Volume 19 — North Dakota Reports

Action by W. S. Hyde against Adolph Thompson and Theodore G. Thompson. Judgment for defendants and plaintiff .appeals. Agreement to pay money may be express or implied. Rev. Codes 1905, Sec. 5711; Luther v. Hunter, 7 N. D. 544, 75 N. W. 916; Where one. receives property agreeing to convert into cash and pay the owner’s debts he is liable upon either express or implied promise to pay.

<p>Appeal and Error — Statement of Case — Specifications of Error.</p> <p>1. Whether a verdict is sustained by the evidence or not will not •be considered on appeal to this court, in the absence of specifications in the statement of the case of the particulars in which the evidence fails to sustain the verdict.</p> <p>Trial — Evidence — Grounds of Objection to be Stated.</p> <p>2. Objection to evidence, on the alleged ground that it is incompetent, irrelevant and immaterial is too indefinite in cases where the ground of the objection might be remedied.</p> <p>Evidence — Conclusion of Witness.</p> <p>3. A question calling for the conclusion of a witness as to what another party understood as to the nature of a transaction is objectionable, as calling for a conclusion not based on facts.</p> <p>Objections to Evidence.</p> <p>4. Various objections to evidence considered, and held to be without merit.</p>

<p>Appeal from District Court, Cass county; Pollock, J.</p> <p>Action by -the Emerson Manufacturing Company against John Rusted and another. Judgment 'for defendant Rustad, and plaintiff appeals.</p>

<p>Appeal from District Court, Ward county; Goss, J.</p> <p>Action by the First International Bank of Portal against John J. Lee. Judgment for defendant, and plaintiff appeals.</p>

Action by T. E. Yerxa v. W. E. Ruthruff and L. L. Ruthruff. Judgment for plaintiff, and L. L. Ruthruff appeals. Failure to establish claim against solvent principal’s estate discharges the surety. Roberts, Thorpe & Co., v. Laughlin, 4 N. D. 167, 59 N. W. 967; Stackpole v. D. L. & T Co., 10 S. D. 389, 73 N. W. 258; Brown v. Ch. R. I. & P. Ry. Co., 107 N. W 1024. Failure to sue solvent principal at surety’s request does not discharge the latter.

Appeal fr-om District Court, Cass county; Pollock, J. Action by J. A. Chesley against the Soo Lignite Coail Company and others. Judgment for plaintiff, and defendants a-ppeal. Penal statutes are strictly construed.

Action by Victoria Soules against the Brotherhood of American Yeomen. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Intention to show mistake in proof of loss must be pleaded. Travelers Ins. Co. v. Robbins, 27 U. S. App. 547; Travelers Ins. Co. v. Melick, 65 Fed. 178; Mutual Bene. Life Assoc, v. Newton, 22 Wall. 32; Keels v. Mut. Res. Fund Life Assoc. 29 Fed. 198-201; Me-. Master v. Ins.

<p>Appeal and Error — Specifications of Error.</p> <p>1. Errors of law not appearing on the judgment roll cannot be reviewed on appeal without specifications duly settled in the statement -of the case.</p> <p>Same — Statement of Case.</p> <p>2. A paper purporting to contain specifications of error, which is left with the trial judge after the settlement of the statement of the -case, does not -become a part of the statement unless so ordered by the judge, and such specifications must be disregarded on appeal.</p>

<p>Appeal from District Court, Wells county; Burke, J.</p> <p>Action by John L. Schmidt against Arthur N. Beiseker. Judgment for plaintiff, and, from an order denying a new trial, defendant appeals.</p>

Action by Arvid Satterberg, as administrator of the estate of John Satterberg, deceased, against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. From an order overruling a demurrer to the complaint, defendant appeals. By permission a supplementary brief in support of respondent’s contention was filed by Heffron & Baird, attorneys for Ely Gullickson, administrator, v. Henry S chaffner, in an action pending in Stark county.

<p>Constitutional Law — Regulation of Railroad Rates — Due Process of Law.</p> <p>1. Chapter 51, page 73, Laws 1907, amending and re-enacting section 4395, Rev. Codes 1905, prescribing maximum coal rates for the transportation by common carriers of coal in carload lots within the state, is not violative of section 8, article 1 of the constitution of the United States, known as the “commerce clause,” which confers upon congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes;” nor does it violate the fourteenth amendment of the federal constitution, nor section 13 of the constitution of -North Dakota, providing, in effect, that no person shall be deprived' of life, liberty or property without due process of law.</p> <p>Same — Power of Legislature.</p> <p>2. The legislative assembly possesses the undoubted power, under section 142 of the constitution of North Dakota, to prescribe maximum rates for the transportation by common carriers of commodities ■between points within the state, -provided the rates thus prescribed are reasonable.</p> <p>Same — Evidence — Statute Presumed Valid.</p> <p>3. The act in question is -presumptively valid, and the burden is upon the carrier to prove that the rates therein prescribed are clearly unreasonable.</p> <p>Same — Statutory Construction.</p> <p>4. Where the constitutionality of a law is made to depend upon the existence or nonexistence -of some fact or state of facts, the determination thereof is primarily for the legislature, and -the court will acquiesce in its decision, unless it clearly appears that such decision was erroneous.</p> <p>Same —Transportation of Coal.</p> <p>5. Evidence examined, and held not sufficient to overcome the prima facie presumption that the rates prescribed by said act are reasonable.</p> <p>Same — Freight Rates — Determination of Reasonableness.</p> <p>■6. The proper test as to whether the rates thus fixed are reasonable or unreasonable is not whether the rate fixed on the particular commodity is sufficiently -high to enable the carrier to earn' a fair compensation after allowing for the legitimate cost to the carrier of transporting the same, but whether, under such rates, it will be enabled from its total freight receipts on all its intrastate traffic to earn a sum, above operating expenses reasonably necessary for such traffic, sufficient to yield a fair and reasonable profit upon its investment. It is within -the power of the legislature to reduce the freight on a particular article, provided the carriers are enabled to earn a fair profit upon their entire intrastate business.</p>

<p>Application by the State, on relation of T. F. McCue, Attorney General, for a writ of injunction against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company.</p>

Action by the Columbian Lyceum Bureau against S. F. Sherman. Judgment for plaintiff, and defendant appeals. Where there are two or more modes of performing a contract, and one becomes impossible, the contracting party must perform one of the other. Board of Education v. Townsend, 52 L. R. A. 868; 9 Cyc. 633. One party to a contract must perform if in good faith in order to enforce it as to the other. Glacius v. Black, 50 N. Y. 145; Davis v. Jeffries, 58 N. W. 815.

Final accounting of M. J. Moran, as testamentary administrator of Martin A. .Walsh, deceased. From the decree of distribution entered, John Walsh and others appealed to the district court, where the decree of the county court was reversed; and Mary E. Finn and another and the administrator appeal.

Replevin by John Yegen against the Northern Pacific Railway Company, in which action Philip Gilbert, as trustee in bankruptcy of Henry Krebs, intervened. Judgment for plaintiff and intervenor appeals. Trustee in bankruptcy may replevy from third persons, avoid bankrupt’s fraudulent transfer, and foreclose mortgages. Bardis v. Bank, 2 N. B. N. R. 725, 3 A. B. R. 680, 178 U. S. 524; In re Gerded, 1; 2 Fed.

J. Kneeshaw, J. Action by Olivia Sjoli against E. K. Hogenson and others. Judgment for defendants and plaintiff appeals. Sureties on an administrator’s bond may be jointly and severally sued in district court. Joy v. Elton, 83 N. W. 875; 9 N. D. 428; Berryhill’s Administratrix’s Appeal, 35 Pa. St. 245; Irwin, Administrator, etc., v. Backus et als., 25 Cal. 214; Mortenson v. Bergthold, 89 N. W. 742; Bryant v. McIntosh, 84 Pac. 440; State v. Bennett, 24, Ind. 383.

