Volume 24 — North Dakota Reports

Appeal by plaintiff from a judgment of the District Court for Foster County, Burke, J., in defendant’s favor in an action to recover possession of certain property. Statement by Bbuce, J. The plaintiff and appellant, in a claim and delivery proceeding under the statute, seized certain personal property of the defendant upon which he claimed to hold certain chattel mortgages.

<p>Certiorari — remedy r— jurisdiction —irregularities.</p> <p>1. The supreme court will not review by certiorari an order of the district court permitting claimants of a fund which had been deposited with the cleric of court by a garnishee to intervene for the purpose of asserting rights therein. In making such order the court did not exceed its jurisdiction, and at most the order is erroneous merely, and may be corrected by appeal.</p> <p>Note. — On the question of appeal as precluding remedy by certiorari, see note in 103 Am. St. Rep. 111. And for the exceptions to the rule that certiorari will not lie where there is an appeal, see note in 50 L.R.A. 787.</p> <p>Certiorari — jurisdiction — aggrieved party has adequate remedy by appeal.</p> <p>2. Certiorari will not lie to review alleged errors not going to the jurisdiction of the inferior court; nor will it lie where, as in this ease, the party aggrieved has an adequate remedy by appeal.</p> <p>Note. — The authorities on the exclusiveness of jurisdiction of court of last resort to issue remedial writs, for prerogative purposes are reviewed in a note in 13 L.E.A. (N.S.) 768. And for certiorari in exercise of superintending control over inferior courts, see note in 51 L.E.A. 33.</p>

Appeal by defendant from an order of the County Oourt for Ren-ville County, Percy 8. Crewe, J., overruling a demurrer to the complaint in an action to quiet title to certain property.

Appeal by defendant Anna Hendricks from a judgment of the District Court for Nelson County, Charles F. Templeton, J., in plaintiff's favor in an action to recover for merchandise sold and delivered by plaintiff to defendants. The complaint does not state facts sufficient to constitute a cause of action against Anna Hendricks.

<p>Appeal by defendants from a judgment of the District Court for Ransom County, Allen, J., in plaintiff’s favor in an action to recover on a bail bond.</p>

<p>Mandamus by the Red River Valley Brick Corporation, Falconer Township, and School District No. 59, against the District Court of the First Judicial District, and Kneeshaw, J., sitting at the request of Templeton, J.</p>

Appeal by plaintiff from a judgment of the District Court for Barnes County, Butlee, J., dismissing the complaint in an action brought to recover damages for the death of plaintiff’s- intestate. Statement by Spalding, Ch. J. This appeal was taken from a judgment of the district court of Barnes county in favor of the defendant, and from an order denying new trial.

Appeal by plaintiffs from a judgment of the District Court for Cass County, Allen, Special Judge, in defendants’ favor in an action to set aside a special assessment levied for street paving. An assessment is void when it rests on the cost of the pavement, and not on special benefits to the property. Cooley, Taxn. 3d ed. 1254; Johnson v. Milwaukee, 40 Wis. 324; Watkins v. Zwietusch, 47 Wis. 513, 3 27. W. 35; Wells v. Western Paving & Supply Co. 96 Wis. 116, 70 27.

Appeal by defendants from a judgment of tbe District Court for Burleigh County, Winchester, J., awarding a writ of prohibition enjoining them from an alleged abuse of discretion in the matter of bonds furnished by public warehousemen in support of elevator licenses.

Appeal by plaintiffs from a judgment of tbe District Court for Stutt-man County, A. G. Burr, Special J., in defendant’s favor in an action brought to recover damages for breach of a contract to purchase certain property. Defendant having refused to complete the deal on the ground that he “could not raise the money” to make the payment precludes him from thereafter raising or attempting to raise other objections or reasons for his failure to perform.

