Volume 26 — North Dakota Reports

From an order of the District Court for Billings County, Nuchols, Special Judge, presiding, denying new trial, plaintiff appeals. The court’s charge upon the question of damages is clearly erroneous. Punitive damages may be recovered without the showing of actual malice. Penal Code 1905, § 9524; Rev. Codes 1905, § 6562; Shoemaker v. Sonju, 15 N. D. 518, 108 N. W. 43, 11 Ann. Cas. 1173; Fotheringham v. Adams Exp.

From an order of tbe District Court for Ward County, Leighton, J., defendant appeals. Tbe function of a motion for judgment on tbe pleadings is substantially tbe same as that of a demurrer. 23 Cyc. 169; Botto v. Vandament, 61 Cal. 332, 7 Pac. 753; Finley v. Tucson, 7 Ariz. 108, 60 Pac. 872.

Statement by Bkuce, J. This is an application for a writ of habeas corpus. It is an attempt by means of this writ to retry in this court, and within two months, issues which have already been thoroughly tried and considered on a similar writ by the judge of the third judicial district. No new facts or change of circumstances are shown.

<p>Appeal — dismissal — appellant — right to dismiss.</p> <p>1. An appellant cannot, as a matter of right, dismiss his own appeal.</p> <p>Dismissal — without prejudice — equity — mistake — inadvertence.</p> <p>2. The supreme court will not, except upon a showing of inadvertence or mistake or some other reason which may entitle the petitioner to equitable consideration and to a special order, allow a dismissal of an appeal without prejudice.</p> <p>Action — real property — possession — judgment — stay of proceedings — appeal — new trial — motion — laws — emergency clause.</p> <p>3. Where, however, in an action to recover the possession of real property, judgment was rendered for the plaintiffs, but the district judge in open court, and on the 28th day of March, announced that an order would be entered staying all proceeding's on the part of the plaintiffs except the entry of judgment, and on the 2d day of April, 1913, plaintiffs entered such judgment, and on the 3d day of April, 1913, such order, staying the proceedings was entered, but on the 2d day of April, 1913, and one day prior to the formal entry of said stay order, the plaintiffs took possession of said premises, and on the 9th day of April, 1913, the defendant obtained an order restraining the plaintiffs from in any way interfering witii tlie defendant’s possession, but, prior to obtaining such order and in order to obtain the same, took an appeal to the supreme court from the judgment formerly entered during such proceedings, and at such time it being understood by counsel for the respective parties that such appeal could be taken under the provisions of chapter 131 of the Laws of 1913, and the evidence tends to show that on account of the necessity for the in-junctional proceedings and the understanding that such appeal should be taken subject to such act of 1913, the defendant neglected to make a motion for a new trial, which under the former statutes and holdings of this state would have been necessary in order to review the evidence upon such appeal, and it also appearing that the act of 1913 was approved on March 13, 1913, but having no emergency clause thereto did not take effect until July 1, 1913, held, that the supreme court may issue an order dismissing such appeal without prejudice to a second appeal from the same judgment or to take advantage of whatever rights are secured by chapter 131 of the Laws of 1913.</p>

Mandamus by the State on relation of F. C. Heffron, Assistant Attorney General of State of North Dakota, against The District Court for the County of Stark in the Tenth Judicial District of the State of North Dakota, and the Hon. K. E. Leighton, acting Judge for said District Court in the action in said District .Court entitled, “The State of North Dakota, Plaintiff, vs. Charles Nolan, Defendant.” Statement by Beuce, J. This is an application for a writ which shall command…

J. A. Coffey, Judge. From an order vacating a judgment and sentence dated February 13, 1908, wherein the above-named defendant was sentenced to ninety days in jail and to pay a fine of $200. The judgment is regular upon its face, and the court had jurisdiction of the person and subject-matter, and such judgment is valid. State v. I-Ieiser, 20 N. D. 357, 127 N. W. 72. The judgment cannot be attacked by matters outside the record.

Action to compel the specific performance of a contract for the purchase and sale of real estate, and to acquire the title to said property. Judgment for plaintiff. Defendants appeal. Statement by Bbuce, J. This is an action to compel the specific performance of a contract for the purchase and sale of lots 2,- 3, and 4 of the original town plat of New Rockford, Eddy county, and to acquire the title to said property.

Statement of Facts. This is an appeal from an order of the district court of Ward county, enjoining the defendant from maintaining a bridge across the Mouse river, a short distance northwest of the city of Minot, and directing the destruction of such bridge if not removed within twenty-four hours after the granting of the order.

<p>Motion to dismiss an appeal from a judgment of tbe District Court, Kidder County; Winchester, J.</p>

