Volume 21 — North Dakota Reports

, by request. Action to restrain tbe joint board of drain commissioners of McHenry and Bottineau counties. Order restraining joint drain board granted. Defendants appeal. Drainage boards can construct drains, and for outlets may go beyond their territorial limits, and expend money, the benefits at all times to exceed the expenses. 28 Cyc. Law & Proc. p. 954; 10 Am. & Eng. Enc. Law, p. 247; 1 Dill. Mun. Corp. 446; Tiedeman Mun.

<p>Appeal from District Court, Ward county; Goss, J.</p> <p>Action to quiet title.</p>

Action to abate a nuisance. Petition of defendant for the abatement of the action on compliance with § 9373, Rev. Codes 1905, granted-The State appeals. Owner of a leased building used as nuisance under the prohibition law is a proper party defendant in a proceeding in equity to abate it. Martin v. Blattner, 68 Iowa, 286, 25 N. W. 131, 27 N. W. 244, 6 Am. Crim.

Action for loss of a pair of mules' in an excavation in tbe street of tbe defendant and appellant. Verdict and judgment for plaintiff and respondent. City need only place a light that will warn reasonably prudent people of danger. Karrer v. Detroit, 142 Mich. 331, 106 N. W. 64; Slaughter v. Huntington, 64 W. Va. 237, 16 L.R.A.(N.S.) 459, 61 S. E. 155; Garnetz v. Carroll, 136 Iowa, 569, 114 N. W. 57. Due care is presumed.

Appeal-from District Court, Grand Forks county; Templeton, J. Action by J. P. Davy against Great Northern Railway Company for personal injuries. Plaintiff had judgment.

H. Winchester, J. Action to recover the amount of certain personal property taxes paid under protest. Erom an order overruling a demurrer to the answer, plaintiff appeals. Personal property taxes cannot be made a lien paramount to prior mortgage.

Burke, JT Plaintiff recovered a. verdict for $350, and from an order denying; a motion for a new trial, defendant appeals. Damages must be alleged and proven with reasonable certainty by competent evidence. 13 Oye. Law & Proc. pp. 214, 215, 218, 219. Where the proof shows damages, but not with reasonable certainty their extent, nominal damages alone should be awarded. M’Cutchin v. Batterton, 1 Mo. 342; Peoria & P. IT.

<p>Counties — Division — Legislative Question.</p> <p>1. All matters pertaining to a division of counties are purely legislative questions unless regulated by constitutional provisions.</p> <p>'Counties — Division — Election — Legal Existence of New County.</p> <p>2. On the question of the division of counties, as governed by §§ 2329, 2330, and 2331, Rev. Codes 1905, the election under § 2329 does not confer a legal existence on the new or proposed county.</p> <p>■ Counties — Division — Legal Existence — Appointment of Commissioners.</p> <p>3.Under § 2330, a legal existence is not conferred upon such new county until after the governor has appointed commissioners, and they have accepted and qualified as such.</p> <p>Voters and Elections — Division of Counties — Organization of new Counties.</p> <p>4.Until such county commissioners qualify, voters residing in a proposed new county are legal voters of the county about to be divided, and can legally vote on all matters pertaining to that county.</p> <p>Note. — Dividing counties by legislative authority, see notes in 35 Am. St. Rep. 539; and 85 Am. Dec. 101.</p> <p>Organization of new counties, see note in 20 Am. St. Rep. 680.</p>

<p>Appeal from District Court, Ward county; Kneeshaw, J.</p> <p>Election contest between C. C. C. Willis and L. P. Weather wax. Judgment for contestee, and contestant appeals.</p>

'Appeal from District Court, Morton county; W. C. Crawford, J. 'Appellant was convicted of a criminal contempt in violating an injunction al order enjoining the maintenance of a liqnor nuisance. From a judgment of conviction he appeals.

The defendant was found guilty of keeping and maintaining a common nuisance, and appeals. The instructions should have been “wilfully and intentionally. ” McPherrin v. Jones, 5 N. D. 261, 65 N. W. 685; State v. Campbell, 7 N. D. 58, 72 N. W. 935; State v. Johnson, 14 N. D. 288, 103 N. W-565. “Evidence” should have been used, instead of “testimony.” 16 Cyc. Law & Proc. p. 849; Columbia Nat. Bank v. German Nat., Bank, 56 Neb. 803, 77 N. W. 346.

Sargent county; AUen, J. Defendant was convicted of keeping and maintaining a common-nuisance, as of a second offénse, and appeals.

<p>Appeal from District Court of Barnes county; Burlce, J.</p> <p>Action for damages. Judgment for plaintiff. Defendant appeals.</p> <p>Herman Winterer and D. 8. Ritchie, for appellant. Bricker v. Philadelphia & R. R. Co. 132 Pa. 1, 19 Am. St. Rep. 585, 18 Atl. 983; Chicago Union Traction Co. v. O’Brien, 219 111. 303, 76 N. E. 341; Earley v. Cincinnati, EÉ. & D. R. Co. 47 C. C. A. 156, 108 Eed. 14; Illinois O. R. Co. v. O’Keefe, 168 111. 115, 39 L.R.A. 148, 61 Am. St. Rep. 68, 48 N. E. 294; Poster v. Seattle Electric Co. 35 Wash. 177, 76 Pac. 995; Woolsey v. Chicago, B. & Q. R. Co. 39 Neb. 798, 25 L.R.A. 79, 58 N. W. 444; Hicks v. Union P. R. Co. 76 Neb. 496, 107 N. W. 798; Eremont, E. & M. Valley R. Co. v. Hagblad, 72 Neb. 773, 4 L.R.A.(N.S.) 254, 101 N. W. 1033, 106 N. W. 1041, 9 A. & E. Ann. Cas. 1096; Strong v. North Chicago Street R. Co. 116 111. App. 246; MeEeat v. Philadelphia, W. & B. R. Co. 6 Perm. (Del.) 513, 69 Atl. 744; Hdgner v. Boston Elev. R. Co. 198 Mass. 260, 15 L.R.A.(N.S.) 960, 84 N. E. 464.</p> <p>Presence on platform, having paid no fare, and attempting to board a train do not make a passenger. June v. Boston & A. R. Co. 153 Mass. 79, 26 N. E. 238; Reiten v. Lake Street Elev. R. Co. 85 111. App. 657; Missouri, K. & T. R. Co. v. Williams, 91 Tex. 255, 40 S. W. 350, 42 S. W. 855; Merrill v. Eastern R. Co. 139 Mass. 238, 52 Am. Rep. 705, 1 N. E. 548; Bricker v. Philadelphia & R. R. Co. 132: Pa. 1, 19 Am. St. Rep. 585, 18 Atl. 983.</p> <p>Knowing the use of the plank between platform and car, and stepping into the darkness, without ordinary precaution, plaintiff was guilty of contributory negligence. Hanrahan v. Manhattan R. Co. 53 Hun, 420, 6 N. Y. Supp. 395; Graham v. Pennsylvania R. Co. 139 Pa. 149, 12 L.R.A. 293, 21 Atl. 151; Becker v. Lincoln Real Estate & Bldg. Co. 174 Mo. 246, 73 S. W. 581; Bradley v. Grand Trunk R. Co. 107 Mich. 243, 65 N. W. 102; Gulf, O. & S. F. R. Co. v. Hodges, — Tex. Civ. App. —, 24 S. W. 563; Wallace v. Wilmington & N. R. Co. 8 Houst. (Del.) 529, 18 Atl. 818; Galena & C. Union R. Co. v. Eay, 16 111. 558, 63 Am. Dec. 323; Chicago, B. & Q. R. Co. v. Hazzard, 26 111. 386; Pennsylvania R. Co. v. Aspell, 23 Pa. 147, 62 Am. Dec. 323; South & North Ala. R. Co. v. Schaufler, 75' Ala. 136; Clark v. Metropolitan Street R. Co. 68 App. Div. 49, 74 N. Y. Supp. 267; Missouri, K. & T. R. Co. v. Turley, 29 O. C. A. 196, 56 U. S. App. 1, 85 Eed. 369; Little v. Hackett, 116 U. S. 371,. 29 L. ed. 654, 6 Sup. Ct. Rep. 391; Johnston y. New Omaha Thomson-Houston Electric Light Co. 78 NeK 27, 17 L.R.A.(N.S.) 435, 110 N. W. 711, 113 N. W. 526; Evansville Hoop & Stave Co. v. Bailey, 43 Ind. App. 153, 84 N. E. 549; Haase v. Morton, 138 Iowa, 205, 115 N. W. 921, 16 A. & E. Ann. Cas. 350; Anderson v. Wilmington, 6 Penn. (Del.) 485, 70 Atl. 204; Miller v. Chicago, St. P. M. & O; E. Co. 135 Wis. 247, 17 L.B.A.(N.S.) 158, 128 Am. St. Eep. 1021, 115 N. W. 794.</p> <p>The fact that plaintiff had no ticket is immaterial. Albin v. Chicago, E. I. & P. E. Co. 103 Mo. App. 308, 77 S. W. 153; McCarty v. St. Louis & Suburban E. Co. 105 Mo. App. 596, 80 S. W. 7; Smith v. St. Paul City E. Co. 32 Minn. 1, 50 Am. Eep. 550, 18 N. W. 827; Ahem v. Minneapolis Street E. Co. 102 Minn. 435, 113 N. W. 1019; Grimes v. Pennsylvania Co. 36 Eed. 72; Baltimore & O. E. Co. v. State, 81 Md. 371, 32 Atl. 201; McEeat v. Philadelphia, W. & B. E. Co. 6 Penn. (Del.) 513, 69 Atl. 744; Webster v. Eitchburg E. Co. 161 Mass. 298, 24 L.E.A. 521, 37 N. E. 165; McDonough v. Metropolitan E. Co. 137 Mass. 210; North Chicago Street E. Co. v. Williams, 140 111. 275, 29 N. E. 672; Allender v. Chicago, E. I. & P. E. Co. 37 Iowa, 264; Phillips v. Southern E. Co. 124 N. C. 123, 45 L.E.A. 163, 32 S. E. 388; Texas & P. E. Co. v. Jones, — Tex. Civ. App. —, 39 S. W. 124; Galveston, H. & S. A. E. Co. v. Fink, 44 Tex. Civ. App. 544, 99 S. W. 204; Gordon v. West-End Street E. Co. 175 Mass. 181, 55 N. E. 990; Hall v. Terre Haute Electric Co. 38 Ind. App. 43, 76 N. E. 334.</p> <p>One is a passenger, when in the act of getting on the car stopping for him. Gaffney v. St. Paul City E. Co. 81 Minn'. 459, 84 N. W. 304; Citizens’ Street E. Co. v. Merl, 26 Ind. App. 284, 59 N. E. 491; Gordon v. West End Street E. Co. 175 Mass. 181, 55 N. E. 990; Butler v. Glens Falls, S. H. & Ft. E. Street E. Co. 121 N. T. 112, 24 N. E. 187.</p> <p>Carrier of passengers must keep the approaches to its cars properly lighted for the safety of its passengers. Grimes v. Pennsylvania Co. ;36 Fed. 72; Hiatt v. Des Moines, N. & W) E. Co. 96 Iowa, 169, 64 N. W. 766; Fordyce V. Merrill, 49 Ark. 277, 5 S. W. 329; Cross v. Lake Shore & M. S. E. Co. 69 Mich. 363, 13 Am. St. Eep. 399, 37 N. W. 361; 6 Cyc. Law & Proc. pp. 605-609; Chicago, E. I. & P. E. Co. V. Stepp, 22 L.E.A.(N.S.) 350, 90 C. C. A. 431, 164 Fed. 785.</p> <p>Whether plaintiff was exercising care, or defendant was negligent, were matters for the jury. Pendroy v. Great Northern E. Co. 17 N. D. 433, 117 N. W. 531; Hall v. Northern P. E. Co. 16 N. D. 60, 111 N. W.. 609, 14 A. & E. Ann. Cas. 960; Hmsted v. Colgate Farmers’ Elevator Co. 18 N. D. 309, 122 N. W. 390; Chicago & J. Electric E. Co. v. Wanie, 230 HI. 530, 15 L.E.A.(N.S.) 1167, 82 N. E. 821; Butler v. Glens Falls, S. H. & Ft. E. Street E. Co. 121 N. Y. 112, 24 N. E. 187.</p>