<p>Appeal — statement of case — time for — extension.</p> <p>1. Trial courts possess a broad discretion in the matter of granting or refusing extensions of time for the purpose of enabling counsel to prepare and cause to be settled a statement of the case, and the exercise of such discretion will seldom be interfered with by this court, and never except in cases of a manifest abuse of such discretion. It is held, applying the above rule, that respondent’s motion to strike the statement of the case from the record, based upon the alleged insufficiency of the showings made for the various extensions of time in which to have such statement settled, should be denied, it not appearing that, in granting such extensions, there was a clear abuse of discretion.</p> <p>Appeal — review of evidence — denial of new trial.</p> <p>2. Where a motion for a new trial based upon alleged insufficiency of the evidence is made and denied after judgment, and no appeal from the order is taken, this court, following the rule in Hedderich v. Hedderich, 18 N. D. 488, 123 N. W. 276, will not, on an appeal from the judgment, consider assignments based solely upon alleged insufficiency of the evidence.</p> <p>Appeal — error in rulings on evidence.</p> <p>3. Certain rulings in the admission and exclusion of testimony examined and held proper, or at least nonprejudicial.</p> <p>On rehearing.</p> <p>Appeal — sufficiency of evidence — how challenged at tidal.</p> <p>4. On an appeal from a judgment alone, the question of the sufficiency of the evidence is not properly before the court for decision, although attempted to be raised by an assignment of error, where the sufficiency of such evidence was in no manner challenged at the trial, but only by a motion for a new trial made long after the entry of such judgment.</p> <p>Appeal — scope .of review.</p> <p>5. Section 101 of the N. D. Constitution, which provides that “every point fairly arising upon the record of the case shall be considered and decided, and the reasons therefore concisely stated,” etc., construed, and held not to require a literal compliance therewith. A point fairly arising upon the record, within the meaning of said section, must be one the decision of which is necessary to the final determination of the cause, and which is properly presented with a fullness and distinctness, rendering it possible for the court to comprehend it in all its bearings. Such is the well recognized and settled construction of like constitutional provisions.</p>

<p>Appeal by defendant, Sidney Clarke, from a judgment of the District Court for Grand Forks County, Charles F. Templeton, J., in plaintiffs favor foreclosing a mechanics’ lien.</p>

Appeal by plaintiff from a judgment of the District Court for Cass County, Pollock, J., in defendant’s favor in an action on a promissory note. Statement by Beuce, J. Early in May, 1908, one II. Q. Turner, a collecting agent for Fetzer & Company, telephoned from Fargo to defendant, a farmer at Verona, that in settling up the Fetzer & Company business in North Dakota he had two drills which he proposed to sell the defendant for $50.

Appeal by defendant from a judgment of the County Court for Stutsman County having increased jurisdiction, Gonldin, J., in plaintiff’s favor in an action to recover the amount paid for a horse at an auction sale and for damages for breach of warranty by the auctioneer. An auctioneer, by virtue of his naked authority, has no power to warrant property sold. 8 Ene. Ev. 491; 1 Ene. Ev. 995; Upton v. Suffolk County Mills, 11 Cusk. 586, 59 Am.

<p>Criminal law — information — amendment.</p> <p>1. In the light of the provisions of § 8 of the Constitution, permitting the legislature to change, regulate, or abolish the grand jury system, and of § 9796, Rev. Codes 1905, permitting amendment of a criminal information, and of § 9930, Rev. Codes 1905, requiring the state’s attorney or other prosecutor to follow a criminal trial into the county to which it is removed, and giving the court full jurisdiction and authority to hear, try, and determine the action, and to conduct it in all respects as if it had been commenced in such county, it is held that, in a prosecution by information, it is competent for the state, on leave of court, to amend an information in the county to which the trial is removed, at least when there is no new or different offense charged.</p> <p>Appeal — presumptions — instructions.</p> <p>2. Following State v. Peltier, 21 N. D. 190, 129 N. W. 451, it is held that, when error is assigned on instructions to the jury in a case in which the evidence is not before the supreme court, an instruction will not be held erroneous unless it is so under every possible view of the case, and that it will he presumed to be correct as applied to the evidence unless abstractly wrong.</p> <p>Trial — instructions.</p> <p>3. Certain instruction, identical in effect with one passed upon in State v. Hazlet, 16 N. D. 426, 113 N. W. 374, sustained.</p> <p>Homicide — instructions — presumptions on appeal.</p> <p>4. The appellant was charged by information with having committed the crime of murder. The court instructed the jury on the degrees of murder and of manslaughter. The jury found him guilty of manslaughter in the first degree. Seld, that where the evidence is not before this court, it will be presumed that the instructions conformed to such evidence, and consequently that the status of the proof was such as to show that defendant was guilty of one of the degrees of murder or of manslaughter, or not guilty; and it - was not error, therefore, to omit to instruct as to the lesser offenses included. within such greater offenses.</p> <p>Note. — As to the submission of the question of lower degree to jury in prosecution for homicide, see note in 21 L.R.A. (N.S.) 18.</p> <p>Appeal — failure to instruct — absence of request.</p> <p>5. The record discloses no request for instructions on the lessor offenses. While many authorities hold that failure to instruct on a given point, when not requested so to do, is not reversible error, that question is not passed upon.</p>