<p>County auditor — fees — payment county treasurer — county commissioners — resident — citizen — taxpayer — relator.</p> <p>1. When a county auditor retains fees -which belong to the county, and fails to account for them and pay them to the county treasurer, and the board of county commissioners neglects and refuses on demand to adjust the acount of such fees and determine the amount thereof as required by § 2430, Eevised Codes of 1905, a resident, taxpayer, and citizen of the county is qualified to act as a relator in proceedings in the name of the state to compel action by the county commissioners.</p> <p>County commissioners — adjustment, of fees — duty — ministerial — mandamus.</p> <p>2. The adjustment of such fees by the county commissioners when not paid into the county treasury is a ministerial duty, and mandamus will lie to compel them to audit or adjust the same, but will not lie to compel a determination of any particular sum due or not due the county from the auditor.</p> <p>County officials — criminal prosecutions — public duty — remedy — mandamus.</p> <p>3. Neither the criminal prosecution, nor the removal of county officials who fail to perform their duties, furnishes an adequate remedy to the public or to taxpayers of the county to which funds unaccounted for belong, and hence are not the other adequate remedies which inhibit the maintenance of proceedings to mandamus the commissioners to adjust such accounts.</p> <p>Action — state’s attorney — fees — collection.</p> <p>4. As to whether the state’s attorney of a county can bring an action against the auditor, to collect fees retained by him which belong to the county, without being directed so to do by the board of county commissioners, is not decided.</p> <p>‘ County auditor — salary — property — valuation.</p> <p>5. By chap. 70, Laws of 1907, fixing the salary of county auditors, the different counties are classified with reference to the assessed valuation of the property in the counties of each class, and this statute reads that no county auditor shall receive more than - dollars for his personal services in any one year, the amount depending on the valuation of the property in his county. Held that this enactment fixes • the salary of the county auditor at the sum named as applying to the class in which his county belongs.</p> <p>Salaries — fees — auditors — accounting.</p> <p>6. Chapter 70, supra, was enacted to fix the salaries of all the county auditors of the state, and relates to that subject alone, and provides that all moneys received as fees for certifying to abstracts or deeds in excess of the salary as thereby limited shall be paid by the comity auditor, at the end of each month, into the revenue fund of the county. Held that this requires an accounting by1 the auditor, at the end of each month, of such fees, and that if the amount exceeds his salary for the month it is his duty to pay the excess into the revenue fund of the county.</p> <p>Taxes — payment — real property — transfer — certificate.</p> <p>7. Chapter 219, Laws of 1907, was enacted for the purpose of enforcing the payment of taxes before the transfer of real property, by requiring a certificate of the county auditor as to the facts, before deeds, with certain exceptions, are entitled to record, and as an incidental matter provided for the fee to be collected by the county auditor for such certificate, and that the auditor might retain such fee as compensation for making his certificate. Held that in view of the fact that chapter 70, supra, requiring such fees to be turned into the county treasury, was enacted by the legislature subsequent to the enactment of said chapter 219, the history of the legislation on the subject, and other considerations set forth in the opinion herewith, the requirements of chapter 70 control; and such fees belong to the county, and it is the duty of the county auditor to account for the same monthly and turn any sum in his hands received therefor in excess of his salary for the month into the county treasury.</p> <p>Pees — auditors — salary.</p> <p>8. The provision regarding turning such fees into the county treasury, found in chapter 70, is construed to require such fees received in excess of the salary fixed for the class of counties to which any particular county belongs to be turned into the county treasury, and not, as contended, that each auditor is entitled to retain such fees to an amount equaling the salary provided for the counties embraced in the maximum class.</p> <p>Officers — custom — fees — not controlling.</p> <p>9. While in some cases a course of conduct indicating a common understanding by administrative officers as to the meaning of a statute, when they have followed a usage which has been acquiesced in by all parties concerned for a long period of time, may be entitled to weight in determining its real meaning, it is held, in view of the legislation on the subject and the facts in this case, that such understanding and usage on the part of auditors on a subject in which they are personally interested, and in the face of the denial by appellant that there has been such a custom or construction of the statute on the part of at least some of the auditors, is not controlling and would not justify the court in so holding.</p> <p>Legislature — policy — officers — salary — fees — legislative intent — doubts — public.</p> <p>10. Where the policy of the legislature has been to place county officials on a salaried basis and to turn all fees into the county treasury, such fees belong to the county unless the statute shows a clear and plain legislative intent to grant them to the salaried officers; and doubts should be resolved in favor of the public.</p> <p>Statutes — subject — conflict — other statutes.</p> <p>. 11. A statute which deals with one subject only will ordinarily control in case of conflict between it and a statute dealing with the same subject only incidentally, and having some other main object.</p> <p>County commissioners — auditor — fees — mandamus — premature.</p> <p>12. The county commissioners having undoubtedly entertained in good faith the opinion that the fees in question 'belonged to the auditor, and for this reason having refused to order suit brought to recover anything due the county, this court will not assume that, when advised of the law and the duty of the board to make an adjustment with the auditor, that the auditor will refuse or fail, if anything is found due the county, to pay the same, or that in the event that he does so refuse the board will neglect to order the state’s attorney to bring suit therefor; hence it is held that to mandamus the board to bring suit at this time would be premature, even if mandamus will lie against the board to compel such order.</p>

Affirmed as to one appellant and reversed as to. the other. Punitive damages cannot be awarded against the defendant company, and only compensatory damages if any should be given against defendant Giddings. Doerheofer v. Shewmaker, 123 Ky. 646, 97 S. W. 7; Georgia R. & Electric Co. v. Davis, 6 Ga. App. 645, 65 S. E. 785.. Punitive damages are not matter of right or compensation, but are allowed in proper cases as a punishment or deterrent.

Judgment for defendant. Plaintiff appeals. Statement by Beuce, J. On August 6, 1900, plaintiff and defendant executed a statutory bond of one Prank Miller as guardian of Mary J. Miller, minor, under appointment of tbe county court of Nelson county, said bond being conditioned, among other things, that tbe said Miller should well and truly account for and pay over tbe property and estate of said ward when and as it should become bis duty so to do, and when and as be should be…

Tbe bank beld tbe contract merely as security, and, upon payment of tbe amount due, tbe plaintiff would be entitled to a reassignment of tbe contract. Fifer v. Fifer, 13 N. D. 21, 99 N. W. 763. Forfeitures are only sustained when tbe parties bave contracted therefor. Bennett v. Glaspell, 15 N. D. 245, 107 N. W. 45.

When a party moves for nonsuit the grounds of the motion must be clearly stated, and no other grounds can be considered by the trial court in acting upon the motion, or by the appellate court in reviewing the order. Shain v. Forbes, 82 Cal. 5YY, 23 Pac. 198; First Nat. Bank v. Laughlin, 4 N. D. 402, 61 N. W. 4Y3; Tanderup v. Hansen, 8 S. D. 365, 66 N. W. 10Y3.

Polloclc, J. Erom a judgment in plaintiff’s favor and from an order denying defendant’s motion for judgment non obstante, or for a new trial, defendant appeals. It does not appear that the servants of the defendant were acting within the scope of their employment as such, at the time of the injury to plaintiff. They were acting as independent contractors, upon special work in their own interests.

