Volume 29 — North Dakota Reports

<p>Courthouse site — hond of suretyship — county — purchasing site without notice to bondsmen — opportunity .to perform conditions must he given — sureties discharged from liability.</p> <p>These nine defendants, with eighteen other persons, in 1909 executed to plaintiff county a hond in the sum of $3,000 in the matter of a courthouse site, should bonds for the erection of a new courthouse he voted, which was done. A new site was required. Construction of the bond is the sole question. County urges that the hond was in effect a subscription of money to be applied to reimburse it for the expense of such new site. Defendants assert that by the bond they merely became sureties that upon selection of a site by the county board they would furnish and deliver to the county, free of expense, on demand, the site so chosen; that they have never been called upon to furnish title to such site, but that the county purchased it, making it impossible for them to do so, and thereby discharged them from liability. Held, that the bond is one of suretyship, and not a subscription. That as the county purchased the site from many different owners holding portions thereof, and this without notice to or demand upon the sureties to perform by furnishing plaintiff with title, and not affording the sureties an opportunity to perform their contract of suretyship, these sureties are discharged. Judgment entered against them ordered vacated and the action dismissed.</p>

From an order of tbe District Court of Barnes County, Coffey, L, denying an application to vacate a judgment taken by default, both defendant and intervener appeal. Where the thirty-day period allowing a defendant to answer expires on a holiday, he may serve his answer on the first following business day. A defendant so answering is not in default, and a judgment entered against him under such a state of facts should be vacated on motion. 21 Enc. PI. & Pr. 705; 19 Enc.

Action of trover for the conversion of grain. Counterclaim for balance due on land contract. Judgment for plaintiff. Defendants appeal. Statement by Bbuoe, J. Tbis is an action brought by T. H. Eoney as trustee of the Peterson Machine Company to recover of appellants for the conversion of certain flax of the stipulated value of $1,500. The defendant, the Halvor-sen Company, secured a contract to purchase the land on which the flax was grown, from the state of North Dakota.

Coffey, J. Action to recover damages for removal of lateral support.. Plaintiff appeals from order setting aside the verdict and granting a new trial. In a motion for a new trial upon the ground of newly discovered evidence, there must be facts sufficient to enable the supreme court to see that the trial judge had legal evidence before him showing the existence of such ground. Braithwaite v. Aiken, 2 N. D. 51, 49 N. W. 419.

From a judgment of tbe District Court of Kidder County, Hon. W. H. Winchester, Judge, defendant appeals. Tbe contract in tbis case must be canceled in Minnesota, where it was made, 3-ud under tbe procedure of that state provided. Finnes v. Selover, B, & Co. 102 Minn. 334, 113 N. W. 883; Walsb v. Selover, B. & Co. 109 Ninn. 136, 123 N. W. 291. Tbe lex loci contractus governs in tbe cancelation of a land sale contract.

Original petition for a writ of babeas corpus. Writ issued Statements of facts by -Bbuce, J. Tbis is a proceeding upon a writ of babeas corpus, tbe writ having been issued by tbis court. On tbe 20tb day of October, 1913, tbe petitioner was arrested at tbe city of Fargo, and brought before tbe Honorable A. G. Hanson, judge of the county court of Oass county, on tbe charge of keeping and maintaining a bawdy bouse.

<p>Common nuisance — conviction — not principal in crime — aided and abetted — instruction to that effect — prejudicial error.</p> <p>1. Appellant was convicted of the crime of maintaining a common nuisance. Coneededly, there was no evidence introduced proving, or tending to prove, that he was a principal in the unlawful transaction, it being the state’s contention merely that he aided and abetted another in the commission of the crime charged.</p> <p>Held, that there is no evidence to support such contention, and that it was therefore prejudicial error to instruct the jury that they might convict the defendant upon the theory that he aided and abetted another in keeping and maintaining such nuisance.</p> <p>Offense — unlawful keeping and maintaining a place — one must he owner or keeper.</p> <p>2. Following prior decisions of this court, which are cited in the opinion, construing § 10,117, Comp. Laws 1913 (Rev. Codes 1905, § 9373), Held, that the offense therein defined is the unlawful keeping and maintaining of a place where certain prohibited acts are committed, and no one except the owner or-keeper of such place can be adjudged guilty of such offense.</p>

Eorks County; O. M. Cooley, J. From a judgment ordered non obstante veredicto in plaintiff’s favor, defendant appeals. In a suit on a promissory note, a verdict should not be directed for tbe bolder, unless the evidence is such that fairminded men can draw only one inference therefrom, and may not be directed where the evidence is uncontroverted, if the inferences to be drawn from the circumstances are open to different conclusions by reasonable men.

F. Leighton, J. In some states there is- a distinction between tbe terms “subcontractor” and “materialman.” Tbis is not true in tbis state. Rev. Codes 1905, § 6250. A direct lien is given to tbe subcontractor. Robertson Lumber Co. v. State Bank, 14 N. D. 515, 105 N. W. 119; Langworthy Lumber Co. v. Hunt, 19 N. D. 436, 122. N. W. 865. It is the furnishing of the materials for the purpose of the construction, and tbe good faith delivery that controls and gives the lien right.

E. B. Goss, Special J. Motion to dismiss appeal from an order directing the clerk to satisfy .a judgment of record, A mere return of the property after judgment in the alternative ■in a claim and delivery action does not operate to satisfy the judgment. To have such effect, the property returned must be in substantially the same condition as when taken, and without material deterioration in value.

<p>Substitution of party defendant — order for — appealable — motion to dismiss appeal.</p> <p>In. an action for the recovery of money only, brought against tbe Western Grain Company, an order was made, on defendant’s motion, substituting Albert Lane, as receiver, as tbe defendant in lieu of such Grain Company, from wbicb order of substitution plaintiffs appeal. After sucb substitution Lane procured a judgment dismissing tbe action as to bim upon tbe ground that tbe complaint fails to state facts sufficient to constitute a cause of action, and that permission to sue bim, as sucb receiver, had not been granted. He now moves to dismiss plaintiffs’ appeal from sucb order of substitution, upon tbe ground that tbe entry of the judgment of dismissal renders tbe question involved on the appeal wholly moot.</p> <p>Held, that tbe grounds of sucb motion are untenable.</p>