<p>Evidence — former testimony.</p> <p>1. Upon a former trial of this action in the district court, one Dr. E. was a witness for the state. He was asked a question upon cross-examination to which an objection was sustained by the trial court, which ruling was held to be error by this court upon a former appeal. At the present trial below, the said Dr. E. was outside of the jurisdiction of the trial court, and his testimony was given by the official reporter of the former trial from his shorthand notes. Appellant contends that this testimony was improperly admitted, because he had no opportunity to cross-examine the witness upon the former trial. However, the statement of the case shows that substantially the same question was asked the doctor upon the former trial, and that he answered the same without objection. The statement of the case upon the former appeal being narrated and much abbreviated, and the state, failing to call the facts to the attention of the court, misled this court at that time. Under the facts now shown, it is held that defendant had a full opportunity to cross-examine the witness upon the former trial, and that this objection to the testimony upon the second trial upon that ground was properly overruled.</p> <p>Accomplice — question for jury — evidence — instructions.</p> <p>2. Whether one Dale was an accomplice with defendant in the commission of the defense, and whether his acts as such in furtherance of the eommon object tended to show the guilt of defendant, were facts for the jury to determine, and the testimony offered at the trial of acts done by Dale in furtherance of such common purpose towards the commission of the offense was properly admitted, and the instructions of the trial court were full, fair, and accurate.</p> <p>Expert testimony — hypothetical questions.</p> <p>3. Dr. W., sworn as an expert, was asked two hypothetical questions based upon the testimony of all the state’s witnesses, including that of Dr. E., and calling for his opinion as to the cause of the death. Held, that the questions were propel, the testimony of Dr. E. being held properly admitted in paragraph one.</p> <p>Appeal — argument of state’s attorney — objection.</p> <p>4. The assistant state’s attorney, during his remarks to the jury in summing up the case, referred to the defendant as a “professional abortionist,” “a moloch who kills unborn children for the almighty dollar,” etc., but the defendant’s attorneys “did not care to interrupt the argument,” and did not give the trial court any opportunity to stop the language or rebuke counsel, but made the objection after the argument had ceased. Held, following State v. Knudson, 21 N. D. 562, 132 N. W. 149, that this court will not reverse the trial court for objectionable language of counsel not called to his attention by timely objection.</p>

Appeal by plaintiff from an order of tbe County Court for Stuts-man County, J. U. Hemmi, County Judge, denying his motion for a new trial in an action brought to recover a balance claimed to.be due for services.

Appeal by defendant from a judgment awarding a peremptory writ of mandamus against him; Allen, J. ISTo interest or penalty on special assessments or taxes can be charged or collected, in the absence of a statute expressly providing for such interest and penalty. 1 Page & J. Taxation by Special Assessment, § 475, p. 721; Cooley, Taxn. 2d ed. pp. 17, 346; 25 Am. & Eng. Enc. Law, 1231; 27 Am. & Eng. Enc. Law. 777; Elliott v. East Pennsylvania P. Co. 99 IT.

Appeal by defendant from an order of the County Court of Increased Jurisdiction of Ward County, N. Davis, J., refusing to vacate a judgment entered on default in an action brought to recover wages alleged to be due. Until there had first been a ruling by the court on the motion of defendant adverse to it, no judgment by default for failure to answer could properly be entered. Smalley v. Lasell, 26 S. D. 239, 128 H. W. 142.

Appeal by intervener from an order of the District Court for Cass County, Pollock, J., denying the right to intervene in mandamus proceedings to compel the principal defendant to certify the legality, etc., of the city bonds, as the treasurer of such city.

<p>Appeal by defendant from a judgment of tbe District Court for Richland county, Honorable Frank P. Allen, J., in an action brought to recover a commission.</p>

Action to recover for services performed. From the order of the District Court refusing an offer of proof by defendant in support of his counterclaim, and verdict directed for the plaintiff, and judgment thereon, defendant appeals.

Action for damages sustained by reason of personal injuries received by plaintiff while in the employ of defendant. From a directed verdict for defendant, plaintiff appeals.

Appeal by defendant from a judgment of the District Conrt for Ward County, in plaintiff’s favor in an action to quiet title to certain property, K. E. Leighton, J. Creditor levying his attachment without notice of a prior unrecorded deed is entitled to priority over the grantee under the unrecorded deed. 4 Oyc. 638. See also Wahrenberger v. Waid, 8 Colo. App. 200, 45 Pac. 518; Jerome v. Carbonate Nat. Bank, 22 Colo. 37, 43 Pac. 215; Haines v. Connell, 48 Or. 469, 120 Am.

