakota. Judgment for plaintiff, and dedefendant appeals. A contract that does not exclude wholly the determination of disputes by the ordinary legal tribunals but merely qualifies it by reasonable modes of arbitration is not invalid under section 3925, Rev. Codes 1899.

<p>Constitutional Daw — Due Process of Daw — Publication of Summons.</p> <p>1. The publication of summons, as prescribed by chapter 5, page 9, Laws 1901, in actions to quiet .title, there being no description of the land in such publication, is not a sufficient notice to adverse claimants, not specifically named in the summons, to constitute “due process of law.”</p> <p>Judgment — Validity — Collateral Attack.</p> <p>2. A judgment so obtained, whether attacked directly or collaterally, is void as to an adverse claimant not named in the summons, and Who did not appear in the action.</p> <p>Taxation — Removing Cloud — Tender.</p> <p>3. One who sues in equity to remove a cloud on his title caused by a void tax sale will be required to pay the amount justly due for the taxes included in the void sale.</p>

Action by the State Finance Company against William H. Beck and Valeria R. Myers. Judgment for plaintiff, and defendants appeal. Paying taxes, leasing and the cutting and removal of hay constitute disseisin. Torey v. Bigelow, 9 N. W. 313; Booth v. Small, 25 Iowa, 177; Clement v. Perry, 34 Iowa, 564; Finn v. Wisconsin River Land Co., 40 N. W. 209; Knox v. Cleveland, 13 Wis. 245. All defects in the sheriff’s certificate are cured by the statute of limitations.

<p>Taxation — Assessment — Description of Property.</p> <p>1. A sufficient description of the .property intended to be assessed and taxed is inherently essential to a valid tax.</p> <p>Same.</p> <p>2. The term “East middle” of a given town lot is unintelligible.</p> <p>Statutes — Title of Action — Constitutional Daw.</p> <p>3. Chapter 165, page 220, Laws 1901, amending section 1269, Rev. Codes of 1899, is constitutional. It is a valid limitation act, and its title is sufficient.</p> <p>Verification of Assessment Roll.</p> <p>4. The failure to attach to the assessment roll the prescribed assessor’s affidavit does not invalidate a tax sale of real property made under the revenue law of 1897. (Young, J., dissenting.)</p> <p>Same — Statutory Bar to Action.</p> <p>5. The verification of the assessment roll by the assessor is merely a legislative requirement which is neither inherently or constitutionally essential to an assessment; and objection to a tax sale under the tax law of 1897 for such irregularity is barred by section 1263, Rev. Codes of 1899. Eaton v. Bennett, 10 N. D. 346, 87 N. W. 188, disapproved. (Young, J., dissenting.)</p> <p>Appeal — Presumption as to Correctness of Abstract.</p> <p>6. In the absence of proper objection this court will presume that the abstract on appeal is correct and was properly prepared.</p> <p>Same.</p> <p>7.This rule will be relaxed only in exceptional cases.</p>

Action by Louisa M. Nind against Valeria R. Myers and William ’ H. Beck. Judgment for plaintiff, and defendants appeal. Failure to furnish copy of judgment to sheriff upon which to sell is not fatal. Kipp v. Collins, 33 Minn. 394. The description NE4 NW4SW4 S2NW4 taken with owner’s name and the quantity of land embraced, viz., 280 acres, is definite. Stoddard v. Lyon, 89 N. W. 1116. The title under sheriff’s certificate is cured by the statute of limitations.

<p>Appeal from District Court, Dickey county; Lauder, J.</p> <p>Action by A. L. Beggs against J. A. Paine. Judgment for plaintiff, and defendant appeals.</p>

, J. Action by Frederick A. Powers against the First National Bank of Bottineau and others. Judgment for plaintiff, and defendants appeal. Where there is no levy there is no tax and neither the amount of purchase or subsequent tax is recoverable.

Action by Martin Martinson against George Marzolf and others. Judgment for defendants, and plaintiff appeals. Courts will review a decision of the land department in an action to establish a trust in land, where patent has issued from the United States, where there has been a cancellation of an entry without the entryman having an opportunity for a hearing, where such cancellation has been had through an erroneous or mistaken decision as to a matter of law. Parsons v'.

Action by the Hooven & Allison Company against A. J. Wirtz and C. H. Wirtz, partners as Wirtz Bros. Judgment for plaintiff. Defendants appeal. Mere written orders for goods which do not contain the terms of a complete contract will not exclude parol evidence of the contract actually made.