<p>10 N. D. 180, 86 N. W. 697; Grandin v. Emmons, 10 N. D. 223, 54 L.R.A. 610, 88 Am. St. Rep. 684, 86 N. W. 723; Lynch v. Burt, 67 C. O. A. 305, 132 Fed. 429 ; Reilly v. Phillips, 4 S. D. 604, 57 N. W. 780; Dray v. Dray, 21 Or. 59, 27 Pac. 223; Tharp v. Kerr, 141 Iowa, 26, 119 N. W. 267; Gilchrist v. Comfort, 34 N. Y. 235; Tinkcom v. Lewis, 21 Minn. 132; Dickerson v. Hayes, 26 Minn. 100, 1 N. W. 834; Hoover v. Johnson, 47 Minn. 434, 50 N. W. 475; Littler v. People, 43 Ill. 188; Durley v. Davis, 69 Ill. 133; Hyman v. Bogue, 135 Ill. 9, 26 N. E. 40; Wooters v.'Joseph, 137 Ill. 113, 31 Am. St. Rep. 355, 27 N. E. 80; Parker v. Dacres, 130 H. S. 43, 32 L. ed. 848, 9 Sup. Ct. Rep. 433; Grove v. Great Northern Loan Co. 17 N. D. 352, 138 Am. St. Rep. 707, 116 N. W. 345.</p> <p>Courts have no right to extend the period in which to make redemption, except in case of fraud which prevents a redemption within one year. Ignorance of the law, or misfortune, gives a court of equity no right to interfere. 17 Cyc. 1329; 27 Cyc. 1822, 1830, 1831; 2 Jones, Mortg. § 1053; 3 Freeman, Executions, § 316; State ex rel. Brooks Bros. v. O’Connor, 6 N. D. 285, 69 N. W. 692; Nichols v. Tingstad, 10 N. D. 172, 86 N. W. 694; Grandin v. Emmons, 10 N. D. 222, 54 L.R.A. 610, 88 Am. St. Rep. 684, 86 N. W. 723; Little v.. Worner, 11 N. D. 382, 92 N. W. 456; Lynch v. Burt, 67 C. C. A. 305, 132 Fed. 429; Tilley v. Bonney, 123 Cal. 118, 55 Pac. 798; Ilurn v. Hill, 70 Iowa, 40, 29 N. W. 796; McConkey v. Lamb, 71 Iowa, 636, 33 N. W. 146; Stocker v. Puckett, 17 S. D. 267, 96 N. W. 91; Hoover v. Johnson, 47 Minn. 434, 50 N. W. 475; Gates v. Ege, 57 Minn. 465, 59 N. W. 495; Bethel v. Smith, 83 Ky. 84; Gos-munt v. Gloe, 55 Neb. 709, 76 N. W. 424; Stewart v. Park College, 68 Kan. 465, 75 Pac. 491; Keely v. Sanders, 99 H. S. 441, 446, 25 L. ed. 327.</p> <p>One making redemption proceeds at his peril, and if he does not tender the proper amount his rights are lost. 17 Cyc. 1332, note 45; 27 Cyc. 1823; 2 Jones, Mortg. § 1070; Hunt, Tender, §§ 51, 196; Davis v. Dale, 150 Ill. 239, 37 N. E. 215; Boyden v. Moore, 5 Mass. 370; Wright v. Behrens, 39 N. J. L. 413; Williams v. Dickerson, 66 Iowa, 106, 23 N. W. 286; Case v. Fry, 91 Iowa, 132, 59 N. W. 333; Horton v. Maffitt, 14 Minn. 289, Gil. 216, 100 Am. Dec. 222; Dickerson v. Hayes, 26 Minn. 100, 1 N. W. 834; Hoover v. Johnson, 47 Minn. 434, 50 N. W. 475; Bovey De Laittre Lumber Co. v. Tucker, 48 Minn. 223, 50 N. W. 1038; Bartleson v. Munson, 105 Minn. 348, 117 N. W. 512; McMillan v. Yiscber, 14 Cal. 232; Burley v. Bavis, 69 Ill. 133; Biekenson v. Gilliland, 1 Cow. 481; Harmon v. Steed, 49 Fed. 779; Beebe v. Buxton, 99 Ala. 117, 12 So. 567; Beatty v. Brown, 101 Ala. 695, 14 So. 368; Murpbree v. Summerlin, 114 Ala. 54, 21 So. 470.</p> <p>While the sheriff is a public agent for the purpose of receiving redemption money, he' cannot bind the purchaser by an illegal or improper redemption. Hunt, Tender, § 285; North Bakota Horse & Cattle Co. v. Serumgard, 17 N. B. 466, 29 L.B.A. (N.S.) 508, 138 Am. St. Bep. 717, 117 N. W. 453; McBonald v. Beatty, 10 N. B. 519, 88 N. W. 281; Hannah, v. Chase, 4 N. B. 355, 50 Am. St. Bep. 656, 61 N. W. 18; Bennett v. Wilson, 122 Cal. 509, 68 Am. St. Bep. 61, 55 Bac. 390; McMillan v. Yischer, 14 Cal. 232; Horton v. Maffitt, 14 Minn. 289, Gil. 216, 100 Am. Bee. 222; Bavis v. Seymour, 16 Minn. 210, Gil. 184; Tinkcom v. Lewis, 21 Minn. 142; McCarthy v. Grace, 23 Minn. 182; Schroeder v. Lahrman, 28 Minn. 75, 9 N. W. 173; Hall v. Swensen, 65 Minn. 391, 67 N. W. 1024; Hull v. Chapel, 71 Minn. 408, 74 N. W. 156; Hughes v. Olson, 74 Minn. 237, 73 Am. St. Bep. 343, 77 N. W. 42; Byer v. Healy, 84 Iowa, 1, 50 N. W. 70; Byers v. McEniry, 117 Iowa, 499, 91 N. W. 797; Gilchrist v. Comfort, 34 N. Y. 235.</p> <p>Misfortune, culpable negligence, ignorance of the law, or mistake as to the law, will not justify the interference of a court of equity. 17 Cyc. 1332; 3 Freeman, Executions, § 316, p. 1857; Case v. Fry, 91 Iowa, 132, 59 N. W. 333; McOonkey v. Lamb, 71 Iowa, 636, 33 N. W. 146; Tharp v. Kerr, 141 Iowa, 26, 119 N. W. 267; Campan v. Godfrey, 18 Mich. 27, 100 Am. Bee. 133; Cameron v. Adams, 31 Mich. 426; Bickerson v. Hayes, 26 Minn. 100, 1 N. W. 834; State v. Kerr, 51 Minn. 417, 53 N. W. 719; Hyman v. Bogue, 135 Ill. 9, 26 N. E. 40; Lynch v. Burt, 67 C. C. A. 305, 132 Fed. 430. The issue as to whether or not Anna G. Heitsch redeemed is res judicata. Where the real party in interest defends the action, the judgment is none the less res judicata because the proceedings are in the name of the sheriff. Baxter v. Myers, 85 Iowa, 328, 39 Am. St. Bep. 298, 52 N. W. 234; Elder v. Frevert, 18 Nev. 446, 5 Pac. 69.</p> <p>A judgment in mandamus is as conclusive as a judgment in any other action, as to the issues determined therein. 19 Am. & Eng. Enc. Law, 723; 26 Cyc. 485; 13 Enc. PI. & Pr. 504; Santa Cruz Gap Turnp. Joint Stock Co. v. Santa Clara County, 62 Cal. 40; Visher v. Smith, 92 Cal. 60, 28 Pac. 94; Hoffman v. Silverthorn, 137 Mich. 60, 100 N. W. 183; Lewis v. Brown Twp. 109 U. S. 162-166, 27 L. ed. 892, 893, 3 Sup. Ct. Eep. 92; Smeaton v. Austin, 82 Wis. 76, 51 N. W. 1090; Ashton v. Bochester, 133 N. T. 187, 28 Am. St. Eep. 619, 30 N. E. 965, 31 N. E. 334.</p> <p>A valid judgment for plaintiff definitely and finally negatives every defense, objection, or exception which might have been urged in the action. 24 Cyc. 1196, 1295; 24 Am. & Eng. Enc. Law, 781; 23 Cyc. 1242; Ward v. Clendenning, 245 Ill. 206, 91 N. E. 1028; Landes v. Matthews, 136 Mo. App. 637, 118 S. W. 1185; Kennedy v. Security Bldg. & Sav. Asso. — Ky. —, 57 S. W. 388; Shoemake v. Finlayson, 22 Wash. 12, 60 Pac. 50; Douthitt v. MacOulsky, 11 Wash. 601, 40 Pac. 186; Daskam v. Ullman, 74 Wis. 474, 43 N. W. 321; American Bonding Co. v. Loeb, 47 Wash. 447, 92 Pac. 282; Eamsey v. Wilson, 52 Wash. Ill, 100 Pac. 177; Eullman v. Pullman, 81 Kan. 521, 106 Pac. 52; Drinkhouse v. Spring Valley Waterworks, 87 Cal. 253, 25 Pac. 420; Harvie v. Turner, 46 Mo. 444; Landis v. Hamilton, 77 Mo. 554; Walden v. Walden, 128 Ga. 126, 57 S. E. 323; Canal Constr. Co. v. Woodbury County, 146 Iowa, 526, 121 N. W. 556; Montgomery v. Vickery, 110 Ind. 211, 11 N. E. 38; Parr v. State, 71 Md. 220, 17 Atl. 1020; Bachelder v. Brown, 47 Mich. 366, 11 N. W. 200.</p> <p>Where the real party in interest conducts the defense, — employs and pays counsel, — he is bound by the judgment. 24 Am. & Eng. Enc. Law, 737; 1 Ereeman, Judgm. §§ 174, 184; 1 Herman, Estoppel, §§ 148, 150, 156, 157; 2 Van Fleet, Former Adjudication, §§ 522, 523; Bigelow v. Draper, 6 N. D. 158, 69 N. W. 570; Boyd v. Wallace, 10 N. D. 78, 84 N. W. 760; Bachelder v. Brown, 47 Mich. 366, 11 N. W. 200; Carpenter v. Carpenter, 126 Mich. 217, 85 N. W. 576; 136 Mich. 362, 99 N. W. 395 ;• Kolpack v. Kolpack, 128 Wis. 169, 116 Am. St. Eep. 29, 107 N. W. 457; Hendricks v. Dean, 105 Minn. 162, 117 N. W. 426; Parsons v. Urie, 104 Md. 238, 8 L.E.A.(N.S.) 559, 64 Atl. 927, 10 Ann. Cas. 278; Hurd v. McClellan, 1 Colo. App. 327, 29 Pac. 181; Thomsen v. McCormick, 136 Ill. 135, 26 N. E. 373; Stoddard v. Thompson, 31 Iowa, 80; MeNamee v. Moreland, 26 Iowa, 96; Wright y. Andrews, 130 Mass. 149; Albert v. Hamilton, 76 Md. 304, 25 Atl. 341; Parr v. State, 71 Md. 220, 17 Atl. 1020; Peterson v. Lothrop, 34 Pa, 228.</p> <p>The notes and mortgage were unconditionally delivered. But the law presumes delivery where notes are no longer in the hands of the maker. Bev. Codes 1905, § 6318.</p> <p>An express warranty in an order for goods excludes any implied warranties. Dowagiac Mfg. Co. v. Mahon, 13 N. D. 516, 101 N. W. 903.</p> <p>A party to whom an order for goods, signed by him, is delivered, is held to know the contents of such order. Beeves v. Corrigan, 3 N. D. 415, 57 N. W. 80; Pahey v. Esterley Mach. Co. 3 N. D. 220, 44 Am. St. Bep. 554, 55 N. W. 580; Minnesota Thresher Mfg. Co. v. Lincoln, 4 N. D. 410, 61 N. W. 145; Eurneaux v. Esterly, 36 Kan. 539, 13 Pac. 824; Beeves & Co. v. Lewis, 25 S. D. 44, 29 L.B.A.(N.S.) 82, 125 N. W. 289; J. I. Case Threshing Mach. Co, v. Ebbighausen, 11 N. D. 470, 92 N. W. 826.</p> <p>A general agent or branch house manager has no authority or power to modify a contract of his company, or change its provisions. J. I. Case Threshing Mach. Co. v. Ebbighausen, 11 N. D. 470, 92 N. W. 826; Fahey v. Esterley Mach. Co. 3 N. D. 220, 44 Am. St. Bep. 554, 55 N. W. 580; Minnesota Thresher Mfg. Co. v. Lincoln, 4 N. D. 425, 61 N. W. 145; J. I. Case Threshing Mach. Co. v. Patterson, 137 Ky. 180, 125 S. W. 287.</p> <p>The rendering of assistance in starting a machine, or repairing defects therein, does not affect or waive any provisions of the contract., or extend time of trial. Beeves v. Corrigan, 3 N. D. 415, 57 N. W* 80; Minnesota Thresher Mfg. Co. v. Lincoln, 4 N. D. 425, 61 N. W. 145; Fahey v. Esterley Mach. Co. 3 N. D. 220, 44 Am. St. Bep. 554, 55 N. W. 580; Heagney'v. L. I. Case Threshing Mach. Co. 4 Neb. (Hnof.) 745, 96 N. W. 175; J. I. Case Threshing Mach. Co. v. Hall, 32 Tex. Civ. App. 214, 73 S. W. 835; Bev. Codes 1905, § 5333; Beeves v.'Bruening, 13 N. D. 157, 100 N. W. 241; McCormick Harvesting Mach. Co. v. Markert, 107 Iowa, 340, 78 N. W. 33.