Appeal by defendant from a judgment of dismissal of the District Court for McHenry County, Burr, J. Statement by Goss, J. This action was first brought before a jus~ tice of the peace in Pierce county, and judgment was there, on the 31st day of December, 1909, rendered against the defendant and appellant.

From a judgment for plaintiff, entered in the District Court for Well© County, Coffey, J., defendants appeal. If plaintiff can recover in this action, such recovery must be based' upon the written contract pleaded. Johnson v. Kindred State Bank, 12 N. D. 336, 96 N. W. 588; 20 Am. Dig. Century ed. cols. 2464-2411, and cases cited. Bev. Codes, Sec. 5333; Hutchinson v. Cleary, 3 N. D. 270, 55 N. W. 729; National German-American Bank v..

Appeal by defendant from a judgment of the District Court for McLean County, Crawford, J., in a proceeding to determine the result of an election on the division of McLean county.

<p>Motion by appellant to advance the canse npon the calendar of this court.</p>

<p>Motion by respondent to dismiss the appeal and also to vacate an order made by a judge of this court permitting a supersedeas undertaking on appeal to be given.</p>

Motions by respondent to dismiss the appeal and-also to vacate' an order made by a judge of tbis court permitting a supersedeas undertaking on appeal to be given.

Motions by respondent to dismiss tbe appeal and also to vacate an order made by a-judge of this court permitting a supersedeas undertaking on appeal to be given.

Motion to dismiss appeal on the ground of voluntary payment of the judgment. Statement by Bbuce, J. This is a motion to dismiss an appeal on the ground that the matters in controversy have been disposed of by a voluntary payment, and that the appeal would now merely raise a moot •question.

<p>Appeal from tbe District Court for Grand Forks County, Templeton, J.</p> <p>Motion to dismiss tbe appeal on the ground of a voluntary payment of the judgment.</p>

.Appeal from the District Court of Kidder County, Winchester, J. Nights of parties to this action are to be determined by laws of Minnesota, because parties resided there at time notes, mortgage, and assignment were made, and note payable in Minnesota. 7 Cyc. 639, 640, note 55; 1 Dan. Neg. Inst. p. 658, et seq.; Central Trust Co. v. Burton,. 74 Wis. 333, 43 N. W. 141; Newman v. Kershaw, 10 Wis. 333.

From a judgment in plaintiff’s favor, and from an order denying a motion for a new trial, defendant appeals. Oral negotiations of the parties became merged in the written contract, and it was error to permit testimony as to the terms of such contract. Taugher v. Northern P. R. Co. 21 1ST. D. Ill, 129 1ST. W. 717. The legal effect of a contract of exchange of property is generally the same as that of a contract of sale. 35 Cyc. 40; Rev. Codes, § 5445 ; 28 Am. & Eng. Enc.

Allen, J. A demurrer to the complaint having been sustained, judgment was rendered for defendants, from which plaintiffs appeal.

<p>Appeal from justice court — dismissal — insufficient undertaking — proofs of — District court.</p> <p>1. The litigant who moves to dismiss an appeal from the justice to the district eourt upon the grounds that the copy of the undertaking served upon him was incomplete must make formal proof of such fact by affidavit or other proof, and present such proofs to the trial court. In the case at bar, no such proof was made at the time the trial court denied the motion to dismiss, but some four months later affidavits were filed in the district eourt tending to prove such facts. Held, that this eourt will not consider such affidavits, but will review the action of the district court upon the proofs that were already before it.</p> <p>Motion to dismiss appeal — notice of Rearing on merits — demurrer — practice.</p> <p>2. The respondent at the time of the hearing, upon the motion to dismiss, also served notice “that defendants should take notice that the merits of the law applicable to the specifications of error as enumerated in the notice of appeal may be considered.” Held, that this was a notice that the merits of the demurrer interposed in the justice court would be considered, if the motion to dismiss the appeal were overruled, and the trial court rightfully tried the issue of law arising upon said demurrer.</p> <p>Tort — action for — tort feasor — death of terminates action —issue.</p> <p>3. At common law the action for tort died with the tort feasor, and this rule has not been changed by statute in this state. Demurrer interposed in justice court squarely raised this issue, and the trial court correctly sustained the same without leave to amend.</p>

This action, in tort, survives the death of the. tort feasor. Rev. Codes, Sec. 6789; 13 Current Law, 1245, note 25; Devine v. Healy, 241 Ill. 34, 89 X. E. 251; 21 Enc. PL & Pr. 346, note 3. Action must he brought in name of real party in interest. Rev. Codes, § 6407. Infant must sue in his own name by his guardian ad litem. Price v. Phcenix Mut. L. Ins.