A. Pollock, J. Action by Fred W. McLean against the News Publishing Company. 'There was a directed verdict for plaintiff granting inadequate relief, and he‘ appeals from an order denying his motion for judgment notwithstanding the verdict or for a new trial.

From an order overruling defendant’s demurrer to plaintiff’s complaint, defendant appeals. In the statutory action to determine adverse claims, there can be only the recoveries specified in the statute. Chandler v. Hanna, 73 Ala.: 390; Roberts v. Landecker, 9 Cal. 262; French v. Wilier, 126 111.. 611, 2 L.R.A. 717, 9 Am. St. Rep. 651, 18 N. E. 811; McKinney v. Monongahela Nav. Co. 14 Pa. 65, 53 Am. Dec. 517; 1 Cyc. Law & Proc. p. 707, note 95.

'Appeal from the District Court of Billings county; Crawford, J. Action to determine adverse claims to real property. From an order •denying plaintiff’s application for the appointment of a receiver pendente lite, plaintiff appeals. Failure of one party to perform authorizes the other to abandon the contract. Stanford v. McGill, 6 N. D. 543, 38 L.B.A. 760, 72 N. W. 938; Giltner v. Eayl, 93 Iowa, 16, 61 N. W. 225. So an attempted modification.

Action by Lillian B. Taugher against the Northern Pacific Railway Company and others for the conversion of flax shipped by plaintiff over defendant’s railroad. The defendant, the Northern Pacific Railway Company, appeals from a judgment in favor of plaintiff and an order denying a new trial. Neglect of duty is not necessarily conversion. 28 Am. & Eng. Enc. Law, pp. 682, 683; Marshall v. Andrews, 8 N. D. 364, 79 N. W. 851; Magnin v. Dinsmore, 70 N. Y. 410, 26 Am.

<p>Appeal and Error — Adverse Claims — Tax Deed.</p> <p>On an appeal in an action to determine adverse claims, where the judgment roll only is before the supreme court, and it appears by defendant’s counterclaim that the tax deed under which he claims and is in possession is a valid tax .deed, and the findings show that all tax proceedings were in accordance with the statute, and that all the grounds urged by plaintiff to show defects in the tax proceedings do not exist, held, that defendant’s title is valid, and that the deed under which he claims vested a complete title in him, and that the-deed under which the plaintiff claims conveyed nothing.</p>

<p>•Criminal Daw — Bill of Particulars — Discretion of Court.</p> <p>1. Whether a demand for a bill of particulars in a criminal case is ever permissible in this state not decided, but, conceding that it may be demanded, it is a matter that is always within the discretion of the trial court, and such discretion will not be interfered with on appeal unless it appears that there has been a manifest abuse thereof.</p> <p>•Criminal Daw — Trial — Dealing Questions — Discretion of Court.</p> <p>2. The allowance of answers to leading questions or questions which assume facts not proven is strictly discretionary With trial judges, and unless there appears a clear abuse of that discretion, appellate courts will not disturb their rulings.</p> <p>Criminal Daw — New Trial — Verdict Against Evidence — Specification of Error.</p> <p>3. Whether a verdict in a criminal case is against the evidence or not will not he reviewed on appeal unless the motion for a new trial specifies as error that the verdict is against the evidence, and failure by the state to object to the motion for a new trial when made without any specification is not a waiver of the right to raise the question in this court.</p> <p>‘Trial — Evidence.</p> <p>4. Objections to questions and motions to strike out answers considered, and the rulings of the trial court sustained.</p>

<p>Criminal Law — Witnesses — Exclusion from Court Room.</p> <p>1. It is discretionary with trial courts whether or not all witnesses shall he excluded from the court room during the trial.</p> <p>Note. — The sufficiency of charging a crime in the language of the statute is considered in a note in 94 Am. Dec. 253, and the question of the right to introduce evidence of another and independent offense in a criminal ease in order to show motive for the commission of the crime charged is considered in a note in 62 L.K.A. 194.</p> <p>Criminal law — Indictment and Information — Following language of Statute — Poisoning Animals.</p> <p>2. Where the information follows the language of the statute making it a crime to wilfully poison domestic animals, and it further designates the animal poisoned as a horse, and states the ownership thereof, no further description of the horse is necessary.</p> <p>Indictment and Information — Making More Definite — Discretion.</p> <p>3. Whether a motion to make an information more definite may ever be granted as a matter of right, not determined, but if permissible there was no abuse of discretion in denying such motion in this ease.</p> <p>Criminal law — Witnesses — Impeachment — Cross-Examination.</p> <p>4. The rule on cross-examination of witnesses in criminal cases is that a wide latitude is permitted as to the motives and feelings of such witnesses towards defendants, and it is prejudicial error to refuse to permit any cross-examination on those matters.</p> <p>Witnesses — Cross-Examination — Impeachment — Motives — Other Offenses.</p> <p>5. It is error to sustain an objection to a question on the cross-examination of a complaining witness, as to whether he had offered a bribe to a person if he would appear and testify as to certain matters against the defendants.</p> <p>Criminal law — Evidence — Motions — Proof of Independent Offenses.</p> <p>6. It is not permissible to prove another and independent offense against the defendants on the ground that it shows a motive for the commission of the crime charged, unless such proof fairly and reasonably tends to show such motive.</p> <p>Criminal law — Evidence — Conspiracy — Acts of Third Persons.</p> <p>7. It is error to admit proof of acts and declarations of third persons not in the presence of the defendants, unless a conspiracy has been shown between the persons making such declarations or doing such acts and the defendants, and that such acts or declarations were made or done in furtherance of the objects of the conspiracy.</p> <p>Criminal law — Poisoning Animals — Information and Indictment.</p> <p>8. Where the information simply charges malicious and felonious administering of poisons to domestic animals, it is error, in view of the provisions of the statute, to show the poisoning of such animals by exposing poison with intent that it shall be taken by them.</p>

Action for a permanent injunction. Demurrer to complaint overruled. Defendants appeal. Engineer’s failure to object as the work proceeds waives defects. iSiebert v. Roth, 118 Wis. .250, 95 N. W. 118; Laycock v. Moon, 97 Wis. 59, 72 N. W. 372; Laycock v. Parker, 103 Wis. 161, 79 N. W. 327; Ashland Lime, Salt & Cement Co. v. Shores, 105 Wis. 122, 81 N. W. 136. Plaintiff has no interest to entitle him to maintain this action. New Orleans Waterworks Co. v. New Orleans, 164 IT.

