Volume 29 — Minnesota Reports

Apjieal by defendant from an order of the district court for Ramsey county, Wilkin, J., presiding, refusing a new trial.'

Appeal by defendant from a judgment of the district court for Hennepin county, where the ease was tried before Vanderburgh, J., and a jury. cited, State v. Hascall, 6 N. H. 352; Gilley v. Bartlett, 19 N. H. 312; Knight v. Inhabitants of Freeport, 13 Mass. 218; Deacon v. Shreve, 22 N. J. Law, 176; Iloberg v. State, 3 Minn. 181, (262;) Hayward x. Knapp, 22 Minn. 5; Koehler v. Cleary, 23 Minn. 325; Whitney x. Whitman, 5 Mass. 405; Hare x. State, 4 How.

Appeal by plaintiff from an order of the district court for Steele county, Buckham, J,, presiding, refusing a new trial. The case is stated in tbe opinion. . The justice having no jurisdiction of the ease, his acts were void, and all the proceedings in connection therewith were likewise void. Constitution of Minn.

Appeal by defendant from an order of the district court for Mower county, Farmer, J., presiding, refusing a new trial. The case is stated in the opinion. cited Wood-son v. Mil. é St. Paid Ry. Co., 21 Minn. 60; Clemens v. Hannibal & St. Joseph It. Co., 53 Mo. 366; Spaulding v. Chic, é N. W. B. Co., 30 Wis. 110; Pa. R. Go. v. Hope, 80 Pa.

The plaintiff, Eobert S. Donaldson, was the owner of certain land in Dakota county, for which defendant holds a sheriff’s certificate of sale on execution against Donaldson. This action was brought in the district court for that county, to remove the cloud upon the title to the lands occasioned by this certificate of sale, plaintiffs claiming the land as a homestead.

The ease containing the facts in this action was agreed upon by the parties, and submitted to the district court for Bamsey county, under Gen. St. 1878, c. 82, § 7.

Ejectment for an undivided one-ninth of a quarter-section of land in Goodhue county, claimed by plaintiff as one of the heirs-at-law of Benjamin Hodgman, who died seized of the entire quarter-section, in 1863. The defendant in his answer alleged title under a sale made in 1867 by the guardian of plaintiff, (who was then a non-resident minor, and who became of age in 1878,) and asked that his title be quieted, and plaintiff be adjudged to have no interest in the land.

This action was brought in the district court for Freeborn county, and was tried before Farmer, J., and a jury, resulting in a verdict of $700 for plaintiff. The testimony in behalf of plaintiff as to the value of the house and lot ranged from $1000 to $1500. Defendant appeals from an order refusing a new trial.

Tbis action was brought in the municipal court of St. Paul for the taking and conversion, by defendant, of a buggy, alleged to be the property of plaintiff. Defendant, in his answer, justified his taking, as sheriff of Benton county, under a writ of attachment,'followed by judgment and execution, in an action against the plaintiff. The plaintiff replied, alleging that the buggy was exempt from seizure or sale under any writ of attachment or execution.

Appeal by defendant from an order of the district court for Bam-sey county, Wilkin, J., presiding, refusing a new trial. cited, Bell v. Morse, 6 N. H. 205; Allen v. Kingsbury, 16 Pick. 235; Milling v. Granhfield, 1 McCord, 258; Pitts y. Brown, 49 Yt. 86; Glover y. Shields, 32 Barb. 374.

Cross appeals from a judgment of the district court for Hennepin county, where the action was tried by Young, J., without a jury.

Appeal by defendant from an order of the district court for Freeborn county, Farmer, J., presiding, refusing a new trial. 1 Thompson on Negligence, 122, i:»8, n. 3; Spaulding y.CMc. A ZCijT. By.'do., 30 Win. 110; Woodwn v. 3Lrf. é St. P. R. Co., 21 Minn. fii); Spaulding v. Chic. &N. W. Ry. ('<>., 33 Wis. 582; Brusberg v. M. L. S. Ji-W. Ry. Go., 6 N. W. Eep. 821.

Certiorari. A. previous writ.in this matter, directed to the board of public works of St. Paul, was quashed in- State v. Board of Public Works of St. Paul, 27 Minn. 44-2. Following the opinion in that case, the relators, when the city treasurer applied to the district court of Ramsey county for judgment against the property assessed, appeared and objected, and, after a trial, judgment was denied.

Appeal by defendant from .a judgment of the district court for Steele county, where the action was tried by Stearns, J., (acting for the judge of the 5th district,) without a jury.

