Volume 25 — North Dakota Reports

An appeal from the County Court for Ransom County; Thomas, J. Defendants’ request for time in which to- prepare for trial should have been granted. Statute, Sec. 9889; McFadin v. State, 44 Tex. Grim. Rep. 471, 72 S. W. 172; Whitesides v. State, 44 Tex. Crim. Rep. 410, 71 S. W. 969. Filing new information on quashing of the former one makes a new case, entitling defendant to his day to plead. Whitesides v. State, supra.

<p>Appeals — findings of fact — trial court — judgment — retrial — conclusions of law.</p> <p>1. Section 7229, Rev. Codes 1905, commonly known as the Newman act, is not in itself a complete enactment upon appeals, but is an incident of the general appeal law covered by chapter 15 of the 1905 Revised Codes. Its provisions apply to equity cases tried by the jury, wherein the appellant desires the supreme court to retry some or all of the issues of fact. If appellant is satisfied with the findings of fact made by the trial court, but appeals from the judgment entered thereon, he has a right to such appeal without demanding a retrial of any issue of fact. In such appeal this court will assume that all questions of fact have been properly decided by the trial court, and will only determine whether or not the judgment entered and the conclusions of law announced are supported by the findings of fact. The appeal in such a case is governed by all of the sections of said chapter 15, including § 7205, and may be from the whole or any part of such judgment.</p> <p>Personal judgment — use plaintiff — nominal plaintiff — use and occupation.</p> <p>2. The trial court found among other things, that the nominal plaintiff herein should recover a personal judgment against the defendants for the use of certain lands for certain enumerated years. Under the findings of fact such nominal plaintiff is entitled to no judgment excepting as might be obtained by the use plaintiff had the action been brought in the name of the said use plaintiff. As it is undisputed that the use plaintiff was not the owner of the land’ during four of the years in question, and had received no assignment of the cause of action, said use plaintiff was not entitled to judgment for the use of the lands for these years, and the nominal plaintiff was not entitled to the judgment entered. Judgment reduced in accordance with the facts stated in the opinion.</p>

<p>Appeal from District Court, Ramsey County; Franh Fish, Special J.</p> <p>Appeal from an order denying a motion for a new trial.</p> <p>Payment is a matter of defense, and must be pleaded and proved, Cochran v. Reich, 91 Iiun, 440, 36 N. Y. Supp. 233; 30 Cyc. 1264-1272; Dry Dock E. B. & B. R, Co. v. North & East River R. Co. 3 Mise. 61, 22 N. Y. Supp. 556; Crawford v. Tyng, 10 Mise. 143, 30 N. Y. Supp. 907; Hummel v. Moore, 25 Eed. 380; Baldwin v. Clock, 68 Mich. 201, 35 N. W. 904; Bannister v. Wallace, 14 Tex. Civ, App. 452, 37 S. W. 250; Pierce v. Hower, 142 Ind. 626, 42 N. E. 223; Barker v. Wheeler, 62 Neb. 150, 87 N. W. 20; Second Nat. Bank v. Eirst Nat. Bank, 8 N. D. 50, 76 N. W. 504.</p> <p>The duty of alleging and proving payment is on the defendant, where such defense is relied upon. Satterlund v. Beal, 12 N. D. 122, 95-N. W. 518; Clark v. Mullen, 16 Neb. 481, 20 N. W. 642; Clark v. Wick, 25 Or. 446, 36 Pac. 165; Earnham v. Murch, 36 Minn. 328, 31 N. WT. 453; Stewart v. Budd, 7 Mont. 573, 19 Pac. 221.</p> <p>A party may introduce and read that part, or those distinct portions of a deposition material and relevant to the issue before the court. First Nat. Bank v. Minneapolis & N. Elevator Co. 11 N. D. 280, 91 N. W. 440; Gussner v. Hawks, 13 N. D. 453, 101 N. W. 898; 13 Cyc. 985 ; 13 Current Law, 1303; Grotty v. Chicago, G. W. R. Co. 95 C. C. A. 91, 169 Fed. 593; 15 Current Law, 1369; Central Coal & Coke Co. v. Penny, 97 O. C. A. 600, 173 Fed. 340.</p>

An order to show cause does not need to run in the name of the state of North Dakota. Such order is not a writ or process. State v. Kerr, 3 N. D. 523, 58 N. W. 27; State v. Thompson, 4 S. D. 95, 55 N. W. 725; Moore v. Kedewa, 13 Neb. 379, 14 N. W. 170; McPherson v. First Nat. Bank, 12 Neb. 202, 10 N. W. 707; Rev. Codes 1905, sec. 7825. The order issued in this case is not a mandamus, but merely an order to show cause why one should not issue.