C. Crawford, J. From a judgment in defendant’s favor, plaintiff appeals. Candidate for county superintendent must hold certificate of highest •county grade. Sec. 150 N. D. Const. Rev. Codes 1905, § 778; Laws of 1907, chap. 95; Taylor v. Sullivan, 45 Minn. 309, 11 L.R.A. 272, :22 Am. St. Rep. 729, 47 N. W. 802. A county superintendent can hold the office until a duly qualified ^successor is elected and qualified. Section 764, Revised Codes 1905; State ex rel.

<p>Attorney at Law — Disbarment Proceedings — Sufficiency of Evidence.</p> <p>1. Held: That the findings of the trial court in favor of the accused on certain charges are sustained by a preponderance of the evidence, but the charge that he has been guilty of disrespect to the court in connection with proceedings in a certain transaction set out in the evidence is not supported by any evidence regarding that transaction,</p> <p>2. Held: further, that the charge of attempting to deceive the court in violation of Iris duty as an attorney is not sustained by that degree of clearness which justifies the court in suspending an attorney, particularly in view of the accused’s explanation of the transaction and the absence of evidence in direct conflict with his version.</p> <p>Note. — Judge’s neglect for years to decide disbarment case does not preclude his successor passing upon and basing a decision on same facts and matters occurring later. Re Crum, 7 N. D. 316, 75 N. W. 257. Disbarment proceedings must be tried upon testimony of witnesses, not their affidavits, to save accused’s right of cross-examination. Re Simpson, 9 N. D. 379, 83 N. W. 541. Proceedings under the statute to suspend, or revoke an attorney’s license, is not criminal in its procedure. State v. Root, 5 N. D. 487, 57 Am. St. Rep. 568, 67 N. W. 590; Re ■Crum, supra; Rc Kirby, 10 S. D. 416, 73 N. W. 908. Proceedings for disbarment and contempt cannot be united. State v. Root, supra. Courts, having the pow§r to admit an attorney, have inherently the power to disbar. Re Simpson, supra. May disbar for misconduct in any court, state, Eederal, trial, or appellate. Ibid. While disbarment proceedings may be instituted in the supreme court, they should arise in the district courts, unless the offense complained of occurred in the supreme court or arose out of its order. Re Ereerks, 11 N. D. 120, 90 N. W. 265. Misconduct that warrants suspension. Ibid.; State v. Root; Re Simpson; and Re ■Crum, supra. Ealse statement to another attorney in court as to the whereabouts of a paper, and that he removed it from the court files, innocently, is not false statement to a court authorizing disbarment. Re Eaton, 4 N. D. 514, 62 N. W. 597. May be disbarred for his misconduct as state’s attorney, although there is no accusation against him as attorney as to private professional conduct. Re Voss, 11 N. D. 540, 9 N. W. 15; Re Simpson, supra. Concealing his disbarment in another state, representing himself as a practitioner of that state, while so disbarred, warrants his disbarment in this state. Re Olmstead, 11 N. D. 306, 91 N. W. 943. Proofs that accused has reformed as result of his discipline, and is now of good moral character, and trustworthy, that his misconduct was the result of youthful indiscretion and radical misconception of duty, will warrant reinstatement of a disbarred attorney. Re Simpson, supra, and Re Egan, — S. D. —,. 129 N. W. 365. Acts of partner of accused, not participated in by the latter, do not warrant a disbarment. Re Whittemore, 14 N. D. 487, 105 N. W. 232-On dissolution of a law firm by disbarment of a member, contracts may be completed by the remaining partners, and existing contracts for services will be determined under existing partnership contracts. Bessie v. Northern P. R. Co-14 N. D. 614, 105 N. W. 936. Procuring all of the property of a mentally incompetent client, is ground for disbarment. Re Egan, 22 S. D. 355, 117 N. W. 874-Right to disbar inherent in courts, regardless of statute, and statutory grounds-do not exclude others. Id. Criticism of judicial officers after the termination of a case, no grounds for disbarment. ReEgan, 24 S. D. 301, 123 N. W. 478. Goo® moral character to warrant reinstatement not shown. Id. A state’s attorney being concerned in a civil action based on facts upon which he must prosecute-criminally, such conduct being forbidden by law, cannot plead ignorance of the-statute in defense of disbarment proceedings. Re Schull, 25 S. D. 602, 127 N. W-541. Attempt to corrupt a witness in case being tried by an attorney is ground for his disbarment. Re Harben, — S. D. —, 129 N. W. 561. Disbarment take» away all privileges of an attorney, — precludes his practice in all courts. Danforthv. Egan, 23 S. D. 43, 119 N. W. 1021. Election as state’s attorney after disbarment does not reinstate him. Ibid. One proceeded against for disbarment, cannot plead that the acts of which he was accused were done three days before hi» admission to practice. Re Elliott, 18 S. D. 264, 100 N. W. 431. Certain other acta warranting a disbarment. Id.</p>

'Appeal from District Court, Morton county; Crawford, J. Joseph Winbauer was convicted of maintaining a common nuisance: in violation of the prohibition law, and he appeals.

'Appeal from the District Court of Barnes county; Burke, J. Action upon a promissory note. Defendant had judgment. Mere knowledge of suspicious circumstances will not defeat a recovery. First Nat. Bank v. Flath, 10 N. D. 281, 86 N. W. 867. Being an officer of a purchasing bank and the corporation that is-payee of the note is not notice, if he is ignorant of the defenses. Iowa, Nat. Bank v. Sherman, 17 S. D. 396, 106 Am. St. Rep. 778, 97 N. W. 12.

From a judgment of conviction for maintaining a common nuisance defendant appeals. A criminal complaint sworn to on knowledge is essential to jurisdiction of a criminal action. People v. Heffron, 53 Mich. 527, 19 N. W. 170; Bishop, Crim. Proc. chaps. 716 — 719; Com. ex rel. Parker v. Certain Lottery Tickets, 5 Cush. 369; Brown v. Kelley, 20 Mich. 27; People ex rel.

Joe Peltier was convicted of murder and he appeals. It was error to take from the jury the question whether prisoner was ¿guilty of manslaughter. Brickwood & S. Instructions to Juries, § 4620; Lynn v. People, 170 111. 527, 48 N. E. 964; Panton v. People, 114 111. 505, 2 N. E. 411, 5 Am. Grim. Rep. 425. Court cannot assume that a murder has been committed.

Order of dismissal affirms order or judgment appealed from, and i& res judicata. Enderlin State Bank v. Jennings, 4 N. D. 228, 59 N. W. 1058; Clopton v. Clopton, 10 N. D. 569, 88 Am. St. Bep. 749, 88-N. W. 652; Schouweiler v. Allen, 17 N. D. 510, 117 N. W. 866. Time to move for vacation of judgment is limited to one year. Bev.

<p>Criminal Law — Intoxicating Liquors — Evidence — Freight Receipts.</p> <p>1. Defendant’s receipts for freight shipments are competent evidence as admissions against him.</p> <p>'Criminal Law — Caution to Jury — Evidence.</p> <p>2. Court’s caution to the jury during the trial held sufficient, in the absence of a request by defendant for more definite instructions.</p> <p>Criminal Law — Caution to Jury — Striking Out Evidence.</p> <p>3. Where, at the time testimony was stricken out, the court fully cautioned the jury to disregard the same, an omission to again instruct the jury to disregard such testimony is not error, — especially when no request is made for such an instruction.</p> <p>Criminal Law — Intoxicating Liquors — Evidence.</p> <p>4. Testimony examined, and held sufficient to warrant conviction for the crime charged.</p>

<p>'Appeal from the District Court, Billings county, Crawford, J.</p> <p>Action by Peter O. Erickson against Peter P. Russ and another to •foreclose a mechanics’ lien. From a judgment sustaining a demurrer of ■defendant, Peter P. Russ, plaintiff appeals.</p>

Action by Peter C. Erickson against _Peter P. Russ and another to foreclose a mechanics’ lien. Prom a judgment sustaining the demurrer of defendant Mary L. Russ to the complaint, plaintiff appeals.

Affirmed. Ministerial and administrative duties, although involving exercise of judgment and discretion, may be coerced by mandamus. Merrill, Mandamus, § 44; 26 Cyc. Law & Proc. p. 161; Haynes, New Trials, § 323; State ex'rel. Keane v. Murphy, 19 Nev. 89, 6 Pac. 840; State ex rel. Humboldt County v. Lander County, 22 Nev. Yl, 35 Pac. 300; Stockton & V. P. K. Co. v. Stockton, 51 Cal. 328, 339; People v. Alameda County, 45 Cal. 395; Wood v. Strother, Y6 Cal. 545, 9 Am.

One who would open a default judgment must, by affidavit, answer, or both, show a good defense on the merits, and excuse his failure to-appear in the case. Sargent v. Kindred, 5 N. D. 8, 63 N. W. 151 Wheeler v. Castor, 11 N. D. 347, 61 L.R.A. 746, 92 N. W. 381, 23> Cyc. Law & Proc. p-. 930, note 32. Ignorance only excuses in extreme cases. Sutton v. Gunn, 86 Ga.. 652, 12 S. E. 979. Motion to vacate is addressed to sound discretion, and ruling reversed only for abuse.