<p>Railway company — location of right-of-way — completion of grade for ties ■and rails — plat and profile — approved hy secretary of interior.</p> <p>A definite location of the right of way of a railway company which will entitle it to the benefits of the act of Congress of March 3, 1875, granting lands to railroads, is made hy the completion of the grade ready for the ties and rails which' has been preceded by the approval of a plat and profile of such road by the Secretary of the Interior, even though there is no proof that such plat was ever filed in the land office of the district in which the land is situated.</p>

The homestead law confers the right of possession upon the entry-man when the entry is made. 32 Cyc. 833; Tiernan v. Miller, 69 Neb. 764, 96 N. W. 661; Marquez v. Erisbie, 101 IT. S. 473, 25 L. ed. 800. One in undisputed possession of such land with intent to obtain title is deemed the owner as against everyone except the government.

<p>Appeal from District Court, La Moure County, J. A. Coffey, J.</p> <p>From a judgment in plaintiff’s favor, and from an order denying a motion for a new trial, defendant appeals.</p> <p>Tbe question of tbe negligence of tbe village in permitting tbe bole to remain in tbe sidewalk was one for tbe jury, and not for tbe court to assume, as a fact. Tbe matter was in dispute, in tbe evidence: Bauer v. Dubuque, 122 Iowa, 500, 98 N. W. 355.</p> <p>Negligence is not presumed from tbe mere fact that injury follows some act. Damages in cases like this one are compensatory only. Missouri, K. & T. E. Co. v. Hannig, 91 Tex. 347, 43 S. W. 508; Texas C. K. Co. v. Brock, 83 Tex. 310, 31 S. W. 500; St. Louis Southwestern E. Co. v. Smith, — Tex. Civ. App. —, 63 S. W. 1064.</p> <p>Damages, by way of compensation for future medical aid, are not allowable. Nichols v. Dubuque & D. E. Co. 68 Iowa, 732, 28 N. W. 44, 3 Am. Neg. Cas. 370.</p> <p>Tbe damages awarded are so excessive as to clearly indicate that they were awarded under tbe influence of passion and prejudice. Damages, in such cases, should be awarded fairly and justly, to compensate for tbe loss and injury. Kennedy v. St. Paul City E. Co. 59 Minn. 45, 60 N. W. 810, 12 Am. Neg. Cas. 154; Orleans v. Perry, 24 Neb. 831, 40 N. W. 417; Johnson v. St. Paul City E. Co. 67 Minn. 260, 36 L.E.A. 586, 69 N. W. -900, 1 Am. Neg. Eep. 93; Bennett v. E. W. Backus Lumber Co. 77 Minn. 198, 79 N. W. 683; Evans v. Iowa City, 125 Iowa, 202, 100 N. W. 1112; Hoffman v. North Milwaukee, 118 Wis. 278, 95 N. W. 274; Ery v. Great Northern E. Co. 95 Minn. 87, 103 N. W. 733, 18 Am. Neg. Eep. 495; Northrup v. Haywood, 99 Minn. 299, 109 N. W. 241; South Omaha v. Fennell, 4 Neb. (Hnof.) 427, 94 N. W. 632; Chicago, B. & Q. E. Co. v. Krayenbubl, 70 Neb. 766, 98 N. W. 44.</p> <p>Tbe evidence as to tbe necessity for future medical treatment, and as to tbe cost of same, is simple, and was a proper element of damages to submit to tbe jury, and tbe charge of tbe court upon such question stated tbe law correctly, — wben read as a whole. McBride v. Wallace, 17 N. D. 495, 117 N. W.' 857; Buchanan v. Minneapolis Threshing Mach. Co. 17 N. D. 343, 116 N. W. 335; Gagnier v. Fargo, 12 N. D. 219, 96 N. W. 841.</p> <p>Contributory negligence, to avail tbe defendant, must be pleaded, and then proved. There is no allegation or proof of such negligence. Carr v. Minneapolis St. P. & S. Ste. M. B. Co. 12 N. D. 217, 112 N. W. 972.</p> <p>Tbe jury in its sound discretion may award damages for future pains, inconvenience,- and future expenditures. Cole v. Seattle B. & S. B. Co. 42 Wash. 462, 85 Pac. 3; Illinois C. B. Co. v. Cole, 165 Ill. 334, 46 N. E. 275; Western TJ. Teleg. Co. v. Woods, 88 Ill. App. 375.</p> <p>Tbe damages awarded were not excessive. Quinn v. Long Island B. Co. 34 Hun, 331; Morrison v. Broadway & S. Ave. B. Co. 55 Hun, 608, 28 N. Y. S. B. 498, 8 N. Y. Supp. 436; Chicago v. Langlass, 66 Ill. 361; Galloway v. Chicago, M. & St. P. B. Co. 56 Minn. 346, 23 L.B.A, 442, 45 Am. St. 'Bep. 468, 57 N. W. 1058; Howe v. Minneapolis, St. P. & S. Ste. M. B. Co. 62 Minn. 71, 30 L.B.A. 684, 54 Am. St. Bep. 616, 64 N. W. 102; Furnish v. Missouri P. B. Co. 102 Mo. 438, 22 Am. St. Bep. 781, 13 S. W. 1044; Bitner v. Utah C. B. Co. 4 Utah, 502, 11 Pac. 620; International & G. N. B. Co. v. Mulliken, 10 Tex. Civ. App'. 663, 32 S. W. 152, 6 Am. Neg. Gas. 718; Beltz v. Yonkers, 74 Hun, 73', 26 N. Y. Supp. 106.</p> <p>A new trial will not be granted on merely cumulative evidence. State v. Brandner, 21 N. D. 310, 130 N. W. 941; Heyrock v. McKenzie, 8 N. D. 601, 80 N. W. 762.</p>