Action by the City of Mayville against C. A. Rosing. Judgment for plaintiff, and defendant appeals. To constitute a new building there must be a substantial addition of material parts. Miller v. Hershey, 59 Pa. St. 64; Driesbach v. Kellar, 2 Barr. 79; Landis’ Appeal, 10 Barr. 379; Armstrong v. Ware, 20 Pa.

<p>Appeal from District Court, Emmons County; Winchester, Judge.</p> <p>Action by Peter Boschker against Henry Van Beek.</p> <p>Judgment for plaintiff and defendant appeals.</p>

Burke, J. Action by the Western Manfacturing Company against George F. Peabody. Judgment for defendant and plaintiff appeals. To support a judgment, findings must be based upon matter properly pleaded.

Allen, J. ■ Action by Frank N.-Forman against Simon P. Healey. Judgment for defendant and Plaintiff appeals. Jurisdiction is not cured by a general appearance after special appearance to object to jurisdiction. Harkness v. Hyde, 25 L. Ed. (U. S.) 237; Milne v. Dowling, 4 L. D. 379; Chesley v. Rice, 16 L. D. 120; Ellsworth Trust Company v. Parramore, 48 C. C. A 132; Central Grain et, Exchange v. Board of Trade, 60 C. C. A. 302. Notice of final proof must cite adverse claimant.

<p>Criminal Law — Evidence — Impeachment — Reputation</p> <p>1. In cases where evidence o-f the good charactef or reputation of a person is admissible, the evidence must 'be as to his general reputation in the community in which he resides, and before a witness is competent to testify thereto, he must disclose a knowledge of the person’s general reputation, and should not be permitted to give his own opinion as to it.</p> <p>Same — Assault and Battery.</p> <p>2. Under the evidence in this case, evidence of the good character or reputation of the complaining witness is inadmissible.</p> <p>Same — Instruction — Words and Phrases — “Battery.”</p> <p>3. An instruction that a battery is any unlawful or willful use or force or violence upon the person of another is incorrect, as the force or violence used must be both willful and unlawful.</p>

Action by the St. Paul, Minneapolis & Manitoba Railroad Company against Robert B. Blakemore and others, to condemn certain real estate, and an award was made to defendants in judgment after entry. Cass county was permitted to intervene, and interplead as defendant, and from such order defendants appealed If the court can determine the matter before it without prejudice to parties not before it, they need not be summoned! Northwestern Tel. Co. v. N. P. Ry.

<p>Appeal from District Court, Sargent county; Allen, J.</p> <p>Action by Mary S. Hodgson against the State Finance Company and others. Judgment for the Finance company, and plaintiff appeals.</p>

Mandamus by Frank W. Chandler against H. L. Starling and others, as members of the State Board of Dental Examiners and H. L. Starling, as secretary of the board. From an order sustaining a demurrer to defendant’s answer and granting a peremptory writ, defendants appeal. The action should have been begun in the name of the State of North Dakota, ex rel. Frank W. Chandler. State, ex rel. Dakota Hail Ins. Co. v. Cary, 2 N. D. 36, 49 N. W. 164; 13 Enc. PI & Pr. 656; 2 Am. & Eng.

<p>Appeal from District Court, Ward county; Goss, J.</p> <p>Action by Charles G. Larson against Frank Newman, administrator of the estate of George J. Newman, and another. Judgment for defendants, and plaintiff appeals.</p>

Action by Halvor J. Hagen against Severin Sacrison. Judgment for plaintiff, and defendant appeals. Where a trust in a will is void, power of sale falls with it and the property descends to the heirs.

<p>Appeal from District Court, Traill county; Pollock, J.</p> <p>Action by Ole H. Nilson against G. W. Elorton and others. Judgment for plaintiff, and defendants appeal.</p>

Action by Charles W. Johnston against Elling K. Spoonheim and another. Verdict for plaintiff, and 'from an order denying a new trial, defendants appeal.

<p>Intoxicating Liquors — Information — Indictment — Nuisance — Elements of the Offense.</p> <p>1. Where the prosecution for keeping and maintaining a common nuisance is only against the person, and where the state does not seek an order of abatement of the nuisance or to establish a lien against the premises in which the nuisance was maintained, an information charging the keeping of the place where the forbidden acts are committed is sufficient.</p> <p>Same — Instructions.</p> <p>2. Instructions complained of examined, and held .prejudicial to defendant.</p> <p>Same— Evidence.</p> <p>3. Evidence as to who rented the building where the alleged nuisance was maintained was, on motion of the state, stricken out. Held, error.</p> <p>Criminal Law — Taxation of Costs.</p> <p>4. In cases of conviction the costs of prosecution in criminal actions should be taxed by the clerk the same as in civil actions.</p>

Application by the State of North Dakota on the relation of L. M. Davis, for a writ of mandamus requiring respondents, as the county board of canvassers of Ward county, to reconvene and prepare a new abstract of the vote cast at an election held upon a proposition to divide Ward county and create from a portion thereof the new county of Mountraille. From an order of the district court denying the writ, relator appeals.

<p>Champerty and Maintenance — Law in Force in This State.</p> <p>1. The common-law doctrine making void, as against a person in possession, a deed of land adversely held as against the grantor, where the grantor has not been in possession of the land or received the rents thereof for a period of' at least one year, remains in force in this state. (Galbraith v. Payne, 12 N. D. 161, 96 N. W 258, followed.)</p> <p>Champerty and Maintenance — Deed by Person out of Possession.</p> <p>2. Section 8733, Rev. Codes 1905, prescribes that it shall be a misdemeanor to convey a pretended title by a person out of possession not receiving the rents of the premises for one year. Deeds executed in violation of that section are void as to the persons in possession, and as to them the title is in the grantor, notwithstanding such deed.</p> <p>Quieting Title — Adverse Claims — Right to Possession Adjudicated.</p> <p>3. Under chapter 5, page 9, Laws 1961, an action to determine adverse claims and to quiet title may be brought by one in possession or by one out of possession, and the right of possession may be determined in such action, and a restitution of the possession may be adjudged in the decree.</p> <p>Vendor and Purchaser — Vendee’s Possession is that .sf Vendor.</p> <p>4. Under contracts for the purchase of real estate where possession is given to the vendee by the vendor, such possession is that of the vendor, while the contract remains in force and until it is complied with or repudiated, and such possession is not adverse to the vendor.</p> <p>Vendor and Purchaser — Purchase of Outstanding Titles — Estoppel.</p> <p>5. While the contract remains in force, and the vendee remains in possession .thereunder, he is estopped from buying an outstanding title, and thereby repudiate the vendor’s contract and at the same time retain the possession secured by him. by virtue of the contract.</p> <p>Vendor and Purchaser — Champerty and Maintenance — Purchase of Outstanding Title.</p> <p>6. Where an action is brought by one out of possession against the vendor and vendee in such contract, and the plaintiff in that action has legal title to the land and conveys such legal title to the vendee, and the action is afterwards dismissed this does not constitute a constructive eviction of the vendee, entitling him to retain possession -under the title thus purchased against the- vendor on the contract, as such deed to him is void and champertous as against the vendor in possession.</p> <p>Champerty and Maintenance — Purchase of Outstanding Title — Conveyance to Grantee in Possession.</p> <p>7. When the holder of the legal title to real estate who is out of possession conveys such title to a third person who is not in possession of said real estate, and at the same time said holder of the legal title- conveys to one who is in the legal possession of said premises’ through a vendee holding under a contract for .the purchase of the land, and the -deed to the person not in possession is fir-st delivered, said first deed is void on account of the adverse possession of the land as against the grantor, and the second deed, after its 'delivery, becomes' effective, and conveys .the legal title to t-he .premises.</p>

C. H. Stevens was convicted of maintaining a liquor nuisance, and he appeals. Failure to preserve and file testimony as the foundation for an information under the prohibition law is fatal to jurisdiction. Ex parte Doherty, 32 N. Bfiunsw. 479; State v. Braithwaite, 27 Pac. 731; People v. Chapman, 62 Mich. 280, 28 N. W. 896; People v. Brock, 31 N. W., 585; People v. Restell, 3 Hill, 289; 12 Cyc 310-11, and cases cited.