<p>Appeal from, the District Court of Stark county; Crawford, J.</p> <p>A corporation can lawfully give' credit to a purchaser of its stock. Mitchell v. Beckman, 64 Cal. 117, 28 Pac. 110; Hacker v. National Oil Ref. Co. 73 Pa. 97, 13 Mor. Min. Rep. 538; Vermont C. R. Co. v. Clayes, 21 Vt. 30; Illinois River R. Co'. v. Zimmer, 20 111. 654; Goodrich v. Reynolds, 31 111. 490, 83 Am. Dec. 240; Pine River Bank v. Hodsdon, 46 N. H. 114; Selma & T. R. Co. v. Roundtree, 7 Ala. 670; Greenville & C. R. Co. v. Woodsides, 5 Rich. L. 145, 55 Am. Dec. 708;' Little v. O’Brien, 9 Mass. 423; Leighty v. Susquehanna & W. Turnp. 'Co. 14 Serg. & R. 434; Centre & K. Tump. Road Co. v. M’Conaby, 16 Serg. & R. 140; Boyd v. Peach Bottom R. Co. 90 Pa. 169.</p> <p>The law having fixed a penalty, courts can impose no other. Wagner Olson, 3 N. D. 69, 54 N. W. 286; 19 Cyc. Law & Proc. pp. 23 — 26.</p> <p>To enforce the. note given for corporate stock is to protect stockholders and creditors. Pine River Bank v. Hodsdon, 46 N. H. 114.</p>

<p>Drains — Eminent Domain — Determining Compensation — Allowance of Benefits.</p> <p>1. Following the rule in Ross v. Prante, 17 N. D. 266, 115 N. W. 833, held? that chapter 23, Revised Codes 1905, does not authorize the jury to consider the benefits to the tract of land about to be condemned, in determining full1 compensation. The duty of the jury is to ascertain the full damages. The-benefits are to be determined by the board of drain commissioners.</p> <p>Note. — Procedure for establishment of drains and sewers, see note in 60 E.R.A. 161.</p> <p>Eminent Domain — Condemnatory Proceedings — Compensation.</p> <p>2. If, for any reason, the jury determines the amount of the said benefits,-, the trial court should disregard such determination as surplusage, and order judgment for the amount of the full damages, if the amounts can be separated..</p> <p>Eminent Domain — Condemnation Proceedings — Compensation — Allowing; Benefits.</p> <p>3. In this case the jury found the full damages to the tract sought to be-condemned, and made an independent finding as to the amount the tract was-benefited. It was the duty of the trial court to order the entry of judgment for-the amount of the full damages.</p>

A. Pollock, J. Action by Jens Paulsen against Modern Woodmen of America,, judgment in favor of plaintiff, defendant appeals. Amendments should be allowed to save rights and advance justice.. Coghlin v. Stetson, 22 Blatchf. 88, 19 Fed. 727; Conner v. Smith,. 74 Ala. 115; Miller v. Metzger, 16 111. 390; Trego v. Lewis, 58 Pa. 463; Newberg v. Farmer, 1 Wash. Terr. 183; Milch v. WestchesterF. Ins. Co. 13 Misc. 231, 34 N. Y. Supp. 15; Union Bank v. Kidgley, 1 Harr. & G. 324.

Action by Frances Marian Wagar against Helen Prendeville. Judgment for defendant and plaintiff appeals. None but registered voters can vote. Fitzmaurice v. Willis, 20 N. D. 372, 127 N. W. 95. Legislature can regulate elections. People ex rel. Grinnell v. Hoffman, 116 111. 587, 56 Am. Eep. 793, 5 N. E. 596, 8 N. E. 788; Capen v. Foster, 12 Pick. 485, 23 Am. Dec. 632; Cooley, Const.

<p>Brokers — Contract — Pleading.</p> <p>1. Before a broker can recover for services as such, he must plead and sustain ’ a contract of employment, express or implied.</p> <p>Note. — What constitutes employment of real.estate broker which will entitle him-to commissions otherwise earned, see note in 27 L.R.A. (N.S.) 786.</p> <p>¿Brokers — Contract — Evidence.</p> <p>2. Evidence in this case does not show such a contract, and the trial court properly directed the jury to find for the defendant.</p>

Action by E. A. • Wadsworth against C. E. Owens. Judgment for .defendant, and plaintiff appeals. Tenant holding over after the end of his lease, without a new contract, continues upon the terms of the original lease. 18 Am. & Eng. .Enc. Law, p. 405; 24 Cyc. Law & Proc. p. 1011; Bradley v. Slater, 50 Neb. 682, 70 N. W. 258; Jones, Land. & T. § 205; Scott v. Beecher, ■91 Mich. 590, 52 N. W. 20; Eev. Codes 1905, § 5531.

<p>Mandamus — Official Discretion.</p> <p>1. Generally mandamus does not lie to control the exercise of judicial discretion.</p> <p>Courts — Adjournment — Discretion of Presiding Judge.</p> <p>2. Under the facts disclosed by the record in this case, the action of the defendant as judge of the district court of Billings county, set forth in the opinion, in adjourning a term of the district-court of that county without trying; the case in which the plaintiff herein was a party, was an exercise of judicial1, discretion.</p> <p>Judges — Affidavit of Prejudice — Porm of Piling.</p> <p>3. Affidavits of prejudice directed at the judge of the district court, and not filed before the commencement of the term at which the ease is to he tried, are of no effect, and do not deprive the judge of the right or power to try the action in which such affidavits are filed during term time.</p> <p>Mandamus — Reconvening Court — Calling in Another Judge.</p> <p>4. Under tlie eireumstanees and proceedings surrounding the act of the judge in this case, it is held, that his attempts to secure the judges of other districts to sit in the trial of the case in his place were purely voluntary; and that mandamus will not lie to compel him to reconvene the term of court and call in another judge by reason of his not having made every effort possible to secure another judge to sit in the trial of the cause in which the plaintiff was a party.</p> <p>Courts — Terms — Adjournment — Discretion of Judge.</p> <p>ñ. The discretion of a judge of the district court pertaining to the setting of causes for trial, the order of their arrangement on the calendar, and the adjournment of terms of his court, is almost unlimited, and ofttimes the rights of a litigant must give way to the superior rights of the public and the necessities of the occasion as governed by the duties of the judge and the terms and business of the several counties of his district.</p>

Templeton, J. Action by S. M. Jenson against Joe Erazer. Judgment for defend.-ant, and plaintiff appeals. Appeals are governed by the statute in force when they are perfected. 'Rivers v. Cole, 38 Iowa, 677; Simberskey v. Smith, 27 Iowa, 177; óSmith v. Van Gilder, 26 Ark. 527; .Cheek v. Berry, 27 Ark. 314; Donaldson v. Security Trust & S. Y. Co. 20 Ky. L. Rep. 857, 47 S. W, 763; Terry v. Johnson, 105 Ky. 760, 49 S. W. 767; and Donaldson v-Security Trust & S. Y. Co. 21 Ky.

'Appeal from District Court, Ward county; E. B. Goss, J. Action by Walter Dickinson against W. J. Carroll. Judgment for plaintiff, and defendant appeals. A voluntary payment, with free knowledge of all the facts, cannot be recovered, and payments are voluntary except where the payer was in immediate danger of injury to property or person, even though payment is made under protest.

Pollochj J. Action by Johannes Grunow against Mathias Simonitsch and W. C. McFadden. Judgment for defendants, and plaintiff appeals. Corporations, if so empowered by their charters, even at common law, can act as administrators. Minnesota Loan & T. Co. v. Beebe, 40 Minn. 7, 2 L.R.A. 418, 41 N. W. 232; Thompson’s Estate, 33 Barb. 334; Vidal v. Philadelphia, 2 How. 127, 187, 11 L. ed. 205, 229; Deringer v. Deringer, 1 Am. St. Rep. 150, and note, 5 Houst.