<p>Contract — Constructions — Performance — Conditions Precedent.</p> <p>1. Whether stipulations in a contract are conditions precedent to a right to enforce performance is to he determined by the intention of the parties, derived from the contract itself, by application of common sense to each particular case rather than by technical rules of construction. Stipulations in a contract should not be construed as conditions precedent, unless that construction is necessary by the terms of the contract.</p> <p>Partnership — Designation of Firm.</p> <p>2. A firm name, showing the surnames only of the parties, is not “a fictitious name,” nor “a designation not showing the names of the parties,” within sections 4410, 4412, Rev. Codes 1899, requiring every film doing business under such name or designation to file and publish a certificate showing the full names and residences of the members.</p>

<p>Appeal from District Court, Ransom county; Allen, J.</p> <p>Action by E. A. Tamlyn against P. O. Peterson and Karen O Peterson. Judgment for defendants. Plaintiff appeals.</p> <p>If the defendant desires to rely upon his alleged failure of consideration, or fraudulent representation as a defense to the note, his answer must allege that the plaintiff took the note with notice of the same. Bliss on Code Pleading, section 330; 8 Cyc. 170; Anderson v. Jacobson, 66 Ill. 522; Ither v. Rich, 10 Ad. & Ell. 784; 14 Enc. PI. & Pr. 641; Sturdivant v. Bank, 60 Fed. 730;-Daniel on Negotiable Instruments, section 770; Stein v. Keller, 4 Greene, 86; Clapp v. Cedar Co., 5 Iowa, 15; Billingsly v. Craddock, 47 N. W. 893; Lane v. Krekle, 22 Iowa, 399; Banks v. McCosker, 34 Atl. 539; Posey v. Denver Nat. Bank, 42 Pac. 684.</p> <p>In this case are decided symptoms of “graft,” “false pretense,” and the work of “imposters.” Here is a Scandinavian farmer, not used to the oily-tongued grafter, submitting his child for treatment by one representing himself as a cat’s paw under the name of an innocent purchaser. This court has expressed its opinion of such transactions in Knowlton v. Schultz et al., 6 N. D. 417, 71 N. W. 550; 2 Rand. Com. Paper, Par. 992; Jordon et al. v. Grover et al., 33 Pac. 889.</p>

<p>Appeal from District Court, Wells county; Burke, J.</p> <p>Action by J. J. Hatch and another against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. From a judgment for plaintiff defendant appeals.</p> <p>A provision in a contract with a carrier of goods, that the receiver of such goods shall give notice in writing before their removal from the place of destination, or they are mixed with other goods, as a condition precedent to the right of recovery for damages for their loss or injury, is not unreasonble. Express Co. v. Caldwell, 21 Wall. 264, 268, 22 L. Ed. 556, 88 U. S. 264; Queen of the Pacific, 180 U. S. 49; Phoenix Ins. Co. v. Erie & W. Trans. Co., 117' U. S. 312, 322, 29 L. Ed. 873; York Mfg. Co. v. Ill. Central R. R. Co., 3 Wall. 107, 114, 8 L. Ed. 170; Hart v. Penn. R. R. Co., 112 U. S. 331, 28 L. Ed. 717; Mobile & Montgomery Ry. Co. v. Jurey et al„ 111 U. S. 584, 28 L. Ed. 527; Rice v. Kansas Pac. R. Co., 63 Mo. 314, 20 Am. Ry. Rep. 424; Id. 76 Mo. 514, 88 Mo. 239; Sprague v. Mo. Pac. Ry. Co., 23 Am. & Eng. R. Cases, 684, 8 Pac. 465; Goggin v. Kan. Pac. R. Co., 12 Kan. 416; Wichita & W. R. Co. v. Koch, 28 Pac. 1013.</p> <p>A common carrier may limit his common law liability by special contract, provided such limitation was not against public policy, was just and reasonable, and was honestly made and rested upon a proper consideration. O’Malley v. Great Northern Ry. Co., 90 N. W. 974; Express Co. v. Caldwell, supra; Sprague v. Missouri Pac. Ry. Co., supra.</p>