The defendant was indicted and tried in the district court for Scott county, Macdonald, J., presiding, for the crime of embezzlement, in failing and refusing to comply with the demand of his successor in ■the office of county treasurer, to turn over and account for the funds of the county. The jury returned a verdict of guilty, and found the amount embezzled to he $10,736.

Appeal by defendant from an order of the district court for Clay county, Stearns, J., presiding, affirming the clerk’s taxation of costs.

In 1873, certain creditors of one Gaffney and of Louis Walter, husband of plaintiff, recovered a judgment against them. An execution having been issued and returned unsatisfied, the clerk of the court, on July 9, 1873, issued a second execution, under which a levy and sale was made of certain real property belonging to Gaffney and Walter.

Action brought by plaintiff in the district court for Ramsey county, to recover rent due under a lease to defendant. The action was tried by Brill, J., a jury having been waived, and judgment was ordered for plaintiff for the amount claimed. Defendant appeals from an order refusing a new trial. The ease is stated in the opinion.

This action was brought in the district court for Goodhue county, in 1880, to compel the defendants to remove a certain mill-dam situate on their own lands, or so much thereof as should be necessary to prevent the flowing of plaintiff’s lands. The defendants claimed that under an agreement with one Haynes, the plaintiff’s grantor, they had the right to maintain the dam so long as the flouring mill connected with it should be kept and operated as a custom mill.

Plaintiff was defendant in an action in replevin brought in a justice’s court, in which action he recovered judgment “against the plaintiff for the return of 100 bushels of wheat, and, in default thereof, ninety dollars and costs of this action, taxed at $18.28.” This action was brought in a justice’s court against defendant, who was surety on the bond in the above replevin suit, to enforce the judgment.

Appeal by plaintiffs from a judgment of the district court for Houston county, where the action was tried by Farmer, J., and a. jury, a verdict rendered for the defendants, and a motion for a new trial denied.

Appeal by defendant from an order of the district court for Henne-pin county, Vanderburgh, J., presiding, striking out defendant’s demurrer as frivolous.

Appeal by defendant from an order of the- district court for Nice county, Buckham, J., presiding, granting a new trial. cited 2 (treenleaf on Ev. § 408; 2 Bishop on Mar. &. Div. § 644; Lexington Ins. Co. v. Paver, 16 Ohio, 824; Pryce v. Security Ins. Co., 29 Wis. 270; Freeman v. Freeman, 31 Wis. 235; McConnell v. Delaware M. S. Ins.

■ Appeal by plaintiff from an order of tbe district court for Mower county, Farmer, J., presiding, setting aside a judgment herein entered on default. The proof of service of the summons was conclusive, in the absence of any affidavit of merits. Tullís v. Braioley, 3 Minn. 191, (277;) Folsom v. Garli, 5 Minn. 264, (333;) Frasier v. Williams, 15 Minn. 288; First Nat. Bank of Hastings v. Bogers, 15 Minn. 381; Young v. Yoiing, 18 Minn. 90.

This action was brought in tlie district court for Sibley county against defendant upon his^ guaranty of payment endorsed upon throe notes made by one Herman Anderson, payable to the Adams & French Harvester Company.

On May 23, 1881, B. J. Marks, being largely indebted to the plaintiff, his step-father, sold and delivered to him, in full satisfaction of this indebtedness, his entire stock of goods, notes and hook-accounts in the business in which he was engáged. The sale was evidenced by a bill of sale in which the consideration was stated to be $1,709, and an inventory was attached in which the entire stock was appraised at $2,388.41, being at cost prices.

Action by plaintiff against ber husband, brought in the district court for G-oodhue county, to recover moneys received by him from her father’s estate in Norway. The action was tried by Crosby, J., a jury being waived, and judgment ordered for plaintiff for $1,701.04. From this judgment both parties appeal. The facts are stated in the opinion.

Action by plaintiff in the district court for McLeod county on two promissory notes made by defendant, payable to the order of J. D. Easter & Co., and by the latter sold and assigned to plaintiff. Plaintiff appeals from an order by Macdonald, J., refusing a new trial, after a verdict for defendant.

This action was brought by plaintiffs, as partners, in the district court for Ramsey county, and removed to the district court for Freeborn county, where defendant resides. The answer consists of the attempted counterclaim which is given in the opinion. Defendant appeals from an order of Farmer, J., sustaining a demurrer to the answer. cited Goebels. Hough, 26 Minn. 262; Walshv. Hall, 66 N. C. 233; Bittingv.