<p>Appeal from District Court, Cass county; Pollock, J.</p> <p>Action by Clarence B. May against Edson C. Cummings and others-Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Cass county; Pollock, J.</p> <p>Action by Emily E. May, for tbe use of Clarence B. May, .against Edson C. Cummings and others. Judgment for plaintiff,, and defendants appeal.</p>

<p>Quieting Title —Action by Use Plaintiff.</p> <p>1. When a use plaintiff brings suit to quiet title in the name of his grantor,, he must rely upon the title as of the date of the transfer from the nominal* plaintiff to him.</p> <p>Quieting Title — Defenses against Nominal Plaintiff.</p> <p>2. The defendant may avail himself of any defense he may have had against', the nominal plaintiff at the date of the transfer from the nominal to the use-plaintiff.</p> <p>Quieting Title —Nominal Plaintiff — Bona Fide Purchaser.</p> <p>3. In an action brought in the name of a nominal plaintiff, the use plaintiff" •annot claim to be an innocent purchaser without notice, under our recording acts.</p> <p>Quieting Title — Defenses.</p> <p>4. Courts will protect the use plaintiff in the control of the suit, and the nominal plaintiff cannot end the litigation by a deed to the defendant, after he has transferred his title to the use plaintiff. In this action, however, the-defendant’s deed was given prior to the deed to the use plaintiff, and the defendant may plead and prove same as a defense against the use plaintiff.</p>

<p>Appeal from Nelson county court; Templeton> J.</p> <p>Action by C. W. Turner against Crumpton & Crumpton. From the judgment, defendants appeal.</p> <p>If “A” employs “B” to go into the market and “get” an article and ■send it to him, and “B” does so, pays for it and the freight, he is entitled to recover from “A” the money advanced and reasonable compensation. Green v. Feil, 41 "Wis. 620; Clifton v. Ross, 60 Ark. 97, 28 S. W. 1085; Brown v. Clayton, 12 Ga. 564; Dow v. Worthen, 87 Vt. 108; Bartlett v. Smith, 4 McCrary, 388, 13 Fed. 263; Thompson Bros. v. Cummings, 68 Ga. 124; Wyeth v. Walzl, 43 Md. 426; Field ■v. Banker, 9 Bosw. 467; Finlay v. Stewart, 56 Pa. 183; Bibb v. Allen, 149 IT. S. 481, 37 L. ed. 819, 13 Sup. Ct. Rep. 950; Ruffner v. Hewitt, '7 W. Va. 585; Hoy v. Reade, 1 Sweeny, 626; 'Wiger v. Carr, 131 Iowa, 584, 11 L.R.A.(N.S.) 650, 111 N. W. 657, 11 A. & E. Ann. ’Cas. 998, and cases; 31 Oye. Law.& Proe. p. 1532.</p> <p>Defendants’ lien on the goods warranted their preventing delivery. Tiedeman, Sales, § 126, and cases cited; 31 Cyc. Law & Proc. p. :1545.</p> <p>Defendants could assert their lien, or waive it and enforce their personal remedy against plaintiff. Burrill v. Phillips, 1 Gall. 360; Fed. ■Gas. No. 2,200; Peisch v. Dickson, 1 Mason, 9; Fed. Gas. No. 10,911; Martin v. Pope, 6 Ala. 532, 41 Am. Dec. 66; Beckwith v. Sibley, 11 Pick. 482; Dolan v. Thompson, 126 Mass. 183; Zoit v. Millaudon, 4 Mart. N. S. 470; De Bavier v. Funke, 50 N. Y. S. R. 442, 21 N. Y. :Supp. 410, affirmed in 142 N. Y. 633, 37 N. E. 566; Willingham v. Rushing, 105 Ga. 72, 31 S. E. 130; Rosenbaum v. Hayes, 8 N. D. 461, 79 N. W. 987.</p> <p>The case is controlled by Robbins v. Maher, 14 N. D. 228, 103 ■ N. W. 755.</p>

<p>Justice of the Peace — Appeal — Approval of Bond.</p> <p>The Code relating to appeals to the district court from judgments in the court of a justice of the peace requires the execution on the part of the appellant, by sufficient surety, of an appeal bond, which must be approved and1 filed in the office of the clerk of the district court to which the appeal is taken.</p> <p>Appellant appealed from a judgment of a justice of the peace to the district, court, and filed such undertaking. The clerk neglected to indorse the same or make any entry of his approval thereof, but filed the undertaking, and notified the justice of the appeal and directed him to transmit the record to the district court, as required by § 8507, Rev. Codes, 1905.</p> <p>Held, that the notice given by the clerk to the justice which could only be-' given in case the undertaking met with the approval of the clerk is presumptive evidence of such approval, notwithstanding his failure to make his format entry or indorsement of approval.</p>

Action by J. II. Tbompkins and others against D. A. Dinnie. Judgment for plaintiffs, and defendant appeals. Hntil the amount to be raised on wbicb a subscription is to be bind-mg is so raised, the subscriber is not bound, and can cancel his sub scription. Stewart v. Hamilton College, 2 Denio, 403; Barnes v. Perine, 9 Barb. 202; Johnston v. Wabash College, 2 Ind. 555.

'Appeal from District Court, McIntosh county; Allen, J. Friedrich Brandner was adjudged to be the father of a bastard child, and he appeals. No statute is unconstitutional because its title is too broad or general, if all parts are-germane to the one subject expressed in the title. State v. Morgan, 2 S. D. 32, 48 N. W. 314; State v. Becker, 3 S. D. 29, 51 N. W. 1018; State ex rel.

Pollock, Judge. Action by O. B. Youngman against Frederick E. Salvage. From ¡a certain order, plaintiff appeals. Tbe effect of a discharge in bankruptcy is determinable by the proper •tribunal before which collection of a debt is sought Re McCarty, 111 Fed. 151; Re Marshall Paper Co. 43 C. C. A. 38, 102 Fed. 872; Re Thomas, 92 Fed. 913; Re Claff, 111 Fed. 506; Re Rhutassel, 96 Fed. 597; Re Mussey, 99 Fed. 71.

<p>Supreme Court — Original Jurisdiction — Organization of New Counties.</p> <p>1. The supreme court, in the exercise of its original jurisdiction, will, under the facts alleged in the petition, and on the application of the attorney general in the name of the state, issue its prerogative writ to enjoin an alleged new county and those assuming to act as its officers, from exercising jurisdiction over the territory embraced within such new county, until the district court, in which is pending a proceeding to determine the validity of the election at which the proposition was submitted for the organization of such county, has finally adjudicated such question.</p> <p>Counties — Creation of New Counties.</p> <p>2. The issue as to the validity of such election having been duly submitted to the courts for adjudication, it is a legal fraud upon the people who are interested in defeating the organization of such proposed new county, and who are consequently the real parties in interest, for the county auditor, a mere nominal party, to end such litigation in effect by the issuance of his certificate to the secretary of state as provided by § 2330, Rev. Code 1905, his right to issue such certificate being dependent upon the validity of such election.</p> <p>County Division.</p> <p>3. Certain language in the opinion in State ex rel. Minehan v. Meyers, 19 N. D. 804, 124 N. W. 701, wherein it was held that a four weeks’ publication of notice of the submission of a county division proposition is essential, was inadvertently used, and the same is disapproved.</p>

Action by the Citizens’ National Bank of Jamestown against the Osborne-McMillan Elevator Company. From a judgment for plaintiff and an order denying a new trial defendant appeals. A purchaser of personal property subject to a mortgage is not necessarily a wrongdoer or converter of the property. Sanford v. Duluth D. Elevator Oo. 2 N. D. 6, 48 N. W. 434; Plano Mfg.

<p>Appeal from District Court, Eddy county; BurTce, Judge.</p> <p>Action by L. H. Weil et al., doing business under the firm name of Weil, Doble, & Company, against T. B. Quam, doing business asQuam Clothing House.</p> <p>Erom an order dissolving an attachment, plaintiff appeals.</p> <p>One seeking to vacate an attachment must deny all grounds in the* affidavit on which it was issued. Hornick Drug Co. v. Lane, 1 S. D. 129, 45 N. W. 329; Lindquist v. Johnson, 12 S. D. 486, 81 N. W. 900.</p> <p>Where attachment is issued for levy on goods, for the purchase price • of which the action was brought, the goods must be specifically described. F. Mayer Boot & Shoe Co. v. Ferguson, 17 N. D. 102, 14 L.R.A. (N.S.)< 1126, 114 N. W. 1091.</p>

<p>Appeal from District Court, Eddy county; Burlce, Judge.</p> <p>From an order dissolving an attachment, plaintiffs appeal.</p>

G. Burr, J. Prom a judgment in plaintiff’s favor, defendant appeals. Where a party served with irregular process promptly calls the «court’s attention to it, service should be quashed and case dismissed. 20 Enc. PI. & Pr. p. 1162; 24 Cyc. Law & Proc. pp. 519 & 521; 'Waring v. McKinley, 62 Barb. 612; Titus v. Whitney, 16 N. J. L. '85, 31 Am. Dec. 228; Richmond & D. R. Co. v. Rudd, 88 Ya. 648, 14 S. E. 361; Wheeler v. Castor, 11 N. D. 347, 61 L.R.A. 746, 92 N. W. •381; 32 Cyc.

B. Goss, Judge. Action by A. E. Wood against Mary U. Pebrsson and others. Judgment for defendants, and plaintiff appeals. An agreed account cannot be impeached except for fraud, mutual mistake, undue influence, or duress.

Action by Henry Wiemer against Allie D. Wiemer. From an order denying a motion to vacate a decree of divorce rendered in the case, defendant appeals. A judgment fraudulently obtained will be set aside. 1 Black, Judgm. 320; Yorke v. Yorke, 3 N. D. 343, 55 N. W. 1095; Haverty v. Haverty, 35 Kan. 438, 11 Pac. 364; Crouch v. Crouch, 30 Wis. 667; True v. True, 6 Minn. 458, GFil. 315; Young v. Young, 17 Minn. 181, Gil. 153; Colby v. Colby, 59 Minn. 432, 50 Am.

Action by F. A. Patrick & Company against Herman Nürnberg. Judgment for plaintiff, and defendant appeals. Motion to suppress before jury is called is in time. Walters v. Rock, '18 N. D. 45, 115 N. W. 511; Anderson v. First Nat. Bank, 6 N. D. -497, 72 N. W. 916. Substantial compliance with law as to certificate to deposition is required. 13 Cyc. Law & Proc. pp. 943, 944, 981. Incompetent evidence in a deposition may be excluded at trial.

