Volume 16 — North Dakota Reports

Summary action for the removal of S. S. Richardson and L. B. Carroll, county commissioners of Ward county. From a judgment of removal, they appeal.

<p>Appeal from District Court, Foster County; Burke, J.</p> <p>Action by the J. L. Owens Company against Thomas Doughty. Judgment for defendant and plaintiff appeals.</p> <p>One seeking to rescind must proceed promptly and bring his notice of election home to the other party. Davis v. Reed, 37 Fed. 418; Lawrence v. Dale, 3 Johns. Ch. 23, 71 L. Ed. 529; Sweetman v. Prince, 26 N. Y. 224; Bennett v. Glaspell, 107 N. W. 45, 15 N. D. 239; Grymes v. Sanders, 93 U. S. 63, 23 L. Ed. 798; Taring-ton v. Purvis, 9 L. R. A. 607.</p> <p>Where one party to a contract fails to perform his part, the other party thereto may treat it as at an end. Barrett v. Austin, 31 Pac. 3; Lake Shore Ry. Co. v. Richards, 152 111. 59; Seymour v. Detroit Copper Mills, 22 N. W. 317.</p>

<p>Appeal from District Court, Ramsey County.; Coimn, J.</p> <p>Action by Charles C. Connolly against T. A. Luros and others. Judgment for defendants, and plaintiff appeals.</p>

Action by Amelia Tonn against Michel Tonn. Application for allowance of temporary alimony pending appeal from order granting temporary alimony and counsel fees.

Action by E. E. Cook against S. M. Lockerby and others. Judgment for plaintiff, and defendant Lockerby appeals.

Action by John Vallelly and another against the board of park commissioners of the park district of the City of Grand Forks and others. From an order sustaining a demurrer to the complaint, plaintiffs appeal. . If an independent board is in fact an agency of the municipality, the debts created by it are the debts of such municipality and must be considered in fixing its constitutional debt limit.

<p>Bills and Notes — Purchaser in Due Course — Evidence.</p> <p>1. An indorsee of a promissory note can recover thereon without showing that -he purchased the same in the due course of business, in the absence of any showing that he did not purchase the same in due course.</p> <p>Same — Presumption of Indorsee’s Good Eaith.</p> <p>2. A legal presumption exists that the indorsee purchased the same in due course of 'business, and this presumption continues, unless his title is shown to be defective through fraud or other reason.</p> <p>Judgment Notwithstanding the Verdict.</p> <p>3. A judgment notwithstanding a verdict will not be granted in every case where a directed verdict is erroneously denied. It is only when there is no reasonable probability that the defects in proof or pleading necessary to sustain the verdict can be remedied on another trial that such judgment will be ordered.</p>

<p>Appeal from District Court, Morton County; Winchester, J.</p> <p>Action by Charles A. Woodward against the Northern Pacific Railway Company. Judgment for defendant and plaintiff appeals. ,</p> <p>Allegation of ownership in fee simple is a good statement of fact. Bliss Code PL 210; Maxw. Code PL, p. 139; Ensign v. Sherman,' 14 How. Pr. 439; Rough v. Simmons, '3 Pac. 804; Gage v. Kaufman, 10 Sup. Ct. Rep. 406; Donovan v. St. Anthony Elevator 'Co., 7 ■N. D. 513, 75 N. W. 809.</p> <p>An action should not be dismissed for irregularity of practice which could be remedied by amendment without prejudice. Morgridge v. Stoeffer, 14 N. D. 430, 104 N. W. 1112.</p> <p>Purchaser of land on contract is the equitable owner and must bear all losses, whether at law or in equity. 29 Am. & Eng. Enc. of Law. 713.</p> <p>Where one cause of action requires the allegation of an assignment thereof, and another does not, an amendment substituting one for the other is not generally allowed. Barron v. Walker, 7 S. E. 272; Rapier v. Gulf, etc., Co., 69 Ala. 476; Hart v. Henderson, 66 Ga. 568; Norris v. Pollard, 75 Ga. 358; Mcllhenny v. Binz, 13 S. W. 655.</p> <p>A pleading must proceed to the end upon the theory upon which it is constructed. 21 Enc. PI. & Pr., 6449; Toledo S. L. & K. C. R. R. v.'Levy, 26 N. E. 773; Mescall v. Tully, 91 Ind. 99.</p> <p>Plaintiff, not being the owner of the alleged cause of action, when suit was begun, was properly non-suited. 16 Enc. PI. & Pr. 873; Hovey v. Sebring, 24 Mich. 232; McDowell v. Morgan, 33 Mo. '555; Hollingsworth v. Flint, 101 U. S. 591, 25 L. Ed. 1028; Dean v. Metropolitan Elevated R. Co., 119 N. Y. 540, 23 N. E. 1054.</p>

<p>Vendor and Purchaser — Title Free trom Reasonable Doubt.</p> <p>1. In an action to compel specific performance of a contract for the purchase of real property, the vendee defended upon the ground •among others, that the vendor could not transfer to him a title free from reasonable doubt in conformity to Rev. Codes 1899, section 5032. Held, that such defense was not established.</p> <p>Same — Signature by Initials.</p> <p>2. In one of the deeds in plaintiff’s chain of title the grantor signed his Christian name merely by the initials, but the body of the deed set forth his full Christian name, as well as surname. This was sufficient.</p> <p>Deeds — Description of Parties.</p> <p>3. One deed in the chain of title described the grantees as “Chauncey C., Frank E. ,and Henry S. Woodworth.” This was suffiicent to vest a two-thirds interest in Chauncey C. Woodworth and Frank E. Woodworth.</p> <p>Same —> Identity of Grantor.</p> <p>4. A deed from Henry S. Woodworth was signed “Harry” S. Woodworth, although in the body of the instrument the correct name was given. Held sufficient; the identity o>f the person being apparent.</p> <p>Specific Performance — Defective Title.</p> <p>5. The vendee was bound to point out the defects complained of in the vendor’s title, and by pointing out specific defects he waived those, if any, not mentioned by him.</p> <p>Mortgage — Merger.</p> <p>6. A mortgage appearing of record against the property is held, for reasons stated in the opinion, not to be a cloud upon plaintiff’s title.</p> <p>Specific Performance — Delay of Vendor — Time Essence of Contract.</p> <p>7. Plaintiff’s delay in furnishing title to defendant was not under the circumstances detailed in the opinion sufficient to relieve defendant .of his contract duty to accept and pay for the property. Time was not made the essence of the contract, and, further, such delay was waived by defendant.</p> <p>Vendor and Purchaser — Destruction of Property on Land Sold on Contract.</p> <p>8. A barn on the premises was destroyed by fire after the contract for deed was executed without the fault of either party, and it is held that this fact does not prevent specific performance of the contract as the loss must be borne by the vendee; he being the beneficial owner in equity of the property.</p>

<p>Appeal from District Court, Foster county; Burke, J.</p> <p>Action by M. F. Kepner against A. J. Ford. Judgment for plaintiff and defendant appeals.</p> <p>The agreement was an entirety and the whole land or none must be taken. Calmer v. Calmer et al., 106 N. W. 684; Wegner v. Lubenow, 95 N. W. 442.</p> <p>Husband and wife must sign conveyance. Helgeby v. Dammen, 13 N. D. 167, 100 N. W. 245; Teske v. Dittberner, 98 N. W. 57; Keeline v. Clark et al., 106 N. W. 257.</p> <p>Executory contract for sale of 'homestead,not signed by wife is void and no basis for specific performance and damages for breach. Clark v. Koenig, 54 N. W. 842; Meek v. Lange, 91 N. W. 695; Teske v. Dittberner, 98 N. W. 57.</p> <p>Broker’s contract with purchaser is admissible to show terms of sale. MacLaughlin v. Wheeler, 47 N. W. 816; Lawson, et al., v. Thompson, 37 Pac. 732.</p> <p>Failure of wife to join in contract with broker to sell homestead no defense to claim for commission. Hamline et al. v. Schulte, 27 N. W. 301; Love v. Miller, 53 Ind. 294; Vinton v. Baldwin, 88 Ind. 104; Hurd v. Neilson, 69 N. W. 867; Felts v. Butcher, 61 N. W. 991.</p> <p>Real estate broker not responsible for his principal’s title. Kyle v. Rippey, 20 Or. 447; Christianson v. Wooley, 41 Mo. App. 53; Barber v. Hildebrand, 42 Neb. 400.</p> <p>Defective title will not defeat broker’s claim for commissions. Roberts v. Kimmons, 65 Miss. 3-32; M'iddleton v. Findla, 25 Cal. 76; Hamline v. Schulte, 34 Minn. 534, 27 N. W. 301; See 43 L. R. A. 593; Glentworth v. Luther, 21 Barb. 145; Canker v. Apple, 15 Col. 141; Jarvis v. Sdhrefer, 105 N. Y. 289; Barthell. v. Peter, 88 Wis. 316.</p> <p>Contract with broker to sell in specified time cannot be revoked so as to defeat his commission. Canfield v. Orange, 13 N. D. 622, 102 N. W. -313; Glover v. Plenderson, 120 Mo. 367; E'hrlick v. Insurance Co., 88 Mo. 249; Kirk v. Hartman, 63 Pa. 97; Durkee v. Gunn, 41 Kan. 496; Vincent v. Woodland Oil Co., 165 Pa. 402; Stringfellow v. Powers, 4 Tex. App. 199.</p>

<p>Appeal from District Court, Foster County; Burke, J.</p> <p>Action by Peter P. Zink against James W. Lahart. Judgment for plaintiff. Defendant appeals.</p> <p>Where there is conflict of testimony case must go to jury. 1 Thompson on Trials, 1037; 30 Am. & Eng. Enc. of Law, 1063; Slattery v. Donnelly, 1 N. D. 264, 47 N. W. 375; McRea v. Hillsboro Nat’l Bank, 6 N. D. 353, 70 N. W. 813-; Vickery v. Burton, 6 N. D. 245, 69 N. W. 193; Cameron v. G. N. Ry. Co., 8 N. D. 124, 77 N. W. 1016; Pylce v. Jamestown, 15 N. D. 157, 107 N. W. 359; Heckman v. Evanson, 7 N. D. 173, 73 N. W. 427; Sioux City & Pac. R. R. Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745.</p> <p>It is error for the court during the examination of a witness to impose upon the jury by words or conduct his own belief as to the credibility of the witness. 30 Enc. of Law 1066 ; McMinn v. Wheelan, 27 Cal: 300; Barlow Bros. v. Parsons, 49 Atl. 205; State v. Lucas, 33 Pac. 538:</p> <p>A trial court should not express its opinion as to the credibility of witnesses or the weight of their testimony, and the expression of such opinion is held to be material error for which the judgment may be reversed. 21 Enc. of PI. and Pr. 997; Sharpe v. State, 10 S. W. 228; People v. Vindleberger, '34 Pac. 852; Hudson v. Hudson, 16 S. E. 349; Feinber v. People, 51 N. E. 798; People v. Hare, 57 Mich. 505, 24 'N. W. 843; Cronkhite v. Dickinson, 16 N. W. 371; State v. Allen, 69 N. W. 274.</p> <p>It is the court’s duty to direct a verdict, when -it would be compelled to set aside one other than that so directed. 46 Cent. Dig. Sec. 392, Col. 1252. ‘</p> <p>The court should have been asked to submit the case, and have pointed out the testimony relied upon. 2 Cent. Dig. Col. 1770, Sec. 1395, etc.</p>

<p>Appeal from District Court, McLean County; Winchester, J.</p> <p>Action by O. W. Kerr against Neis O. Herred. Judgment for defendant and plaintiff appeals.</p>

<p>Appeal from Dictrict Court, McLean County; Winchester, J.</p> <p>Action by O. W. Kerr against P. A. Sunstrum. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, McLean County; Winchester, J.</p> <p>Action by O. W. Kerr against Frank Swanson. Judgment for defendant, and plaintiff appeals.</p>

<p>Negligence — Pleading — Plaintiff Must Recover, If at All, on Act Complained of.</p> <p>1. A complaint in an. action to recover damages for negligence must state the act of negligence complained of, and the plaintiff must recover, if at all, upon the particular act of negligence stated in the complaint.</p> <p>Carriers — Question of Negligence Submitted to Jury.</p> <p>2. Evidence examined, and held to be sufficient, under the rule heretofore established by this court, to require a submission to the jury of the question of defendant’s negligence as alleged in the complaint.</p> <p>Same.</p> <p>3. It was properly a question for the jury to say under all the evidence whether or not plaintiff was guilty of negligence contributing to the injury complained of.</p>

<p>Pleading Foreign Justice’s Judgment.</p> <p>1. A complaint in an action upon a judgment of a justice o.f the peace of a sister state which fails to allege specifically the facts showing that such court had jurisdiction, both of the subject matter and of the person of the defendant, or that such judgment was “duly given or made,” as provided in section 6871, Rev. Codes 1905, or words of the exact equivalent, fail to state facts sufficient to constitute a cause of action.</p> <p>Proof of Foreign Justice’s Judgment — Authenticated Copy Insufficient.</p> <p>2. A judgment rendered by a justice of the peace of a sister state cannot be proved in this state by an authenticated copy of the record of such justice’s court, as neither the act of Congress (Rev. St. section 905 [U. S. Comp. St. 1901, page 677]) nor section 7292, Rev. Codes 1905, relates to the authentication of copies of records of courts of limited jurisdiction in other states.</p> <p>Same — Transcript of Judgment.</p> <p>3. A transcript of this judgment having been filed in the office of the clrek of the district court in the county where rendered, it was sought to prove the same by an authenticated copy of the records of the district court, but this was equally inadmissible.</p>

<p>Equitable Mortgage — Form of Instrument.</p> <p>1. An instrument in form a chattel mortgage, but evidently intended by the parties as security on real property, will be construed to be an equitable mortgage, and will be enforced as such as between the parties thereto and those having notice thereof.</p> <p>'Same — Reformation Not Necessary to Foreclose.</p> <p>2. It is not necessary to reform such instrument in order to enforce the same in a suit in equity.</p>

