Volume 28 — Minnesota Reports

Action for the conversion of a frame building. The plaintiff, in his complaint, alleges that on and prior to July 29, 1878, plaintiff was owner and entitled to the immediate possession of a frame building, situate on certain described lots in the village of Willmar, in Kandiyohi county and of the value of $600.

Plaintiff brought this action in the district court for Le Sueur county, under Gen. St. 1878, c. 77, § 2, to recover damages for the death of his son, occasioned by the alleged negligence of the defendant. Defendant demurred to the complaint because the action should be brought by an executor or administrator of the deceased. Plaintiff appeals from an order by Macdonald, J., sustaining the demurrer.

Plaintiffs brought this action, under Gen. St. 1878, c. 81, § 24, in the district court for Watonwan county, to recover excessive interest embraced in’the foreclosure of certain land which they had mortgaged to defendant. A demurrer to the complaint was overruled by Dickinson, J., and the defendant appealed. cited Horton v. Maffiit, 14 Minn. 289; Daniels v. Smith, 4 Minn. 117, (172;) Donnelly v. Simonton, 7 Minn. 110, (167;) Standish v; Vosberg, 27 Minn. 175.

Tbe will of Joseph Storer having been presented to the probate ■court of Steele county for probate, by Gardner Storer, one of the executors named therein, its allowance was contested by Martha Elbina .Zimmerman, daughter of the testator. This appeal is taken by contestant from a judgment of.the district court of that county, Buekhami, J., presiding, reversing a decree of the probate court.

John S. Proctor, as administrator of the estate of Harvey Wilson, deceased, presented his account to the probate court of Washington county for allowance. On the hearing, Hiram Wilson and others, heirs of the deceased, objected to the allowance of certain charges for taxes, insurance and repairs on the household goods and homestead of deceased, the widow of deceased having continued and still being in possession of the same. These items were disallowed.

This action was brought in the district court for Meeker county, to have a conveyance made by the plaintiffs to the defendants Campbell and Spooner, as well as a subsequent conveyance by those defendants to defendants Michael J. and Daniel Flynn, declared null and void, or to have the first conveyance, (which was absolute in form,) declared to be a mortgage upon the premises described in it, and for leave to redeem.

Appeal by defendants from a judgment of the district court for the county of Waseca, Buckham, J., presiding, in an action to have certain conveyances by defendants declared void as against creditors. The actual intent to hinder and delay creditors must be found as a fact. Murray v. Cason, IS Mo. 378; Vose v. Stickney, 19 Minn. 367. Whether intent to prevent forced sale and sacrifice is such intent depends on the circumstances and other facts found.

Appeal by plaintiff from a judgment of the district court for Blue Earth county, where the action was tried by Cox, J., acting for the judge of the 6th district.

This action was brought in the district court for Olmsted county, to foreclose a mortgage executed by defendant Knapp to one Eddy, and by the latter assigned to plaintiff. The intervenors filed their complaint, setting up title to the mortgage, and to the note secured thereby, through a prior assignment to themselves.

' Appeal by defendant from an order of the district court for Eice county, Buckham, J., presiding, denying a motion to revise and alter a judgment of the same court, Lord, J., presiding.

Appeal by defendant from an order of the district court for the counties of Stevens, Big Stone and Traverse, refusing a new trial, after a trial before Brown, J., and a jury.

Appeal by defendant Mikelborg from a judgment of the district court for Chippewa county, Brown, J., presiding, entered against the appellant and the sureties on his appeal bond.

<p>Mandamus, directed .to the judge of the municipal court of St. Paul.</p>

Appeal by defendants Husby and others, sureties upon defendant Mikelborg’s bond on appeal from justice court, from the same judgment appealed from in the last preceding case.

Appeal by plaintiff from a judgment rendered by tbe district court of Blue Earth county, Dickinson, J., presiding, reversing a judgment of a justice of the peace.

Plaintiff brought this action in the district court for the county of Redwood, on the bond of defendant Tower as county treasurer. The case was tried by Cox, J., and a jury, and defendants had a verdict. This appeal is brought by defendants from an order granting a new trial.

Appeal by plaintiff from an order of the district court for Washington county, Brill, J., presiding, (acting for the judge of the first district,) sustaining defendant’s demurrer to the complaint.

<p>Mandamus, directed to respondent as commissioner of the land-office of the state of Minnesota.</p>

The defendant was convicted, in the district court for the county of Hennepin, of the crime of uttering a false deed, after a trial by jury, Young, J., presiding, and was sentenced to imprisonment for two years and six months. This appeal is taken from the judgment.

Plaintiffs and defendant entered into an agreement, whereby plaintiffs agreed to sell and convey certain premises in the city of St. Paul to defendant, for a sum agreed upon. This action was commenced in the district court for Eamsey county, to enforce the specific performance of this contract.