<p>The voters of Mountrail county authorized the issuance of $50,000 in bonds to provide a courthouse for the county. The county commissioners advertised for bids and made a contract with one Bartleson at $49,660. All proceedings are conceded to be regular, unless it be the three specific objections raised by plaintiffs in this action.</p> <p>Contract — .bond — furnished after signing contract — mere irregularity — does not vitiate contract.</p> <p>1. It is claimed that the contract with Bartleson is void because the bond given by said contractor was not furnished until after the signing of the contract. Seld, that this is a mere irregularity which makes the members of the board liable personally for certain claims against the building, but does not vitiate the contract.</p> <p>Contract — courthouse site — donation — title — presumption.</p> <p>2. It is claimed that said contract is void because the title to the courthouse site had not been vested in the county prior to the signing of the contract. Prom the evidence, however, it appears that one Taylor has agreed to donate a site, and that his offer has been accepted by the board. In the absence of a showing to the contrary, it will be presumed that the board has an enforceable contract with Taylor, and is in a position to obtain title to the site when necessary.</p> <p>Contract — courthouse — commissioners — have complete supervision.</p> <p>3. The third reason for an attack upon the contract is that it contains no provision for lighting, heating, and sewerage systems. Plaintiffs contend that the building without such appliances is useless for courthouse purposes, and that the commissioners intend to supply these additions from other funds not authorized by the voters to be so expended. Held, that under § 2566, Rev. Codes 1905, the county commissioners are given entire supervision of the construction of such courthouse, and the courts will not interfere with such supervision so long as the board is exercising its discretion in good faith. The board in this instance is not expending more than the $50,000 authorized. This court will not anticipate any illegal action upon their part. It is admitted that there is at the present time no electric light plant, no city waterworks, and no sewerage system, in the town where the said courthouse is to be erected, and it rests in the sound discretion of the board of county commissioners to say whether the said courthouse shall contain those appliances at the present time.</p>

Tbe appellant should be subrogated to all tbe rights of tbe state as a preferred creditor of tbe insolvent bank. Rev. Codes 1905, § 7387; Rev. Codes 1905, §§ 6109, 6110. ■ A change in legislation cannot operate to cut off or abridge substantial vested rights. Eaton v. Guarantee Co. 11 N. D. 79, 88 N. W. 1029; James River Lumber Co. v. Danner, 3 N. D. 475, 57 N. W. 343.

<p>Partners — cash sales — collections — accounting.</p> <p>The defendant, with a partner named Allert, owned and operated a drug store for some ten years, at the end of -which time said Allert sold his interest to the two plaintiffs, who were practising physicians. Defendant continued to have entire charge of the business, and at the end of twenty-six months, upon application of plaintiffs, the business was sold by a receiver. Defendant kept a cash book in which each day he entered the cash under the heading “Cash sales,” “Collections,” or “Cash sales and collections.” He also kept other books in which were entered credit sales. Plaintiffs contend that the total amount of cash received by the defendant exceeds by some $4,000.65 the amount of cash disbursed by him. Defendant explains that he entered some of the collections as cash sales, and that in this way he is charged by the plaintiffs with said sums twice. Evidence is examined, and held for reasons fully set out in the opinion, that this explanation is not in accordance with the fact, and that the defendant is liable for the difference in cash as found by the trial court.</p>

Demurrer sustained to information for charging statutory offense of prostitution, and State appeals.

Appeals from the District Court, Eddy County; J. A. Oojfey, J. Judgments were entered in four separate actions, and orders denying new trials were entered in each action. Erom such judgments and orders defendant appeals. It was for the jury to determine under the evidence, who was the owner of the property; and witnesses should not have been allowed to usurp this prerogative by stating mere conclusions.

Frank E. Fisk, J. The defendant was entitled to a change of the place of trial, and to a change of judges, as a matter of right under the law. Kev. Codes 1905, § 9919; State v. Palmer, 4 S. D. 543, 57 N. W. 490. The petition and application must he made before the tidal begins. The trial begins when the jury is impaneled. State v. Kent (State v. Pancoast) 5 N. D. 516, 35 L.K.A. 518, 67 N. W. 1052. The statute providing for such change is mandatory.

William Murray, J. The information charges but one, distinct, specific offense, — that of prize fighting, — and is not duplicitous. Seville v. State, 49 Ohio St. 117, 15 L.RA. 516, 30 N. E. 621; Rev. Codes 1905, § 9089; Rex v. Hargrave, 5 Car. & P. 170; Com. v. Barrett, 108 Mass. 302; Com. v. Welsh, 7 Gray, 324.

Charles M. Cooley, Special Judge. The complaint and the information charge two distinct, separate offenses, and the motion to set aside the information should have been granted. State v. Winbauer, 21 N. D. 161, 129 N. W. 97. No order of the magistrate as to his finding upon the examination is indorsed on the complaint, or entered in his docket. One or the other is essential. State v. Rozum, 8 N. D. 556, 80 N. W. 477; State v. O’Neal, 19 N. D. 426, 124 N. W. 68.

G. Burr, J. From a judgment in defendant’s favor, plaintiff appeals. The deed of assignment is valid. In the absence of fraud, every contract of a debtor is valid against his creditors who have not a lien on the property affected. Eev. Codes 1905, § 6634. A debtor may prefer one creditor to another. Eev. Codes 1905 § 6635. The question as to whether a transfer is fraudulent is, in this state, one of fact, and not one of law. Eev. Codes 1905, § 6640.

An appeal from an order of tbe District- Court for Foster County, Coffey, J., vacating a judgment and granting retrial. There is no provision of statute in this state requiring the judge himself to file his decisions. Comp. Laws 1893, § 5066, as amended; Roblin v. Palmer, 9 S. D. 36, 67 N. W. 949. The provision requiring the findings to be filed within thirty days is directory. Edmonds v. Riley, 15 S. D. 470, 90 N. W. 139.

Tbe defendant substantially answered all pertinent questions submitted by plaintiff under tbe contract, and a settlement having been made, tbe warranty became effective and in force. Substantial compliance with tbe terms of the contract was all that was required of defendant. Sandwich Mfg. Co. v. Trindle, 71 Iowa, 600, 33 N. W. 79, 30 Am. & Eng. Enc. Law, 206.