<p>Appeal from District Court, Traill County; Pollock, J.</p> <p>Action by Joseph Sim and others against John K. Rosholt. Judgment for plaintiffs, and defandant appeals.</p> <p>A petitioner can withdraw his name before the petition is acted upon. Mack v. Polecat Drainage Dist., 74 N. E. 691; Littel v. Board of Supervisors, 65 N. E. 78; Black v. Thompson, 13 N. E. 409; LaLonde v. Board of Supervisors, 49 N. W. 960; State v. Board of Supervisors, 60 N. W. 266; Slingerland v. Norton, 61 N. W. '322; State v. Commissioners, 4 N. W. 373.</p> <p>Petitioners may withdraw their names if they move before the board rules upon the sufficiency of it, otherwise their right is waived. Black v. Thompson, 13 N. E. 409; Seibert v. Lovell et al., Supervisors, 61 N. W. 197; Erickson v. Cass County, 11 N. D. 494, 92 N. W. 841; Alstad v. Sim, 109 N. W. 66, 15 N. D. 629; Currie v. Paulson, 45 N. W. 854; Gerber v. Board of Com., 94 N. W. 886; Damrell v. San Joaquin Co., 40 Cal. 154; In re Grove St., 61 Cal. 438; Far. & Mer. Bank v. Board of Equalization, 32 Pac. 312.</p>

<p>Appeal from District Court, Stutsman County. Pollock, J.</p> <p>Albert F. Werner was convicted of rape in the first degree, and appeals.</p> <p>If the juror discloses, that he cannot try the case impartially, uninfluenced by his preyious opinion, he should be rejected. 1 Thompson on Trials, section 83; People v. Wilwarth, 156 N. Y. 566; State v. Riley, 78 Pac. 1001; People v. Suesser, 64 Pac. 1095.</p> <p>A child witness with no realization of the obligations of an oath, and of low degree of intelligence, mental development and training even for a child of tender age, is incompetent. Morey v. Hoyt, 19 L. R. A. 611.</p> <p>In .prosecution for rape, the mere fact that the prosecutrix made complaint is all that is necessary or admissible to prove. 3 Greenleaf on Ev., section 213; People v. Mayes, 6 Pac. 691; People v. Stewart, ■32 Pac. 8; Ellis v. State, 6 So. 768; Stephen v. State, 11 Ga. 225; Thompson v. State, 38 Ind. 39; State v. Shettlesworth, 18 Minn. 208 (Gil. 191) ; Baccio v. People, 41 N. Y. 265; Kirby v. Territory, ,28 Pac. 1134; State v. Ivius, 36 N. J. L. 233; Reddick v. State, 34 S. W. 274; State v. Carroll, 32.Atl. 235; Lee v. State, 74 Wis. 45; Parker v. State, 10 Atl. 219.</p> <p>In rebuttal, only rebuting testimony should be received, unless for good reasons in furtherance of justice, or to cure an evident oversight, the court permits evidence as in the original case. Rev. Codes, 1905, section 9984; People v. Quick, 25 N. W. 302; Reddick v. State, 16 So. 490; State v. Hunsaker, 19 Pac. 605; Williams v. Com. 14 S. W. 595.</p> <p>If the court is satisfied that the juror can and will try the case impartially, notwithstanding that he may have heard statements, etc., he should be sworn. Rev. Codes, 1905, section 9975; Jones v. People, 5 Col. 48; Com. v. Webster, 5 Cush. 295; 1 Thompson on Trials, 79, 80, 81, 82 and 83; People v. Reynolds, 16 Cal. 129; People v. Symonds, 22 Cal. 349; State v. Dorsey, 5 So. 26; Guetig v. State, 66 Ind. 94, 32 Am. Rep. 99; State v. Field, 56 N. W. 276; Gillhooley v. State, 58 Ind. 182; State v. Rose, 32 Mo. 346; State v. Wilson, 85 Miss. 135; State v. Ployt, 48 Conn. 518; State v. Reed, '89 Mo. 168, 1 S. W. 225; State v. Ekanger, 8 N. D. 559, 80 N. W. 482.</p> <p>The discretion of the court in admitting the testimony of witness 8 years old' was carefully, judicially and fairly exercised. State v. Reddington, 64 N. W. 170; State v. Michael, 19 L. R. A. 605; Wig-more on Evidence, Vol. 1, sections 505, 506 and 509,1820, 1821.</p> <p>Prisoner’s statement by reference is the same as if made by himself. Wigmore on Evidence, Vol. 2, section 1069 and 1070; Green-leaf on Evidence, Vol. 1, section 182; Stevens on Evidence, artide 19; Jones on Evidence, section 265; Chapman v. Twitchell, 37 Me. 59, 58 Am. Dec. 773; Duval v. Covenhoven, 4 Wen. (N. Y.) 564.</p> <p>Party may waive the right to have privileged statements excluded. 4 Wigmore on Evidence, section 2388; 3 Jones on Evidence, section 779 ; Gillette on Indirect and Collateral Evidence, section 111; Wharton on Criminal Evidence, section 663.</p> <p>Prosecutrix’s statements made after the offense may be proven in detail and identity'of person proven. State v. Cook, 61 N. W. 185; State v. Watson, 46 N. W. 868; State v. Hutchinson, 64 N. W. 611; State v. Peterson, 82 N. W. 329; 4 Blk. Com., section 213; Brown v. People, 36 Mich. 203; 2 Crim. Reports, 586; People v. Goulette, 45 N. W. 1124; McCombs v. State, 8 Ohio 643.</p> <p>Particularly where the prosecutrix is of tender years. Territory v. Keyes, 5 Dak. 244, 38 N. W. 440; Territory v. Godfrey, 6 Dak. 481, 50 N. W. 481; People v. Glover, 38 N. W. 874; People v. Brown, 19 N. W. 172; Planan v. State, 36 N. W. 1; Proper v. State, 55 N. W. 1035; People v. Gage, 28 N. W. 835; State v. Andrews, 105 N. W. 215; State v. Peres, 71 Pac. 162.</p> <p>Delay in making the complaint only affects the credibility of the witness. State v. Neel, 60 Pac. 510; State v. Wolf, 92 N. W. 673 ; State v. Halford, 54 Pac. 819; Trimble-v. Territory, 71 Pac. 932; 19 Am. & Eng. Enc. Law (1st Ed.), page 961; 2 Wigmore on Evidence, section 1135.</p> <p>Details of complaint are admissible when it is sought to impeach prosecutrix, or a portion of details is brought out on cross-examination. 1 Elliott on Evidence, section 566; 3 Greenleaf on Evidence, section 213; 4 Elliott on Evidence, section 3099; 4 Elliott on Evidence, section 3102; Wood v. State, 64 N. W. 355; State v. Neel, 60 Pac. 510; Territory v. Maldonado, 58 Pac. 350; State v. DeWolfe, 8 Conn. 93;.19 Am. & Eng. Enc. Law (1st Ed.), page 960; Griffin v. State, 76 Ala. 29.</p>

<p>Mandamus is a Special Proceeding — Trial Be Novo.</p> <p>1. A mandamus proceeding is not an action under sections 6741, -6742, and 6743, Rev. Codes 1905, being a special proceeding. Under section 7229, Rev. Codes 1905, -only actions are triable de novo in the Supreme Court, and this does not contemplate the trial de novo of special proceedings.</p> <p>Same — Review — Statement of the Case.</p> <p>2. A statement of the case on appeal in a mandamus proceeding which does not contain specifications of error does not admit of a review of anything except the judgment roll.</p> <p>'County Superintendent — Term of Office.</p> <p>3. Under the statute of this state providing that the term of office of the county superintendent of schools shall be two years, commencing on the first Monday in January following his election, and until his successor is elected and qualifies, a duly elected and qualified and acting county superintendent of schools continues such superintendent until his success or is elected and qualifies.</p> <p>Samo — Compensation.</p> <p>4. A county superintendent, lawfully holding over after the expiration of two years from his qualification as superintendent, and continuing to perform the duties of the office, is entitled to the compensation provided by law for the incumbent of such office.</p>

<p>Appeal from District Court, Ramsey County; Cowan, J.</p> <p>Action 'by Gunhild K. Fjone against Hans O. Fjone. From a judgment in favor of plaintiff, defendant appeals.</p> <p>Weakness of mind not presumed from age alone. In re Dis-brow’s Estate, 24 N. W. 624; S'heperdson v. Potter, 18 N. W. 575.</p> <p>Undue influence must amount to force or coercion. Layman v. Conroy, 60 Md. 286; Latham v. Udell, 38 Mich. 238.</p> <p>Liberty to obey the voice of justice, dictates of kinship and benevolence, claims of kindred in disposing of property, must be recognized. Wallace v. Harris, 32 Wis. 297; Dailey v. Kastell, 14 N. W. 635; Marking v. Marking, 82 N. W. 133; Smith v. Smith, 19 N. W. 47; Giles v. Hodge, 43 N. W. 163; Montague v. Allen, 78 Va. 592; Post v. Mason, 91 N. Y. 5'39; Carter v. Dickson, 69 Ga. 82; Creswell v. Welchman, 30 Pac. 553.</p> <p>Fraud and undue influence must be directly connected with the execution of the instrument. Guild v. Hull, 20 N. E. 665; Shea v. Murphy, 45 N. E. 1021; Pittenger v. Pittenger, 70 N. E. 699.</p> <p>Where a person rendering service is a member of the family of the person served, as a child, relative or visitor, such service is presumed gratuitous, unless express contract is shown. Cowan v. Mus-grave, 35 N. W. 496; Moyer’s Appeal, 3 Atl. 811; Wall’s Appeal, 5 Atl. 220; Sawyer v. Herbrand, 3 Atl. 529; Leary v. Leary, 32 N. W. 623 ; Dodson v. McAdams, 2 S. E. 453 ; Allen v. Allen, 27 N. W. 702.</p> <p>Equity will closely scrutinize contracts between persons in confidential relations, and set them aside in the absence of a showing ■of good faith. Brummond v. Krause, 8 N. D. 573, 80 N. W. 686; Kerr on Fraud and Mistake, 150, 152; Leighton v. Orr, 44 Iowa 679; Tucke v. Bucholz, 43 Iowa 415; Gardner v. Lightfoot, 32 N. W. 510; Sprague v. Hall, 17 N. W. 743; Thorn v. Thorn, 16 N. W. 324; Cole v. Getzinger, 71 N. W. 75 ; Davis v. Dean, 26 N. W. 737.</p>

<p>Appeal from District Court, Williams County; Goss, J.</p> <p>Action by the state, on the relation of Mary Harvey, against Frank Davies. Judgment for plaintiff, and defendant appeals.</p>

<p>Bills and Notes — Inability of Indorser — Presentment and Notice.</p> <p>1. An indorsement of a promissory note creates no liability of itself, and the indorser is not liable on the indorsement until presentment to the maker and notice to the indorser of such presentment.</p> <p>Same.</p> <p>2. A person not a party to a promissory note, who indorses the same, assumes the obligations of an indorser only, and not those of a guarantor.</p> <p>Same —• Findings.</p> <p>3. Findings of fact and conclusions of law considered, and held not to sustain the judgment rendered thereon.</p>

<p>Public Hands — Boundaries — Evidence of Monuments Prevails Over Field._Notes and Plats.</p> <p>1. In all cases of disputed boundary lines, evidence of the location of the original monuments which were established by the government surveyors control over plats, field notes, and all other evidence as to the proper location of such lines, when the point where such monuments were thus located can be definitely established.</p> <p>Trial — Directing Verdict — Conflict of Evidence.</p> <p>2. There was a substantial conflict in the evidence as to whether the original government monument marking the south end of the quarter section line between the lands of plaintiff and defendant was established at 'the point contended for by the plaintiff or at the point contended for by defendant, and hence it was error to direct a verdict.</p>

<p>Appeal from District Court, Grand Forks County; Fisk, J.</p> <p>Action by the county of Grand Forks against E. B. Fredericks and others. Judgment for defendants, and plaintiff appeals.</p> <p>The symbols “N” for north and "S” for south, etc., are sufficient in describing land for taxation. Beggs v. Paine, 15 N. D. 436, 109 N. W. 322; Stoddard v. Lyon, 99 N. W. 1116; Chestnut v. Harris, 43 S. W. 977; Auditor General v. Sparrow, 74 N. W. 881; Taylor v. Wright, 13 N. E. 529.</p> <p>A description is sufficient if it affords notice and protects owner’s rights. Kershaw v. Jansen, 68 N. W. 616; Colcord v. Alexander, 67 111. 581; Stevens v. Wait, 112 111. 544; Taylor v. Wright, supra.</p> <p>If it enables a surveyor to identify the land. Law v. People, 80 111. 268; Fowler v. People, 93 111. 116; People v. Stahl, 101 111. 346; Cairo V. & C. Ry. Co. v. Mathews, 38 N. E. 623; Koehling v. People, 63 N. E. 735; Plarts v. Mackinack Island, 92 N. W. 351; Wash. T. & L. Co. v. Smith, 76 Pac. 267; Douglas v. Byers, 76 Pac. 432.</p> <p>It is competent for legislature to pass curative acts, like Ch. 166, Laws of 1903. Wells County v. McHenry County, 7 N. D. 246, 74 N. W. 241; State Finance Co. v. Mather, 15 N. D. 386; 109 N. W. '350; Dever v. Cornwell, 10 N. D. 123, 86 N. W. 227; Black on Tax Title, 482, 483 and 487; Cooley on Taxation (2d Ed.), p. 297.</p> <p>Failure to verify assessment roll is fatal to tax. Silsbee v. Stockle, 7 N. W. 160; Clarke v. Crain, 76 Am. Dec. 775; Deckison v. Reynolds, 12 N. W. 25; Lee v. Crawford, 88 N. W. 97; Eaton v. Bennett, 87 N. W. 188.</p> <p>Not to be urged in equitable action. Farrington v. New England Investment Co., 45 N. W. 191; Douglas v. City of Fargo, 13 N. D. 467, 101 N. W. 919.</p> <p>May be validated by a curative act. State Finance Co. v. Mather, 15 N. D. 386, 109 N. W. 350; Beggs v. Payne, 15 N. D. 436, 109 N. W. 322.</p> <p>Where there is no assessment or no levy, action cannot be barred by a limitation act without adverse possession. Nind v. Myers, 15 N. D. 400, 109 N. W. 335; State Finance Co. v. Mather, 15 N. D. 386, 109 N. W. 350; Black on Tax Titles, Sec. 89, Sec. 387.</p>