Plaintiffs, partners as Eickman & Meyer, -brought suit against the defendant in the district court for Le Sueur county. A writ of attachment was issued November 8, 1880, and on the same day levied on real estate of the defendant in that county. There was no service of the summons on defendant, either personally or by publication, but answer was made, and an appearance entered for defendant, by Peck & McHale, attorneys-at-law, on December 21, 1880.

Appeal by defendant from an order of tbe district court for Bam-sey county, Wilkin, J., presiding, refusing a new trial. The case is stated in the opinion. The law is fully settled than an agent or broker who is instrumental in procuring a purchaser is entitled to his commission, even where the owner consummated the bargain.

In 1871 the plaintiffs entered into an agreement with Herman. Bisbee, (of whose estate the defendant Buckham is administrator,)- and the other defendants, whereby the defendants, representing, themselves to be the owners of certain timber lands in Wisconsin, sold to the plaintiffs the stumpage on all the lands mentioned in the-agreement, payments to be made therefor from time to time as the timber was ent, upon stipulated terms.

The defendant was arrested and held for trial by a justice of the peace on the following complaint: “Eranzesha Gissel, of said county, being first duly, sworn and examined on oath by the undersigned, E. C. Huntington, one of the justices of the peace of said county, on her oath complains and says that on the 16th day of April, 1881, at the town of Southbrook, in said county, she was delivered of as follows: a female child, which is a bastard, and that William Snure, of said…

Defendant was convicted before a justice of the peace, and, on appeal, again convicted in the district court for Otter Tail county, Me-Kelvy, J., presiding, of the offence of selling liquor to the husband of the complaining witness, and appeals from the judgment.

Plaintiff, claiming to be the owner of the premises described in the opinion, which were unoccupied, brought this action under Gen. St. 3878, c. 75, § 2, in the district court for Hennepin county, to quiet title. Defendant answered, setting up title in himself, through a sale for the taxes of 1874.

Appeal by defendants from an order of the district court for Hen-nepin county, Young, J., presiding, overruling their demurrer to the complaint. The entire complaint is recited in the opinion, excepting the description of the real estate.

Appeal by defendants from an order of the district eourt for Le Sueur county, Macdonald, J., presiding, overruling their demurrer to the complaint.

Appeal by defendant from a judgment of the district court for Olmsted county, Start, J., presiding, where defendant was convicted of the crime of swindling by means of three-card monte.

<p>Appeal by defendants from a judgment of the municipal court of St. Paul, a motion for a new trial having been denied.</p>

Appeal by Rheiner from an order of the district court for Washington county, Crosby, J., presiding, granting a new trial, unless he should consent, within ten days, to reduce the verdict from $23,500 to $15,00(h

Plaintiffs, who are the widow and heirs-at-law of Morris Lamprey, deceased, claiming under the warranty deed to him from defendants, dated September 11, 1878, mentioned in the opinion, brought this action in the district court for Eamsey county to have the title to the lots described in that instrument declared to be in them, free from any incumbrance, and that the agreement of Morris Lamprey to re-convey, dated September 14,1878, and also mentioned in the opinion, be…

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

Plaintiff, having supported a pauper resident in the city of Albert Lea, and having furnished him with food and clothing, seeks in this action to recover for his expenditures from the county of Freeborn. The action was brought in the district court for that county, and plaintiff appeals from an order by Farmer, J., sustaining a demurrer to the complaint.

Appeal by defendant from a judgment of the municipal court of St. Paul, entered on plaintiff’s motion on the pleadings. Tlie case is stated in the opinion. cited Schouler on Bailments, 346; Dexter v. Syracuse, etc., R. Go., 42 N. Y. 326; Davis v. Railroad, Co., IP How. Pr. 333; Grant v. Newton, 1 B. D. Smith, 95; McCormick v. Hudson R. R. Go., 4 B. D. Smith, 181; Duffy v. Thompson, Id. 178; Ouimit v. ITenshaw, 35 Yt. 605; Porter v. Hildebrand, 14 Pa. St. 129.

Plaintiffs brought suits against Asa Way and others in the district court for Redwood county, caused defendants’ stock of goods to be attached, and afterwards recovered judgments for $2,829.20. Execution issued, under which the attached property was sold, on September 22, 1881,for $1,210. By an exparte order made July 19,1881, the sheriff’s fees and charges for securing and keeping the attached property were allowed at $566.90.

Ejectment. Appeal by defendant from an order of the district court for Scott county, Macdonald, J., presiding, striking out portions of the answer as sham and false. In the portions of the answer stricken out, the defendant denies plaintiff’s ownership, sets up title in one Robert P. Calvert by adverse possession for more than twenty years, and an unexpired lease from Calvert to defendant.