Defendant was convicted of tbe crime of rape, and appeals. Tbe order of tbe court excluding persons from tbe court room during tbe trial was too restrictive, and it deprived the defendant of a public trial. People v. Murray, 89 Mich. 276, 14 L.R.A. 809, 28 Am. St. Rep. 294, 50 N. W. 995, 9 Am. Grim. Rep. 719. A public tidal is one held in tbe presence of tbe public, or in a place accessible and open to tbe public. Black’s Law Diet. p. 964.

Cowan,. Special J. From a judgment and order in defendant’s favor, plaintiff appeals.. Misconduct of jurors may be proved by tbe affidavit of one of tbe1 jury. Rev. Codes 1905, art. 2, § 7063. During tbe trial, where a juror makes statements about tbe case or about tbe evidence, showing a fixed, settled opinion adverse to tbe losing party, it is ground for a new trial. 20 Cyc. 799, 802; Wigbtman v, Butler County, 83 Iowa, 691, 49 N. W. 1041.

Defendant was convicted of violating tbe provisions chapter of tbe Laws of 1913, relating to tbe sale of snuff, and appeals.

Defendant convicted of the crime of an attempt to commit rape, and appeals. Statement of facts by Bb.uce, J. Tbe defendant was convicted of an attempt to. commit rape, and relies for a reversal on tbe insufficiency of tbe evidence to sustain tbe verdict. Tbe complaining witness and tbe defendant lived on neighboring farms near Cummings, North Dakota. Tbe assaults occurred in tbe borne of tbe complaining witness, and while her husband was away.

A. Coffey, J. Erom an order sustaining a demurrer to the complaint, plaintiff appeals. If the building in question, or any part thereof, was an obstruction upon the street of the city, the council had the right to remove same. Rev. Codes 1905, § 2678, subd. 10; Ludlow v. Fargo, 3 N. D. 485, 57 N. W. 506.

G. Grawford, Spe. cial J. Erom an order sustaining a demurrer 'to the complaint, plaintiff appeals. On demurrer to a replication plaintiff may take advantage of any defects in tbe plea. Townsend v. Jemison, 7 How. 706, 12 L. ed. 880. A bad reply to a bad answer will be held good on demurrer. State ex rel. Metsker v. Mills, 82 Ind. 126; Ashley v. Foreman, 85 Ind. 55; Peden v. Cavins, 134 Ind. 494, 39 Am.

A. Coffey, J. From a judgment in plaintiff’s favor, and from an order denying a motion for a new trial, defendant appeals. An executory oral agreement cannot change, modify, or vary the terms of a written contract. Bev. Codes 1905, § 5328; Mettel v. Dales, 12 S. D. 632, 82 N. W. 181; 11 Am. & Eng. Enc. Law, 582; Fletcher v. Peck, 6 Cranch, 87, 3 L. ed. 162. Evidence of plaintiff, as to value- of the property, incompetent and too remote. Minneapolis Threshing Mach.

The only vital question on this appeal is the negligence of the plaintiff. This question is determined by a consideration of the facts and conditions existing at the time of the accident, of which the plaintiff knew or ought to have known when he acted or omitted to act. Pittsburgh & W. Coal Co. v. Estievenard, 53 Ohio St. 43, 40 N. E. 725; Rush v. Coal Bluff Min. Co. 131 Ind. 135, 30 N. E. 904; 26 Cyc. 1252 — 1254, and note 42; Petaja v. Aurora Iron Min.

<p>Plaintiff is real estate agent; defendant owner of a tract of land containing 2,560 acres situated in Emmons county, North Dakota. Defendant caused to he circulated a poster offering to pay $1 an acre commission to any person who first closed a satisfactory deal. Plaintiff found a purchaser and the sale was made satisfactory to defendant. This suit is for commission of $1 per acre, and defendant claims that sale was not made under the terms of the circular, hut upon a subsequent agreement between himself and plaintiff, whereby plaintiff agreed to receive nothing whatever for his services. Trial was had to a jury and judgment was liad by plaintiff. Defendant appeals and excepts to.the charge given by the court to the jury.</p> <p>Note. — The authorities on the question of the performance of a contract by a real estate broker to find a purchaser or effect an exchange of his principal’s property are collated in a note in 44 L.R.A. 593. And as to when a real, estate broker has earned his commission, generally, see note in 139 Am. St. Rep. 225.</p> <p>Jury trial — charge of court — must he takeri as a whole — mere excerpts not sufficient for reversal.</p> <p>1. The court charged the jury, among other things, as follows: “Did the defendant agree to pay the plaintiff $2,560, or a dollar an acre, for selling the land in question? If you are satisfied that there was such an agreement made, then it is your duty to bring in a verdict in favor of the plaintiff.” Elsewhere in the charge the court went fully into the question of contracts in general, and this contract in particular, and, we think, fully covered that subject. The case will not therefore be reversed upon a mere excerpt from the charge.</p> <p>Charge of court — reversal — mere excerpts.</p> <p>2. The court instructed the jury as follows: “Eor it is for you to say whether or not in this case the plaintiff has established his case, or convinced you jurymen by a preponderance of testimony that there was a binding contract entered into between these parties whereby the defendant agreed to pay the plaintiff $2,560 as commission for the sale of the land in question. If you are satisfied, as I intimated a moment ago, that the plaintiff has proved to your satisfaction that there was such a contract, then it is your duty under your oath to bring in a verdict in favor of the plaintiff.” This instruction was excepted to, that they failed to present to the jury the necessity of the contract being performed by the plaintiff, in that it fails to state that before the plaintiff will be entitled to recover he must first sell the land according to the terms of said contract. This also was a mere excerpt from the charge, and this court will not reverse the judgment when the whole charge fully covers the subject as it does in this case.</p> <p>Charge of court — interest on amount — objection — first made in supreme court — will not be considered.</p> <p>3. It is argued for the first time in this court that the trial court instructed the jury to find interest due to the plaintiff in case he recovered, and that this is error because interest rests in the discretion of the jury. This objection was not incorporated in the exception to the charge, and was not called to the attention of the trial court at the time of the motion for a new trial. Therefore it‘will not be considered upon this appeal.</p>

Original writ of babeas corpus. Statement by Beuce, J. This is an original petition for the issuance of a writ.of habeas corpus, and for an order discharging the petitioner from the custody of the sheriff of Morton county, by whom he alleges that he is illegally detained. The defendant was duly indicted by the grand jury of Morton county on the 3d day of December, 1907. A change of venue was taken to Barnes county, North Dakota.