Plaintiff appealed to the district court for the county of Washington from the award of damages by the supervisors of defendant, and now appeals to this court from an order by Crosby, J., refusing a new trial. cited Simmons v. St. Paul & Chicago By. Co., 18 Minn. 184; St. Paul d Sioux City B. Co. v. Murphy, 19 Minn. 500.

Appeal by defendant from an order of the district court for Good-hue county, Crosby, J., presiding, overruling a demurrer to the complaint.

Appeal by plaintiff from a judgment entered in the district court for Bamsey county, Brill, J., presiding, in garnishment proceedings, in favor of the garnishee and claimants.

Defendant was brought before the municipal court of the city of Minneapolis, charged with having committed an assault and battery upon-one William B. Morse, and, upon being arraigned for trial, pleaded a former conviction and punishment for the same offence, and offered in evidence the record of the proceedings before the justice recited in the opinion.

Order to show cause why an order, entered by the clerk of this court, under Gen. St. 1878, c. 86, § 21, dismissing the appeal in this action, should not be vacated, and Anna E. Baldwin, administratrix' of the respondent, M. A. Baldwin, deceased, substituted as respondent. The return on the appeal of defendant Bogers was filed on February 14,1881.

Appeal by plaintiff from an order of the district court for Freeborn county, Farmer, J., presiding, sustaining the demurrer of the defendant, the Chicago, Milwaukee & St. Paul Bailway Company, to the complaint.

Plaintiffs brought this action in the district court for Ramsey ■county, and attached the property of defendant. A change of venue was made, by stipulation, to the district court for Rice county, where defendant resides. On motion of defendant, the writ of attachment was dissolved by Buckham, J., and plaintiffs appealed.

Action in ej'eetment commenced in the district court for Scott county.

Appeal by defendant Tenny from an order of the district court for Blue Earth county, Dickinson, J., presiding, denying his motion for judgment on the special findings of the jury, and refusing a new trial. It is a fraud upon creditors for an insolvent to give away his exempt property, and the fraudulent donee acquires no right against the donor’s creditors.

The plaintiffs, being tax-payers and residents of Sibley county, one within, and the others without, the borough of Henderson, in that county, unite in bringing this action in the district court for the county, against the board of commissioners and the county treasurer, the borough and its treasurer, and one Barnard.

Appeal by plaintiffs from a judgment rendered by the district court for Nobles county, Dickinson, J., presiding. The property was held by Lillie L. Bennett, as trustee for the plaintiffs, and it was security for their debts. In case of a running account, the law will apply the payments so as to secure the whole debt. Lash v. Edgerton, 13 Minn. 210; 2 Daniel on Negotiable Instruments, 269; Schuelenberg v. Martin, 2 Fed.

Appeal by defendants from a judgment of the district court for Dodge county, where the action was tried before Brown, J., (acting for the judge of the 5th district,) a jury being waived.

Appeal by defendant from an order of the district court for Faribault county, Dickinson, J., presiding, refusing a new trial.

<p>Evidence — Negligence.—Evidence considered, and held sufficient to sustain a finding that there was negligence on the part of defendant, and none on the part of the person killed at a railroad crossing.</p> <p>Same — Effect of Dazzling Light on the Eye. — The action being for negligence in causing the death of plaintiff’s intestate, by running a locomotive over him at a street crossing, the accident having happened in the dark, immediately after another train, with a bright head-light, -had passed the crossing, held, it was proper, under the circumstances, to admit evidence how long the eye requires, after looking at a brilliant light, to recover its natural power of sight.</p> <p>Damages — Evidence of Deceased’s Business Ability, etc. — In an action under Gen. St. 1878, c. 77, § 2, evidence of the amount of property deceased had acquired, his habits of industry, his ability to make money, and his success in business, is proper as a basis for the damages.</p> <p>Negligence — Want of Sign over Railroad Crossings. — In an action against a railroad company for negligence in running over one at a street crossing, evidence that the company had no sign over the crossing to warn persons approaching of its presence, is proper, although there be no statute or ordinance requiring the company to have such a sign. It is for the jury to say whether the omission to have such a sign is negligence; and it is for them to say whether it contributed to the injury, even where it appears that the person injured was familiar with the crossing.</p> <p>Same — Rate of Speed of Trains. — If ordinary care and prudence, and due regard for the safety of third persons, require engines and trains to be run at a less rate of speed than that limited by an ordinance of the city, the company must observe such care and prudence.</p> <p>Same — Evidence of Usual Rate of Speed of Trains. — When the rate of speed at which the engine causing the injury was running at the time is in controversy, upon the evidence, the plaintiff, to sustain his other evidence on the point, may show that the engines of the company habitually run, under like circumstances with the one in question, at the rate indicated by his other evidence.</p> <p>Same — Precautions taken after an Accident. — Evidence that the company, immediately after an accident at a street crossing, adopted certain precautions to prevent similar accidents, is admissible to prove that such precautions would have been proper át and prior to the accident, and that the omission of them was negligence.</p> <p>Same — Degree of Care required of a Pedestrian. — An instruction that it is not necessarily the duty of a traveller approaching a railroad crossing to stop and listen before stepping upon the track, and that whether it is necessary and proper for him to stop depends on the circumstances of the case, is not erroneous.</p>

Plaintiff’s intestate was employed by defendant as fireman on a locomotive, and was, on August 27,1877, while in defendant’s employ, killed by an accident on defendant’s road. It appeared from the evidence that,, at the place where the accident occurred, there had been a washout the day before, and sand had been washed upon the track.