<p>Appeal from District Court, Griggs county; Burke, J.</p> <p>Action by Stephens Mitchell against the Monarch Elevator Company. Judgment for plaintiff. Defendant appeals.</p> <p>Perfect compliance with statute essential to lien. Parker v. First National Bank, 3 N. D. 87, 54 N. W. 313; Anderson v. Alseth, 62 N. W. 435; Moher v. Rasmusson, 95 N. W. 152, 12 N. D. 71.</p> <p>The lien affidavit must contain all the facts required by statute or the lien is of no effect. Moher v. Rasmusson, supra.</p> <p>It must be shown in statement, averred in complaint, and established in the proof, that the grain to which lien attached was grown on the land described in the complaint. Martin v. Hawthorne et ah, 5 N. D. 66, 63 N. W. 895, 3 N. D. 412, 57 N. W. 87.</p> <p>A lien statement need not pray for lien. Smith v. Pleadley, 23 N. W. 550.</p> <p>An averment in such a prayer is a mere recital, not an allegation of a fact. Rugg v. Hoover et ah, 10 N. W. 473; Staples v. Fairchild, 3 N. Y. 41; Payne v. Young et ah, 8 N. Y. 158; Feucht v. Dessar, 5 N. Y. Supp. 129; Powell v. Caine, 5 Paige, 265 ; Lavin v. Bradley et ah, 1 N. D. 291, 47 N. W. 384.</p> <p>Although a lien accrues at time of the commencement of the work it has no priority over a bona fide purchaser. Smith v. Shell Lake Lumber Co., 31 N. W. 694; Andrews, Executrix, v. Jenkins et ah, 39 Wis. 476; Boom Com. v. Sanborn, 36 Mich. 358; Haifley v. Haynes, 37 Mich. 535; Finney v. Harding, 27 N. E. 289.</p> <p>Before any conclusive statutory liability can be imposed to divest a man’s title to property, he must be guilty of some tort, consent, be in default, or have notice to enable him to protect himself. John Spry Lumber Co. v. Sault Sav. Bank, Loan & Trust Co., 43 N. W. 778; Meyer v. Berlandi et ah, 40 N. W. 513; Mallory v. La Crosse Abattoir Co., 49 N. W. 1074.</p> <p>The case is distinguished from a building lien, where the building process is notice of the accrual of liens. Glass et ah v. Greeberg et ah, 52 N. W. 900; Bastien v. Barras et ah, 10 N. D. 29, 84 N. W. 559; Plaxter Steam Heater Co. v. Gordon et ah, 2 N. D. 246, 50 N. W. 708; Turner v. St. Johns et ah, 8 N. D. 245, 262, 78 N. W. 340.</p> <p>A thresher has a lien from the date of the commencement of threshing. Rev. Codes 1899, section 4823.</p> <p>It is prior to all other liens. Rev. Codes 1899, section 4825.</p> <p>A purchaser takes subject to the right of such lien. Rev. Codes 1899, section 4824.</p> <p>Parties are presumed to contract with reference to existing law, affecting their contract. O’Neil v. Anderson et al., 4 N. W. 47; Bohn et al. v. McCarthy et al., 11 N. W. 127; Douchy v. Clapp, 12 Cush. 440; Phil. Mech. Liens, section 65; Laird et al. v. Moonan et al., 20 N. W. 354; Smith et al. v. Stevens, 31 N. W. 55; Bard-well et al. v. Mann et al., 48 N. W. 1120; Haxter Steam Pleater Co. v. Gordon, supra; Turner v. St. Johns, supra.</p> <p>The constitutionality of similar statutes is implied. Lampson v. Bowen, 41 Wis. 484; Vilas v. McDonough Mfg. Co., 65 N. W. 488 ; Alfree Mfg. Co. v. Plenry, 71 N. W. 370; Fitzgerald v. Walsh, 82 N. W. 717.</p> <p>Sale or transfer of product during the period for filing the statement in no way affects the lien. Federspiel v. Johnstone et al., 49 N. W. 581; Saxton et al. v. Krein, 64 N. W. 868.</p>

<p>Error Without Prejudice Does Not Warrant Reversal.</p> <p>Error in the admission of testimony which the record shows was not attended by prejudice, affords no ground for reversal.</p>

<p>Appeal from District Court, Ransom county; Allen, J.</p> <p>Action by J. H. Schomberg against C. A. Long. Action dismissed on appeal on motion of plaintiff. From an order taxing costs, plaintiff appeals.</p>

<p>Appeal from District Court, Barnes county; Burke, J.</p> <p>Judgment for defendant and plaintiff appeals.</p>

<p>Appeal from District Court, Barnes county; Burke, J.</p> <p>Action by J. F. Gorthy against Noah Jarvis.</p> <p>Judgment for plaintiff, and defendant appeals.-</p> <p>Plaintiff cannot deprive defendant of a jury trial of legal issues by advancing fictitious claims for equitable relief. Davison v. Associates of the Jersey Co. 71 N. Y. 333; Wheelock v. Lee, 74 N. Y. 495; Bradley v. Aldrich, 40 N. Y. 504; People v. A. J. S. R. Co 57 N. Y. 163.</p> <p>Failure to file statement in each county will not prevent enforcement for the proportionate part in the county in which it was filed. Richmond & Irvine C. C. v. Richmond et al. 34 L. R. A. 625.</p>

<p>Judgment — Setting Aside Default — Grounds.</p> <p>Evidence examined, and held insufficient to warrant relief from a default judgment.</p>

<p>Judgment May Be Set Aside to Bring in New Parties.</p> <p>1. A party in whose favor -a judgment is rendered may have the same set aside for the purpose of bringing in additional defendants who are necessary parties to a complete determination of the plaintiff’s, rights in the action.</p> <p>Same — Bringing in After Judgment — Inherent Powers.</p> <p>2. The right to bring in proper parties, even after judgment, exists under the statutes, and is also one of the inherent powers of court to control their own judgments.</p> <p>Same — Term Time.</p> <p>3. The power to set aside or amend judgments in this state is not limited to the term at which they are rendered.</p> <p>Appeal — Additional Parties.</p> <p>4. The power to bring in additional parties defendant is discretionary with trial courts, and its exercise will not be interefered with by appellate courts, unless shown to be an abuse of discretion.</p>

