Volume 22 — North Dakota Reports

<p>Mortgage — notice of sale — publication for number of weeks.</p> <p>1. Under chapter 38, Sess. Laws (Dak.) 1889, publication of a notice of real estate mortgage foreclosure sale upon any day of the week was a sufficient publication for that calendar week, which commenced the previous Sunday morning, and a similar publication upon six such successive weeks next prior to the sale was sufficient notice of the sale, provided the several publications had been at least five days apart. The ease of Finlayson v. Peterson, 5 N. p, 587, 33 L.R.A. 532, 57 Am. St. Rep. 584, 67 N. W. 953, is a construction of the law as it existed prior to March 8, 1889, the case at bar construes the law in force from March 8, 1889, to January 1, 1896, and the ease of McDonald v. Nordyke Marmon Co. 9 N. D. 290, 83 N. W. 6, in an interpratation of the law as it has stood since January 1, 1896.</p> <p>Champerty — deed by one out of possession.</p> <p>2. Deed in this ease was given by one out of possession, and who had not received the rents or profits from the premises for more .than a year just previous to the execution of the deed. Held void, as against one in possession, under color of title of a foreclosure sale, and the possession of a tenant, or the possession of a tenant of a prior owner, held to be the possession of the defendant.</p> <p>Mortgage — abandonment of premises to mortgagee — estoppel.</p> <p>3. A mortgagor who for twenty years after a foreclosure sale has abandoned the premises to the mortgagee cannot assert title in a court of equity, and this estoppel applies to persons claiming under such mortgagor, through such abandoned title.</p> <p>Mortgage — payment of, as condition of quieting title.</p> <p>4. The doctrine that one who seeks equity must do equity will compel the payment of an outlawed mortgage as a condition precedent to the quieting title in the mortgagor.</p>

Davis, J. William Kelly was convicted of maintaining a common nuisance for tbe sale of intoxicating liquors, and be appeals.

A. Pollock, J. Action by John Boss against the .¿Etna Insurance Company. Erom •a judgment in favor of plaintiff, and from an order denying a motion for judgment notwithstanding the verdict, or in the alternative for a new trial, and from an order denying a motion for a new trial, defendant appeals.

<p>Trial — misleading instructions.</p> <p>1. Charge of the court on the question of damages for physical injuries and! loss of time considered, and held that the same is misleading and prejudicial.</p> <p>Pleading — complaint for assault and battery.</p> <p>2. Complaint for damages for assault and battery considered, and held to-have been drawn on the theory of compensatory damages only, and that malice could not necessarily he inferred or presumed from the acts therein charged.</p> <p>Pleading — to authorize punitive damages.</p> <p>3. Before a recovery of punitive or exemplary damages can be had in an action for damages for assault and battery, it is necessary that the complaint show on its face that the assault was a wilful and malicious act, so that, from the acts charged, malice must be necessarily presumed or inferred.</p> <p>Evidence — inference or presumption of malice.</p> <p>4. The mere doing of a wrongful or unlawful act will not of itself warrant or authorize the inference of malice, but malice may be inferred or presumed from the act itself if such act warrants such inference or presumption.</p> <p>Damages — punitive — allegation to support.</p> <p>5. Before punitive damages can be recovered, or before that question can rightfully be submitted to the jury, the complaint must he drawn on a theory that will necessarily include such damages by inference or presumption of law, unless actual malice is shown on the trial without objection.</p>

Application by tbe State, on relation of C. W. Temple and Olara Wright, for writ of habeas corpus to Frank Barnes, Sheriff of Burleigh County. Writ quashed, and petitioner remanded to custody of the sheriff.

<p>Evidence — order of proof — exclusion — harmless error.</p> <p>1. In an action for damages alleged to have been caused by the negligence of defendant railroad company, in that its platform was overcrowded with baggage, express and freight; that said platform was insufficiently lighted, and that the deceased while moving along its platform tripped over some obstruction, and fell upon the track in front of a moving locomotive, held that evidence sought to be introduced showing the condition of the platform for a considerable length of time prior to the accident was properly excluded as not in the proper order of proof, where no proof had been made of the manner in which deceased met death, and no testimony introduced tending to prove that the accident was caused by reason of the condition of the platform. And, further, that where this testimony was subsequently admitted, if there was error in the prior ruling, it was cured by such admission.</p> <p>Note. — How near the main transaction declarations must be made in order to ■constitute part of the res gesta, see note in 19 L.R.A. 733.</p> <p>Evidence — res gestee — declarations — sufficiency to go to jury.</p> <p>2. Held, that a statement made by deceased to a physician, between thirty minutes and one hour after an accident occurred, and made at a hospital some-distance from the place of the accident, after deceased regained consciousness, was not a part of the res gestee, where the physician stated that deceased: might have given him his name at the platform before being removed to the hospital, and that he told where he was from and where he was going before making the statement in question. And where it does not appear that the-statement was volunteered, but may have been in response to questions asked, and that it was not in the nature of an exclamation forced by shock or the injury, and that it does not appear to have been made even under stress or nervous excitement produced by the accident. Held, further, that such statement, even though admitted in evidence, was not sufficient proof as to the cause of the injury to make a question for the jury, there being no other evidence in the case tending to prove such fact, such statement being as follows: “I was going to Portal; I was going up the platform; it was dark and J either stumbled or was crowded off the platform.”</p> <p>.Recalling witness — discretion as to excluding testimony.</p> <p>3. Where a witness has been called twice, and each time examined under direct, cross, and redirect examination, held, that it was within the discretion of the court, and therefore was not error, to exclude his testimony upon being called back the day following and being asked questions which he had testified to fully theretofore, where it is not shown that his answers would have been, different, or that he desired to change the same in any particular.</p>

C. Crawford, J. Action by Eliza A. Woolf oik, for the use and benefit of John Blood-good, against Sophie Albrecht. Erom a judgment for defendant, plaintiff appeals.

<p>Fraudulent conveyances — notice to grantee — duty to make inquiry.</p> <p>1. Knowledge on the part of the grantee of land, of such suspicions facts, and circumstances as would put a prudent man on inquiry as to the grantor’s intention in making a conveyance, is equivalent to a knowledge of all the-facts which would be developed by a reasonable pursuit of such inquiry, yet no duty of inquiry as to fraudulent intent of the grantor devolves upon the-grantee, unless he has actual knowledge of some suspicious circumstance. Following Fluegel v. Henschel, 7 N. D. 276, 66 Am. St. Rep. 642, 74 N. W. 996.</p> <p>Fraudulent conveyances — grantee’s knowledge of fraud.</p> <p>2. Evidence considered, and held that defendant Emma I. Merrill, the grantee-in the mortgage sought by this action to be set aside as fraudulent, had no. knowledge of any fraudulent intent on the part of her grantor or mortgagor, and had no actual knowledge of any suspicious fact or circumstance sufficient to put her on inquiry.</p> <p>Fraudulent conveyances — right to prefer creditors.</p> <p>3. In the absence of fraud, a debtor may pay or secure one creditor, to the exclusion of others, and ma,y pay one or more creditors in preference to others, although all his property may be used in making such payment.</p> <p>Fraudulent conveyances — mortgage to preferred creditors.</p> <p>4. Evidence considered, and held that the defendants Walter W. Merrill and' E. P. Merrill had the right to prefer their mother, Emma I. Merrill, by delivering and executing to her the mortgage in question to secure an antecedent debt due by them to her.</p> <p>Fraudulent conveyances — preference to creditor — good faith Of creditor.</p> <p>5. Evidence considered, and held, that at the time of the execution and delivery of the mortgage in question the defendant Emma I. Merrill was a bona fide creditor of the defendants Walter W. and E. P. Merrill, and that at said time said Walter W. and E. P. Merrill.were justly indebted to her in the sum of at least $3,000 for money and property advanced by her at their request for their benefit, and which was used and applied as part of the purchase price of the land on which said mortgage was given.</p> <p>Note. — As to the grantee’s knowledge of facts respecting fraudulent conveyance sufficient to put him on inquiry, see note in 34 Am. St. Rep. 399. For authorities on the question, What participation by creditor in fraudulent intent of debtor wilt make a transfer to pay or secure his debt invalid as to other creditors, see note in 31 L.R.A. 609.</p> <p>As to the right of an insolvent to make a preference, see note in 41 Am. Dec. 531-</p> <p>Held, further, that defendant Emma I. Merrill took said mortgage in goodi faith and without any intent to defraud, hinder, or delay this plaintiff or any other creditor of the defendant Walter W. Merrill in the collection of their’ debts.</p>