Defendant was tried in the district court for Winona county, on appeal from justice court, on the charge of having obstructed a public highway. The sole issue on the trial was whether the locus in quo was a public highway. Evidence was introduced to prove that it had been used, repaired and worked as a public highway for six years preceding the offence charged.

Plaintiff leased certain property from one Cutts, and, for rent, was to deliver 1,000 bushels of wheat to the latter. Subsequently, plaintiff assigned this lease to one Donald Melnnis, the latter agreeing to deliver to the former all the wheat raised on the premises, above the 1,000 bushels to be delivered to Cutts, to be applied to the payment of Mclnnis’s indebtedness to plaintiff.

Plaintiff, as assignee of one Ramaley, brought this action in the district court for Ramsey county, to recover possession of certain personal property, which defendant had levied upon and taken into his possession under execution issued against Ramaley. On the trial before Simons, J., a jury having been waived, plaintiff, to show title in himself, put in evidence an assignment for the benefit of creditors, by Ramaley to himself.

Meliza J. Miller died May 15, 1872, leaving a will, by which she ■devised to defendant Murray certain real estate in the city of St. Paul, in trust to sell the same five years after her decease, and pay the proceeds to certain persons, in the manner stated in the opinion.

Appeal by defendant from a judgment of the district court for Ramsey county, Brill, J., presiding. An executed composition in bankruptcy satisfies, discharges and extinguishes the debt, and leaves it no existence, legal, moral, equitable or otherwise; and such debt will not support a new promise. 18 U. S. St. at Large, c. 390, § 17; Defford v. Hewlett, 49 Md. 51; Inre Bechet, 12 Nat. Bank Reg. 201; Wells v.Lamprey, 16 Nat. Bank Reg. 205.

<p>Appeal by defendant from an order of the district court for Scott county, Macdonald, J., presiding, refusing a new trial.</p>

Appeal by plaintiff from an order of the district court for Brown county, Cox, J., presiding, setting aside a judgment by default, and giving leave to answer.

<p>Appeal by plaintiffs from an order of the district court for Brown county, Cox, J., presiding, refusing a new trial.</p>

Appeal by defendant from an order of the district court for Nicollet county, Cox, J., presiding, refusing a new trial. cited Case v. Hobart, 25 Wis. 654; Stewcvrt v. Hawley, 22 Barb. 619; Cooley on Torts, 69; Dewey v. Leonard, 14 Minn. 153; Wood v. Chicago, Mil. é St. Paul By. Co., 8 N. W. Rep. 214; Schelly. Second Nat. Bank, 14 Minn. 43; Greenland y. Chaplin, 5 Exch. 243; Bigby y. Hewitt, 5 Exch. 240; Hoey y. Felton, 11 C. B. (N. S.) 142; Cooky.

Appeal by defendant from a judgment of the municipal court of • the city of Stillwater in an action brought by plaintiffs as partners as Walker, Judd & Yeazie.

Appeal by plaintiff from an order of the district court for Scott county, Macdonald, J., presiding, overruling its demurrer to the separate answers of the defendants D. L. How and Sanford A. Hooper, who were impleaded with Henry Nathan.

Appeal by defendant from an order of the district court for Faribault county, Dickinson, J., presiding, setting aside the clerk’s taxation of costs, etc. In all actions for the recovery of money only, of which a justice of the peace has jurisdiction, the plaintiff, (suing in the district court,) if he recover less than $50, shall pay the defendant’s costs and disbursements. Gen. St. 1878, c. 67, § 3.

Appeal by defendant from an order of the district court for Washington county, Crosby, J., presiding, refusing a new trial. cited Baldwin v. Bennett, 4 Cal. •392; Coffee v. Meiggs, 9 Cal. 364; Hunt v. Test, 8 Ala; 713; Miller v. Ward, 2 Conn. 494; Dodge v. B,ogers, 9 Minn. 209 (223;) Danley v. Williams, 16 Wis. 581.