Action by Michael Hanson against Mari Franklin and others. Judgment for defendants, and plaintiff appeals. After ten years a judgment is dead for all purposes. Merchants' Nat. Bank v. Bráithwaite, 7 N. D. 358, 75 N. W. 244; Ruth v. Wells, 83 N. W. 568. Amendment must not change substantially the claim or cause of action. Mares v. Wormington, 8 N. D. 329, 79 N. W. 441; Buxton v. Sargent, 7 N. D. 503; 75 N. W. 811; Murphy v. Plankinton Bank, 100 N. W. 614.

W. E. Longstreth was convicted of procuring an abortion, and, from an order denying a new trial, he appeals. Information for committing the crime of abortion must allege the means of its accomplishment. Cochran v. People, 51 N. E. 845 ; Rhodes v. State, 27 N. E. 866; Com. v. Corkin, 136 Mass., 429; 1 Cyc. 728. Complainant must state the facts constituting a crime upon his positive knowledge. State Ex Rel.

<p>Appeal from District Court, Grand Forks county; Templeton, J.</p> <p>Mandamus by the State, on relation of Don McDonald, against H. L. Holmes, as State Auditor. From a judgment awarding a peremptory writ,’ defendant appeals.</p>

<p>Municipal Corporations — Streets — Injuries — Indemnity by Wrongdoer.</p> <p>1. A party who for his own benefit or convenience, or under license from a -city of -this state, places upon a public thoroughfare a structure, which from its nature or from a failure to properly guard it or keep it in repair, is or may become dangerous, is under an implied contract with the city that while such structure is maintained upon the street he will exercise ordinary care to protect the public from danger and the city from loss; and in case of injury to pne using the street by reason of such structure or the manner in which it is kept, the party who thus rendered the street unsafe will be regarded as the real wrongdoer, and if the city sustains ■loss through payment of damages to the person injured, (he will be ■held to be an indemnitor of the city.</p> <p>Municipal Corporations — ■ Conclusiveness of Judgment Against Indemnitee.</p> <p>2. In a case where a city, having paid a judgment obtained by a person injured upon its streets in an action predicated upon an alleged failure of the city to keep its streets in safe condition, brings •suit against the party who under license express or implied from the city placed on the street the structure or obstruction by which the injury was Caused, the defendant, if he has been given reasonable, notice and opportunity to defend' upon the trial of the original action is concluded as to all matters of fact necessary to establish a liability frota the city to the person injured, and as to any matter which might have been urged as a defense by the city against such liability. Unless, however, it appears that evidence showing the liability of the alleged indemnitor was necessarily involved in the de-, termination of the original action and passed upon by the trial court in rendering judgment, the defendant is not concluded upon the point that' notwithstanding the liability of the city -he was not at fault and has not failed in any duty which he owed to the city or to the person injured, and may plead and show such facts as a defense upon the trial.</p> <p>Same — Street Obstruction by Private Parties — Hxtelnt of Liability.</p> <p>3. A person placing a structure upon a street for his own benefit or convenience, under his implied contract with the city to protect the public from danger and the city from loss, is required to maintain such structure in safe condition, and to. supervise the same for the purpose of keeping it in repair and free from any changes or additions which he in the exercise of reasonable care has cause to anticipate will be made or placed there. Such supervision does not, however, extend to changes or additions which the original structure from its náture or the manner of its construction does not invite or induce or which were not' within the reasonable contemplation of the party at the time he placed it there.</p> <p>Negligence — Proximate Cause — Question for Court.</p> <p>’ 4. In an action in negligence the 'question whether the alleged fault of the defendant, or failure on his part to perform a legal duty, was 'the proximate cause of 'the injury, is one of law for . the court, to be determined upon the material facts presented, with such inferences as may ’be properly drawn therefrom'.</p> <p>Same — Street Obstruction — Indemnity — Proximate Cause.</p> <p>5. In the state of fact assumed to exist, a party under license from a city placed upon a principal street a one-inch water pipe and fastened down to the pavement on either side of it a two-inch plank for the purpose of protecting the pipe from injury and from being shifted from its place upon the street. Afterward, without his knowledge, by some unknown agency and for a purpose that is not shown, manure was placed upon the pipe and upon the planks placed to guard it, and a third plank was placed on top of the manure. This third plank was not attached either to the pavement of the street or to the planks-placed to guard the water pipe, but was ■loose and movable. It was so placed upon the manure that pedestrians stepping on one end at times caused the other end to be raised a distance of from five to ten inches from the street. While in this position a person using the street, in stepping over the loose plank caught his foot upon it and was thrown violently upon -the pavement, sustaining injuries for which he brought an action in damages against the city and recovered a judgment which the city paid. The city then proceeded against the party placing the water pipe and the planks guarding it on the street, as an indemnitor, alleging that the accident resulted from a failure on his part to keep safe the structure so .placed by him.</p> <p>Held, that the party placing the water pipe and the two planks to guard it could not be said, in the exercise of ordinary care, to have in contemplation that some other person would change and add to the structure placed and maintained by him' by putting manure on top of it and placing a loose plank on top of the manure that would rise to such height from the street when stepped upon as to cause an accident such as this, and that the accident did not result proximately from the act of defendant in placing the original structure or the failure to perform any duty imposed upon him thereby to keep the street safe.</p>

<p>Original application by Ole B. Tuttle for mandamus to be directed to Charles A. Pollock, Judge of the Third Judicial District.</p>

Action by Jakob Sockman against John P. Keim and Phillip Keim. Judgment for plaintiff, and defendants appeal. Where a pleading presents a cause of action, that may be ex contractu or ex delicto, pleader must elect on which he will stand.

Henry Nyhus was convicted of the crime of rape, and appeals. Accused must be accorded a speedy public trial. Cooley on Const. Lim. (Cth Ed.) 379; People v. Murray, 50 N. W. 995; People v. Yeager, 71 N. W. 491; State v. Plensley, 75 Ohio St. 255, 9 L. R. A. (N. S.) 277; People v. Hartman, 103 Cal. 242, 37 Pac. 153. Reference to supposed collateral crime is improper.