<p>Action — uniting legal and equitable causes.</p> <p>1. Under the Code, several causes of action, whether such as have been heretofore denominated legal or equitable, or both, if they all arise out of the same transaction, or transactions connected with the same subject of action, may be united. Held, that plaintiff may, in the same action, seek a decree of specific performance for the conveyance of land, and damages, for failure to convey in accordance with a written contract.</p> <p>Specific performance — contract running to person as “cashier” — who may enforce.</p> <p>2. Plaintiff took an option contract for the purchase of land, running to “W. E. Beddow, Cashier of the C. Bank of Waukon, Iowa.” He complied with its terms, and, on the refusal of the vendor to convey, brought suit in his own name. Held, that among the different rules applicable to contracts so made, that most favorable to the appellant is that prima facie the words, “Cashier, etc.,” are descriptive of the person, and do not constitute a representation of the capacity in which the plaintiff acted in making the contract, and that a demurrer to a complaint on such a contract, upon the ground that the action is not brought in the name of the bank, was properly overruled.</p> <p>Complaint in action for specific performance — demurrer.</p> <p>3. An allegation in the complaint of a vendee in an action for specific performance, that he has-been ready, willing, and able at all times to comply with his part of a contract for’the purchase of land, and has tendered payment, but that the vendor has refused to convey, is sufficient on demurrer.</p> <p>Specific performance — contract signed only by vendor.</p> <p>4. An action for specific performance may be maintained upon a contract for the conveyance of land signed only by the vendor.</p> <p>Option contract for purchase of land — definiteness.</p> <p>5. An option contract for the purchase and sale of land, certain as to the minimum amount of cash to be paid, and giving an option to pay all cash, becomes definite and certain upon the vendee accepting the option and offering to pay all cash. Hence other conditions in the contract as to security in case part cash only is paid are rendered immaterial, although set out in the complaint.</p> <p>Note. — Tender or payment of consideration as a condition precedent to a suit for the specific performance of a contract to convey, realty consummated by the vendee’s exercise of an option, see note in 24 L.B.A. (N.S.) 91.</p> <p>Bight to specific performance of option to purchase as affected by lack of mutuality of obligation, see note in 6 L.B.A. (N.S.) 403.</p> <p>Option contract — mutuality — specific performance.</p> <p>6. An option contract accepted in accordance with its terms is mutual, and can be enforced against the vendee if he fails to perform; and hence a complaint setting out these facts is not open to demurrer on the ground of want of mutuality in the contract.</p> <p>Specific performance — damages for delay.</p> <p>7. The vendee in a proper case of specific performance may recover damages against the vendor for withholding possession, and delay in conveying, in an action in which specific performance is decreed.</p>

<p>Joinder of causes in complaint — motion to require separation.</p> <p>1. Complaint construed, and held, that its allegations are sufficiently broadi to embrace not only a cause of action for alienation of affections, but also one-for criminal conversation; and the fact that such causes of action are intermingled, instead of separately pleaded, cannot avail defendant. Iiis remedy was. by motion to require a separation of such causes of action.</p> <p>Criminal conversation — relief under pleadings.</p> <p>2. Conceding, as contended by respondent, that plaintiff’s counsel in drafting’ such pleading did not intend to allege a cause of action for criminal conversation, such fact does not preclude plaintiff from recovery thereunder. The fact that a party proceeds to trial upon a mistaken idea as to the nature of an action and the scope of the issues framed by the pleadings does not deprive him of the right to such relief as is consistent with the real issues and the proof ins the case, where he has not expressly or impliedly waived such right.</p>

F. Temple-ton, J. Application by tbe State, on the relation of T. J. Hagen, for writ of mandamus against Hans Anderson, auditor of Grand Forks county. From a judgment awarding the writ, defendant appeals.

Appealed from District Court, La Moure county; E. B. Goss, Special Judge. Action by Ebert Halverson against E. A. Bennett and E. G. Houston to set aside an alleged void justice’s judgment. Judgment for defendants, and plaintiff appeals.

B. Goss, J. Action by W. T. Kennedy against the State Bank of Bowbells. From a judgment for plaintiff based on a verdict directed by the court, defendant appeals.

G. Burr, J. Action by Amelia Zilke against J. A. Johnson. From a judgment for plaintiff and from an order denying a new trial, defendant appeals.

<p>Appeal from District court, Burleigh county; Winchester, J.</p> <p>Application by the Standard Oil Company for a writ of certiorari to Alfred Blaisdell, as Secretary of State. From a judgment for defendant, relator appeals.</p>

<p>Execution, sale — redemption — waiver of purchaser’s rights.</p> <p>1. The acceptance of a partial payment by the purchaser at an execution sale prior to the expiration of the statutory period of redemption operates as a waiver to the right to sheriff’s deed, and the execution debtor will be allowed to redeem after the expiration of such statutory period.</p> <p>Execution — joint purchasers.</p> <p>2. Where execution creditors purchase property at an execution sale, and agree that their respective interests in the certificate of sale be in proportion to the relative amount of their debts at the time of sale, their interest in such certificate is a joint one, and each is bound by the acts of the joint owner.</p> <p>Execution — joint purchasers.</p> <p>3. An oral agreement by one of the joint owners of a sheriff’s certificate of sale to extend the period of redemption is binding upon all the joint owners of such certificate.</p>

<p>Dismissal of action for failure to prosecute.</p> <p>1. Under § 6999 of the Code of 1905, failure for five years after the commencement of an action to bring the same to trial creates a presumption of unreasonable neglect on the part of the plaintiff, entitling defendants to a dismissal of the action, unless good cause for the delay be shown.</p> <p>Dismissal of action for failure to prosecute — discretion.</p> <p>2. On an application for dismissal because of such failure to prosecute, the determination thereof is a matter in the sound discretion of the court.</p> <p>Dismissal of action for failure to prosecute.</p> <p>3. The order dismissing the action because of plaintiff’s failure to prosecute the same to trial during a period of nearly six years from its commencement held proper, under the facts shown on the application to dismiss.</p>

<p>Appeal from District Court, Eddy county; B. T. BurJce, J.</p> <p>Action by Bertba Ereel against Ered Pietzsch and wife. Erom a judgment for plaintiff, defendants appeal.</p>

<p>Railroads — trespassing animals.</p> <p>1. Where animals are trespassers on the tracks or right of way of a railroad company, the duty of the company is only to exercise ordinary care to avoid injury to them after they are discovered.</p> <p>Motion for directed verdict — denial.</p> <p>2. It is not error to deny a motion for a directed verdict where the evidence, though undisputed, is such that different impartial men might ’fairly and reasonably differ in the conclusions to be drawn from such evidence.</p> <p>Instructions — correctness.</p> <p>3. Certain instructions considered, and held not erroneous.</p> <p>Note. — The question of the duty of railroad employees to keep a lookout for live stock on track is treated in notes in 24 L.R.A. (N.S.) 858; 96 Am. Dec. 681; and1 20 Am. St. Rep. 161.</p> <p>For authorities on the power of the legislature to make the killing of stock prima facie evidence of negligence, see note in 32 L.R.A.(N.S.) 227. See also notes, in 15 L.R.A. 39 and 58 Am. Rep. 703.</p>

<p>TProsecution for keeping liquor nuisance — evidence of former convictions — admissions.</p> <p>1. Defendant entered pleas of guilty to the maintaining of nuisances under the city ordinances of Minot, which ordinances provided that the seller of intoxicating liquor as a beverage, or the keeper of a resort wherein people were allowed to drink intoxicating liquors, was maintaining a nuisance and prescribing a penalty therefor. Held, on proper foundation laid, such convictions could be shown and were admissible as admissions of guilt in this action prosecuted for maintaining a common nuisance under the statute, and covering the entire time in which the transactions under the ordinances were charged to have occurred.</p> <p>^Evidence of pleas In former* prosecutions — oral testimony as to — docket entries.</p> <p>2. Such admissions by pleas of guilty may be shown by oral testimony of the magistrates or other persons present, and also, on proper foundation laid therefor, by the docket entries made in the course of official duty by the magistrates.</p>

<p>Appeal from the County Court of increased jurisdiction for Ward •County - N. Davis, J.</p> <p>J. B. Otrey was convicted of keeping intoxicating liquor for sale as a beverage, ánd appeals.</p>

Action by Robert M. Pollock, trustee in bankruptcy of Mossing Brothers & Company, against Walter B. Jordon and others, doing business under the firm name of W.‘B. & W. G. Jordon. From a judgment for plaintiff, defendants appeal.