<p>Appeal from District Court, Walsh County; Goss, J.</p> <p>Action by O. H. Omlie against Ann O’Toole and others. Judgment for plaintiff, and defendants appeal.</p> <p>Under device of conforming pleadings to proof, new cause of action cannot be introduced. Freeman v. Grant, 132 N. Y. 22; Arnold v. Angel, 62 N. Y. 508; McMlchael v. Kilmer, 76 N. Y. 156; Barnes v. Quigley, 59 N. Y. 265; Allen v. Brooks, 50 N. W. 253; Lewark v. Carter, 20 N. E. 119; 1 Enc. PI. & Pr. 583; Southwich v. First National Bank, 84 N. Y. 420; Mares v. Warrington, 8 N. D. 329, 79 N. W. 441; 1 Enc. PI. & Pr. 548, 549; Reeder v. Sayre, 70 N. Y. 190; Button v. Towboat Line, 40 Hun. 422; Davis v. Iowa State Ins. Co., 25 N. W. 745; Burns v. Schreiber, 51 N. W. 120.</p> <p>The husband, without his wife’s consent, cannot mortgage the homestead, extend or enlarge terms of mortgage thereon, prolong the statute of limitations upon it, or otherwise change its legal effect. Dunn v. Buckley, 46 Wis. 190, 14 N. W. 67; Jenkins v. Simmons, 37 Kan. 496, 15 Pac. 522; Barber v. Babel, 36 Cal. 11; Spencer v. Fredendall, 15 Wis. 666; Campbell v. Babcock, 27 Wis. 512; Hardman v. Portsmouth Bank, 61 Pac. 984; Cumps v. Kovo, 80 N. W. 937; Wood v. Goodfellow, 43 Cal. 185; Waples'on Homesteads and Exemptions, p. 420.</p> <p>■ A mortgage can be renewed or extended only by writing, with all the formalities of a grant. People’s State Bank of Lakota v. Francis, 8 N. D. 369, 79 N. W. 853; Stoddart v. Hart, 23 N. Y. 557; London & San Francisco Bank v. Bandman, 52 Pac. 583; Wells v. Harter, 56 Cal. 342.</p> <p>A lien limited to a particular debt cannot be extended to cover another. Locke v. Hubbard, 69 N. W. 588; Nevan v. Roup, 8 la. 207; Hathaway v. Fall River Bank, 131 Mass. 14; Jarvis v. Rogers, 15 Mass. 3189; Jones on Liens, section 15; section 4686 Rev. Codes of 1899.</p> <p>A mortgage is a mere incident to a debt and is extinguished by a payment thereof. Sections 4694 and 4707 Rev. Codes (N. D.) 1899; McMillen v. Richards, 9 Cal. 365; Goodnow v. Ewer, 16 Cal. 461; Skinner v. Buck, 29 Cal. 253; Drake v. Root, 2 Colo. 685.</p> <p>Even if it is in the form of a deed. 20 Enc. of Law (2nd Ed.) 981; Anderson v. Neff, 11 S. & R. 222; Wentz v. DeHaven, 1 S. & R. 311; Monson v. Monson, 30 Conn. 425; Nichols v. Cole, 3 Head, 92; Grover v. Flyre, 5 Allen, 543; Merrill v. Chase, 3 Allen, 339.</p> <p>Amount paid for taxes cannot be secured by the quit claim deed. 24 Enc. Law (2d Ed.) 190; Briley v. Cherry, 2 Div. L. 2; 18 Am. Dec. 561; Costello v. Burks, 19 N. W. 247; Wilson v. Campbell, 33 Ala. 249; Snodgrass v. Bank, 25 Ala. 161, 60 Am. Dec. 505. .</p> <p>Plaintiff suing an administrator, cannot prove decedent’s signature by his own testimony. Regan et al., Executor, v. Jones, It N. D. 591, 105 N. W. 613; Holiday v. Kinne, 22 Fla. 153; Jones on Evidence, section 793; In re. Toomey Estate, 150 Pa. St. 535; Holcomb v. Holcomb, 95 N. Y. 325; Cunningham’s Adm’r v. Speagle, 50 S. W. 244; Montague v. Thompson, 91 Tenn. 168: Harte v. Reichenberg, 92 N. W. 987; Gist v. Gaus, 30 Ark. 285; Robinson v. Dugan, 35 Pac. 902; Quarrier’s Arm’rs v. Quarrier’s Heirs, 15 S. E. 154; Jones on Evidence, 793.</p> <p>A person interested in the event of an action cannot testify as to transactions with deceased. U. S. Loan Co. v. Bitzer, 78 S. W. 183; Board of Com. Louisville v. 'Marret, 80 S. W. 166; McCowan v. Davenport, 47 S. E. 27; Garritson v. Kinkead, 92 N. W. 55, Pym v. Pym, 96 N. W. 429; Anderson v. Laugen, 99 N. W. 437; Jones v. Riley, 66 N. E. 649; Patton v. Fox, 69 S. W. 287; Swivel v. Hougan, 42 S. E. 151.</p> <p>If essential averments are omitted from complaint, but supplied by the answer, defect in complaint is cured. Bennett v. Phelps, 12 Minn. 326; Shartle v. Minneapolis, 17 Minn. 308; Rollins v. St. Paul Lbr. Co., 21 Minn. 5; Warner v. Lockerby, 8 N. W. 879; Irwin v. Paulett, 1 Kan. 418; Bierer v. Fretz, 32 Id. 329; Riggs v. Maltby, 59 Ky. 88; Miller v. White, 4 Hun. 62; Erwin v. Schaffer, 72 Am. Dec.-613.</p> <p>Power to amend should be liberally exercised. Anderson v. First National Bank, 5 N. D. 80, 64 N. W. 114; Martin v. Luger Furn. Co., 8 N. D. 220, 77 N. W. 1003; Lyons v. R. L. & S. Bk., 12 S. E. 882; Waterbury v. Fisher, 38 Pac. 846; Patterson v. Johnson, 73 N. E. 761; Stephenson v. Stephenson, 72 S. W. 742; Freeman v. Pullen, 31 So. 451; Brainard v. ’Burk, 148 U. S. 99, 46 L. Ed. 449; Tennant v. Dunlop, 33 S. E. 620; Harrison v. Yer-by, 14 So. 321; Milner v. Stanford, 14 So. 644; Fite v. Kennemer, 7 So. 920; Moore v. Alvis, 54 Ala. 356.</p> <p>An instrument in form a deed may be a mortgage by oral defeasance. Patnode v. Deschenes, 106 N. W. 573, 15 N. D. 100; O’Toole v. Omlie, 8 N. D. 444, 79 N. W. 849.</p> <p>Extension of debt does not extend the mortgage securing it, so as to' release a surety. People’s State Bank of Lalcota v. Francis, 8 N. D. 3-69, 79 N. W. 853; Roberts v. Roberts, 10 N. D. 531, 88 N. W. 289; Patnode v. Deschenes, supra.</p>

<p>Abatement — Former Action Pending.</p> <p>1. Plaintiff recovered judgment in justice court for possession of certain premises and for rent up to a specified period. Defendant appealed from the judgment to the district court, and gave an approved supersedeas bond for stay of execution, and said appeal was pending and undetermined when plaintiff commenced another action for possession of the same premises against the same defendant and for rent from .the time of the recovery thereof in the former action. Defendant pleaded the pending of the former action in his answer. Held, that the former action was a bar to the second one.</p> <p>Same —■ Identity of Canse of Action.</p> <p>2. When the second action is based on substantially the same state of facts as the first, the second action will be dismissed as vexatious.</p> <p>Appeal — Irregularities — Motions — Waiver.</p> <p>3. Irregularities in the certificate of the trial judge to the judgment roll are of no avail to the respondent in this court, whin not raised by a motion before the appeal is submitted on the merits.</p> <p>Same — Objections Not Raised Below.</p> <p>4. Indefiniteness in a stipulation under which evidence is received on the trial in the district court cannot be taken advantage of on appeal, unless based on some objection or motion made in the trial court.</p>

<p>Appeal from District Court, Stutsman County; Fisk, J.</p> <p>Action by Eula L. McLain against H. Nürnberg. Judgment for plaintiff, and defendant appeals.</p> <p>There can -be no recovery of damages without recovery of possession. 13 Am. & Eng. Enc. of Law (2nd Ed.) 773; Caulfield v. Stevens, 28 Cal. 118; McCleary v. Crowley, 56 Pac. 227.</p> <p>If notice to quit is prematurely served it is void. King v. Connolly, 51 'Cal. 181; Martin v. Splivale, 56 Cal. 128; Douglas v. Parker, 5 Pac. 178.</p> <p>Notice must be proven on the trial. Stullor v. Sparks, 31 Pac. 301; Douglas v. Parker, 5 Pac. 178.</p> <p>Notice and proof of service must be filed with the justice before summons is issued. N. W. Loan & Banking Co. v. Jonason, 82 N. W. 94; Vidger v. Nolin, 10 N. D. 353, 87 N. W. 593; Murry v. Bupris, 6 Dak. 170, 42 N. W. 25.</p> <p>Action must commence within a reasonable time after notice. Douglas v. Parker, 5 Pac. 178.</p> <p>To end a tenancy for breach of covenant demand of performance is necessary. 8 Am. & Eng. Enc: Law (1st Ed.) 140; 9 Enc. PI. & Pr. 56; Brummagim v. Spencer, 29 Cal. 662.</p> <p>The recitals of a receipt given on check accepted for a disputed claim are conclusive in the absence of fraud or mistake. Rapp v. Giddings, 57 N. W. 237; Guldager v. Rockwell, 24 Pac. 556; Squires v. Amherst, 13 N. E. 609; Abon v. Rathbone, 8 Atl. 611. Right to recover rent and damages depend upon the right to possession. McCleary v. Crowley, supra; Murry v. Burris, supra.</p> <p>Amended papers must be verified and served. Satterlund v. Beal, 12 N. D. 122, 95 N. W. 518.</p> <p>A judgment upon an excessive verdict cannot stand. Hammond v. Jewett, 35 N. W. 188; Cummins v. Scott, 20 Cal. 84; Gyle v. Shoenbar, 23 Cal. 536.</p> <p>Appellate court will not investigate merits where there are no longer merits to investigate. In re Kaeppler, 7 N. D. 307, 75 N. W. 253; 2 Enc. PI. & Pr. 344; Rolette County v. Pierce County, 8 N. D. '613, 80 N. W. 804.</p>

<p>Appeal from District Court, Williams County; Goss, J.</p> <p>Proceedings by the state, on the relation of Mary Harvey against George W. Newton. From the judgment adjudging defendant guilty, he appeals.</p> <p>Affidavit in contempt proceedings must be distinct and positive, not upon information and belief. State v. Root, 5 N. D. 487, 67 N. W. 590; State v. Crum, 7 N. D. 299, 74 N. W. 992; Township of Noble v. Aasen, 10 N. D. 264, 86 N. W. 742; Kaeppler v. Red River Bank, 8 N. D. 406, 79 N. W. 869; State v. McGahey, 12 N. D. 535, 97 N. W. 865; Freeman v. City of Huron et al., 66 N. W. 928; Ludden v. State, 48 N. W. 61; Herdmann v. State, 74 N. W. 1097; Whitten v. State, 36 Ind. 196; McConnell v. State, 46 Ind. 298; State v. Sweetland, 54 N. W. 415; Thomas v. People, 23 Pac. 326; Parkhurst v. Kinsman, 2 Blatchf. 76 Fed. ' Cases No. 10759; Sargeant v. Warren, 22 Wky. Dig. 473.</p> <p>The proceeding is criminal and must be carried on in the name and by authority of the state. Township of Noble v. Aasen, supra; State v. Root, supra; State v. Crum, supra; Kaeppler v. Bank, supra; State ex rel. Edwards v. Davis, supra; Haight v. Lucia and another, 36 Wis. 355; Cook et al. v. People, 16 111. 534; Beattie v. People, 33 111. App. 651; Rawson v. Rawson, 35 111. App. 505; Arnold v. Com., 80 Ky. '300; Nelson v. Ewell, 2 Swan Tenn. 271.</p> <p>Defendant having appeared and plead- guilty -cannot object to the jurisdiction of his person. Caspar v. State, 27 Ohio St. 572; State v. Knowles, 34 Kans. 393.</p> <p>Contempt proceedings are characterized by the absence of formal pleadings. Bank v. Buck, 60 111. 105; Holman v. State, 105 Ind. 513.</p>

<p>Prerogative Writ — Quo Warranto — Relation of Private Person.</p> <p>1. Application is made -to this court by a private relator for the issuance of a writ in the nature of quo warranto directing the defendants, w-ho are acting as county officials -of McKenzie county, to desist from exercising jurisdiction and authority over the territory included in such county, basing such application upon the ground of the unconstitutionality of chapter 73, p. 155, of the Laws of 1905. The application is resisted by the defendants and also by the Attorney General.</p> <p>Held, following the rule announced in Statev. McLean county, 11 N. D. 356, 92 N. W. 385, that such writs will only be issued by this court as prerogative writs, and will not be issued at the request of a private relator, except in very exceptional cases.</p> <p>Same — Writ Discretionary —■ Public Policy.</p> <p>2. Held, also, that the issuance of such writs by this court is wholly discretionary, and that applications therefore should be denied upon the grounds of public policy, where, as in this case, the issuance thereof would result in no perceivable benefit to the relator or to any other person, but would, on the other hand, result in great detriment to a large number of people, and would undoubtedly lead to much strfe, confusion and litigation.</p>