From a judgment in plaintiff’s favor, and from an order denying a motion for a new trial, defendants appeal. The defendants were not required to equip their engine with the best modern appliances. Shotwell v. Harrison, 30 Mich. 180. They were only required to use such well-known apparatus as experience has shown to be reasonably adequate for the purpose. Holman v. Boston Land & Security Co. 20 Colo. 7, 36 Pac.

An appeal from the District Oonrt for Morton County; Cmwford, Special J. The crime of keeping and maintaining a common nuisance, as defined by the prohibition law of this state, may be committed by one who is in control of the building or place. Such person is in the same class as the “owner” or “agent,” and is responsible. Jensen v. State, 60 Wis. 577, 19 N. W. 374; 21 Am. & Eng. Enc. Law, 1011-1014.

JE. Leighton, J. Action by August Harmening against John M. Howland. ' From a judgment in plaintiff’s favor, defendant appeals. Facts. Action to recover damages suffered by plaintiff by reason of alleged fraud and deceit practised upon him by defendant, concerning the dismissal of a certain contest pending in the United States Land Office, against the land described in the complaint, and upon which land plaintiff made homestead entry under the direction of defendant.

An appeal from tbe District Court for Grand Dorks County; Templeton, J. An entry in tbe judgment docket opposite tbe judgment, of an attorney’s lien, is ineffectual to create tbe statutory lien provided. Rev. ■Codes 1905, § 6293. Attorneys’ liens are creatures of tbe statute, and may only be claimed as by statute provided. Rev. Codes 1905, §§ 6293, 6724; 26 Am. & Dng. Enc.

An appeal from an order of the District Court for Grand Forks County; Templeton, J. The mere fact of the execution of a bond such as is set forth in this action, without showing acceptance and breach, creates no liability against the obligors. The bond is not in conformity with the Code, in that it imposes conditions not recognized by law. 19 Am. & Eng. Enc. Law, 607 — 610; 24 Am. & Eng. Enc. Law, 211.

<p>Upon a motion to dismiss accusations in disbarment because the same are verified upon information and belief only, held:</p> <p>Disbarment proceedings — accusation — verification — positive knowledge — in part — sufficient.</p> <p>(1) Where the verification is in part made upon positive knowledge, it is a sufficient compliance with § 507, Rev. Codes 1905, requiring such an accusation to be “sworn to by the person making it.”</p> <p>Disbarment proceedings — inherent power of court — discretion.</p> <p>(2) A disbarment accusation presented concerns a matter within the inherent powers of the court; and if the accusation, in the discretion of the court, is deemed sufficient to justify investigation, the proceedings so entertained will not be dismissed where the verification is not made entirely upon positive knowledge of the facts sworn to.</p> <p>Motion — dismissal — answer — demurrer.</p> <p>(3) Motion to dismiss is denied, and the accused directed to serve and file his answer or demurrer to the accusations within thirty days.</p>

<p>Appeal — record — transmission — notice — brief and abstract — filing — time — merits.</p> <p>1. Appellant failed to transmit the record on this appeal to this court. Notice was served on him, requiring him to do so within twenty days. He failed to have the record transmitted or abstract or brief filed or served; whereupon a motion was made to dismiss the appeal. This court granted the motion unless defendant filed the record here, and filed and served abstract and brief not later than March 1, 1913. Subsequent to March 1st another application was made for an extension of time in which to do these things, and denied. Defendant is again before this court, asking an extension of time for the purposes stated. On a brief review of the circumstances stated in the opinion, it is held, that defendant is not in position to ask favors from this court, particularly in view of the fact that on the former applications the one point on which he relied for a reversal was considered and found to he without merit.</p> <p>Remittitur — filed — review — jurisdiction.</p> <p>2. When a remittitur has gone down from this court, and has been filed in the trial court, under all ordinary circumstances this court has lost jurisdiction of the case, and cannot review its decision.</p>

Action against principal and guarantors upon a contract of sale, for the breach of the same. Judgment for plaintiff. Defendants (guarantors) appeal.