<p>Exemptions — liberal construction of statute.</p> <p>1. Exemption privileges allowed by statute are to be liberally construed, and a debtor should not be deprived thereof through a technical following of statutes pertaining to pleading.</p> <p>Note. — -For notes on the liberal construction of statutes allowing exemptions, see 45 Am. Dec. 252; 76 Am. Dee. 224.</p> <p>As to set-off against claim for exemption, see notes in 19 L.R.A. 33, and 66 Am. 'St. Rep. 385.</p> <p>Action for exempt wages — counterclaim.</p> <p>2. Where a plaintiff brings an action for wages due from the defendant, and such wages are exempt to the plaintiff, the defendant cannot counterclaim a debt due from the plaintiff to him, although the counterclaim comes within the letter of the statute.</p>

<p>Appeal from District Court, McLean county; W. H. Winchester, J.</p> <p>Action by Sigrid Olson against Coleman Riddle. Verdict for plaintiff, and from an order granting a new trial plaintiff appeals.</p>

<p>Action on express contract — recovery on implied contract or quantum meruit. ■</p> <p>Where plaintiffs allege an express contract as a basis for a recovery, they will not be permitted to recover on an implied contract or quantum meruit.</p>

Application by James R. Stewart for mandamus to Hampton Lyness. From an order overruling and denying a motion for a peremptory writ, and granting a motion to quash an alternative writ issued in the cause, an appeal is taken.

<p>Surface waters — what are.</p> <p>1. The waters of a water course emptying into a swale, and there spreading over considerable areas and losing identity as a stream, and commingled with surface water from other sources, become surface water.</p> <p>Note. — In addition to the L.R.A. notes referred to in the opinion, see note in 65 L.R.A. 250, on the question of the rights and duties of municipalities as to surface water. See also votes in 5 L.R.A. (N.S.) 831, on the liability of a municipality for changing course of surface drainage, and in 30 Am. St. Rep. 390, on interference with surface waters by grading streets.</p> <p>Surface waters — disposal of.</p> <p>2. The disposal of such surface water is governed by the law applying to drainage of surface waters, and no question of riparian rights in running streams is involved.</p> <p>Surface waters — diversion by highway ditches — liability.</p> <p>3. The diversion of surface water by highway ditches necessarily excavated in building a public highway, although it occasioned damage, is, under the facts of this case, held not to be actionable.</p>

Polloclc, J. Action by J. L. Owens Company against Yera C. Bemis and another, doing business as Bemis & Wilsie. From a judgment for defendants, and from orders denying motions for judgment non obstante veredicto and for a new trial, plaintiff appeals.

' Action by the American Case & Register Company against Oscar Boyd and another, doing business under the firm name of Boyd & Mares. From a judgment for plaintiff, defendants appeal.

Action by William Pfeiffer against M. Norman. From a judgment on motion for judgment notwithstanding the verdict, or for a new trial,, plaintiff appeals.

<p>Appeal from District Court, Cavalier county; W. J. Kneeshaw, J.</p> <p>Action by Josepb Power against J. K. Hamilton. Judgment for defendant, and plaintiff appeals.</p>

<p>Application by M. E. Floyd for a writ of habeas corpus.</p>

B. Goss, Special Judge- Action by the American Case & Register Company against Walton and Davis Company. Rrom a judgment for defendant on a verdict directed by the court, plaintiff appeals.

<p>Public lands — leaving certificate of purchase in agent’s keeping — blank assignment — sale by agent to third party.</p> <p>1. Where the plaintiff left a certificate of purchase of land from the board of university and school lands, of which he was the owner, with his agent for safe-keeping, and the assignment thereof was not filled in, and such agent sold it for a valuable consideration to' the defendant and delivered the certificate to him after inserting defendant’s name in the blank assignment, but defendant had knowledge of the facts, in reference to the ownership of the-land by the plaintiff which would cause an ordinarily prudent person to make-inquiry, and no such inquiry was made, the defendant is estopped to claim the land against the plaintiff.</p> <p>Pubic lands — assignment of certificate of sale.</p> <p>2. A person obtains no better title to land by virtue of the assignment, only of a certificate of sale from the board of university and school lands than, the assignor had.</p> <p>Bona fide purchaser of land — notice of facts putting on inquiry.</p> <p>3. If a person buys land from one not the owner, with knowledge of material facts concerning the title, without making inquiry as to such ownership, he is not deemed in law a purchaser without notice as against the true owner.</p> <p>Public lands — wrongful transfer of certificate by agent — bona fide purchaser.</p> <p>4. The evidence is reviewed in the opinion, and held, that the defendant is not a purchaser in good faith without notice.</p> <p>Note. — The question raised, but not decided, in this case, as to whether the plaintiff was guilty of such negligence in placing the blank assignment in his agent’s-hands as to estop him from claiming the title to the land as against a bona fide purchaser from the agent, is treated in a note in 29 L.R.A. (N.S.) 252, and the authorities there reviewed show that one who puts papers or securities indorsed or assigned in blank into another’s possession is estopped, as against a purchaser in. good faith, to claim title thereto.</p>

Petition by M. H. Miller and others. From an order denying the petition and dismissing the application, the petitioners appeal.

<p>Demurrer to information — necessity of writing.</p> <p>1. Section 9901, Revised Codes 1905, provides that a demurrer to an information must be in writing, signed by the defendant or his attorney, and filed. Those requirements must be met, unless waived. Whether there was a waiver in this case not decided.</p> <p>Note. — The general question of charging two or more offenses in the same indictment is treated in a note in 58 Am. Dec. 238, where, in harmony with the ruling in State v. Woodeix, it is declared that charging in the same indictment different grades of the same offense does not render the indictment bad for duplicity.</p> <p>Endictment — duplicity.</p> <p>2. Information in this case examined upon its merits, and, following the rule in State v. Olimie, 12 N. D. 33, 94 N. W. 574, 13 Am. Crim. Rep. 211, held, that such information does not charge two offenses.</p>

<p>Appeal — construing charge to jury as a whole.</p> <p>1. The supreme court on appeal should not separate paragraphs of the charge to the jury from others which relate to the same subject, but must read and construe them together; arid, when this is done, it is not cause for reversal if, when so construed, they state the law correctly.</p> <p>Appeal — construction of instructions as a whole.</p> <p>2. It is the duty of this court to take into consideration the whole of the instructions to the jury, the connection of one part with another and the relation of separate paragraphs to each other and to the subject, and then arrive at a conclusion as to whether the jury should have reasonably been misled by portions, which, if taken separately or alone, may or do state the law incorrectly.</p> <p>Appeal — correctness of instructions — error cured hy other instructions.</p> <p>3. Certain instructions examined, and held, that the paragraphs complained of, while if taken separately do not correctly state the law, yet when read in connection with phrases and sentences explaining and modifying them correctly state the law, and furnish no ground for a misunderstanding on the part of the jury.</p>

<p>Appeal from District Court, Ward county; Leighton, J.</p> <p>Action by tbe City of Minot and others against Arne Amundson and others, as the Board of County Commissioners of Ward County, and others. From a judgment sustaining a demurrer to the complaint, plaintiff appeals.</p>

<p>Injuries to servant on elevator — Contributory negligence and assumption! of risk.</p> <p>Plaintiff, while in defendant’s employ, received injuries while he and one B, who was in charge of defendant’s elevator as agent, were experimenting with, or testing, a mechanical contrivance which they had installed for moving cars by attempting to utilize power for such purpose from the engine used to operate defendant’s elevator.</p> <p>Evidence examined, and held, that it conclusively appears that plaintiff was not only guilty of contributory negligence, but that he assumed the risks incident to such experimental tests.</p> <p>Hence his recovery cannot be sustained.</p> <p>Note. — As to the general question of liability of master for injury to servant caused by defective elevator and the negligence of a fellow servant, see note in 2 L.R.A. (N.S.) 647.</p> <p>As to contributory negligence of servant in adopting a dangerous method, see note in 97 Am. St. Rep. 895.</p>