Only special questions arising from the pleadings, and controverted :in the evidence, should be included in a special verdict. Mauch v. Hartford, 112 Wis. 40, 87 N. W. 816. Verdict should he signed hy the foreman. Rev. Codes 1905, § 7031. Jurisdiction cannot be conferred by consent; it must be acquired under statutory process, or order of court pursuant to the statute.

<p>Appeal from District Court, McLean county; Winchester, J.</p> <p>Action by Aanen Myren against L. H. Larson. Judgment for defendant, and plaintiff appeals.</p>

'Appeal from tbe District Court, Stutsman county; B. T. Burke, J. Action against tbe sureties on a redelivery undertaking in claim and delivery. From an order denying defendants’ motion for a new trial, tbey appeal. To hold sureties on a replevin bond, the judgment must be one contemplated by law, that can be satisfied by a return of the property or damage, if delivery cannot be had.

<p>Appeal from District Court, Stutsman county; BurJce, Judge.</p> <p>Action by the Patterson & Stevenson Company against Herman .'Nürnberg. Judgment for plaintiff, and defendant appeals.</p>

Bastardy proceedings by tbe state, on the relation of Annie Pepple,, against Joe Banik. From a judgment adjudging him to be the father1 of the bastard child, defendant appeals. A litigant is entitled to select the jury from the entire panel present and competent to act. People v. Edwards, 101 Cal. 543, 36 Pac. 7;. People v. Compton, 132 Cal. 484, 64 Pac. 849.

<p>.'Municipal Corporations — City Commissioners — Voters and Elections — Cumulative Voting.</p> <p>1. Chapter 45 of the Session Laws of 1907, prescribing the general law under which cities may adopt a plan of city government known as the commission system, does not authorize cumulative voting in the election of city commissioners.</p> <p>-Supreme Court — Prerogative Writs — Mandamus — Original Jurisdiction.</p> <p>2. Under the law the duty is upon the city auditor to prepare, and cause to ■be furnished, the ballots and election supplies necessary to the conduct of such election.</p> <p>Note. — -Exclusiveness of jurisdiction of court of last resort to issue remedial writs for prerogative purposes, see note in 13 L.R.A. (N.S.) 768.</p> <p>Original jurisdiction of court of last resort in mandamus case, see note in 5S JL.R.A. 833.</p> <p>Held, under the facts peculiar to this case, that this court has the jurisdiction to issue an original writ, and the same is accordingly issued.</p>

<p>Criminal Daw —Attorney General’s Authority to Pile Information. .</p> <p>1. Following former decisions of this eourt, the Attorney General of th© state has authority in law to act as informant and file criminal information in district court without a showing of reasons therefor, or without showing reasons why the state’s attorney of the county does not so act; and defendant’s motion to quash the information so filed on such ground was properly denied.</p> <p>«Criminal Law — Trial Judge — Affidavit of Prejudice — Right to Charge — Place of Trial.</p> <p>2. The filing of an affidavit of prejudice against both the presiding judge and the county does not divest such trial judge of authority to order a transfer of the action to another county for trial.</p> <p>“Criminal Law — Intoxicating Liquors — Information — Nuisance.</p> <p>3. A criminal information in a prosecution for keeping and maintaining a common nuisance, a saloon, need not describe with particularity the place of its alleged commission. An information charging the crime as having been committed at “a certain place located in the city of Bismarck in said county and state” sufficiently designates the place when no abatement of nuisance is sought or property liened for fine and costs.</p>

<p>Statutory Construction — Life Insurance — Policy — Dating Back.</p> <p>1. Construing § 5948 of the Revised Codes of 1905, held, that the company - cannot be permitted to show that the actual date of the issuance of a policy of life insurance was of a later date than the date recited in the contract,, where the policy contains an acknowledgment of the receipt of the premium.</p> <p>Insurance — Life Insurance — Suicide.</p> <p>2. In such case, the date of .the policy as specified in the contract being-' binding on the company, held, that under the provisions of § 6064 of the Revised Codes of 1905, the defense that the insured committed suicide cannot be set up, when suicide occurs after the expiration of one year from the date of the policy.</p> <p>Note. — As to suicide while sane as a defense to an action on a policy containing no provision as to effect of suicide, see note in 8 L.R.A. (N.S.) 1124.</p> <p>As to effect of words, “sane or insane,” in a suicide clause, see note in 17 L.R.A.. (N.S.) 260.</p> <p>^Insurance — Life Insurance — Suicide.</p> <p>3. Whel’e the insured commits suicide while sane, after the expiration of one year from the date of the policy, the company is liable for the amount of the policy even though it appeared that the act of suicide was premeditated before the expiration of one year from the date of the policy, and even though . the date of the liability of the company is fixed by the voluntary act of the insured, this being one of the risks assumed by the company, where, as, in -this case, the policy contains a provision that the company shall not be liable •in the event of the insured’s death by his own act, whether sane or insane, •during the period of one year after the issuance of the policy.</p>

<p>Appeal from District Court, Cass county; Pollock, J.</p> <p>Action by Joseph Danger, as plaintiff, against W. H. O. Goode, as-defendant. Erom an order sustaining a demurrer to the complaint, plaintiff appeals.</p>

<p>Practice — New Trial — Newly Discovered Evidence.</p> <p>Section 7229, Rev. Codes 1905, which, prescribes the procedure both in the district and supreme courts in certain actions triable to the court without a jury, does not take from the district courts the power to entertain motions for new trials upon the ground of newly discovered evidence.</p>

<p>Mandamus by tbe State, on tbe relation of A. R. Watkins, against ;P. D. Norton, Secretary of State.</p>

<p>Petition of William G. Schafer for writ of certiorari to the District-Court of Nelson County, First Judicial District; Charles F. Temple-ton, Judge, and R. J. Roberts, Clerk.</p>

E. Winchester, J.- Action in foreclosure. From a judgment in plaintiff’s favor, defendants appeal. Parol evidence is admissible to show fraud as the inducement to a; written contract. Griffith v. Strand, 19 Wash. 686, 51 Pac. 613;. Gross v. Drager, 66 Wis. 150, 28 N. W. Ill; 11 Am. & Eng. Enc.

'Appeal from District Court, Pierce county, Burr, Judge. Suit by Eulbina Adam and another against W. D. McClintock and others, to quiet title to certain land as against a mortgage held by defendants. From a judgment for plaintiffs, defendants appeal. Mortgage on public domain is good when title becomes perfected in the entryman. Eogers v. Minneapolis Mach. Co. 48 Wash. 19, 92 Pac. 774, 95 Pac. 1014; Norris v. Heald, 12 Mont. 282, 33 Am.