<p>label — Privileged Communication. — The rule is that a communication, made in good faith, upon any subject-matter in which the person communicating has an interest, or in reference to which he has a duty, public, or private, either legal, moral or social, if made to a person having a corresponding interest or duty, is privileged; that in such case the inference of malice which the law draws from defamatory words is rebutted, and the onus of proving actual malice is cast upon the person claiming to have been defamed. That the subject-matter of the communication is one of public interest in the community of which the parties to the communication are members, is sufficient as respects interest to confer the privilege.</p> <p>Same — Newspaper Charge against Candidate for Office. — The plaintiff was treasurer of the city of Mankato, and a candidate for re-election. The defendants, being residents and tax-payers of said city, published a communication in a newspaper published in said city, of which they were editors and proprietors, charging or insinuating that the plaintiff had, as appeared by certain official reports, failed to account for city funds • which had come into his hands as such treasurer, and that (as the plaintiff claimed) he had embezzled a portion of such funds. Held, that the publication, if made in good faith, was privileged.</p> <p>Same — Evidence of Belief and Intent of Defendants. — One of the defendants, having been called as a witness for the defence, was permitted to testify (plaintiff objecting) to his belief in the truth of a certain report referred to in the communication published, (being one of the reports upon which the charge or insinuation therein purported to be based,) and also as to his object and purpose and intent in publishing the communication. Held, (1.) That, with reference to the defence of privileged communication, the inquiries were all admissible upon the question of good faith. (2.) That in case of failure to establish the defence of privileged communication, they were admissible under Gen. St. 1878, o. 66, § 116, to show mitigating circumstances in reduction of punitive damages.</p> <p>Same — Defamatory Publication. — A defamatory publication is one which is false, and calculated to bring the person defamed into disrepute, but it it not necessarily malicious.</p>

Plaintiff brought this action in the district court for Eamsey county, against the defendants Edward K. Ware and James H. Davidson, to recover possession of a paid-up policy of insurance on the life of her husband, Lorenzo Allis. The action was tried by Brill, J., without a jury, and judgment was ordered and entered for the plaintiff, and the defendants appealed.

Plaintiff brought this action in the district court for Sibley county, on the two instruments described in the opinion, which had been sold and endorsed to him by the payees, before maturity. The defendant in his answer alleged a breach of the warranty accompanying the sale of the machines for the price of which these instruments were given, and damages from such breach in excess of the amount due on the instruments sued on, but he did not ask any affirmative relief.

Appeal by defendants from a judgment of the district court for Washington county, where the action was tried before George B. Young, as referee. The case is stated in the opinion. By the judgment in the former action, the identical note on which this action is founded was adjudged to be null and void. State of Wisconsin v. Torinus, 24 Minn. 332. Prior to that judgment the note was voidable only, and was capable of ratification.

Appeal by plaintiff from an order of the district court for Goodhue county, Crosby, J., presiding, refusing a new trial. The case is stated in the opinion. The city had no right to divert the water from its natural course, and is answerable for the consequences, the same as a private individual. Ashley v. City of Port Huron, 35 Mich. 296; Pannoyer v. City of Saginaw, 8 Mich. 534; Smithy.

Appeal by defendant from an order of tbe district court for Waseca county, Buckham, J., presiding, directing the issue of a peremptory writ of mandamus.

Appeal by plaintiffs from a judgment of the district court for Freeborn county, where the action was tried by Farmer, J., without a. jury.

Appeal by plaintiff from a judgment of the district court for Winona, county, where the action was tried by Mitchell, J., a jury being waived.. cited Van Arman v. Byington, 38 111. M3; 1 Parsons Cont. (4th Ed.) 539; 1 Chitty on Contracts, 544; Bryant v. Flight, 5 Mees.- & Weis. 114; United States v. Macdanicl, 7 Pet. 1; United States v. Ripley, 7 Pet. 18.

Appeal by defendant from a judgment of the municipal court of St. Paul, where the plaintiff sued the defendant (a married woman, living with her husband and children) for wages as a seamstress, under an oral contract of hiring, made between plaintiff and defendant. The defence was that, in making the contract, the defendant acted merely as the agent of her husband, and not on her own account.

Plaintiffs brought this action in the district court for Nobles county, to restrain the threatened foreclosure by advertisment of a mortgage on lands in that county, made by them to the defendant on August 9, 1877, to secure a loan made at the same time by the defendant James Acheson. They also prayed that the mortgage, and the note given therewith as evidence of the debt, be. declared null and void.

The defendant was indicted in the district court for Winona ■county for the murder of James Malone, was tried before Buckham, J., (acting for the judge of the 3rd district,) and convicted of manslaughter in the second degree, the jury, in their verdict, recommending him to the mercy of the court. By the judgment of the court he was sentenced to imprisonment at hard labor in the state prison for ■the term of five years, from which judgment he appeals.

<p>Appeal by defendant from a judgment of the district court for Scott county, Macdonald, J., presiding.</p>

Appeal by defendant from an order of the district court for the ■counties of Stevens, Big Stone and Traverse, Brown, J., presiding, refusing anew trial in ease plaintiff should remit $900 of the verdict ■of $1,200 returned by the jury; the order directing that unless plaintiff should, within ten days after notice, file such remittitur, and give notice thereof to the defendant, the verdict should be set aside. The plaintiff relinquished the $900, in compliance with the order.

