Volume 18 — North Dakota Reports

<p>Appeal from Distrist Court, Barnes county; Burke, J.</p> <p>Action by the Minneapolis, St. Paul & Sault Ste. Marie Railway Company against Hans Qppegard, sheriff of Barnes county, and another. Judgment for defendants, and plaintiff appeals.</p> <p>"Roadbed!” includes grounds necessary for side tracks, turnouts, station houses, freight houses and all other accommodations to accomplish the objects of railway incorporation. C. M. & St. P. Ry. Co., v. Cass County, et al, 8 N. D. 18, 76, N. W. 239.</p> <p>Franchises are grants of privileges by the government. Fietsam v. Hay, 3 Am. St. Rep. 493; State v. Western Irr. Co. 19 Pac. 349; Abbott v. Omaha Smithing Co., 4 Neb.. 416; Augusta Bank v. Earle, 13 Pet. 519.</p> <p>A telegraph line indispensable to railroad operation is a part of the freehold and taxable as such. Am. U. Tel. Co. v. Middleton, 80 N. Y. 408; Badger Libr. Co. v. Marion Water Supply Co, 15 L. R. A. 652; Hughes v. Lamibertville Electric Co. 53 N. J. Eq. 435; Western U. Tel. Co. v. Tennessee, 9 Baixt. 509, 40 Am. Rep. 99; Jov v. St. Louis, 138 U. S. 1; Union Trust Co. v. Weber, 96 111. 346.</p> <p>Property requisite to the exercise of corporate franchise, although used in independent enterprise, is exempt from local or specific taxation. Schuylkill Nav. Co. v. Berks Co. 11 Pa. 202; People ex rel Seip v. Chgo. Ry. Co. 116 111. 181, 4 N. E. 480; C. M. & St. P. Ry Co. v. Bayfield County, 58 N. W. 245; S'. E. L. & P. Co. v. Philadelphia, 191 Pa. 170; Tillery v. H. & St. Jo. Ry. Co. 97 Mo. 348; State Penn. B. Co. v. Jersey City, 49 N. J. L. 540'; C. ;M. & St. P. Ry. Co. v. Houston Co., 38 N. W. 619; Detroit Union R. Co. v. City, 50 N. W. 302; Carondolet Canal Nav. Co. v. New Orleans, 44 La. Ann. 394; Columbia & P. S. R. Co. v. Chilberg, 34 Pac. 163; McPIenry v. Alford, 168 U. S. 651; Vicksburg Bank v. Warrell, 67 Miss. 47; Louisville Tab. Warehouse Co. v. Commonwealth, 57 L. R. A. 33; Jones on Telegraph and Telephone Companies, Sec. 148; Adams v. Ry. Co., 13 So. 932; C. M. & St. P. Ry. Co. v. Supervisors of Crawford Co. 5 N. W. 3.</p> <p>Railroads and telegraph lines are personal property. M. St. P. & S. Ste, M. Ry. Co. v. Dickey Co., 11 N. D. 107, 90 N. W. 260; C. M. & St. P. Ry. Co. v. Cass Co., 8 N. D. 18, 76 N. W. 239; Rev. Codes, 1905, Secs. 1629 and 1536.</p> <p>(Only corporate property in actual use in corporate operations is exempt from taxation. See Rules in Louisville Tofo. Warehouse. Co. v. Commonwealth, 57 L. R. A. 33.</p>

Action by the Sucker State Drill Company against R. J. Brock and R. L. Richardson. Judgment for defendant, -and plaintiff appeals. Leave to amend should be granted. Rev. -Codes 1905, Sec. 7224; Tollerton v. Casperson, 63 N. W. 908; Skinner v. Holt, 69 N. W. 59-5. Appeal' cannot be taken from two; separate orders. Ewing & Harseh v. Lunn, 109 M. 1W, 642; Prodzinski v. Garbutt, 9 N. D. '23-9, 8'3 N. W. 23.

¡Specific performance by O. A. Knudtson 'against John J. Robinson ■and others.

Action ¡by E. J. D. iMiller against ¡the Northern Pacific Railway Company. Judgment for defendant, and plaintiff ¡appeals. An official record, made by a public officer in the discharge of an official duty under obligation of his oath of office and of a penalty imposed by statute, is admissible as competent evidence of the facts required by law to be shown by it. 1 Gr. on Ev. (14th Ed.) Secs. 483, 484, and 493; 9' Am. & Eng. Ene. Law (2nd Ed.) 882, 883.

<p>Counties — Elections — Change in Boundaries — Election — “Electors” — “Shall be Submitted to the Electors” — “Vote” — “Votes Cast.”</p> <p>1. Section 168 of the Constitution reads: “All changes in the boundaries’ of organized counties, before taking effect, shall be submitted to the electors of the county or counties to be affected thereby at a general election and be adopted by a majority of all the legal votes cast in each county at such election.”</p> <p>Held:</p> <p>(a) That the word “electors” as used in said section means all persons possessing the qualifications as to residence, age and citizenship prescribed by section 121 of the constitution as necessary to entitle them to vote.</p> <p>(b) “Shall be submitted to the electors” means that all persons ■who are qualified to vote in the given county, or counties, shall, in a legal manner, be given an opportunity to vote on the question of a change in the boundaries.</p> <p>(c) That a “vote” is the registration in accordance with law of the preference or choice of an elector on a given subject.</p> <p>(d) That “votes cast” are the totals of the separate votes or expressions of voters’ preferences for or against a change in boundaries.</p> <p>Elections — “Voter” Distinguished from Elector.</p> <p>2. A “voter” as distinguished from an elector, is an elector who actually votes.</p> <p>Elections — “Ballot” Distinguished from Vote.</p> <p>3. A “ballot” as distinguished from a vote, is the sheet of paper on which the voter expresses his choice of candidates, or for or against a proposition, or both.</p> <p>Elections — Number of Votes Necessary — Majority.</p> <p>4. A majority of the votes cast upon a question submitted to a vote, if in the affirmative, carries it, unless the legislative will to the contrary is clearly expressed in the constitution or the law.</p> <p>Counties — Change in Boundaries — Election — "Separate Election.”</p> <p>5. In a strict legal sense, although the vote on a change in county boundaries is cast at a general election, it is the holding of a “separate election,” but held in connection with the general election for convenience, to save expense, and because of the numerous subjects then voted upon, a more complete expression of the preferences of the electors is obtained.</p> <p>Constitutional Law — Construction — Legislative.</p> <p>6. Legislative construction, when followed by years of harmonious subsequent legislation, is entitled to great weight in determining the construction of constitutional provisions.</p> <p>Counties — Change of Boundaries — Election — Majority — What Constitutes.</p> <p>■ . 7. The elector who does not participate in an election acquiesces in the result of the votes cast by those who do participate, and to hold that the language of section 168 of the constitution requires more than half as many affirmative votes to be cast in favor of a change in boundaries as are cast on any other subject at the same election would be to give as much effect to the act of an elector who did not vote on such change as to that of one who voted in the negative, and render the statutory provision for negative votes useless.</p> <p>Counties — Change of Boundaries — Election — “Votes Cast.”</p> <p>8. The meaning of words in a statute must often be determined by the subject-matter in relation to which they are used; and, as section 168 relates only to the change of county boundaries, the words “votes cast” should be limited to that subject.</p> <p>Statutes — Construction of Statutes Adopted from Another State.</p> <p>9. A legislative body, in adopting a foreign statute which has been construed by the courts of the state from which it comes, is presumed to have adopted the construction there given it.</p> <p>Counties — Change in Boundaries — Election — Majority — What Constitutes.</p> <p>10. The question of a change in the boundaries of Ward county, and the erection of the new county of Mountraille from a portion of Ward county, was duly submitted to the electors of that county at the general election of 1908. Four thousand two hundred and seven votes were cast in favor of the proposition, and four thousand twenty-four in opposition, while in that county at such election there were cast nine thousand two hundred fifty-nine votes for the different candidates for governor. Held, that the change voted upon was thereby effected.</p>