</p> <p>A breach of warranty must be proved as alleged. 35 Cyc. 437.</p> <p>A failure to strictly comply with the contract waives the warranties* 35 Cyc. 437, 438; 30 Am. & Eng. Enc. Law, 189, and note 4; Minnesota Tkresbér Mfg. Co. v. Lincoln, 4 N. L>. 410, 61 N. W. 145; Burke v. Keystone Mfg. Co. 19 Ind. App. 556, 48 N. E. 382; Seiberling v. Kodman, 14 Ind. App. 460, 43 N. E. 38; J. I. Case Threshing Mach. Co. v. Mattingly,' 142 Ky. 581, 134 S. W. 1131; J. I. Case Threshing Mach. Co. v. Cook, 7 Ga. App. 631, 67 S. E. 890; Gaar, S. & Co. y. Ilicks, — Tenn. —•, 42 S. W. 455; Nichols & S. Co. v. Chase, 103 Wis. 570, 79 N. W. 772; Kowell v. Oleson, 32 Minn. 28.8, 20 N. W. 227; Ayery Planter Co. y. Peck, 86 Minn. 40, 89 N. W. 1123.</p> <p>The provision in the order, that persons therein named shall have no authority to alter or change such order, or waive any of its provisions, is valid and binding on the purchaser of the goods, and he is held to know that any such person so acting is exceeding his authority. Eahey v. Esterley Mach. Co. 3 N. D. 220, 44 Am. St. Rep. 554, 55 N. W. 580; Reeves & Co. v. Corrigan, 3 N. D. 415, 57 N. W. 80; Minnesota Thresher Mfg. Co. v. Lincoln, 4 N. L). 410, 61 N. W. 145; J. I. Case Threshing Mach. Co. v. Ebbighausen, 11 N. H. 470, 92 N. W. 826; Larson v. Minneapolis Threshing Mach. Co. 92 Minn. 62, 99 N. W. 623; Eurneaux c. Esterly, 36 Kan. 539, 13 Pac. 824.</p> <p>Where the contract calls for written notice to the company at its home, office, notice to the local dealer, agent, or branch-house manager, is not sufficient. Fahey v. Esterley Mach. Co. 3 N. D. 220, 44 Am. St. Rep. 554, 55 N. W. 580; Minnesota Thresher Mfg. Co. v. Lincoln, 4 N. L>. 410, 61 N. W. 145; J. I. Case Threshing Mach. Co. v. Ebbig-hausen, 11 N. D. 470, 92 N. W. 826; Aultman & T. Machinery Co. v. Wier, 67 Kan. 674, 74 Pac. 227; Gaar, S. & Co. v. Hicks, —Tenn. —, 42 S. W. 455; J. I. Case Threshing Mach. Co. v. Lyons, 24 Ky. L. Rep. 1862, 72 S. W. 356; Nichols & S. Co. v. Caldwell, 26 Ky. L. Rep. 136, 80 S. W. 1099; 35 Cyc. 426, note 3; 38 Cyc. 432, note 38; Gaar, S. & Co. v. Green, 6 N. D. 48, 68 N. W. 318; Hanson v. Lind-strom, 15 N. D. 584,'108 N. W..798; Seiberling v. Rodman, 14 Ind. App. 460, 43 N. E. 38; Burke v. Keystone Mfg. Co. 19 Ind. App. 556, 48 N. E. 382; J. I. Case Threshing Mach. Co. v. Hall, 32 Tex. Civ. App. 214, 73 S. W. 835; Shearer v. Gaar, S. & Co. 41 Tex. Civ. App. 39, 90 S. W. 684; Murphy v. Russell, 8 Idaho, 133, 67 Pac. 421; Ault-man & T. Machinery Co. v. Wier, 67 Kan. 674, 74 Pac. 227; Larson y. Minneapolis Threshing Mfg. Co. 92 Minn. 62, 99 N. W. 623 ; Zimmerman Mfg. Co. v. Dolph, 104 Micb. 281, 62 N. W. 339; Hercules Iron Works v. Dodsworth, 57 Fed. 556; Gaar, S. & Co. v. Hicks, — Term. —, 42 S. W. 455; Trapp v. New Birdsall Co. 1Ó9 Wis. 543, 85 N. W. 478; Nicbols & S. Co. v. Chase, 103 Wis. 570, 79 N. W. 772; Beeves & Co. v. Lewis, 25 S. D. 44, 29 L.R.A. (N.S.) 82, 125 N. W. 289; J. I. Case Threshing Mach. Co. v. Gidley, 28 S. D. 101, 132 N. W. 711; J. I. Case Threshing Mach. Co. v. Mattingly, 142 Ky. 581, 134 S. W. 1131; J. I. Case Threshing Mach. Co. v. Lyons, 24 Ky. L. Kep. 1862, 72 S. W. 356.</p> <p>Such an order or contract for the purchase of machinery is a valid, reasonable,' and enforceable contract. Fahey v. Esterly Mach. Co. 3 N. D..220, 44 Am. St. Kep. 554, 55 N. W. 580; Reeves & Co. v. Corrigan, 3 N. D. 415, 57 N. W. 80; Minnesota Thresher Mfg. Co. v. Lincoln, 4 N. D. 410, 61 N. W. 145; Gaar, S. & Co. v. Green, 6 N. D. 48, 68 N. W. 318; James v. Bekkedahl, 10 N. D. 120, 86 N. W. 226; J. I. Case Threshing Mach. Co. v. Ebbighansen, 11 N. D. 470, 92 N. W. 826; Reeves v. Brnening, 13 N. D. 157, 100 N. W. 241; Hanson v. Lindstrom, 15 N. D. 584, 108 N. W. 798; Colean Mfg. Co. v. Feckler, 20 N. D. 188, 126 N. W. 1019; J. I. Case Threshing Mach. Co. v. Hall, 32 Tex. Civ. App. 214, 73 S. W. 835; Nichols & S. Co. v. Chase, 103 Wis. 570, 79 N. W. 772; J. I. Case Threshing Mach. Co. v. Grid-ley, 28 S. D. 101,132 N. W. 711, 30 Am. & Eng. Enc. Law, 188.</p> <p>Where the contract is divisible, and the warranties apply to each article covered by the contract, and it provides that a defective article may be returned if not remedied by the seller, a return of the entire outfit is not a rescission. Nichols & S. Co. v. Wiedemann, 72 Minn. 344, 75 N. W. 208, 76 N. W. 41; Aultman & T. Co. v. Lawson, 100 Iowa, 569, 69 N. W. 865; Westbrook v. Reeves, 133 Iowa, 655, 111 N. W. 11; Northwest Thresher Co. v. Mehlhoff, 23 S. D. 476, 122 N. W. 428; Nichols & S. Co. v. Chase, 103 Wis. 570, 79 N. W. 772; Young & Conant Mfg. Co. v. Wakefield, 121 Mass. 91.</p> <p>One who holds mere interest notes, and a mortgage securing same, the principal being represented by a separate note and mortgage, has no right to declare unearned interest due, and foreclose, by reason of any acceleration clause in such interest mortgage. Rev. Codes 1905, § 5511; Smith v. Whitley, 28 L.R.A.(N.S.) 114; Close v. Riddle, 91 Am. St. Eep. 586; France v. Munroe, 19 L.E.A.(N.S.) 391; Davis v. Garr, 55 Am. Dec. 392; Sylvester v. Swan, 81 Am. Dec. 736; Bank of Newport v. Cook, 46 Am. St. Eep. 178.</p> <p>A court cannot quiet title in a mandamus proceeding by cancelation of our certificate of redemption. 26 Oyc. 484 — 490 ; Eandall v. John-stone, 25 N. D. 284, 141 N. W. 352; Ueland v. More Bros.' 22 N. D. 283, 133 N. W. 543; Luick v. Arends, 21 N. D. 614, 132 N. W. 353; Bruegger v. Cartier, 20 N. D. 72, 126 N. W. 491; Clarke v. Doyle, 17 N. D. 340, 116 N. W. 348; West v. Northern P. E. Co. 13 N. D. 221, 100 N. W. 254.</p> <p>The plaintiff properly secured the certificate of redemption; the full amount required to redeem was paid to the sheriff, the proper person. A redemptioner gets no certificate of redemption. The officer has no duty to perform other than to take the money and turn it over to the person entitled to receive it. Eev. Codes 1905, § 7145.</p> <p>Our rights are governed by the law existing at the time we gave the mortgage. 11 Am. & Eng. Enc. Law, 2d ed. 213, 214; 28 Am. & Eng. Enc. Law, 2d ed. 845, note 2; Cargill v. Power, 1 Mich. 369; Smith v. Green, 41 Eed. 455; 8 Oyc. 894 — 994.</p> <p>The tender and deposit law is mandatory, and is for the protection of persons who redeem, or attempt to redeem, in case the sheriff or others refuse their money. 13 Am. & Eng. Enc. Law, 13; 27 Am. & Eng. Enc. Law, 861; Styles v. Dickey, 22 N. D. 515, 134 N. W. 702; 19 Cyc. 529, 530.</p> <p>The duties of the sheriff as to the “mortgagor” who redeems from sale, and his duties as to a “redemptioner” who redeems, are distinct. To the former he issues a certificate of redemption; to the latter, his deed. The certificate is filed and recorded; the notice of redemption is only filed. Eev. Codes 1905, §§ 7142-7156.</p> <p>The purpose of the law is to furnish means of redress in case the sheriff refuses the money, and declines to issue certificate. 25 Am. & Eng. Enc. Law, 2d ed. 846; Spackman v. Gross, 25 S. D. 244, 126 N. W. 389; Eev. Codes 1905, §§ 6141, 6142, 1596; Graham v. Mutual Eealty Co. 22 N. D. 423, 134 N. W. 43; Throop, Pub. Off. 560; Hannah v. Chase, 4 N.. D. 351, 50 Am. St. Eep. 656, 61 N. W. 18; Berthold v. IToeman, 12 Minn. 335, Gil. 221, 93 Am. Dec. 233; North Dakota Horse & Cattle Co. v. Serumgard, 17 N. D. 466, 29 L.E.A. (N.S.) 508, 138 Am. St. Rep. 717, 117 N. W. 453; Hintrager v. Mahoney, 78 Iowa, 537, 6 L.R.A. 50, 43 N. W. 552; 27 Am. & Eng. Enc. Law, 2d ed. 858; 25 Am. & Eng. Enc. Law, 2d ed. 850.</p> <p>We procured and paid for the certificate in good faith; it was delivered to ns, and this is sufficient to enable us to invoke equitable interposition. 25 Am. & Eng. Enc. Law, 2d ed. 779; Hintrager v. Mahoney, 78 Iowa, 537, 6 L.R.A. 50, 43 N. W. 522.</p> <p>Where one in good faith attempts to redeem, and through mistake or fraud fails to comply strictly with the statute, equity will grant relief. 17 Am. & Eng. Enc. Law, 1036; Moore v. Bishop, 20 Ky. L. Rep. 1622, 49 S. W. 957; Bunting v. Haskell, 152 Cal. 426, 93 Pac. 110; 25 Am. & Eng. Enc. Law, 845; Henderson v. Harness, 184 Ill. 520, 56 N. E. 786; 27 Am. & Eng. Enc. Law, 849 — 858; 17 Cyc. 330; Graffam v. Burgess, 117 H. S. 180, 29 L. ed. 839, 6 Sup. Ct. Rep. 686; Branch v. Eoust, 130 Ind. 538, 30 N. E. 631; Smith v. Huntoon, 134 Ill. 24, 23 Am. St. Rep. 646, 24 N. E. 971; Paddack v. Staley, 13 Colo. App. 363, 58 Pac. 363; Benson v. Bunting, 127 Cal. 532, 59 Pac. 991; Schroeder v. Young, 161 IÍ. S. 334, 40 L. ed. 721, 16 Sup. Ct. Rep. 512; Stephenson v. Kilpatrick, 166 Mo. 262, 65'S. W. 773; Prondzinski v. Garbutt, 8’N. D. 191, 77 N. W. 1012; Hintrager v. Mahoney, 78 Iowa, 537, 6 L.R.A. 50, 43 N. W. 522; McDonald v. Beatty, 10 N. D. 511, 88 N. W. 281; Nichols v. Tingstad, 10 N. D. 172, 86 N. W. 697; Power v. Kitching, 10 N. D. 254, 88 Am. St. Rep.. 691, 86 N. W. 737; Power v. Larabee, 3 N. D. 502, 44 Am. St. Rep. 577, 57 N. W. 789; Kuhnert v. Conrad, 6 N. D. 215, 69 N. W. 185; Kenmare Hard Coal, Brick & Tile Co. v. Riley, 20 N. D. 182, 126 N. W. 241. .