Appeal by plaintiffs from a judgment of the district court for Ramsey county, where the action was tried by Brill, J., without a jury.

Appeal by plaintiff from a judgment of the district court for Blue Earth county, where the action was tried by Dickinson, J., without, a jury.

Appeal by plaintiff from an order of tbe district court for Eice county, Backham, J., presiding, denying a motion to recommit the cause to the referee by whom it had been tried, for a rehearing of the testimony of M. B. Sheffield, one of the plaintiff’s witnesses, and a correction of the report of the referee in the matter of the amount received by M. B. Sheffield, as salary.

Appeal by defendant from a judgment for taxes of the district court for the counties of Cass, Crow Wing, Wadena, Aitkin and Itasca, Stearns, J., presiding. cited Railway Company v. Prescott, 16 Wall. 603, and Railway Company v. McShane, 22 Wall. 444.

<p>Appeal by plaintiff from a judgment of the district court for Hennepin county, Vanderburgh, J., presiding.</p> <p>cited Carpenter v. Leonard, 5 Minn. 119 (155.)</p>

Appeal by defendant from an order of the district court for Noble® county, Dickinson, J., presiding, overruling a demurrer to the complaint. t

Appeal by defendants from a judgment of the municipal court of the city of St. Paul. The case is stated in the opinion. This action is brought upon a written lease, under Gen. St. 1878, c. 84. The right of possession of the plaintiff is shown by the lease, and this is all that is required under the statute. 0People v. Van Nostrand, 9 Wend. 50; People v. Reed, 11 Wend. 157. An equitable défence cannot be pleaded to this action.

Action commenced in the district court for Mower county to foreclose a mortgage made by defendant Armstrong. Defendant Eva E. Marston pleaded title in herself under a conveyance from Armstrong, made under a tax title acquired by him subsequent to the malting of the mortgage, and subsequent to a sale of the mortgaged premises by Armstrong to third parties.

Appeal by defendants from an order of the district- court for Ramsey-county, Wilkin, J., presiding, refusing a new trial.

Appeal by defendant from an order of the district court for Bice county, Buckham, J., presiding, overruling a demurrer to the complaint. The complaint sets forth the following facts: On May 18, 1867, one Hebron Ellingsen, being the owner of a certain described tract of land in Bice county, containing 120 acres, sold to one Curren a certain described portion thereof, containing 40 aeres.

Appeal by defendant from an order of the district court for Sibley county, refusing a new trial, after a trial by Macdonald, J., without a jury. The case is stated in the opinion. A corporation has only such powers as are conferred by its charter, and any contract made by it outside and beyond these powers is absolutely void against everybody, and cannot be ratified unless by the legislature.

Appeal by defendants, De Graff and William Crooks, surviving partners of the firm of De Graff & Co., from an order of the district court for Stearns county, McKelvy, J., presiding, refusing a new trial. • The trespass complained of was committed by De Graff & Co., about the year 1872, in entering upon and constructing across the land of plaintiff the railroad of the defendant, the First Division of the St. Paul & Pacific Railroad Company.

On April 1, 1874, the defendant entered into a written lease with the plaintiffs, whereby he covenanted to pay rent for certain premises in the city of St. Paul, owned by plaintiffs, at the rate of $250 per month, for the term of five years from date. In the fall of 1874, at the request of defendant and on condition of prompt payment, plaintiffs reduced the rent to $208.33 per month, and shortly after made a further reduction to $150 per month on the same conditions.

Appeal by plaintiff from an order of the district court for McLeod county, Macdonald, J., presiding, refusing a new trial.

<p>Appeal by defendant Johnson from a judgment of the municipal court of Minneapolis.</p>

The defendant Emil Munch was treasurer of the state of Minnesota from January 1, 1870, to January 1, 1872, and among his official bondsmen were the othér defendants and Charles Scheffer. During his term of office Munch became indebted to the state in the sum of $164,709.55.

Appeal by defendant from an order of the district court for Chi-sago county, Crosby, J., presiding, overruling a demurrer to the complaint. cited Ryan v. School-District No. 13, 27 Minn. 433.

Respondent, Washington M. Stees, appealed to the district court for Ramsey county from an award of compensation for land taken, by commissioners appointed to lay out an avenue around Lake Phalen, under Sp. Laws 1878, c. 150. The issue was tried by Wilkin, L, and a jury, and respondent had a verdict increasing the award from $72 to $2,600, on which judgment was entered, and the county appealed.

Appeal by defendant Susan L. Thompson from an order of the district court for Ramsey county, Wilkin, J., presiding, refusing to entertain her motion for a new trial. The case is stated in the opinion. The “decision” spoken of in Gen. St. 1878, c. 66, § 253, means a final decision. Powell on Appellate Proceedings, 367, 187, 188. It is the policy of the Code to allow only one appeal.