Appeal by defendants from an order of the district court for Watonwan county, Severance, J., presiding, refusing a new trial, after ■a trial and decision by F. L. Janes, Esq., referee. The action wras brought upon promissory notes given by the defendants for the unpaid portion of the purchase price of a threshing-machine, two years and a half after the original purchase, and in .renewal of old notes.

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

<p>New Trial — Properly Granted. — Upon the, case presented, held, that the trial court, in granting a new trial, did not exceed its discretion; following Marsh v. Webber, 13 Minn. 109, and Rheiner v. Stillwater, ete., Ry. Go., ante, p. 147.</p>

Defendant’s intestate died October 20, 1880, and defendant was appointed administratrix of her estate on December 20, 1880. On February 3, 1881, plaintiff filed as a claim against the estate a note made by defendant’s intestate, payable to t]ie order of plaintiff’s intestate, dated June 18,1873, on which were several indorsements of payments, the last being dated January 5, 1875.

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

Plaintiff brought this action in the district court for Fillmore county to subject to his execution, issued cm judgments recovered by him against defendant L. G. St. John, certain lands formerly owned by that defendant, but fraudulently conveyed and mortgaged, as alleged by plaintiff, to the other defendants. The action was tried by Stearns, J., (acting for the judge of the 10th district,) without a jury, and judgment rendered for defendants, from which plaintiff appeals.

Appeal by defendant from an order of the district court for Meeker county, Brown, J., presiding, refusing to dissolve an injunction.

Appeal by defendant from an order of the municipal court of Minneapolis refusing a new trial, after a conviction and the imposition of a fine.

Appeal by defendants from an order of the district court for Clay county, Stearns, J., presiding, vacating and setting aside defendants’ demand for a second trial. The acknowledgment of the receipt of the costs of the first trial was in the following words: “Received of Briggs & Elders, defendants’ attorneys in the above-entitled action, the sum of forty and 'seventy-seven one-hundredths dollars, costs therein.

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

Plaintiff is sheriff of Ramsey county and as such officer it is his duty to receive and keep in the county jail those prisoners committed thereto by the municipal court of St. Paul, upon conviction of violation of city ordinances. This action was brought in the district court for that county to recover from the city of St. Paul $119, fees for receiving 419 prisoners thus committed. The defendant appeals from an order by Brill, J., overruling its demurrer to the complaint.

Plaintiff, being owner of land on both sides of a natural watercourse, crossed by defendant’s railway, brought this action in the district court for Le Sueur county to recover damages for the flooding of his land, occasioned by the railroad embankment. At. the trial before Macdonald, J., and a jury, the plaintiff had a verdict, on which judgment was entered, and the defendant appealed.

Action to recover the balance of an account for goods sold and delivered to J. S. Huntley & Co., of which firm defendant was a member.

Plaintiff, claiming to have redeemed, as a creditor of one James S. Burd, certain real estate mortgaged by Burd in his life-time and sold on foreclosure by advertisement after his decease, brought this action in the district court for Hennepin county, against the assignee of the purchaser at the mortgage sale, to recover possession of the premises. The material facts alleged in the complaint are stated in the opinion.

Plaintiff brought this action in the district court for Polk county to xecover certain land in the possession of the defendant.

Case certified from tbe district court for Hennepin county. Defendant was indicted, on February 19, 1881, for the crime of manslaughter in the fourth degree. A demurrer to the indictment was overruled by Vanderburgh, J., and, at defendant’s request, the case was certified to this court. The case is stated in the opinion. Unless there is a saving clause in Laws 1881, c. 62, there can be no punishment for the crime of manslaughter in the fourth degree.

Case submitted on an agreed statement of facts, under Gen. -St. 1878, c. 82, § 7, to the district court for Hennepin county. Plaintiff, who is clerk of the municipal court of Minneapolis, seeks to recover his salary at the rate of $1,500 per annum. Defendant claims that, under its amended charter, (Sp. Laws 1881, c. 76, sube. 3, § 29,) plaintiff is only entitled to $1,200 per annum. The salary has not been fixed by the city council under the amended charter.