<p>allega! sale of oil — injuries to person Iby explosion — contributory negligence.</p> <p>In an action based on tbe statutory liability of defendant under § 2223, Rev. Codes 1905, by a person who has sustained injuries as the result of an explosion of oil sold in violation of law,—</p> <p>Held, construing said statute, that the legislature did not intend to abrogate the defense of the contributory negligence of the person injured, where such contributory negligence was the proximate and efficient cause of such explosion.</p> <p>Note. — A case very similar in its facts to Morrison v. Lee is that of Berger v. Standard Oil Co. 126 Ky. 155, 11 L.R.A.(N.S.) 238, 103 S. W. 245, deciding that ■one using unsuitable lubricating oil sold by another cannot hold him liable for injuries caused by its explosion if, by the exercise of ordinary care, he could have learned of the defects so as to prevent the injury. This case is distinguishable, however, since no statute regulating the sale of oil was involved. A case similar in principle, though different in its facts, is that of Eord v. Chicago, R. I. & P. R'. 'Co. 91 Iowa, 179, 24 L.R.A. 657, 59 N. W. 5, holding that the defense of contributory negligence is not defeated, although the burden of proof is thrown on the defendant, by a Code provision that an injured party, in order to recover damages from a railroad company for neglect or refusal to comply with the statute requiring safe crossings and cattle guards, need only prove such neglect and refusal. And again, in Queen v. Dayton Coal & I. Co. 95 Tenn. 458, 30 L.R.A. 82, 49 Am. St. Rep. '935, 32 S. W. 460, it is held that liability to persons for whose protection a •statute was made, in case of their injury by breach of it, is subject to the defense •of contributory negligence. And that this is in harmony with the general rule is shown by the authorities reviewed in a note in 9 L.R.A. (N.S.) 342.</p> <p>The effect of contributory negligence as a defense in case of the violation of a statutory duty by a master where the statute excludes the defense of assumed risk is considered in a note in 13 L.R.A. (N.S.) 1152. And the right of one employing a child under statutory age to rely on contributory negligence to defeat liability for personal injuries sustained by the latter is the subject of notes in 12 L.R.A. (N.S.) 461, and 20 L.R.A. (N.S.) 876. The general question of, when contributory negligence does not prevent recovery, is treated in a note in 8 Am. St. Rep. 850. And various aspects of the question of tbe liability of the manufacturer or vender ■of a dangerous product or machine for personal injuries caused thereby are considered in notes in 2 L.R.A.(N.S.) 303; 5 L.R.A.(N.S-) 1103; and 19 L.R.A. ^N.S.) 923.</p>

<p>Appeal from District Court, Grand Forks county; Templeton, J.</p> <p>■ Action by Melvin A. Gunderson against Lars Holland. From a judgment for defendant, plaintiff appeals.</p>

<p>Chattel mortgage — right oí mortgagee to take possession when security impaired.</p> <p>Evidence examined, and held, that it shows the property described in two chattel mortgages had been neglected and placed in jeopardy by the mortgagors, and its value thereby lessened, and the debts secured rendered insecure, so that, under the terms of the mortgages, the mortgagee was justified in commencing foreclosure proceedings before the apparent maturity of the debt.</p> <p>Note. — As stated in the opinion in Enguund v. Souther, the courts are not in harmony as to the effect of a power conferred upon a mortgagee to take possession of mortgaged chattels when he deems his security impaired or in danger of being impaired. Some cases hold it to be an absolute right to be exercised at pleasure, but the weight of authority, as shown by a careful review of all the authorities . in notes in 23 L.R.A. 780 and 19 L.R.A.(N.S.) 915, requires that such right shall be exercised in good faith, based upon such reasonable apprehension of danger as will cause a reasonable man to act.</p>

Action by John D. Cooke against the Northern Pacific Railway Company. Prom an order denying a new trial after direction of verdict for «defendant, plaintiff appeals.

<p>Summons Iby justice — error in date in copy served on defendant.</p> <p>1. Where the summons issued by a justice on January 5, 1907, was made returnable on January 15, 1907, and was regular in all respects, but the copy served on defendant was defective merely in designating the year of the return day as “1906,” instead of “1907,” such defect was not jurisdictional, as defendant was in no manner misled thereby to his prejudice.</p> <p>Justice of the peace — appeal — trial de novo.</p> <p>2. Defendant, having appealed from the justice’s to the district court solely on the questions of law, is not entitled, on being defeated on his law points, to a trial on the merits, although at the time of taking his appeal he served and filed an answer. A trial upon the merits is permissible in the district court only where the decision on such an appeal reopens the case for a trial of an issue of fact.</p>

<p>Appeal from District Court, La Moure county; Burke, J.</p> <p>Action by L. A. Ueland against tbe More Brothers and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Grand Forks county; Templeton, J.</p> <p>Action by Claus Hagert against Emma Hagert. From a judgment for plaintiff, defendant appeals.</p>

<p>■Cloud on title — adverse claim.</p> <p>1. In the statutory action to determine adverse claims under § 7519, Rev. Codes 1905, it is not an essential prerequisite to plaintiff’s recovery that he prove that defendant, in fact, asserts some estate, interest, or lien upon the real property in controversy.</p> <p>■Cloud on title — what plaintiff must prove.</p> <p>2. In an action to determine adverse claims to real property brought by a homestead claimant against his judgment creditor, a cause of action is established by merely showing plaintiff’s homestead right and the existence of such judgment. Plaintiff is not required to establish the fact that such judgment creditor in fact asserts a lien under the judgment on the property constituting plaintiff’s homestead. The allegation in the complaint of such fact is a non-issuable allegation.</p> <p>■Cloud on title — construction of statute as to action to remove.</p> <p>3. The above construction of our statute does not work a hardship to judgment creditors as no costs can be taxed against them, unless they appear and contest plaintiff’s right to recover.</p> <p>Cloud on title — enjoining adverse claimant from asserting lien.</p> <p>4. In such an action, it is error to perpetually enjoin the judgment creditor, as was done in the case at bar, from asserting any lien under the judgment, for manifestly such creditor ought not to be deprived of the right to assert such lien' at any future time if such real property, while owned by the judgment debtor, shall cease to be impressed with the homestead character. Judgment is ordered modified accordingly.</p>

<p>Taxes — recovery of money paid at void sale — statute as to.</p> <p>1. Following Paine v. Dickey County, 8 N. D. 581, 80 N. W. 770, it is held that § 88, chap. 126, Laws of 1897, relating to the recovery of money paid at tax sales, made subsequent to the enactment of that chapter, when such sales have since been held void, is not in conflict with § 61 of the Constitution, as the provision permitting such recovery was germane to the matter of collecting taxes on land by means of the sale thereof.</p> <p>Taxes — recovery of amount paid at void sale — failure to pay subsequent taxes.</p> <p>2. The holder of a tax-sale certificate which has been adjudged void may recover the amount paid therefor, with interest, in accordance with § 84, chap. 132, Laws of 1890, and § 88, chap. 126, Laws of 1897, notwithstanding the fact that he has not paid subsequent taxes.</p> <p>Taxes — recovery of money paid at void sale.</p> <p>3. The limitations contained in chapter 165, Laws of 1901, have no bearing on the right of the holder of a certificate of tax sale which has been adjudged void, to bring an action against the county for the recovery of the money paid for such certificate.</p> <p>Taxes — recovery of money paid at void sale — failure of judgment holding deed void to give reasons therefor.</p> <p>4. When the holder of a certificate void for reasons which, under the terms of §§ 84 and 88 of the acts referred to, are required to be stated in the judgment holding them void, relies upon such judgment as evidencing his right to recover from the county the money paid, it is immaterial that the judgment holding his certificate void fails to state the reason for its invalidity, as that provision was made for the benefit of the county, to- enable its officials to know whether the tax still continued a lien on the land and whether to advertise and resell the same.</p> <p>Taxes —setting aside sale — necessity that judgment state reasons.</p> <p>5. In an action adjudging a tax sale certificate void, and to which the county was a party, the burden rests on it to see that the reasons for holding the certificate or sale invalid are stated in the judgment.</p> <p>Taxes — recovery of money paid at void sale; when limitations begin to run against right of action for.</p> <p>6. The Code (Rev. Codes 1905, § 2414) prohibits the county auditor from ■drawing his warrant (except for salaries of county officials), except upon the order of the hoard of county commissioners, signed by the chairman thereof •and with the county seal affixed. Hence, after a tax sale is adjudged invalid, action by the board of county commissioners is a necessary prerequisite to a return of the money paid for a void certificate; and as, in the .absence of voluntary action on the part of such board, a demand by the holder of the return of his money becomes necessary, the cause of action •against the county for such return does not accrue until a demand is made therefor, when no question of unreasonable delay is involved; and the statute ■of limitations runs from the date of the rejection of the appellant’s demand.</p>

Action by Lizzie Lowery and others against Martha Hawker and G. H. Dale, guardian of Mark Languenett Hawker. Judgment for defendants, and plaintiffs appeal. Mark Hawker, now deceased, devised and bequeathed his entire estate to his wife and minor son, but omitted to provide in his will for his children and for the children of a deceased child by his first wife..