<p>Appeal from District Court, Sargent County; Allen, J.</p> <p>Action by Anderson & Jorgenson against H. C. Johnson. Judgment for plaintiffs and defendant appeals.</p> <p>In the absence of stipulations to the contrary, a contract to sell land implies a marketable title. McLaughlin v. Wheeler, 47 N. W. 816; Loan Co. v. Thompson, 5 So. 473; Roberts v. Kimmons, 3 So. 736; Greusel v. Dean, 67' N. W. 275; Garnhart v. Rentchler, 72 111. 535.</p> <p>If the seller closed a sale to the broker’s 'customer on any terms, the broker’s commission is earned. Ward & Murray v. McQueen, 13 N. D. 153, 100 N. W. 253; Hubachek v. Hazzard et al., 86 N. W. 426; Mattes v. Engel et al., 89 N. W. 651; Huntemer v. Arent, 93 N. W. 653.</p> <p>On sufficient evidence to sustain the decision, it is not error to direct a verdict. McCom'b v. Bakerville, 106 N. W. 300.</p>

<p>Appeal from District Court, Cass County; Pollock, J.</p> <p>Herman H. Seelig was convicted of selling intoxicating liquors, and appeals.</p>

<p>Appeal from District Court, Nelson County; Fisic, J.</p> <p>Action by A. E. Sheets against W. B. Prosser. From an order overruling a demurrer to the complaint, defendant appeals.</p> <p>Uniting action to quiet title with one for a forfeiture is a misjoinder. Rev. Codes 1905, section 6877; Jasper v. Hazen, 2 N. D. 401, 51 N. W. 583, 23 L. R. A. 58.</p> <p>Where plaintiff’s bill to quiet title shows a valid interest in the defendant it is demurrable. 17 Enc. PL & Pr. 336. Sub. Div. 5, Id. 340.</p> <p>Failure to foreclose a lien upon demand to do so, destroys not the lien, but the remedy; and when seeking to quiet title against the lien, plaintiff’s bill must show offer to do equity or it is demurrable. 16 Cyc. 140 (M), note 64; Id. p. 141; Walsh v. Braman, 43 N. E. 597; Railway Co. v. Gurley, 47 S. W. 513.</p> <p>One seeking to recover a penalty or forfeiture, must count upon the statute affording it. Rev. Codes 1905, section 7396; Greenberg v. Union Natl. Bank, 5 N. D. 483, 67 N. W. 597; Erickson v. Citizens Natl. Bank, 9 N. D. 83, 81 N. W. 46; 18 Am. & Eng. Enc. Law (1st Ed.), 278.</p> <p>Failure of one demanding satisfaction of lien to provide for cost destroys his claim. Dunkin v. Mutual Ben. L. Ins. Co., 63 Mo. App. 257.</p> <p>Complaints in such cases are construed with the strictness applied to indictments. Prigmore v. Thompson, 1 Minor 420; Levy v. Cohen, N. Y. S. 912; State v. Williams, 8 Tex. 255; Ferrett v. Atwell, 1 Blatch. 151; People v. Ins. Co., 72 111. App. 569.</p> <p>The actions to quiet title and to recover the statutory penalty ■“arise out of the same transaction” and are properly joined. Sec. 6877, Rev. Codes 1905; Bush v. Froelick, 66 N. W. 939; Tripp v. 'City of Yankton, 74 N. W. 447; Pomeroy Remedies 463, 475; Sternberger v. McGovern, 56 N. Y. 12; First Div. St. P. & P. R. Co. v. Rice, 25 Minn. 278; Gertler v. Linscott, 26 Minn. 82; Humphrey v. Merriam, 37 Minn. 502.</p> <p>Failure to foreclose lien upon demand forfeits it. Jones & McGee Lumber Co. v. Boggs, 19 N. W. 678.</p>

<p>Seed Liens — Different Kind of Seed Furnished.</p> <p>1. Whether, under the seed lien law of this state, a person furnishing two or more kinds of seed grain to another under one entire contract may perfect a lien which will be effective upon all the crops ■produced from the seed thus furnished for the entire purchase price thereof, not determined.</p> <p>Same.</p> <p>2. Plaintiff, under a verbal contract sold and delivered to S. 200' •bushels of seed wheat at 75 cents per bushel and 60 bushels of seed flax at $2 per bushel, and filed one lien statement for the total purchase price, claiming a lieu indiscriminately upon the crops produced from such seed for the entire amount due him under the contract, but stating the number of bushels of each kind of grain and the price per pushel. Held, that the contract is not entire, but is divisible, and that plaintiff’s lien is therefore divisible, and should be construed as two liens; one upon the wheat for the value of the wheat-seed furnished, and the other upon the flax for the value of thg flax seed furnished.</p> <p>Samo — Tien Whether Seed is Sown or Not.</p> <p>3. Under the seed lien statute of this state (sections 6271, 6272, Rev. Codes 1905), a person who in good faith furnishes seed grain to another is entitled to a lien for the entire purchase price of such seed upon the crop produced therefrom, whether all of such seed is-sown or not.</p> <p>Same —• Directing Verdict — Conversion.</p> <p>4. When plaintiff rested his case the trial court directed a verdict in defendant’s favor. Held error, as plaintiff’s proof showed that he had a valid and subsisting lien upon the property described in the complaint, and that defendant had converted the same.</p>

<p>Appeal from the District Court, Stutsman County; Glaspell, J.</p> <p>Action by the State Finance Company against Valeria R. Myers and others. From a judgment in favor of plaintiff certain defendants appeal.</p>

<p>Appeal from District Court, Stutsman county; Glaspell, J.</p> <p>Action by the State Finance Company against W. B. S. Trimble and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Rolette county; John F. Cowan, J.</p> <p>Action by Fr-ed E. Harris against Rolette county. From a judgment for defendant plaintiff appeals.</p> <p>Preliminary examination is a “trial.” Ex parte Bedford, 106 Mo. 625; State v. M-cOblenis, 24 Mo. 402; Low v. People, 12 Wend, 344; People v. Napthaly, 39 Pac. 29; 16 Ene. PI. & Pr. 846; People v. Elliott, 22 Pac. 207.</p> <p>The county is liable on implied contract. Webb v. Baird, '6 Ind. 13; Blythe v. State, 4 Ind. 325; Dane County v. Smith, 13 Wis. 585; Cheek v. Schwartz, 70 Ind. 339; Buchman v.' State, 69 Ind. 1.</p> <p>■ Preliminary examination is not a criminal action. State v. Rozum, 8 N. D. 548, 80 N. W. 477.</p> <p>Appellant cannot recover on an implied contract. Wayne County v. Waller, 90 Pa. 99, '35 Am. Rep. 636 ; Rowe v. Yuba County 17 Cal. 61; Vise v. Hamilton County, 19 111. 78; In re Eaton, 7 N. D. 269, 74 N. W. 870.</p>

<p>Appeal from District Court, Grand Forks county; Fisk, J.</p> <p>Action by Thomas J. Smith against Edwin T. Spafford and another. From a judgment in favor of defendants, plaintiff appeals.</p> <p>Presumption of abandonment may be overcome by retaining a part of the premises, keeping a portion of household goods and entertaining the intention to re-occupy. Repenn v. Davis, 34 N. W. 326; Painter v. Steffon, 54 N. W. 229; McDermott v. Kermain, 39 N. W. 537; Wiggins v. Chance, 54 111. 175; Herforth v. Zimmerman, 7 Ky. L. Rep. 696; Reilly v. Reilly, 26 N. E. 604; Torulmson v. Swimey, 76 A. D. 432; Taylor v. Hargues, 60 Am. Dec. 609; Harmbson v. Tennison, 38 S. W. 232; Eckman v. Reid, 58 N. W. 202. Intent to abandon and actual abandonment must exist. Reilly v. Reilly, supra; Edmonson v. White, 8 N. D. 72, 76 N. W. 986; Brokken v. Baumann, 10 N. D. 453, 88 N. W. 84; Clark v. Evans, 60 N. W. 862; Kuhnert v. Conrad, 6 N. D. 215, 69 N. W. 185; Rosholt v. Mehus, 3 N. D. 513, 67 N. W. 783, 23 L. R. A. 239.</p> <p>Intention to re-occupy must be continuing. Maguire v. Hanson, 74 N. W. 776; Corey v. Schuster, 62 N. W. 470; Gunn v. Wynne, 43 S. W. 29; Sc'hwartzman v. Cabell, 49 S. W. 113; Bell v. Grathouse, 20 Tex. Civ. App. 478; Wolf v. Hawkins, 60 Ark. 262; Cotton v. Hamil, 12 N. W. 607; Curran v. Culf, 13- Ky. L. Rep. 84; Donaldson v. Lamprey, 29 Minn. 18; Jarvais v. Moe, 38 Wis. 440; Conway v. Nichols, 76 N. W. 681; Gregory v. Oates, 92 Ky. 532; Hall v. McGlothlin, 6 Ky. L. Rep. 661.</p> <p>Filing declaration not conclusive. Kuhnert v. Conrad, 6 N. D. 215, 69 N. W. 185.</p>

<p>Taxation — Void Tax Certificate as Evidence.</p> <p>1. A certificate of sale of land for the taxes of 1895, which is void for irregularity in the description of land is not any evidence of assessment and levy of a tax.</p> <p>Same — Description of Land.</p> <p>2. A description of the land assessed is essential to a valid tax, and unless there is such a description there is no assessment, and consequently no tax.</p> <p>Same — Effect of Wrong Description of Land in Notices.</p> <p>3. Notices of tax sales and notices of the time when redemption will expire must describe the land involved in the tax, and such notices are not effectual without such description.</p> <p>Same — Tax Deed.</p> <p>4. A tax deed .issued in 1898 in the name of a county, and not in the name of the state, is void.</p> <p>Same — Notice of Expiration of Period of Redemption.</p> <p>5. Service of notice of the time when the period for redemption from a tax sale will expire on the holder of a void tax deed as owner is not effectual for any purpose.</p> <p>Same — Description of Land — Sufficiency.</p> <p>6. Various descriptions of land in assessments, notices of sale, and notices of expiration of redemption period considered, and their sufficiency passed upon.</p>

<p>Appeal from District Court, Foster county; Burke, J.</p> <p>Action by P. J Carr and another against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. Verdict for plaintiffs. From an order denying its motion for a new trial, defendant appeals.</p> <p>There can be no recovery unless defendant’s trainmen failed to exercise ordinary care to prevent injury to stock after they are discovered in a place of danger. Wright v. Minneapolis, St. P. 6 S. Ste. M. Ry. Co. 12 N. D. 159, 96 N. W. 324; Peterson v. Wisconsin Cent. Ry. Co. 56 N. W. 639; Carey v. Chicago, M. & St. P. Ry. Co. 20 N. W. 648; Richardson v. Chicago & N.-W. Ry. Co. 14 N. W. 176; McMullen v. Dickinson Elevator' Co. 65 N. W. 663; Bostwick v. Minneapolis & Pac. Ry. 2 N. D. 440, 51 Ñ. W. 781; Hodgings v. Minneapolis, St. P. & S. Ste. M. Ry. Co. 3 N. D. 382; 56 N. W. 139; O’Leary v. Brooks El. Co. 7 N. D. 554, 75 N. W. 919.</p> <p>Contributory negligence was an issue in the case, and the instruction asked was proper. Habenicht v. Chicago, St. P. & O. Ry. 105 N. W. 910; Richardson v. Chicago, M. & St. P. Ry.' Co. supra.</p> <p>Permitting cattle to run at large is not of itself negligence. Cameron v. Great Northern Ry. Co. 8 N. D. 124, 77 N. W. 1016; Kearns v. Southern Ry. Co 52 S. E. 131; Johnson v. 'Chicago, M. & St. P. Ry. Co. 13 N. W. 673; Heath v. Coltenback, 5 la. 490.</p> <p>It is the duty of the carrier to keep a lookout. Railroad Co. v. Watkins, 29 S. W. 232; Railroad v. Hewitt, 67 Tex. 479; Wright v. Railway, 2 Am. & Eng. R. Cases, 121.</p> <p>Tire question of negligence was properly submitted. Bennett v. Chicago, M. & St. P. Ry. Co. 66 N. W. 934; Killbac'li v. Chicago, M. & St. P. Ry. Co. 84 N. W. 192.</p> <p>Contributory negligence is an affirmative defense, and must be alleged and proved by him who relies on it. Ouverson v. City of Grafton, 5 N. D. 281, 65 N. W. 676; Gram v. Northern Pac. Ry. Co. 1 N. D. 252, 46 N. W. 972; Clark v. Canadian Pac. Ry. Co. 69 Fed. 543.</p>

<p>Appeal from District Court, Barnes county; Burke, J.</p> <p>Action by the Colean Manufacturing Company against M. L. Feckler and others. From that portion of an order imposing costs, as a 'condition to vacation of the default judgment against plaintiff, he appeals.</p>

<p>Appeal from District Court, Ward county; Goss, J.</p> <p>Action by George Olson against Eric Mattison and Lye Storby. Judgment for plaintiff, and defendants appeal.</p>

Action by M. Kelly and James McLaughlin, co-p'artners as Kelly & McLaughlin, against T. E. Pierce and L. C. Champine-, co-partners as Pierce & Champine. Judgment for plaintiffs. Defendants .appeal. Dependent conditions must be complied with before seller is bound to part with 'his goods. Davis v. Jeffris, 58 N. W. 815; O-sborne v. Martin, 56 N. W. 905; W-ernli v. Collins, 54 N. W. 365. Plaintiff cannot recover on quantum meruit.

