Volume 17 — North Dakota Reports

<p>Mortgage — Bona Fide Purchaser — Notice.</p> <p>1. A mortgagee in a real estate mortgage, without actual notice of the rights of a vendee in a contract for the purchase- of. the real estate covered by the mortgage, which contract has been orally assigned as security, is an innocent purchaser, although such, vendee is in possession of the land when the mortgage is taken. Patnode v. Deschenes 15 N. D. 100, 106, N. W. 573, followed as to- the construction of section 6179, Rev. Codes, 1905</p> <p>Same — Possession of Owner — Landlord and Tenant.</p> <p>2. Land which is. farmed by a tenant under a lease from the owner is in possession of the owner, and not of the tenant.</p> <p>Same.</p> <p>3.Evidence examined, and held to show that possession was-relinquished by the vendee in a contract for the purchase of land, and taken by the mortgagor before the mortgage in suit was executed' and delivered.</p>

<p>Appeal from District Court, Cass county; Pollock, J.</p> <p>Action by the Continental Hose Company against the City of Fargo. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Eddy county; Burke, J.</p> <p>H. O. Nelson and others were convicted of larceny. From an order granting a new -trial, the state appeals.</p>

<p>Appeal from District Court, Burleigh count}'’; Winchester, J.</p> <p>Action -by Simon Harris and Lyman Llarris, doing business as Harris Bros., agailnst Jesse Reynolds. Judgment for defendant,, and plaintiffs appeal.</p>

<p>Appeal — Dismissal — Appealable Order.</p> <p>An order for the dismissal of an action is not an appealable order, and an attempted appeal from such an order'confers no jurisdiction upon the supreme court.</p>

<p>Constitutional Law — Title of Act.</p> <p>1. Chapter 113, p. 167, of the Laws of 1907, which is entitled “An act requiring elevator companies transacting -business in this -state to return certificates of inspection and weighmaster’s certificate of weight to the local buyer,” and which provides for the return of such certificates by the elevator companies, etc., to their local agents, and also that the latter shall post the same in a conspicuous place in the elevators, does not contravene section 61 of the state constitution, which requires that no bill shall embrace more than one subject, which shall be expressed in its title. The subject or object of the act is to furnish information to the public of the facts which such official certificates will impart, and the provisions of section 2 (page 168) requiring local agents to post such certificates in their elevators are germane to the provisions of section 1, and hence to the subject embraced in the title of the act.</p> <p>Same — Interstate Commerce Clause — Warehouse Regulation.</p> <p>2. Such act is not vulnerable to the objection that it contravenes the provisions of the interstate commerce clause of the federal constitution, as its operation will not directly or remotely interfere with interstate commerce; but its enactment is a legitimate exercise of the police power of the state.</p> <p>Foreign Corporations — Regulation by States — Criminal Prosecution.</p> <p>3. Appellant’s contention that the law is void, because it attempts to make acts or omissions committed in a foreign state a crime in this state is not sustained. The conditions on which foreign corporations are permitted to do business in this state are within the legitimate power of the state to prescribe, and defendant corporation, having been authorized to transact business in this state, is amenable to its laws enacted under its police powers to the same extent as its citizens.</p>

<p>Appeal from District Court, Cass county; Pollock, J.</p> <p>The Minneapolis & Northern Elevator Company was convicted of violating the elevator law, and appeals.</p>

<p>Application by the state, on the relation of the North Dakota. State Fair Association of Fargo, for writ of Mandamus against. H. L. Holmes, State Auditor, and the North Dakota State Fail-Association of Grand Forks.</p>

John P. Dahlquist was convicted of maintaining a liquor nuisance and appeals. A record must ibe identified by the entrant, or his absence accounted for. 1 Greenleaf on Ev., section 436; 2 Phillips on Ev., section 926; Donner v. State, 95 N. W. 40; Traber v. Hicks, 32 S. W. 1146; Howard v. State, 32 S. W. 544; Wade v. State, 35 S. W. 663; Gulf C. & S. F. Ry. Co. v. Frost, 34 S. W. 167; Young v. Miles, 20 Wis. 646; McCornick v. Saddler, 37 Pac. 332.

John S. Murphy was convicted of forgery, and appeals. Proof of one crime has no tendency to prove“another unless they are so connected or related, that proof of one has a direct bearing upon another. Coleman v. People, 55 N. Y. 81; People v. Chea, 41 N. E. 505; Shaffner v. Com., 72 Penn. St. 60; Com. v. Jackson, 132 Mass. 16; People v. Molineaux, 61 N. E. 286; 1 Bishop’s New Crim. Proc., section 1120.

Application by the St. Paul, Minneapolis & Manitoba Railway Company for writ of certiorari to Robert B. Blakemore and others. The county of Cass intervenes. Payment of a judgment ends litigation and subsequent orders are void. Rev. Codes 1905, section 7346; Signor v. Clark, 13 N. D. 36, 99 N. W. 68; Dows v. Meyer, 14 N. Y. 527; Northwestern Tel. Co. v. N. P. Ry. Co., 9 N. D. 339, 83 N. W. 215; Bolton v. Donovan, 9 N. D. 575, 84 N. W. 357; McMahon v. Allen, 12 How.

Action by the First National Bank of Bottineau against P. S. Hilliboe and others. Judgment for plaintiff, and defendant’s appeal. Lien statute must be strictly complied with to secure a lien. Philadelphia Seventh Nat. Bank v. Schenandoah Iron Co., 35 Fed. Rep. M2; Cross v. Butler, 72 Ga. 187; Finane v. LasVegas Hotel Co., 3N. Mex. 260; Glynn v. Zabriskie, 19 R. I. 215; Shackelford v. Beck, 80 Va. 573; McGugin v. Ohio Riv.

<p>Appeal from District Court, Ramsey county; Cowan, J.</p> <p>Action by William H. Brown against Sarah Comonow and others. Judgment for defendants, and plaintiff appeals.</p> <p>Deed of trust given as mere security is a mortgage. 110)4 v. Fass, 25 N. W. 45; Austin v. Sprague Mfg. Co., 14 R. I. 464; Shaw v. Norfolk Co. I. Co., 5 Gray, 162; DeWolf v. Sprague Mfg. Co., 49 Conn. 283; Turner v. Watkins, 31 Ark. 429; Martin v. Alter, 42 Ohio Stat. 94.</p> <p>Such deed is within the scope of the statute as regards power of sale. Tiffany on Real Property, section 555; Cross v. Fombey, 54 Ark. 179; Wolf v. Dow, 13 Smedes & M. 103; Schilaber v. Robinson, 97 U. S. 75, 24 L. Ed. 967; Lawrence v. Farmers Loan & Trust Co., 13 N. Y. 200.</p> <p>Assignment of a debt secured by a mortgage carries the latter also. Parker v. Randolf, 59 N. W. 722; Ord v. McKee, 5 Cal. 515; Mack v. Wetzlar, 39 Cal. 247.</p> <p>Trustee in a mortgage can alone execute its powers conferred by it. Seibert v. M. & St. L. Ry. Co., 53 N. W. 1134; Gasser v. Sun Fire Office, 44 N. W. 252; Chicago R. Co. v. Fosdic.k, 106 U. S. 47, 27 L. Ed. 47; Gates v. Railroad Co., 53 Conn. 346; Shaw v. R. Railroad Co., 100 U. S. 605, 25 L. Ed. 757; Canada Southern R. Co. v. Gebhard, 109 U. S. 534, 27 L. Ed. 1020; Guilford v. Minneapolis, S., St. M. & A. Co., 51 N. W. 658; Ogden v. Grant, 6 Dana, 474; Burke v. Backus, 53 N. W. 458.</p>

<p>Pleading — Amendment—Abuse of Discretion.</p> <p>1. On this case being regularly called for trial, the defendant submitted a motion for a judgment upon the pleadings, whereupon plaintiff asked leave to amend his second amended complaint and the reply to defendant’s answer. Held, that the record discloses no abuse of the legal discretion vested in the trial court by its refusal to permit such amendments.</p> <p>Same — Successive Applications to Amend.</p> <p>2. While trial courts should be liberal in permitting amendments so justice may be done, such rule in granting amendments changes to the disadvantage of the applicant on each new amendment being allowed.</p> <p>Same — Denial of New Matter in Answer.</p> <p>3. Under the code an allegation of new matter in the answer, not relating to the counterclaim, is deemed to be controverted by the adverse party. Held, that a general denial of new matter contained in the answer, made in a reply, .is surplusage, and leaves the issues the same as though no such denial had been made.</p> <p>Same — Complaint’s Defects Supplied by Answer.</p> <p>4. Supplying by the answer material allegations omitted from the complaint, which is not demurred to, cures the defect occasioned by such omission.</p> <p>Same — Judgments on Pleadings.</p> <p>5. Under the pleadings in this case, the trial court was justified in holding proof of breach of warranty inadmissible, but, irrespective of any question as to breach of warranty made by the pleadings, other issues were made by reason of which it was error for the court to enter judgment on the pleadings.</p> <p>Same — Statements by Counsel as to Pi'oposed Proof.</p> <p>6. In considering a motion for judgment upon the pleadings made when a case is called for trial, the court may properly take into consideration admissions and statements made by counsel for one of the parties showing what he expects to prove and rely upon on the trial.</p>