<p>Deeds — Covenants — Qualification of One Not Included in Another..</p> <p>1. A covenant against incumbrances and a covenant of 'warranty-contained in a deed to real property are separate and independent-covenants of -materially different import and directed to different objects, and there is no presumption that language qualifying one of these covenants was intended to be transferred to or included in the other.</p> <p>Deeds — Covenants — Exception to Covenant Against Incumbrances_ Effect as to Covenant of Warranty.</p> <p>2. An express exception, contained only in the covenant against incumbrances, in a deed to real property, of a mortgage upon the land, in the absence of qualifying words making the grant of the deed subject to such incumbrance, or making the restriction upon the covenant against incumbrances apply also to the covenant of warranty or generally to all the covenants of the deed, does not except such mortgage from the covenant of warranty. In such case the .covenant of warranty may be regarded as full and general, and an action may be maintained upon it arising out of a failure of the grantor of the deed to protect the grantee in quiet enjoyment of the title conveyed by the deed against the mortgage mentioned in the covenant against incumbrances as well as any other paramount title.</p> <p>Deeds — .Breach of Covenant of Warranty.</p> <p>3. The purchase by a warrantor of title to real property, of an incumbrance covered by his warranty for any purpose other than the protection of the title conveyed by him, and the assertion by him adversely to the title -of bis warrantee of paramount title based on such incumbrance, is a -breach of the covenant of warranty. In equity .the title so purchased by him inures wholly to the benefit of the warrantee, and a court of equity will not permit him to assert the same adversely to the title so warranted -by him to such warrantee.</p> <p>Deed — Covenant of Warranty — After Acquired Mortgage.</p> <p>4. Plaintiff conveyed title to real property to defendant by a deed wherein he covenanted that he was “well seised in fee of the lands and premises aforesaid and had good right to sell and convey the same in manner and form aforesaid, that the same are free from incumbrances, except a certain mortgage amounting to $400 in favor of W., and the above bargained and granted -lands and premises in the quiet and peaceable possession of the said party of the second part, his heirs and assigns, against all persons lawfully claiming, or to claim- the whole or any -part thereof, .the said party of the first part will warrant and defend.” After the delivery of this deed and the payment of the consideration named therein to plaintiff, he purchased from W. the mortgage for $400' mentioned in the covenant against in-cumbrances and brought action to foreclose the same against defendant and his grantee.</p> <p>Held, that the mortgage purchased by plaintiff was not excepted from the -covenant of warranty contained in the deed or assumed by defendant, and that the purchase of the same by plaintiff inured wholly to the benefit of defendant and plaintiff would n-ot be permitted to maintain an action to foreclose the same against the land.</p>

<p>Appeal from District Court, Cass county; Pollock, J.</p> <p>The American Bottling Association was convicted of illegal sales of intoxicating liquors, and appeals.</p>

Application by G. E. Kermott for writ of mandamus to Horace Bagley, county judge. Under the constitution non-judicial powers cannot be conferred on District Courts or its judges. United States v. Ferreira, 13th Flow. 40; Playburn’s Case, 2 Dali. 409; Phelan v. San Francisco, 20 Cal. 40 ; State v. Chase 2 Harr, and J. 297; Ex-parte Riebeling, 70 Fed. 310; DeCamp v. Archibald, -40 Am. State 692; Glaspell v. Jamestown, 11 N. D- 86.

Action for divorce by Maie B. Rindlaub against John H. Rindlaub. From a judgment for plaintiff, both parties appeal. Judgment modified, and lower court directed to enter a judgment in defendant’s favor granting him an absolute divorce, assigning to him the homestead during his life, and awarding to him the custody, during a portion of the time, of Bruce and John, two of the minor-issue of the marriage.

The Fargo Bottling Works Company, a corporation, was convicted of the wrongful sale of intoxicating liquor in violation of the prohibitory law, and it appeals.

Action 'by Annie' Winterberg suing for the use and benefit of George W. Lynn, against Johannes Van de Vorste. Judgment for plaintiff, and defendant appeals. Sheriff’s certificate is personal property and foreign executor had jurisdiction over it. Joy v. Elton, 83 N. W. 875, 9 N. D. 428 The various deeds are void for champerty. Revised Codes 1905, Sec. 8733; Brynjolfson v. Dagner, 109 N. W. 320; Galbraith v. Payne, 12 N. D. 164-; Schneller v. Plankinton, 12 N. D. 561.

Thomas O’Neal was convicted' of keeping a liquor nuisance, and he appeals. Information must describe the place and proof show the place as alleged.

Action by the Langworthy Lumber Company against Mark Hunt and Henrietta C. Hunt. Judgment for defendants, and plaintiff appeals. A subcontractor has a lien irrespective of the state of the account between the owner and contractor. 27 Cyc. 90; Robertson Lumber Co. v. State Bank of Edinburg, 105 N. W. 719.

<p>Appeal from District Court, Cavalier county; Fisk, J.</p> <p>Action by H. J. Hope against the Great Northern Railway Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Change of Venue' — Place of Trial Determined from Pleadings.</p> <p>1. In determining his rights with reference to the place of trial of, a civil action, in accordance with the provisions of chapter 6, Code Civ, Proc., a defendant is not required to examine critically and with technical exactness the complaint; but may assume that the Character of the action is such as it purports upon the face of the complaint to be, and plaintiff who has deliberately chosen the form and substance of his pleading cannot be heard to claim that the character of .the action through deficiency in certain material allegations is other than on the face of the complaint it appears to be.</p> <p>Change of Venue — Location of Land In Controversy — Nature of Action.</p> <p>2. An action in which the complaint upon its face states a cause of action for the foreclosure of a mortgage against real property must, on proper and timely demand of the defendant, be tried in the county in which the real property is situated; and a motion to change the place of trial to such county will be sustained, regardless of the fact that a critical examination of the complaint may reveal that it does not contain allegations sufficient to state a cause of action for foreclosure of a mortgage, and merely such as will constitute a cause of action for the recovery of money only.</p> <p>Change of Venue — Place of Trial — Hearing.</p> <p>3. As a motion for change of place of.trial must from its nature be determined before trial and often before issue in the action, a district court in acting on such motion may assume that the character of the action is such as the complaint purports to state and refuse to examine the same as it would upon trial of issue presented by a general demurrer to the complaint for the purpose of determining the exact character of the cause of action stated.</p>

Action by W. W. Corbett against the Great Northern Railway Company. Verdict for plaintiff, and from an order denying a new trial, defendant appeals. Statutory presumption is to bring in proofs in possession of railway company, and when overcome by proof, burden is on plaintiff to establish his case without aid of such presumption. Hodgins v, M., St. P. & S. Ste. M. R. R. Co., 3 N. D. 382, 56 N. W. 139 ; Smith v. Northern Pac. Ry.

<p>Mechanic’s Lien — Words and Phrases — “Owner” of Real Estate.</p> <p>1. Under the provisions of the mechanic’s lien law the “owner” of real estate on whose interest a mechanic’s lien will attach is the person for whose immediate use and 'benefit the building, erection, or improvement, is made.</p> <p>Mechanic’s Liens — Vendor's Interest Not Subject to% — Possession.</p> <p>■2. A mechanic’s lien will not attach to the interest of a vendor under an executory contract of sale whose vendee is in possession, and who makes improvements by erecting buildings on the real estate covered by such executory contract.</p> <p>Mechanic’s Liens — Interest of Vendor — Executory Contract.</p> <p>3. Where the vendee in an executory contract for the purchase of real estate is in possession and erects buildings thereon, in which the vendor has no interest except by reason of his holding the legal title as security for the purchase price, and when such vendor is not a -party to the' purchase of the material or the construction of the . improvements, the question of his knowledge of or consent to the furnishing of material or the making of the improvements is immaterial.</p>

<p>Appeal from District Court, Stutsman county; Burke, J.</p> <p>Action by W. H. Rounseville and James H. Doty against A. P. Paulson. Judgment for defendant, and plaintiffs appeal.</p>

Action by Frank Weber against W. J. Lewis. From an order overruling a demurrer to the complaint, defendant appeals. Essential facts must be stated in unequivocal language, not left to be inferred. I Estee’s PI.