<p>Damages for Wrongful Act Embrace Those Suffered After as Well as Before Suit.</p> <p>1. Both at common law and under our statute (sections 4973, 4997, Rev. Codes 1899), one who suffers an injury by the wrongful act of another may recover compensation for all detriment proximately caused thereby, and this includes compensation, not only for past detriment, but also for detriment resulting after the commencement of the action or certain to result in the future, and whether the damages alleged are general or special in character.</p> <p>Assault and Battery — Exemplary Damages — Actual and Pi’esumed Malice.</p> <p>2. Exemplary 'damages may .be awarded for an assault under section 4977, Rev. Codes 1899, where it is committed with malice either actual or presumed, and malice authorizing such a recovery may be presumed from the wanton and reckless manner in which the wrongful act was committed.</p> <p>Same — Pleading.</p> <p>3. When the complaint alleges, and the proof shows facts such as will warrant a recovery of exemplary damages, they need not be claimed by name and as such, but may be recovered under the claim for damages generally.</p>

<p>Appeal from District Court, Cass county; Pollock, J.</p> <p>Action by Charles N. Johnson against the city of Fargo. Judgment for plaintiff, and defendant appeals.</p> <p>No proper claim was presented to the mayor and council. It alleged the locus in quo to be “about 30 feet” from a point, and testimony shows it was about 15 feet. The object of the notice is to protect the municipality, and enable it to make proper investigation. Trost v. The City of Casselton, 8 N. D. 534, 79 N. W. 1071.</p> <p>Plaintiff was guilty of contributory negligence, and defendant’s motion for a directed verdict should have been granted. Indianapolis Ry. Co. v. Zaring, 71 N. E. 270; Indianapolis Ry. Co. y. Marschke, 70 N. E. 494; Indianapolis Ry. Co. v. Tenner, 67 N. E. 1044; Patterson v. Plemenway et ah, 19 N. E. 15; Pinnix v. Durham, 41 S. E. 932; Ill. Cen. R. R. Co. v. Dick, 15 S. W. 655; Massey v. Seller, 77 Pac. 397; Cook v. Atlanta, 19 S. E. 987: Mc-Laury v. The City of McGregor, 7 N. W. 91; Alline v. City of LeMars, 33 N. W. 160; Tuffree v. State Center, 11 N. W. 1; Cressey v. Town of Postville, 12 N. W. 757; Yahn v. City of Ottumwa, 15 N. W. 257; Hutchins v. Priestley Express Wagon Co., 28 N. W. 85; Bedell v. Berkey, 43 N. W. 308; Schofield v. Ch. M. & St. P. Ry. Co., 114 U. S. 615 S. C., 29 L. Ed. 224; C. R. I. & P. Ry. Co. v. Houston, 95 U. S. 697 (S. C.), 24 L. Ed. 542; Klutt v. Phil. R. Co., 133 Fed. 1003; Claus v. N. Steamship Co., 89 Fed. 646; Moore v. Richmond, 8 S. E. 387; Donaldson v. M. & St. P. Ry. Co., 21 Minn. 293; Brown v. M. & St. P. Ry. Co., 22 Minn. 165; Smith v. Minn. & St. L. Ry. Co., 26 Minn. 419; Johnson /. Ramberg, 51 N. W. 1043; Sparks v. Serbrecht, 45 N. Y. 993; O’Dwyer v.. O’Brien, 43 N. Y. 815; Bauman v. Met. St. Ry., 47 N. Y. 1094; Fuller v. Dedrich, 54 N. Y. 593; Hilsenbeck v.- Guhring, 131 N. Y. 674, 30 N. E. 580; Whalen v. Citizens’ Gas. Co.. 45 N. E. 363; Hausman v. City of Madison, 55 N. W. 167; Hutch-ins v. Priestley Express Wagon Co., 28 N. W. 86.</p> <p>There is no proof of negligence on the part of the city. It exercises reasonable care when it repairs defects in its walks within a reasonable time after notice, actual or constructive. Plaintiff’s conclusion that he caught his foot in the obstruction, from an examination the next day, does not carry the presumption that it was there the day before. A presumption is not retrospective. Jarvis v. Vanderford, 21 S. E. 302; Martin v. Curtis, 31 Atl. 296; Singler v. Murphy, 77 N. W. 577; Brentner v. Chicago, M. & St. P. Ry. Co., 12 N. W. 615; State v. Hubbard, 15 N. W. 287; Hoyt v. City of Des Moines, 41 N. W. 63; Blank v. Township of Lavonia, 44 N. W. 157.</p> <p>The exceptions to the rule are cases where from the notice of the defect, it must have existed long previous. Miller v. N. P. R. Co., 30 N. W. 892; City of Bloomington v. Osterle, 28 N. E. 1068; Mixter v. Imp. Coal Co., 25 Atl. 587; Johnson v. City of St. Paul, 54 N. W. 735.</p> <p>Notice to the mayor and council was sufficient. Robin v. Bartlett, 13 Atl. 645; Trost v. City of Casselton, 8 N. D. 534; Cowan v. Inhabitants, etc., 56 Atl. 901; Fopper v. Town of Wheatland, 18 N. W. 514; Coffin v. Town of Palmer, 38 N. E. 509; Weber v. Town of Screenfield, 42 N. W. 101; Citing White v. Stowe, 54 Vt. 510.</p> <p>The city’s negligence was a question for the jury. Baxter v. City of Cedar'Rapids, 72 N. W. 720.