<p>Appeal from District Court, Sargefit County; Allen, J.</p> <p>Action by Frank J. Pfeifer against T. T. Hatton. Judgment for plaintiff, and defendant appeals.</p> <p>A pleading will not be stricken out as frivolous, if its character is doubtful. Catholicon Hot Springs v. Ferguson, 67 N. W. 615; Stebbins v. Lardner, 48 N. W. 847; Sigmund v. Bank of Minot, 4 N. D. 164, 59 N. W. 966; Bank of Commerce v. Humphrey, 61 N. W. 444; Sifton v. Sifton, 65 N. W. 67; Northwestern Cordage Co. v. Galbraith, 70 N. W. 1048; Minn. Thresher Mfg. Co. v. Schaack, 74 N. W. 445. ■ .</p> <p>Defense of mitigation of damages must be specifically pleaded. McKyriiig v. Bull, 16 N. Y. 304; Gjerstadengen v. Hartzell, 79 N. W. 8)72.; Kidder- County v. Foye, 10 N. D. 424, 87 N. W. 984>;‘ Bohn Mfg. Co. v. Keenan, 89 N. W. 1009. .</p> <p>Pleas for mitigation are only pertinent to- exemplary damages, or to disprove damages. Wandell v. Edwards, 25 Hun. 498; Gorton v. Keeler, ,51 Barb. 475.</p> <p>Verdict of sheriffs jury is no bar to a suit against the officer. Townsend v. Phillips, 10 Johns 96; Phillips v. Harris, Í9 A. D. 166; Matheson v. Johnson, 92 N. W. 1083.</p>

<p>Appeal from District Court, Cass county; Pollock, J.</p> <p>Action by the F. Mayer Boot & Shoe Co. against Robert J. Ferguson. From an order denying motion to dissolve an attachment, defendant appeals.</p> <p>Affidavit is fatally deféctive if it shows that affiant had no personal knowledge of the facts sworn to. Tim v. Smith, 93 N. Y. 87 ; Mech. & Traders Bank v. Louchein, et ah, 55 Hun. 396; Thomas v. Dickinson, 11 N. Y. Supp. 436; O’Reilly v. Freel, 37 How. 272; Jones v. Hoefs, 14 N. D. 232, 103 N. W. 751; Sonnesyn v. Aiken, 12 N. D. 227, 97 N. W. 557.</p> <p>Failure to deny truth of affidavit does not raise the issue that the attachment was defective as disclosing, no knowledge of affiant. Ladenburg v. Bank, 39 N. Y. Suppl. 119.</p> <p>Issuance of a warrant in North Dakota is a ministerial act and the affidavit was sufficient. Anderson v. Wehe, 17 N. W. 426; White v. Stanley, 20 Ohio State 423; Deering & Co. v. Warren, 44 N. W. 1068; Simpson v. McCarty, 12 Am. St. Rep. 37, 20 Pac. 406; Eureka Steam Heating Co. v. Sloteman, 30 N. W. 241; W'heeler v. Farmer, 38 Cal. 203.</p>

<p>Garnishment — Answer of Garnishee.</p> <p>1. It is not incumbent on a plaintiff in a garnishee action to take issue upon the garnishee’s answer, where it admits that the garnishee has money or property in his hands sufficient to satisfy the plaintiff’s claim.</p> <p>Appeal — Waiver of Objections.</p> <p>2. The defendant, in a garnishee action, by not raising the objection before the trial court that judgment has not been entered in the principal action, waives the obj ection, and cannot, raise it for the first time in the Supreme Court.</p> <p>Same.</p> <p>3. Objections to the sufficiency of plaintiff’s affidavit in -a garnishee action cannot be raised in the Supreme Court for the first time.</p> <p>Garnishment — Exemptions — Determination <of Claim.</p> <p>4. Whether .property in the hands, of a garnishee is exempt or not is to be determined as of the day, of the service,, of the garnishee summons.</p> <p>Same.</p> <p>5.An answer by the. defendant in a garnishee action alleging that the property in the garnishee’s hands is exempt (referring to the time of making the answer) does not state a defense, and evidence that such property is exempt at that time is not admissible under such answer.</p> <p>Same — Transfer of Property.</p> <p>6 A defendant in a garnishee action is not permitted to dispose of his property between the time of the service of the summons and the service of the answer, and thereby defeat a creditor’s garnishment action, on the ground that the property in the hands of the garnishee is actually exempt when the answer is served.</p>

<p>Witness — Transactions With Decedent — Administrator a Party.</p> <p>1. The fact that a witness is a proper party to an action in which the executor, administrator, or heirs at law of a deceased person are parties disqualifies such witness from testifying to transactions or statements made by such deceased person. The fact that such witness is a party defendant with the administrator, executor, or heirs does not render him competent as a witness in such cases.</p> <p>Same.</p> <p>2. The evidence of a witness who is a party in such cases is inadmissible to prove that letters were written and signed by the witness at the request and dictation of the deceased person, whose administrator is a party to the action.</p> <p>Same.</p> <p>3. The evidence of a witness who is a party to an action in which -the administrator of a deceased person is also a party is not admissible to prove the contents of lost letters written or received by the witness to or from such deceased person.</p> <p>Express Trusts — -Created by Writing Alone.</p> <p>4. An express trust in real estate cannot be created or declared except by a writing subscribed by the trustee.</p> <p>Equity — Enforcements of Trusts — Constructive Fraud.</p> <p>5. Where a conveyance of real estate is delivered by a daughter to her father under an oral contract that it is given in trust for the daughter, and such contract is proven by declarations of the father at the time the deed is delivered, and it is shown that the trust has not been carried out, a court of equity will enforce the trust, as the refusal to carry it out is a constructive fraud, based on the relations of confidence existing between the parties.</p> <p>Same.</p> <p>6.In such a case it is immaterial whether the fraud was intentional or not, or whether it existed when the conveyance was delivered.</p> <p>Same.</p> <p>7.In such a case courts of equity do not enforce the trust in violation of the statute of frauds, but relief is granted as based on the constructive fraud and the confidential relation.</p>

<p>Appeal from District Court, Dickey county; Frank P. Allen, J.</p> <p>Action by Sidney J. Marquis against Jessie E. Morris. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal — Statement of Case — Transcript of Testimony.</p> <p>1. The statement of the case contains a literal transcript of the testimony taken and reported by a referee to the district court, without any attempt’to condense or eliminate immaterial matter. Held, following the rule announced in prior decisions of this court, that such practice is a plain violation of section 7058, Rev. Codes 1905, as well as rule 7 of this court, and does not constitute a statement of the case.</p> <p>Same — Specifications of Error — Finding of Referee.</p> <p>2. Certain specifications of error relating to the findings of the referee are held insufficient under the statute and rule aforesaid, for the reason that no attempt is made to specify wherein the evidence was insufficient to support the findings complained of.</p> <p>Same — Assignments of Error.</p> <p>3. Appellant’s assignment of error, based upon rulings and findings of the referee, are not considered, for the reason that the statute and rule above mentioned have not been complied with.</p> <p>Compulsory Reference — Failure to Object.</p> <p>4. Under the provisions of sections 7046 and 7047, Rev. Codes 1905, a compulsory reference cannot’ be ordered without the written consent of the parties, unless the case comes 'within the provision of the latter section. Mere silence'or failure to object ór except to the order will not constitute a waiver of a party’s constitutional right to a trial by jury.</p> <p>Same — Constitutional Daw — Right to Jury Trial.</p> <p>5. Subdivision 1, section 7047, Rev. Codes 1905, is not in conflict with section 7 of our state constitution, which provides that “the right to trial by jury shall be secured to all and remain inviolate.” The right of trial by jury as thus guaranteed refers to such right as it existed by law at and prior to the adoption of the constitution.</p> <p>Reference — Dong Account.</p> <p>6. Under the issues as framed by the pleadings in this case, it is held that the trial thereof involved the examination of a long account, within the meaning of section 7047, Rev. Codes 1905, and hence that the order of reference was properly made.</p>

<p>Application by Fred Zinn'for writ of prohibition to the District Court for Barnes county a,nd Edward T. Burke, Judge. \i</p>

<p>Application of Fred Zinn for writ of certiorari to the District Court of Morton county and Edward T. Burke, judge.</p>

<p>Application by James Bellamy, Jr., for writ of habeas corpus.</p>

Action by the State Finance Company against Olaus H. Halstenson and others. Judgment for plaintiff, and defendants Hodgson and Mary S. Hodgson appeal. ■Sheriff’s deed was champertous. Revised Codes 1905, Section 8733; Galbreath v. Payne, 12 N. D. 164=, 96 N. W. 258; Schneller v. Plankinton, 12 N. D. 561, 98 N. W. 77; Conrad v. Adler, 13 N. D. 199, 100 N. W. 722. Where different initial letters occur in names of persons in the chain of title to realty, identity must be shown.