<p>Bills of Notes — Fraud — Burden of Proof.</p> <p>1.Where fraud- in the inception- of a promissory note is alleged and established, the burden falls upon the indorsee to show that he is a purchaser in good faith for value and before maturity.</p> <p>Same.</p> <p>2. A promise ¡made by the payee of a note in reference to the consideration for giving the same that he does not intend to fulfill constitutes a fraud that will defeat the note except in the hands of an innocent holder.</p> <p>Same — Bona Fide Purchaser — Necessity for Inquiry.</p> <p>3. If a purchaser of a note for value before maturity has notice of facts tending to show defenses to the same, he cannot purposely refrain from making inquiries as to the inception of the -paper, and at the -same time claim to be a bona fide purchaser.</p> <p>Same.</p> <p>4. Payment of value on a purchase of negotiable paper before •maturity constitutes prima facie a bona fide -purchase but no more.</p> <p>Same.</p> <p>5. Circumstances may rebut such prima facie presumption, and good faith in the purchase may be wanting, although the purchase was made before maturity and- for value.</p> <p>Same — Evidence — Absence of Good Faith.</p> <p>6. The fact .that the purchaser does not expressly state that he purchased in good faith is not necessarily fatal to a showing of good faith, but the -omission to so state is a fact which may be considered in connection- with other facts to show the absence of. good faith in the purchase.</p> <p>Same — Question for Jury — Verdict Sustained.</p> <p>7. Whether the -purchase was made in good faith is ordinarily a question for the jury, and it is held in this case that the verdict was sustained by -evidence bearing on the question of bad faith.</p> <p>Same.</p> <p>8.If a purchaser -of negotiable paper, has knowledge of defenses before he pays for it, he is not a 'bona fide purchaser, although the note may have been indorsed and delivered to him before such knowledge.</p> <p>Practice — Motion to Suppress Deposition.</p> <p>9. A written motion to suppress a deposition as a whole is too ■ late when filed with the clerk after the trial court has ordered a jury-called, although the clerk has not -drawn or called th-e name of a j uror.</p> <p>Same — Time to Object to Deposition — When Trial is Commenced.</p> <p>1-0. The statute requires such motions or objections to be made -before the commencement of the trial, and as the requirement is intended to facilitate the despatch of business, and to give an opportunity for retaking the deposition if suppressed, a construction of the statute that the trial has commenced when a jury is -called is reasonable, and gives effect to such intention.</p> <p>Names — Initials—Identity of Witness.</p> <p>11. T.he fact that the notice to take depositions gave the initials of the Christian names only, and the name was given in the deposition .and subscribed by the witness by his Christian name, the first letters-of which were th-e same as the initials given in the notice, does not make extrinsic proof necessary to- show that the witness testifying is the same as the one described in- the notice, especially where the officer taking t’he deposition indorses the same name -on the envelope in which the deposition is inclosed as the one- given in the notice.</p> <p>Evidence — Expert Testimony.</p> <p>12-, An expert witness may give an opinion, -based in .part on what was stated to him by the patient.</p> <p>Same.</p> <p>13. An expert may give an opinion bqsed on the testimony -of other witnesses that he has- heard, or that 'has been read to him, in case there is no- conflict in the facts .testified to by s-uch other witnesses.</p> <p>Pleading —- Objections — Construction.</p> <p>14. More liberality is allowed in favor of the allegations of a pleading where -objected to for the first time -at the trial than when- attacked- by demurrer.</p>

Original application 'by the state, on relation of T. F. McCue, Attorney General, and another, -for the issuance of a prerogative writ to enjoin Alfred Blaisdell, as Secretary of State, fr-om certifying to the various county auditors the names of certain persons as candidates for the office of United States Senator.

<p>Application by Herschel James in the name of the state against Robert D. Beery, as Auditor of Hettinger County, for an original writ.</p>

Action by the State, on the relation of the City of Minot and others, against C. C. C. Willis and others, county commissioners. Judgment for defendants, and plaintiffs appeal.

<p>Pleading — Amendment or Answer.</p> <p>1. An amendment to an answer to conform to the facts in- an action for an accounting may be permitted by the trial -court, although such amendment -is not requested until after the evidence 'has all been taken.</p> <p>Same.</p> <p>2. An amendment to an answer may be made, during or at the close of a trial, to conform to the facts proven, unless the defense is thereby substantially -changed.</p> <p>Assignment — Equitable Mortgages — Subsequent Absolute Conveyance.</p> <p>3. Parties to a written assignment of a contract for the sale of _ real estate, which was made for security purposes, -can annul the same and make such assignment absolute by -a subsequent contract or assignment.</p> <p>Mortgages — Foreclosure — Redemption — Accounting.</p> <p>4. An action for an accounting will not lie, in the absence -of contract or fraud, to -compel a redemptioner from a mortgage foreclosure sale, who thereafter obtained a sheriff’s deed under his redemption, to account to the mortgagor for the difference between what was paid on the redemption- and the value of the land.</p> <p>Equitable Mortgages — Change to Absolute Title.</p> <p>5. The evidence considered, and held to show that the parties agreed to -change an assignment for security purposes to one absolute' in form and effect.</p>

<p>Criminal Law — Embezzlement—Indictment and Information — Variance.</p> <p>1. In a prosecution for embezzknent of a certain check, the information described the check as drawn by “Stromen Bros.” to “BoveySh-ute Lumber Company,” while the proof disclosed that the same was drawn by “Stromen Bros., by Ed. T. Stromen, by A. T. Stromen,” to “Bove-Slnaut Lumber Company.” Held, that the variance was immaterial.</p> <p>Embezzlement — Proof of Other Crimes.</p> <p>2. The chief function of a criminal information is to fully and fairly impart knowledge to the accused of the nature of the charge against him, to the end that he may prepare his defense thereto. It is accordingly held., that, under an information charging embezzlement of a check, the state will not be permitted to show other embezzlements by the accused, and that he used the same to cover up prior embezzlements. Where proof of this character is relied upon for .conviction, the defendant should be apprised thereof by the information.</p> <p>Same.</p> <p>3.Evidence examined, and held insufficient to. support the judgment of conviction.</p>

Action by A. J. McFadden against Thorpe Elevator Company. Judgment for plaintiff, and defendant appeals. An election of remedy, with full knowledge of the facts, is binding. Birdsell Mfg. Co. v. Oglevee, 58 N. E. 231; Harding, v. Atlantic Trust Co., 67 Pac. 222; Thomas v.' Watt, 62 N. W. 345; McDonald v. Bank, 70 N. W. 143; Wright & 'Co. v. Robinson, 82 N. W. 632; Terry v. Munger, 24 N. E. 272; Brai'thwai'te v. Aikin, 3 N. D. 365, 56 N. W. 133.