</p> <p>Neither abutting owners or others can obstruct sidewalks. Callahan et al. v. Gilman, 14 N. E. 64;'Davis et al. v. Mayor of City of N. Y., 14 N. Y. 506; Com. v. King, 13 Mete. 115; Com. v. Blaisdell, 107 Mass. 234; Freeman’s Note, 1 Am. State Rep. 840; State v. Edens, 84 N. C. 526; Com. V. Wentworth, 4 Clark, 324; Shopp v. City of St. Louis, 22 S. W. 898.</p> <p>Towns must keep roads in repair, not only as to surface and margins, but as to muniments; Glidden v. Reading, 38 Yt. 52; Lindsey v. Densville, 45 Vt. 72; Elliott on Roads and Streets (2d Ed.) 621; Gallamore v. City, 75 Pac. 978; Stafford v. City of Oskaloosa, 11 N. W. 668; Coffey v. City, 85 S. W. 532.</p> <p>Sidewalks are portions of the highway. City of Chicago v. O’Brien, 53 Am. Rep. 640; Johnson v. City, 57 Atl. 363; City of Macon v. Holcomb, 69 N. E. 79; Coffey v. City, supra.</p> <p>Side of street or sidewalk is a material part of it, and must be kept clean as well as other portions of it. Bunch v. Edenton, 90 N. C. 431; Bacon v. Boston, 3 Cush, T74; Houfe v. Town of Fulton, 29 Wis. 296; Wheeler v. Town of Westport, 30 Wis. 392; Kelly v. Town of Fon Du Lac, 31 Wis. 179; Burnes Administratrix v. Town of Elba, 32 Wis. 605; Cremer v. The Town of Portland, 36 Wis. 92; Kenworthy v. The Town of Ironton, 41 Wis. 647; Cartwright v. Town, 58 Wis. 370; Fitzgerald v. City, 64 Wis. 207; Strieker v. Town 93 Wis. 460, 77 N. W. 897; Gorr v. Mattlesteadt, 96 Wis. 296; City v. Lowery, 74 Ind. 520.</p> <p>Traveler may cross a street at any point without being liable to imputation of neglect. Brusso v. Buffalo, 90 N. Y. 679, citing Raymond v. Lowell, 60 Cush. 524, 530; Rea v. City of Sioux City, 103 N. W. 949; Pike v. City of Jamestown, 15 N. D. 157, 107 N. W. 359; Lincoln v. City of Detroit, 59 N. W. 617; Raymond v. Lowell, 6 Cush. 524; City of Louisville v. Johnson, 69 S. W. 803; Cotteril v. Starkey, 8 Car. & P. 691; Boss v. Litton, 5 Car. & P. 407; Griffin v. City of Boston, 65 N. E. 811; Miller v. Lewiston Co., 62 Atl. R. 32.</p> <p>Suspension of a wire or other articles above the surface of- a walk is an obstruction and is just as reprehensible as the obstruction of the surface itself by digging a ditch or otherwise. Larson v. Tobin, 44 N. W. 1078; Cremer v. The Town of Portland, 36 Wis. 92.</p> <p>The jury could find from the length of time that the wire had been there that the city had notice. Hayes v. Town of Plyde Park, 27 N. E. 522; Pyke v. City of Jamestown, supra.</p> <p>Negligence is always a question for the jury under proper instruction. 21 Am. & Eng. -Enc. Law, 502, 503, 506, 507.</p> <p>There was no negligence in going to the edge of the sidewalk, as respondent had a right to suppose that there were no impediments or pitfalls in any part of the street. Guffin v. City of Boston, 65 N. E. 811; Durant v. Palmer, 29 N. J. 544; City v. Augem, 48 N. E. 318; Griffin v. City, 65 N. E. 811; Monongahela City v. Fischer, 56 Am. Rep. 241; Gordon v. City of Richmond, 2 S. E. 727; Baker v. City of Grand Rapids, 69 N. W. 740, citing Thomp. Neg., section 387; Lincoln v. City, 101 Mich. 345; City Council v. Wright, 47 Am. Rep. 422; Barnes v. Town of Marcus, 65 N. W. 984; Heckman v. Evenson, 7 N. D. 173; Mathews v. City, 45 N. W. 894; Murphy v. Railway, 38 Iowa, 539; Messenger v. Plate, 42 Iowa, 443; Smith v. City, 74 Pac. 674.</p> <p>Respondent was not guilty of contributory negligence in failing to observe the wire. Wall v. Town, 39 N. W. 560; Brush Electric Lighting Company v. Kelly, 25 N. E. 812; City of Louisville v. Keher, 79 S. W. 270; City v. Harris, 113 Ill. App. 633; City v. Trammel, 109 Ill. App. 524; Jennings v. Van Schaick, 15 N. E. 424; Bettingill v. City, 116 N. Y. 558; Turner v. Newburgh, 109 N. Y. 301; Jorgenson v. Squires, 144 N. Y. 281; Houghtaling v. Shally, 51 Hun. 599 ; Babbage v. Powers, 130 N. Y. 281; Harris v. Uebelhoer, 75 N. Y. 175; Chilsholm v. State, 36 N. E. 184, citing McQuire v. Spense, 91 N. Y. 303; Weed v. Village, 76 N. Y. 329; Brusso v. Buffalo, 90 N. Y. 679.</p> <p>One running to a fire on the street in a dark night is not guilty of negligence. Jennings v.-Van Schaick, 15 N. E. 242; Shook v. City of Cohoes, Id. 531; Stevens v. City of Logansport, 76 Ind. 498; Noblesville Gas & Imp. Co. v. Loehr, 24 N. E. 579; Barr v. Kansas City, 16 S. W. 483; Barry v. Ferkildsen, 13 Pac. 657; Cantwell v. City, 37 N. W. .813; West v. City, 61 N. W. 313; Mahnke v. R. R., 29 So. 52; LeBeau v. Telephone Co., 67 N. W. 339; City of Chicago v. Babcock, 32 N. E. 271; Fuller v. Plyde Park, 37 N. E. 782; Words v. City of Boston, 121 Mass. 337; Mayo v. R. R., 104 Mass. 137; France v. R. R., 116 Mass. 537; 1-Iill v. Seekonk, 119 Mass. 85; Hunt v. Salem, 121 Mass. 294; Bruch v. City, 37 Atl. 818 ;■ Heckman v. Evenson, 7 N. D. 173.</p>