<p>Appeal from District Court, Cass county; Pollock, J.</p> <p>Action by C. A. Morton and others against James Holes and others. Judgment for defendants, and plaintiff’s appeal.</p> <p>The act infringes the constitutional provision against special legislation. Beleal v. N. P. Ry. Co. lo N-. D. 318, 108 N. W. 33.</p> <p>Assessment is the exercise of the taxing power. Cooley on Taxation (3rd Ed.) 1181.</p> <p>Taxing power can be delegated only to a local representative body. Vallely v. Park Com. 16 N. D. 25, 111 N. W. 615; Bradshaw v. Lankford, 11 L. R. A. 582; Shumway v. Bennett, 29 Mich. 451; Cooley Const. Lim. 163, et seq.</p> <p>Constitutionality of a law is tested not by what is, but what may be done under it. State v. Stark Co., 14 N. D. 368; 103 N. W. 913; Stewart v. Palmer, 74 N. Y. 183.</p> <p>Board can create sewer improvement districts. Webster v. Fargo, 9 N. D. 308, 82 N. W. 732.</p> <p>Police power and taxation for local improvement are subjects of legislative will. Paulson v. City of Portland, 149 U. S. 30, 37 L. Ed. 29; Willard v. Presbury, 81 U. S. 676, 20 L. Ed. 719; Spencer v. Merchant, 125 U. S. 345, 31 L. Ed. 763; Webster v Fargo, supra.</p> <p>Special assessments for local improvements are laid under the police, not taxing power. Hamilton’s Law on Special Assessments,. Sec. 40; Cooley on Taxation (3rd Ed.) 1128; Van Wagner v. Paterson, 67 N. J. L. 455; Adams v. Fisher, 63 Tex. 651; Arnold v. Knoxville, 3 L. R. A. 837; State v. Mayor of Des Moines, 72 N. W. 639.</p>

Action by W. H. Schuyler against F. E. Wheelon and S. W. Wheelon. Judgment for defendants, and plaintiff appeals. An instrument void on its face may cloud a title, and action may be sustained to remove it. Revised Codes 1905, section 6626; Rower v. Kitching, 10 N. D. 254, 86 N. W. 737; Stokes v. Allen, 89 N. W. 1023. A contract designed to supersede another, cannot be read to determine the intention of the parties to the latter. Overbeck v. Association, 17 Mo. App. 310.

Action by Catie Pease against Roland Magill. Judgment for plaintiff, and defendant appeals. Renewal of motion to direct verdict at close of all testimony saves the motion therefor at end of plaintiff’s case. Bowman v. Eppinger, 1 N. D. 21, 4-1 N'. W. 1000.

<p>Appeal from District Court, Cavalier county; Kneeshcm, J.</p> <p>Action by E. A. Wadsworth against C. R. Owens. Judgment-for defendant, and plaintiff appeals.</p> <p>Objection to evidence, on ground of motion, must be specific. Kolka v. Jones, 6 N. D. 461, 71 N. W. 558; Caledonia Gold Mining Co. v. Noonan, 3 Dak. 189, 14 N. W. 426.</p> <p>The evidence of McKechney should have been received, it being admitted without objection. Kolka v. Jones, supra.</p> <p>Owner of land owns crops thereon, unless title thereto is divested by contract. Elstad v. N. W. Elevator Go., 6 N. D. 88, 69 N. W. 44; 29 Am. & Eng. Enc. Law (2d Ed.) 410.</p> <p>Testimony of McKechney was proper. Jones on Evidence, section 809, 876.</p> <p>The products of a thing hired belong to the hirer. Section 5517, Revised Codes 1905; 24 Cyc. 1067; Brown v. Thurston, 96 Am. Dec. 439; Eorsythe v. Price, 34 Am. Dec. 465; Deaver v. Rice, 34 Am. Dec. 388; Branch v. Morrison, 69 Am. Dec. 770.</p>

<p>Appeal from District Court, Foster County; Burke, J.</p> <p>Action by the Foster County Implement Company against' E. Delafield Smith. Judgment for plaintiff, and defendant' appeals.</p>

<p>Constitutional Haw — Privilege of Witnesses — Self Crimination.</p> <p>1.A witness, sworn before a grand jury, cannot be compelled to answer questions which would tend to criminate him, and is privileged from answering such questions by section 13 of the constitution, which declares that “no person * * * shall be compelled in any criminal case to be a witness against himself,” unless granted unconditional immunity from prosecution for the offense concerning which he is testifying by statute.</p> <p>Same.</p> <p>2. Section 9383, Rev. 'Codes 1905, which provides that “no person shall be excused' from testifying * * * by reason of his testimony tending to criminate himself (the witness), but the testimony given by such person shall in no case .be used against him,” does not grant immunity from prosecution.</p> <p>Same — Answer Subjecting Witness to Criminal Prosecution.</p> <p>3. Under section 13 of the constitution the witness is protected from testifying to facts and circumstances from which his connection with, or guilt of, a crime, may be proven through other sources than his answers.</p> <p>Same — Immunity Statutes.</p> <p>4. Before a witness can be compelled to answer questions which tend to criminate him, the statute granting immunity must be coextensive in scope and effect with the constitutional guaranty.</p> <p>Same.</p> <p>5. The legislature has no power to restrict or abridge the privilege guaranteed by section 13 of the constitution.</p>

Action by Ole Hanson against Carl Gronlie. Judgment for plaintiff, and defendant appeals. The overruling of a demurrer reopens the case for trial on the merits. Grovernor v. Signor, 88 N. W. 278. A justice’s jurisdiction must always affirmatively appear. Spears v. Carter, 48 Am. Dec. 687; Root v. McGerrin, 75 Am. Dec. 49. Time and place of meeting must he stated in the order continuing. Sluga v. Walker, 81 N. W. 282.

<p>Appeal from District Court, Grand Forks county; Fisk. J.</p> <p>Action by Michael Maloney against the Geiser Manufacturing Co.. Judgment for plaintiff and defendant appeals.</p> <p>Testimony not tending to support the case made by the pleadings; is inadmissible. Woodward v. Ry. Co., 16 N. D. 38, 111 N. W. 627;: Leonard v. Fleming, 13 N:. D. 629, 102 N. W. 308.</p> <p>■Plaintiff must prevail on the case made in his complaint, or not at all. Barrett v. Wheeler, 24 N. W. 38; Hoffman v. McMorran, 17 N W. 928; Miller v. Nuchols, 4 L. R. A. (N. S.) 149; Taylor v. Modern Woodmen, 83 Pac. 1099, 5 L. R. A. (N. S.) 283; Lucke v. Clothing, etc., Assembly, 19 L. R. A. 408; .Mining Co. v. Johnson, 22 Pac. 459; Browning v. Berry, 12 S. E. 195; Equitable, etc.,. Co. v. Osborne, 9 So. 861, 13 L. R. A. 267; Fidelity, etc. Co. v.. Bank, 25' S. E. 392, 33 L. R. A. 821; Weist v. City of Philadelphia, 200 Pa. 148, 49 Atl. 891; Ry. Co. v. Jennings, 60 N. E. 818.</p> <p>A material fact alleged and admitted becomes a verity for the-purpose of the case. 2 Wig. on Evidence, section 1064; Tisdale v.. Delaware & Fludson 'Canal Co., 22 N. E. 700.</p>

<p>Eminent Domain — Objects for Exercise of tbe Right — Pleading.</p> <p>1. A complaint in an action by a railway company to condemn certain property as a site for a reservoir for the collection and storage of surface water for use in its engines sufficiently alleges a cause of action if it sets forth the ultimate facts that the property sought to ’be condemned is necessary for the purpose of obtaining water required in the operation of its trains.</p> <p>Same — Public Use.</p> <p>2. Private property cannot be taken, under the power of eminent domain except for a public use, but under .the law of this state the use of property reasonably necessary for the construction, maintenance or operation of a railroad is a public use.</p> <p>Same — Pleadings — Conclusions of Law.</p> <p>3. Ultimate facts are all that is requisite or proper to plead, and hence a complaint in an action by a railway corporation to condemn property is sufficient if it alleges that the use thereof is necessary to its construction, maintenance or operation, without alleging in terms that such desired use is a public use. Such latter allegation would constitute a mere conclusion of law.</p> <p>Same — Evidence.</p> <p>4. Evidence examined, and held sufficient to sustain the allegations of the complaint as to the necessity for the use of the property and the whole thereof sought to be condemned.</p> <p>Saíne — Description of Easement.</p> <p>5. The description of the easement sought to be condemned for the construction of a pipe line is held sufficiently definite and certain.</p>

Action by Henry Lund against Nathan Upham. Verdict for plaintiff. From an -order granting a new trial, plaintiff appeals. Notice of intention is essential to the grant of a new trial. Gould v. Dakota Elevator Co., 2 N. Dak. 216, BO N. W. 969; First National Bank v. Comfort, 28 N. W. 855, 4 Dak. 167; Moddie v. Brieland, 70 N. W. 637. Motion for new trial cannot -be entertained one year and six months after notice of entry of judgment.

Action by A. N. Beiseker against Ambrose Amberson. Demurrer to the complaint was sustained, and plaintiff appeals. Mailing acceptance of offer completes the contract. 9 Cyc. 295. Requests and suggestions do not render acceptance conditional. Kreutzer v. Lynch, 100 N. W. 887; 9 Cyc. 269; 9 Cyc. 290; Stevenson v. McLean, 5 Q. B. D. 346; Clark v. Dales, 20 Barb. 42; Brisban v. Boyd, 4 Paige, 17; Culton v. Gilchrist, 61 N. W. 384; Stotesburg v. Massengale, 13 Mo.

Action by Levi E. Force against the Peterson Machine Company. Judgment for plaintiff, and defendant appeals. Where property is converted by the lienee, the lineor can recover the value of the property converted less the amount due on the lien. Lovejoy v. Bank, 5 N. D. 623, 67 N. W. 956; Suth. Dam. 525; Angelí v. Egger, 6 N..

<p>Application by the state, on the relation of T. F. McCue, Attorney General, for writ of mandamus against the Northern Pacific Railway company.</p>

Action by the First National Bank of Knox against Nils O.. Bakken and others. Judgment for plaintiff, and defendants appeal.. When the evidence is such that reasonable men may differ in their conclusions from it, case must go to the jury. Pirie v. Gillitt, 2 N. D. 255, 50 N. W. 710; Vickery v. Burton, 6 N. D. 245, 69 N. W. 193; Warnken v. Merc. Co., 8 N. D. 24'3, 77 N. W. 1000; Pewonka v. Stewart; 13 N. D. 117, 99 N. W. 1080; Hall v. Nor. Pac. Ry. Co., 16 N. D. 60, 111 Nj.