<p>Statutes — Expression of Subject in Title.</p> <p>1. Section 2, chapter 136, page 244, Laws 1905, providing that no appointment to any of the departmental offices of the state militia shall be for a longer period than two years, is germane to the subject and general purpose expressed in the title, “An act providing that all appointments to the various departments of the National Guard of the istate of North Dakota shall be made from officers of the field and ‘ line,” and does not contravene the provision of section 61, article 2, of the state constitution, requiring that the subject of an act shall be exprssed in the title. (Morgan, C. J., and Fisk, J., dissenting.)</p> <p>Same.</p> <p>2. In determining the constitutionality of a legislative act under section 61, article 2, of the sítate constitution, the title of the act is to be construed in the light of the general object and) purpose of the act; and 'if, so construed, the provisions of the act appear to be in furtherance of the general purpose expressed in the-title,'the act will be upheld.</p>

Mandamus by the state, on the relation -of T. F. McCue, Attorney General, against Arthur -G. Lewis, as auditor of Cass • county. Judgment for relator, and defendant appeals.

Action by the Foster County State Bank against P. J. Hester. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Extension of time of payment or performance without the guarantor’s consent discharges him. Rev. Codes 1906, Sec. 6092; 14 Am. & Eng. Enc. Law (2nd Ed.) 1165; 20' Cyc. 1473; 14 Am. & Eng. Enc. Law (2nd Ed.) 1166 ; Shipman v. Kelley, 38 N. Y. Supp. 597; 24 Am. & Eng. Enc.

<p>Exemptions — Claim to — Sufficiency of Schedule.</p> <p>1. A debtor, desiring to avail himself of the additional exemptions allowed under section 7117, Rev. Codes 1905, must make a schedule of all his personal property, of every kind and character, including money on hand and debts due and owing to him, as required by section 7149, Rev. Codes 1905, and a failure to substantially comply with the provisions of such section will defeat his claim to such exemptions.</p> <p>Same.</p> <p>2. The purported schedule made by plaintiff in this case examined, and held, not a substantial compliance with the statute, as it does not purport to list all of his personal property.</p>

Mandamus ¡by the state, on relation of R. J. Purcell, commanding Hans Anderson, as auditor of Grand Forks county, to- recognize relator as the duly nominated Democratic candidate for the office of county justice of the peace of that county, or show cause, etc. From an order sustaining a demurrer to the writ issued, relator appeals.

Mandamus by the state, on the relation of E. R. Montgomery, commanding Hans Anderson, as auditor of Grand Forks county, to - recognize relator as the duly nominated Democratic candidate for the office of clerk of the district court of that county, or to show cause, etc. From- an order sustaining a demurrer to the alternative writ issued, relator appeals.

<p>Appeal from District Court, Burleigh county; Winchester, J.</p> <p>Action by Frank E. Young, for the use of Ole Johnson-Bostrom, •against C. O. Engdahl. Judgment for plaintiff, and defendant appeals.</p>

Action by the McCarthy Bros. Company against the McLean County Farmers’ Elevator Company and others, in which action an attachment was procured and levied upon defendants’ property.. From an order vacating the attachment, plaintiff appeals. The disjunctive “or” as used in the statute may be employed in an? affidavit, .to characterize and include two or more phases of -the same-fact, attended with the same result. 3 Enc.

<p>Appeal from County Court, Ransom county'.</p> <p>Action by Helma Lowe against Oile Abrahamson and Thomas Casey. Judgment for plaintiff, and defendants appeal.</p>

Action by Neis O. Engliolm and wire against J. M. Ekr-em and others. Judgment for defendants^ and plaintiffs appeal. Equity cannot give specific performance unless the land is specifically determined. 2 Pom. Eq. Rem. Sec. 764, 765, 7-6-7. Contract for conveyance of homestead not in writing and jointly signed and acknowledged by both spouses, is void. Helgeby v. D-ammen, 13 N. D. 167, 100 N. W. 245; Silander v. Gronna, 15 N!

Action by L. J. Ransier against Mary J. Hyndman and others. Judgment for plaintiff, and defendant McLean appeals.

<p>Appeal and Error — Record — Statement of the Case.</p> <p>1. In an equity case .tried and appealed under the provisions of Rev. Codes 1905, section 7229, a statement of the case is not required to enable this court to review, questions appearing on- the record proper.</p> <p>Vendor and Purchaser — Contract — Rate of Interest.</p> <p>2. Tire sole question which the appellate court is asked tO' review relates to the rate of interest whidh plaintiffs are entitled to recover. Held, that the findings of fact of the trial court disclose that plaintiffs had no cause of action at the time this action was commenced, and that, in any event, the rate allowed by the judgment below exceeds the amount called for by the contract between the parties; hence appellants have no cause for complaint.</p>

Action by Bjarnie Peterson against William Conlan and Christopher Conlan. From a judgment for plaintiff, William Conlan appeals. Knowledge by the owner of the vicious inclination of a domestic animal, is essential to charge such owner with damages. Finney v. Curtis, 21 Pac. 120; Spring Co. v. Edgar, 99 U. S. 645; Vpooman v. Lawyer, 13 Johns 339; Losee v. Buchanan, 51 N. Y. 476 ; 2 Cyc. 368; 2 Am. & Eng. Enc. Law, 364; May v. Burdett, 3 Eng. Rule Cases, 108.

<p>Appeal from District Court, Cass county; Pollock, J.</p> <p>Action by Abe Siegel against Gassel Marcus. ' From a judgment for plaintiff, defendant appeals.</p> <p>Promise without consideration is void. 6 Am. & Eng. Enc. Law, (2nd Ed.) 673 ; Lang v. Werk, 2 Ohio St. Rep. 530.</p> <p>Where one sells the good will of a business, and bargains not to engage in it for a limited period in a certain locality, he is not barred from acting as a clerk in the same business, period and location. Battershell v. Bauer, 91 111. App. Ct. 181; Haley Grocery Co. v. Haley, So Pac. 595; Bishop on Contracts, (Enlarged Ed.) 521.</p> <p>The good will of a business may be sold along therewith, within a limited period and territory. Rev. Codes, 1905, Sec. 5430; Mapes v. Metcalf, 10 N. D. 601, 88 N. W. 713.</p> <p>The seller of the good will of a business must observe the spirit as well as the letter of his agreement. Emery v. Bradley, 34 Atl, Rep. 167; Kramer v. Old, 34 L. R. A. 291; Whitney v. Slayton, 40 Me. 224; Dwight v. Hamilton, 113 Mass. 175; Boutelle v. Smith, 116 Mass. Ill; Jefferson v. Market, 37 S. E. 758; 24 Am. & Eng. Enc. Law. 859; Meyer v. Lebau, 26 So. 463; Angier v. Webber, 92 Am. Dec. 765; Nelson v. Johnson, 36 N. W., 868.</p>

Action by Sidney D. Adams against W. J. Hartzell. Judgment for plaintiff, and defendant appeals. Statutory assignment for benefit of creditors does not pass title to realty in another state. Security Trust Co. v. Dodd, 173 U. S. 624; Segnitz v. Trust Co., 83 N. W. 327; Wells v. Walsh, 57 N. W. 969; McClure v. Campbell, 37 N. W. 343; Hutchinson v. Peshine, 16 N. J. Eq. 170; Lessee of Roderick’s Heirs, 2 Hammond, 380; Osborn v. Adams. 18 Pick, 247.