<p>Appeal from District Court, Bottineau county; Burke, J.</p> <p>Action by A. Besancon against N. C. Wegner, as administrator of the estate of Henry G. Kalbfleisch. From a judgment in plaintiff’s favor, defendant appeals.</p>

<p>Action by Ole L. Bremseth and Anna Bremseth against O. B. Olson, sheriff of Traill county. Judgment for defendant and plaintiffs appeal.</p> <p>It is the homestead, not the head of a family, which is protected. Wilson v. Cochrane, 31 Tex. 678; Crane v. Waggoner, 33 Ind. 83; Stout v. Rapp, 23 N. W. 364.</p> <p>The homestead exemption is not dependent upon any claim made as against a levy. Ferguson v. Kumler, 25 Minn. 183.</p> <p>A liberal rule of construction of homestead statutes almost universally prevails. 9 Am. & Eng. Enc. (1st Ed.) 519; 21 Cyc. 461; Waples on Homesteads and Exemptions, 29; Folsom v. Asper, 71 Pac. 315; Broome v. Davis, 13 S. E. 749; Hixon v. George, 18. Kan. 253.</p> <p>It makes no difference that the title is in the wife. Broome v. Davis, supra; Hixon v. George, supra; Powers v. Sample, 12 So. 337; Kendall v. Powers, 8 S. W. 793; Orr v. Shraft, 22 Mich. 260; Ball' v. Lowell, 56 Tex. 579; Henderson v. Rainbow, 41 N. W. 29.</p> <p>If wife instead of husband was the debtor, homestead would be protected. Orr v. Shraft, supra; Crane v. Waggoner, supra; Tour-ville v. Pierson, 39 111. 446; Partee v. Stewart, 50 Miss. 721; Murray v. Sells, 53 Ga. 257; Dwinnell v. Edwards, 23 Ohio St. 603; Stout v. Rapp, supra; Waples on Homesteads and Exemptions, 65; Thompson on Homesteads and Exemptions, 187.</p> <p>Husband is not entitled to exemption in wife’s land. Davis v. Dodds, 20 Ohio. St. 473; Turner v. Argo, 14 S. W. 930; Barry v. Western Assurance Co., 49 Pac. 148; McGinnis v. Wood, 47 Pac. 492; Producers Natl. Bank v. Cumberland Lbr. Co., 45 S. W. '981; Bennett v. Georgia Trust Co., 32 S. E. 625.</p> <p>Wife not entitled to homestead because not the head of a family. Producers Natl. Bank v. Cumberland Lbr. Co., 45 S. W. 981; Ness v. Jones, 10 N. D. 587, 88 N. W. 706.</p>

<p>Action by Andrew Larson against Ira Calder. Judgment for plaintiff, and defendant appeals.</p> <p>Defendant should have Teen convicted criminally under the statute before recovery could be had in a civil action. Rev. Codes 1905, section 9077. Newell v. Clapp, 72 N. W. 366.</p> <p>In the absence of a warranty defendant’s knowledge of the existence of the disease should be alleged and proved. Bradford V.. Floyd, 80 Mo. 207; Coyle v. Conway, 35 Mo. 490; Pattee v. Adams, 37 Kan. 133; St. Louis R. R. Co. v. Goldsby, 58 Ark. 101.</p> <p>Affirmation made at the time of the sale of an article, as to its quality or condition, will be treated as a warranty if so intended, and the purchaser bought on the faith of it; the intention and the effect on the purchaser are questions for the jury. 1 Smith, LeadCas. Hare & Wallace’s Notes, 229 (7th Ed.) 300, 337; Benj. on Sales, 499; 1 Parsons, Cont. 459; Plughes v. Funston, 24 Iowa, 287; McGrew v. Forysthe, 31 Iowa, 179; McDonald Mfg. Co. v. Thomas, 5 N. W. 737; Tewkesbury v. Bennett, 31 Iowa, 83; Bowen v. Shippen, 30 L. Ed. (U. S.) 1172; Osgood v. Lewis, 2 Harr. & G. 495; Oneida, etc., Soc. v. Lawrence, 4 Cow. 440; Cook v. Mosely, 13 Wend. 278; Chapman v. Murch, 19 Johns. 290; Plawkins v. Berry, 5 Gil. 36; McGregor v. Penn, 9 Yerg. 76; Otto v. Alderson, 10 Smedes & M. 476; 5 Wait. Act. & Déf. 555; Horton v. Green, 66 N. C. 596; Polhemus v. Heimar, 45 Cal'. 573; Bank of Spearfish v. Graham, 91 N. W. 340; Humphreys v. Comline, 8 Blackf. 516; McFarland v. Newman, 9 Watts, 55; Foster v. Caldwell’s Estate, 18 Vt. 176; Bond v. Clark, 35 Vt. 577; Bradford v. Bush, 10 Ala. 386; Thorne v. McVeagh, 75 111. 81; Dake Engine Mfg. Co. v. Hurley, 57 N. W. 1044; Scott v. Raymond, 18 N. W. 274; Halliday v. Briggs, 18 N. W. 55; Titus v. Poole, 40 N. E. 228; Smith v. Justice, 13 Wis. 600; Congar v. Chamberlain, 14 Wis. 258; Boothby v. Scales, 27 Wis. 626.</p> <p>This action does not depend upon a previous conviction in a criminal proceeding. Conrad v. Crowdson, 75 111. 246, 2 Cyc. p. 336.</p> <p>Plaintiff is entitled to recompense for feed, care and treatment of diseased horses. 1 Suth. on Dam. 148; Long v. Clapp, 19 N. W. 467.</p> <p>By motion for directed verdict errors as to admission of evidence are waived. Battis v. McCord, 30 N. W. 11.</p> <p>Where a warranty is given, knowledge on the part of the warrantor of a defect constituting a breach is unnecessary. Joy v. Bitzer, 41 N. W. 575; Stevens v. Bradley, 56 N. W. 428; Murphy v. McGraw, 41 N. W. 917, 30 Am. & Eng. Enc. Law, 1318 (Note 5.)</p> <p>After motion for a directed verdict is overruuled, the mover must specifically request the submission of questions of fact that he desires the jury to determine. Stanford v. McGill, 6 N. D. 536, 72 N. W. 938; Mayer v. Dean, 22 N. E. 261; Sutter v. Vanderveer, 25 N. E. 907; Provost v. McEncroe, 5 N. E. 795; Battis v. McCord, supra; 6 Enc. PI. & Pr. 693, 702, 703; 2 Thompson on Trials, 272; Winchell v. Hicks, 18 N. Y. 558; Colligan v. Scott, 58 N. Y. 670; Merwin v. Magone, 17 C. C. A. 361, 70 Fed. 776; Beutell v. Magone, 157 U. S. 154, 15 Sup. Ct. 566; Chrystie v. Foster, 9 C. C. A. 606, 61 Fed. 551.</p> <p>Damages for caring’ for infected animals are recoverable. 3 Sixth, on Damages, 671, 675; Love v. Ross, 56 N. W. 528; Joy v. Bitzer, supra; Long v. Clapp, supra; Murphy v. McGraw, 41 N. W. 917; McCann v. Ullman, 85 N. W. 493; Short v. Matteson, 47 N. W. 874.</p> <p>All xnaterial representations as to the character and condition of an animál, made by the seller in the course of the sale, are warranties, unless it afixnnatively appears that they were not so intended nor so understood. 30 Axn. & Eng. Enc. Law, Í55; Murphy v. McGraw, 41 N. W. 917; Stevens v. Bradley, 56 N. W. 428.</p>

<p>Sale — Construction of Contract — Bailment — Parol Evidence.</p> <p>1. The contract set forth in the opinion construed, and held to be an agreement of sale of the property therein mentioned, and not a bailment as contended for by appellant. Held, further, that even if such contract, by reason of ambiguity, could be 'held subject to explanation by parol, or by the subsequent conduct of the parties, such proof is insufficient to sustain appellant’s contention that the same? was intended merely as a storage and transfer contract.</p> <p>Interest —■ Sale of Goods — Necessity of Demand.</p> <p>2. By the terms of the contract, appellant obligated itself to pay to respondent the purchase price of the property on or before December 1, 1900. The indebtedness falling due on said date, respondent was entitled to recover interest thereon from such time, at the legal rate, even though no demand for payment of such indebtedness was made prior to the commencement of the action.</p>

<p>Action by Alfred Mosher against Eugenia Mosher. Judgment for plaintiff, and defendant appeals.</p> <p>It is a sufficient answer to a petition for a divorce that petitioner was regardless of his conjugal duties. Skinner v. Skinner, 5 Wis. 449; Poor v. Poor, 8 N. H. 308; Best v. Best, 1st Adams, 410; Holden v. Holden, 1st Hagg. R. 453; Wood v. Wood, 2 Paige, 108; Bishop on Marriage and Divorce, Chap. 20 and 22; Bedell v. Bedell, 1st J. C. R. 604; Watkins v. Watkins, 2 Ark. 96; Waldron v. Waldron, 9 L. R. A. 489, 4 Barb. 320; Johnson v. Johnson, 4 Wis. 154, 4 Johnson Che. 187; 2 Md. Che. 341; Bishop on Marriage and Divorce, 454 and 459; 15 111. 186.</p> <p>Much weight will be given the views of the trial court, in a case of this kind. Mahnken v. Mahnken, 9 N. D. 188, 82 N. W. 870; Fleming v. Fleming, 30 Pac. 566.</p> <p>Passive endurance or conjugal kindness are not evidence of con-donation, unaccompanied by express agreement to condone. Taylor v. Taylor, 5 N. D. 58, 63 N. W. 893; Rev. Codes 1905, section 4060.</p>

<p>Action by G. L. Barron against the Northern Pacific Railway Company. Verdict for plaintiff. From an order granting a new trial, he appeals.</p> <p>New trial will not be granted upon newly discovered evidence, which with reasonable diligence could have been produced on the trial. 14 Pleading and Practice, 799; Ninninger v. Know, 8 Minn. 140; Austin v. Northern Pac. Ry. Co., 25 N. W. 798; Broat v. Moore, 47 N. W. 55; Nelson v. Carlson, 55 N. W. 821.</p> <p>Due diligence to produce must be shown by facts constituting the same. Boot v. Brewster, 36 N. W. 649; Calahan v. Calahan, 48 N. W. 724; Moody v. Priest, 28 N. W. 415; Fenno v. Chapin, 8 N. W. 760; Evans v. Christopherson, 24 Minn. 331.</p> <p>It is error to give instructions that have no application to the evidence. Nicklous v. Burns, 75 Ind. 93; Smith v. Evans, 14 N. W. 406; Esterly Harvesting Machine Co. v. Frolkey, 51 N. W. 594.</p> <p>Application for new trial based on newly discovered evidence is. addressed to the discretion of the court, and its order will be sustained unless abuse is manifest. Pengilly v. Case Threshing Mach. Co., 11 N. D. 249, 91 N. W. 59; Ross v. Robertson, 12 N. D. 27, 94 N. W. 765; Patch v. Northern Pac. Ry. Co., 5 N. D. 55, 63 N. W. 207.</p> <p>When it is uncertain upon which of several grounds a new trial is granted if either is sufficient, the order will be sustained. Davis v. Jacobson, 13 N. D. 430, 101 N. W. 314.</p>

Action by A. O. Madson against Herman Rutten, as sheriff, for refusal to malee a levy under a warrant of attachment. Judgment for plaintiff, and defendant appeals. Creditors can assail the validity of the mortgage only while the property mortgaged was the mortgagor’s. Sullivan et al. v. Miller, 13 N. E. 772; Wolcott v. Ashenfelter, 23 Pac. 780; Parker v. American Ex.

Action by Emerson K. Bull against Clara A. Beiseker and oth-ers. From an order sustaining a demurrer -to the complaint, plaintiff appeals. Publication of foreclosure notice for less than 42 days is void. Finlayson v. Peterson, 5 N. D. 587, 67 N. W. 953; Dever v. Cornwall, 10 N. D. 123, 86 N. W. 227. Whether the covenant runs with land depends upon privity of ' contract, not upon, the character of the title passed by the conveyance.

Action by Torber Nelson and others against Julia Thompson. From a judgment for plaintiffs, defendant appeals. One who knowingly, though passively, suffers another to purchase and expend money on land, without disclosing his claim, cannot exercise his legal right against such person. Kirk v. Hamilton, 102 U. S. 68, 26 .L. Ed. 79; Town v. Needham, 25 Am. Dec. 246; Starrs v. Barker, 10 Am. Dec. 316; Brown v. Bowen; 30 N. Y. 519; Brown v. Bowen, 86 Am.