Judgment against plaintiff as surety, on account of default of plaintiff’s principal, has no effect upon the defendant. Rodini v. Lytle, 52' L.R.A. 165, and note. Payment made to defendant by the county treasurer must have been made unlawfully and without authority. Rev. Codes, §§ 2461, 2489,. 2463, 6107-6110.

<p>Appeal — default — order — excuse — penalty — attorney’s fees — discretion «— abuse of — taxable costs.</p> <p>Plaintiff brought action for $1,125. Defendant counterclaimed for $1,600. Judgment entered in favor of defendant for amount of counterclaim upon the failure of plaintiff to appear at time of trial. Application to be relieved from such default judgment was made under § 6884, Rev. Codes 1905, and allowed, but upon condition that plaintiff pay to defendant the sum of $500. Eeld, that upon an appeal wherein the correctness of the order relieving plaintiff’s default is not questioned, this court will consider only whether the terms imposed are just. If the trial court finds that the plaintiff has excused his default, the terms imposed should not be in the nature of a penalty upon plaintiff. If he has not excused his default, his application should have been denied. The sum of $500 was allowed upon the theory that defendant had been put to the expense of a trip to Cuba, costing him $300, had incurred the sum of $150 expense for attorney’s fees, and for $50 taxable costs. Eeld, for reasons stated in the opinion, that the expenses of the trip to Cuba were in no manner chargeable to the default of plaintiff, and that the allowance of the said attorneys’ fees and costs is excessive and an abuse of discretion. Under all the circumstances of the case anything allowed over the sum of $100 was an abuse of discretion of the trial court. Judgment reduced to said sum of $100.</p>

Statement by Spalding, Oh. J. This action was brought in the district court of Burleigh county, in the name of the state on the relation of the attorney general, and S. F. Knight, against the secretary of state, state treasurer, state auditor, as the commissioners of public printing, for the state, for the purpose of enjoining and restraining the defendants from delivering to the Dakota Printing & Stationery Company, a corporation, of Bismarck, North Dakota, any of the…

Crewe, J. . Action to recover damages for loss of property alleged to have been destroyed by fire claimed to have been started by sparks from defendant’s threshing-engine'while said engine was being moved by a third party under a contract. Judgment for Defendant. Plaintiff Appeals. On October 18, 1910, the defendant and respondent engaged one R. L. Kerr to move a threshing engine and separator a distance of some 12 to 11 miles, to Tolley, North Dakota.

In criminal cases, the defendant should not be restricted in a fair and reasonable attempt, on cross-examination, to show the strife and hostility of the witnesses against the defendant, as touching the credibility of such witnesses. 2 Wigmore, Ev. §§ 879-1005; State v. Kent (State v. Pancoast) 5 N. D. 516, 35 L.R.A. 518, 67 N. W. 753; State v. Malmberg, 14 N. D. 523, 105 N. W. 614; State v. Hazlett, 14 N. D. 490, 105 N. W. 617; State v. Hakon, 21 N. D. 133, 129 N. W. 234.

If the plaintiff’s minor daughters had worked out and earned wages, such wages would have belonged, not to her, but to Carl Hintz, their father, and are therefore not a proper element of damages in this case. Rev. Codes 1905, § 4092; Am. Dig. Century ed. cols. 2471, 2480, §§ 4466, 4475; Hanson v. Boyd, 161 H. S. 397, 40 L. ed. 746, 16 Sup. Ct.

From an order of the District Court for Nelson County; Templeton, J., denying judgment non obstante veredicto, defendants appeal. The legal relationship of the parties was that of principal and factor. The defendants as plaintiff’s agents, upon compliance, in good faith, with plaintiff’s directions, were entitled to payment for advances and commissions.

ey, J. It is not incumbent upon tbe shipper of grain to show actual leakage in transit, or to show the actual means of bis loss or shortage. Miller v. Northern P. R. Co. 18 N. D. 19, 118 N. W. 344, 19 Ann. Oas. 1215. A common carrier is an insurer of tbe safety and delivery of tbe goods be agrees to carry. Zink v. Labart, 16 N. D. 56, 110 N. W. 931. Proof of tbe weight at delivery and,at destination are sufficient. It is presumed that scales weigh correctly.