Application by the State, on the relation of Thomas H. Poole, for Avrit of prohibition against S. L. Nuchols and others. Unconstitutionality of Articles of War is no defense to a charge of disobedience of an order of the commander in chief. Dudley on Military Latv, 135; Winthrop on Military Law, Vol. 2, p. 189; Military Laws of the United States, 9*73 and cases cited. Conduct unbecoming an officer and gentleman in the 61st Article of War is a proper charge.

<p>Application ¡by the State, on the relation of M. F. Minehan, for writ of mandamus to Ole B. Wing, County Auditor of McLean County.</p>

' Action by T. W. Griffin against the Denison Land Company. Judgment for plaintiff, and defendant appeals. The designation of the newspaper was sufficient. Fisher v. Betts, 12 N. D. 197, 96 N. W.132; Knight v. Alexander, 37 N. W. 796; Reimer v. Newell, 49 N. W. 865 ; Sperry v. Goodwin, 46 N. W. 328; Cass County v. Security Imp. Co., 7 N. D. 520, 75 N|. W. 775; Emmons Co. v. Bank, 9 N. D. 583, 81 N. W. 22.

Action by J. P. Lamb & Co. against the Merchants’ National Mutual Fire Insurance Company. From a judgment for.plaintiff, and an order denying a new trial, defendant appeals. The conditions of standard policies can .only be waived as provided therein, Kerr on Insurance, 43-2; O’Neal v. Am. Fire Ins. Co. '30 Atl. 940; Northern Assurance Co. v. Bldg. Assn. 183 U. S. 308; Enos v. Ins. Co. 8 Pac. 379; Gladding v. Ins. Co. 4 Pac. 764 ; Couch v. City F. Ins.

<p>Tresspass of Animals — Fence Laws.</p> <p>1. That part of section 1939, Rev. Codes 1905, originally passed as ■section 6, chapter .69, page 102, Laws ISOS, in the words, “provided, that all -corral fence exclusively for the purposes of inclosing stacks, if outside of any lawful enclosure, shall not be less .than sixteen feet distant from such stack so inclosed, shall be substantially .built -with posts not more than eight feet distant from each other, and with' •not less than five strands of barbed fence wire, and shall be not less than five feet high,” is applicable, during the “open season,” to those counties of the state .in which the provisions of section 1933, 'Rev. Codes 1905, permitting live sto-clc to run at large fro-m the 1st day of December until the 1st day of April of each year, have not been abolished by an election duly held for that purpose.</p> <p>Same.</p> <p>2. In a county of this state in which the provisions of section, 1933, Rev. Codes 1905, are operative, a party can maintain an action against the owner of ranging animals for .the damage occasioned by breach of a lawfu’ fence, under the provisions of section 1940, Rev. Codes 1905, only upon a showing that at the time of the alleged trespass he had secured -his property -by a strong and sufficient fence against the intrusion of live stock, and that, notwithstanding the protection afforded by such fence, the animals -have breached or broken such fence and destroyed property within the in-closure.</p> <p>Same.</p> <p>3. A good and sufficient fence deemed in law sufficient to- exclude ranging live stock, -between the 1st day of December and the 1st day of April in each year, in those counties in which the provisions of section 1933, Rev. Codes 1905, are operative, must in 'height, strength and distance from inclosed stacks comply with the provisions of section 1939, Rev. Codes 1905, or present a barrier as effective for the purpose of a fence as that described in that section.</p> <p>Same.</p> <p>4. The party bringing an action in damage against t'he owner of ranging animals during the “open season” for live stock, -for breach of an inclosure under the provisions of section 1940, Rev. Codes-1905, who does not show upon the trial that at the time of the alleged trespass he has secured his property against the intrusion of animals -by a fence deemed in la-w sufficient to exclude them, fails to show a liability on the part of the owner of su-ch animals, or to establish a cause of action a-gainst him.</p>

<p>Mortgage — Priority — Discharge of Prior Mortgage.</p> <p>B and son were indebted to plaintiff in the sum of $40,000, part of which was secured by a mortgage on lands in North Dakota and Minnesota, and part of which indebtedness was unsecured. Being desirous of dividing this indebtedness, B and son made arrangements with plaintiff by the term of which B assumed $24,500 of said indebtedness, which he secured by a mortgage on land in North Dakota. The son assumed $15,500 of said indebtedness, which he secured by a mortgage on the Minnesota lands.</p> <p>Plaintiff cancelled and surrendered up the old notes and executed a satisfaction of the mortgage on the Minnesota lands, but did not execute any satisfaction of the old mortgage on the North. Dakota lands. Held, under the evidence in this case, that the old indebtedness was paid and cancelled, and the North Dakota lands were released from the lien of said mortgage executed by B and son.</p> <p>After the execution of the first mortgage by B and son to plaintiff, and before the execution of the second mortgage by B to plaintiff, he executed a mortgage to W. H. & G. on one quarter section of the North Dakota land. Held, that such mortgage was prior and superior to plaintiff’s mortgage.</p>

<p>Appeal from District Court, Cass county; Chas. A. Pollock, J.</p> <p>Action by Lars Christianson, doing 'business as the Christianson Drug Company, against Kate Hughes. Judgment for plaintiff, and defendant appeals.</p>