<p>Appeal from District Court, Wells County; Burke, J.</p> <p>Action by the Second National Bank of Bucyrus, Ohio, and another against G. H. Werner. Judgment for defendant, and plaintiffs appeal.</p> <p>Endorsee who takes notes as collateral to secure a previous debt, is not a bona fide purchaser, etc. Porter v. Andrus, 10 N. D. 558, 88 N. W. 567. Note taken as collateral for debt created at that time is “in due course of business.” Banks v. Eubanks, 101 S. W. 687; Stewart v. Givens, 107 S. W. 422; Brown v. James, 114 N; W, 591; Galliher v. Galliher, 10 Lea 23, 29; Martin v. Bank, 102 S. W. 131 ; Belanger v. Robert, 21 Quebec Sup. Ct. 518.</p> <p>Unless notice was in writing or by registered mail it was void. Fahey v. Esterly ITarv. Mch. Co., 3 N. D. 220, 55 N. W. 580; Minn. Thresher Co. v. .Lincoln, 4 N. D. 419, 61 N. W. 145; Case Co. v. Ebbighaúsen, 11 N. D. 466, 92 N. W. 826.</p> <p>Form of notice of breach of warranty immaterial if responded to. Fahey v. .Esterly Harvesting Co., 3 N. D. 220 ; Minnesota Thresher Mfg. Co., v. Lincoln, 4 N. D. 419, 61 N. W. 145; Case Co. v. Ebbighausen, 11 N. D. 466, 92 N. W. 826; Buchanan v. Minneapolis Thresher Mch. Co., 116 N. W. 335.</p>

<p>Appeal from District Court, Richland County; Allen, J.</p> <p>Action by the Citizens’ National Bank of Sisseton, S. D. against P. Branden. From an order denying defendant’s application to open a default judgment against him and permit him to interpose a defense, defendant appeals.</p>

<p>Appeal from District Court, Cass County; Goss, Special J.</p> <p>Action by the F. Mayer Boot & Shoe Company against R. J. Ferguson. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Foster county; Burke, J.</p> <p>Action by J. E. Martin against Jesse E. Royer and another. From a judgment granting inadequate relief, plaintiff appeals.</p> <p>There is a distinction between cropper and tenant. 8 Am. & Eng. Enc. Law, 324, and cases cited; Lewis v. Owans, 124 Ga. 228, 52 S. E. 333; Garrick v. Jones, 2d Ga. App. 382, 58 S. E. 543; Bourland v. McKnight, 79 Ark. 427, 96 S..W. 179; Goodson v. Watson, 54 S. E. 84; Moore v. Linn, 91 Pac. 910; Loveless v. Gillian, 70 S. C. 391, 50 S. E. 9; Morgan v. Rummerfield, 117 Wis. 620, 98 Am. St. Rep. 951; 12 Cyc. 979, and cases cited under note 17; 1,2 Cyc. 980, and cases cited under note 20; Whittled v. St. Anthony '& D. El. Co. et al., 83 N. W. 238.</p> <p>Transfer of lease does not carry right to accrued rent. 24 Cyc- 1173, 1175; Tremont and W. Hotel Co. v. Gammon, 91 S. W. 337; Kingsley v. Sauer, 4 N. Y. App. Div. 507; Cobb v. Johnson, 126 Ala. 618; 24 Cyc. 928; Payton v. Kennedy, 70 Miss. 865; Miners Bank v. Heilner, 47 Penn. St. 452; Miller v. Winchell, 70 N. Y. 437.</p> <p>Where a debt is claimed by two persons not in privity with each other, and the debtor pays to one, while the other is entitled to it, the latter cannot recover of the former. Hathaway v. Town of Cincinnatus, 2 N. Y. 444; Butterworth v. Gould, 41 N. Y. 450; Patrick v. Metcalf, 37 N. Y. 332; Corey v. Webber et al., 55 N. W. 982.</p> <p>Unaccrued rent passes with sale of rented premises unless specifically reserved. Whittled v. St. Anthony & Dak. El. Co., 9 N. D. 224, 83 N. W. 238.</p> <p>Royer can recover from Martin, who converted the amount due for plowing. Cutler v. Fanning, 2 Iowa, 580; Allison & Crane v. King, 25 Iowa 56; 2 Enc. of Law, 1079; Olston v. Gillespie, 78 Ga. 665; Chamberlin v. Gilman, 14 Pac. 107; Brand v. Williams, 13 N. W. 42.</p> <p>Where a party who retains money to which he is not entitled, the law creates a promise to pay. Abel v. Love, 17 Cal. 234; People v. Houghtaling, 7 Cal. 348.</p>

<p>Appeal from District Court, Grand Forks county; Templeton, J.</p> <p>Action by the Northern State Bank of Grand Forks against James Bellamy, Sr. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Nelson County; Templeton, J.</p> <p>Action by the North Dakota Lumber Company against G. Bulger and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Divorce — Appeal — Acceptance of Portion of Judgment — Alimony.</p> <p>1. Where the district court makes an allowance for counsel fees in a final decree denying a divorce to the wife, who is plaintiff, and granting a divorce to the husband, and the wife appeals from the judgment, and demands a review of the entire -case in the Supreme court, under section 7229, Rev. Codes 19-05, and while such appeal is pending the wife’s attorneys unconditionally accept the sums allowed by the district court for costs and counsel fees, such acceptance is a waiver of the appeal, entitling the respondent to a dismissal thereof.</p> <p>Appeal and Error — -Review — Opinion of Trial Judge.</p> <p>2. An opinion of the trial judge is not to be considered as explanatory of a final judgment.</p> <p>Ellsworth, J., dissenting.</p>

<p>Taxation — “Wood Law” — Notice of Expiration of Redemption — Leaving Copy at Defendant’s Hotel.</p> <p>1. Under the so-called “Wood Law” (chapter 67, Laws 1897) the county of Emmons obtained a judgment for taxes in October, 1897. In December following the lands included in such judgment were sold by the sheriff, the county becoming the purchaser, to whom certificates of sale were duly issued. Ninety days preceding the expiration and maturity of such certificates the county treasurer assumed to give notice to M., the owner of the lands, of the statutory notice of expiration of time for redemption. The notice was signed “Emmons County, N. D., by H. W. Allen, County Treasurer,” and service thereof was attempted to be made by registered mail, and also by leaving a copy thereof with one F., an employe at the hotel where M. resided. M. had no family, nor was he residing in the family of another within the meaning of subdivision 7, section 6838, Rev. Codes 1905, relating to the service of process. Held, for reasons more fully stated in the opinion, that such attempted service of the notice was of no validity or effect. ,</p> <p>Taxation — “Wood Law” — Notice of Expiration of Redemption Period — Failure to Serve — Effect.</p> <p>2. There being no legal service of the notice of expiration of time for -redemption from the sale, the county acquired no title through its certificate, but merely retained a lien on the land by virtue of such certificates.</p> <p>Taxation — Tax Title — Notice of Redemption — Cpnveyance by Purchaser.</p> <p>3. Subsequently ihe county auditor, by authority of the county commissioners, attempted to convey said land and other land by deed to IT. B. L. Co., and the latter thereafter attempted to convey the same to defendant. Held, that, the county having no title, none was conveyed through such deed.</p> <p>Taxation — -“Wood Law” — Tax Title — Subrogation to Lien of County — Equitable Relief — Reimbursement of Tax Penalty and Interest.</p> <p>4. In addition to the sum paid by the H. B. L. Co. to the county as consideration for such deed, the record discloses that said land company paid to the county certain taxes for subsequent years on such lands, and defendant has paid taxes thereon for certain other years. Held, under the facts, that in equity defendant is subrogated to the lien of the county for all taxes, interest and penalty paid by him or 'his grantor to' such county, and that plain-tiff will be granted the-equitable relief prayed for only on condition that he first reimburse defendant for all sums thus paid, on the principle that he who asks equity must ‘ first do equity.</p>

Action by Augusta Braatz against the City of Fargo. Judgment for defendant, and plaintiff appeals. Cities must keep highways in reasonably safe condition, and are responsible for neglect, although the negligent act of third party contributed to an injury received by city’s lack of care. Village of Carterville v. Cook, 16 Am. St. Rep. 248; City of Joliet v. Shufeld, 38 Am. St. Rep. 453; Knouff v. Logansport, 84 Am.