• Action by Mollie L. Aber against T. Twichell, sheriff. Judgment for plaintiff, and defendant appeals. Bill of sale to have effect must be delivered. Rev. Codes 190-5, section 4957; McMain v. Comonow, 10 N. D. 340, 87 N. W. 8; Triber v. Beckwith, 30 Wis. 55, 11 Am. Rep. 546; Munroe v. Bowles, 54 L. R. A. 865. The object of section 6951, Rev. 'Codes 1905, is the protection of the sheriff.

Action by G. C. Hebden against Matj. Bina. Judgment for defendant, and plaintiff appeals. An assignment is sufficient that charges persons with knowledge that the mortgage is assigned. Viele v. Judson, 82 N. Y. 32. Government receiver’s receipt vests beneficial interest. Bowne v. Walcott, 1 N. D. 4-15, 48 N. W. 336. Law presumes legal title from possession. 28 Am. & Eng. Enc.

<p>Appeal from District Court, Pierce county; Cowan, J.</p> <p>Action by S. A. Pratt against T. L. Beiseker, judgment for plaintiff, and defendant appeals.</p>

T. Burke, J. Action by E. M. Larson against Myron O. Walker. From an order denying motion to set aside an order dismissing the cause, plaintiff appeals.

Action by W. D. Russell against the Waterloo Threshing Machine Company. Judgment for plaintiff, and defendant appeals.

Action by the state of North Dakota, to and for the use of the Hart-Parr Company, against the Robb-Lawrence Company and the Northern Trust Company. Judgment for plaintiff, and the Northern Trust Company appeals. A warehouseman cannot pledge his own property by the issuance of a warehouse receipt. Sexton v. Graham, 4 N. W. 1090; Yennie v. McNamee, 45 N. Y. 614; Franklin Natl.'Bank v. Whitehead, 39 L. R. A. 725; Bank v. Nelson, 95 Am. Dec. 400; Adams v. Merchants Natl.

<p>Appeal from District Court, Ransom County; Allen, J.</p> <p>Action by Peter W. Skeffington against James R. Prante and others. From an order sustaining a demurrer to the complaint,, plaintiff appeals.</p>

<p>Drains — Constitutional Daw.</p> <p>1. Following Tyler v. Shea, 4 N. D. 278, 61 N. W. 468, 50 Am-St. Rep. 660, held, that there is no violation of any constitutional provision, in having damages to real estate, resulting from the-construction of a drain, assessed by a jury, and the benefits to the-same property assessed by the drain commissioners.</p> <p>Same — Assessment of Benefits — Jury.</p> <p>2. Chapter 23, Rev. Codes 1905, known as the “Drainage Law,”' does not contemplate the assessment of benefits from the construction, of a drain by a jury.</p> <p>Same — Judgment — Res Judicata.</p> <p>3. A judgment for damages, and condemning a right of way for a drain under chapter 23, Rev. Codes 1905, in an action in- which no benefits were considered, does not preclude the drain commissioners, from assessing benefits.</p>

Action by the Bristol & Sweet Company against' Louis Skapple and John Montgomery. Verdict for Montgomery; and, from an order denying a new trial, plaintiff appeals.

Action -by Anna Marie Anderson against Anton Anderson and -others. Judgment for defendants, and plaintiff appeals. To constitute duress the means adopted need only be such as to •overcome the will of the injured party, without reference to his mental weakness or strength. Neb. Mut.

<p>■Chattel Mortgage — 'Misdescription of Property.</p> <p>1. Where a mortgage on its face shows that it must have been intended to be given on a crop to be sown during the season following its date, the intention of the parties will be given effect, notwithstanding the fact that -the mortgage expresses another year by mistake.</p> <p>Trover and Conversion — Defenses.</p> <p>2. In an action for damages for the conversion of grain, it is competent to plead and show as an equitable defense that .the grain was mortgaged to the defendant and that the mortgage was drawn by mistake to cover the crop of another year, without first reforming the mortgage through an equitable action.</p>

<p>Application -by the state, on the relation of E. F. Ladd, for a writ of prohibition to the district court of Cass county and Charles A. Pollock, Judge.</p> <p>Food commissioner’s error in deciding upon a-prohibited product, or in his conclusions and published statements; or that his prosecution may fail, and a party be without remedy, does not warrant an injunction. Arbuckle v. Blackburn, 113 Fed. 617; Pleasants v. Smith, 43 So. 467; Davis v. Society, etc., 75 N. Y. 362.</p> <p>If his statements are incorrect, the .publication is libel. Arbuckle v. Blackburn, supra; Francis v. Flinn, 118 U. S. 385, 30 L. Ed. 165; Ferrell v. Warren, 3 Wend. 253; Burns v. Erben, 40 N. Y. 463; Butolph v. Blush, 5 Lans. 84.</p> <p>The guilt or innocence of the maker of a prohibited article cannot be tried out in equity. Pleasants v. Smith, supra; Stephens v. McAid, 98 N. Y. S. 553; Gramer v. Truett, 79 S. W. 4; Davis v. Society Prevention Cruelty, 75 N. Y. 363; Delaney v. Flood, 183 N. Y. 323; Power v. Village of Desplaines, 13 N. E. 819; Moses v. Mayor, 5 Ala. 209; Suess v. Noble, 31 Fed. 855; Hemsley v. Myers, 45 Fed. 283; Brown v. Mayor, 37 .So. 173.</p> <p>Upon application for an injunction constitutionality of law not determined; such determination is for ithe main action. Wallock v. Society, etc., 67 N. Y. 23; Paulk v. Mayor, 30 S. E. 417; Paul v. City, 47 S. E. 793; Levy v. City, 27 La. Ann. 620; West v. N. Y. 10 Paige, 539,’27 Cent. Dig. Injunction, section 132.,</p> <p>Prosecution criminally for same matter will not be enjoined. 'Suess v. Noble, supra. Moses v. Taylor, 52 Ala. 198; Stuart v. Supervisors, 83 111. 341; Joseph v. Burk, 46 Ind. 59; Gault v. Walles> •53 Ga. 675.</p> <p>Writ of prohibition issues to an inferior court that has exceeded its jurisdiction, or has assumed to proceed in a case of which it has no cognizance. High on Ex Rem, section 765, 767, 769, 772; Ex Parte Smith, 23 Ala. 94; Quimbo Appo. v. People, 20 N. Y. 531; Havemeyer v. Superior Court, 24 Pac. 121.</p> <p>Legislature may prohibit manufacture and sale of foods although •not injurious to health. Palmer v. State, 48 Am. Rep. 429 ; Shivers v. Newton, 45 N. J. L. 469; State v. Smyth, 51 Am. Rep. 344; Cook v. State, 20 So. 360; Com. v. Tobias, 6 N. E. 217; Weller v. State, 40 N. E. 1001; State v. Dreher, 44 N. E. 510. People v. Girard, 39 N. E. 823; People v. Cipperly, 4 N. E. 107.</p> <p>May establish a standard of purity of foods, although they are harmless. State v. Crescent Cre. Co. 86 N. W. 107; Butler v. Chambers, 30 N. W. 308; State v. Smyth, 51 Am. Rep. 344; State v. Campbell, 13 Atl. 585; People v. Arensburg, 11 N. E. 277; People v. Marx, 2 N. E. 29; Powell v. Penn. 127 U. S. 618; State v. Tetu, 107 N. W. 953.</p> <p>The writ of prohibition issues only in cases affecting the state’s .sovereignty, its franchises, or prerogatives and the liberties of the people. State v. Nelson Co., 1 N. D. 88, 45 N. W. 33.</p> <p>It is not a writ of right, its issuance is discretionary; lack or excess of jurisdiction in the lower court, is not alone sufficient, but it must appear that applicant has no adequate remedy in the ordinary course of law by appeal or certiorari. Murphy v. Supreme Court, 24 Pac. 310; People v. Dist. Court, 19 Pac. 541; State v. District •Court, 2 N. W. 698; Stoddard v. Supreme Court, 40 Pac. 491; Mustin v. Sloan, 11 S. W. 558; State v. Jones, 27 Pac. 452; Powelson v. Lockwood, 23 Pac. 143; Strouse v. Police Court, 24 Pac. 747; Levy v. Wilson, 10 Pac. 272; State v. Rightor, 5 So. 102; In re Fassett, 142 U. S. 479; State v. Whitaker, 19 S. E. 376.</p> <p>Without an application to the trial court and an adverse ruling upon the jurisdiction, or excess of jurisdiction, writ of prohibition will not issue. State v. Attorney General, 39 S. W. 276; Southern Pacific Railroad Co. v. Court, 59 Cal. 471; Baughman v. Supreme Court, 72 Cal. 572; People v. Judge, 3 N. W. 851, 913. ■ ■</p> <p>Equity will enjoin public officers, proceeding under a claim of right, and about to impair property rights or -cause multiplicity of. suits. Smith v. Bung, 15 111. 400; M. & H. Ry. Go. v. Archer, 6 Paige, 262; Belknap v. Belknap, 2 Johns C. R. 463; Schuster v. Board of Health, 49 Barb. 450; Jewett Bros. v. Small, 105 N. W. 738; Sweet v. Holbert, 51 Barb. 312; Rogers v. Board of Health,, 31 Barb. 447; School of Magnetic Healing v. McAnnulty, 187 U. S. 94; Mutual Life Ins! Co. v. Boyd, 82 Fed. 705; Glover v. Board of Flour Inspection, 48 Fed. 348; McChord v. Lanville, 183 U. S. 483; Smyth v. Ames, 169 U. S. 466; Touchman v. Welch, 42 Fed. 548; Western Union Tel. Co. v. Wyatt, 98 Fed. 335; Felts, v. McGehue, 172 U. S. 516; Pratt Food Co. v. Bird, 112 N. W. 701; Ex Parte Dietrich, 84 Pac. 770.</p> <p>Equity may, in a proper case, restrain criminal proceedings. Manhattan I. W. -Co. v. French, 12 Abb. N. C.' 446; Schandler B., Co. v. Welch Co. 42 Fed. 561; Platte & D. & G. v. Lee, 29 Pac. 1036; Flail v. Schultz, 31 How. Pr. 331; Glover v. Board, 48 Fed. 348; Spink v. Francis, 19 Fed. 670; Wadley v. Bount, 65 Fed. 667;, Tuchman v. Welch, 42 Fed. 548.</p> <p>The state cannot prohibit, but may regulate the sale of wholesome food to -prevent fraud. Schallenberger v. Pa. St. 171 U. S. 1; Collins v. New Hampshire, 171 U. S. 30 ; Dorsey v. Texas, 40-L. R. A. 201; Helena v. Dayer, 39 L. R. A. 266; Chicago v. Netcher, 48 L. R. A. 261; Frost v. Chicago, 49 L. R. A. 657; In re Jacobs, 98 N. Y. 98.</p>