Tbe verdict was substantially insufficient under the statute, in that no amount of money was therein stated or found, and, on defendant’s objection made upon tbe return thereof by tbe jury, the court should have refused to accept same as the verdict of the jury.

There was no complaint in this case. The complaint in justice court must be sufficient to advise one sued of the nature of the claim, and definite enough to bar another action. McCrary v. Good, 14 Mo. App. 425; Kev. Codes 1905, § 8883. Consent of parties 'cannot create jurisdiction in the court over a siobject-matter not vested in the jurisdiction of the court by the law.

<p>Appeal from tbe District Court for Ward County.</p>

<p>Contracts — meeting of minds — statnte of frauds.</p> <p>Evidence examined, and held, tliat no contract lias been shown between plaintiff and defendant,' the minds of the parties not having met. It is therefore immaterial whether or not the contract was barred by the statute of frauds.</p>

<p>Claim and delivery — redelivery undertaking — substitute for the property— security for money judgment.</p> <p>1. The redelivery undertaking in claim and delivery is not only a substitute for the possession of the property by the plaintiff, but is security for any money judgment recovered.</p> <p>Redelivery undertaking — legislature — intent — purpose.</p> <p>2. The redelivery undertaking in claim and delivery must be construed with reference to the intent of the legislature in providing for it, and the purpose for which it is given.</p> <p>Claim and delivery — two defendants — action mutually dismissed as to one — judgment for plaintiff — sureties not released.</p> <p>3. An action in claim and delivery was brought against two defendants; they furnished a statutory redelivery undertaking, which recited that the defendants were desirous of having the property to which the action related returned to them. They each signed the undertaking. H. and F. at their request executed such undertaking as sureties. At the conclusion of the. taking of the evidence on the trial, counsel for the two defendants moved a dismissal as to one defendant. This was not resisted by the plaintiffs; the record indicates that it was assented to; a verdict was rendered and judgment entered in favor of the plaintiffs, and against the other defendant; held, that the dismissal of the one defendant did not release the sureties from liability upon the undertaking.</p> <p>Claim and delivery — evidence — record — property cannot be returned — judgment for value.</p> <p>4. Where on the record of the trial of an action in claim and delivery, it appears that the property which is the subject of the action cannot be returned, judgment need not be entered for its return or possession.</p> <p>Property sold to others — scattered — cannot be redelivered — money judgment good — sureties liable.</p> <p>5. Where the record in an fendants sold the property;, which consisted of about forty head of live stock, at auction to ten or twelve different purchasers; that some of them resold it to others, and that it was scattered over a wide territory a year before the trial of the action in claim and delivery, — the plaintiff has made out a case sustaining a judgment for money only in such action, and the sureties on the redelivery undertaking are liable on such undertaking, unless they show clearly and explicitly that the property could have been returned to plaintiffs, and opinions of the principals on the undertaking that they could have returned such property at such time are inadequate to overcome the showing made by the plaintiffs, that the property had been sold and scattered, and much of it resold.</p> <p>Kedelivery undertaking — judgment — money — sureties — knowledge of sale — sale prior to trial.</p> <p>6. Evidence examined, and it is was ment in claim and delivery for money only, as against the sureties on the redelivery undertaking, and this is especially so when it is shown that the sureties executed the undertaking on the day of the advertised sale, and knew that it was to be sold, were present at the sale, saw it sold, and made no objection thereto, such sale occurring prior to the trial of the action in claim and delivery.</p>

An appeal from a judgment of tbe District Court of Ward County, Leighton, J. Dabl was Larson’s agent, and bad tbe right to receive payment, and his acts were ratified. If an act is wrong, be wbo consents to it is not wronged by it. Eev. Codes 1905, § 6662. Acquiescence in error takes away the right of objecting to it. Eev. Codes 1905, § 6663. One wbo can, but does not, forbid an act in bis behalf, is deemed to have bidden it. Eev. Codes 1905, § 6666.

The attempted foreclosure of the chattel mortgage was illegal and void. A mortgagee waives his lien by consenting to a sale of the mortgaged property by the mortgagor. Jones, Chat. Mortg. 5th ed. § 465; 7 Oyc. 47. A mortgagee who sells the mortgaged property without foreclosure is guilty of a conversion of the property, and the lien of the mortgage is extinguished. Force v. Peterson Mach. Co. 17 N. D. 220, 116 N. W. 84; Kev. Codes 1905, § 6145.