<p>Appeal from District Court, Ward county; Charles F. Templeton, • J udge.</p> <p>Action by Albin Hedlin against John J. Lee, sheriff of Ward county, .and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Traill county; Polloch, Judge.</p> <p>Action by Martha Christina Tuttle against Ole B. Tuttle. Judg-' ment for plaintiff, and defendant appeals.</p> <p>There must be corroboration. Kuhl v. Kuhl, 124 Cal. 57, 56 Pac. 629; Berry v. Berry, 145 Cal. 784, 79 Pac. 531; Ashbum v. Ashbum, 101 Mo. App. 365, 74 S. W. 394; Daeters v. Daeters, — N. J. Eq. —, .38 Atl. 950; Moak v. Moak, — N. J. Eq. —, 48 Atl. 394; Garcin v. Garein, 62 N. J. Eq. 189, 50 Atl. 71.</p> <p>Corroboration must be of the material allegations. Ortman v. Ortman, 92 Mich. 172, 52 N. W. 619; Potter v. Potter, 75 Iowa, 211, 39 N; W. 270; Grady v. Grady, — N. J. Eq. —, 64 Atl. 440; Gunther v. Gunther, — N. J. Eq. —, 57 Atl. 1015; Hunt v. Hunt, — N. J. Eq. —, 59 Atl. 642; Corder v. Corder, — N. J. Eq. —, 59 Atl. 309; Goodhues v. Goodhues, 90 Md. 292, 44 Atl. 990; Luther v. Luther, 87 111. App. 241; 14 Cyc. 688, 689; Hagle v. Hagle, 74 Cal. 608, 16 Pac. 518; Haley v. Haley, 67 Cal. 24, 7 Pac. 3.</p> <p>Cruelty occasioned by abusive language and obscene habits is a relative term, and, while affording ground for divorce to one wife, would not to another. Knight v. Knight, 31 Iowa, 451; McAllister v. Mc-Allister, 7 N. D. 324, 75 N. W. 256; Bindlaub v. Bindlaub, 19 N. D. 352, 125 N. W. 479; Watrous v. Watrous, 155 Mich. 78, 118 N. W.-725; Paden v. Paden, 28 Neb. 275, 44 N. W. 228; Hancock v. Hancock, 55 Pla. 680, 15 L.B.A. (N.S.) 670, 45 So. 1020; Shuster v. Shuster, 3 Neb. (Unof.) 610, 92 N. W. 203; Bennett v. Bennett, 24 Mich.. 482; Bain v. Bain, 79 Neb. 711, 113 N. W. 141; 14 Cyc. 599.</p> <p>The court cannot order conveyance of property by defendant, nor make1 a money judgment a specific lien on property. Glynn v. Glynn, 8 N.D. 233, 77 N. W. 594; 14 Oye. 780; Doe v. Doe, 52 Hun, 405, 5 N. Y.. Supp. 514; Caíame v. Caíame, 25 N. J. Eq. 548; Perkins v. Perkins, 16 Mich. 162; Donovan v. Donovan, 20 Wis. 587; Bacon v. Bacon, 43’ Wis. 197; Moul v. Moul, 30 Wis. 203; Brenger v. Brenger, 142 Wis.-26, 26 L.H.A. (N.S.) 387, 135 Am. St. Bep. 1050, 125 N. W. 109, 19 A. & E. Ann. Cas. 1136; Cizek v. Oizek, 69 Neb. 797, 96 N. W. 657, 99 N. W. 28, 5 A. & E. Ann. Gas. 464; Washington v. Washington, 78 Neb. 741, 111 N. W. 787; Brotherton v. Brotherton, 14 Neb. 186, 15 N. W. 347; Swansen v. Swansen, 12 Neb. 210, 10 N. W. 713; Nygren v. Nygren, 42 Neb. 408, 60 N. W. 885; Ecker v. Eeker, 22-Okla. 873, 20 L.B.A.(N.S.) 421, 98 Pac. 918.</p> <p>Defendant’s conduct towards plaintiff constituted cruel and inhuman' treatment. Craig v. Craig, 129 Iowa, 192, 2 L.B.A. (N.S.) 669, 105; N. W. 446; Hooev. Hooe, 122 Ey. 590, 5 L.B.A.(N.S.) 729, 92 S. W.-317, 13 A. & E. Ann. Oas. 214; Page v. Page, 43 Wash. 293, 6 L.B.A.(N.S.) 914, 117 Am. St. Bep. 1054, 86 Pac. 582; Mosher v. Mosher, 16 N. D. 269, 12 L.B.A. (N.S.) 820, 125 Am. St. Bep. 654, 113 N. W-99; Bechtel v. Bechtel, 101 Minn. 511, 12 L.B.A.(N.S.) 1100, 112' N. W. 883.</p> <p>Corroboration need not extend to all of plaintiff’s testimony. Clop-ton v. Clopton, 11 N. D. 212, 91 N. W. 46; Andrews v. Andrews, 120’ Cal. 184, 52 Pac. 298; Westphal v. Westphal, 81 Minn. 242, 83 N. W.-988; Lewis v. Lewis, 75 Iowa, 200, 39 N. W. 271.</p> <p>Corroboration is to guard against collusion; where there is no collusion, the rule is less strict. Clopton v. Clopton, 11 N. D. 212, 91 N. W. 46; Baker v. Baker, 13 Cal. 88; Billings v. Billings, 11 Pick. 461; Jones v. Jones, 17 N. J. Eq. 351; Madge v. Madge, 42 Hun, 524; Smith v. Smith, 119 Cal. 183, 48 Pac. 730, 51 Pac. 183; Yenzke v. Venzke, 94 Cal. 225, 29 Pac. 499; McAllister v. McAllister, 28 Wash. >613, 69 Pac. 119; Smith v. Smith, 119 Cal. 183, 48 Pac. 730,' 51 Pac. 183.</p> <p>Court can award, specific property to support divorced wife and ehil'dren. Greeuleaf v. Greeuleaf, 6 S. D. 348, 61 N. W. 42; Eev. Code, §§ 6724 and 6733; De Eoche v. De Eoche, 12 N. D. 17, 94 N. W. 767, 1 A. & E. Ann. Oas. 221; Hooper v. Hooper, 102 Wis. 598, 44 -L.E.A. 725, 78 N. W. 753; Piatt v. Piatt, 9 Ohio, 37; Gallagher v. .Eleury, 36 Ohio St. 590; Smith v. Smith, 45 Ala. 264.; White v. Com. 110 Pa. 90, 1 Atl. 33; Herrick & D. Probate Law & Pr. p. 192; 18 Gyc. 373, 382.</p> <p>The form and quantity of allowance was proper. De Eoche v. De Eoche, 12 N. D. 17, 94 N. W. 767, 1 A. & E. Ann. Cas. 221; Hooper v. Hooper, 102 Wis. 598, 44 L.E.A. 725, 78 N. W. 753.</p>

Action by Lizzie Williams against Burley E. Corey and another.. Judgment for defendant Gehring, and plaintiff appeals. Reference to instrument gives constructive notice of its terms. Tie-deman, Real Prop. ¶ 817 b note 2, and cases cited; 27 Am. & Eng. Enc. Law, 2d ed.. 508, 509. Payment of an amount due on a foreclosure, by one bound to pay it, wipes out the foreclosure. 27 Cyc. 1865, 1866. Assignee of vendee need not be served with notice of cancelation.

! Application by the state, on tbe relation of I. A. Johnson, as relator and one of the trustees and officers of the village of North Minot, and as a resident and property owner and taxpayer of said corporation, and as a property owner and taxpayer of Harrison township, against .Sam H. Clark, mayor of the city of Minot, and others, and the city of Minot, for writ of certiorari.

Action by George Sommers against C. M. Wagner and others. From a judgment for plaintiff, defendants appeal. Exception against encumbrances does not except against covenants of warranty. Smith v. Gaub, 19 N. D. 337, 123-N. W. 827; Howells v. Richards, 11 East, 633, 11 Revised Rep. 287; Estabrook v. Smith, 6 Gray, 572, 66 Am. Dec. 445; Sandwich Mfg.

<p>Mortgages — Enjoining Foreclosure — Words and Phrases — “Mortgagor.”'</p> <p>1. The word “mortgagor” as used in § 7454, Revised Codes 1905, relative to enjoining real estate mortgage foreclosure sales, includes those persons in privity to and claiming under the mortgagor.</p> <p>Mortgages — Subsequent Mortgagee May Enjoin Foreclosure.</p> <p>2. A subsequent mortgagee may make the necessary affidavit and enjoin the sale.</p> <p>Mortgages — Enjoining Foreclosure — Sufficiency of Affidavit.</p> <p>3. The affidavit upon which the restraining order is based should set forth the facts, for the satisfaction of the judge of the district court; hut the facts need not he stated with the same particularity required of pleadings. The affidavit in this case examined, and held, sufficient to confer jurisdiction.</p>

Action by the Bismarck Grocery Company against A. H. Yeager. The Springfield Fire & Marine Insurance Company, garnishee. Judgment for defendant, and plaintiff appeals. One seeking relief from a default judgment must act promptly, and furnish affidavit of merits. Wheeler v. Castor, 11 N. D. 347, 61 L.B.A. 746, 92 N. W. 381; Sargent v. Kindred, 5 N. D. 8, 63 N. W. 151. Must show a defense, and that there is nothing to render it nugatory.

•/. Kneeshaw, Judge» Action by the Citizens’ Bank of Drayton against August Schultz. From an order granting a new trial after judgment for defendant, defendant appeals. Failure to protest and notify of dishonor releases indorser. Bank of Gilby v. Farnsworth, 7 N. D. 6, 38 L.R.A. 843, 72 N. W. 901; 2 Dan. Neg.

<p>Statutory Construction — Highways — Hoad Taxes — Disposition.</p> <p>1. Section 3012, Rev. Codes 1905, which, in effect prescribes that all road, taxes collected by the county treasurer on property in “any incorporated city, town, or village” shall be turned over to the treasurer of such city, town, or village, “to be expended under the direction of the city council of such city, or of the board of trustees of such town or village, ... in the improvement of the streets or bridges thereof, or of the roads approaching thereto,” construed, and held, not to apply to civil townships.</p> <p>Statutory Construction — Highway — Road Taxes — Disposition.</p> <p>2. Sections 1386 and 3 398, Rev. Codes 1905, construed, and held, to apply only to counties not formed into civil townships. Section 1386' merely provides that in counties not formed into townships, the board of county commissioners shall divide the county into road districts, and § 1398 merely provides the manner in which such hoard shall expend the road taxes collected in such counties.</p>

<p>Appeal and Error — Failure to Assign Errors — Rules of Court.</p> <p>When errors are not assigned in appellant’s brief, as required by Rule 14, and no reason is disclosed wliy such rule should be relaxed, this court will not consider the appeal.</p>

F. Templeton. Judge. Simon Knudson was convicted of selling intoxicating liquors, and he appeals. Counsel’s statements in argument not warranted by the evidence are prejudicial error. People v. Carr, 64 Micb. 702, 31 N. W. 590; People v. Dane, 59 Micb. 550, 26 N. W. 781; Hurd v. People, 25 Micb. 405; Wellar v. People, 30 Micb. 16, 1 Am. Crim.

<p>Appeal from District Court, Pierce county; Burr, Judge.</p> <p>Cornelius Goetz was convicted of crime, and appeals.</p>

Action by Edward Westby against tbe J. I. Case Threshing Machine Company. Judgment for plaintiff, and defendant appeals. Limitations upon an agent’s authority, known to those dealing with him, are binding upon all. David Bradley &Co. v. Basta, 71 Neb. 169, 98 N. W. 697; 31 Cyc. *1329; Seymour v. Wyckoff, 10 N. Y. 213 ; Oobb v. Dows, 10 N. Y. 335; McCracken v. San Francisco, 16 Cal. 591; Billings v. Morrow, 7 Cal. 172, 68 Am.