<p>Appeal from District Court, Ward county; Palda, J.</p> <p>Action by E. Delafield Smith against E. R. Bradley and others. From a judgment in plaintiff’s favor, defendant Bradley appeals.</p> <p>On guaranty of payment holder may proceed against guarantor alone or jointly with the principal without effort to first collect from latter. McMurray v. Noyes, 72 N. Y. 523, 15 L. Ed. 346; Miller v. McLaughlin, 104 N. W. 777; McKee v. Needles, 98 N. W. 618; McKibben v. Ripley, 95 N. W. 1046; Huff v. Slife, 41 N. W. 289; Brown v. Curtis, 2 N. Y. 225; Blanding v. Wilsey, 77 N. W. 508.</p> <p>On guaranty of collection, remedies against principal must first be exhausted. McMurray v. Noyes, supra; Bosnian v. Akely, .39 Mich. 710.</p> <p>Unreasonable delay of prosecution of principal discharges guarantor of collection. Craig v. Parks, 40 N. Y. 181; McMurray v. Noyes, supra; Northern Ins. Co. v. Wright, 76 N. Y. 475.</p> <p>Insolvency of principal is insufficient to excuse suit against principal first. Day v. Elmore, 4 Wis. 190; Borden v. Gilbert, 13 Wis. ■570; Dyer v. Gibson, 16 Wis. 557; French v. Marsh, 29 Wis. 649; Bosman v. Akeley, 39 Mich. 710, 33 Am. Rep. 447; Rev. Codes 1905, sections 6082, 6083.</p> <p>Action against guarantor of collection before the security is resorted to and exhausted is premature. Bingham- v. Mears, 4 N. D. 437, 61 N. W. 808; Brainerd v. Reynolds, 36 Vt. 614; Bouche v. Louttit, 104 Cal. 320, 37 Pac. 902; Vanderbilt v. Schreyer, 91 N. Y. 392; Cottrell v. New London Furniture Co., 68 N. W. 874; :20 Cyc. 1447.</p> <p>Failure and neglect to enforce lien discharges the guarantor. Roberts v. Laughlin, 4 N. D. 167, 59 N. W. 970; McMurray v. Noyes, supra; Crane v. Wheeler, 50 N. W. 1033; Dewey v. Clark, ■50 N. W; 1032; Brandt, Sur., sections 98, 99.</p> <p>In case of an assignment of a note plaintiff should join mortgagee. Prout v. Hogue, 57 Ala. 28; Derby v. Millgrew, 58 Ala. 157; Bibb v. Hawley, 59 Ala. 403; Nichol v. Henry, 89 Idaho, 54; Morgan v. Magoffin, 5 Ky. 395 ; Miller v. Henderson 10 N. J. Eq. 320; Jarman v. Wiswall, 24 N. J. Eq. .267; Western Res. Bank v. Potter, 1 Clark Ch. 432; Kittle v. Van Dyck, 1 Sandf. Ch. 76; Christie v. Herrick, 1 Barb. Ch. 254; Merrill v. Bichoff, 38 N. Y. Supp. 194; Enc. PI. & Pr. (Vol. 9) 481.</p> <p>Misjoinder was waived by not demurring. People v. Court, 32 Pac. 819; Alexander v. Ransom, 92 N. W. 418.</p>

<p>Appeal from District Court, Walsh county; Kneeshazv, J.</p> <p>Action by the city of Grafton against the St. Paul, Minneapolis & Manitoba Railway Company and others. Judgment for plaintiff, and defendants appeal.</p> <p>The necessity of condemnation is determined by the courts. Bigelow v. Draper, 6 N. D. 152, 69 N. W. 570.</p> <p>Compensation must be made for grading and planking required by the improvement. State v. Shardlow, 46 N. W. 74; In re Opening First St., 26 N. W. 159; State v. District Court, 44 N. W. 7 ; Chicago Ry. Co. v. Hough, 28 N. W. 532; In re.City Grand Rapids v. Grand Rapids Ry. Co., 33 N. W. 15; Commissioners of Parks v. Michigan Cent. Ry. Co., 51 N. W. 447 and 934; Commissioners of Parks v. Detroit, etc., Ry. Co., 52 N. W. 1083; City of Grand Rapids v. Bennett, 64 N. W. 585; People v. Lake Shore Ry. Co., 17 N. W. 841; Village of Plymouth v. Pere Marquette Ry. Co., 102 N. W. 947.</p> <p>The necessity for a public improvement is a political, not a judicial question. Los Angeles v. Waldron, 3 P. 890; 1 Pac. 883 ; 111. Cen. R. Co. v. City of Chicago, 30 N. E. 1044; 111. Cent. Ry. Co. v. City of Chicago, 28 N. E. 740; Chicago & N. W. Ry. Co. v. Chy of Chicago, 29 N. E. 1109; Chicago & N. W. Ry. Co. v. City of Morrison, 63 N. E. 96; Chicago & N. W. Ry. Co. v. Chicago, 37 N. E. 842; Pittsburg, etc., Ry. Co. v. Sanitary Dist., 75 N. E. 892; Lynch v. Forbes, 37 N. E. 437; Bennett v. City of Marion, 76 N. W. 844; Barrett v. Kemp, 59 N. W. 76; Knoblauch v. City of Minneapolis, 57 N. W. 928; Fairchild v. City of St. Paul, 49 N. W. 325; Warner v. Town of Gunnison, 31 Pac. 238.</p> <p>The measure of damage is without reference -to expenditures to comply with police regulations in regard to street crossings. Chicago & N. W. Ry. Co. v. City of Chicago, 29 N. E. 1109; Chicago & N. W. Ry. Co. v. Cicero, 41 N. E. 640; Illinois Cent. Ry. Co. v. City of Chicago, 48 N. E. 492; Illinois Cent. Ry. Co. v. Town- of Normal, 51 N. E. 781; Chicago, B. & Q. Ry. Co. v. Chicago, 37 N. E. 78; Chicago & A. R. Co. v. City of Pontiac, 48 N. E. 485; City of Albia v. C. B. & Q. Ry. Co., 71 N. W. 541; People v. B. & A. Ry. Co., 70 N. Y. 569; Albany N. R. Co. v. Brownell, 24 N. Y. 325.</p> <p>City ordinance book, properly identified, is prima facie evidence of the existence of the ordinance. 17 Cyc. 298; Metropolitan St. R. Co. v. Johnson, 16 S. E. 49; Mayer v. Swink, 16 S. W. 76; Eichenlaub v. City of St. Joseph, 21 S. W. 8; Merced Co. v. Fleming, 43 Pac. 392; San Diego v. Siefert, 32 Pac. 644; Linsay v. City of Chicago, 3 N. E. 443; Prell v. McDonald, 7 Kan. 426.</p> <p>Plaintiff’s complaint was sufficient. City of Lidgerwood v. Michalek, 12 N. D. 348, 97 N. W. 541; Cal. Southern Ry. Co. v. Southern Pac., 7 Pac. 123; City of Los Angeles v. Waldron, 3 Pac. 890.</p>

<p>Appeal from District Court, Nelson county; Fisk, J.</p> <p>Action by Boyd Van Gordon against Frank Goldamer and L. D. Baird. Judgment for plaintiff.' Defendants appeal.</p> <p>Proof upon which the reformation of an instrument is sought must be clear and convincing. Merchant v. Pielke, 9 N. D. 182, 82 N. W. 878; Benson v. Markoe, 37 Minn. 30; Clute v. Frazier, 12 N. W. 327; Jasper v. Hazen, 4 N. D. 1; 2 Pom. Jur., section 859.</p> <p>One seeking to reform a contract must act properly. Sharpe . v. Behr, 117 Fed. 864, 868; Citizens Nat. Bank v. Judy, 43 N. E. 259; Barfield v. Price, 40 Cal. 535.</p> <p>Possession may charge notice of possessor’s rights, but not of those of third persons. Wright v. Levy, 12 Cal. 257; Porter v. King, 1 Fed. 755.</p> <p>Assignee of a chose in action taken subject to all defenses, but he is not bound by a parol agreement not known to him, made with a stranger to the contract intended to destroy the legal effect of the record. Williams v. Donnelly, 74 N. W. 601; Murray v. Laybourne, 2 Johns. Ch. 441; Heinrod v. Bolton, 44 111. App. 516; Bloom v. Henderson, 8 Mich. 395; Bailey v. Greenleaf, 7 Wheat. 46; Norton v. Rose, 2 Wash. 233.</p> <p>Reformation for mutual mistake, or mistake of one coupled with the fraud of the other party to the contract, will be had. Klatt v. Dummert, 73 N. W. 404; Carpenter Paper Co. v. Wilcox, 70 N. W. 228; Silbar v. Ryder, 23 N. W. 106; Littlejohn v. Creamery Co., 85 N. W. 588, 24 Enc. Law, 655; Merchant v. Pielke, 9 N. D. 182, 82 N. W. 878; McCormick Harvesting Co. v. Woulph, 76 N. W. 939; Welles v. Yates, 44 N. Y. 525.</p> <p>Open, notorious possession is notice. Dickson v. Dows, 92 N. W. 798; 23 Enc. Law, 500; Leebrick v. Stahle, 27 N. W. 490; Sheerer v. Cuddy, 24 Pac. 713.</p> <p>Question of waiver is a branch of the doctrine of quasi estoppel. 16 Cyc. 784; Fowler v. Parsons, 9 N. E. 799.</p>

<p>Justice of the Peace — Appeal — Bond.</p> <p>1. The defendants appealed from a judgment of a justice of the peace to the district court, and furnished only an undertaking in conformity with section 8503, Rev. Codes 1905, relating to appeals from justice’s court. Held, that the words “all costs” contained in the undertaking in accordance with the requirements of section 8503 are sufficiently comprehensive to cover costs on appeal, and that the district court acquired jurisdiction without filing the bond mentioned in section 8502, Rev. Codes 1905.</p> <p>Same — Claim and Delivery — Verdict Not Responsive to Issues Invalid.</p> <p>2. In an action in claim and delivery in which the issues >were as to the right of possession, damages, and the right to and the amount of the lien claimed on the property in suit, the jury returned a verdict as follows: “We, the jury in said action, do hereby find for the defendant in the sum of $12.00.” Held, that this verdict was not responsive to the issues, and was not in law a verdict:</p> <p>Same — Defective Verdict — Retrial.</p> <p>3. Under the provisions of section 8428, Rev. Codes 1905, which is to the effect that, if the jurors are discharged without rendering a verdict, “* * * -the court shall proceed again to trial as m the first instance, until a verdict is rendered,” where the jury returned what was in form a verdict, but which failed to find on all the material issues, the justice was warranted in holding that it was not a lawful verdict, and in setting the case for retrial.</p> <p>Trial — Definition of Verdict.</p> <p>4. The word “verdict” is not an abstract designation of the finding of a jury after a case is submitted to it, but relates to the issues raised by the pleadings and evidence, and what may in form be a verdict is not such in law unless it substantially responds to all the issues.</p>

<p>Appeal from District Court, Grand Forks county; Fisk, J.</p> <p>Action by the Colean Manufacturing Company against Louis Blanchett. Judgment for defendant, and plaintiff appeals.</p>

<p>Habeas corpus by the state, on the relation of R. E. Flaherty, against O. G. Hanson, sheriff. Writ quashed.</p> <p>Petitioner, after a preliminary examination, was committed, in default of bail, to answer to the charge of violating the provisions of chapter 189, page 307, Laws 1907, and has sued out a writ of habeas corpus in this court to regain his liberty, alleging the unconstitutionality of said chapter.</p>

<p>Justices of the Peace — Appeal — Filing Bond.</p> <p>1. In an appeal to the district court from a judgment rendered in justice court, the filing of an undertaking with the clerk of the district court within 30 days after the rendition of the judgment is a prerequisite to the transfer of jurisdiction to the district court.</p> <p>Same — Waiver.</p> <p>2. The filing of an undertaking in such cases pertains to the jurisdiction of the district court over the cause and subject-matter of the appeal and cannot be waived by consent of the appellee in submitting to the jurisdiction of the district court.</p>

<p>Constitutional Law — Title of Act.</p> <p>1. The provisions of chapter 101, p. 129, Laws 1901, giving a lien to materialmen and laborers upon buildings erected upon land occupied by persons pursuant to the land laws of the United States, is germane to the title to said law, being “an act regulating the filing and foreclosure of mechanic’s liens upon lands held or occupied under a filing under any of the land laws of the United States,” and does not contravene the provisions of section 61, article 2, constitution, providing that the subject of an act shall be expressed in its title.</p> <p>Same — General Laws —- Uniform Operation —■ Mechanic’s Lien on Public Land.</p> <p>2. An act giving, to materialmen and laborers a lien upon buildings erected upon government lands held under the laws of the United States is not repugnant to the constitution, providing that all laws of a general nature shall have a uniform operation.</p>

<p>Appeal from District Court, Grand Forks county; Templeton, J.</p> <p>Action by Henry J. Thompson against the county of Grand Forks and Hans Anderson, county auditor.' Judgment for defendants. Plaintiff appeals.</p> <p>Under section 129 of the constitution the legislature can regulate elections. Parvin v. Wimberg, 30 Am. St. 254; State v. Saxon, 32 Am. St. 46; Taylor v. Bleakley, 49 Am. St. 233; Talcoh: v. Philbrick, 20 Atl. 436; Atty. General v. City of Detroit, 44 N. W. 388; Cooley, Const. Lim. (6th Ed.) 758.</p> <p>The constitutional right to vote can neither be enlarged or restricted. Spier v. Baker, 52 Pac. 659 ; 41 L. R. A. 196; People v. English, 29 N. E. 678; McCafferty v. Guyer, 59 Pa. St. 109; State v. Findlay, 19 Pac. 241; Levisley v. Litchfield, 83 Pac. 142; State v. Denoyer, 6 N. D. 586, 72 N. W. 1014.</p> <p>Every elector has a constitutional right to become a candidate for office. State v. Drexel, 105 N. W. 174.</p> <p>A primary election is an “election.” Spier v. Baker, supra; State v. Baker, supra; People v. Board of Election Commissioners, 77 N: E. 321; State v. Scott, 108 N. W. 828; State v. Drexel, supra.</p> <p>A law, otherwise invalid, will be sustained if the party objecting to it has, by prior acts, precluded himself from being heard in opposition. 8 Cyc. 791; Pierce v. Somerset Railway, 171 U. S. 641; State v. Moore, 93 N. W. 4; Ferguson v. Landram, 96 Am. Dec. 350; Montgomery v. Chelf, 83 S. W. 388.</p> <p>Participation in the elective franchise is a privilege, not a right. Cooley on Con. Lim. (6th Ed.) 753.</p>

<p>Contributory Negligence.</p> <p>1. Defendant sold to plaintiff a gallon of kerosene, with knowledge of the fact that one-ninth part thereof was gasoline. Plaintiff, with knowledge of the fact that a fire was burning in his stove, poured some of the contents of the mixture directly from the can into the stove, causing an explosion of the vapors in the can, which severely injured him. Held, assuming that the oil was standard kerosene, that plaintiff as a matter of law was guilty of negligence which proximately contributed to the injury, and hence he cannot recover.</p> <p>Same — Fact of Negligence Undisputed — Question for Court.</p> <p>2. When the facts relating to negligence or contributory negligence are not in dispute, and but one inference can reasonably be deduced therefrom, the question of negligence or contributory negligence becomes a question of law for the court.</p> <p>Same — Due Care.</p> <p>3. The standard from which to determine the question as to whether the plaintiff exercised such care as a reasonably prudent person would exercise under the like circumstances is the common knowledge and experience of men, and not the scientific knowledge and experience possessed by experts.</p>