Action by F. L. Singer and others against James M. Austin, executor of Kate Austin Angelí. From an order sustaining a demurrer to the complaint, plaintiffs appeal. Publication of notice to creditors before order is made therefor, is a nullity. Wise et al. v. Williams et al., 25 Pac. 1064; Ribble v. Furmin, 98 N. W. 420; Mosher v. Goodale, 106 N. W. 195; Smith v. Hall et al., 19 Cal. 85; 18 Cyc. 447.

Action by Solomon Liland against A. K. Tweto. Judgment for defendant, and plaintiff appeals. Producing a false impression may be' done by words, acts, or concealment or suppression. Stewart v. Wyoming Ranche Co., 128 U. S., 383, Paddock v. Strobridge, 29 Vt., 470; Howard v. Gould, 28 .Vt. 523; McAdams v. Cates, 24 Mo., 223; Marsh v. Webber,' 13 Minn., 109, (Gil. 99.); Jeffreys v. Bigelow, 13 Wend., 519; Rawdons v. Blatchford, 1 Sandf. Ch. 344; Brown v. Gray, 72 Am.

Action by David W. Casseday and Milburn Sandefur, for the use and benefit of Amelia E. Kinslow, against George A. Robertson. From a judgment in favor of plaintiffs, defendant appeals.

Action by Fred Lang against Harry FI. Bailes and William M. Perkins, co-partners, doing business under the firm name and style of Bailes & Perkins. From an order denying a motion for judgment no'withstanding the verdict or for a new trial, and from a judgment in favor of plaintiff defendants appeal.

<p>Sales — Breach of Warranty — Waiver of Return of Goods.</p> <p>1.'Under the evidence in this case it was a question for the jury to determine whether a waiver of the return of an engine on a breach of a warranty was intended or not.</p> <p>Appeal and Error — Directing Verdict — Question for Jury — .Waiver.</p> <p>2.It was error to direct a verdict for the plaintiff, as the evidence as to such waiver was not undisputed, or, at least, was such that ' reasonable persons might draw opposite conclusions therefrom.</p> <p>Principal and A.gent — Authority of Expert.</p> <p>3. Unless shown to possess authority from his principal to that effect, an expert, sent to repair an engine, cannot bind his principal by changing an existing contract.</p> <p>Sales — Conditional Sale — Authority of Agent — Waiver.</p> <p>4. It is error to exclude evidence of a conditional sale by an agent of a machine company with consent of the company, as such evidence has a bearing on the question of possession of the property in this . case, and upon the question whether a return of same to the company was waived.</p> <p>Sales — Breach of Contract — Pleading.</p> <p>5. A defense to the effect that the engine involved in this suit was not purchased on the order set forth in the complaint and admitted by the answer cannot be raised under such pleadings.</p>

Action by Richard McGregor against Henry Harm and John C. Oeschger. Judgment for defendants, and plaintiff appeals. Contract is not severable because wages are made payable weekly. Diefenback v. Starck, 56 Wis. 462, 14 N. W. 621; Dugan v. Anderson, 36 Md. 567, 11 Am. Rep. 509; Olmstead v. Bach, 78 Md, 132, 22 L. R. A. 74, 44 Am. St. Rep.' 273. Where servant is discharged before the expiration of the period of his employment, he can recover on a quantum meruit.

<p>Appeal from District Court, Williams County; Goss, J.</p> <p>Action by Ocer Webb against Joseph Wegley. Judgment for defendant, and plaintiff appeals.</p>

<p>Homestead — Actions — Limitations.</p> <p>1. On January 25, 1904, one J., a married person, for the purpose of securing a loan of $800, executed and delivered to D-. a mortgage on his homestead fraudulently representing that his wife’s signature thereto was genuine, when, in fact, it was a forgery. J.’s wife deserted and abandoned him in September, 1903, removing to the state of Washington where at the date such mortgage was executed by J., she was living with another -man as his assumed wife.</p> <p>In December, 1904, J. abandoned such homestead, and has never resumed his residence thereon. O-n April 20, 1905, respondent obtained a divorce from J. in the state of Washington and also a judgment for alimony, suit money and attorney’s fees, and in October, 1906, -commenced an action against J. in the district court of Eddy county upon such foreign judgment, attaching the premises in question and obtaining a judgment in such action in December 1906- for the sum of $903.74.</p> <p>Appellant, assignee of the mortgage, duly foreclosed the same in December, 1905, and on December 31, 1906, obtained a sheriff’^ deed of the premises pursuant to such foreclosure .proceedings. The present action was commenced on December 29 1906, the object of which being to have such mortgage, the foreclosure proceedings thereunder, and such sheriff’s deed canceled as null and void, and to obtain an adjudication to the effect that appellant, the purchaser at such foreclosure sale, has no interest in or incumbrance upon the premises in question. Held, for reasons stated in the opinion, «that the relief awarded respondent is unwarranted under the facts.</p> <p>Homestead — Actions —■ Limitations.</p> <p>2. Respondent is before the court, not as a claimant of homestead rights in such premises, but merely in the capacity of an attaching creditor, and as such she acquired, through her attachment proceedings, no greater rights in the premises than J., the judgment debtor, had at the date of the levy of the attachment.</p> <p>Homestead — Actions — Limitations.</p> <p>3. By operation of section 5054, Rev. 'Codes 1905, all remedies possessed by J. against such mortgage became barred on January 1, 1906, and as a necessary result the mortgage and the foreclosure proceedings thereunder becoming, after January 1, 1906, unassailable by J., appellant acquired, by lapse of time, a perfect title to the premises as against him, and those claiming under him, and plaintiff’s action should be dismissed.</p>

Action by Larry Downey against the Northern Pacific Railway Company. Judgment for plaintiff and defendant appeals. The statute is void as an unreasonable attempt to exercise the police power of the state. Houston & Texas Cent. R. R. v. Mayes, 201 U. S. 321; Cleveland etc., R. R. v. Ill, 177 U. S. 514. The statutes in question are a reasonable exercise of the police power. Lake Shore and Michigan Southern Railway Co., v. Ohio, 173 U. S. Reports, 285, 19 Sup. Ct.

Action by B. C. DeLaney and others against the Western Stock Company. Judgment for plaintiffs, and defendant appeals. When pleading shows right to both legal and equitable. relief, and there is a failure to establish the latter, action should not be dismissed but issues tried by jury. Pomeroy Rem. (4th Ed. by Boyle) pp. 16-19; 38-9; 40-42; sections 11, 23, 25; Davis v. Morris, 36 N. Y. 569; Parker v. Laney, 58 N. Y. 469; Richmond v. Dubuque, 33 Iowa, 422, 489, 491.