<p>Three separate actions against the above-named defendants severally were consolidated as to proof, and are decided by this opinion. These actions were begun by the state to compel observance by defendants of chapter 51 of the Session Laws of 1907, prescribing a maximum intrastate freight rate for transportation of lignite coal, and requiring that when a shipment is over more than one railroad, the.entire distance shall be considered as one haul and the freight rate prorated between said carriers.</p> <p>The granting of the writs compelling observance of the statutory rate was opposed under the defense that the statute was void because so low as to be confiscatory of the property of the carriers, and hence violative of the 14th Amendment to the Federal Constitution. This contention was overruled by this court in the opinion a,t 19 N. D. 45, filed in 1909, and writs as asked by the state were ordered to issue. The defendants appealed to the United States Supreme Court, which affirmed said decision without prejudice, but granted defendants permission to “reopen the case by appropriate proceedings, if, after adequate trial” with the rates in force, they should see fit to again present the results under the rates as proof of the confiscatory character of the statutory coal rate. The statutory rate was put in effect, and the railroads are still operating under it. In 1932 they again submitted proof to this court of the receipts for the fiscal year next preceding June 30, 1911, together with proof of expenses chargeable against the lignite coal traffic. Each road has submitted its separate proof and contention that the statutory rate does not yield sufficient revenue to defray the expenses of carriage of this coal, to the effect that the state is compelling its common carriers to transport this commodity for less than cost, and therefore confiscating their property. The proof was taken, in the original proceedings before a the testimony offered, but who was not authorized to make, and who has made, findings of fact or conclusions of law. This court has made separate full finding's of fact, under the proof submitted, as to the effect of the upon each road. It finds: (1) That, as to the Great Northern Railway Company, owing to conditions peculiar to the country traversed by it, the statutory rate yields it a reasonably fair compensation over and above all charg- and expenses against the lignite traffic, and that as to it the statutory rate reasonably compensatory. (2) That, as to the Northern Pacific Railway ■Company, out of total freight receipts for lignite coal, amounting to $58,953, the total cost of transportation, or out-of-pocket costs, together with all fixed overhead expenses apportionable to said lignite traffic, consumed all of said receipts excepting $847, its net profit in the handling of the lignite business for the twelve months in question. That such rate is slightly remunerative, hut in fact noncompensatory, considering the volume of freight carried and' the property of the railroad devoted thereto. (3) That the total Soo line freight receipts from lignite coal hauled during said fiscal year amounted to '$83,670. 'That nearly one half of its entire lignite coal tonnage originated at Wilton, 2,532 carloads of which were hauled only 28 miles to Bismarck and delivered to the Northern Pacific carrier for an average haul by it of 105 miles, upon which the freight rate when prorated as to distance, as required by the statute, has reduced what the Soo carrier would otherwise receive under the statute from 40 cents per ton to 24.5 cents per ton for the 2,532 carloads thus delivered to the Northern Pacific during the year. Under similar connections with the Great Northern at Minot, it has there hauled approximately 500 carloads of lignite coal for an average of 12 miles, realizing therefrom 8.5 cents per ton only, or $1.83 per carload for such haul, delivered to the Great Northern road for an average haul and charge based thereon of 65 miles, from which the Great Northern received $7.53 per carload. These and many other conditions have placed the Soo line at a disadvantage in this traffic. The prorating feature of the statute alone has reduced its freight-receipts on lignite approximately $13,000 below what it otherwise would have received, and nearly that amount under what the same freight carriage would have yielded the Northern Pacific or the Great Northern under usual conditions on .their lines. Its total receipts amount to more than its actual out-of-pocket costs, or actual costs of transportation, but are from $9,000 to $12,000 less than the total costs including fixed and overhead expenses properly chargeable to the ■carriage of this commodity and against the earnings therefrom. That the ■carriage of lignite coal by the Soo line within this state during said fiscal year was not only nonprofitable, but occasioned a loss to it when its fixed expenses apportionable to all traffic are in proper proportion and amount assigned to and charged against the earnings from this commodity.</p> <p>Note. — The authorities on the question of the valuation upon which return or income from intrastate railway rates prescribed by law is to be computed are collated in a note in 57 L. ed. U. S. 1511.</p> <p>As to the reasonableness of state limitation of railroad rates, see note in 44 L. ed. U. S. 417.' And for the elements entering into. determination of reasonableness of railroad rates prescribed by the state for local traffic, see notes in 15 L.R.A. (N.S.) 108, and 25 L.R.A.(N.S.) 1001. And on the question of unconstitutional inequality or discrimination in state regulation of rates, see note in 46 L. ed. U. S. 92.</p> <p>Prom the foregoing epitomized findings of fact it is' held:</p> <p>Freight rate — presumed reasonable — contrary must be shown beyond reasonable doubt.</p> <p>(a) The statutory freight rate is presumed to be reasonable, which presumption continues until the contrary appears, and the rate is shown beyond a reasonable doubt to be confiscatory.</p> <p>Proof — noncompensatory rate — transportation of commodity — insufficiency of proof that rate is confiscatory.</p> <p>(b) Proof that a rate is noncompensatory — that is, while producing more revenue than sufficient to pay the actual expenses occasioned by the transportation of the commodity, but insufficient to also reimburse for that proportion of the railroad’s fixed or overhead costs properly apportionable to such commodity carried — is not sufficient to establish that the rate is confiscatory in law.</p> <p>Nonconfiscatory rate — established how — deficit — interstate freight earnings — profit — reasonable — railroad property — value of.</p> <p>(e) In order to establish such a noncompensatory rate to be confiscatory, it must further appear that any deficit under the rate affects the net intrastate freight earnings materially, and reduces them to a point where they are insufficient to amount to a reasonable rate of profit on the amount of the value of the railroad property within the state contributing to produce such net earnings.</p> <p>Intrastate freight earnings — confiscatory — value of property devoted to such traffic — proportion.</p> <p>(d) To ascertain whether such net intrastate freight earnings are thus confiscatory because unreasonably low, the railroad attacking the legislative rate on such grounds must by proof establish the total value of its property devoted to railroad use and within the state, and then by proof establish the proportion thereof equitably apportionable as producing such net intrastate or domestic freight earnings, after which the reasonableness of the gross net return from intrastate business upon the railroad investment producing it can be determined.</p> <p>Proof of confiscation — intrastate freight earnings — fair pi’ofit — valuation of property so used.</p> <p>(e) Eor the next and final step in the proof of confiscation under the rate, it must further appear either (1) that the net total intrastate freight earnings are insufficient to yield a fair and reasonable return on the fair valuation of the railroad property used to produce such net earnings, and that the commodity in question is carried for less than sufficient to meet all expenses, including out-of-pocket costs and fixed charges; or (2) it must be reasonably certain that the loss on the commodity under the commodity rate attacked reduces the balance of the net intrastate freight earnings to a point where such total net intrastate earnings, including the loss on the commodity rate, fail to yield a fair and reasonable return on the investment, measured under the above rules, upon making of which proof the confiscatory nature of the rate is established.</p> <p>Value of railroad property — fair actual value — reasonableness of rates — computed on actual value.</p> <p>(f) In determining the value of railroad properties, proof of the so-called railroad value is insufficient to establish the fair actual value upon which, as a basis, apportionment of values and reasonableness of rates may be computed.</p> <p>Failure of such proof — value — proportion of property used in such traffic.</p> <p>(g) Measured by the foregoing rules, which seem to be the law as applicable to the facts in this ease, there is a failure of proof on the part of all the carrier defendants, in that the Northern Pacific and Great Northern railroads have offered no proof of the value of their property, or the approximate proportion thereof utilized to produce its domestic earnings; and the Soo, while attempting such proof, has failed to make the proof required by the .Minnesota, Missouri, Arkansas, and Oregon Rate Cases, 230 U. S. 352-560, and other Federal decisions.</p> <p>Failure of proof — presumption — reasonableness of rate — continues — statute valid — intrastate transportation of coal.</p> <p>(h) Under such failure of proof the presumption of reasonableness of the rate attacked continues, and the statute must be held to prescribe a reasonable charge for the intrastate transportation of coal.</p>