</p> <p>Delivery of the notes is a conclusion of law. It does not involve mere manual possession, but requires an intent to deliver. Possession obtained by fraud, or in any wrongful manner, cannot be converted into a delivery. Rev. Codes 1905, §§ 5292-5294, 5753 — 6381; Nelson v. Grondahl, 12 N. D. 130, 96 N. W. 299; Ditton v. Purcell, 21 N. D. 648, 36 L.R.A.(N.S.) 149, 132 N. W. 347; Tamlyn v. Peterson, 15 N. D. 488,107 N. W. 1081; Walters v. Rock, 18 N. D. 45, 115 N. W. 511; Citizens’ State Bank v. Garceau, 22 N. D. 576, 134 N. W. 882; Sargent v. Cooley, 12 N. D. 1, 94 N. W. 576; Viets v. Silver, 15 N. D. 51, 106 N. W. 35; Heland v. More Bros. 22 N. D. 283, 133 N. W. 543; McCormick Harvesting Mack. Co. v. Taylor, 5 N. D. 53, 57 Am. St. Eep. 538, 63 N. W. 890; 7 Cyc. 683-688; 20 Cyc. 22-85, note 64; 31 Cyc. 1582-1603; 8 Cyc. 38; 4 Am. & Eng. Enc. Law, 2d ed. 201-204.</p> <p>There was not even a conditional delivery here. The notes were turned over with the actual intent that they would not. be effective, and there was no consideration. Dowagiac Mfg. Co. v. Hellekson, 13 N. D. 257, 100 N. W. 717; 31 Cyc. 1217-1429; Mechem, Agency, 273, 278.</p> <p>The restrictions contained in the order in question -render it void as against public policy. Westby v. J. I. Case Threshing Mach. Co. 21 N. D. 575, 132 N. W. 137.</p> <p>There was an oral contract under which the rig was delivered and accepted. Eev. Codes 1905, §§ 5286-5308; Westby v. J. I. Case Threshing Mach. Co. 21 N. D. 575, 132 N. W. 137; National Eefining Co. v. Miller, 1 S. D. 548, 47 N. W. 962; National Cash Eegister Co. v. Pfister, 5 S. D. 143, 58 N. W. 270; J. L. Owens Co. v. Bemis, 22 N. D. 159, 37 L.E.A.(N.S.) 232, 133 N. W. 59; 24 Am. & Eng. Enc. Law, 1028, 1029; 35 Cyc. 50-302; A. W. Cooper Wagon & Buggy Co. v. Stedronsky Bros. Co. 24 S. D. 381, 123 N. W. 846; Colean Mfg. Co. v. Blanchett, 16 N. D. 341, 113 N. W. 614; Eeeves v. Bruen-ing, 13 N. D. 157, 100 N. W. 241; Note to Bauman v. McManus, 10 L.E.A.(N.S.) 1139; P. J. Bowlin Liquor Co. v. Beaudoin, 15 N. D. 557, 108 N. W. 545; Minneapolis Threshing Mach. Co. v. Evans, 139 Eed. 860; Hooven & A. Co. v. Wirtz Bros. 15 N. D. 477, 107 N. W. 1078; Beiseker v. Amberson, 17 N. D. 215, 116 N. W. 94; McCormick Harvesting Mach. Co. v. Eichardson, 89 Iowa, 525, 56 N. W. 682; Eev. Codes 1905, §§ 5376-5382; Clark, Contr. 127-420; Barton v. Noon, 20 S. D. 7, 104 N. W. 521; Wisner v. Field, 15 N. D. 43, 106 N. W. 38; Dowagiac Mfg. Co. v. Hellekson, 13 N. D. 257, 100 N. W. 717; Haugen v. Skjervheim, 13 N. D. 616, 102 N. W. 311; Wadge v. Kittleson, 12 N. D. 452, 97 N. W. 856; Benesh v. Travelers’ Ins. Co. 14 N. D. 39, 103 N. W. 405; Talbot v. Boyd, 11 N. D. 81, 88 N. W. 1026; Nichols & S. Co. v. Paulson, 6 N. D. 400, 71 N. W. 136; Mahon v. Leech, 11 N. D. 181, 90 N. W. 807; 35 Cyc. 126-332.</p> <p>False warranties and representations, whether the contract is oral or written, constitute fraud, and authorize rescission of contract and return of property. Eev. Codes 1905, §§ 5292-5388; Sockman v. Keim, 19 N. D. 317, 124 N. W. 64; Needham v. Halverson, 22 N. D. 594, 135 N. W. 203; J. I. Case Threshing Mach. Co. v. Erickson, 21 N. D. 478, 131 N. W. 269; 35 Cyc. 368; 30 Am. & Eng. Enc. Law, 132; Eev. Codes 1905, §§ 5287 — 6623; Eochford v. Barrett, 22 S. D. 83, 115 N. W. 522; Bennett v. Glaspell, 15 N. D. 239, 107 N. W. 45; Union Trust Co. v. Phillips, 7 S. D. 225, 63 N. W. 903; Sonne-syn v. Akin, 14 N. D. 248, 104 N. W. 1026; Ditton v. Purcell, 21 N. D. 648, 36 L.E.A.(N.S.) 149, 132 N. W. 347; American Case & Eegister Co. v. Walton & D. Co. 22 N. D. 187, 133 N. W. 309; National Cash Eegister Co. v. Pfister, 5 S. D. 143, 58 N. W. 270; 35 Cyc. 63 — 359; 9 Cyc. 474; 14 Am. & Eng. Enc. Law, 157, 158.</p> <p>There was a waiver of all conditions of warranty and return, and an unperformed substituted agreement therefor. Dowagiac Mfg. Co. v. Hellekson, 13 N. D. 257, 100 N. W. 717; Buchanan v. Minneapolis Threshing Mach. Co. 17 N. D. 343, 116 N. W. 335; Greder v. Stahl, 22 S. D. 139, 115 N. W. 1129; Houghton v. Yavrosky, 15 N. D. 308, 109 N. W. 1024; Peter v. Plano Mfg. Co. 21 S. D. 198, 110 N. W. 783 ; Simonson v. Jenson, 14 N. D. 417, 104 N. W. '513; Leisen v. St. Paul E. & M. Ins. Co. 20 N. D. 316, 30 L.E.A.(N.S.) 539, 127 N. W. 837; Breeden v. Uítna L. Ins. Co. 23 S. D. 417, 122 N. W. 348; Eransen v. South Dakota Eegents of Edu. 66 C. C. A. 174, 133 Eed. 24; Engholm v. Ekrem, 18 N. D. 185, 119 N. W. 35; Benesh v. Travelers’ Ins. Co. 14 N. D. 39, 103 N. W. 405; Lee V. Neumen, 15 S. D. 642, 91 N. W. 320; Canham v. Plano Mfg. Co. 3 N. D. 229, 55 N. W. 583; Briggs v. M. Eumely Co. 96 Iowa, 202, 64 N. W. 784; J. I. Case Threshing Mach. Co. v. Ebbighausen, 11 N. D. 468, 92 N. W. 826; Westby v. J. I. Case Threshing Mach. Co. 21 N. D. 575, 132 N. W. 137; Pfeiffer v. Norman, 22 N. D. 168, 38 L.E.A.(N.S.) 891, 133 N. W. 97; Heland v. More Bros. 22 N. D. 283, 133 N. W. 543; Eryer v. Cetnor, 6 N. D. 518, 72 N. W. 909; McGlynn v. Scott, 4 N. D. 18, 58 N. W. 460; Eev. Codes 1905, §§ 5378-5399; 35 Cyc. 27-654; 20 Cyc. 87; 24 Am. & Eng. Ene. Law* 1100 — 1160; 30 Am. & Eng. Enc. Law, 132; Baskerville v. Johnson, 20 S. D. 88, 104 N. W. 913; Stine v. Poster, 23 S. D. 558, 122 N. W. 598; Colean Mfg. Co. v. Blanchett, 16 N. D. 341, 113 N. W. 614; •Garland v. Keeler, 15 N. D. 548, 108 N. W. 484; Libby v. Barry, 15-N. D. 286, 107 N. W. 972.</p> <p>Mrs. Heitscb and her land were mere sureties. Rev. Codes 1905, §§ ■6099 — 6100; People’s State Bank v. Francis, 8 N. D. 369, 79 N. W. •853; Colonial & IT. S. Mortg. Co. v. Stevens, 3 N. D. 265, 55 N. W. 578; Roberts v. Roberts, 10 N. D. 533, 88 N. W. 289; State v. Mellette, 21 S. D. 404, 113 N. W. 83; Windhorst v. Bergendahl, 21 ,S. D. 218, 130 Am. St. Rep. 715, 111 N. W. 544; 27 Am. & Eng. Enc. Law, 2d ed. 433, 434; 32 Cyc. 22-37.</p> <p>Acceleration clauses are only effective as remedies under the mortgage. They cannot be construed to make notes due, and are not effective against persons not parties. 7 Cyc. 860-861, note 59; 4 Am. & Eng. Enc. Law, 2d ed. 144; 7 Cyc. 599 — 628, note 92; Mallory v. West Shore Hudson River R. Co. 3 Jones & S. 174; McClelland v. Bishop, 42 Ohio St. 113; American Nat. Bank v. American Wood Paper Co. 19 R. I. 149, 29 L.R.A. 103, 61 Am. St. Rep. 746, 32 Atl. 305; White v. Miller, 52 Minn. 367, 19 L.R.A. 673, 54 N. W. 736; Trease v. Haggin, 107 Iowa, 458, 78 N. W. 58; Owings v. McKenzie, 133 Mo. 323, 40 L.R.A. 154, 33 S. W. 802.</p> <p>Mrs. Ileitsch is entitled to subrogation to the rights of the creditors. Rev. Codes 1905, §§ 6110 — 7144; Thurston v. Osbome-McMillan Elevator Co. 13 N. D. 508, 101 N. W. 892; Bingham v. Mears, 4 N. D. 437, 27 L.R.A. 257, 61 N. W. 808; Wm. Deering & Co. v. Russell, 5 N. D. 319, 65 N. W. 691; 27 Am. & Eng. Enc. Law, 202— 209; 37 Cyc. 363-414.'</p> <p>The first instalments of the chattel mortgage constitute a first mortgage. Rev. Codes 1905, §§ 6157-7486; Borden v. McNamara, 20 N. D. 225, 127 N. W. 104, Ann. Cas. 19120, 841; 6 Cyc. 1020; 7 Cyc. 82; 27 Cyc. 1303-1306.</p> <p>The proceeds of the foreclosure of the chattel mortgage should be applied to the notes first due. These proceeds came from property to which the surety had the right to look. Note to McWhorter v. Bluthen-thal, 96 Am. St. Rep. 57; Orleans County Nat. Bank v. Moore, 112 N. T. 543, 3 L.R.A. 302, 8 Am. St. Rep. 775, 20 N. E. 357; Armstrong v. McLean, 153 N. T. 490, 47 N. E. 912; Prescott v. Brooks, 11 N. D. 93, 90 N. W. 129; Styles v. Dickey, 22 N. D. 515, 134 N. W. ••702; Rev. Codes 1905, § 5243; 7 Cye. 861, note, 62, 115; 27 Cyc. 1394; 30 Cye. 1227-1252.</p> <p>The conduct of appellant destroyed her said rights. Rev. Codes 1905, §§ 6092 — 7126; Peoples’ State Bank v. Francis, 8 N. D. 369, 79 N. W. 853; 27 Am. & Eng. Enc. Law, 2d ed. 463, note 7, 464, note 1, 516 — 519, note 3, 520; 2 Am. & Eng. Enc. Law, 2d ed. 436 — 441, note 3, 442, note 5, 459 — 460, note 1, 461, note 2, 464; Lowe v. Reddan, 123 Wis. 90, 100 N. W. 1038, 3 Ann. Gas. 431; Thurston v. Osborne-McMillan Elevator Co. 13 N. D. 508, 101 N. W. 892; Bingham v. Mears, 4 N. D. 437, 27 L.R.A. 257, 61 N. W. 808; Crim v. Fleming, 101 Ind. 154; Pierce v. Atwood, 64 Neb. 92, 89 N. W. 669; 32 Cyc. 72-225; Anaheim Union Water Co. v. Parker, 101 Cal. 483, 35 Pac. 1048; Nelson v. Munch, 28 Minn. 314, 9 N. W. 863; Eppinger v. Nendrick, 114 Cal. 620, 46 Pac. 616; Keel v. Levy, 19 Or. 451, 24 Pac. 252; Morrison v. Citizens’ Nat. Bank, 65 N. H. 253, 9 L.R.A. 282, 23 Am. St. Rep. 39, 20 Atl. 300.</p> <p>The mortgage should be canceled. Rev. Codes 1905, §§ 6854-6857; ILenry v. Maher, 6 N. D. 413, 71 N. W. 127; McLain v. Nürnberg, 16 N. D. 138, 112 N. W. 245.</p>