(a) That this affidavit, taken with all the affidavits filed for such purpose, should not be held to constitute the judicial admission of the defendant of an absence of merit in his appeal.

. Appeal from the District Court for Cass county; Pollock, J. Action to enjoin the city of Fargo and the city officials of said city from carrying out a contract for the erection of a water filtration plant for said city, on the ground of the illegality of said contract. Writ denied. The plaintiff has appealed from a judgment of the district court of Cass county, refusing to grant him injunctional relief, and asks for a trial de novo in this court.

<p>Conflict in evidence — negligence — contributory negligence — question ior jury — special verdict — ultimate tacts.</p> <p>1. Where there is a substantial conflict in the evidence, negligence and contributory negligence are ultimate questions of fact for the jury, and not of law for the court. Where, therefore, a special verdict is submitted in a personal injury case, it is not only proper, but necessary, that questions involving such ultimate facts should be submitted and answered.</p> <p>Sufliciency of evidence to sustain findings.</p> <p>2. Evidence examined and held to support findings of jury and the judgment of the court.</p> <p>On Petition for Rehearing.</p> <p>Negligence — contributory negligence — last clear chance — pleading.</p> <p>3. The doctrine of discovered peril, or of the last clear chance, may be urged under a general allegation of negligence.</p> <p>Negligence — contributory negligence — last clear chance — presumptions — street railways.</p> <p>4. Where a hack driver was driving within a short distance of and parallel to the street railway track, and within the track of the car, though not of the rail, and was overtaken and run down by a rapidly approaching car, which sounded no gong and gave no warning of its approach, and the evidence showed that though he started to turn across the track of said railway just before the accident, he would have been run down whether he had so turned or not, and that the motorman could have seen him during all of the time he was on said street and in the track of said car, and that when first turning upon said street and while about 480 feet from the scene of the accident, he turned to look back for an approaching car and saw none, but did not look again, though he listened for approaching cars, held, that the court will not presume contributory negligence as a matter of law, and that in such a case the doctrine of the last clear chance will be held to apply.</p>

Affirmed. An affidavit of merits is required only where application to open default is based upon excusable neglect, mistake, etc. Eev. Codes Sec. 6884. Judgment is to be set aside where the evidence is sufficient to show to tbe court that no service of the summons had been made upon defendant. Rice v. Griffith-, 9 Iowa, 539 ; Martinson v. Marzolf, 14 N. D. 309, 103 N. W. 931; Bauer v. Union Gent. L. Ins.

From an order of the District Court for McLean County, Winchester? J., overruling a demurrer to the complaint, defendant appeals. To constitute a contract specifically enforceable by reason of offer and acceptance, the acceptance must be definite and unconditional, leaving nothing further to be done by the one making the offer. De-Jonge v. Hunt, 103 Mich. 94, 61 N. W. 341; Beiseker v. Amberson, 17 N. D. 215, 116 N. W. 94.