<p>Appeal from District Court, Griggs county; Winchester, J</p> <p>Action by Claus Jackson against Isaac Ellerson, Anna Ellerson intervened. Judgment for defendants, and plaintiff appeals.</p>

Action by Dean & Co. against D. B. Collins. Judgment for plaintiff. Defendant appeals. . Where a partnership is dissolved and one partner assumes the firm’s debts, the retiring partner is a surety as to all its creditors who are cognizant of the agreement. Millard v. Thorne, 56 N. Y. 402; Colgrove v. Tallmann, 67 N. Y. 95, 23 Am. Rep. 90; Smith v. Sheldon, 24 Am.

Action by A. C. Skjelbred against Ethel May Southard. Judgment for defendant, and plaintiff appeals. Sufficient affidavit of merits is indispensable in all applications to vacate default judgments. Gauthier v. Rusicka, 3 N. D. 1, 53 N. W. 80; Sargent v. Kindred, 5 N. D. 8, 63 N. W. 151; Kirschner v. Kirschner, 7 N. D. 291, 75 N. W. 252. Not only good defense but good excuse for default must be shown. Iiarlan v. Smith, 6 Cal. 173, 15 Enc.

Action by Frederik Rasmussen against W. C. Hagler. Judgment for plaintiff, and defendant appeals. The confession is good under statute and authorities. Kendig v. Marble, 12 N. W. 584; Brown v. Barngrover, 47 N. W. 1082; Dullard v. Phelan, 50 N. W. 204; Briggs v. Yetzer, 72 N. W. 647; Atwater v. Bank, 48 N. W. 187. The attack upon the judgment is collateral, and nothing short of a fatal jurisdictional defect appearing on the face of the record will avail defendant. NVII Enc.

Action by Preston Garland against F. B. Keeler. Judgment for plaintiff. Defendant appeals. Where the agreement is that machine shall work to the purchaser’s satisfaction, he is the sole judge and he need only show that his claim was made in good faith. Wood Machine Co. v. Smith, 15 N. W. 906; Piano Mfg. Co. v. Ellis, 35 N. W. 841; Silsby Mfg. Co. v. Chicago, 24 Fed. 893; Goodrich v. Van Nortwich, 43 Ill. 445. Exceptions to charge must be specific. Hedlun v. Holy Terror Min.