<p>Adverse Claims — Plaintiff Must Show Title — Evidence.</p> <p>1. In the statutory action to determine adverse claims to real property, it is incumbent upon plaintiff to prove a title sufficient to authorize 'him to maintain the action, and, until he furnishes such proof, the defendant is not required to prove his adverse title or claim.</p> <p>Taxation — Validity of Tax Deed.</p> <p>2. Plaintiff’s sole proof of title consisted of a tax deed based upon an alleged tax sale made on December 3, 1901, for the taxes for the year 1900. This deed is held void upon its face, for the reason that it discloses that the salé was conducted contrary to the provisions of chapter 154, page 198, Laws 1901, which requires that “each tract shall * * * be struck off to the bidder- * * * who will ag-ree to accept the lowest rate of interest,” etc.</p> <p>Same — Collusion at Tax Sale — Void Bid.</p> <p>3. The tax sale upon which plaintiff’s title is based was void because by an unlawful arrangement between the bidders at the sale all competitive bidding was eliminated; the proof of such unlawful combination and agreement being clearly disclosed by the evidence.</p>

<p>Action by the state, on the relation of T. F. McCue, Attorney General, for writ of mandamus against the Minneapoiis, St. Paul & Sault Ste. Marie Railway Company.</p>

Mortgage foreclosure by Adams & Freese Company against Samuel F. Kenoyer and others. Judgment for defendants, and plaintiff appeals. Legislature may shorten the period within which actions may be •brought, provided reasonable time is fixed within which actions about to be barred might be commenced. Osborn v. Lindstrom, 9 N. D. 1, 81 N.. W. 72, 46 L. R. A. 715; Merchants National Bank of Bismarck, N. D. v. Braithwaite, 7 N. D. 358, 75 N. W. 244.

<p>Appeal from District Court, Ward County; Goss, J.</p> <p>Action by the Landis Machine Company against the Konantz Saddlery Company. Judgment . for plaintiff, and defendant appeals.</p>

<p>Commerce — Subjects of Regulation — Storage of Goods to be Sold on Commission.</p> <p>1.Plaintiff, a foreign corporation, brought this action to recover the purchase price of certain drills sold and delivered by it to defendants. The defense interposed is that plaintiff has not complied with the law of this state, being sections 4695-4699, Rev. Codes 1905, prescribing the conditions upon which such corporations may do business within our borders; it being admitted by plaintiff that it has not complied with such law.</p> <p>Same.</p> <p>2. Evidence, examined, and it is 'held that plaintiff did not violate such statute, as in its dealings with defendant out of which its cause of action accrued it was engaged in transacting or doing an interstate, as contradistinguished from an intrastate, business.</p> <p>Foreign Corporations — Compliance with Requirements — Interstate Commerce.</p> <p>3. The statute aforesaid cannot apply, nor was it intended that it should apply, to foreign corporations while engaged solely in transacting an interstate business. It will be presumed that in the enactment of such statute the legislature did not intend in any manner to interfere with the exclusive power vested in the congress of the United States to regulate or restrict the business of interstate commerce.</p> <p>Same.</p> <p>4. A portion of the drills sold to defendants were in store at Grand Forks, and were shipped directly to defendants from that place, but it is held, for reasons stated in the opinion, that this shipment did not constitute the transacting or doing business within the state in violation of said statute.</p> <p>Contracts — Evidence.</p> <p>5. Certain evidence as to prior, but wholly independent contracts and transactions of plaintiff with other citizens of the state claimed to have been violations of such statute, is held irrelevant,</p>

<p>Municipal Corporations — Resolutions — Veto Power.</p> <p>1. Under section 2658, Rev. Codes 1905, which provides that the mayor “shall have power to sign or veto any ordinance or resolution passed by the council,” it is held, that a resolution passed by the city council prescribing that certain streets and avenues shall be repaved in a certain designated manner is of a legislative character and subject to veto by the mayor.</p> <p>Statutory Construction.</p> <p>2. A construction, which completely nullifies a plain statutory provision, cannot be adopted when the law is susceptible of another construction, which is reasonably in harmony with the apparent object sought to be accomplished by the legislature.</p>

<p>Negotiable Instruments — ‘‘On or Before” — Agreement for Extension —Waiver of Protest.</p> <p>The negotiable quality of a promissory note is not destroyed by a provision therein that the makers and indorsers thereof severally waive presentment of payment and notice of protest, and consent that the time of payment may be extended without notice, when by its terms it is made payable on or before a day named.</p>

<p>Brokers — Commissions — Pleading.</p> <p>1. Action by real estate brokers to recover commissions under an express contract for finding a purchaser for defendant’s property. The complaint, in effect, alleges an express contract that plaintiffs should receive the excess over $20 per acre at which a sale should be effected by defendant to prospective purchasers introduced by them, but it fails to allege that they introduced a prospective purchaser who was willing to pay any sum in excess'of $20 per acre, and it also fails to allege that defendant in faot sold or had any opportunity to sell said property for an amount in excess of such price. Held, that the complaint fails to state facts sufficient to constitute a'cause of action.</p> <p>Same — Evidence.</p> <p>2. Evidence examined, and held insufficient to establish that anything is due the plaintiffs for commissions under the contract, for the reasons that the proof is wholly lacking to show that plaintiffs introduced a purchaser to the defendant who was willing to purchase the property, or that defendant, in fact, sold or had an opportunity to sell for a price in excess of $20 per acre.</p> <p>Same.</p> <p>3. For the same reasons, the conclusions of law of the trial court are wholly unwarranted by the findings of fact.</p> <p>New Trial — Verdict Against Evidence.</p> <p>4. The complaint failing to allege and the proof failing to establish a cause of action in plaintiffs’ favor, the judgment in their favor and the order denying defendant’s motion for a new trial are erroneous.</p>

<p>Appeal from District Court, Ward' County; Goss, J.</p> <p>Action by Peter Bertelson against Peter Ehr. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Morton County; Winchester, J.</p> <p>Action by A. D. Clarke & Co., against Michael B. Doyle and others. Judgment for plaintiff, and defendants appeal.</p>

Action by John Buchanan against the Minneapolis Threshing Machine Company. Judgment for plaintiff, and defendant appeals. Failure to give notice of breach of warranty, according to contract, precludes recovery for such breach. Minn. Thresher Co. v. Lincoln, 4 N. D. 410, 61 N. W. 145; Minn. Thresher Co. v. Hanson, 3 N. D. 81, 54 N. W. 311; James v. Belckedahl, 10 N. D. 120, 86 N. W. 226; Fahey v. Esterly Machine Co., 3 N. D. 220, 55 N. W. 580, 44 Am.

Action by Lehman M. Grove and J. Fultz against the Great Northern Loan Company. Judgment for defendant, and plaintiffs appeal. An instrument representing entirely a usurious' consideration is void. Section 5513, Revised Codes 1905; Ward v. Sugg, 24 L. R. A. 280; Brown v. Marion National Bank, 169 U. S. 416; McGee v. First Nat’l Bank of Tobias, 40 Neb. 92; Webb on Usury, 327, 357; Guthrie v. Reed, 107 Pa.

Action by L. E. Mariner against H. A. Wasser. Judgment for ■plaintiff, and defendant appeals. Where a levy is made on personal property in judgment debtor’s ■possession, demand and refusal to -deliver are indispensable to ren'der officer liable, unless he knows the true ownership of other •claimant.

Action by Henry Rieck against J. B. Daigle. Judgment for defendant, and plaintiff appeals. A statement in a note that merely refers to the consideration or-transaction does not affect its negotiability. Rev. Codes 1899, Ch.. 100, Sec. 5; Buford v. Ward, 19 So. 357; New Zealand Ins.