<p>Appeal — effect on jurisdiction oí lower court.</p> <p>1. Defendant made application to the district court to he relieved from a default judgment. The application was denied. Defendant appealed from the order of denial. Pending the appeal, application was made to the district court to vacate the order appealed from. Held, that the said district court was without jurisdiction to entertain the application.</p> <p>Appeal — effect on jurisdiction below — abandonment of appeal.</p> <p>2. Under the aboye facts, held, that the filing with the clerk of the district court of a notice that the defendant had abandoned the appeal did not restore jurisdiction to the lower court. An order from the supreme court is necessary before the appeal is dismissed.</p>

<p>Appeal from District Court, Sargant county; Allen, J.</p> <p>Action by M. T. Gunderson against the Havana-Clyde Mining Company and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from District court. Logan county; Burke, J.</p> <p>Action by J. J. Murphy and Charles L. Merrick against the Missouri & Kansas Land & Loan Company and others. Judgment for defendants, plaintiffs appeal.</p>

<p>Appeal from District court, Richland county; Allen, J.</p> <p>Action by Rush S. Adams against Colin McIntyre, and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Banks — collections — sending checks directly to drawee.</p> <p>1. It is negligence for a collecting bank to transmit its cheeks directly to the bank or party by whom payment is to be made, with request that remittances be made therefor; “it being considered that no firm, bank, corporation, or individual can be deemed a suitable agent, in contemplation of law, to enforce, in behalf of another, a claim against itself.”</p> <p>Banks — sending checks directly to drawee — burden of proof.</p> <p>2. In such eases, the burden of proof is upon the transmitting bank to prove that the maker of the check has not suffered injury.</p> <p>Banks — sending checks directly to drawee — burden of proof.</p> <p>3. Held, that, where defendant, a resident of Dakota, in this state, sent to Duluth, Minnesota, a personal cheek on one of two of his local banks, and such check was deposited by the payee in his bank at Duluth, for collection, it was negligence on the part of such bank to send such check, with a request for remittance, to the drawee bank, and not to the other local bank, or some other agent at Dakota.</p> <p>It is further held that, in a suit by the payee against the maker, because of the dishonor of a draft sent by such drawee bank in payment of such check, on account of the insolvency of the drawee, the defendant could offset his losses occasioned by such negligence, which were presumptively the face of the check; it being shown that the drawee bank continued to pay out money after the receipt of such cheek from the Duluth bank and the sending of such draft.</p> <p>Note. — The American cases are almost unanimous in support of the doctrine that it is' negligence in a bank having a draft or check for collection to send it directly to the drawee, as shown by the authorities on the question which are collated in notes in 27 D.R.A. 248; 2 D.R.A.(N.S.) 194, and 18 D.R.A.(N.S.) 441. And it is generally held that the fact that it is the custom to send checks or drafts directly to the drawee bank where there is no other bank in good standing at the place of payment does not justify that course. It has been held in New York, however, that the drawee bank may be constituted an agent for the collection of the obligation. McIntosh v. Tyler, 47 Hun, 99. The court in this case relied on Indig v. National City Bank, 80 N. Y. 100; Briggs v. Central Nat. Bank, 89 N. Y. 182, 42 Am. Rep. 285, neither of which cases decided that exact question. It therefore appears that even in New York there is no direct decision of a court of last resort •upholding the- practice of mailing checks directly to the drawee, and the effect of the decision in the case of McIntosh v. Tyler is weakened by the fact that it is based on cases which do not exactly support it.</p>

Action by L. L. Devereaux against C. E. Katz. Judgment for plain .tiff, and defendant appeals. Original application for an order állowing ,a supersedeas undertaking on appeal.

<p>Appeal from District court, Cavalier county; Kneeshaw, J.</p> <p>James J. Eeilly was convicted of maintaining a liquor nuisance, and appeals.</p>

<p>Appeal from District court; Richland county; Allen, J.</p> <p>Action by J. A. Dwyer against J. H. Stewart and J. J. Barrett. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Nelson county; Templeton, J.</p> <p>T. E. Pierce was convicted of maintaining a common nuisance in violation of the prohibition law, and he appeals.</p>

<p>Original application by the State, on the relation of Andrew Miller,. Attorney General, for an injunction permanently restraining E. J. Taylor and others, as the State Board of Normal School Trustees, from establishing a state normal school in the City, of Minot, and Gunder Olson, as Treasurer, from paying out the money of the State therefor.</p>

<p>Master and servant — injury to servant toy fall of walls — question for jury as to negligence.</p> <p>1. The general manager of defendant put plaintiff to work in a basement that had stood unprotected two months during rainy weather, and the walls of which had started to slide, and of which sliding and general condition the general manager had actual knowledge. Under all of the testimony, it is held that the question of defendant’s negligence was a question of fact for the jury.</p> <p>Note. — As to the effect of an assurance of safety by a master or vice principal on the question of a servant’s contributory negligence or assumption of risk, which is _ considered in the case of Webb v. Dinnie Bros., the general rule of law to be gathered from the authorities which are reviewed in notes in 48 L.R.A. 542, and '23 L.R.A.(N.S.) 1014, is that where a servant undertakes certain work, or continues to perform work, relying upon the assurance of his master or the latter’s representative that such work may be performed in safety, the mere fact that before such assurance was given the fears of the servant to the possibility of injury had been excited by circumstances that had come to his knowledge will not, as a matter of law, charge him with contributory negligence or with assumption of the risks involved in the work, unless the danger was so obvious that no man of ordinary prudence would incur it.</p> <p>The servant’s assumption of risk from changing conditions of a working place during progress of the work in excavations is considered in a note in 19 L.R.A. (N.S.) 350.</p> <p>The question of a servant’s assumption of risks from latent dangers or defects is treated in notes in 17 L.R.A. (N.S.) 76, and 24 Am. St. Rep. 320.</p> <p>And that a master who seeks to escape liability to a servant on the ground that he assumed the risk as a part of his contract must lay a foundation for the defense by proving that he understood the risk is shown by the authorities collated in a note in 47 L.R.A. 164.</p> <p>Master and servant — injury to servant — servant’s knowledge of danger — contributory negligence.</p> <p>2. The plaintiff was rushed to the work, and did not know of the dangerous condition of the walls. He was at work less than an hour when injured. Held, that the question of his negligence as a contributing factor was a question for the jury.</p> <p>Master and servant — assumption of risk — question for jury.</p> <p>3. Under the above facts, held, that whether the plaintiff assumed the risks of the employment was also a question for the jury.</p>

B. Goss, Special Judge. Action by Anton Fried against N. J. Olsen and others, doing business under the firm name of N. J. Olsen & Sons. From a judgment, in plaintiff’s favor, defendants appeal.

Action by S. H. Sleeper against G. W. Baker and others. Judgment for defendants, and plaintiff appeals.