Davis, Judge. Josesph Schumacher was convicted of maintaining a liquor nuisance, and he appeals. Defendant’s admissions are inadmissible until the offense is proven by other evidence. Only a slight corroboration of a confession is necessary to convict.

Action by Eobert T. Eoberts against tbe Enderlin Investment Company and others. Judgment for defendant T. L. Beiseker, and plaintiff appeals. Verification of pleading by party must be in statutory form. 31 Cyc. 541, 542; Wagoner v. Wagoner, 76 Md. 311, 25 Atl. 338; Columbus Show Case Co. v. Brinson, 128 Ga. 487, 57 S. E. 871; Gjerstadengen v. Hartzell, 8 N. D. 424, 79 N. W. 872; Smith v. Stubhs, 16 Colo. App. 130, 63 Pac. 955.

Action by Robert T. Roberts against tbe Enderlin Investment Co. et als. Judgment for defendant, Beiseker, and plaintiff appeals. . This case comes up on appeal from an order granting defendant’s application to vacate a default, judgment taken against it on the 2d day of September, 1909, in the district court of Walsh county. The action was brought by the plaintiff to recover for services as organist of the defendant’s church at Warsaw, in Walsh county.

Action by tbe Rock Island Plow Company against tbe Western Implement Company. From a judgment for plaintiff, defendant appeals. Bankruptcy court dealing with property in its possession has power to pass on liens thereon. McHenry v. La Société Francaise D’Epargnes, 95 H. S. 58, 24 L. ed. 370; Whitney v. Wenman, 198 H. S. 539, 49 L. ed. 1157, 25 Sup. Ct.

<p>Divorce — Conclusiveness of Judgment — Res Judicata — Alienation of Affections.</p> <p>1. In an action for alienation of the affections of the wife, and for damages resulting, a decree of divorce obtained by the wife from the plaintiff after litigation on the merits, granted because of the husband’s adjudged cruel and inhuman treatment of the wife during the period of time in issue under the pleadings in the alienation of affections case, the divorce action and proceedings, including the decree of divorce are not res judicata on the questions involved in the alienation of affections case against the third party, and plaintiff is not barred or estopped thereby from recovery against the third party for alienating the affections of the wife.</p> <p>Divorce — Conclusiveness of Judgment — Evidence — Res Judicata.</p> <p>2. In such an action the decree of divorce is a judgment in rem to the extent only of judicially establishing the prior existence of the marriage, its dissolution, and the status of the parties thereafter under the decree; such judgment is in all other respects a judgment in personam. The legal grounds upon which the decree was granted, and the pleadings in the divorce action, are not to be construed as a part of the judgment in rem. Therefore, the grounds upon which such decree is granted, as well as the pleadings in the divorce action, are not admissible as part of a judgment in rem in the trial of an issue for alienation of the wife’s affections, brought by the husband against a stranger to the divorce proceedings. The divorce decree alone, being a judgment m rem to the extent only as above defined, is admissible to establish the prior marriage, prove its dissolution, and fix the status of the parties in relation to the admission of testimony and issues to be determined in the alienation of affections case on trial.</p> <p>Husband and Wife — Alienation of Affections — Evidence — Wife’s Declarations.</p> <p>3. In this class of actions, the existence or nonexistence of the wife’s affection being in issue, her declarations to third persons not in the presence of her husband, as to her love of or hatred for him, when made at a time when there exists no motive to deceive, and before the commencement of the alienating influences complained of, are admissible; but any statements of facts or reasons to justify or explain her declarations of love or hatred are inadmissible.</p> <p>Divorce — Alienation of Affections — Evidence — Foreign Statutes.</p> <p>4. The statute of a foreign state declaring a forfeiture of a cause of action for alienation of a wife’s affection when the husband has been by such wife, because of his fault, divorced, is given no extraterritorial force, and such statute does not operate to forfeit a right of action existing and sued upon here prior to the granting of the divorce in the state where such statute exists.</p> <p>Husband and Wife — Privileged Communications — Evidence.</p> <p>5. Privileged communications between husband and wife, under § 7253, Rev. Codes 1905, defined and applied in this case, where the former wife was offered as a witness in defendant’s behalf against her former husband, to prove statements made by the husband and wife and events occurring during the period of her marriage relation.</p> <p>Husband and Wife — Alienation of Affections — Advice of Near Relations — Brother-in-law.</p> <p>6. A parent, brother, or sister has the right to counsel a married son, daughter, brother, or sister in good faith, within reasonable limits, when not maliciously done and when given for the apparent best interests of the party advised, without the relative so advising being liable to an action for injury caused one party to the marriage resulting from the advice so given; yet this privilege by reason of relationship amounts to but the presumption that the party so advising, because of natural love and affection of near blood relatives for one another, would act only for the best interests and with proper motives toward the person advised. Whether the privilege thus accorded near blood relatives in such matters extends to a brother-in-law of the wife advised in this case is a question of fact for the jury to determine under all the circumstances, under proper instructions from the court.</p> <p>Husband and Wife — Alienation of Affection — Interference of Stranger — Question for Jury.</p> <p>7. A stranger in blood inducing a wife to leave her husband, or taking her away with or without her consent, and encouraging her to remain away from him, does so at his peril, and the burden is on him to show good cause, good faith, and justification for such acts; but the question as to whether such person was justified in so doing is a question for the jury.</p> <p>Witnesses — Cross-examination under Statute — Redirect Not Permitted — Discretion of Court.</p> <p>8. The permitting of redirect examination immediately following cross-examination of the defendant under the statute, in plaintiff’s main case, is discretionary with the trial court, but the better practice is not to allow such redirect examination until defendant’s main cg.se.</p> <p>Husband and Wife — Alienation of Affections — Evidence — Verdict.</p> <p>9. Evidence examined and held insufficient to sustain the verdict.</p>

<p>Appeal from District Court, Grand Forks county; Templeton, Judge.</p> <p>Action by W. R. Ditton against Ed Purcell. From a judgment for plaintiff, defendant appeals.</p> <p>Ostensible ownership acquired by fraud, until rescission, is an ownership that can pass title to a bona fide purchaser for value without notice. 24 Am. & Eng. Enc. Law, 2d ed. 1165-1166; 4 Am. & Eng. Enc. Law, Supp-. 2d ed. 751; 5 Am. & Eng. Enc. Law, Supp. 2d ed. 1715; Cochran v. Stewart, 57 Minn. 499, 59 N. W. 543; Michigan O. P. Co. v. Phillips, 60 111. 190; Young v. Bradley, 68 111. 553; Comer v. Cunningham, 77 N. Y. 391, 33 Am. Dec. 626; Parker v. Baxter, 19 Hun, 410; Tetrault v. O’Connor, 8 N. D. 15, 76 N. W. 225; Hoffman v. Noble, 6 Met. 68, 39 Am. Dec. 711; Shufeldt v. Pease, 16 Wis. 659; White v. Dodge, 187 Mass. 449, 73 N. E. 549; Gardner v. Beacon Trust Co. 190 Mass. 27, 2 L.R.A.(N.S.) 767, 112 Am. St. Rep. 303, 76 N. E. 455, 5 A. & E. Ann. Cas. 581; Rowley v. Bigelow, 12 Pick. 306, 23 Am. Dec. 607.</p> <p>The sale was void, or at least voidable, and could be rescinded. Chicago, B. & N. R. Co. v. L. T. Sowle Elevator Co. 44 Minn. 224, 9 L.R.A. 263, 46 N. W. 342, 560; Amer v. Hightower, 70 Cal. 440, 11 Pac. 697; Lee v. Simmons, 65 Wis. 523, 27 N. W. 174; Alexander v. Swackhamer, 105 Ind. 81, 55 Am. Rep. 180, 4 N. E. 433, 5 N. E. 908; Carter, R. & Co. v. Cream of Wheat Co. 73 Minn. 315, 76 N. W. 55; Third Nat. Bank v. Stillwater Gas Co. 36 Minn. 75, 30 N. W. 440; Rev. Codes, 1905, § 5711.</p> <p>Appellant was not a good-faith purchaser of the horses. Chicago, B. & N. R. Co. v. L. T. Sowle Elevator Co. 44 Minn. 224, 9 L.R.A. 263, 46 N. W. 342, 560; Tetrault v. O’Connor, 8 N. D. 15, 76 N. W. 225; Cochran v. Stewart, 21 Minn. 436; Cochran v. Stewart, 57 Minn. 499, 59 N. W. 543; Freeman v. Kraemer, 63 Minn. 242, 65 N. W. 455; Globe Mill. Co. v. Minneapolis Elevator Co. 44 Minn. 153, 46 N, W. 306; Johnson-Brinkman Commission Co. v. Central Bank, 116 Mo. 558, 38 Am. St. Rep. 615, 22 S. W. 813, 23 Am. & Eng. Enc. Law, 1137, 1166, 1169; Wendling Lumber Co. v. Glenwood Lumber Co. 153 Cal. 411, 95 Pac. 1029.</p> <p>Burden of proof to show good faith was on the purchaser. Starr Bros. v. Stevenson, 91 Iowa, 684, 60 N. W. 217; Whitaker Iron Co. v. Preston Nat. Bank, 101 Mich. 146, 59 N. W. 395.</p>