This action was brought in 1907 to quiet title to sec. 13, in township 138, North of range 106 West.

Action in equity to quiet title to real property and have declared void an administrator’s sale thereof, alleged to have been fraudulently procured. From an order sustaining a demurrer to the complaint and directing the entry of judgment for defendant, plaintiffs appeal. This is an appeal from an order sustaining a demurrer to a complaint and from a judgment dismissing an action.

Action against a sheriff to recover damages for his failure to levy upon certain property under a writ of attachment. The defendant alleged that said property was exempt under the statute. Verdict and judgment for plaintiff. From an order granting defendant’s motion for a new trial, plaintiff appeals. This is an appeal from an order of the district court of Ward county, granting the defendant’s motion for a new trial.

<p>Judgment of dismissal — supplemental complaint — motion for leave to file —moot question — appeal.</p> <p>After entry of judgment dismissing an action, the question of the action of the trial court in denying a motion for leave to file and serve a supplemental complaint, made prior to entry of judgment, becomes a moot question, and this court will not determine an appeal from such order.</p>

All appeal from tbe District Court for Ramsey County, Winchester, Special J., from an order vacating an injunctional order. The amount of tbe bonds sought to be voted must be stated definitely in the resolution, notice, and ballot. Stern v. Fargo, 18 N. D. 289, 26 L.R.A.(N.S.) 665, 122 N. W. 403. There is no distinction between the statements, “not exceeding” and “not to exceed,” referring to the amount of the bond, and neither is sufficiently definite. Ibid.; State ex rel.

Action to recover damages caused by the alleged unauthorized act of plaintiff’s agents, defendants in this action. From an order overruling defendant’s demurrer to the complaint, defendants appeal. This is an appeal from an order overruling a demurrer to a complaint.

Cowan, J. From a judgment in defendants’ • favor, dismissing the action, plaintiff appeals. The objections to the evidence contained in the depositions yere • not well tafeen. No exceptions having been filed prior to the time of trial, only objections which went to the competency and relevancy of the testimony could be urged. Rev. Codes, § 7288; Anderson v. First Nat. Bank, 6 N. D. 497, 72 N. W. 916; Ueland v. Dealy, 11 N. D. 529, 89 N. W. 325.

A. Pollock, Sp. J. From an order overruling a demurrer to tbe complaint, defendants, appeal. In election-contest eases, there is no provision of law authorizing a stay of proceedings, or a supersedeas of the judgment, or a suspension thereof. Eev. Codes, §§ 696-700; Fylpaa v. Brown County, 6 S. I). 634, 62 N. W. 962; Jayne v. Drorbaugh, 63 Iowa, 711, 17 N. W. 433; Fawcett v. Pierce County Super. Ct. 15 Wash. 342, 55 Am.

Appealed from tbe District Court for Billings County, Nuchols, J. Nothing except errors appearing on the judgment roll can be reviewed in the Supreme Court, without a proper statement of the case specifying facts for review. Brandenburg v. Phillips, 18 N. D. 200, 119 N. W. 542; Farmers’ & M. Nat. Bank v. Davis, 8 N. D. 83, 79 N. W. 998; Ricks v. Bergsvendsen, 8 N. D. 578, 80 N. W. 768. Action may be brought in name of grantor, for the benefit of the real parties in interest.

No disaffirmance of the alleged fraudulent contract or notice rescission has ever been made. To be relieved from fraud, one must rescind. N. D. Rev. Codes, § 5380; Sonnesyn v. Akin, 14 N. D. 248, 104 N. W. 1026; Higby v. Whittaker, 8 Ohio, 198; Walters v. Miller, 10 Iowa, 427; Melton v. Smith, 65 Mo. 315. The intention of rescind must be made evident.

From a judgment of the District Court for Stutsman County, Coffey, J., defendant appeals. The weight of the testimony in a given case depends quite as much upon the character of the witnesses as upon their number, and upon cross-examination it is competent to go fully into the character, habits, and antecedents of a witness, as bearing upon his credibility.

A. Q. Burr, J., sitting by request. Defendant was convicted of the crime of murder in the second degree, and appeals. The information in this case is defective, in that it contains mere recitals, instead of positive and direct allegations of fact, and defendant’s demurrer should have been sustained. State v. Trueblood, 25 Ind. App. 437, 57 N. E. 975; Bassett v. State, 41 Ind. 303; State v. McIntyre, 19 Minn. 93, Gil. 65; State v. Belyea, 9 N. D. 353, 83 N. W. 1.