Action by John Silander against A. J. Gronna. From a judgment in favor of plaintiff, defendant appeals. Failure of wife to join in contract for sale of homestead renders it unenforcible, and bars claim for damages. Weitzner v. Thingstad, 56 N. W. 817. Where parties to a compromise suppose that they are settling a valid claim, this is sufficient. Hansen v. Gaar Scott & Co., 65 N. W. 254. Disputes based on questions of law are subjects of compromise. Pom. Eq.

<p>Appeal from District Court, Steele county; Fisk, J.</p> <p>Action by John Murphy and James Murphy against John C. Foster. Judgment for defendant, and plaintiffs appeal.</p>

Action by the P. J. Bowlin Liquor Company against Otto Beaudoin and August Beaudoin, doing business as Beaudoin Bros. Judgment for defendants, and plaintiff appeals. Sales of intoxicating liquor are unlawful only when sold as a beverage. Rev. Codes 1899, section 7593. There is no presumption that the possession of intoxicating liquors is unlawful. State v. McMaster, 13 N. D. 58, 99 N. W. 58.

Action by Fred Gessner and another against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. From a judgment in favor of defendant, plaintiffs appeal. The statutory provision that the submission must be acknowledged in the same manner as a conveyance of real property is' mandatory, and failure to observe it is fatal, and deprives the court of jurisdiction to affirm the award.

J. Action by Mary J. Nash against the Northwest Land Company and others. Judgment for plaintiff, and defendants appeal. An equitable title cannot be proven under a pleading alleging an ownership in fee without setting upi the facts constituting the equitable title. McClory v. Ricks, 11 N. D. 38, 88 N. W. 1042; Dever v. Cornwell, 10 N. D. 123, 86 N. W. 227; Finlayson v. Peterson, 11 N. D. 45, 89 N. W. 855; Hersey et al. v. Lambert, 52 N. W. 963; Stuart v. Lowry, 51 N. W. 662.

Action by B. H. Annis against F. FI. Burnham. Judgment for plaintiff, and defendant appeals. No one can acquiesce in a wrong if ignorant of its existence. 29 Am. & Eng. Enc. (2nd Ed.) 1093; Henry v. Cootsworth Co., Bond, et al. 55 N. W. 643; Portland F. & R. Co. v. Spillman, 32 Pac. 688; Pence v. Langdon, 99 U. S. 578, 25 L. Ed. 421.

Action by Ole Hanson and others against Louis Lindstrom. Judgment in favor of plaintiffs. From an order denying a new trial, defendant appeals. The office of a bill of particulars is to amplify a pleading and more particularly specify the claim or defense set up.

Walter Fisk was indicted for assault. Verdict of not guilty, and the state appeals. Injury to the feelings of a woman may be outraged by one who is incompetent as by one not. Territory v. Keyes, 5 Dak. 244, 38 N. W. 440. Being under 14 years of age is not a defense to the charge of assault with intent to commit rape. Commonwealth v. Green, 2 Pick. 380. Impotency is a defense to the charge of rape, but not to an assault with intent to commit that crime. Whart. Crim.

Action by the First National Bank of Portage against the State Bank of Northwood and another. Judgment for -plaintiff and defendants appeal. President or cashier of a state bank cannot bind it for a loan unless authorized thereto by its directors. First National Bank of Corunna v. Michigan City Bank, 8 N. D. 608, 80 N. W. 776; Florida Cent. R. R. Co. v. Schutte, 103 U. S. 118, 26 L. Ed. 327; Brown v. Chicago & N. W. Ry.

<p>Costs — Non-Resident Plaintiff — Dismissal.</p> <p>1. Where a plaintiff is in court when a motion is made by a defendant to compel the plaintiff, a nonresident, to furnish a surety for costs and a time is fixed by the court within -which surety shall be .furnished, and at the -expiration of the time fixed for furnishing it defendant shows that the order has not been complied with, it is not error to dismiss the action without further notice.</p> <p>Same — Discretion as to Time for Securing Costs.</p> <p>■ 2. Whether the time fixed within which surety may be furnished is reasonable is largely within the discretion of the court, and the action of the court will not be interfered with unless the discretion be abused.</p>

Action by the Emerson-Newton Implement Company against George Cupps. Judgment for defendant, and plaintiff appeals. The statement that the signing of a contract is a mere matter of form, and will entail no bother, is a mere expression of opinion and does not amount to fraud. Heyrick v. Surerns, 9 N. D. 28, 81 N. W. 36.

Action by John Cumming against the Great Northern Railway Company. Judgment for plaintiff, and defendant appeals. It is negligence to turn cattle loose in defiance of the herd law, and this alone will preclude a recovery, in the absence of a requirement of a railroad to fence its track. Hannah v. Terre Haute Ry. Co. 21 N. E. 903; Schneekloth v. C. & N. W. Ry. Co. 65 1\. W. 663; Moser v. St. P. & D. Ry.