<p>Powers of Municipal Corporations — Construction Against.</p> <p>1.Cities have only the following powers: (a) Those granted in express words, (b) Those necessarily implied or incident to the powers expressly granted, (c) Those essential to the declared objects and purposes of the corporation — not simply convenient, but indispensable.</p> <p>Same.</p> <p>2. Doubtful claims of power, or doubt or ambiguity in the terms used by the legislature, are resolved against the corporation.</p> <p>Same — Bond Issue — Constitutional Law — Statutory Construction.</p> <p>3. The constitution and statutes providing for the issuance of municipal bonds are more strictly construed in actions to prevent their issuance than in actions to prevent their payment after they have been issued and negotiated.</p> <p>Same — Bond Election — Notice.</p> <p>4. Section 2678, Rev. Codes 1905, in enumerating the powers of cities, among other things provides how and for what purpose bonds may be issued, and requires that the question of issuing bonds for the construction or purchase of waterworks shall be submitted to a vote of the electors of the city, at an election, after twenty days’ notice, stating, among other things, the purpose for which the bonds are to be issued, and the amount thereof. Held, that a resolution of a city council, providing for the issuance of $100,000 in' bonds, or such part thereof as may be required, and a notice of an election to submit such issuance to the voters, in the same language as the resolution, did not state the amount of bonds to be voted upon, and that without such statement the question of the issuance of bonds is not fairly presented to the electors, who are entitled to know definitely what is proposed in the way of increasing the indebtedness of the city.</p> <p>Same — City Auditor — Ministerial Duties.</p> <p>5. The duties of the auditor in issuing the notice of such an election are purely ministerial, and such notice must follow the terms and conditions of the resolution authorizing the election.</p> <p>Same — Power to Issue Bonds — Delegation.</p> <p>6. The power to authorize the issuance of bonds is vested in the voters, and they cannot delegate such power to the city council.</p> <p>Same — Bond Election — Requisites of Notice.</p> <p>7. The object of the notice of election, and the requirement that the amount of the bonds be stated, is to give the voters and taxpayers such information as will enable them to consider, weigh and discuss the merits of the proposition, and to avail themselves of the opportunity so given to acquire information as to the necessity of the proposed expenditure and the amount of the indebtedness necessary to incur to enable the city council to carry out its plans. When the notice fails to state the amount of indebtedness proposed to be incurred by the issuance of bonds, opportunity is not afforded the voters to inform themselves so as to be able to vote intelligently.</p> <p>Same — Purpose of Notice of Bond Election.</p> <p>8. An election for the issuance of bonds, under the provisions of section 188 of the constitution and section 2678, Rev. Codes 1906, for the construction of part of a waterworks system, on a notice which did not state the amount of the bonds to be issued, is invalid, and the council is not authorized thereby to issue bonds voted.</p> <p>Same — Resolution of City Council — Requisites.</p> <p>9. A resolution of a city council, providing for an election, and a notice of such an election, under section 2678, Rev. Codes 1905, must state the purpose for which it is proposed to issue bonds.</p> <p>Same — Notice of Bond Election — 'Submission of Propositions Singly.</p> <p>10. The legislature, by the provisions which it has made for the issuance of bonds by cities, has not provided for submitting the ques-tion of their issuance to the voters in such a manner as to permit only a vote for or against the issuance of bonds for two or more . purposes on a single vote.</p> <p>Same — Double Question.</p> <p>11. Under our system of elections, every voter is entitled to the opportunity to vote for or against any question submitted, separately and independently from his vote for or against any ’other proposition submitted.</p> <p>Same — Test of Double Question.</p> <p>12. The test whether questions submitted include one .purpose or more is whether the objects for which bonds are to be issued have a natural or necessary connection with each other; and, -if they have not, two purposes cannot be made one by verbal connection.</p> <p>Statutory Construction — Doubt Resolved Against Fraud and Imposition.</p> <p>13. When the meaning of a statute is doubtful, so that either of two constructions may with propriety be adopted by the court, it is the duty of the court to adopt that construction best calculated to protecL the public against fraud and imposition, even though in individual instances such construction may work slight hardship.</p> <p>Bond Election — Double Question — Statutory Construction — Statute of Doubtful Import.</p> <p>14. The fact that one construction of a statute of doubtful import, if ■it be conceded that the meaning of the statute in question is doubtful, would admit of the submission of a question devoid of merit in connection with another of unquestioned merit, and the adoption of a weak proposition by reason of its submission in connection with a meritorious one, furnishes a strong reason for the rule of construction stated in paragraph 11, and this reason applies notwithstanding no question is made in this case as to the good faith or merits of either proposition submitted by the city council.</p> <p>Same — Double Proposition — Void Bond Election.</p> <p>15. A resolution adopted by the city council, providing for an election to vote on the issuance of bonds, and a notice by the city auditor of such election, which state the purposes of the proposed bond issue to be “to defray the cost of building and constructing a new waterworks pumping station and installing therein a new high duty pump and necessary steam boilers, * * * and for the purpose of installing an electric light plant in connection with said pumping station for furnishing street and other lights and power,” states two' purposes and an election held pursuant to such resolution and notice is illegal, and a majority vote in favor of issuing bonds for the purposes stated does not authorize or empower the city council to issue them.</p> <p>Constitutional Law — Debt Limit of Cities.</p> <p>16. Section 183 of the constitution, and the statute, provide a debt limit, for general purposes of cities, of 5 per cent, with power to incur additional indebtedness equaling 3 per cent of the assessed valuation on a two-thirds vote, making a possible indebtedness for general-purposes of 8 per cent. It is also provided that a city, when authorized by a majority vote, may increase its indebtedness, not exceeding 4 per cent, without regard to existing indebtedness, for the construction or purchase of waterworks or constructing sewers, and for no other purpose whatever.</p> <p>Query: Can a city issue bonds for the construction of waterworks or sewers in such a manner as to necessarily include the amount of s-uch bonds in the 5 per cent or 8 per cent debt limit provided for ordinary purposes, or must they be issued in such a manner as to be included within the 4 per cent provision for the construction of -waterworks and sewers? If they must be so issued as to admit of their being included within the 4 per cent special waterworks provision, the connection of an electrict light plant, or of any -other subject except sewers, with waterworks in the issuance of bonds, furnishes an additional reason for holding the proposed issue under consideration illegal.</p>

<p>Master and Servant — Injuries to Servant — Contributary Negligence — Questions for Jury.</p> <p>1. Plaintiff, a minor, between 19 and 20 years of age, was injured while in defendant’s employ in attempting to operate a dangerous contrivance which defendant’s manager had caused to be recently installed for the purpose of utilizing power for a gasoline engine used at defendant’s grain elevator in pulling cars into position for loading grain. Such contrivance consisted of a wooden drum or capstan which was securely bolted to the shaft connecting the engine to the machinery in the elevator, and also a long rope extending from such drum; or capstan to a pulley attached to the rail of the railroad track about thirty feet distant and at right angles therewith and thence along the track to the car to be moved. The scheme was to pull the car by ■causing the rope to wind upon such capstan as the shaft revolved and, in order to operate the same it was necessary for some one to stand back of such capstan and pull the rope sufficiently taut to create •enough friction to cause such rope to -wind. Plaintiff was by defendant’s manager assigned to such duty, and he was injured during the first attempt to operate the contrivance by being caught by such rope and pulled upon and around such drum. Held, that the questions of defendant’s negligence, of plaintiff’s contributory negligence, and 'his assumption of the risks were, under the facts, properly for the jury.</p> <p>Same — Assumption of Risk.</p> <p>2. The rules of .law relative to the respective duties and rights of master and servant regarding obvious risks of the service and in respect to negligence, assumption of risk, and contributory negligence are stated at length in the opinion.</p> <p>Right to Jury Trial — Directed Verdict — Waiver of Jury.</p> <p>3. At the close of plaintiff’s case, defendant moved for a directed verdict, which motion was denied and an exception taken. At the close of defendant’s testimony, and after both parties had rested, such motion was renewed and a like ruling made; defendant saving an exception. Thereafter plaintiff asked the court to instruct the jury that the only question for them to consider was the question of the extent of the injury and the amount of damage; it being plaintiff’s contention that the evidence was conclusive in his favor upon all other issues. Such request for instruction was granted, and defendant excepted. Held, that such ruling was prejudicial error. Defendant was improperly deprived of its right to a trial by jury of all the issues, such right not having been waived, and the trial court was not warranted in the assumption that defendant in making its said motions thereby waived a jury, and submitted all issues to the court for decision.</p>

Action by T. M. Hanson against the Great Northern Railway Company. Judgment for plaintiff, and defendant appeals. Party in charge of goods for shipment has full authority to contract for such shipment. 1 Hutchinson on Carriers, 457; Armstrong v. Chicago, M. & St. P. Ry. 54 N|. W- 1059; California Powder Works v. Atlantic & P. R. Co., 45 Pac. 691, 36 L. R. A. 648.

B. Goss, J. Action by L. D. Gooler and another against A. Nl Eidness. There was a judgment for plaintiffs, and from an order setting the same aside and granting a new trial plaintiffs appeal.