Statement by Spalding, Oh. J. This action is one to recover $210.67 on two causes of action: First, for material and labor furnished in the performance of work under a contract for plumbing, etc., $85.67; the second, for $125, the amount of profit claimed by plaintiffs to have been lost because defendant refused to permit them to fully perform the contract.

Action to recover damages for death by wrongful act. Verdict and judgment for plaintiff. Defendant appeals. This action is brought by David J. Rober, the father of, and as the administrator of the estate of, Alfred J. Rober, deceased, for the killing of the said Alfred J. Rober on the night of the 31st day of December, 1909, at Mandan, North Dakota. The defendant made the usual motion for a directed verdict and a motion for a new trial.

Tbe action was in tbe district court for trial, regardless of wbat bad occurred in justice’s court, because tbe appeal was taken upon questions of botb law and fact, and tbe notice of appeal was a waiver of mistakes in tbe justice’s court. Rev. Codes 1905, § 8509. It was not an appeal upon questions of law alone. Tbe notice of appeal does not specify tbe errors of law complained of; and on sucb appeal only sucb questions as are specified as error can be reviewed.

Original application to the Supreme Court.for a writ of mandamus. Alternative writ issued, but dismissed after a hearing on the merits.

Tbe nominal obligee in the bond involved in this case is the state; but, the real obligee and the person for whom the law required the bond to be given is anyone who suffers on account of the breach thereof. Therefore, the plaintiff having been damaged, he becomes the real party in interest. Rev. Codes 1905, § 2247. The bond is given for the benefit of persons dealing with the warehouseman. State ex rel.

<p>Original application for a writ of certiorari.</p>

Davis, I.. From a judgment in plaintiff’s favor, defendant appeals. At the time of the claimed assault and arrest of the plaintiff, the relation of carrier and passenger had ceased between defendant and plaintiff, and the defendant, at such time, owed the plaintiff no duty that might arise out of such relationship. Ware v. Barataria & L. Canal Co. 15 La. 169, 35 Am. Dec. 201.

Statement of Facts. The plaintiff and respondent is a domestic corporation. Held: issued, or sold by plaintiff by the unanimous consent of all its stockholders in writing, or had been forfeited or sold by plaintiff for nonpayment of assessments; that the transfer of such stock to defendant, in return for said promissory note, is prohibited by the Constitution and statutes, and was unlawful and void; that on the…

Motion to review retaxation of costs. Defendant and intervener appeal. Statement by Bruce, J. This is an appeal from an order of the district court of the tenth judicial district, sustaining a retaxation of costs by the clerk of that court under § 7186, Bev. Codes 1905. The bill of costs, as retaxed, was: Costs in District Court. Sheriff’s fees ................................

Statement of Facts. This is an action brought January 20, 1910, to vacate a foreclosure sale by advertisement of a second mortgage given by Claude Smith Bailey, the plaintiff herein, upon the N. E. quarter of section 19, in township 163 N., range 83 W., in Bottineau county, and to he allowed to pay such mortgage. It is here for trial de novo.

From a judgment in plaintiff's favor, defendant, The Northern Trust Company, appeals. The bank purchased the warrant, placed it on its books as a proper •credit, and it could not be charged back. Such transaction was closed, and it constituted payment. Bryan v. First Nat. Bank, 205 Pa. 7, 54 Atl. 480. A sale is shown where a cheek is accepted as cash, and amount checked out, and pass book afterwards written up without charging back the check. Taft v. Quinsigamond Nat.

Mandamus by the State on relation of Luther E. Birdzell, Erank E. Packard, and Geo. E. Wallace, members of the North Dakota tax commission, against Carl O. Jorgenson, as State Auditor. Statement by Bruce, J. This is an application to the supreme court for a writ of mandamus, and an appeal to its original jurisdiction.

W. Buttz, J. From a judgment in plaintiff’s favor, and from an order denying a motion for a new trial, defendant appeals. The burden was upon plaintiff to establish that the defendant failed to use ordinary care to have on hand a supply of suitable blocking. Cregan v. Marston, 126 N. Y. 568, 22 Am. St. Rep. 854, 27 N. E. 952.