<p>Banks — Insolvency — taking money for draft.</p> <p>1. This appeal is before this court on the judgment roll alone. The findings, among other things, are to the effect that appellant was required, as a local agent of the Great Northern Railway Company and another, to transmit his. receipts each day to his principals in St. Paul, and that it was his custom to go to the bank and deposit such receipts, and receive therefor, from the-bank, drafts payable to the order of his principals, and forthwith to transmit the same. It was also found that on four days named he followed this custom, and that the drafts so procured and forwarded to St. Paul were dishonored because no funds were on deposit with the correspondent of the local bank with which to pay them; that the officers of the bank knew of his employment and the purpose for which such drafts were obtained. The record contains no findings that he kept any general account or drew any checks on the local bank. Meld that, in view of this custom and the findings as a whole, the word “deposit” must be construed as indicating the payment into the bank of each day’s receipts in exchange for the drafts; and that he stood in relation to the bank as a purchaser for cash of drafts.</p> <p>Banks —insolvency —taking money for draft —trust fund.</p> <p>2. Section 4660, Rev. Codes 1905, prohibits insolvent state banks from receiving any money, bank bills, notes or currency, bills or drafts; and § 4661 makes any official of an insolvent bank who receives money, etc., guilty of a felony. The defendant bank had been hopelessly insolvent for some time prior to the purchase of the drafts mentioned, and.it had no funds with its correspondent bank out of which they could be paid; and such officials had no reason to anticipate their being honored. Meld, that such money was received by the bank without consideration, and, in effect, under false pretenses or representations; that thereby a fraud was perpetrated upon appellant, the effect of which was to make the bank a trustee ex maleficio of such funds.</p> <p>. Note. — Where a bank sells a draft or check on another bank and receives the currency therefor, knowing or having reason to believe that it is insolvent and that it has not the funds in the bank drawn on to meet such check or draft, it is guilty of a fraud, as shown by a review of the authorities in a note in 10 L.R.A. (N.S.) 928. The purchaser of such draft will be allowed to rescind the purchase and recover the money paid therefor, provided that the other conditions as to following trust funds obtaining in the forum are complied with. The general question of recovery of deposit in insolvent bank is treated in notes in 34 L.R.A. 532, and 86 Am. St. Rep. 800.</p> <p>Banks — taking money for draft while insolvent — rights of receiver^</p> <p>3. On a receiver being appointed for such bank, in a proceeding under the statute to wind up the affairs of insolvent corporations, he had no greater rights in such funds or moneys than those possessed by the insolvent bank, and succeeded the bank as trustee.</p> <p>Banks — taking money for draft while insolvent — priority of claim for.</p> <p>4. The fact that the bank closed its doors within four business days after the first of the transactions described, and the next day after the last one, and that money in more than double the amount of the claim of appellant was turned over to the receiver by the bank, .and other elements of the findings of the trial court, lead to the conclusion that both the money assets of the bank and those received by the receiver were enhanced by the transactions described.</p> <p>Mingling trust funds with those of trustee — presumption as to subsequent payments.</p> <p>5. When a trustee mingles trust funds with his own, and subsequently pays out a portion of the commingled funds, it will be presumed that he made his payments from that portion of the fund belonging to himself and retained the funds which did not belong to him; and, except in so far as he may distinguish what is his own, the whole fund will be treated as the trust property.</p> <p>Banks — insolvency — trust funds — priority.</p> <p>6. The trusteeship of the bank and of the receiver being established, it being conceded that the moneys of appellant were commingled with the.funds of the bank, and respondents having failed to show that moneys paid out in the meantime were the original trust funds, and likewise having failed to show that appellant’s money .was not included in that turned over to the receiver, appellant is entitled to recover.</p> <p>Banks — insolvency — trust funds — priority.</p> <p>7. When such trust funds are not commingled with any of the assets of the bank, except the cash assets, the preference of appellant is limited to the cash funds of which the receiver took possession, when distinguishable from the other assets of the estate going into his hands.</p> <p>Banks — insolvency — preference in assets.</p> <p>8. Appellant is entitled to preference to the extent of the moneys turned over to the receiver.</p> <p>Banks — insolvency — preference in assets.</p> <p>9. The rights of other claimants, if any, to preference, not being before this court, appellant’s rights relative to them are not determined, but it is suggested that the ends of justice would be promoted by proceeding on the part of claimants to preference, in such cases, by intervention rather than by independent action against the receiver.</p>

<p>Appeal — review of facts — necessity of motion for new trial.</p> <p>1. Questions of fact cannot be reviewed on appeal from a judgment in any action tried by a jury, unless a motion for a new trial was made before the trial court.</p> <p>Note. — A note to this case in 37 L.R.A. (N.S.) 1217, on the question of eviction ■of tenant by failure to furnish heat, deduces from the authorities there reviewed the broad general rule that the failure of a landlord to furnish heat when he has expressly or impliedly assumed that obligations constitutes eviction of the tenant where the tenant elects to consider it such and surrenders the premises because -thereof; but there are so many elements entering into the decisions that each case must necessarily be determined on its own particular facts.</p> <p>'Trial — sufficiency of exceptions to instructions.</p> <p>2. Exceptions to a charge of the court must point out some definite or specific defect, Counsel should by his objection, lay his finger on the precise point, or alleged error of the court.</p> <p>Appeal — review of facts — necessity of motion for new trial.</p> <p>3. In the absence of a motion for a new trial, the finding of the jury upon a controverted question of fact, where competent evidence was given pro and con, must be taken as final.</p> <p>Appeal — errors of law in admitting testimony — necessity of motion for new trial.</p> <p>4. Errors of law occurring at the trial, by way of admitting testimony, properly objected to, or otherwise, with exception saved, and which are brought on to the record through a statement of the ease, will be considered by the court without a motion for a new trial.</p> <p>landlord and tenant — failure to furnish heat — eviction.</p> <p>5. A landlord who agrees in his contract with his tenant, during the continuance of the lease, to furnish heat for the proper heating of the building leased, and fails to keep his contract, after having been given notice of the defect and allowed a reasonable time in which to remedy the same, commits acts which in law will be regarded a constructive eviction of the tenant from the premises.</p> <p>JLandlord and tenant — eviction of tenant — measure of damages.</p> <p>6. The contract being silent upon the measure of damages, the statutory rule prevails. The damages, therefore, in this> case, should be such as may fairly and reasonably be considered either arising naturally or as according to the usual course of things from such breach of contract itself, or such as will reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. While profits may be considered in proper cases in estimating damages, proof of them must be of a high character, and not such that the jury are left to speculate or guess what, in fact, they are or would be.</p> <p>Damages — alleging and proving special damages.</p> <p>7. The jury awarded $593.75 special damages. Special damages must be alleged and proven. No testimony in this action appeared warranting such a finding; hence it was error for the court to submit that question to the jury.</p> <p>The general question of the duty and liability of a landlord of apartments as to heating is considered in a note in 37 L.R.A. (N.S.) 1213.</p> <p>As to what constitutes eviction of tenant generally, see note in 38 Am. St. Rep. 485.</p>

Action by Samuel S. Graham against the Mutual Bealty Company. From a judgment for defendant, plaintiff appeals. Facts: Action -to quiet title to lot 15, block 7, in Kenney & Devitt’s addition to the city of Fargo, and to have declared void defendant’s claim under a tax certificate of sale for unpaid taxes for the year 1904, and a tax deed issued thereon in November, 1909, and for the taxes for the years 1905, 1906, and 1907, subsequently paid.

A. Coffey, J. Certiorari by George W. Morrissey to review a judgment of A. W.. Blasky, as Justice of the Peace in and for Paradise Township, Eddy county. Erom a judgment quashing the writ of certiorari, plaintiff appeals. Reversed, with directions.

<p>Corporations — service o£ summons on “managing agent.”</p> <p>Held, under the facts, that the purported agent upon whom service of summons was made, in an attempt to make service thereby upon the appellant, was not a “managing agent” of defendant insurance company, and such attempted service was void, and judgment ordered thereon vacated.</p> <p>Note. — The general question of service of process on managing agent of foreign corporation is considered in a note in 23 L.R.A. 496. And the question who is a managing agent of a foreign corporation for purposes of service of process is the subject of a note in 4 L.R.A. (N.S.) 460.</p>

Action by the Anderson Mercantile Company against Oscar R. Anderson and another. From a judgment for defendants, plaintiff appeals.

<p>‘Appeal from District 'Court, Morton county; Crawford, J.</p> <p>• Action by Alexander McKenzie against Steven Gussner and others. Prom a judgment for plaintiff, defendants appeal.</p>

Action by the Investors’ Syndicate against J. S. Letts and others, in which J. F. Beyer intervenes. Judgment for defendants, and plaintiff brings error.