Appeal by plaintiff, as surviving partner of the partnership firm of Bank of Minneapolis, from an order of the district court for Scott county, Macdonald, J., presiding, refusing a new trial.

<p>foreclosure — Purchase of Certificate of Sale by Second Mortgagee— Redemption by Third Lienholder. — A first mortgage on real estate having been foreclosed and the premises sold, the holder of a second mortgage on the same property, within the year allowed the mortgagor in which to redeem, purchased the certificate of sale on the first mortgage, and took an assignment of the same, but did not file any notice of intention to redeem, or do any other act or thing by way of redeeming from the sale. Held, that this purchase of the certificate of sale was not, .a redemption by Mm as creditor within the statute, and did not relieve him from the necessity of a compliance with the requirements of the ■statute regulating redemption by creditors, in order to give him, as against subsequent lienholders, the rights of a creditor redemptioner, under the statute; that, therefore, the mortgagor having failed to redeem, the holder of the third lien on the premises, who had otherwise fully complied with the requirements of the statute, had a right to redeem by paying simply the amount for which the premises .were sold and interest, without paying also the amount of the second mortgage held by the assignee of the certificate of sale.</p>

Appeal by defendant from an order of the district court for Winona county, Mitchell, J., presiding, refusing a new trial. The case is stated in the opinion. The court erred in charging the jury that an acceptance, to take a-, contract out of the statute of frauds, need not be an acceptance of the property as being satisfactory in quantity or quality and such as-to preclude the buyer from questioning them.

<p>Appeal by plaintiff from a judgment of the municipal court of St. Paul.</p>

The county auditor cannot defeat the statutory right of redemption by improperly listing and selling lands. Grapengether v. Fejervary, 9 Iowa, 163; Boyd v. Ellis, 11 Iowa, 97; Singleton v. Scott, Id. 589 ; .Bradford v. Limpus, 13 Iowa, 424; Lay v. Gibbons, 14 Iowa, 377; State of Georgia v. Braiseford, 2 Dali. 402; O'Brien v. Coulter, 2 Blackf. 421; Ainsworth v. Dean, 21 N. H. 400; Corporation of Washington v. Pratt, 8 Wheat. 681; Hodge v. Wilson, 12 Smedes & Marsh. 498.

Judgment by default was rendered in the district court for Washington county against the defendant for delinquent personal taxes. Defendant, having made application to the court to have the judgment vacated, which was denied by Crosby, J’., appeals from the order denying the application, and also from the judgment.

Mandamus. The alternative writ in this case was issued September 4, 1877, directed to the city of Lake City and the town of Lake, in Wabasha county. On March 11,1879 an order was entered quashing the writ as to the city of Lake City, refusing a trial by jury, amending the answer of the town of Lake, and referring the case to a referee to take testimony. See State v. City of Lake City, 25 Minn. 404.

<p>Charge — Request to repeat Instruction. — The trial court, having fully, clearly and correctly instructed the jury as to the law of the ease, is not bound to repeat the instruction at the request of a party.</p> <p>Evidence held sufficient to sustain verdict.</p>

The plaintiffs, partners as Earnham & Love joy, having recovered a judgment against defendant James A. Kennedy, brought this action in the district court for Kamsey county, to subject to their execution certain lands conveyed by Kennedy to defendant Trussed, and by the-latter to Kennedy’s wife. ' The consideration on which plaintiffs’ judgment was recovered was an endorsement, by Kennedy on a note dated May 15, 1878.

Appeal by defendant from an order of the district court for Otter Tail county, McKelvy, J., presiding, refusing a new trial.

<p>Appeal by defendants from a judgment of the municipal court of St. Paul.</p>

This action was brought in the district court for Washington county, by plaintiff, as administrator of Jacob Jacobi, deceased.

Plaintiff is and has been for many years the owner of certain lots in the city of Stillwater, which abut on Lake St. Croix, which is navigable water, and front on Main street. These lots are cut into two parts by an alley, thirty feet wide, running parallel to the lake, and the portions between the alley and the shore are valuable for use and are used in connection with navigation, and are approached • on the land side by means of the alley.

<p>Certiorari to probate court of Hennepin county.</p>

Appeal by defendant from a judgment of the district court for Polk «county, Stearns, J., presiding, affirming a judgment of a justice court.

Appeal by defendant from an order of the district court for Pope county, McKelvy, J., presiding, overruling a demurrer to the complaint.

<p>Appeal by defendant, Frank Baumhoefer, from a judgment of the district court for Scott county, Macdonald, J., presiding.</p>

<p>Appeal by defendant from an order of the municipal court of Minneapolis, overruling his demurrer to the complaint.</p>

Appeal by defendant, who is sheriff of Brown county, from an order of the district court for that county, Cox, J., presiding, refusing a new trial.