This is an action in rem and no personal judgment against defendant is sought. Plaintiff had the right to claim and file its statement for mechanics’ lien, even after defendant had been adjudged a bankrupt. Its lien was superior to any claim of the trustee in bankruptcy. First International Bank v. Lee, 25 N. D. 197, 141 N. W. 716; Burcell v. Goldstein, 23 N. D. 257, 136 N. W. 243.

<p>Action for specific performance — trial de novo — corporation — treasurer — authority to contract.</p> <p>Upon a trial de novo, in an action for specific performance of a contract to sell real estate, performed by tbe plaintiff, evidence is examined, and it is field sufficient to authorize a judgment for specific performance; also that the contract was binding upon the corporation defendant under both actual and ostensible authority in the treasurer to enter into and partially perform the same, as was done; that the statute of frauds is of no avail as a defense.</p>

<p>Machinery — sale of — warranty — breach of — defense — contract avoided.</p> <p>1. Action for recovery of machinery sold by the plaintiff manufacturer to defendant dealer. The defenses are breach of written warranties avoiding executory contract of sale. Reid: Erom the proof the property delivered was so defective in manufacture that it would not do the work for which it was manufactured and intended as warranted.</p> <p>Verdict — directing — judgment.</p> <p>2. As a verdict could have been directed for defendant on such ground, all errors assigned on proof and instructions are nonprejudicial, and the vetdict for defendant should not be disturbed.</p>

<p>General assignment — benefit oí creditors — sale of property lby assignee — general assignment void — innocent purchaser of property from assignee — title protected — hulk sales law — presumption — rebuttable — good-faith purchase.</p> <p>J. made a general assignment for the benefit of creditors to G., which assignment is concededly void upon its face. Thereafter G., as such assignee, with the knowledge, consent, and acquiescence of J., sold to plaintiff a certain stock of drugs and fixtures supposedly acquired by G. under such assignment, plaintiff, under the undisputed evidence, being an innocent purchaser thereof for value and in good faith. Two months later defendant, as sheriff, at the suit of two of J.’s creditors levied warrants of attachments upon such property, whereupon plaintiff brought this action against the sheriff to recover the possession thereof.</p> <p>Reid, that plaintiff acquired a good title to such property, not only as against J., but also as against his subsequently attaching creditors.</p> <p>Reid, further, that the so-called bulk sales law, chapter 221, Laws 1007, even if applicable, creates merely a rebuttable .presumption that such sale was fraudulent and void, which presumption was effectually rebutted by the undisputed evidence that plaintiff purchased such stock in good faith and for full value.</p>

Erom an order modifying a judgment so as to authorize and direct the payment by defendant of certain moneys to tbe clerk of. the district court, instead of to plaintiff’s attorneys, plaintiff appeals. At common law a judgment cannot be amended after tbe term in which it was entered. Bramlet v. Pickett, 12 Am. Dec. 354, and note, 2 A. K. Marsh. 10; Black, Judgm. 2d ed. § 154.

Until delivery, the instrument under which defendants claim was not the plaintiff’s deed. Devlin, Real Estate, 3d ed. 260. Defendants claim the deed was delivered in escrow, — no actual delivery being claimed. To constitute a perfect delivery in escrow, there must be a pre-existing contract for the sale and purchase of the land. Campbell v. Thomas, 42 Wis. 437, 24 Am. Rep. 427; 11 Am. & Eng. Enc. Law, 2d ed. 333; 16 Cyc. 568.