<p>Set-off and Counterclaim — Subsisting Right of Action.</p> <p>Action on a promissory note. The answer admits the execution and delivery oí the note and the amount due thereon, but alleges two counterclaims based upon a contract under which plaintiff agreed to reimburse defendant for the expenses incurred by the latter in effecting sales of certain fanning mills theretofore sold by plaintiff to defendant and for the purchase price of which the note in suit was given. The first counterclaim is for expenses theretofore incurred by defendant in making sales of seventeen of such mills. The second asks for the sum of $5G0 as the probable or estimated expense of effecting sales of twenty-eight mills which are still unsold and in defendant’s possession. Plaintiff admitted the first counterclaim. The other one was stricken from the answer on plaintiff’s motion, and judgment 'ordered on the pleadings in plaintiff’s favor. Held not error, as no cause of action for the recovery of the expense of making sales in the future of the mills on hand had accrued under the terms of the contract.</p>

<p>Application by the state, on the relation of T. F. McCue, Attorney General, for writ of mandamus against the Great Northern Railway Company.</p>

Action by the American Soda Fountain Company against George M. Hogue. Judgment for defendant and plaintiff appeals. One entitled to the avails of a suit is the real .party in interest. Cassidy v. First National Bank, 14 N. W. 363; Pease v. Rush, 2 Minn. 107; Foster v. Berky, 8 Minn. 351; White v. Phelps, 14 Minn. 27; Hoagland v. Van Etten, 35 N. W. 869 ; Kinsella v. Sharp, 66 N. W. 634; Hogan v. Klabo, 13 N. D. 319, 100 N. W. 847.

<p>Insurance — Accident Policy — Contract of Another State — Pleading —- Proof.</p> <p>1. In an action upon an accident insurance policy, which contains a stipulation that satisfactory proof of claim must be furnished the company .by the claimant within thirty .days after the date of the injury, and also the further stipulation that no suit shall be brought under said policy unless brought within nine months from the date of the accidental injury, defendant denies any liability thereunder on account of a failure to comply with such stipulations. Defendant contends that the policy of insurance is an Illinois contract, and that under the statute of Illinois the limitations aforesaid are valid. Such defense is unavailing to defendant, as there is no allegation in the answer and no proof in the record as to the existence of such a statute in said state, and, in the absence of such allegation and proof, the law of the forum controls.</p> <p>Same — Proof of Loss — Time to Sue.</p> <p>2. Under the law of this state (Rev. Codes 1905, sections 5978, 5371) the proof of loss under the policy was furnished and the action brought in ample time.</p> <p>Same — Line of Duty — Brakeman.</p> <p>3. Defendant seeks to escape liability under such policy upon the ground that the insured at the time he met with the accident was not ■engaged in the line of his duty as brakeman, but this contention is overruled.</p> <p>Same — Contributory Negligence of Assured.</p> <p>4. Defendant’s contention that the insured was guilty of negligence which contributed to (his injuries, and hence that the beneficiary cannot recover under such accident insurance policy, has no sup • port in the evidence, and is therefore untenable.</p> <p>Same — Presumptions and Burden of Proof — Cause of Injury.</p> <p>5. The policy provides for the payment of benefits only in case ■of personal bodily injury, “through external, violent and purely accidental causes.” It also .provides that, “where the accidental injury results from unnecessary exposure to danger or to obvious risks of injury,” the amount payable shall be but one-tenth of the face of the policy. The policy contains no provision exempting the company from liability for negligence of the insured contributing to his injuries, and it will be presumed in the absence of proof to the contrary that the injuries were received through accidental causes.</p> <p>Trial — Questions for Jury.</p> <p>6. At the conclusion of plaintiff’s testimony defendant moved for a directed verdict in its favor, which motion was denied. Thereafter plaintiff moved for a directed verdict in her favor, which motion was. granted. No request was made by defendant’s counsel to submit any question of fact to the jury; hence defendant waived its right, if such right existed, to have submitted to the jury the question as, to whether t'he injury was accidental, or whether it resulted from unnecessary exposure to danger -or to obvious risks of injury within the meaning of the terms of the policy.</p> <p>Appeal — Assignment of Error — Exceptions — Directing Verdict.</p> <p>7. An assignment of error based upon the rulings of the trial -court in directing a verdict, where no exception to such ruling was taken, ■cannot be considered.</p> <p>Insurance — Deduction of Premium — Matters Not Pi’esented Below.</p> <p>8. It is contended that a certain portion of the unpaid premium on said policy should have been deducted from plaintiff’s recovery. Held, that such contention is without merit,, as there is no foundation, in the pleadings for any such allowance or deduction, and no such, question was presented to or passed upon by the trial court.</p> <p>Same.</p> <p>9. So-called specifications of error not embraced in the settled statement of the case will not be noticed, and an assignment of error based thereon cannot be considered.</p>

Action by the Plano Manufacturing Company against S. J. Doyle. Judgment for plaintiff. Defendant appeals. Where a general agent, with authority to collect for his principal, pays money to himself for the latter’s debts, the debtor’s obligation is extinguished. Gray v. Herman, 6 L. R. A. 691; 40 Am. Rep. 66; Stebbins v. Lardner, 48 N. W. 847. Payment may be made by one other than the debtor, but in his behalf. 22 Am. & Eng. Enc. Law, 235.

Action -by Henry Erickson against J. B. Elliott. Judgment for plaintiff was reversed in the district court, and he appeals. On appeal from justice court, issue is same as below. O’Maley v. Garriott, 49 S. W. 108; Clements v. Carpenter, 78 S. W. 369; -Cedar Hill Orchard & Nursery Co. v. Henney, 80 S. W. 378; Lamping v. Keenan, 13 Pac. 434; Union Pac. Ry. Co. v. Sternberg, 31 Pac. 1031; Currie v. Southern Pac. Ry.

<p>Appeal from District Court, McHenry county; E. B. Goss, J.</p> <p>Action by Henry Erickson against J. B. Elliott. Judgment for plaintiff was reversed in the district court, and he appeals.</p>

<p>Constitutional Law — Delegation of Legislative Power — Drainage Act.</p> <p>1. The drainage act, being sections 1818 to 1850, Rev. Codes 1905, -does not conflict with section 25 of the state constitution, which vests the legislative power of the people of the state in the legislative assembly. Appellants’ contention that such drainage law is an unwarranted delegation of legislative power to the board of drain commissioners is not sustained.</p> <p>Same — Due Process of Law.</p> <p>2. Such law does not violate the fourteenth amendment to the Constitution of the United States, nor section 13 of the constitution of this, state, prohibiting the taking of property without due process of law.</p>

<p>Appeal and Error — Notice of Appeal — Service.</p> <p>1. Failure to serve notice of appeal by one defendant upon his codefendant, against whom the action was dismissed by the trial court, is not ground for dismissing the appeal on motion of plaintiff, when the appellant does not rely upon the dismissal as error, and the respondent has not appealed from the order or judgment of dismissal.</p> <p>Same — Statement of Case.</p> <p>2. Rule 7 of the Supreme Court (IQ N. D. 41, 91 N. W. 6) is intended to facilitate the work of that court, and to aid litigants in pointing out and making clear the errors relied upon, and to relieve the court of the necessity of exploring the whole record.</p> <p>Same — Defective Statement.</p> <p>3. In the statement of the case no attempt is made to comply with the requirements of the rule above cited by reducing the testimony to narrative 'form, or to eliminate those parts having no bearing upon the decision of the case, and the specifications of error do not comply with the requirements of the rule, but are scattered throughout tihe proceedings wherever an exception was taken. For these reasons this court will disregard everything except the judgment roll.</p> <p>Same — Abstracts and Briefs.</p> <p>4. Rule 19 of this court (10 N. D. 52, 91 N. W. 11), prescribing ■the size of the page and method of binding typewritten abstracts and briefs, should be followed.</p>

<p>Chattel Mortgages — Replevin by Mortgagee — Time.</p> <p>1. On the uncontroverted facts of this case, it is held, that, as to the principal of the notes secured by the mortgages sought to be foreclosed, this action was prematurely brought.</p> <p>Judgment — Res Judicata.</p> <p>2. Plaintiff contends that he was entitled to the possession of certain chattel security for the purpose of foreclosing mortgages on the same to recover two items of indebtedness from the defendant to him, aggregating $149. Held, that for this purpose the action cannot be maintained, for the reason that the liablity of the defendant to plaintiff for said items was litigated and determined adversely -to- the plaintiff herein in the case of Block v. Donovan,, 13 N. D. 1, 99 N. W. 72.</p>

Action by Percy M. Cole and others against the Minnesota Loan & Trust Company and others. Judgment for plaintiffs, and defendants appeal. Acts of dedication must be unequivocal. Harris’ Case, 20 Grat. 837; Holdaone v. Gold Spring, 21 N. Y. 474; Washburn on Easements, 180; 13 Cyc. 451; Milliken v. Denny, 53 S. E. 867. An agent, unless authorized, cannot dedicate to public use. 10 Cyc. 927; Stow v. Wise, 18 Am.

• M. B. Chase and John Dwyer were convicted of keeping a gambling resort, and they appeal. . Defendant is entitled to a day after plea to prepare for trial. Section 9935, Revised Codes 1905. It is his right without statute. Miller v. U. S. 57 Pac. 836; Goodson v. U. S. 54 Pac. 423; Johnson v. State, 49 S. W. 618; State v. Pool, 23 So. 503. Trial is not begun until jurors are sworn. State v. Hazledahl, 2 N. D.'521, 52 N. W. 315; State v. Kent, 5 N. D. 516, 67 N. W. 1052.