<p>Criminal Law — Evidence required to Admit a Confession. — -Under Gen. St. 1878, o. 78, § Í03, evidence that the offence charged has been committed by some person is all that is required in order that the confession of the defendant may be sufficient to warrant his conviction. It is not necessary that such evidence should be introduced before the confession is received.</p> <p>Same — Instruction to Jury not Prejudicial to Defendant. — A refusal of the trial judge to give a requested instruction considered in connection with the previous charge, and with the remarks of the judge accompanying the refusal, and held, not to have prejudiced the prisoner, because, even if the refusal was pm- se wrong, the result upon the whole was to give him a chance of acquittal to which he was not entitled.</p> <p>Same — Intoxication as a Defence — Burden of Proof. — When irresponsible drunkenness is relied on as a defence to a criminal charge, the burden of proving it is on the defendant. It is not error to instruct the jury that the defendant must establish such defence “ by a fair preponderance of evidence.”</p>

Action under Gen. St. 1878, e. 75, § 2, to determine tbe defendant’s adverse claim to real property in Hennepin county. The cause was submitted to the court, Young, J., presiding, upon an agreed statement of facts, and judgment was ordered and entered for the defendant, from which the plaintiff appeals. The case is stated in the opinion.

Plaintiffs brought this actionin the district court for Freeborn county, to recover damages occasioned by a seizure of their stock of goods in trade by defendant Sheehan, as sheriff- of that county, on an execution in favor of defendants Dutch & Abbott, issued on a judgment obtained, as alleged, through the fraud of the other defendant, Tyrer, as the agent of Dutch & Abbott.

Appeal by plaintiffs from a judgment of the district court for Lyon county, entered on defendant’s motion for judgment on the pleadings.

Plaintiff brought this action in the district court for Murray county to recover moneys expended for the support of a sick pauper,' alleged to be a resident within the defendant county. A jury was waived, and the action was submitted to the court, Severance, J., presiding, on an agreed statement of facts. Judgment was ordered'and entered for defendant, and plaintiff appeals.

Condemnation proceedings. Appeal by the railway company from a judgment of the district court for Hennepin county, after a trial before Vanderburgh, J., and a jury.

Plaintiff brought this action in the district court for Hennepin county to recover an indebtedness of $1,000, evidenced by three promissory notes.

Appeal by defendant from a judgment of the district court for Hennepin county, where the action was tried by Vanderburgh, J., without a jury.

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

Appeal by defendant from an order of the district court for Blue Earth county, Severance, J., presiding, overruling his demurrer to the complaint. The case is stated in the opinion. cited Cumber v. Wane, 1 Strange, 426; 1 Sm. Lead.

Plaintiff was the owner of certain land in Hennepin county which was under cultivation, and at the time of the trespass complained of, as appears from the uneontradieted testimony of plaintiff, the land was covered with a' large number of cultivated grapevines, with fruit trees, crops and vegetables.

Appeal by defendant from a judgment of the district court for Stearns county, McKelvy, J., presiding, affirming a judgment of a justice court on an appeal therefrom upon questions of law. The case is stated in the opinion No consideration is shown on the part of the plaintiffs. Even if defendant’s signature was fairly obtained- to the order, it cannot be enforced, there being no obligation on the part of the plaintiffs to comply with it.

Appeal by plaintiffs from a judgment of the district court for Sher-burne county, where the aetion was tried before McKelvy, J., and a jury. The case is stated in the opinion. The assignments should not have been admitted in evidence, for the following reasons: It did not appear that the taxes were ever assessed, levied or delinquent, or that any judgment was ever entered or sale made.

Certiorari. The relators, being creditors of one Francis J. Pierce, brought suit against him in the district court for Blue Earth county, and on November 21, 1881, attached his stock of goods.

Plaintiffs, being tbe owners of certain lots in the city of Duluth, brought this action in the district court for St. Louis county to have removed a cloud upon their title, the alleged cloud being, as appeared from the pleadings and on the trial, certain assignments from the state to defendant of all its right, title and interest to the lots in question acquired under tax judgments -entered January 1, 1875, and sales thereunder made February 27, 1875, for taxes delinquent…

Plaintiff, wbo is a member of the defendant association, brought this action in the district court for Bamsey county, to enjoin defendant and its board of directors from cancelling certain shares of stock ‘of defendant belonging to plaintiff, and to' have the attempted cancellation by defendant of certain other shares belonging to him declared void. The case was tried by Simons, J., without a jury.

The facts in this case are substantially the same as in the preceding one, and they were argued together. The plaintiff, however, in this action seeks to have the defendant compelled to make her a loan of $400, upon two shares of stock, which defendant had assumed to-cancel, as in the preceding case.