Action to set aside a real estate mortgage. Judgment for the plaintiff, defendant appeals. Statement by Bruce, J. This case comes before us for a trial de novo under the Newman act. The complaint, dated February 24, 1911, alleges that on the 21st day of December, 1908, through fraud and coercion, duress and undue influence, the plaintiff executed to the defendant a mortgage on a quarter section of land.

From a judgment of tbe District Court for Foster County, Coffey, The plaintiff should not have been permitted to give his conclusions to the jury that the buggy was all right. American Soda Fountain Co. v. Hogue, 17 N. D. 375, 17 L.R.A.(N.S.) 1113, 116 N. W. 339. Natural or imminent dangers do not necessarily follow or result from the use of an automobile. Expressions of such character by the court in its charge to the jury are prejudicial error.

From orders denying dismissal, defendant appeals. An appeal from District Court for Cavalier County, Allen, Special J. The defendant’s motion to dismiss the action should have been granted, as a matter of right. The statute is mandatory. Rev. Codes 1905, § 6999; Lambert v. Brown, 22 N. D. 107, 132 N. W. 781. The court erred in allowing plaintiff’s motion to amend his complaint. The mere order allowing an amendment is of no effect until it is complied with.

L. Nuchols, J. From a judgment denying a peremptory writ of mandamus, plaintiff appeals. If a purchaser, at forced sale, is also a creditor having a prior lien to that of the redemptioner, other than the judgment (or lien) under which such purchase was made, the amount of such other lien, with interest, must also be paid by the redemptioner. There is no exception, and the statute must be strictly complied with. State ex rel.

<p>National banking association — taxes — personal — capital stock — shares — assessment.</p> <p>1. Sections 24-26, 39 and 44, of chapter 132, Laws of 1890, considered and construed.</p> <p>Held, under said statutes that a national hanking association is neither authorized nor required to pay a personal tax on its shares of capital stock which has been assessed against the individual owners of such shares.</p> <p>Taxes — collection — distraint — taxing officers — concurrent action ■— equity -— action — real party in interest.</p> <p>2. Where such taxes remain unpaid, and it is alleged that the county treasurer is about to distrain the goods and chattels of the individual owners of such shares, and sell the same in satisfaction of said taxes; and where it is further alleged that, by reason of the concurrent action of the taxing officers, said shares of stock were illegally and purposely overassessed and unequally assessed, — held, that an action in equity will not lie in behalf of the bank whose shares of stock have been so assessed to restrain the collection of said tax. Under said statute the bank is not the real party in interest. Cummings v. Merchants’ Nat. Bank, 133 U. S. 153, 25 L. ed. 903, distinguished.</p> <p>Note. — The authorities on the question of state taxation of shares of stock in national banks are collated in notes in 45 L.R.A. 743, 3 L.R.A. (N.S.) 584; and 7 L. ed. U. S. 939.</p> <p>Courts — equity — personal taxes — collection — restraint — assessments — • remedies — individual taxpayer.</p> <p>3. Held further, that resort cannot be had to a court of equity to restrain the collection of a personal tax alleged to be illegal in part by reason ot an intentional overassessment and unequal assessment, in a case where the taxpayer has neglected to avail himself of the statutory remedies especially provided for such an abuse of authority on the part of the taxing officials.</p>

<p>Appeal — board county commissioners — board equalization — assessments — judicial.</p> <p>Under § 1927, Revised Codes 1895, an appeal will lie from a decision of the board of county commissioners made while equalizing and correcting assessments in a controversy then pending before them and judicial in its character.</p> <p>Heal estate — national banks — capital stock — assessments — individual shareholders — equalization — taxation — excessive — double.</p> <p>Certain real estate belonging to a national bank, and in which a portion of its capital stock was invested, was assessed to the bank as other real estate in the district was assessed. At the same time the shares of stock in said bank were assessed to the individual shareholders, and, in equalizing the assessment of said shares and in fixing their value, the board of county commissioners refused to deduct from the capital of the bank the amount invested in real estate. Held, that such action constituted neither excessive nor double taxation.</p> <p>Note. — For the authorities on the question of state taxation of shares of stock in national banks, see notes in 45 L.R.A. 743; 3 L.R.A.(N.S.) 584; and 7 L. ed. U. S. 939.</p>