<p>Appeal from District Court, Grand Forks -county; Chas. F. Templeton, J.</p> <p>Action by the Taylor-Baldwin Company against the Northwestern Fire & Marine Insurance Company. Judgment for Plaintiff, and defendant appeals.</p>

<p>Criminal Law — Jurisdiction of Police Magistrates — Waiver of Objection.</p> <p>Whether a police magistrate of a city i-n a county wherein the county 'court has been given increased jurisdiction still retains jurisdiction to try and determine charges of misdemeanor is not decided; but, assuming for the purpose of this case that such jurisdiction had ceased on the granting of increased jurisdiction in the county court, it is held, that by failing to make objection to the jurisdiction of the magistrate, and by appealing from the judgment of the police court to the district court and participating in the trial in the district court and making no objection tO' its jurisdiction or to the jurisdiction of the .police magistrate until after a verdict of guilty, the defendant waived all questions of jurisdiction not raised, and that it was error ■in the district court to grant a motion in arrest of judgment and discharge the defendant.</p>

<p>Specific Performance — Pleading —■ Actions — Defense — Demurrer.</p> <p>This action was brought for specific performance of a contract to secure title to .forty acres of land through the location of government scrip, and to enjoin .the defendant Patterson from conveying any part of the forty acres to the defendant Smith Land Company, and to cancel a contract alleged to have been made by him to convey some portion of such tract of land. The complaint alleges that he was employed to secure and locate scrip for plaintiff, and that he agreed to have the power of attorney -which went -with the scrip, authorizing the holder of the power to sell and deed, run to plaintiff, but that in violation of the contract he had taken it to himself. To a defense which stated that defendant Patterson- had conveyed .by .warranty deed to the plaintiff thirty-seven acres of the forty, and’ that such deed conveyed title in fee simple to the plaintiff, and -had been accepted by him, and setting forth a contract executed by plaintiff and defendant Patterson, wherein plaintiff acknowledged payment by Patterson for three tracts of one acre each in sudh forty acres, and agreed to convey the same to Patterson, plaintiff demurred. Held, that the allegations of the answer referred to standing admitted on demurrer thereto show title in plaintiff to all that part oif the forty-acre tract belonging to him, and that (as far as the pleadings show) his only ground of complaint is that he received title through Patterson instead of direct from the vendor of the scrip, and, further, that a court of equity, looking to substance rather than to form, will, not take cognizance of this variance in the method of obtaining title from that alleged to have been agreed upon, and the part of the answer demurred to states a defense.</p>

Burke, J. Action by George E. Kunkel and others against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. Judgment for plaintiffs, and defendant appeals. One walking along a railroad track with the railroad company’s invitation as others are .permitted to so walk, is a licensee, for whose injury recovery cannot be had unless caused wilfully or by negligence so gross as to imply wilfulness. Pleiss v. C. R. I. & P. Ry. Co., 72 N. W..787; C. C. C. & St. L. Ry.

B. Goss, J. Action by E. Ashley Mears and others against the Somers Land Company and others. Judgment for plaintiffs, and defendants appeal. Where the statute requires an instrument to be subscribed, it means at the end thereof. James v. Patten, 6 N. Y. 9-12; McGivern v. Fleming, 12 Daly 289; Davis v. Shields, 26 Wend. 241-351; Coon v. Rigden, 4 Colo. 275-282; Commonwealth v. Barheight, 6 Gray 113; Stone v. Marvel, 45 N. H. 481; Am.

Action by the First National Bank of Casselton against Arthur G. Lewis, as County Auditor of Cass county, and the Board of County Commissioners of that county. Judgment for plaintiff, and defendants appeal.

Application by Thomas H. Dean for writ of mandamus against B. W. Dimmick, County Auditor, and others. Judgment for defendants, and plaintiff appeals. Omission of name of state was a formal defect only to be cured by amendment. Rev. Codes 1905, Secs. 6883, 6885; Rev. Codes 1905, Sec. 7840; Morgridge & Merrick v. Stoeffer 14 N. D. 430; Merrill' on Mandamus, Sec. 264.

Mandamus by the State, on the relation of Nehemiah Davis, as County Judge of Ward county, against J. W. Fabrick, as Auditor of that county. Judgment for defendant, and relator appeals.

Action by Melvina Massey against H. C. Rae. Judgment for defendant and plaintiff appeals. A deed obtained 'by persons in such relations to the grantor as to give them a controlling or strong influence over his conduct, will be set aside upon slight evidence of improper exercise thereof.

Allen, J. Action by Inga Tronsrud against the Farm Land & Finance Company. Judgment for plaintiff and defendant appeals, and plaintiff moves to dismiss the appeal.

Action by Jacob Scherer, as administrator of the estate of Frances Scherer, against Frank Schlaberg and Frank L. Griffin. Judgment for defendants and plaintiff appeals. Contributory negligence of a parent, although a beneficiary, not a defense. Norfolk Railroad Co. v. Groseclose, 88 Va. 267, 29 Am. St. Rep. 718; Wymore v. Mahaska 'County, 43 N¡. W. 264. Negligence of one member of a family not attributable to another. Cleveland, Columbus and Cincinnati Ry.

A. Pollock, J. Action by James C. Young against the Metcalf Land Company. Judgment for plaintiff, and defendant appeals. Where no terms are fixed by contract, the broker is to submit offers for his employer’s approval; the broker is not entitled to his commission until his employer accepts the offer. 23 Am. & Eng. Enc. -of Law (2nd.) 921; Sawyer v. Bowman-, 59 N. W. 27; Goin v. Hess, 71 N. W. 218; Berry v. Tweed, -61 N. W. 858 ; Kiam v. Turner, 21 Tex. Civ. App. 417.

Action by Andrew Anderson against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. From an order overruling a motion for judgment notwithstanding the verdict and from a judgment for plaintiff, defendant appeals. If proof fails to show killing statutory presumption does not arise. Southern R. Co. v. Forsythe, 23 Ky. L. R. 942; 64 S. W. 506; Southern R. Co. v. McMillan, 101 Ga, 116; 28 S. E. 599. Presumption must rest upon acknowledged or established facts.

Action by Hans Martinson against Mary A. Regan and others. • Judgment for plain-tiff, and defendant Regan appeals. Delay in cancelling contract waives right to terminate it. Fargusso-n v. Talcott 7 N. D. 183, 73 N. W. 207; Timmins v. Russell 99 N. W. 48; Boyum v. Johnson et al., 8 N. D. 306, 79 N'. W. 149; Merriam v. Goodlett et al., 54 N. W. 686; Gaiughen et al. v. Kerr et al., 68 N. W. 694; Her v. Lee, 86 N. W. 642; 9 Cyc. 608; Eaton v. Schneider et al., 57 N. E. 421.

.Appeal from District Court, Pierce county; Goss, J. Action by C. B. Hughes and others against Joseph Horsky and others, as Commisisoners of Pierce county, and Pierce county. Judgment for defendants, and plaintiffs appeal.

F. Cowan, J. Action by F. C. Rising and another against George Dickinson. From a judgment for plaintiff Rising and an order denying a new trial, defendant appeals.