<p>Pleading — attack — motion — objection to evidence — demurrer.</p> <p>1. When a pleading is only attacked by motion or objection to the introduction of evidence on the trial, it will be construed more liberally in favor of the pleader than when the attack is made by demurrer.</p> <p>Pleading — counterclaim — cause of action — contract — recoupment.</p> <p>2. Section 6859, Rev. Codes 1905, provides that an answer may contain a statement of any new matter constituting a defense or counterclaim; and § 6860, Rev. Codes 1905, requires such counterclaim to be one existing in favor of a defendant and against a plaintiff between whom a several judgment might be had in the action, and arising out of one of the following causes of action:</p> <p>(1) A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim or connected with the subject of the action;</p> <p>(2) In an action arising on contract any other cause of action arising also on contract and existing at the commencement of the action.</p> <p>Held, that in an action on promissory notes given on a conditional sale of real estate for the purchase price, a counterclaim attempted to be pleaded by the defendant, setting up the conditions on which defendant claimed the sale was made, which, if true, rendered the notes in suit in the hands of the payee voidable, such counterclaim comes within paragraph No. 1 of § 6860, supra, and hence it does not follow that the acts set up in the counterclaim must have been done or contracted to be done before the commencement of the action, and that said paragraph 1 applies to what was formerly termed a recoupment.</p> <p>Amended pleading — misnomer — supplemental pleading — substantial rights.</p> <p>3. A mere misnomer in designating a pleading as an amended pleading, instead of a supplemental pleading, has no effect where the substantial rights of the parties are not affected thereby; and an additional pleading may be treated as supplemental, even though designated as an amended pleading. This is particularly so where the amended pleading was served by permission of the court and was received and retained without objection by the other party.</p> <p>Uncertain pleading — motion — remedy — objections waived.</p> <p>4. Where a pleading states the main facts necessary to constitute a cause of action, but omits to state some details, and is thereby rendered, to some extent, uncertain, the remedy of the other party is by motion to make more definite and certain or a demand for a bill of particulars; and when he does not avail himself of either of these remedies for more than ten months after the service of the pleading, or until a motion for judgment for lack of a reply, his right to object on grounds going to the incompleteness of the pleading is waived.</p> <p>Objections — counterclaim — facts — demurrer.</p> <p>5. The objection that facts pleaded in an answer intended to set up a counterclaim do not constitute a proper counterclaim in the action can only be raised by demurrer, where the subject-matter properly pleaded might have constituted a valid counterclaim.</p> <p>Motion for judgment — order on — judgment — appeal — review.</p> <p>6. An order denying a motion for judgment on the pleadings is reviewable on appeal from the judgment.</p> <p>Counterclaim — material allegations — failure to reply — judgment.</p> <p>7. Under § 6863, Rev. Codes 1905, providing that every material allegation contained in a counterclaim not controverted by reply shall, for the purposes of the action, be taken as true; and § 6864, authorizing the defendant to move, on notice of not less than ten days, for such judgment as he is entitled to upon the statements of his counterclaim in case the plaintiff fails to reply or demur thereto. It is held that under the facts of this case as set out in the opinion and as against any objections offered by plaintiff, when motion for judgment was made for lack of a reply, the defendant was entitled to judgment upon his counterclaims.</p>

T- Burke, J., presiding at tbe trial, and J. A. Coffey, J., presiding on tbe motion for new trial. Action by S. N. Putnam against A. B. Prouty.

<p>Trial — larceny — witnesses — property — ownership.</p> <p>1. On a trial for larceny by defendant of certain feeder slats and chains belonging to M. & Co. and attached to a threshing-machine separator, the testimony to the state’s witnesses disclosed that on the morning such property was stolen defendant was met upon the public highway near the place where the M. & Co. separator was located, having in his possession a bundle of slats with chains attached. The theory of the defense was that defendant procured the slats and chains which were in his possession from an old separator belonging to H. & F. by the permission of H. & E., and that they were not the property of M. & Co. At the trial M., a witness for the state, was asked on cross-examination whether the feeder on his machine could be operated without having the slats so close to each other. An objection was sustained to this question on the ground of immateriality and not proper cross-examination.</p> <p>Reid, that such ruling was correct.</p> <p>Witness — impeachment — testimony — relevancy.</p> <p>2. A question asked for the purpose of laying a foundation for impeaching a witness upon the ground of contradictory testimony given by him at the preliminary examination was properly excluded, it appearing that such question related to a subject-matter in no way germane to the testimony given by the witness at the trial.</p> <p>Evidence — materiality — foundation.</p> <p>3. Defendant sought to introduce in evidence a box of feeder slats which had been removed from his machine for the purpose of showing that they had to be cut off at the ends in order to fit his machine. This testimony was properly excluded as it had no material bearing upon the issue as to defendant’s guilt or innocence. Nor was there any proper foundation laid for the admission of such testimony, as there was no showing that such slats were the ones which it was claimed had been stolen from the McKay machine.</p> <p>Evidence — self-serving declarations — hearsay — conversation.</p> <p>4. Defendant’s brother was asked to narrate a conversation had with defendant on the evening prior to the larceny, presumably for the purpose of showing that the defendant expressed to him his intention of going to Kolia to procure slats from the IT. & F. feeder. Such testimony was properly excluded on the ground that it amounted to merely self-serving declarations and hearsay statements of the defendant. Any expressed intent by the defendant to his brother of his purpose that night was both incompetent and immaterial.</p> <p>Note. — While there is some conflict in the authorities as to whether the unexplained possession of goods recently stolen constitutes prima facie evidence of guilt, the eases seem to agree with the holding in State v. Schonberq, that such possession does not constitute affirmative proof of guilt, as shown in a note in 12 L.R.A. (N.S.) 199, on possession of recently stolen property as evidence of burglary.</p> <p>Testimony — rulings.</p> <p>5. Certain other rulings excluding testimony offered by the defendant examined and held nonprejudieial.</p> <p>Jury — instructions — larceny — possession of stolen property — guilt — inference of.</p> <p>6. The court instructed the jury upon the question of the weight to he given the proof as to defendant’s recent possession of the stolen property as follows: “If recently stolen property is found in the possession of the defendant within a short time after the commission of the crime of larceny, such finding is affirmative proof, under the law, that the defendant stole the property unless the defendant has explained to the jury how he came in possession of the property, so as to lead the jury to a reasonable doubt as to whether he is guilty or not guilty.” The giving of such instruction was prejudicial error, as it, in effect, told the jury that they should treat such circumstance as an established fact showing guilt unless explained by defendant in a manner consistent with his innocence. The jury should have been instructed that the possession of stolen property, recently after the larceny thereof, when unexplained, may be sufficient to warrant the jury in inferring the guilt of the party in whose possession it is found; and whether such inference should or should not be drawn is a fact exclusively for the jury.</p> <p>Arguments of counsel — instruction to ignore — error.</p> <p>7. The court also instructed the jury in effect that they should, in deciding the ease, ignore the arguments of counsel.</p> <p>Held, following the rule announced by this court in Zilke v. Johnson, 22 N. D. 75, 132 N. W. 640, that the giving of such instruction was prejudicial.</p>