<p>Section 174 of the Constitution of North Dakota prohibits the expenditure of more than 4 mills on the dollar of the assessed valuation of property within the state. The legislature of 1913 made appropriations which if allowed in foto, would exceed this limit. The state hoard of equalization scaled such appropriations to make the same lawful. Thereupon the educational institutions brought mandamus in the supreme court to compel the payment to them of their full share. Pending such hearing the defendant' Nelson published an editorial wherein it was alleged that the supreme court and the members of the board of equalization had entered into a conspiracy to render a fake decision before election to influence the re-election of the governor of this state, and to reverse its decision after election.</p> <p>Mandamus — supreme court — proceedings — when pending — contempt of court — publication of slanderous article — pending litigation.</p> <p>1. The mandamus proceedings originated in this court, and will be considered pending until this court has lost power to change or modify its decision. The mandamus proceedings reviewed, and held, that the same was 'pending until the 19th of November, 1914, while the article in question was published November 13, 1914. The publication in question was calculated to prejudice the rights of the litigants, and to prevent a fair and impartial hearing in this court, and is therefore contempt of court.</p> <p>Rights of litigants — of public — reason for punishment — courts — free speech — publication — truth of article — opportunity to show — silence of accused — effect.</p> <p>2. The reason for punishing such contempts is that said publications interfere with the rights of the litigants and of the public. Litigants are entitled to have.their controversy settled without interference with, or intimidation of, the court itself. The right of free speech is sacred, but at times must give way to other rights even more sacred. The right of free speech will not protect a man in invading a church and haranguing the audience during religious services, nor will it protect him in disturbing social or political gatherings. Neither will it protect him in interfering with the orderly conduct of courts of justice. Free speech does not give the right to vilify and scandalize. It is as much a crime to assert charges which one knows to be untrue as it is to remain silent if the same are believed to be true. When given an opportunity to prove the truth of the article in question, the defendant Nelson refused to give any reason, weak or strong, why he believed such article to be true. This, in effect, is an admission that the same was untrue.</p> <p>Explanation by accused — declining to give — privileged communication.</p> <p>3. In considering punishment this court wished to consider the provocation or other excuses of the defendant, but was prevented in this case by .the conduct of the defendant, who stated: “I decline to state from what source or authority or information I obtained the facts or inference leading me to believe the same to be true, for the reason that it was a privileged communication.” This does not meet the burden of proof required of him to show the truth of the charges made, and is an admission, in effect, of the falsity of the article. Tie punishment is, however, limited to a small part of that which might be inflicted. Defendant Nelson is found guilty and imprisoned for ten days and fined $200.</p> <p>Statement of accused — writing article — lack of knowledge of sama — publication — preventing same.</p> <p>4. The defendant Baker states under oath that he did not write the article in question, did not know it was being written; and could not have prevented its publication had he known. Although the circumstances throw much doubt upon these assertions, the court has neither the time nor the inclination to continue the inquiry, and Mr. Baker will not he punished</p>

<p>A criminal complaint was laid in justice court against defendant Barnes, charging him with assault and' battery, .a misdemeanor. He pleaded guilty, and paid a fine and costs imposed on judgment. Subsequently he was prosecuted for felony,- — assault and battery with intent to kill. On trial thereon the jury found him guilty of the included offense charged, of assault and battery, a misdemeanor. The prosecution for felony was based upon the same acts committed upon the same person as was the first prosecution for misdemeanor in justice court, to which the plea of guilty was entered. When defendant was called for judgment on the verdict of guilty, of assault and battery, he moved an -arrest of judgment, asserting for the first time that he had been once before convicted and punished for that same offense, and that under the statutes and the'state and Federal Constitution the court was without jurisdiction to render a judgment of conviction. The motion was denied, and a sentence of fine and imprisonment was imposed. He applies to the supreme court, asking for a writ of habeas corpus directing his discharge from custody, claiming he is being illegally restrained of his liberty under a void sentence. It is held:</p> <p>Information — felony — plea — former jeopardy — prior conviction — sarnie offense — determination of — question for jury — verdict.</p> <p>1. That under the statutes, defendant in pleading to the information for felony should also have interposed a plea of former jeopardy arising from prior conviction for the same offense, to the included misdemeanor charged in the information. The statutes contemplate that the jury shall determine as a fact whether prior conviction has been had, and find either for the defendant or for the state on that question, in addition to their general verdict of guilty or not guilty.</p> <p>Failure to interpose such plea — waiver of defense of former conviction.</p> <p>2. That the failure to interpose the plea of prior jeopardy prior to verdict was a waiver of the defense of former jeopardy arising from such former conviction.</p> <p>Arrest of judgment — motion in — former jeopardy not included.</p> <p>3. That the statutes defining and providing for motion in arrest of judgment prevent former jeopardy being interposed in arrest of judgment.</p> <p>Constitution — former jeopardy — immunity — must he claimed hy plea.</p> <p>4. That § 13 of the state Constitution, that “no person shall he twice put in jeopardy for the same offense,” merely prescribes immunity from a second prosecution, and is not a bar thereto unless the immunity given is claimed by a plea of former jeopardy and prior to verdict.</p> <p>Federal Constitution — applies only in Federal proceedings — state Constitutions — state statutes — not restricted.</p> <p>5. That the 5th Amendment to the Eederal Constitution, that “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb,” applies only to proceedings in Eederal tribunals, and in no way restricts or prescribes the limits of the constitutional provisions and statutory enactments of the several states.</p> <p>Habeas corpus — remedy of — merits.</p> <p>6. Habeas corpus is assumed to he the proper remedy, without that question being decided, the court preferring to place its decision upon the merits.</p>

L. Nuesslet J. The state auditor is a constitutional officer. An auditor is one who-is authorized to examine accounts, compare charges and vouchers, examine parties and witnesses, allow and reject charges, and state a balance. People ex rel. Benedict v. Oneida County, 24 Hun, 413 ; Cavin v. Brooklyn, 5 N. Y. Supp. 758; People ex rel. Myers v. Barnes, 114 N. Y. 317, 20 N. E. 609, 21 N. E. 739; People ex rel. Cochran v. Pelham Bd. of Auditors, 74 Hun, 83, 26 N. Y. Supp. 122.

<p>Hand lease — employee — verbal oral contract — crops — indebtedness — new contract — chattel mortgages.</p> <p>1. Defendant Hopkins had a lease of land belonging to the appellant for the year 1908 and prior years. He farmed the land during the years 1909, 1910, and 1911. It is contended by appellant that Hopkins furnished the teams and machinery and did the work as his employee during the year 1911, under a verbal contract to that effect, and providing that appellant should take all the crop, and credit Hopkins with the proceeds of one half thereof on indebtedness due him from Hopkins. Hopkins gave mortgages to the other defendants on a half interest in the 1911 crop. Held, from an examination of the evidence, that no new contract was made; that Hopkins was the tenant of appellant for the years 1909, 1910, and 1911, and that the chattel mortgages referred to attached to one half the crop.</p> <p>Deposit — order of court — application for — crops — proceeds of — depositary — statute — method of procedure.</p> <p>2, Section 6995, Rev. Codes 1905, being § 7594, Comp. Laws 1913, makes provision for application to the court for an order directing the deposit of money or delivery of property or effects, and for an order designating a depositary with whom such property, money, or effects may he deposited by the applicant having it in possession, during the pendency of litigation between different claimants for the same, to be disbursed or delivered in accordance with the result of the litigation. In the case at bar the appellant sold Hopkins’s share of crops, on which were various chattel mortgages running to respondents. Before paying for the same the purchaser gave notice and made application for the court to designate a depositary, which the court did, and such proceeds were paid to and retained by such depositary. Appellant brought this action to determine the ownership of the fund so deposited. Held, that the statute referred to is applicable to this controversy, and furnishes a method of relieving an innocent party from litigating the ownership of the fund as between different claimants, and that the trial court did not err in adjudging the defendants entitled to the amounts covered by their respective chattel mortgages.</p>

Action to recover penalty for failure to comply with the statutory provisions relating to the poll tax. Judgment for plaintiff. Defendant appeals. Statement of facts by Bruce, J. This is an appeal from an order overruling a demurrer to a complaint. The action is one to recover the statutory penalty for failing to appear and to work out a poll tax.

<p>County court — order of — final account — approving — appealable order — remedy.</p> <p>1. Under tbe provisions of §§ 8599 and 8600, Comp. Laws of 1913, an order of a county court denying an application for the entry of a deeree approving a final account and ordering a final distribution of an estate, on the sole ground that the inheritance tax pz-ovided by chap. 185 of the Laws of 1913, has not been paid, is an appealable order. Held, further, that the provision for an appeal from such order furnishes a remedy in the ordinary course of law.</p> <p>Note. — The question of the constitutionality of inheritance taxes that discriminate between relatives is considered in a note in 33 L.R.A. (N.S.) 593, and the authorities there reviewed sustain the rule that the constitutional requirements of uniformity and equality in taxation do not invalidate reasonable discriminations among relatives or between relatives and strangers.</p> <p>Mandamus — legal remedies — procedure.</p> <p>2. A writ of mandamus cannot be employed to supersede legal remedies, but is intended to furnish a remedy where no adequate legal remedy is provided.</p> <p>Mandamus — prerequisites to issuance — relator — right to performance of duty asked -no plain, speedy, or adequate remedy.</p> <p>3. The prerequisites necessary to the issuance of a writ of mandamus are, first, that it appears that the relator has a clear legal right to the performance of the particular duty; second, that the law affords no other plain, speedy, and adequate remedy.</p> <p>Trial court — application in — denial — judgment — mandamus lies only to direct performance.</p> <p>4. When a trial court takes cognizance of an application in a proceeding therein pending, and denies it on the ground that facts are not shown entitling the petitioner to relief demanded, the court has exercised its judgment, and mandamus will not lie to direct the judge what judgment to enter, as to do so would be directing his action, instead of only directing him to act.</p> <p>Constitution — inheritance tax —■ discrimination.</p> <p>5. The constitutionality of the provision of chap. 185, Laws of 1913, imposing an inheritance tax of 5 per cent upon property descending to nephews and nieces, claimed to be an arbitrary discrimination in favor of cousins whose inheritance is taxed only 3 per cent, is not decided. See last paragraph in opinion for intimation on the subject.</p>

Polloch, J. From an order vacating an order of arrest issued in a civil action, plaintiff appeals. The affidavits upon which an order is made should be filed promptly with tbe clerk after having been submitted to tbe judge. Tbe writ issues upon tbe judge’s order, wbieb is based upon sucb affidavit. Wert v. Strouse, 38 N. J. L. 184. Where tbe complaint states facts sufficient, it is competent to make it a part of tbe affidavit for tbe order of arrest.