<p>Action by the Aultman-Taylor Machinery Company against Fred Clausen. Application by plaintiff for an order enlarging the time in which to prepare and serve a statement of the case and for stay of proceedings.</p>

<p>Judges — De Facto — Right to Question Authority.</p> <p>1. Following the rule announced in State v. Ely, 16 N. D. 569, 113, N.' W. 711, 14 L. R. A. (N. S.) 638. Held, that Hon. A. G. Burr, who presided as judge at the trial of the issues in a criminal action against appellant, was at the date of such trial a de facto judge of the district court in and for Pierce county, and as such his acts are not subj ect to attack by a private suitor.</p> <p>Indictment and Information — Prosecution in the Name and by the Authority of the State.</p> <p>2. An information which is entitled in the name of the state of North Dakota, and in which the parties are designated as “State of North Dakota, Plaintiff, v. Charley Bednar, Defendant,” sufficiently conforms to section 97, article 1, of the state constitution, which requires. that “all prosecutions shall be carried on in the name and by the authority of the state of North Dakota,” especially where, as in the case at bar, such information recites that the “state’s attorney in and for Pierce county, in the state of North Dakota, as informant, here in open court, in the name and by the authority of the state, gives this court to understand and be informed.” State v. Kerr, 3 N. D. 523, 58 N..W. 27, followed.</p> <p>Indictment ana Information — Assault With Intent to Kill — Inclusion of Lesser in Higher Offense.</p> <p>3. Appellant was charged with the crime of shooting at another with a firearm with intent to kill, and the jury found him guilty of assault with a dangerous weapon by shooting at the complaining witness with a firearm with intent to injure him.</p> <p>Held, that the crime of which ihe was charged is included within that charged in the information.</p>

' Petition by Grace D. Pledderich to the county court for the probate of the will of August M. Hedderich, deceased. The petition was opposed by Gus. M. Hedderich, Jr., and, from a judgment in proponent’s favor, he appealed to the district court, where judgment was also rendered for proponent, and he appeals. Jury must pass .upon all the facts necessary to support a judgment.

<p>Vendor and Purchaser — Brokers—Lien — Negotiable Instruments.</p> <p>1. The respondent C. negotiated a sale of a section of land from appellant to defendant E.'on the crop payment plan; nothing being paid down. A contract was executed by the parties, but not recorded, wherein the appellant agreed that if certain acts were done, among others being the payment of the purchase price by the defendant E, he would deed the land described to said defendant. Payment was to be made by delivering one-half of the crop raised each year free from expense to appellant, and the application of the proceeds on the agreed price. The contract neither mentioned nor described any notes, but three notes were given, one being for an amount equaling $27 per acre for the land and due in 10 years. The other two amounted to $3 per acre, and were due the 1st of the next November after the contract was entered into. The two latter represented C.’s compensation for negotiating the purchase and sale. At his suggestion they were indorsed by appellant without recourse before delivery to him. On their receipt he transferred them to plaintiff and respondent as collateral security to indebtedness, most of which was pre-existing. Such notes in no way refer to the contract. We find from the evidence that it was agreed between appellant and C. at the time such notes were so endorsed that there should be no lien as security therefor upon the land or appellant’s interest in the crop.</p> <p>Held, that the plaintiff, even though an indorsee before maturity, for a valuable consideration and without notice, took such notes free from any lien upon appellant’s interest in the crop and land.</p>

<p>Appeal and Error — Proceedings After Remand- — Dismissal Upon Failure to Prosecute.</p> <p>1. Under section 7228 of the Revised Codes of 1905, providing in every case on appeal, in which the Supreme Court shall order a new trial or further proceedings in the court below, the record shall be transmitted to such court and proceedings had therein within one year from the date of such order, etc., no sufficient excuse for plaintiff’s delay was shown, and the trial court should have dismissed the action.</p> <p>Same.</p> <p>2. The admission of service of the notice of trial by defendant’s attorneys after the expiration of one year from the date of filing the remittitur in the office of the clerk of the district court, and the letters introduced by the plaintiff in evidence on a motion of defendant to dismiss, did not constitute a waiver on the part of the defendant of its right to insist upon a dismissal of the action.</p> <p>Same — Waiver.</p> <p>S. The fact that the defendant’s attorneys appeared at the preliminary call of the calendar and asked that the case be set for a day certain did not constitute a waiver.</p>

G. Burr, Special Judge. Action by William C. Leistikow against Frank C. Zuelsdorf. Judgment for plaintiff and defendant appeals. If the whole credit is not given to the one iwho comes in to answer for another, his undertaking is 'Collateral and must be in writing.

Forcible entry and detainer by the Enderlin Investment Company against Carl Nordhagen and others. Judgment for defendants, and plaintiff appeals. A justice court judgment is enforceable by execution within ten years from its date. Vol. 8 Am. and Eng. Ency. PI. and Pr. 363; Dakota Investment Co>. v. Sullivan, 9 N. D. 303; Bailey v. Wagoner, 17 S. & R. 327; Catlin v. Merchants Bank, 36 Vt. 572.

<p>Original application by the State, on relation of Clause Hagert, for a writ of mandamus to be directed to Charles F. Templeton, district judge.</p>

Action by the Scully Steel & Iron Company against S. A. Hann. Judgment for plaintiff, and defendant appeals. Filing an -answer is a waiver of a demurrer previously interposed. De Boom v. Priestly et al., 1 Cal. 206 ; Pierce v. Minturn et al, Id., 470; Brooks v. Minturn, Id. 481; Bibend v. Kreutz, et al., 20 Id. 110, Plodgson v. Marine Ins.

B. Goss, J. Action by the Sucker State Drill Company, against R. J. Brock and another, as individuals and as a partnership. Judgment for defendants, and plain-tiff appeals.

<p>Original application by the State of North Dakota for a writ of certiorari to the District Court of the Sixth Judicial District and the Hon. W. H. Winchester, Judge thereof.</p>

<p>Statute of Frauds — Pleading — Presumption of Writing.</p> <p>1. Where a contract within the statute of frauds is declared on, the court will presume that it was in writing, unless the complaint shows that it was not.</p> <p>Pleading — Allegation of Ownership — Possession.</p> <p>2. An allegation in a complaint that a grantor in a deed was in possession of the land conveyed when the deed was executed and delivered, and thereafter, is sufficient as an allegation of the ownership of the land by the grantor when the deed was delivered.</p> <p>Trusts — Constructive Trusts — Family Relation — Fraud.</p> <p>3. A complaint alleging that a deed, absolute in form, from parents to their sons was executed solely in reliance on the confidence existing between them and their sons, and in reliance on their sons’ promise to accept the deed in trust for the use of the grantors while they 'lived, and after their death to convey the land equally among all the children of the grantors, states a cause of action for declaring the deed to have been executed in trust for said purpose, and a court of equity will enforce the promise, as the refusal to ■carry it out is constructively fraudulent.</p> <p>Constructive Fraud.</p> <p>4. In such case the agreement is enforced as based on the confidence imposed, which makes the refusal to comply with the contract a constructive fraud.</p> <p>Same.</p> <p>5. Under such circumstances, an allegation of actual fraud is not essential, as the refusal to comply with the agreement is constructively fraudulent, in view of the alleged confidential relations.</p> <p>Same.</p> <p>C. Where the refusal of a grantee to carry out the terms of a trust agreement in reference to conveying real estate is actually or constructively fraudulent, a court of equity will enforce the agreement, although the same is not in writing.</p>