<p>Land contract — sale — agency — deed — delivery.</p> <p>1. Plaintiff, a resident of Illinois, entered into a contract through correspondence, agreeing to sell to defendant Olson lands in this state, no place haying been agreed upon for the closing of the deal. Defendant’s agent, in a letter accepting plaintiff’s offer, among other things said, “We inclose a -warranty deed, which you can execute, and have your Elkhart hank send to the People’s State Bank, of Lakota, and we will take same up.” Plaintiff acted on such suggestion, and not only sent to the Lakota hank the deed, but also a sight draft for $4,200 in a letter containing specific instructions to deliver same on payment of such draft, and to remit by New York or Chicago exchange.</p> <p>Note. — Authorities involving the precise question whether a bank to which paper is sent for collection at request of the obligor is the agent of the obligor or of the holder are not numerous, as shown by a review thereof in a note to Virginia Carolina Chemical Co. v. Steen, 34 L.R.A.(N.S.) 734, but such authority as there is seems to sustain the holding in Schafek v. Olson that the bank is the agent of the owner of the paper.</p> <p>Held, that the bank was plaintiff’s agent for the collection of such, draft and the consummation of the deal by the deed.</p> <p>Banks — accounts — private checks — drafts — payments — insolvency.</p> <p>2. One B, acting on defendant’s behalf, gave to the bank a check drawn on B’s account therein, in payment of such draft. Such check was accepted by the bank and the deed delivered, but no remittance to the plaintiff was made. B’s account at the time showed a balnace of about $8,000. Eight days thereafter the bank ceased doing business.</p> <p>Held, there being no proof that the bank was insolvent when the check was given and accepted, that the giving and receiving of such check constituted a payment of the draft.</p>

<p>Drainage law — petition — municipality — citizens — public demand for drain — assessment — drainage board — authority.</p> <p>1. The drainage law, as amended by chap. 93, Laws of 1907, provides that “if among the leading purposes of the proposed drain are benefits to the health, convenience, or welfare of the people of any city or other municipality, the petition shall be signed by a sufficient number of the citizens of such municipality or municipalities to satisfy the board of drain commissioners that there is a public demand for such drain.”</p> <p>JB.'eld, that when a drain is proposed to be established for the above-mentioned purposes, the board has no authority under the provision quoted to make an assessment for the establishment and construction of a drain lying in one township against another township, in the absence of signatures to the petition of citizens of the township so attempted to be assessed.</p>

Heal property is sucb as has the characteristics of permanency of location. Tiedeman, Neal Prop. § 1. Things of a vegetable nature growing in the soil are deemed a part of the realty. Tripp v. Haseeig, 20 Mich. 254, 4 Am. Hep. 388. The measure of damages for destruction of growing grass is the difference between the value of the land for the purpose for which it was used, before and after the fire. Texas & P. H. Co. v. Land, 3 Tex. App. Civ. Cas.

Original application for a writ of babeas corpus. This is an application for release under a writ of babeas corpus.