Appeal by plaintiff from an order of the district court for Lyon county, Cox, J., presiding, refusing a new trial. The acts to which plaintiff ref erred on the trial are the-following: 11U. S. St. at Large, 195; 13 U. S. St. at Large, 526;' 14 U. S. St. at Large, 97; Laws, 1855, c. 27; Laws, 1857, Ex. Sess. c. 1; Laws, 1858, c. 72; Laws, 1860, g. 82; Sp. Laws, 1862, c. 19. When defendant rested, plaintiff moved for judgment, which was denied.

Appeal by defendant from an order of the district court for Hen-nepin county, Young, J., presiding, refusing a new trial, after verdict of $300 for plaintiff. The case is stated in the opinion. To constitute a tort, both a wrong and damage must co-operate. Damnum absque injuria will not give a'cause of action. Cooley on Torts, 00, 62; Moak’s Underhill on Torts, 5.

Appeal by defendants from an order of the district court for Scott county, Macdonald, J., presiding, refusing a new trial. It was stipulated as a fact, at the trial, “that there was not and has not been any property or assets belonging to the estate of- which plaintiff was administrator, or in.the possession or control of plaintiff.”

Appeal by defendant from an order of the municipal court of Minneapolis, refusing a new trial. . The case is. stated in the opinion. cited Walker v. Ebert, 29 Wis, 194; Kellogg y. Steiner, 29 Wis. 626; Griffiths v. Kellogg, 39 Wis, 290; Wait v. Pomeroy, 20 Mich. 425; Burson v. Huntington, 21 Mich. 415; Foster v. Mackinnon, L. E. 4 C. P. 704; Whitney y, Snyder, 2 Lans. 477; Fayette Go. Savings Bank v. Steffes, 54 Iowa, 214.

Appeal by defendant from an order of the district court for Dodge ■county, Buckham, J., presiding, refusing a new trial. The action was tried April 5, 1881, judgment was entered October 20,1881, and the motion for a new trial was heard January 16, 1882, on notice given December 21, 1881.

Plaintiff was in the employ of defendant as a carpenter and engaged in building a depot.

Appeal by defendant from a judgment of the district court for Hennepin county, where the action was tried by Vanderburgh, J., without a jury.

Appeal by defendant Cox from an order of tbe district court for Winona county, Start, J., presiding, refusing a new trial.

Condemnation proceedings. Plaintiff appealed to the district court for Hennepin county from the award of the commissioners appointed by the court to ascertain and determine the compensation to be paid for the taking of a right of way by defendant through plaintiff’s land.

Appeal by defendants Booge and Goewey from a judgment of the district court for Nobles county, where the action was tried by Dickinson, J., without a jury.

Appeal by defendant Robbins from, an order of tbe district court for Ramsey county, Brill, J., presiding, refusing a new trial.

Plaintiffs brought this action, in the district court for Hennepin county, against the Western Manufacturers’ Mutual Insurance Company, to recover the amount due on a policy of insurance for $2,000, issued to one Robert Cochran, off a mill and machinery in this state. The mill was destroyed by ñre, and the loss under this policy was adjusted at $1,317.70 on July 19, 1880. On the same day Cochran. ■assigned all his rights under the policy to plaintiffs.

Appeal by defendant from an order of the district court for Clay comity, Stearns, J., presiding, refusing a new trial. The ease is stated in the opinion. The liability of a railroad company for damages, by reason of a failure to fence its road, is not limited to domestic animals. Fleming v. St. Paul é Duluth R. Co., 27 Minn. Ill; Schmidt v. Mil. c& St. P. My. Co.', 23 Wis. 186; Gillam v. Sioux City'é St. P. M. Co., 26 Minn. 268; Dávis v. Burlington é Mo. M. Co., 26 Iowa, 549.

This action was brought in the district court for Freeborn county.

Action on a fire-insurance policy issued by defendant to plaintiff June 19, 1874-, and containing, among other conditions, the following : “If the insured shall have or shall hereafter make any insurance in any other company on the property hereby insured, or any part thereof, without obtaining the consent of the secretory of this-association, * * * then, in every such case, the insured shall not be entitled to recover from the association any loss or damage which may occur…

Appeal by defendant from an order of the district court for Kam-sey county, Brill, J., presiding, refusing a new trial, if plaintiff should consent to reduce the verdict to $500, and which was done.

Bastardy proceedings. Appeal by defendant from a judgment of tbe district court for Fillmore county, where tbe action was tried before Farmer, J., and a jury. Tbe case is stated in tbe opinion. It was error to require a witness to give testimony criminating bimself, and not to instruct him that be was not obliged to answer. State v. Bilansky, 8 Minn. 169 (246;) Simmons v. Holster, 13 Minn. 249.