<p>Words and Phrases — Conditional Sale Defined.</p> <p>1. A “conditional sale” is a sale in which the transfer of the title in the thing sold to the -purchaser, or his retention of it, is made to depend upon the performance of some condition.</p> <p>Sales — Conditional Sale — Distinguished From Agency Contract.</p> <p>2. Contract examined and held to be a conditional sale contract, and not an agency contract.</p> <p>Same — Conditional Sale — Breach—Election of Remedies.</p> <p>3. The vendor, on breach of the terms of the conditional sale contract by the vendee, may elect to recover possession of the property, or waive 'his title, and sue for the value or selling price, but he cannot do both.</p> <p>Appeal and Error — Points Not Raised Below.</p> <p>4. The Supreme Court will not consider, as a ground for reversal of the judgment of the trial court and its order denying a new trial, a point not raised in the trial court.</p> <p>Sales— Rescission — Unconditional Offer.</p> <p>5. An offer to rescind a contract of sale on the ground of a breach of warranty, coupled with conditions as to payment of freight and storage, and to return only a portion of the property purchased, is not such an unconditional offer to rescind as can be sustained to defeat an action for the purchase price.</p> <p>Sales — Affirmance by Buyer.</p> <p>6. The facts disclosed in the record in this case show an affirmance of the contract by the appellant.</p> <p>(Syllabus by the Court.)</p>

Emra J. Holcomb, .a minor, through his guardian, Lucy A. Holcomb, petitioned the county court to set apart to himself premises as the homestead of Alanson L. Holcomb, deceased. The .petition was granted by the county court, and Edward J. Holcomb and others appeared to -the district court, where such order was reversed, and Emra J. Holcomb appeals. Right of homestead survives a divorce and remains with the holder of the record title.

<p>Appeal from District Court, 'Ward county; Gow, J.</p> <p>Action by Elizabeth Comford against the Great Northern Railway Company and others. Judgment for plaintiff, and defendants appeal.</p> <p>Building of road as definitely locates as the filing of a map. Jamestown & Northern Ry Co. v. Jones, 177 U. S. 126; St. Paul & Man. Ry. Co., ,v. Maloney, 24 L. D. 460; Montana Central Ry. Co., 25 L. D, 250; S. P. & M. R. Co., 26 L. D. 8-3.</p> <p>Use 'of lands as station grounds is evidence of location. In re St. Paul, Minneapolis & Manitoba Ry. Co., 26 L. D. 83; In re Montana Central Ry. Co., 25 L. D. 250; St. P’aul, Minneapolis & Man. Ry. Co. v. Maloney, 24 L. D. 460.</p> <p>Settlement of an alien does not affect operation of a railroad grant. Central Pac. Ry. Co. v. Booth, 11 L. D. 89; Tittemore v. Southern Pac. 10 L. D. 463; Southern Pac. Ry. Co. v. Saunders, 6 L. D. 98; McCurdy v. Central Pac. Ry. Co., 8 O. C. L. 36 Kelly v. Quast, 2 L. D. 627.</p> <p>'Different considerations apply to grant of lands than to the right of way. Ry. Co. v. Jones, 177 U. S. 125.</p> <p>Actual construction is definite location.' Doughty v. Soo Ry. Co. 15 N. D. 290, 107 N. W. 971.</p> <p>The grant takes effect only when the company does some act that establishes fixity of location. Van Wyck v. Knevals, 106 U. S. 360, 27 L. Ed. 201; Kansas P. R. Co. v. Dunmeyer, 113 U. S. 629, 28 L. Ed. 1122; Smith v. N. P. Ry Co., 58 Fed. 513; Land Co. v. Griffey, 143 U. S. 32, 12 Sup. Ct. Rep. 362.</p>

Action by John U. Hemmi against Alzina R. Grover, in which action plaintiff caused an attachment to issue. From an order dissolving the attachment, plaintiff appeals.

<p>Statutes — Repeal by Implication — Irreconcilable Acts.</p> <p>1. Although repeals by implication are not favored, two irreconcilably repugnant acts passed at different times relative to the same subject cannot stand -together, and the later operates to repeal the former.</p> <p>Insurance — Mutual Hail Insurance Companies — Authority to do Business in State.</p> <p>2. It is therefore held that section 444-9 of the Revised Codes of 1905, as amended -by chapter 153, page 245, Laws 1907, repealed section 4447 of said Revised Codes, and that mutual insurance companies organized under the laws of any other state or country are authorized to engage in the business of hail insurance in this state by complying with the provisions of said section 4449 so far as it applies to foreign mutual insurance companies.</p>

<p>Bills and Notes — Sufficiency of Evidence.</p> <p>1. Action on a promissory note. Judgment for plaintiff. Evidence examined, and held sufficient to justify the judgment.</p> <p>Trial — Requested Instructions.</p> <p>2. Instructions must be given or refused as requested.</p> <p>Same.</p> <p>3. Failure to instruct that appellant was entitled to 7 -per cent interest per annum on all counterclaims allowed him by the jury from maturity to the date of the verdict was not, under .the circumstances, reversible error.</p> <p>Same — Duty to Request More Specific Instructions.</p> <p>4 If appellant desired more explicit instructions than were given by the court, they should have been presented to the court in writing, with the request that they be given.</p>

Action by John Schnase against Sam Goetz. Verdict for plaintiff, and, from an order denying a new trial, defendant appeals. It is error to draw out irrelevant statements on cross-examination and then contradict them by other witnesses.

Action by the Sucker State Drill Company against R. J. Brock and R. L. Richardson, individually and as the firm of Brock & Richardson. Judgment for defendants, and plaintiff appeals.

<p>Deeds — Capacity of 'Grantor — Intoxication.</p> <p>1. Before a deed or other contract will be set aside on the ground of the intoxication of the grantor or maker when the same was executed, the evidence .must show that the grantor was in such a degree of intoxication at the time as to render him entirely incapable of understanding the nature and effect of the transaction.</p> <p>Costs —Attorney’s Fees.</p> <p>2. It is error to tax an attorney’s fee in an equitable action under section 7179, Rev. Codes 1905.</p> <p>Deeds — Evidence — Intoxication of Grantor.</p> <p>3. Evidence considered, and held to show that plaintiff was not rendered incompetent to enter into the contract involved in this action by reason of his intoxication.</p>

Action by the Queen City Fire Insurance Company against the First National Bank of Flannaford and A. O. Anderson. The action was dismissed as to the bank, and, from a judgment for defendant and an order denying plaintiff’s motion for judgment notwithstanding the verdict or for a new trial, plaintiff appeals.

<p>Claim and Delivery — Evidence.</p> <p>1. Action in claim and delivery to recover possession of certain stock. Judgment for defendant. Evidence examined, and held insufficient to justify the judgment.</p> <p>Same.</p> <p>2. Admission o.f Exhibits A, B, F and G offered in evidence by defendant held error.</p> <p>Pleading Estoppel.</p> <p>3. Whether estoppel in claim and delivery is required to be pleaded not decided.</p>

Action by the State of North Dakota against School District No. 50, of Barnes County. From a judgment for defendant and an order denying a new trial, plaintiff appeals. An innocent purchaser has a right to presume that all conditions precedent to the issue of bonds are complied with. Bernards Twp. v. Morrison, 133 U. S. 523; Mont Clair v. Ramsdell, 107 U. S. 147, 27 L. Ed. 431; Knox Co. v. Aspinwall, 21 How. 539; Coler v. School Twp. 3 N. D. 249, 55 N'.