<p>Intoxicating Liquors — Action for Price — Shipment from Out the State — Defenses.</p> <p>1. In an action by wholesale liquor dealers located in Minnesota to recover the purchase price of intoxicating liquors sold to persons residing in this state, the answer, in addition to a general denial, alleged that such sales were made in North_ Dakota, and therefore void, under the provisions of section 7621, Rev. Codes 1899. Held, that such sales took place in- Minnesota, the liquors -having been deliv ered f. o. b. cars at St. Paul, pursuant to orders sent to plaintiffs at that place.</p> <p>'Same — Illegality of Contract Must be Pleaded.</p> <p>2. Respondent sought to prove that such sales were made by plaintiffs with intent to enable defendants to violate the prohibitory law of this state. Held, that he could not avail himself of such defense under the pleadings; that, in order to urge the illegality of a contract when such illegality does not appear either upon its face or in the plaintiff’s evidence necessary to prove the same, the defendant must specifically allege such illegality. Neither the contract upon its face nor the plaintiff’s evidence disclosed that such contract was illegal; hence it was error to direct a verdict on such ground.</p> <p>Same — Vendor’s Knowledge of Intended Violation of Law.</p> <p>3. Under the provisions of section 9390, Rev. Codes 1905, mere knowledge by the vendor of intoxicating liquors lawfully sold in one state that the vendee intends to resell them in violation of the law of another state, is not sufficient to defeat an action brought in the latter state by the vendor against the vendee to recover the purchase price thereof. In order to defeat such action for the purchase price, it must appear that the vendor intended by such sale, in some manner, no matter how slight, to aid the vendee in his unlawful design to violate the laws of this state. ... .</p> <p>Same.</p> <p>4. The fact that the contract of partnership between the defendants, if any existed, was for an illegal purpose, to-wit, the unlawful traffic in intoxicating liquors, is not sufficient to defeat a recovery by plaintiffs, in the absence of proof that they were connected in some way with such illegal contract.</p> <p>Proof of Partnership — Question for Jury.</p> <p>5. The question as to whether the defendants were co-partners as alleged in the complaint is a mixed question of law and fact, and under the evidence the court could not determine such question as a matter of law. The respondent furnished the building and lot upor which such illegal business was conducted under an agreement with his co-defendant that he should receive one-half of the net profits of the business. Held, under the evidence, that it was for the jury to say what the intention of the parties was; such intention, when ascertained, being largely controlling.</p> <p>Same — Evidence to Establish.</p> <p>6. Less proof is requisite to establish a partnership in actions against alleged partners than is necessary in actions between the parties themselves.</p>

<p>Sale — Enforcement of Vendor’s Lien — Purchase by Seller.</p> <p>1. Plaintiff agreed to sell to defendant, and defendant agreed tc purchase from plaintiff, a certain threshing rig, and, upon defendant’s refusal to accept and settle for such property, plaintiff proceeded to enforce a vendor’s lien for the purchase price pursuant to section 6284, Rev. Codes 1905. Plaintiff, without defendant’s consent, bid such property in at the foreclosure sale. Held that, the statutory manner of foreclosing such liens being tne same as tnat prescribed for the foreclosure of liens on pledged property, plaintiff had no right, in the absence of defendant’s consent, to purchase the property at the sale, and such sale was thereiore voidable at defendant’s election.</p> <p>Pledges — Foreclosure —- Statutes.</p> <p>' 2. The enactment of section 6296, Rev. Codes 1905, which provides generally that liens upon personal property may be foreclosed upon the notice and in- the manner provided for the fo'reclosure of mortgages upon personal property, did not operate to repeal the special provision relating to the foreclosure of pledged property as contained in chapter 76 of the Civil Code (Revi' Codes 1905, sections 6193-6218).</p> <p>Statutes — Repeal by Implication.</p> <p>3. The rule of statutory construction that repeals by implication are not favored, and -that special provisions of a statute are not repealed by general provisions relating to the same subject matter unless the legislative intent to that effect is manifest, is stated and applied in the opinion.</p> <p>Foreclosure of Lien — Purchase by Seller —- Ratification.</p> <p>4. Defendant not having consented to, nor ratified, such purchase by plaintiff, the sale was ineffectual to transfer the title of the property to plaintiff. Hence no recovery can be had in this action under the rule of damages prescribed in subdivision 1, section 6573,-Rev. Codes 1905, and the district court therefore erred in rendering judgment for plaintiff.</p>

<p>.Appeal from District Court, Cass county; Pollock, J.</p> <p>Action by Jacob Haessly against Herman Thate. From a judgment of the district court dismissing an appeal from a judgment of a justice, defendant appeals.</p> <p>The district court’s jurisdiction attaches upon filing bond on appeal from justice court with the clerk. Eldridge v. Knight, 11 N. D. 552, 93 N. W. 860; Petty v. Miller, 24 S. W. 330; Edminster v. Rathbun, 52 N. W. 263; McLaughlin v. Mitchell, 84 N. W. 777.</p> <p>It is mandatory upon district court to order transmission of proper record. Burgess v. Court, 13 Pac. 166; Wilson v. Paxton,. 62 Pac. 911; Stuber v. Rohlfs, 12 Pac. 830; 12 Ene. PI. & Pr.. 787-788; Allard v. Smith, 97 N. W. 510; State v. Superior Court,. 37 Pac. 448; Jacobs v. Oren, 48 Pac. 431; Bruins v. Downey, 45. Wis. 496; Cour v. Cowdry, 54 N. W. 935; Demming v. Weston,. 15 Wis. 236; Woods v. Oregon Short Line Ry., 81 Pac. 235.</p> <p>Where appellant fails to have transcript sent up, and no diligence is shown, court must dismiss. McLaughlin v. Michel, 84 N. W. 777; DeFoe v. Zenith Coal Co., 13 N. D. 236, 103 N. W.. 747.</p>

<p>Absolute Deed a Mortgage — Evidence.</p> <p>1. A deed, absolute in form, will be held to be a mortgage where the proof is clear, convincing, and satisfactory that such was the intention of the parties.</p> <p>Same.</p> <p>2. Where it is admitted that a deed absolute in form was not intended as an unconditional conveyance, but the controversy is as to whether the same was a mortgage or a conditional sale with the right to repurchase the property at or before a future date, the same will ordinarily be held to be a mere security transaction, and therefore a mortgage, where the true character of such transaction is left in doubt by the evidence. '</p> <p>Same — Bona Eide Purchaser.</p> <p>3. Evidence in this case examined, and held to establish plaintiff’s contention that the transaction was intended as a mortgage. Evidence also held to establish the fact that defendant bank took its deed from defendant Jensen with full knowledge of the rights of plaintiff Lizzie Smith to effect a redemption of said property.</p> <p>Same — Accounting — Redemption — Tender.</p> <p>4. In an action by a vendor to have a deed, absolute in form, adjudged a mortgage, and asking for an accounting and right to redeem, the amount of indebtedness and right to redeem being in dispute, it is unnecessary for plaintiff to allege or prove a tender to defendant of any sum prior to the commencement of the action; it being sufficient for plaintiff to allege and prove a willingness to redeem 'by-paying such sum as may -be adjudged to be due and owing by him to defendant.</p> <p>Same.</p> <p>5. The evidence as to the amount of the indebtedness existing after deducting the net amount of the rents and -profits being vague and uncertain, the district court is directed to take an account of these matters, and upon determining such sum to enter judgment in accordance with the opinion.</p>

<p>Appeal from District Court, Bottineau county; Goss, J.</p> <p>Arne Hunskor was convicted of shooting with intent to do bodily harm, ■ and appeals.</p>

<p>Appeal from District Court, Sargent county; Allen, J.</p> <p>John B. Ha'zlet was convicted of murder in the first degree, and he appeals.</p> <p>The New York and California cases relied upon in State v. Yokum, 79 N. W. 835, upon which the trial judge based his instructions, and U. S. v. Crow Dog, 3 Dak. 106, do not apply; and the true rule is, if from the whole case, including the killing, the presumption of fact arising therefrom, and the evidence of justification, the jury entertain a reasonable doubt, as to the defendant’s guilt, they must acquit him. Section 10023, Rev. Codes 1905 ; People v. Neary, 37 Pac. 943; People v. Powell, 25 Pac. 481; State v. Conahan, 38 Pac. 996; People v. Elliot, 22 Pac. 207; People v. Scott, 56 Pac. 102; People v. Lanagan, 22 Pac. 482; People v. Dillon, 30 Pac. 150; People v. Tidwell, 12 Pac. 61; People v. Callaghan, 6 Pac. 49; Barton v. Territory, 85 Pac. 730; State v. Earnest, 42 Pac. 359; Kent v. People, 9 Pac. 852; People v. Susser, 75 Pac. 1093; Trumble v. Territory, 21 Pac. 1081; 6 L. R. A. 384; 6 Enc. of Evidence, 593, 597; People v. Downs, 25 N. E. 988; People v. Riordan, 22 N. E. 455; People v. Stokes, 53 N. Y. ■164; Brotherton v. People, 75 N. Y. 159; O’Connell v. People, 87 N. Y. 377; People v. Pallister, 33 N. E. 741; People v. Shanley, 63 N. Y. Supp. 499; 21 Cyc. p. 882, note 76; State v. Bone, 87 N. W. 507; State v. Shea, 74 N. W. 687; State, v. Schweitzer, 6 L. R. A. 125; State v. Usher, 102 N. W. 101; Copps v. State, 97 N. W. 210; Lillianthol Tobacco Co. v. U. S., 97 U. S. 266, 24 L. Ed. 901; Boykin v. People, 45 Pac. 419; Wascaser v. People, 25 N. E. 564.</p> <p>The court should have charged that the defendant should not be convicted if upon the whole case, the jury entertained a reasonable doubt of his guilt. People v. Downs, 25 N. E. 988; Tilley v. State, 24 Tex. App. 251; 5 Am. St. Rep. 882.</p> <p>Instruction as a whole must be consistent and not misleading. 1 Blashfield on Instructions, sections 73 to 78, and note 93.</p> <p>Upon a trial for one offense, proof that accused committed another is inadmissible. Ferris v. People, 129 111. 521, 16 Am. St. Rep. 283; State v. Raymond, 53 N. J. L. 206, 2 Am. St. Rep. 405; People v. Molineux, 61 N. E. 286; People v. Meyers, 15 Pac. 95; People v. Sharp, 14 N. E. 319; Shaffer v. Commonwealth, 77 Pa. St. 63; Martin v. Commonwealth, 19 S, W. 580; Cotton v. State, 17 So. 372; State v. Kent, 5 N. D. 516, 67 N. W. 1052.-</p> <p>The test of justification is, whether accused in good faith did believe that the danger was imminent, and acted honestly in that belief. Wharton on Crim, Law (8th Ed.) 488; People v. Lennon, 15 Am. St. Rep. 259. ,</p> <p>Assuming that defendant intentionally killed deceased under provocation, the question for the jury is not whether a reasonable time had elapsed for an ordinary man to cool, but whether the defendant himself had in fact cooled. 1 Wharton on Crim. Law, (8th Ed.) 480; State v. Grugin, 71 Am. St. Rep. 553.</p> <p>It is competent to prove motive for homicide. Rice on Crim. Evidence, 447, Par. 281.</p> <p>A separate offense, when allied to the motive in the homicide may be proven. State v, Kent, 5 N. D. 550, 67 N, W. 1052, 35 L. R. A. 518.</p> <p>The instruction, “it must appear that the circumstances were sufficient to excite the fears of a reasonable man and the party killing acted under the influence of those fears,” is correct. 2 Blashfield on Instructions to Juries, par. 1516; Mize v. State, 36 Ark. 661; State v. Stockton, 61 Mo. 382; Wall v. State, 51 Ind. 543; Thompson v. State, 54 Ga. 47; State v. Usher, 111 N. W. 811; Judge v. State, 58 Ala. 406; Davis v. People, 88 111. 350 ; Jackson v. State, 6 Baxter, Tenn., 452; State v. VanSant, 80 Mo. 67; Crews v. People, 120 111. 317; Close v. Cooper, 34 Ohio St. 98.</p> <p>The instruction as to “cooling time,” was correct. 2 Blashfield on Instructions, Par. 1505; State v. Shelleday, 8 Iowa, 485; State v. Cants, 1 Spear S. C. 384; Kilpatrick v. Commonwealth, 31 Pa. 198;‘Smale v. Commonwealth, 91 Pa. 304.</p> <p>Instruction as to burden of proof was correct. Rev. Codes 1905, section 10023.</p> <p>This section is from California and was approved in People v. Milgate, 5 Cal. 127; People v. Stonecifer, 6 Cal. 405; People v. Hong Ah Duck, Cl Cal. 387.</p> <p>The adoption of a statute of a sister state, brings with it the construction placed upon it by the latter. Oswald v. Moran, 8 N. D. Ill, 77 N. W. 281; Cass County v. Security Improvement Co., 7 N. D. 528, 75 N. W. 775; Stutsman Co. v. Wallace, 142 U. S. 293, 12 L. Ed. 227; People v. Ritchie, 12 Utah, 193.</p> <p>Subsequent reversal of a decision construing a statute by the state of its origin, is without effect in the state of adoption. Stutsman Co. v. Wallace, supra; Barnes v. Lynch, 59 Pac. 995.</p> <p>When defendant seeks to prove a fact in opposition to the presumption of guilt arising from the proof or admission of the homicide, he must do so “to the satisfaction of the jury by a preponderance of the evidence.” People v. Schryver, 42 N. Y. 1; State v. Yokum, 79 N. W. 835; State v. Schmidt, 19 S. D. 585; Tanks v. State, 71 Ark. 459; Alderman v. Territory, 60 Pac. 876; People v. Mathai, 67 Pac. 694; Kent v. People, 9 Pac. 852; Murphy v. People, 37 111. 447; Territory v. Rowland, 8 Mont. 110; People v. Tidwell, 4 Utah, 49; State v. Bertrand, 3 Or. 61; Dixon v. State, 13 Fla. 663; Bell v. State, 69 Ga. 752; State v. Tabor, 95 Mo. 585; State v. Keith, 9 Nev. 15; State v. Barringer, 19 S. E. 275; Commonwealth v. Drum, 58 Pac. 9; Gibson v. State, 89 Ala. 121; Commonwealth v. Webster, 59 Mass. 295; Hawthorne v. State, 58 Miss. 778.</p>