Appeal by defendant from an order of the district court for Bam-sey county, Brill, J., presiding, overruling a demurrer to the complaint. The case is stated in the opinion.

Appeal by plaintiff from an order of the district court for Henne-pin county, Young, J., presiding, refusing a new trial. The case is stated in the opinion. Upon the presentment of the bill of exchange to the drawee and upon its acceptance, the drawee was entitled to the bill of lading, and the bank was legally bound to deliver it. National Bank v. Merchants’ Bank, 91 U. S. 92; Marine Bank of Chicago v. Wright, 48 N. Y. 1; Lanjear v. Blossom, 1 La.

Appeal by defendants from an order of the district cqurt for Bed-wood county, pox, J., presiding, refusing a new trial. The case is stated in the opinion. Tlie authority of an attorney, in whose hands q, claim has been placed for collection, ceases after judgment has been entered, except for the purpose of receiving payment in full and satisfying the judgment within two years.

Plaintiff appeals from an order of the district court for Freeborn county, Farmer, J., presiding, refusing a new trial.' A statement of the case will be found in the opinion. The note in suit given for part of the price of a reaping-machine was for $99, with interest at twelve per cent, per annum from date, August 2, 1878. At the time of the verdict, May 26, 1881, this note amounted to $132.46.

Appeal by defendant Livingston Quaekenbush from an order of the district court for Le Sueur county, Macdonald, J., presiding, refusing a new trial, after a verdict of $7,000 for plaintiffs.

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

Appeal by defendant from an order of the district court for Waseca county, Buckham, J., presiding, refusing a new trial. cited Morrison v. N. Y. & N. H. B. Go., 32 Barb. 568; Morrison v. Erie Ry. Go., 56 N. Y. 302; Bennett v. Ghie. é N. W. Ry. Go. 19 Wis. 145; Great Western R. Co. v. Morthland, 30 Ill. 451; Wharton on Negligence, § 335; Gen. St. 1878, c. 34, § 57.

Appeal by defendant from an order of the district court for Hen-nepin county, Lochren, J., presiding, refusing a new trial, after a verdict for plaintiff.

Appeal by defendant from an order of the district court for Olmsted county, Start, J., presiding, refusing to require plaintiff to make his complaint more definite and certain. The case is stated in the opinion. The order is .appealable. Lovejoy v. Morrison, 10 Minn. 108, (136;) Starbuck v. Dunklee, 10 Minn. 136, (168;) Bice v. First Div., etc., R. Go., 24 Minn. 447; Stanley v. City of Davenport, 54 Iowa, 463; Ar-ríela v. Morrissey, 1 Abb. Pr.

Defendant having been indicted under Gen. St. 1878, c. 1G, § 4, in the district court for Nobles county, demurred to the indictment which was as follows-: [Yenue and title.] “Ben Langdon is accused by the grand jury of the county of Nobles,.

The defendant John J. Ring was the. duly elected and qualified treasurer of the county of Scott for the; regular term commencing March 1,… Held: that, upon Bing’s failure to qualify under his second election, he continued to hold the office of county treasurer under his first election, and that, until his removal, on June 21, 1880, he was da jure county treasurer, and in his first term of office; that, such being the case, the other defendants are liable as his sureties for…

Appeal by defendant from an order of the district court for Lyon county, Cox, J., presiding, refusing a new trial, after a verdict for plaintiff. The ease is stated in the opinion. The court erred in not charging the jury as requested by the defendant. Karsen v. Mil. d St. Paul By. Co., 29 Minn. 12; Great Western R. Co. v. Haworth, 39 Ill. 346; III. Cent. B. Co. v. McClel-land, 42 Ill. 355 ; Murphy v. Chicago d N. W. By. Co., 45 Wis. 222; Ohio d Miss. Ry.

The plaintiff, in bis complaint, alleges that on March 24, 1879, the board of county commissioners of Pine county granted to defendant, for six years, a license to maintain a certain dam across Snake river in that county for the sluicing of logs, and that, in pursuance thereof, and the conditions imposed by the board, and the statute in such case provided, the defendant on June 3, 1879, executed and delivered to the board a bond with sureties, which was duly approved by the…

Appeal by plaintiff from a judgment of the district court for Hen-nepin county, entered on an order made by Young, J., dismissing the action with costs, on the ground that the complaint does not state facts sufficient to constitute a cause of action. The material defects of the complaint are stated in the opinion. cited Gen. St. 1878, c. 77, § 5; c. 52, § 5; Miller v. Hoberg, 22 Minn. 249; Cunningham v. Ashley, 45 Cal. 485; Babcocks.