Eelator, wbo is detained in tbe jail of Cass county under an execution issued against bis body, applied to tbe Supreme Court for tbe issuance of a writ of babeas corpus. Sucb writ was issued as prayed for, and respondent made due return thereto. Upon a bearing on tbe merits, tbe writ is quashed.

<p>Merchant — goods — buyer and seller.</p> <p>1. A merchant is one who buys to sell, or buys and sells, goods or merchandise in a store or shop.</p> <p>Transient merchant — license — vending — temporary place.</p> <p>2. Chapter 201, Laws of 1911, requires transient merchants to pay a license to the state and a local license to any town, village, or city within which they may do business. A transient merchant is one who engages in the vending or sale of merchandise at any place in this state temporarily, and who does not intend to become, and does not become, a permanent merchant of such place, as defined by the act. Held:—</p> <p>Note. — By holding that one selling his own products is not a “merchant,” the court in this case avoided the necessity of deciding the question whether the statute would be unconstitutional if construed to include such a person. That an ordinance by the terms of which a farmer is in effect prohibited from selling the products of his farm, with the exception of milk, fish, and game, without first taking out a license from the city, is invalid, was declared in Ee Snyder, 10 Idaho, 682, 68 L.E.A. 708, 79 Pae. 819. And that the exemption from a license statute of people peddling their own products does not render the statute invalid has been decided in Eosenbloom v. State, 64 Neb. 342, 57 L.E.A. 922, 89 N. W. 1053. But the contrary conclusion was reached in State ex rel. Luria v. Wagener, 69 Minn. 206, 38 L.E.A. 67.7, 65 Am. St. Eep. 565, 72 N. W. 67. The latter case is, however, distinguished by the court in the Eosenbloom Case on the ground that the statute construed in that case was held to be a police regulation, having for its object the protection of the public, while the classification in the statute considered in the Eosenbloom Case was made for the purpose of taxation, and not for the purpose of regulating the business of peddling.</p> <p>(a) That, under this definition a transient merchant is a merchant who buys and sells merchandise, and whose sales are made at a place in this state temporarily, and who does not intend to become, and does not become, a permanent merchant of such place.</p> <p>(b) That a person who grows his own fruit and ships it into this state, and sells it at retail from a car placed on a side track within the limits of a village, is not a merchant, and is therefore not a transient merchant within the prohibition of said chapter.</p> <p>■Vending from car — village — merchant — transient merchant — statute interpretation — farm products — vending of same — license.</p> <p>3. The terms of the law in question clearly apply equally to growers of the products of farms situated within this state and taken into villages and cities for sale, as to such growers in other states who ship into this state for sale. Held, that this court will not, unless the terms of the statute make any other interpretation impossible, hold that it was intended to- prevent the producers of this state from marketing the products of their farms in villages and cities without the payment of the license fees imposed.</p>

Action against tbe City to recover damages resulting from personal injuries sustained in slipping and falling on an icy sidewalk. Judgment for plaintiff. Defendant appeals. Two separate actions were brought in tbe district court of Grand Forks county against tbe City of Grand Forks, — one by Lena Jackson, and tbe other by J. W. Jackson, her husband.

Action to recover damages for the destruction of property in a fire alleged to have been started and allowed to escape through the negligence of the defendant. Verdict and judgment for the plaintiff. Defendant appeals.

Action to recover damages for the destruction of property in a fire alleged to have been started and allowed to escape through the negligence of the defendant. Verdict and judgment for the plaintiff. Defendant appeals.

Action to recover damages for tbe destruction of property in a fire alleged to bave been set and allowed to escape through the negligence of the defendant. Verdict and judgment for the plaintiff. Defendant appeals. Where the complaint fails to state facts constituting a cause of action, advantage may be taken by objection to the admission of any evidence at the opening of trial, and where such objection on specific grounds is made, it is error to receive any evidence.

Tbe evidence offered to prove permanent mental incompetency was not admissible under tbe pleadings, and cannot sustain tbe judgment. Garland v. Davis, 4 How. 131, 11 L. ed. 907. Tbe rule is that evidence not authorized by tbe allegations cannot be juridically considered; there need be neither objection nor exception to it. Nelson v. Thompson, 16 N. D. 295, 112 N. W. 1061.

On June 14, 1904, W. Crawford & Son executed and delivered to tbe defendant, Grand Forks Mercantile Company, tbeir promissory note for $600, payable on demand, said note being given in part payment of an open account for goods sold and delivered. On June 21, 1904, the note was indorsed by the defendant, “Demand, notice-of nonpayment, and protest waived.