M. Gooley, J. Statement by SpaldiNO, Oh. J. A synopsis of tbe allegations of tbe complaint of tbe respondents in this case shows them to be to tbe effect tbat tbe plaintiff is a domestic corporation doing business in tbis state in tbe sale of oils from sis different plants located in different' counties, with its principal place of business at Grand Forks; tbat by cbap. 214 of tbe Laws of 1913, a process and proceedings for tbe inspection of refined petroleum oils and…

<p>■County judge — marriage record book — licenses — certificates — fees —may retain.</p> <p>1. Section 10, chapter 91, Laws of 1890, Rev. Codes 1905, § 4039, requires the county judge to keep a marriage record book containing a correct copy of all marriage licenses issued by him, and also a record of all marriage certificates returned to his office, and then provides: “And for each license and the record herein required he shall be entitled to a fee of $1 to be paid by the party applying for the same.” Held, that the legislative intent was to authorize such official to collect and retain this fee as compensation for such newly added duties.</p> <p>Amendatory statutes — county judge — salary — law fixing is general — special statute for special subject.</p> <p>2. Appellant’s, contention that § 10, chapter 91, Laws of 1890, was impliedly repealed by chapter 68, Laws of 1899, Rev. Codes 1905, § 2586, held untenable. Chapter 68, while not purporting on its face to be an amendatory statute, in effect merely amends chapter 50, Laws of 1890, fixing a salary for county judges, and it merely adopts the assessed valuation, in lieu of the population of the county, as the basis for computing the salary, and also reduces the maximum salary. This law, as well as chapter 50, Laws of 1890, is general, and relates to the salary of the county judge; and it is held that it was not the legislative intent, by the enactment of chapter 68, to amend or repeal § 10 of chapter 91, Laws of 1890, which latter statute makes special provision covering a special and particular subject.</p> <p>Implied repeal of laws — not favored — repugnance between old and new law.</p> <p>3. Implied repeals are not favored. There must be a clear repugnancy be-, tween the provisions of the new and those of the old statute to such an extent that the necessary implication arises that it must have been the legislative intent, in the enactment of the later statute, to repeal the former.</p> <p>County judge — duty of — fees for special acts.</p> <p>4. There being no statute making it the duty of the county judge to furnish certified copies of his records when required, and fixing a fee therefor, it is held, for reasons stated in the opinion, that it is not incumbent upon him to account to the county for sums collected for such service.</p>

<p>Appeal from the District Court of Cass County; Honorable G. A. Pollock.</p>

From tbe judgment of tbe District Court of Walsb County, Temple-ion, Special Judge, dismissing these actions, plaintiff appeals. Tbe plaintiff bad tbe right to pay tbe delinquent taxes and declare tbe whole debt secured by tbe mortgage immediately due. Tbe mortgages in express terms so provide. Such terms in tbe mortgages do not create a penalty or forfeiture. They merely accelerate tbe date of payment, and confer valuable rights on tbe mortgagee.

From a judgment in defendant’s favor on one, and in plaintiff’s favor on tbe other cause of action, both parties appealed. A person accepting a public office with a fixed salary is bound to perform the duties of the office for the salary, and cannot legally claim any additional compensation for incidental services, though such work was subsequently imposed upon such office. Decatur v. Vermillion, 77 Ill. 315; Miami County v. Blake, 21 Ind. 32.

<p>Appeal from district court, Burleigh County; Nuessle, T.</p> <p>Application for advancement on the calendar of the supreme court.</p>

From a decision of tbe District Court of Pembina County, Tem-pletoN, Special Judge, defendants appeal. Tbe doctrine of plenary or verbal inspiration of tbe Bible is not one of tbe fundamental doctrines of tbe Lutheran denomination, and was not sucb, or adopted as sucb, by and at tbe time of tbe organization of tbe defendant cbnrcb congregation, and sucb doctrine was at no time presupposed by sucb congregation.

G. Burr, J. Erom a judgment in plaintiff’s favor and from an order denying defendant’s motion for judgment notwithstanding the verdict, defendant appeals. The plaintiff assumed all the risks of the employment. Choctaw, O. & G\ R. Co. v. Jones, 1 Ann. Oas. 439, note; Urns ted v. Colgate Farmers’ Elevator Co. 18 N. D. 309, 122 N. W. 390; Rev. Codes 1905, § 5544; 4 Thomp. Neg. § 4640, and cases cited.

An agency of express authority to receive payment of security may be shown by other proof than the possession of the securities, and when such authority is shown, the payment is binding on the holder, although the security paid was not in the custody of the agent. Campbell v. Gowans, 35 Utah, 268, 23 L.R.A.(N.S.) 414, 100 Pac. 397, 19 Ann. Cas. 660, and cases.

<p>Corporations — stock of — issued and paid up — assessment upon — unless declared nonassessable by by-laws.</p> <p>1. Under §§ 4570-4572, Comp. Laws 1913, an assessment may be made upon capital stock of a corporation issued and paid for, unless the by-laws of the corporation make the same nonassessable.</p> <p>Assessment — limited — capital stock — articles.</p> <p>2. Such assessment is limited to 10 per cent of the capital stock named in the articles of incorporation which, in the ease at bar, is $50,000, and authorizes an assessment of $5,000.</p> <p>Note. — In the absence of statutory authority or special power conferred upon the directors of a Corporation by the articles of incorporation, the corporation has no power to make calls or assessments on fully paid-up stock, or stock which is issued as fully paid up. This is clearly shown by the authorities on the subject reviewed in notes in 45 L.R.A. 648 and 22 L.R.A. (NS.) 1013.</p>

There was no consideration shown for the alleged agreement for 25 per cent discount after defendant had taken the materials and charged same to himself at the going prices, as it was due and owing to the plaintiff already by defendant’s own acts of acknowledgment.

L.' Nuessle, ¿T. From a judgment in plaintiff’s favor dismissing defendant’s appeal to the District Court from a judgment against the garnishee, defendant appeals. In order to maintain garnishment proceedings, there must be.at the time a claim, — a subsisting right of action in favor of the defendant and against the. garnishee. 20 Cyc. 983; Hallowell v. Leafgreen, 3 Colo. App. 22, 32 Pac. 79; Webster v. Morris, 66 Wis. 366, 57 Am.

Defendant bank’s mortgage, made within tbe ninety-day period, did not take priority over plaintiff’s mechanic’s lien for materials furnished before the expiration of- the ninety days. Eev. Codes 1905, §§ 6240, 6242; Bastien v. Barras, 10 N. D. 29, 84 N. W. 559; Turner v. St. John, 8 N. D. 245, 78 N. W. 340; Haxton Steam Heater Co. v,; Gordon, 2 N. D. 246, 33 Am. St. Eep. 776, 50 N. W. 708; Bender-Moss on Mechanic’s Lien, p. 458, and notes; Bohn Mfg.

<p>Embezzlement — information — sufficiency.</p> <p>1. Information examined and held sufficient to charge embezzlement by defendant as a bailee.</p> <p>Instruction — intent — errors — cured by specific instructions.</p> <p>2. Though a portion of the instructions concerning intent are inaccurate, and, under certain circumstances, might be prejudicial, the specific instructions as to intent cure the error complained of and render the same nonprejudicial.</p>