<p>Appeal and Error — Taxation of Costs.</p> <p>1. To authorize a revision by this court of alleged errors in the taxation of costs, the record must contain sufficient data to enable the court to determine ■whether such errors have been committed. Where the evidence on which the trial court acted in taxing costs is not contained in the record on appeal, the decision of the trial court will not be disturbed, unless error is - apparent on the face of the judgment roll.</p> <p>Appeal and Error — Statement of Case — Specifications of Error.</p> <p>2. The so-called statement of case on this appeal radically fails in numerous respects to conform to the statute or to the rules of this court. It fails to contain proper specifications of error, and, furthermore, even if errors were specified, the alleged errors are not available to appellant, as the record fails to disclose timely objections and exceptions to the various rulings complained of. Such statement of case also fails to specify that appellant desires a review of the entire case or of any particular questions of fact as the statute requires in cases triable de novo in this court.</p> <p>Appeal and Error — Reversal for Denying Costs.</p> <p>3. There is nothing contained in the record on this appeal from which the Supreme Court is enabled to intelligently determine what costs appellant is entitled to have taxed, but the judgment roll does disclose reversible error in denying any costs to him, and for such error the judgment is reversed.</p>

<p>Appeal and Error — -Statement of Case — -.Presumptions in Absence of Proof.</p> <p>1. Upon an appeal, w-here, as in this case, the findings and decree of the court respond to -the allegations of the complaint and prayer for relief, but the evidence is not brought into the record by a •properly authenticated statement of the case, it will be presumed that all -material facts alleged in the complaint are supported by competent proof.</p> <p>Same — Appeal upon Judgment Roll — Presumptions-as to Findings.</p> <p>2. In a case such as this, where the sufficiency of the evidence to support the findings of the court cannot be considered because the appeal is based entirely upon the judgment roll proper, it will be presumed that the findings of the court are fully supported by competent evidence.</p> <p>Vendor and. Purchaser — Specific Performance — Judgment — Sufficiency of the Evidence.</p> <p>3. In an action by vendors to compel specific performance by the vendees to a contract for the purchase of real property of their agreement to pay each year upon the purchase price a sum equivalent to the value of one-half of the crop grown upon the land during that year, an allegation of the vendors as plaintiffs in their complaint, admitted by defendants’ answer, that the entire balance of the purchase price in a.stated sum is due and unpaid, will support a decree of the court requiring defendants within a reasonable time to pay that sum to the plaintiffs, and the plaintiffs thereupon to execute and deliver to defendants a conveyance of the land.</p> <p>Vendor and Purchaser — Appeal — Sufficiency of the Evidence to Support Findings.</p> <p>4. Where the court finds that during two years the crops grown upon land held under a contract of sale providing for payment of the purchase price by application each year of the proceeds of one-half the crop have not -been in any part delivered by the vendees to the vendors, and that thereafter .there was due upon the contract a certain sum, on an appeal based on the judgment roll, alone, it will be presumed in support of the findings that the evidence showed the value of the crops for the two years in which they were not delivered was, at least, equivalent to the sum so found to be due on the contract.</p> <p>Costs — Discretion. ’</p> <p>■5. Costs allowed under section 7179, Rev. Codes 1905, are in the discretion of the court, and, unless the facts show an abuse of the court’s discretion, its rulings refusing certain costs will not be disturbed.</p> <p>Costs — Who Entitled — Construction of Statute.</p> <p>6. The costs or attorney’s fee which may be allowed by the provisions of section 7176, Rev. Codes 1905, apply only to actions which are indisputably for the foreclosure of a mortgage upon real or personal property. The fact that the parties in equity stand in a ■relation that is practically that of mortgagor and mortgagee does not of itself require or authorize an allowance of costs under this section.</p>

Action by Hugh 'Campbell, Jr., against J. Warren Coulston to woreclose a mortgage. From an order vacating a judgment of foreclosure on motion of Joseph Bull, plaintiff appeals. Judgment can be vacated on motion only in the court where rendered. 17 Am. and Eng. Enc. of Law, (2nd Ed.) 842; Garlock v. Calkins, 14 S. D. 90, 84 N. W. 393; Elder v. Mining Co., 58 Fed. 5'3G; Buffham v. Perkins, 44 N. W. 1150; Coon v. Seymour, 37 N. W. 243; 1 Black on judgments, p. 297.

T. Burke, J. . Action by the Village of Litchville against H. J,. Hanson- Judgment for plaintiff, and defendant appeals. A proceeding to punish violators of a city ordinance is a criminal proceeding. State ex rel. Erickson v. West et al., 42 Minn. 147, 43 N. W. 845; 8 Am. & Eng. Enc. Law (2d Ed.) 252, violation of Ordinance, note 1 on page 253; 15 Enc. PI. & Pr. 414. Legislature possesses police power, and may delegate it to municipal corporations.

Action by Frank H. Strecker against Edward Railson. From an order denying defendant’s motion for a dismissal and granting plaintiff’s motion to amend his complaint, defendant appeals.

Action by the State against Jacob Lang. From an order changing the place of trial, plaintiff appeals. A bastardy proceeding is sui genesis, partaking of the features of both criminal and civil action. Clark v. State, 60, N. W. 78.

<p>Attachment — Affidavit—Clerical Error.</p> <p>1. An affidavit for attachment, in reciting the statutory ground of nonresidence, etc., contained the word “ plaintiff” instead of “defendant.” Held, -a manifest clerical error, riot constituting ground for dissolving such attachment.</p> <p>Attachment — Affidavit—Clerical Error.</p> <p>2. Such irregularity constitutes a mere trivial defect, and should be -disregdrded pursuant to section 6886, Rev. Codes 1906-,</p> <p>Attachment — Clerical Error — Complaint Aid to Affidavit.</p> <p>3. The verified complaint, which was filed with the affidavit for attachment, contained an allegation to- the effect that defendant was a nonresident of the state, and had absconded therefrom, and it was proper to resort to such complaint in aid of the affidavit. By an examination of such complaint,, as well as the context of the affidavit itself, it is obvious that the use of the word “plaintiff” instead of “defendant”-was a mere oversight, in no manner prejudicial.</p> <p>Attachment — Defects Curable by Amendment — Intervener Cannot Attack.</p> <p>4.- Such irregularity or defect, being curable by amendment, could not be urged by an intervener, even conceding that it might be successfully urged by the defendant in the attachment suit.</p>

Action by William Schultz against Gottlieb Schultz. Judgment for defendant, and plaintiff appeals. Praeter-mitted heir must show omission to be unintentional. Brown v. Brown, 98 N. W. 718; Gilmer v. Stone, 120 U. S. 586, 30 L. Ed. 734, 7 Sup. Ct. Rep. 689. Praetermijtted heir cannot object to probate of will, his remedy is after probate, by construction. Doane v. Lake, 32 Me. 268, 52 Am. Dec. 654; Schneider v. Koester, 54 Mo.- 500; Pearson v. Pearson, 46 Cal. 610.

Action by J. L. Mathews against Anna M. Hanson. There was a directed verdict for plaintiff, and defendant appeals from an order denying a new trial.

<p>Prohibition by Michael Selzer against Horace Bagley, Judge of the County Court of McHenry County, of increased jurisdictilon.</p>

<p>Specific Performance — Parties Entitled to Enforce Performance — Part, Interest In Subject-Matter.</p> <p>1. A contract was entered into in 1888 between appellant construction company on the one side and respondent Hammond and appellants John H. Wishek and Lilly as a co-partnership under the name of the McIntosh County Bank, on the other, whereby the construction company agreed, to sell and the bank agreed to buy two lots in the town of Ashley and pay therefor $300 on the occurrence of certain events. The partnership mentioned was subsequently dissolved and its assets distributed, with the exception of the contract mentioned. The events happened, but the vendees never paid any taxes' as they agreed to do, and never paid the purchase price for the lots. The contract contained a provision that no assignment of it or of the property by the vendees would be recognized or binding on the' vendor unless con,sent in writing was indorsed thereon by the vendor. It never, was assigned to Hammond orally, or in writing, and no- consent by the vendor was ever given to any assignment. Wishek and Lilly never consented that title might be conveyed to Hammond by the construction company. Hammond’s interest in the contract was a one-third in terest. Hammond brought this action to compel specific performance by deed of the whole title to such lots to him alone. All the other parties to the contract defended.</p> <p>Held, that Hammond cannot maintain such action.</p>

Action by the James River National Bank of Jamestown, N. D., against Fried Weber. Judgment f.or plaintiff, and defendant appeals. One paying money without compulsion, claimed by another as a matter of right, and paying with full knowledge of the fact, cannot recover it. Wyman v. Farnsworth, 3 Barb. 369; N. Y. & C. R. Co. v. Marsh, 2 Kern 308, 1 Wait’s Law & P. 702; Mowatt v. Wright, 1 Wend. 355; Morton v. Ostrom, 33 Barb. 256; Forest v. Magor, 13 Abb. 350.