Action by C. F. Franklin against Della P. Jameson-Wohler and others. Judgment for defendants, and plaintiff appeals. When a witness willfully swears falsely as to a material fact, his entire testimony may be disregarded, unless corroborated by other credible evidence in this case. Blotcky v. Caplan, 59 N. W. 204; Mantonya v. Reilly, 56 N. E. 425; Hill v. Montgomery, 56 N. E. 320; Freeman v. Easly, 7 N. E. 656; White v. N. Y. Cent.

Action by W. O. Baird and others against H. C. Chambers. Judgment for plaintiffs, and defendant appeals. Negligence or misconduct is the gist of liability and the burden of proving it is on the plaintiff. Shearman & Redfield on negligence (5th Ed.) section 668; Mattoon v. Fremont, Etc., Ry. Co., CO N. W. 69; Sweeny v. Merrill, 16 Pac. 454; Nass v. Schulz, 81 N. W. 133.

<p>Appeal from District Court, Rolette county; Cowan, J.</p> <p>Action by Alex. Currie and A. H. Riggs against Gaar, Scott & Co, and others. Judgment for plaintiffs, and Gaar, Scott & Co. appeal.</p>

Action by Gaar, Scott & Co. against Artheme Collin and Julie Collin. From an order vacating a default judgment plaintiff appeals. Application to vacate judgment must be made and decided within one year after notice. Sargent v. Kindred, 5 N. D. 472, 67 N. W. 826. Knowledge of entry must be shown by applicant. Judd v. Patton, 84 N. W. 199. Right to convey or incumber homestead without joinder of wife is a vested one, that cannot be destroyed by legislation.

<p>Appeal from District'Court, Traill county; But he, J.</p> <p>Action by J. K. Alstad and others against Joseph Sim and others. Judgment for defendants, and plaintiffs appeal.</p> <p>The Board of Drain Commissioners is an inferior tribunal of limited jurisdiction, possessing only powers conferred by statute. Witte v. Curtis, 56 N. W. 475; Kemp v. Adams, 73 N. E. 590; Rutherford v. Maynes, 97 Pa. St. 78.</p> <p>An assessment pursuant to unauthorized proceedings is void. Morrie v. Merrel, 62 N. W. 865; Kemp v. Adams, supra; Kenyon v. Board of Supervisors, 101 N. W. 851; Whitney v. Village of Hudson, 37 N. W. 184; Fairbanks, Morse & Co. v. City of North Bend, 94 N. W. 537; Ricketson v. City of Milwaukee, 81 N. W. 864; Le Tourneau v. Hugo, 97 N. W. 115.</p> <p>An assessment without notice is illegal and unauthorized. Cur-ran v. Board of Com’rs, 50 N. W. 237; Twp. of Whiteford v. Probate Judge, 18 N. W. 593; Cook v. Covert, 39 N. W. 47; Dietz v. City of Neenah, 64 N. W. 299; Beebe v. Magoun, 97 N. W. 986; Picton v. Fargo, 88 N. W. 90.</p> <p>Injunction is the proper remedy where property is threatened to be sold upon a void tax or assessment. Picton v. Fargo, supra; Dietz v. Neenah, supra; Power v. Larabee, 49 N. W. 724; O’Neil v. Tyler, 3 N. D. 47, 53 Ñ. W. <134; Blaser v. Ashland, 61 N. W. 77.</p> <p>Where there is failure to employ writ of certiorari and delay until issue of warrant in payment of work done, and expenses of construction incurred, equitable relief will be denied. Moore et al. v. McIntyre Drain, 68 N. W. 130; Wood et al. v. Bangs et al., 1 Dak. 179.</p> <p>Delay in seeking relief while proceedings are being had, and expenses incurred, waives equitable relief, 92 N. W. 841; Smith v. Carlow, 72 N. W. 22; Moore et al. v. McIntyre Drain, 68 N. W. 130.</p>

<p>Appeal from District Court, Nelson county; Fisk, J.</p> <p>Action by E. P. Gates against Fred A. Kelley. Judgment for defendant, and plaintiff appeals.</p>

Action by Ralph D. Ward and others against Ole Gradin. Judgment for defendant, and plaintiffs appeal. Plaintiff’s in conversion must allege their ownership and right to possession at the time of the taking. Parker v. Bank, 3 N. D. 87, 54 N. W. 313; Clendenning v. Hawk, 8 N. D. 419, 79 N. W. 878. Act organizing McLean county was unconstitutional. Richards v. Stark County, 8 N. D. '3'92, 79 N.-W. 86'3; Schaffner v. Young, 10 N. D. 245, 86 N. W. 733; State ex rel.

Action by the Moline Plow Company against Sylvester D. Bostwick and Jennie H. Abbott. Judgment for defendants, and plaintiff appeals. Appellant is only required to make a good title, at the time when, under the term of his agreement, or the equities of the case, he is to make the conveyance, to entitle him to the consideration. Andrews v. Babcock, 26 Atl. 715; Arnett v. Smith, 11 N. D. 63, 88 N. W. 1037.