•Tohn Rahilly, defendant in this action, being indebted to the plaintiff, gave to her his note, signed by intervenor and P. M. Tolbert as sureties. To secure his sureties, defendant gave to them a chattel mortgage upon certain personal property, which was filed February 16, 1877. On February 19, 1877, to secure an indebtedness of' $2,000, there was filed a second chattel mortgage, on the same-property, made by defendant Rahilly to the intervenor.

Appeal by defendant from an order of the district court for Rice-county, Buckham, J., presiding, refusing a new trial. Tlie cage is. stated in the opinion. The cashier of plaintiff was vice-president and director of the corporation, payee and indorser, and therefore the bank was chargeable-with notice of any defences to the note. Toll Bridge Co. v. Bets worth, 30 Conn. 380; Fishkill Savings Inst. v. National Bank of Fishkill, SON.

■ Appeal by defendant' from a judgment of the district court for Polk county, Stearns, J., presiding, affirming a judgment of a justice-court.

■ Appeal by plaintiff from an order of the district court for Pólk county, Stearns, J., presiding, sustaining a demurrer to the complaint.

Appeal by defendant Baldwin from an order of the district court for Hennepin county, refusing a new trial, after a trial before Young, J., without a jury.

Appeal by defendant from an order of the district court for Rice-county, Buckham, J., presiding, overruling a demurrer to the complaint.

This action was brought in a justice’s court, and an appeal taken by defendant, on questions of law and fact, to the district court for Anoka county, where the action was tried before Young, J., and a jury, and a verdict rendered for defendant. • A new trial was refused, and the plaintiff appealed.

<p>Sales at Different Times give rise to Several Causes of Action — Burden of proving them Connected in one Account. — In an action to recover in several counts the price of goods sold at various times, an answer, admitting the several sales and the prices, but pleading in bar of a recovery that the sales were made under such an agreement, and the circumstances such, as to merge all the items in a general running account and one entire demand, and pleading a former recovery as to one of such sales, is a pleading in the nature of a confession and avoidance, and the burden of proving such facts is upon the defendant.</p> <p>Same — Proof of Connection of Such'Sales, how made. — When such sales are made at different times, in order to connect the demands for the purchase price of the several sales into one entire indivisible demand or cause of action, there must be either an express agreement, having that effect, or the circumstances must be such as to raise the presumption that the parties so intended.</p>

Case certified from the district court for Washington county,. Crosby, J., presiding, under Gen. St. 1878, c. 117, § 11. Defendant was convicted of the crime of obstructing an engine and carriage passing upon the St. Paul, Stillwater & Taylor’s Falls Bailroad.

Appeal by defendant from a judgment of the district court for Martin county, Dickinson, J., presiding, affirming a judgment of a justice of the peace.

Appeal by defendant from an order of the district court for Hennepin county, Vanderburgh, J., presiding, refusing a new trial.

This action was brought in the district court for Olmsted county, and was tried by Mitchell, J., on the issues made between the intervenors and the plaintiff, and judgment was ordered for the intervenors. A motion for a new trial was denied by Buckham, J., and the plaintiff appealed.

Appeal by defendants from a judgment of the district court for Steele county, where the action was tried by Buckham, J., without a jury.

Plaintiff brought this action in the district court for Freeborn county, to recover damages for injuries to himself, occasioned by the negligence of defendant in failing to keep a highway crossing, in the township of Shell Rock, in that county, in a safe condition.

Appeal by defendant from on order of the district court for Hennepin county, Vanderburgh, J., presiding, refusing a new trial. The ease is stated in the opinion. cited, Bliss on Life Ins. §§ 317, 320; Bicker v. Charter Oak Life Ins. Co., 27 Minn. 193; Allis v. Ware,ante, p. 166; Brockhaus v. Kemna, 7 Fed. Eep. 609; Hodge's Appeal, 12 Ghic. Legal News, 421; Duvall v. Goodson, 9 Ins. Law Journal, 901; ■Gould v. Emerson, 99 Mass. 154; Hogle v. Guardian Life Ins.

<p>Appeal by plaintiff from an order of the district court for Dodge county, Buckham, J., presiding, refusing a new trial.</p>

This action was brought in the district court for Olmsted county; upon a recognizance alleged to have been entered into by the defendant Benjamin F. Perry, as principal, and the other defendants as sureties.

Plaintiff brought this action in the municipal court of St. Paul, to obtain restitution of certain premises. The defendant appeared specially to move to dismiss the action, which motion the court denied. Defendant declining to answer, judgment was ordered for plaintiff without any further proceedings, and the defendant appealed.

Appeal by defendants from an order of tbe district court for Washington county, Crosby, J., presiding, -refusing a new trial. The addition to this mortgage, offered to be shown, was an immaterial alteration and could not affect the conveyance already made. Van Horn v. Clark, 11 Iowa, 465; Kendall v. Kendall, 12 Allen, 92.