Plaintiff brought this action in a justice court, to recover the value of a calf, alleged to have been negligently killed by the defendant on its track. The justice rendered judgment against defendant, and added $10, extra costs, under Gen. St. 1878, c. 34, § 56.

■ Mandamus. Alternative writ directed to the respondents as judge and clerk of the municipal court of St. Paul, Bespondents answered and asked that the peremptory writ be denied.

Action to quiet title to certain vacant and unoccupied land in Hen-nepin county. Plaintiff’s title rested upon a purchase at an execution sale. Defendant claimed title through redemption from this sale, under Gen. St. 1878, c. 66, § 323, as a subsequent creditor. The action was tried in the district court for Hennepin county, by Young, J., without a jury, and judgment was entered for defendant, from which plaintiff appeals.

Mandamus. The affidavit on behalf of relator, and on which the alternative writ was allowed, stated that he is defendant in an action brought by Elizabeth C. Schmitt for divorce and for the restitution of her real estate; that the action was tried by jury before respondent, as judge of the district court of Scott county; that special issues were submitted to the jury, and special verdicts thereon returned; that respondent refused to allow the jury to bring in a general…

Appeal by defendants from an order of the district court for Otter Tail county, McKelvy, J., presiding, overruling their demurrer to the complaint, the substance of which is stated in the opinion. The original contract is admitted to have been free from any fraud. The plaintiff does not ask to have that contract set aside, but only the deed under it. She merely complains of the manner in which the consideration was paid.

The defendant, being arraigned in the district court for Eamsey county, on an indictment for keeping a house of ill-fame, resorted to for purposes of prostitution, in the city of St. Paul, on May 1, 1881, and at divers other dates and times between that day and the day of the date of the indictment, (October 11,1881,) pleaded (1) not guilty; (2) two special pleas. In the first of the special pleas it is alleged that under the charter of the city of St. Paul (Sp.

On the return to a writ of habeas corpus, allowed for the relief of one Shaw, in confinement under a judgment of a justice of the peace, and after argument, the respondent, as judge of the district court for Bice county, made an order discharging Shaw from custody. Thereupon the relator, as county attorney, sued out a writ of certiorari.

<p>■Contract — Construed as Severable&wkey;Plaintiff and defendant entered into a written agreement, whereby the former undertook to bore and curb five wells for the latter, at one dollar per foot, and also to furnish, for the same, pipe at 35 cents per foot, and pumps and other appliances at prices specified for each separately. It was further stipulated that, “ in case of failure to get good supply of water,” plaintiff should have “ no pay.” Held, that the agreement is not entire, but severable; that is to say, it is an agreement for the performance of a part of which (for instance, the completion of a single well) plaintiffs may recover.</p> <p>Same — Stipulated Damages for Non-Performance. — Held, further, that the agreement fixes the consequences to result from plaintiff’s failure to complete any one of the five wells, so as to secure a good supply of water, by its stipulation that there shall be no pay in such case.</p>

Appeal by defendant from an order of the district court for Henne-pin county, Lochren, J., presiding, refusing a new trial. The ease is stated in the opinion.

Plaintiff brought this action in a justice’s court, to recover the value of personal services. Judgment was rendered in favor of defendant. Plaintiff appealed to the municipal court of St. Paul, where the action was tried by the. court, and judgment ordered for plaintiff. Defendant appeals from an order refusing a new trial. Plaintiff testified, as follows: “Worked for defendant. * * * He asked me if I wanted to work for him.

In 1885, one Ingersoll, being the owner of the premises in controversy in this action, and his wife gave a power of attorney to one Hall, authorizing him to take possession of all lands belonging to Inger-soll in Minnesota, and to “sell the same or any thereof,” which power of attorney was duly recorded. Under this power of attorney Hall mortgaged the property in question in 1855, to one Brewer.

By an act approved March 3, 1857, (11 U. S. St, at Large, 195,) congress granted to the then territory of Minnesota, to aid in the construction of six lines of railroad on routes designated in the act, six sections of land per mile, in alternate sections, along the lines of such roads as they should thereafter be located. By an act approved May 23, 1857, (Laws 1857, Ex.

After tbe decision of the last preceding ease (State v. Young, ante, p. 474,) an extra session of the legislature was called by the governor, at which the act in question in that case was substantially re-enacted, with the omission of the provisions for submission to a tribunal or to the people. Laws 1881, Ex. Sess. c. 1.