All material allegations of the complaint not controverted by tbe answer shall, for the purposes of the action, be taken as true. Rev. Codes 1905, § 6878. A right of way incident to land is an easement. Rev. Codes 1905, §§ 4926-4928. All easements are created by grant. The grant may be direct and express, or certain facts and conditions may .lead to a conclusive presumption that it exists. 10 Am. & Eng. Enc. Law, 409. An easement is a species of real property.

• Appeal by petitioners from an order of the District Court of Botti-neau County, Burr, J., confirming an order of the County Court of said county denying a petition filed by the administrator in and under the direction of the court of the principal administration in the state of Iowa, and in an ancillary administration in said County Court of Battineau County, North Dakota, asking for the sale of real estate in North Dakota, and the transmission of the proceeds thereof for…

The husband is the head of the family and has the right to choose the home, or that place of domicil denominated the homestead, and the actual presence of the wife is not necessary to the inception and preservation of the homestead. Rev. Codes, 1905, § 4076 ; Rosholt v. Mehus, 3 N. D. 514, 23 L.R.A. 239, 57 N. W. 783; Gaar, S. & Co. v. Collin, 15 N. D. 622, 110 N. W. 81.

A. Coffey, J. From a judgment in plaintiff’s favor, and from an order denying a new trial, defendant appeals. ' A new trial should be granted because excessive damages appear to have been given under the influence of passion or prejudice. Partello v. Missouri P. E. Co. 217 Mo. 645, 117 S. W. 1138; Creve Coeur Lake Ice Co. v. Tamm, 90 Mo. App. 202; Chlanda v. St. Louis Transit Co. 213 Mo. 244, 112 S. W. 249.

Fish, J. Where complaining witness in a bastardy case definitely fixes a certain material date, it is improper for the state to try to elicit from the witness her reasons for the fixing of such date. Sprenger v. Tacoma Traction Co. 15 Wash. 660, 43 L.R.A. 706, 47 Pac. 17; Fulton v. Metropolitan Street R. Co. 125 Mo. App. 239, 102 S. W. 47; Zetsche v. Chicago, P. & St. L. R. Co. 238 Ill. 240, 87 N. E. 412.

J. F. Cowan, J. At common law there was no immunity granted a physician from testifying fully as to conversations had with his patients, but the laws of this state have exempted or prohibited physicians from testifying as to information acquired from his patient while in attendance, and which is necessary to enable the physician to properly prescribe. Rev. Codes 1905, § 7304; Wigmore, Ev. § 2380; Greenl.

<p>Tax deed — void — grantee entitled to valid deed — application for — proceedings — regularity.</p> <p>When the grantee in a tax deed receives a void instrument, he is entitled, upon proper application, to the issuance to him of a valid tax deed, providing the proceedings leading up to the same are in all things valid.</p>

<p>Chattel mortgage — foreclosure — payment —' appeal — trial de novo — judgment.</p> <p>In an action to foreclose certain chattel mortgages executed and delivered by defendant to plaintiff, the defense rvas that of payment by the sale and transfer of a'quarter section of land at an agreed consideration. A counterclaim was also alleged for a balance claimed to be düe the defendant from the plaintiff on such purchase price after satisfying such mortgage indebtedness. Plaintiff bank denied such sale and transfer.</p> <p>On a trial de novo in this court the evidence is examined, and it is held that the issues were correctly decided by the lower court in defendant’s favor, with the exception that the amount allowed defendant under his counterclaim was excessive. In this respect the judgment is modified to conform to the evidence, and as thus modified, the same is affirmed.</p>

The statutes provide a method by which boards of health can make and publish general rules relative to the establishment of quarantine, and thereafter, when so provided by such rules, the attending physician, town clerk, or any other official, can order quarantine without a meeting of the board. Rev. Codes 1905, §§ 269, 270) Young v. Black-hawk County, 66 Iowa, 460, 23 N. W. 923.

Frank F. Fish, Special Judge. Before a witness can testify as to value of property, be must sbow himself competent and qualified. There was an entire lack of such showing on the part of the witness Wilkie. Pyke v. Jamestown, 15 N. D. 157, 107 N. W. 359; Guiterman v. Liverpool, N. Y. & P. S. S. Co. 83 N. Y. 365. A witness must show his qualifications before he can give expert testimony.

From an order of the District Court of Stutsman County, Coffey, J., denying an application by garnishee defendants to vacate a judgment taken against them and the principal defendant, for want of jurisdiction in the principal action, garnishee defendants appeal. The trial court was without jurisdiction to enter the judgment, for want of a sufficient affidavit for service of the summons by publication.

seeking to determine the rights of the city and other parties in the streets, alleys, and parks of a portion of Northern Pacific addition to the city of LalVIonre, and to enjoin the defendants from obstructing, closing, and otherwise interfering with the streets, alleys, etc., in such addition, Hon. J. A. Coffey, J. The demurrer of the defendants should have been sustained.