Action by L. B. Pendroy against the Great Northern Railway Company. Judgment for plaintiff, and defendant appeals. Where the view of one about to cross .a railroad track is obstructed, he must stop and listen. West v. N. P. Ry. Co,, 13 N. D. 221, 100 N. W. 254; Kniter v. Railway Co. 54 Atl. 276; Chicago, etc. Rjc Co. v. Crisman, 34 Pac. 286. Plaintiff was guilty of contributory negligence.

Action by Louis Kaslow against E. J. Chamberlain. From an order setting aside a judgment' and granting defendant a new trial Plaintiff appeals. It must appear of record that motion was made on the date set in the notice. 15 Am. & Eng. Enc. Law (1st Ed.) 914, note. Stipulation must be in writing. Section 502, Revised Codes 1905; Rule 21, Dist.

Moses Minor was convicted of malicious mischief, and he appeals. Acts done in good faith are not malicious in a legal sense. State v. Flynn, 28 Iowa, 26; Sattler v. People, 59 111. 68; State v. New-kirk, 49 Mo. 84; State v. Hause, 71 N-. C. 518; Goforth v. State, 8 Humph., 37; Palmer v. State, 45 Ind. 388; The King v. Langford, 1st C. & M., 602. An unlawful act intentionally done, without cause, is malice. State v. Grassier, 74 Mo.

Action by Wiliam Strehlow against Donald McLeod. Judgment for defendant, and plaintiff appeals. In the foreclosure of a mortgage on property in defendant’s possession, mortgagor cannot gainsay his act in giving the mortgage.

<p>Application by G. B. Nystrom for writ -of prohibition to Charles F. Templeton, Judge of the First Judicial District.</p>

Action by the North Dakota Horse & Cattle Company against Siver Serumgard. Judgment for plaintiff, and defendant appeals..' Right to redeem depends upon an actual, not apparent lien. Section 7139, Revised Codes 1905; Scheibel v. Anderson, 79 N. W. 594; Scobey v. Kinningham, 31 N. E. 355; Todd v. Johnson, 57 N. W. 320.

<p>Appeal from District Court, Ramsey County; Cowan, J.</p> <p>Action by John McBride against Robert Wallace. Judgment for plaintiff, and defendant appeals.</p> <p>An agister of cattle undertakes only such care as a man of ordinary prudence uses towards his own property under like circumstances. 1 Am. & Eng. Enc. Law, 589; 3 Cur. Law, 162, note 68 Revised Codes 1905, section 5472; Wood v. Remick, 9 N. E. 831.</p> <p>When defendant advises plaintiff of the accident to animal, burden is on the latter to show negligence. Calland v. Nichols, 46 N. W. 631; 2 Enc. of Ev. 193; Wood v. Remick, supra; Elliott on Ev. Vol. 3, sections 1783 and 1785; Willett v. Rich, 7 N. E. 776;, Foster v. Pacific Clipper Line, 71 Pac. 48; Stewart v. Stone, 14-L. R. A. 215; 2 Cyc. 323.</p> <p>Negligence must be shown to be proximate cause of injury. 2-Enc. Ev. 196; 2 Elliott on Ev., section 1787; Revised Codes 1905,. section 9522.</p> <p>Plaintiff must show agister’s negligence. 2 Cyc. 323; Wood v. Remick, supra; 2 Enc. of Ev. 193, 196.</p> <p>It is competent to show agister’-s reputation for care. Revised" Codes 1905, sections 5472, 6694; 3 Cur. Law, 162, note 68; 1 Am.. & Eng. Enc. Law 589; 2 Cyc. 323; 5 Cyc. 217; 2 Enc. Ev. 201.</p> <p>Evidence as to custom of neighborhood in handling stock is competent. Revised Codes 1905, section 5553; 5 Cyc. 219; Maynard v. Buck, 100 Mass. 40; 2 Enc. of Ev. 202; 3 Elliott on Ev. 1768, 1796.</p> <p>The -charge must correctly state the rule, viz: “Bailor must-prove the contract of bailment, delivery and failure to return, or return in a damaged condition; it is then for bailee to show -the-manner- of loss or injury, and if successfully done, bailor must-show it due to bailee’s negligence.” 3 Elliott on Evidence, 1785,. 1796; Revised Codes 1905, sections 5465, 5553; 5 Cyc. 219; 2 Enc. of Ev. 202.</p> <p>Where property is bailed in good condition, and returned in bad, or not at all, bailee’s negligence is presumed. '5 Cyc. 217; Can-field v. B. & O. R. R. Co., 93 N. Y. 553; Burnell v. N. Y. C. R. Co., 45 N. Y. 185; 6 Am. St. Rep. 61; Magnis v. Dinsmore, 56 N. Y. 168; Steers v. Liverpool, etc., Steamship Co., 57 N. Y. 6; 15 Am. St. Rep. 453; Fairfax v. N. Y. C. & Hud. R. R. Co. 67 N. Y. 11; Clafiin v. Meyer, 75 M Y. 260; 31 Am. St. Rep. 467; Schmidt v. Blood, 9 Wend. 524; Russell v. N. H. Steamboat Co., 50 N. Y. 121.</p> <p>Motion for directed verdict must be made at close of all testimony. Ulstad v. Anderson, 2 N. D. 167, 49 N. W. 659; Bowman v. Eppinger, 1 N. D. 21, 44 N. W. 1000; Conrad v. Smith, 2 N. D. 408, 51 N. W. 720; Colby v. McDermott, 6 N. D. 495, 71 N. W. 772; Tetrault v. O’Connor, 8 N. D. 15, 76 N. W. 225; First Nat. Bank v. Red River Valley Nat’l Bank, 9 N. D. 319; 83 N. W. 221; Haggerty v. Strong, 74 N. W. 1037.</p> <p>Whether defendant used ordinary care was for the jury. Bullard v. Mulligan, 29 N. W. 404; Loveland v. Gardner, 4 L. R. A. 395; Welch v. Mohr, 28 Pac. 1060.</p>

Action by Alice Stiles against Seymour Granger and others to determine title to land. Judgment for plaintiff, and defendant Granger appeals. ¡Failure of true owner to assert title within the statutory period, makes the adverse occupant owner against all others. Mayberry v. Willoughby, 5 Neb. 368; 1 Cyc. 1084; 1 Ene. Ev. 669; Pyobst v. Trustees, 129 U. S. 182, 9 Supt. Ct.

Original application for writ of certiorari by B. W. Schouweiler and others to be directed to Frank P. Allen and others. Persons not parties below, having an interest in the proceeding to be reviewed may apply for certiorari. Champion v. Com’rs, 5 Dak. 416, 41 N. W. 739; State v. Rose, 4 N. D. 319, 58 N. W. 514; ■6 Cyc. 767, 768, 769. Intervention must be before entry of judgment.

William H. Denny was convicted of receiving stolen property, knowing the same to have been stolen, and from the judgment of ■conviction and an order denying a new trial, he appeals. Charge must cover substantive elements of the crime. State v. Fordham, 13 N. D. 502, 101 N. W. 888. Felonious or wrongful intent essence of the crime. O’Connel ~v. State, 55 Ga. 191; Rice v. State, 50 Tenn. 215; Revised Codes 1905, section 9199.

Application by the state, on the relation of H. H. Steele and others, for a writ of mandamus to J. W. Fabrick. 1 Delays incident to appeal, occasioning a denial of justice, warrants the prerogative writ. Gaines v. Rugg, 148 U. S. 228, 13 Sup. Ct. Rep. 611; State v. Hart, 57 Pac. 415; State v. Dick, 79 N. W. 421; State v. Johnson, 79 N. W. 1080; Merced Mining Co. v. Frenjont, 7 Cal. 130; Clark v. Crane, 57 Cal. 634j Cariaga v. Fernald, 5 Pac. 615.

<p>Application by the state, on the relation of R. B. Cox and others, for writ of mandamus to J. W. Fabrick.</p>

<p>Supreme Court — Original Writ — Jurisdiction.</p> <p>1. The jurisdiction of .the Supreme Court to issue writs under existing constitutional provisions ordinarily extends only to cases publici juris, "wherein are directly involved the sovereignty of the state, its franchises or prerogatives, or the liberties of its people.</p> <p>Same — Change of County Seat — Questions Publici Juris.</p> <p>2. The matter of the change of the location of the county seat of a county is not a question publici juris, affecting the sovereignty or franchises of the state.</p> <p>Same —■ Mandamus.</p> <p>3. The mere fact that delays might occur if legal proceedings are instituted in the district court, and that an appeal might be taken to this court from the district court, does not present such exceptional circumstances as would constitute a reason for issuing a writ of mandamus by the Supreme Court to compel the county commissioners to act in matters solely pertaining to the removal of a county seat.</p>

<p>Constitutional Law — Special Legislation — County Seat Removal.</p> <p>1. Chapter 77, page 159, Laws 1905, which provides in effect that in all organized counties not having more than 6,500 inhabitants and in which no courthouse had been constructed prior to the taking effect of the act, proceedings for county seat removals may be initialed by a petition signed by the inhabitants thereof equal in number to one-third of tile votes cast therein for governor at the last election, and further providing for a removal of such county seat by a mere majority vote, is unconstitutional and void, as special legislation.</p> <p>Same.</p> <p>2. The act includes within its terms counties to be subsequently organized; but such attempted classification of the counties having no courthouse upon a certain date, and which perpetually precludes them from passing out of such class into the general class after they have erected such buildings, is purely arbitrary, having no reasonable basis to support it.</p>

<p>Appeal from District Court, Benson County; Cowan, J.</p> <p>Elias Johnson was convicted of offering a bribe to a road overseer and appeals.</p>

Contest by Neis H. Elvick of the nomination of Harry Groves at a primary election for the office of county treasurer. Judgment for contestee, and contestant appeals. Departure from strict letter of election law not fatal unless injurious to party complaining. Laws 1907, section 1 and 2; Perry v. Hackney, 11 N. D. 148, 90 N. W. 483; Miller v. Schallern, 8 N. D. 395, 79 N. W. 865. To defeat an election by change of polling places, contestant must allege and prove loss of votes.