<p>Appeal from district court, Burleigh county; W. H. Winchester, J.</p> <p>Certiorari to review the proceedings, of a general court-martial. Brom a judgment in relator’s favor, defendant appeals.</p>

Action to determine adverse claims to land. Judgment for the defendant. Plaintiff appeals. Facts. This appeal comes to us for a trial de novo under the so-called Newman law. The form of the action is that of one to determine adverse claims to real estate, and its particular purpose is to have declared void and set aside a certain mortgage made by one Charlie Goodsman to the defendant, Theo.

<p>Appeal — defective undertaking — jurisdiction to permit filing of new undertaking.</p> <p>1. After an appeal from county to district court has within time been perfected by the service of a notice of appeal upon some of the parties litigant, and where a fatally defective undertaking,on appeal has seasonably been filed in a good-faith endeavor to perfect such appeal, the county court, under § 7969, Rev. Codes 1905, has jurisdiction of an application based on an affidavit showing such good faith and explaining the default to permit appellant to file a new and sufficient undertaking in lieu of the defective one.</p> <p>Appeal — defective undertaking — remanding for purpose of filing new undertaking.</p> <p>2. Where the record on such an appeal has been transmitted to the district court and a motion is there made to dismiss the appeal for want of a legal undertaking, it is held that the requirement of a valid undertaking to be served and filed as a step in .the appeal proceedings is primarily for the purpose of security, and as such the filing of an insufficient or void appeal bond with the notice of appeal vests the district court with jurisdiction to order the record to be remanded to the county court that a sufficient bond on appeal may be here approved and filed and the record retransmitted to district court.</p> <p>Appeal — trial de novo — evidence.</p> <p>3. Where such notice of appeal demands a trial de novo and the retrial involves issues of both law and fact,- as the determination of the existence of a foreign common-law marriage necessarily to be determined from evidence, it is triable on evidence to be offered anew and not on the record or transcript of testimony and proceedings certified from county court; and the last part of § 7985, is not to be construed as denying or limiting the manner of trial de novo in such cases to a review of the record of the lower court.</p> <p>Appeal — trial de novo — procedure.</p> <p>4. Such an issue is one triable in district court as an equitable action where a jury tidal is not had.</p> <p>Note. — The holding in this case that ¿¿tries of births, deaths, and matters of family history in a family Bible are admissible in evidence is in harmony with the general rule, as shown by a review of the authorities in a note in 41 L.R.A. 449, in which the whole subject of entries in family Bible or other religious book as evidence is treated.</p> <p>Appeal — trial de novo — procedure — legal or equitable.</p> <p>5. Where so tried to the court, the record and the proceedings on appeal from the district to the supreme court are governed by the statutes as to appeals in equitable actions. Where a jury is had in the district court, the appeal therefrom is governed by appeals from jury trials, following Hedderieh v. Hedderich, 18 N. D. 488, 123 N. W. 276.</p> <p>Appeal — trial de novo — probate matters — constitutionality of statute as to.</p> <p>6. The statute vesting in the district court jurisdiction to try de novo probate matters appealed from county court is not unconstitutional as violating g 111 of the Constitution, granting exclusive original jurisdiction to the probate court of such class of actions, as the trial de novo on appeal is but the exercise by the district court of the appellate jurisdiction conferred by statute and permitted by § 103 of the Constitution.</p> <p>Appeal — statement of case.</p> <p>7. The settled statement of the case on appeal from district to this court from the determination of an equitable issue as in this action should include only the proceedings had in the district court trial.</p> <p>Common-law marriage — sufficiency of proof.</p> <p>8. The evidence offered in district court on behalf of respondents Miesen is reviewed and held to negative the existence of any common-law marriage of Dorothea Harnau to Peterson. Neither she nor Herman Miesen, alleged son of deceased, are entitled to inherit his estate. They are without interest in these proceedings, and their petition that his estate be decreed to them on final distribution thereof is denied and judgment below in their favor is ordered vacated.</p> <p>Evidence — entry in family Bible.</p> <p>9. Entries of births, deaths, and matters of family history in a family Bible, though hearsay, are admissible as past declarations of matters of family history concerning events as to which the family is presumed to have accurate knowledge, when the entries were made by a member of the family since deceased, or at a time when there could exist no motive to deceive.</p> <p>Evidence — certified copies of parish records from foreign country.</p> <p>10. Certified copies of parish records from Norway of recorded births, deaths, and marriages, tending to establish respondents Ladehol et al. to be heirs of deceased, held inadmissible for want of proof as a foundation for their admission of the foreign law requiring such registration as an official duty. A foreign law relied upon as the basis for such testimony must be proven as a fact, and when the foreign law exists as a statute or in writing, oral testimony thereof is inadmissible under both the common law and our statute, § 7291. The foreign unwritten or common law may be established by oral testimony, but where such oral testimony does not establish the foreign law to exist as unwritten or common law and negative the existence of a written statute, the proof of the foreign law is insufficient to admit certified copies of the foreign official hut nonjudicial records.</p> <p>Evidence — certified copies of parish, records from foreign country — authentication.</p> <p>11. Such certified copies purported to he certified by the pastors as keepers of the records, authenticated under seal by district judges as to genuineness of the pastors’ signatures and that the records were kept pursuant to requirements of law, and reauthenticated by higher church officials, and all certified under seal of office as to verity of signatures, faith, and credit to be given and as made under lawful authority in turn by the American consul resident in Christiania, Norway, held insufficient to warrant the reception in evidence of such documents so certified without further proof that the foreign law was not in writing.</p> <p>Evidence — documentary — authentication — foreign nonjudicial records.</p> <p>12. The Federal, state, and common-law rules of authentication of documentary evidence as between the states and territories discriminated, the common-law rule as to proof necessary -to admit foreign official, but nonjudicial records not applying thereto.</p> <p>Appeal — remanding for retrial.</p> <p>13. The proof of heirship being insufficient as to the right of Ladehol et al., alleged foreign heirs, respondents, to inherit, but it appearing that on retrial further testimony might be offered and that further opportunity should be given them to submit proof of their relationship to deceased, this action is remanded to the district court for retrial on that issue, and the state, to whom in case of want of heirs the estate escheats, will appear by the state’s attorney of Benson county or the attorney general. Judgment in the county court to be entered on order of district court.</p>

This opinion is after rehearing had. Appeal from District Court, Pierce county; Burr, J. Action by Asa J. Styles and another, partners as Styles & Koffel, against George H. Dickey and another. Prom a judgment for plaintiffs,- defendants appeal.

<p>Conversion — motion for directed verdict — error in instructions.</p> <p>An action brought, based on the alleged conversion by defendant of personal property. Evidence examined and defendant’s motion for directed verdict held properly denied. Error assigned on instructions held untenable. The verdict decided the only issue involved, that of title to such property.</p>

<p>Appeal from the District Court of Eddy county; E. T. Burlce, J.</p> <p>Action by Joseph Walton against M. Mattson, Jr., and another, co-partners as Mattson & Ofstedahl. From a judgment for plaintiff, defendants appeal.</p>

<p>Judgment — lien — on equitable estate or interest.</p> <p>Section 7082, Rev. Codes 1905, which provides that a judgment when docketed “shall be a lien on all the real property, except the homestead, in the county where the same is so docketed of every person against whom any such judgment shall be rendered, which he may have at the time of the docketing thereof in the county in which such real property is situated,” etc., construed, and held, that the docketing of a judgment creates no lien on the mere equitable estate or interest of the judgment debtor in real property.</p> <p>Note. — While at common law and under the law as it now exists in many states a judgment does not become a lien upon an equitable title or interest in real estate, the rule in a number of jurisdictions is that the lien of a judgment attaches to the equitable as well as the legal estate of the judgment debtor. Notes in 117 Am. St. Rep. 780 and 93 Am. Dee. 348. But in some cases it has been held, as in Cummings v. Duncan, that some steps other than the mere docketing of the judgment must be taken in order to subject an equitable interest to the lien of a judgment. Cook v. ■Dillon, 9 Iowa, 407, 74 Am. Dec. 354; Baldwin v. Thompson, 15 Iowa, 508.</p>