<p>Appeal from District Court, McIntosh county; Allen, J.</p> <p>Action by Cassius C. Hammond against the Northwestern Construction & Improvement Company and others, and Nina Wishek, inetervner. Judgment for defendants, and plaintiff appeals.</p>

Action by John T. O’Brien against John O’Brien and others. Judgment for defendants, and plaintiff appeals. Delivery of deed to a third party to be handed to the grantee at grantor’s death, -conveys absolute title subject to grantor’s life interest.

<p>Appeal from District Court, Eddy county; Burke, J.</p> <p>Action by J. B. Folsom, .administrator, and others, against Frank D. Norton. Judgment for plaintiffs, and defendant appeals.</p>

Action by Fred Mitchell against the Knudtson Land Company and another. Judgment- for plaintiff, -and defendants appeal. Memorandum of sale must disclose the parties to the contract.

<p>Divorce — -Judgment—Acceptance of Benefits Under — Appeal and Error.</p> <p>1. In an action for divorce, a decree was entered in plaintiff’s favor, but awarding defendant $1,250 counsel fees and suit money, which she accepted and retained. She thereafter appealed from the whole decree, land demanded a new trial in this court of the entire case. On motion to dismiss her appeal for the reason that she had accepted benefits under the decree.</p> <p>Held, that inasmuch as on a trial of the whole action in this court, or by the district court, if this court should remand it to that court for a new trial, the court might find such allowance excessive, or that the appellant was not entitled to any allowance for the purpose named, she is estopped from maintaining this appeal from the decree of the district court.</p> <p>Appeal and Error — Dismissal Without Prejudice.</p> <p>2. Under rule No-. 36 (91 N. W. 13), providing that the dismissal of an appeal is in effect an affirmance of the judgment appealed from, unless expressly made without prejudice to another appeal, an appeal from a whole divorce decree will be dismissed without prejudice, where appellant’s right to appeal from a part of the decree -only is not determined.</p>

Claim and delivery by Cady Webster against Colin McLaren. Judgment for defendant, and plaintiff appeals. Partial performance does not extinguish an obligation. Carpenter v. Chicago M. '& St. Ry.

Original application by the State of North Dakota for a writ of certioriari to the district court of the Sixth Judicial District and the Honorable W. IT. Winchester, judge thereof.

' Appeal from District Court, Grand Forks County, Goss, J. Action by the Tri-State Telephone & Telegraph Company against M. A. Cosgriff and others, for the purpose of condemning certain real property to the uses of the plaintiff for a telephone and telegraph line in exercise of the right of eminent domain. A judgment was entered in favor of each of the defendants, and plaintiff appeals.. Courts allow only for property actually taken. Everett v. Union Pac. Ry.

George Ball was convicted of keeping and maintaining a common nuisance, in violation of the prohibition law (Pen. Code, c. 65, Rev. Codes 1905), and he appeals.

<p>Appeal from Stutson County Court; Conklin, J.</p> <p>Action .by the Waterloo Gasoline Engine Company against W. K. O’Neill. Judgment for .plaintiff, and defendant appeals.</p>

<p>Trover and Conversion — Title t'o Maintain — Cropping Contract — Evidence.</p> <p>1. Plaintiff brought an action for damages for the conversion of one-half of the flax -raised by -him on land belonging to the defendaiii under a written contract, and for the conversion of three-fourths of the oats and speltz raised by -him on- land belonging to the defendant under an oral contract. The written contract provided -that the title and possession of the grain should' be in the land owner until a division thereof, and until all the covenants and agreements to be performed by the plaintiff had. been fulfilled. Held that, until the grain raised under the written contract was divided, neither the legal title to- nor the right of possession of any part of said grain was in the plaintiff and he could not maintain an action for conversion.</p> <p>Trover and Conversion — Disputed Contract — Question for Jury.</p> <p>2. As to whether an action in conversion would lie for the oats and speltz, is -dependent upon the terms of the contract under which they were raised. This was a disputed question of fact, which should have been submitted to the jury.</p>

Action by W. L. Marchand against F. X. A. Perrin. Judgment for defendant, and plaintiff appeals. Where one executes work according to contract, and the request of the other contracting party, it is sufficient. 30 Am. & Eng. Ency. Law 1236. Substantial performance sufficient. 301 Am. & Eng. Ency. 1221; Hahn v. Bonacum, 107 N. W. 1001; Leeds v. Little, 42 Minn. 414, 44 N. W. 309, 80 N. Y. 312; 81 N. Y. 211; Crouch et al. v. Gutmann, 31 N. E. 271; 30 Am. St. Rep. 608.

<p>Appeal from District Court, Ransom county; Allen, J.</p> <p>Action -by W. W. Reed against P. O. Heglie and others, TriCounty Drain -Commissioners of Richland, -Sargent, and Ransom Counties. From a judgment sustaining a demurrer to the complaint, plaintiff appeals.</p>

Mandamus by the State, on the relation of M. F. Minehan against Paul F. Meyers, as County Auditor of McLean county. Judgment for relator and defendant appeals. Where averments are “indefinite,” remedy is motion to make definite and certain. Rev. Codes 1905, Sec. 6870; Yerkes v. Crum, 2 N. D. 72, 49 N. W. 422; Johnson v. Great No. Ry. Co., 12 N. D. 420, 97 N. W. 546; Tilton v. Beecher, 59 N. Y. 176;, Lee v. Minneapolis & St.- L. Ry.

<p>Grand Jury — Enforcement of Prohibitory Law — Appearance of Attorney General.</p> <p>1. Section 9372, Revised Codes 1905, relating to the prohibition law, provides, among other things, as follows: “Whenever the/state’s attorney shall be unable, or shall neglect or refuse to enforce the provisions of this chapter in 'his county, or for any reason whatever the provisions of this chapter shall not be enforced in any county, it shall be the duty of the attorney general to enforce the same in such county, and for that purpose he may appoint as many assistants as he shall see fit, and he and his assistants shall be authorized to sign, verify or file all such complaints, informations, petitions and papers as the state’s attorney is authorized to sign, verify or file, and to do and to perform any act that the state’s attorney might lawfully do or perform * *</p> <p>Held, that the attorney general and his assistants have the right to appear before the grand jury and examine witnesses and lay before it any matters relating to the violation of the prohibition law.</p> <p>Grand Jury — Appearance of Attorney General.</p> <p>2. Section 2494, Revised 'Codes of 1905, provides, among other things, as follows: “The attorney general or 'his assistants are authorized to institute and prosecute any cases in which the state is a party, whenever in their judgment it would be to the best interests of the state so to do.”</p> <p>Held, that the attorney general has the right to appear before the grand jury at any time when in his judgment he deems it for the •best interests of the state so to do, and that each of his assistants has the same right.</p> <p>Grand Jury — Appearance of Attorney General.</p> <p>3. The right of the attorney general and his assistants to go before the grand jury is not affected by section 9829, Revised Codes of 1905, allowing only the state’s attorney to appear before the grand jury for the purpose of giving information or advice relative to any matter cognizable before them, and to interrogate witnesses before them whenever he thinks it necessary, and permitting no other person to be present during the sessions of the grand jury except the members and a witness actually under examination.</p>