Josie Wesie was charged, on information with adultery, and from a judgment sustaining a demurrer to the information, the state appeals. i Adultery is a crime against the state as well as innocent party. State v. Clemenson, 99 N. W. 139. Spouse of the married party to adultery may prosecute the unmarried participant.

<p>Appeal from District Court, Cass County; Pollock, J.</p> <p>Action by Lilly E. Probstfeld against William E. Hunt, Sheriff. Judgment for plaintiff, and defendant appals.</p> <p>A third person, claiming property taken under attachment, is limited for remedy to the mode ordained by statute. Barry v. McGrade, 14 Minn. 153; King v. Oiser, 4 Duer, 431.</p> <p>Must show notice. Dodge v. Chandler, 9 Minn. 97; Barry v. McGrade, supra.</p> <p>Affidavit of claim and demand for property attached are necessary only where it is in possession of defendant in the writ. 'Taylor v. Hanson, 8 N. W. 825; Barry v. McGrade, 14 Minn. 163; Ohlsen v. Manderfield, 10 ,N. W. 418.</p>

<p>Original application by the state, on relation of Francis Cooper and others, for a writ of mandamus against Alfred Blaisdell, as; Secretary of State.</p>

<p>Appeal from District Court, Cass County; Pollock, J.</p> <p>William Clayton Rhoades was convicted of crime, and appeals.</p>

<p>Appeal from District Court, Bottineau County; Burke, J.</p> <p>Action by P. S. Hilliboe, as administrator of the estate of Elias Ertresvaag, deceased, against N. J. Warner, W. R. McIntosh, and •others. Judgment for McIntosh and such others, and Hilliboe appeals.</p> <p>The execution of a bond to an obligee, since deceased, is as to the signers a transaction to which neither can testify. Regan v. Jones, 14 N. D. 591, 105 N. W. 613; Amchampauch v. Schmidt, '34 N. W. 460; Waters v. McCrevey, 82 N. W. 949; Bright v. Macron, 121 N. C. 86; Garretson v. Kinkhead, 92 N. W. 55; Bryant v. Stainbrook, 19 Pac. 917; In re Brown’s Estate, 60 N. W. 659.</p> <p>Alteration of a bond releases sureties, if it is done without their •consent. Hagler v. State, 47 N. W. 692, 28 Am. St. Rep. 514; 'State v. Craig, 12 NI W. 301; State v. Churchill, 3 S. W. 352; 'Smith v. U. S., 3 Wall. 219; Pingrey on Suretyship, section 67, 103, 138; Welch v. Hubschmitt, 61 N,. J. Law 57; Greenville v. Ormans, 51 S. C. 58, 64 Am. St. Rep. 663; Simonson v. Thori, 31 N. W. 861; Brennan v. Clark, 45 N. W. 472; Pioneer Sav. & Loan Co. v. Freeburg, 61 N. W. 25; Backus v. Archer, 67 N. W. 913.</p> <p>Parties are not excluded from testifying to transactions with which decedent had no connection. Giles v. Wright, 26 Ark. 476; Tarry v. Rodahan, 11 Am. St. Rep. 420; St. John v. Lofland, 5-N. D. 140, 64 N. W. 931; Hard v. Ashley, 23 N. E. 177; Wads-worth v. Heermans, 85 N. Y. 639; Thompson v. Onley, 1 S. E. 620.</p>

<p>Appeal from District Court, Grand Forks County; Fisk, J.</p> <p>Action by Richard Galvin against Ti'bbs, Hutchings & Co. From a judgment for plaintiff and an order denying a new trial, defendant appeals.</p> <p>The charge of the court, that the assertion as a fact of that which ft not true by one who has no reasonable ground for believing it true, constitutes deceit, is good law. Mooney v. Davis, 42 N. W. 802; Hudnut v. Gardner, 26 N. W. 502; Judd v. Weber, 11 Atl. 40; Claflin v. Com. Ins. Co., 110 U. S. 81; Wheeler v. Barr, 6 Ind. App. 530; Moyer v. Lederer, 50 111. App. 54; Flower v. Brumbach, '23 N. E. 335; Lobdell v. Baker, 35 Am. Dec. 358; Haight v. Hayt, 19 N. Y. 464; Caldwell v. Maxfield, 64 N. W. 166; Fuller v. Elewator Co., 2 N. D. 220, 50 N. W. 359; McMillan v. Aitcheson, 3 N1. D. 183, 54 N. W. 1030; Mead v. Conro, 8 Atl. 374; Garrett v. Greenwall, 4 S. W. 441; Sandwich Mfg. Co. v. Feary, 33 N. W. 485; Jones v. MeWattey, 11 S. E. 554; Miller v. Ry. Co., 30 N. W. 580; Dow v. Wells, 11 Fed. 132; Griffin v, Ry. Co., 60 Atl. 863; Phillips v. Laughlin, 50 Atl. 64..</p> <p>Docket record and parol evidence of a judgment are not the best evidence. Amundson v. Wilson, 11 N. D. 193, 91 N. W. 37; Strecker v. Railson, 16 N. D. 68, 111 N. W. 612; Noyes v. Belding, 59 N. W. 1069; Miller v. Durst, 86 N. W. 631; Jones on Ev. section 199. I</p> <p>Verdict will not be disturbed when evidence is conflicting. Gull River Lbr. Co. v. Osborne, McMillan El. Co., 6 N. D. 276. '69 N. W. 691; Becker v. Duncan, 8 N. D. 600, 80 N. W. 762; Magnusson v. Linwell, 9 N. D. 154, 82 N. W. 746; Flath v. Cas■selman, 10 N. D. 419, 87 N. W. 988; Ross v. Robertson, 12 N. D. '27, 94 N. W. 765; State v. Howser, 12 N. D. 495, 98 N. W. 352.</p> <p>Burden is on defendant to show that debt was incurred for property obtained under false pretenses. Revised Codes 1905, section 7125; Wagner v. Olson, 3 N. D. 69, 54 N. W. 286; Murphy v. 'Sherman, 25 Minn. 196; German Bank v. Folds, 68 N. W. 747; Nloyes v. Belding, 59 N. W. 1069; State v. Carson, 43 N. W. 361; Sears v. Hanks, 14 Ohio St. 298; State v. Stewart, 9 N. D. 409, 83 N. W. 869; Bracket v. Griswold, 112 N. Y. 454; Curtis v. Hoxie, 59 N. W. 581; Eaton Co. v. Avery, 83 N. Y. 31.</p> <p>To obtain punitive damages actual malice need not be shown;legal malice is sufficient. Kolka v. Jones, 6 N. D. 461, 71 N. W. 558; Castile v. Ford, 73 N. W. 945; Matteson v. Monroe, 83 N. W. 153; Murray v. Mace, 59 N. W. 387; Cronfeldt v. Arrol, 52" N. W. 857; Stonestreet v. Crandell, 62 Pac. 249; Holt v. Van Eps,. 1 Dak. 198, 46 N. W. 689.</p> <p>Whether defendant’s agent communicated all facts to counsel in ordering attachment was for the jury. Merchant v. Pielke, 10 N.. D. 48, 84 N. W. 574; Kolka v. Jones, supra; Struby v. Kyes, 48’-Pac. 663 ; Jonasen v. Kennedy, 58 N. W. 122; Chicago v. Ross, 69 111. App. 123.</p> <p>Evidence going to the matter of notice and. malice in attachment proceedings is an 'exception to the best evidence rule. Wig-more on Ev. section 1252; Bulger v. Ross, 12 So. 803; Foxworth v. Brown, 24 So. 1; Davis v. Walker, 27 So. 313; East v. Pace,. 57 Ala. 521; St. v. Scott, 31 Mo. 121; Helfrich v. Stein, 17 Pac. St. 143; Stewart v. Massengale, 1 Tenn. 379; Parker v. Chancellor, 15' S. W. 157; 2 Enc. of Ev. 285, 287.</p>

<p>Appeal from Ward County Court; Davis, J.</p> <p>'Action by Benjamin McDonell against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. Judgment for plain-, tiff and from an order denying a new trial, defendant appeals.</p> <p>Defendant was bound only to ordinary care after discovery of animals on right of way. Wright v. Ry. Co., 12 N. D. 159, 96 N. W. 324.</p> <p>On rebuttal of presumption of negligence, burden shifts to plaintiff to prove it. Smith v. Ry. Co., 3 N. D. 17, 53 N. W. 173 ; Hodgins v. Ry. Co;, 3 N. D. 382, 56 N. W. 139.</p> <p>Where -there is a dispute in the evidence presumption is not overthrown, and case must go to the jury. Bishop v. Milwaukee Ry. Co., 4 N. D. 536, 63 N. W. 605.</p>

Action by William A. Duncan against the Great Northern Railway Company. Judgment for plaintiff. Defendant appeals. (Revised Codes 1905, section 5690, imposing liability on carrier for shipper’s fault is unconstitutional. ¡Hutchinson on Carriers, sections 265, 328; Van Zile on Carriers, section 478; Texas & P. Ry. Co. v. Edins, 83 S. W. 253; Goodman v. Ore. Ry. Co., 28 Pac. 894; Cottrell v. Union Pac. Ry.