<p>«Judgment — non obstante veredicto.</p> <p>1. Although, generally speaking, a motion for judgment non obstante veredicto and for a dismissal of the action should not he granted, unless the record shows not only that the verdict is not sustained by the evidence, but also that there is no reasonable probability that the defects in the proof or pleadings can be remedied on a new trial, the rule does not apply in a case of a total failure of proof on the one vital issue in the case, which is caused by the plaintiff admitting, on his cross-examination, the facts establishing the defense, and entirely admitting away his case, and where the only effect of granting a new trial will be to give the plaintiff a chance to change his testimony upon that trial.</p> <p>Mortgage — usury — demanding settlement of distinct claim as condition to extension of mortgage.</p> <p>2. The collection of another and distinct claim at the time of extending a mortgage, and demand of the payment or settlement of such as a condition subsequent to extending such mortgage, does not constitute usury, even though the collection is brought about by the demand of and receipt from the debtor of another note, which is secured by the new mortgage, which is given as an extension of the former one, and though the original mortgage debt, which is also secured by said mortgage, draws the highest rate of interest that may be legally contracted for.</p>

<p>Appeal from tbe District Court, Morton county; Crawford, J.</p>

<p>Appeal from District Court, Ward county; Bitrice, J.</p> <p>Action by the Brush-McWilliams Company against Amil P. Grludt. Judgment for defendant, and plaintiff appeals.</p>

B. Goss, J. Action by Jane Bailey against Samuel D. Bailey for divorce. From an order awarding suit money and attorneys’ fees to be paid to tbe plaintiff, defendant appeals.

<p>Appeal from District Court, Ward county; Burr, J.</p> <p>Action by the Meyer Lumber Company against Peter Trygstad and others. Erom a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from the District Court of McHenry county; Burr, J.</p>

<p>Appeal from judgment of tbe District Court of' Grand' Forks county; Templeton, J.</p>

<p>Appeal from au order of the District Court of Nelson county, first judicial district; Templeton, J.</p>

<p>Appeal from the District Court, Cavalier county; Kneeshaw, J.</p>

<p>Sale of horse — breach of warranty — measure of damages.</p> <p>1. In an action on the contract to recover for the breach of a warranty in a sale of glandered horses, with knowledge that such horses are to be mingled with others, damages may be recovered both for the loss of the horses originally sold and purchased and of others with which they have been mingled, and to which they have communicated the disease, and also for the reasonable expense of caring for such animals, of buying the same, and of fumigating and disinfecting the premises.</p> <p>Sale of diseased horse — action of tort for damages.</p> <p>2. Similar damages may also be recovered in an action of tort which is based upon the theory of a false and fraudulent sale and warranty with knowledge of the existence of the disease, and are deemed proximate.</p> <p>Sale of diseased horse — breach of warranty — measure of damages.</p> <p>3. Such damages may include compensation for the hire of men and the.value of the use of the time of the farmer or purchaser in caring for and. burying such horses and in disinfecting his premises, and the reasonable cost of medicines and drugs and veterinary attendance. They will not, however, include damages for the loss of the use of the teams which it is claimed might otherwise have been used by the men so employed in caring for the animals or for possible breaking and plowing which might possibly have been done by such farmer if he had not been so employed in caring for his horses, nor for the loss of crops which might have been grown upon land which he might have-plowed and seeded if not so occupied. Such damages are neither proximate so-as to be recoverable in a tort action, nor can they be deemed to have been, within the contemplation of parties at the time of the making of the contract,, so as to be recoverable in an action for the breach of the warranty.</p> <p>Evidence — admissions by agent.</p> <p>4. Where evidence tended to show that horses were sold, warranted to be-free from glanders, and the vendor retained a chattel mortgage on the same,. held, that the admission of an agent of the vendor, who was sent out to prevent the destruction of said horses by the state veterinarian, that prior to the sale-the said horses were infected and he knew that fact, was admissible against the vendor in an action for breach of warranty and for fraudulent representations as to the freedom of the horses from the disease of glanders.</p> <p>Note. — The measure of damages recoverable for selling diseased animals is considered, with a full review of the authorities, in a note in 34 L.R.A.(N.S.) 697. And' the liability of the vender of diseased live stock, in the absence of an express warranty, is the subject of a note in 29 L.R.A.(N.S.) 202.</p> <p>As to what amounts to a breach of warranty of soundness of a horse, see notes in 32 L.R.A.(N.S.) 182, and 53 Am. Dec. 177.</p>

<p>Pleading — implied allegation that plaintiff is foreign corporation.</p> <p>1. The complaint alleges that plaintiff “is and was a corporation duly organized and existing according to law/’ and sets out in full the contract for breach of which suit is brought, in which plaintiff, party of the first part, is designated as “a corporation of Winona, Minnesota.” Held, that the complaint by reasonable inference alleges that the plaintiff is a foreign corporation, and that it was not error for the trial court to overrule the demurrer to the complaint upon the ground that the complaint did not contain the allegations required.by § 7361 of the Revised Codes of 1905.</p> <p>Action by corporation — necessity of proving corporate existence — admission of incompetent evidence of corporate existence.</p> <p>2. By the express provisions of § 7362 of Revised Codes of 1905, in an action by a corporation, the plaintiff need not prove upon the trial the existence of the corporation, unless the answer, an allegation of which denies the existence of the corporation, is verified. In the case at bar the answer is not verified; therefore the admission of incompetent evidence tending to prove corporate existence of plaintiff was not prejudicial to the defendant, and is not grounds for reversing the judgment of the trial court.</p> <p>Note. — It seems to be well settled that, where a guaranty is absolute in its terms and definite as to its amount or éxtent, as was the case in McConnon & Co. v. LaurSEN, or is one which binds the guarantor to pay unconditionally upon the default of the principal, no notice of acceptance by the guarantee is required, as shown by a review of the authorities in 16 L.R.A. (N.S.) 353. The later cases on the question of necessity of notice of acceptance to bind guarantor are collated in a supplemental note in 33 L.R.A.(N.S.) 960. And see also on this subject notes in 105 Am. St. Rep. 515, and 39 Am. Rep. 221.</p> <p>Guaranty — necessity of notice of acceptance.</p> <p>3. On the hack of a written instrument containing all the terms and conditions of a contract whereby the plaintiff is to sell and deliver to defendant Laursen goods, wares, and merchandise f. o. b. Winona, Minnesota, is indorsed in writing the following: “In consideration of the sum of one dollar to us in hand paid by the party of the first part, and in further consideration of the execution by it of the within agreement, and the sale and delivery of its goods as therein provided to the party of the second part, we, the undersigned, jointly and severally guarantee to the said party of the first part, its successors, and- assigns, the full and complete payment of all. indebtedness of the party of the second part to the party of the first part, arising under said agreement, according to the terms and conditions thereof, and at the time and in the manner provided therein. (Signed) Walter Nelson (seal); (signed) Knud Christensen (seal).” Held, that such indorsement is an absolute guaranty to pay for such goods as are delivered to defendant Laursen, by the plaintiff, pursuant to the instrument on which such indorsement is contained, requiring no notice of acceptance by plaintiff, and that it is immaterial as to whether the consideration'of $1, stipulated therein, was or was not paid, and immaterial as to whether the instrument on which such indorsement was contained, was signed by plaintiff at the time such indorsement was signed by the defendants, guarantors, and immaterial as to whether defendants, guarantors, were notified of the default of defendant Laursen, principal debtor, within a reasonable time after his default.</p>

<p>Appeal from the judgment of the District Court of Grand Forks county; Templeton, J.</p> <p>Action by Henry J. Johnson against the county of Grand Forks and another. From a judgment for plaintiff, defendant appeals.</p>

Action against defendant company for an assault committed by its employee upon plaintiff. Verdict and judgment for plaintiff. Defendant appeals. This is an action to recover damages for an alleged assault upon the plaintiff by one Clarence Holiday, an employee of the defendant, at its. station in the city of Donnybrook.

Templeton, J. From an order denying defendant’s motion to quash certain attachment proceedings and to dismiss the action, defendant appeals. Statement of Facts. The facts are not in dispute, and are as follows: During 1908, 1909, and part of 1910 the appellant owned and conducted a store at Michigan City, in Nelson county, North Dakota.

An appeal from an order of tbe District Court of Richland county ■denying defendant’s application to vacate the judgment entered and dismiss the action for want of jurisdiction; Allen, J.