Appeal by defendants from an order of the district court for Winona county, Mitchell, J., presiding, refusing a new trial. The defendants levied upon and sold only the right, title and interest of Max Hossfeldt in the wheat, and their acts did not amount to a conversion.

Plaintiff brought this action in the district court for Mower county, stating his cause of action in his complaint as follows: “That on or about the 20th of July A. D. 1878, at said county, defendants, by their duly authorized agent, sold and delivered to the plaintiff one Marsh harvester for the agreed price of $315, which sum plaintiff then agreed to pay therefor.

This action was brought in the district court for Nobles county, upon the promissory note mentioned in the opinion, and defendants appeal from the judgment rendered in plaintiff’s favor, after a trial by Farmer, J., (acting for the judge of the 6th district) without a jury.

Plaintiffs brought this action in the district court for Hennepin county, to recover possession of certain premises in the city of Minneapolis, used and occupied by the defendant for railroad purposes, and for damages for detention of the same.

This action was brought in the district court for Eedwood county, to recover possession of certain land on which plaintiff had foreclosed a mortgage, which the'defendant (the mortgagor) claims to have redeemed. A jury was waived, and the action tried by Cox, J.; judgment was ordered for defendant, and the plaintiff appeals from an order refusing a new trial. It is well settled that the legislature has complete control over what pertains to the mere remedy.

Appeal by defendant from a judgment of the district court for Carver county, entered on default, and after service of the summons by publication. • , cited McArdle v. Me Avile, 12 Minn. 98; Story on Promissory Notes, § 29; Powers on Notes and Bills, § 641; Edwards on Bills and Notes, § 512; Angelí'on Limitations, § 95.

Appeal by defendant from an order of the district court for Blue Earth county, Dickinson, J., presiding, refusing a new trial. The case is stated in the opinion. The county could not acquire title in fee-simple, with the full power of a private owner to dispose of and use it for business purposes. Its title is that of a trustee for limited and special public uses.

Appeal by defendant from an order of tbe district court for Carver •county, Macdonald, J., presiding, refusing a new trial, after an award by the jury of $1,400 damages to plaintiff in condemnation proceedings.

<p>Appeal by defendant from a judgment of the municipal court of St. Paul.</p>

Appeal by plaintiff from an order of the district court for Sibley county, Macdonald, J., presiding, sustaining a demurrer to the complaint, the substance of which is stated in the opinion. The complaint in this action asserts and is based upon the validity of the contract between the borough and the county, and asks damages for breach of that contract.

The plaintiffs are • executors of Timothy Kirby. The defendant appeals from an order of the district court- for Goodhue county, Crosby, J., presiding, refusing a new trial, after verdict for plaintiffs.

Appeal by defendants from an order of the district court for Hennepin county, Young, J., presiding, refusing a new trial.

<p>Appeal by defendants from an order of the municipal court of Minneapolis, refusing a new trial.</p>

Appeal by defendant from an order of the district court for Freeborn county, Farmer, J., presiding, refusing a new trial. cited, Yale v. Edgerton, 14 Minn. 194; Perkins v. Hinsdale, 97 Mass. 157; Glidden v. Child, 122 Mass. 433; Vogel v. Melms, 31 Wis. 306; White v. Solomonsky, 30 Md. 585; Booth v. Eighmie, 60 N. Y. 238.

Plaintiff, as the owner of certain land bordering on the Mississippi river, brought this action in the district court for Hennepin county, to recover damages of defendant for its wrongful acts, (1) in unlawfully taking and carrying away from such land a large quantity of stone; (2) in constructinig and maintaining in the Mississippi river, and upon land of the plaintiff, stone piers, whereby a large part of the main body of the river has been diverted from its natural…

This action arises out of the same facts as those on which the last preceding case was founded, and was brought by plaintiff in the district court for Hennepin county, to recover damages for defendant’s continued occupation of his land since the commencement of the former suit. The action was tried by Young, J., and a jury, who returned a verdict for plaintiff. Defendant appeals from an order refusing a new trial.

This action was commenced by M. A. Baldwin, in the district court for Wabasha county, to subject certain land to levy and sale on an execution issued in his • favor against the property of defendant Michael O’Laughlin, and which land — a tract of '820 acres — had been conveyed by O’Laughlin, (who was a widower,) to defendant Rogers, by deed absolute in form, prior to the rendition of the judgment on which plaintiff’s execution issued, but subsequently, as alleged,' to the…

Appeal by defendant, assignee in bankruptcy of Stone, Parker & Co., from an order of the district court for Hennepin county, Vanderburgh; J., presiding; overruling his demurrer to the complaint. U. S. Rev. St. §§ 5056, 5057, does not extend to or protect an assignee in bankruptcy when he becomes a trespasser, and he is not empowered to take any goods not belonging to the bankrupt. Leighton v. Harwood, 111 Mass. 67; S. C. 12 Nat. Bank.