<p>Trial — Directing Verdict— Conflicting Evidence.</p> <p>1. It is not error to deny a motion for a directed verdict or for a judgment notwithstanding the verdict, when the evidence shows a conflict as to whether the cause of action pleaded has been proven.</p> <p>Evidence — Photographs.</p> <p>2. Photographs, duly verified, are admissible in evidence as aids to the jury in arriving at an understanding of the evidence or of the situation or condition or location of objects or premises, material and relevant to the issues.</p> <p>Same — Weight.</p> <p>3. The weight to be given to such photographs by the jury is not of conclusive effect as a matter of law,, but depends upon the skill, accuracy and manner in which taken, and they are to be considered under the same tests as other evidence.</p>

<p>Appeal from District Court, Barnes county; Winchester, Special' Judge.</p> <p>Action by A. H. Grady against Con Schweinler. Judgment for defendant, and plaintiff appeals.</p> <p>A bailee may enlarge his legal responsibility by contract, express or implied. Butler v. Green, 68 N. W. 496; Lance v. Griner, 53 Pa. St. 204; Sturm v. Baker, 150 U. S. 329, 14 L. Ed. 99; Rohrabacher v. Ware, 37 Iowa, 85; Harris v. Howard, 56 Vt. 695;. Reinstein v. Watts, 84 Me. 139; Austin v. Miller, 74 N. C. 274; Van Tall v. Southeastern R. Co., 12 C. B. N. S. 75; Walker v. York, etc., R. Co., 2 C. L. R. 237; Sweitzer et al. v. PinconingLumber Co., 26 N. W. 762; Vanwormer v. Crane, 16 N. W. 686;. Harvey v. Murray, 136 Mass. 377; Drake v. White, 117 Mass. 10; Stevens v. Webb, 7 C. & P. 60; State v. Worthington 7 Ohio-171.</p> <p>Where plaintiff proves the contract of bailment, delivery of chattel to bailee in good condition, and its destruction, a prima facie case is made, and defendant must rebut the presumption of negligence and has burden of proof. Marshall v. Andrew & Gage, 8 N. D. 364, 79 N. W. 851; Sulpho-Saline Bath Co. v. Allen, 92 N. W. 354; Cummins et al. v. Wood, 92 Am. Dec. 189; Donlon v. Clark, 45 Pac. 1; Sheldon v. Robinson, 26 Am. Dec. 726; Ouderkirlc v. Bank, 23 N. E. 875; Davis v. Tribune Co., 72 N. W. 808, 5 Cyc. 217; Burnell v. Railroad Co., 45 N. Y. 184; Schwerin v. McKie, 51 N. Y. 180; Steers v. Steamship Co., 57 N. Y. 1; Claflin v. Meyer, 75 N. Y. 260.</p> <p>The chattel being delivered without transfer of title the contract was primarily one of bailment. Scott Mining and Smelting Co. v. Schultz & Clary, 73 Pac. 903; Porter v. Duncan, 23 Pa. Super. Ct. 58; State v. Sienkiewiez, 55 Atl. 346; Bates v. Bigby, 51 S. E. 717.</p> <p>The bailee is not an insurer. Fairmont Coal Co. v. Jones & Adams Co., 134 Fed. 711; Knights et al. v. Piella, 69 N. W. 92; Seevers v. Gabel, 62 N. W. 669; St. Paul & Sioux City R. R. Co. v. Minneapolis & St. Louis Ry. Co., 26 Minn. 243; World’s Columbian Exposition v. Republic of France, 91 Fed. Rep. 64; Lake Mich. Car Ferry Transportation Co. v. Crossby, 107 Fed. 723; Drudge v. Leeter, 63 Am. St. Rep. 359; Shropshire v. Sidebottom, 30 Mont. 406, 76 Pac. 941; Adams v. New Jersey Steamboat Co., 56 Am. St. Rep. 616; Dinsmore v. Abbott, 89 Me. 373.</p> <p>Plaintiff having let his horse for a specific purpose assumes risks incident thereto, except what is due to the negligence or fault of bailee. Leach v. French, 31 Am. Rep. 296; Buis v. Cook, 60 Mo. 391; Carrier v. Dorrquance, 19 S. C. 30; Algon v. Grande Ronde Lumber Co., 81 Pac. 385; Sanderson v. Collins, 73 Law J. K. B. 358; Daily v. Black, 92 Mo. App. 228.</p> <p>Burden of proof of negligence against bailee for hire is upon plaintiff. Story on Bailments, sections 213 and 410; Schouler on Bailments and Carriers, section 23; Schmidt v. Blood, 24 Am. Dec. 143; Foot v. Stoors, 2 Barb. 326; Harrington v. Schneider, 3 Barb. 380; Malaney v. Taft, 15 Atl. 326; Bissell v. Harrison Co., 95 N. W. 779; Wisecarver v. Long & Camp, 94 N. W. 467; James v. Orrell, 57 S. W. 931; Knights et al. v. Piella, 69 N. W. 92; Standard Brewery v. Hales & Curtis Malting Co., 70 111. App. 363; Stacy v. Knickerbocker Ice Co., 54 N. W. 1091; Dinsmore v. Abbott, 89 Me. 373; Higman v. Carmody, 57 Am. St. Rep. 33 ; Cook v. National Express Co., 1 Lack. Leg. N. 289.</p> <p>Where a horse, without the fault of the hirer, dies, the loss and expense fall upon the owner. Leech v. French, 31 Am. Rep. 296; Buis v. Cook, 60 Mo. 391; Malaney v. Taft, supra; State v. Burke, 14 Am. Rep. 60; Britton v. Aymar, 23 La. Ann. 63; McEvers v. Sangamon, 22 Mo. 187; Haralson v. Hahl, 85 S. W. 1008; Alden v. Grande Ronde Lbr. Co., supra; Vroman v. Kryn, 86 N. Y. S. 94; Wisecarver v. Long & Camp, supra; Daily v. Black, 92 Mo. App. 228; Pussey v. Webb, 47 Atl. 701.</p>

<p>Application by Don McDonald, county treasurer, for writ of mandamus against H. L. Holmes, state auditor.</p>

<p>Vendor and Pui-chaser — Equitable Mortgage — Accounting.</p> <p>1. Plaintiffs, who are husband -and wife, brought this action, claiming an equitable estate in certain real property under a contract for the purchase thereof entered into by the husband with one of the defendants, and also claiming a homestead right in 160 acres of the land, and prayed judgment giving them a right to redeem upon paying the amount due under the contract and certain other sums as security, for the payment of which the husband had assigned to one of the defendants the contract aforesaid. Evidence examined, and held, for reasons stated in the opinion, that the relief prayed for must be denied.</p> <p>Homestead — Abandonment — Non-joinder of Wife in. Assignment of Contract.</p> <p>2. Plaintiffs occupied the land, and farmed the same for several years, but failed to comply with the contract in any material respect, and, having become helplessly in debt and unable to perform his part of the contract, the husband early in 1903 without his wife joining with him, negotiated a sale of his equity therein to defendant Jensen, and sold and disposed of all his personal property, and shortly thereafter yielded possession of the premises to Jensen, both plaintiffs voluntarily removing from the land. Held,, following the rule announced in Helgebye v. Dammen, 13 N. D. 167, 100 N. W. 246, that such facts constituted an abandonment of the contract and of their homestead rights in the land.</p> <p>Same — Forfeiture of Contract Extinguishes Homestead Right.</p> <p>3. A wife’s homestead rights in land of which her husband has merely an equitable title under an executory contract for the purchase thereof are no greater than, and are dependent upon, the rights of her husband under the contract. If the husband’s equitable estate becomes forfeited or otherwise extinguished, the homestead right is also extinguished.</p> <p>Account — Right of Action.</p> <p>4. The trial court denied the relief asked for, but took an account between plaintiff, Geo. W. Ferris, and defendant, Jensen, and rendered a money judgment against said defendant and in said plaintiff’s favor, basing such action upon the theory of a sale to said defendant of such equitable estate. Whether an accounting was proper under the issues is not determined; the evidence showing that no cause of action was proved, even under such theory.</p>

Guy C. H. Corliss was adjudged guilty of contempt of court for violating an order of the district court of Burleigh county, and was committed in default of payment of a fine imposed upon him. He petitions this court for a writ of habeas corpus, alleging that such order and commitment were unauthorized and void. Writ denied.

Action by Harry D. Ruettell and William C. Tubbs, partners under the name of Harry D. Ruettell & Co., against the Greenwich Insurance Company. Judgment for plaintiffs, and defendant appeals. Issue of stock not essential to corporate organization. Singer Mfg. Co. v. Peck, 67 N. W. 947. A corporation is a distinct person, and its property is vested in it, not its stockholders.

Action by William C. Muir against Arthur P. Chandler. Judgment for defendant, and plaintiff appeals. There was a contract, of which the agreement of lease was a recognition and part performance, which was evidence of a contract of sale, sufficient to compel the court to enforce specific performance of an oral agreement. Ungley v. Ungley, L. R. 4 Ch. Div. 73; 3 L. R. A. (New Series) 790; see Foot Note III, pp. 793-798; Pom. Spec. Perf. of Contracts (2 Ed.) section 115.

Action by E. F. Dreveskracht against the First State Bank of Balfour. Judgment for plaintiff, and defendant appeals. The account to be refered must be between the parties to the action; not between one and a third person. Keller v. Payne, 4 N. Y. S. 227; Continental Ins. Co. v. Phoenix Ins.

Action by G. B. Nystrom against John Lee. Judgment for defendant and plaintiff appeals. By practical settlement and location, parties may compromise a disputed boundary line.

<p>Application by the state, on the relation of Vincent Bockmeier, for a writ of habeas corpus to Fred L. Ely, sheriff of Pierce county.</p>

<p>Statutes — Constitutional Law — Title of Acts — Judicial Districts.</p> <p>1. The title to chapter 161, p. 255, Laws 1907, being an act “defining the boundaries of the Second, Eighth and Ninth judicial districts of the state of North Dakota and providing for terms of court in said district,” does not contravene the provisions of section 61, art. 2, of the constitution, requiring that the subject of the act shall ■be expressed in the title, although the act provides that the judge for the Ninth district shall be elected at the general election of 1908, and that until such election the territory comprising said district - shall be and remain a part of the judicial district to which it belongs under existing laws.</p> <p>Supreme Court — Original Jurisdiction — Consent of Attorney General — Private Relator.</p> <p>2. Where the governor of the state appoints a judge of the district court under a law providing that the office shall be filled by a general election, and a private relator applies for leave to file an application for a writ in the nature of a writ of quo warranto, on the ground that he has suits pending of strictly personal nature, and that the public are interested and that the sovereignty of the state is affected, this court will assume original jurisdiction under section 87, art. 4, of the constitution, although the attorney general refuses to consent that said private relator may apply for leave to file the application for such writ in the name of the state.</p> <p>Statutory Construction.</p> <p>3. In construing statutes, the great aim of courts should be to give effect to the intent of the legislature in the enactment of each provision of the law.</p> <p>Same — Contradictory Provisions.</p> <p>4. In ascertaining what the legislative intent is, inharmonious and contradictory sections should be harmonized and made effectual if it can be done under reasonable rules of construction, and no section or utterance should be nullified if it can be given effect by such rules.</p> <p>Same — Resort to Legislative Journals.</p> <p>5. In determining what the legislative intent was in passing a law that is ambiguous in its terms, the journals of the legislature may be read in order to correctly ascertain such intention.</p> <p>Same.</p> <p>6.In determining what the legislative intention was in passing a law whose provisions are contradictory on its face, the fact that the journal shows that a positive provision, contradictory of a provision stricken out, was inserted in the act by an amendment adopted as the last act before it was passed by one 'body, will be accepted as controlling of the intent, and the seemingly contradictory provisions left in the act will be disregarded and deemed to be in the law through inadvertence.</p>

<p>Appeal from District Court, Barnes county; Burke, J.</p> <p>Action by Harris Aronson against Hans Oppegard, sheriff. The Northwest Thresher Company, intervener. Judgment for plaintiff, and intervener and defendant appeal.</p> <p>Until division tenant has no title to grain raised by him under a farm contract. Hawk v. Konouzki, 10 N. D. 37, 64 N. W. 563; Bidgood v. Monarch Elev. Co., 9 N. D. 627, 84 N. W. 561; Savings Bank v. Canfield, 81 N. W. 630; Angelí v. Egger, 6 N. D. 391, 71 N. W. 547; Whithed v. Elev. Co., 9 N. D. 224, 83 N. W. 238.</p> <p>Where an equitable counterclaim is interposed in a law action, the equitable issue must first be tried by the court, before the legal issues, as if the counterclaim were a separate suit in equity. Cotton v. Butterfield, 14 N. D. 465, 105 N. W. 237; Laffey v. Gordon, 15 N. D. 282, 107 N. W. 969; Arnett v. Smith, 11 N. D. 55, 88 N. W. 1037; 7 Enc. PI. & Pr. 810; Kimball v. McIntyre, 1 Pac. 167; Sheeful v. Murty, 30 Ohio. St. 30; Massie v. Stradford, 17 Ohio St. 596; Buckner v. Mear, 26 Ohio. St. 514; Lestrade v. Barth, 19 Cal. 660; Weber v. Marshall, 19 Cal. 447; Arguello v. Edinger, 10 Cal. 150.</p> <p>A laborer is not entitled to a thresher’s lien.</p> <p>“Advances,” as used in the contract, means a loan. 1 Am. & Eng. Enc. Law, 757, 759.</p> <p>Right of jury trial cannot be defeated by an intervener pleading equitable facts. Kassing v. Walter, 65 N. W. 832.</p>

Action by the Salzer Lumber Company against W. L. Claflin and John E. Strong. Judgment for plaintiff and defendants appeal. There must be a substantial interest before a lien will attach. Reynolds v. Fleming, 45 N. W. 1099; Atwater v. Manchester Savings Bank, 48 N. W. 187; Hook v. Northwest Thresher Co., 98 N. W. 463. Vendee’s interest in the land is to the extent that he has paid on the purchase price. Bart v. Paff, 37 L. R. A. 852; Fish v. Fowlie, 58 Cal. 375; 28 Am. & Eng.