<p>From tbe judgment of the District Court of Eddy County, Buitz, J., defendant appeals.</p> <p>• The court erred in sustaining the plaintiff’s demurrer to that part of defendant’s counterclaim relating to damages for loss in difference in price of grain, caused by respondent’s failure to timely perform his contract. Bev. Codes 1905, § 6563.</p> <p>- Where a contract is entire and one party, not in default, is willing to complete its performance, the other party, who abandons the contract or refuses to perform it, cannot recover on quantum meruit the value of the labor he has expended in its partial performance. The fixing of the price per bushel for threshing does not make the contract sever-able. Johnson v. Eehsefeldt, 106 Minn. 202, 20 L.B.A.(N.S.) 1069, 11.8 N. W. 797.</p> <p>An entire contract for services cannot be apportioned so as to permit a -recovery for part performance by one who is guilty of a breach of contract. Timberlake v. Thayer, 71 Miss. 279, 24 L.B.A. 231, 14 So. 446; Ptacek v. Pisa, 231 Ill. 522, 14 L.B.A.(N.S.) 537, 83 N. E. 221; McMillan v. Vanderlip, 12 Johns. 165, 7 Am. Dec. 299; Munsey v. Tadella Pen Co. 2 N. Y. Anno. Cas. 371, 38 N. Y. Supp. 159; Stewart v. Weaver, 12 Ala. 538; Olmstead v. Peale, 19 Pick. 528; Plansell v. Erickson, 28 Ill. 257; Koplitz v. Powell, 56 Wis. 671, 14 N. W. 831; Lantry v. Parks, 8 Cow. 63; Badgley v. Heald, 9 Ill. 64; ■Prautsch v. Pasmussen, 133 Wis. 181, 113 N. W. 416; Widman v. Gay, 104 Wis. 277, 80 N. W. 450; Parsons, Oontr. 519, 658, 659.</p> <p>This action is upon an express contract, and not one by which quantum meruit damages can be recovered.</p> <p>The complaint is upon an express contract, and there is no allegation as to the reasonable value of the services rendered, or any intimation of intention to recover upon such ground or cause. 3 Words & Phrases, 2606; Tharp v. Blew, 23 N. D. 3, 135 N. W. 659; Lowe v. Jensen, 22 N. D. 148, 132 N. W. 661; Bentley v. Edwards, 125 Minn. 179, 51 L.B.A.(N.S.) 254, 146 N. W. 347 ; 9 Cyc. 749; Morrow v. Board of Education, 7 S. D. 553, 64 N. W. 1126.</p> <p>The answer states a valid, substantial defense and it was error to order judgment on the pleadings. Nollman v. Evenson, 5 N. D. 344, 65 N. W. 686; Anderson v. Todd, 8 N. D. 158, 77 N. W. 599; Braseth v. State Bank, 12 N. D. 486, 98 N. W. 79; Marcband v. Perrin, 19 N. D. 794, 124 N. W. 1112; Yon Bosenberg v. McDonald, 24 Mise. 771, 53 N. Y. Supp. 551.</p> <p>Where a thresher fails to do the threshing, and loss to the grain is occasioned by the elements, the damages resulting are.too remote to admit of recovery. Iiayes v. Cooley, 13 N. D. 204, 100 N. W. 250.</p> <p>This is also true as to defendant’s claim for damages resulting to him, in the difference or change in price of the grain, on same ground, and on the further ground that same is speculative. Ibid.</p> <p>The contract is conceded to be entire in its nature. But plaintiff may recover for the value of his services, less any provable damages sustained by defendant, by reason of plaintiff’s failure to strictly or substantially perform his entire contract. Eenton v. Clark, 11 Yt. 560; Hillyard v. Crabtree, 11 Tex. 264, 62 Am. Dec. 475; Pixler v. Nichols, 8 Iowa, 106, 74 Am. Dec. 298; McClay v. Hedge, 18 Iowa, 66; Duncan v. Baker, 21 Kan. 99; Parcell v. MeComber, 11 Neb. 209, 38 Am. Rep. 366, 7 N. W. 529; Bedow v. Tonkin, 5 S. D. 432, 59 N. W. 222.</p> <p>But the amount of recovery cannot exceed the amount of the contract. Bedow v. Tonkin, 5 S. D. 432, 59 N. W. 222; Parcell v. Me-Comber, 11 Neb. 209, 38 Am. Rep. 366; 7 N. W. 529.</p> <p>In this case there is no question or dispute as to the value of the services actually performed by plaintiff, as was the condition in the South Dakota case cited by counsel. Morrow v. Board of Education, 7 S. D. 553, 64 N. W. 1126.</p>

<p>Amendments — allowance o£ — discretion of court.</p> <p>1. Tlie allowance of amendments rests largely within the sound discretion of the trial court.</p> <p>Note. — In harmony with the decision in this case, it seems to be well settled that, on principle as well as from considerations of public policy, agents of insurance companies authorized to procure applications for insurance must be deemed the agents of the insurers, and not of the assured ,in all that they do in preparing the application. In cases where the agent has filled in the application for the assured and the company has sought to relieve itself from liability upon the ground that in so doing he acted for the assured, and not for the company, the courts have held that if the applicant fully stated the facts to the agent and the latter filled in the application wrongfully, the agent is to be considered the agent of the company. The cases on the question, when insurance agent is the agent of the assured, are reviewed in a note in 20 L.R.A. 277.</p> <p>Complaint — amendment to conform to facts proved — mistake — surprise — prejudice — allowance for.</p> <p>2. Where it clearly appears that the defendant was not misled, surprised, or in any way prejudiced from maintaining his defense upon the merits, an amendment of the complaint to conform to the facts proved should he allowed.</p> <p>Misjoinder of causes — equitable — legal — appeal — objection first made on.</p> <p>3. The objection that there is a misjoinder of causes of action, or that a cause is of equitable, and not of ■ legal, cognizance, cannot be raised for the first time on appeal.</p> <p>Insurance contract — reformation — recovery on — same action.</p> <p>4. An insurance contract may be reformed and a recovery thereon enforced in the same action.</p> <p>Agents for insurance company — applications for insurance — authority to take — agents or insurers — mistakes in application — chargeable to insurer.</p> <p>5. Agents for an insurance company, authorized to procure applications for insurance, and to forward them to the company for acceptance, are deemed the agents of the insurers in all that they do in preparing the application. Hence, when such agent makes out an application incorrectly, notwithstanding the facts are truthfully stated to him by the applicant, such error is chargeable to the insurer, and not to the insured.</p> <p>Hail insurance — misdescription of land in application — loss — recovery — reformation of application contract — same action — facts to be pleaded.</p> <p>6. A misdescription of the land on which crops, insured against hail, are growing, will not of itself prevent a recovery in ease of loss. And where such misdescription is due solely to the error of the agent of the insurance company in preparing the application for such insurance, it is not necessary to bring an action in equity to reform the policy, but the insured may, by setting forth the facts relating to the mistake in his complaint, bring an action at law thereon in the first instance.</p> <p>And as shown by the authorities reviewed in notes in 4 L.R.A. (N.S.) 607, and L.R.A. 1915A, 273, on the effect of agent’s insertion in the application of false answers to questions correctly answered by insured, the great weight of authority is to the effect that if an agent authorized to solicit insurance either fraudulently or negligently inserts in the application false answers to questions correctly. answered by the applicant, his wrong would be imputed to the company, and it will be estopped to defend an action upon the policy upon the ground of the falsity of such answers, if the insured was unaware that his answers were incorrectly recorded.</p>

From a judgment of tbe District Court of Renville County, Leigh-ion, J., plaintiffs appeal. The defendant, being engaged in the insurance business in this state as an insurance company, is subject to the general insurance laws of the state, and is not exempt. Rev. Codes 1905, §§ 5893, 5934; Comp. Laws, 1913, 6501.

Action in claim and delivery to recover the possession of a diamond ring and certain certificates of deposit. Judgment fox defendant and intervener. Plaintiff appeals. Statement of facts by BR.uce, J. This is an action in claim and delivery which was commenced in November, 1912. Plaintiff seeks to recover from the defendant Dakota Trust Company two certificates of deposit of the face value of $2,131.74 and one diamond ring of the stipulated value of $400.

<p>Personal injury — ignition oí lighting gas — employee — volunteer — not engaged in employment — dismissal oí case — motion for.</p> <p>Plaintiff ivas injured by ignition of lighting gas while the tank containing it was being cleaned and recharged. Plaintiff recovered on the theory that the gas was ignited by the lantern of an incompetent and inexperienced employee, a boy seventeen years old, who, plaintiff asserts, was negligently directed to assist in such work. All the evidence is examined, and it is held that there is no evidence to support the finding that said employee, who had other duties elsewhere to perform, was assigned to this work or directed to do it. Instead the evidence without contradiction is all to the effect that the boy whose lantern plaintiff asserts caused the explosion, was a mere volunteer, and was at the place of the accident out of his mere curiosity, and for which the defendant and its officials in charge were in no wise responsible'. The motion to dismiss made at the close of plaintiff’s case and again at the close of the trial should have been granted, and dismissal is directed.</p>

Nrom a judgment of tbe District Court of Burleigh County, Nuessle, J., defendants appeal. The estimate as to the speed of a train by a witness who had a mere glimpse of it from the side for a few seconds, is not sufficient to carry to the jury the question of the negligence of the railroad company with respect to its speed.

Action for specific performance of a contract to convey land, with subsequent supplemental complaint for damages. Appeal from the District Court of Adams County, Gmivford, J. Judgment for plaintiff. Defendant appeals. Statement of facts by Bbuce, J. This action was commenced on the 27th day of April, 1911, to compel the defendant to specifically perform a contract for the conveyance of land in Adams county, North Dakota.

<p>Adverse claims — statutory action to determine — title and possession — complaint in — use and occupation — money judgment for — counterclaim — statute of limitations — motgages barred by — findings and conclusions — questions of fact — new trial.</p> <p>1. In the statutory action to determine adverse claims to real property, the plaintiff alleges that it has an interest in such property and that defendants claim certain estates or interests in or liens upon the same, adverse to plaintiff. The usual prayer for judgment' quieting the title is made, and plaintiff also prays for the recovery of the possession of the property from defendants with a money judgment for the use and occupation thereof. By their answer defendants put in issue plaintiff’s alleged interest in such property, but admit that it has certain equities therein. They also by way of counterclaim allege title in fee and pray that such title be quieted in them as against all claims asserted by plaintiff.</p> <p>Note.- — For a discussion of the general rule that plaintiff in an action to recover real estate must recover, if at all, on the strength of his own title, see note in 18 L.R.A. 781.</p> <p>The trial court found in defendants’ favor as to the ownership of the land, but denied them any affirmative relief under their counterclaim except upon condition that they first do equity by satisfying or tendering the amount of all claims held by plaintiff against such real property, consisting of two old mortgages long since barred by the statute of limitations and numerous taxes paid by them, aggregating, with interest to November 1, 1912, the sum of $2,543.27.</p> <p>On a trial de novo in the supreme court the findings and conclusions of the trial court are in all things affirmed, except as to one question of fact mentioned in the opinion, regarding which counsel inadvertently failed to furnish any competent proof. A new trial is granted for the purpose of permitting proper proof thereof to be supplied.</p> <p>Adverse claims — statutory action — plaintiff must depend on own title — weakness of defendant’s title — cannot recover upon.</p> <p>2. In the statutory action to determine adverse claims to real property the plaintiff must recover, if at all, upon the strength of his own title, and not upon the weakness of his adversary’s title.</p> <p>Title to real estate — mortgage owned by copartners — corporation — succeeding copartnership — title to property — equitable.</p> <p>3. Plaintiff’s only source of title is through an alleged foreclosure in 1887 of a commission mortgage on the premises upon which there was only a small sum due. Such mortgage was given in 1884 and ran to a copartnership under the firm name of D. S. B. Johnston, Son, & Hanee. In 1885 a corporation was organized under the name of D. S. B. Johnston Land Mortgage Company, which purchased and took over the assets of such copartnership, including such mortgage. At the date of such attempted foreclosure proceedings there was nothing of record to show ownership of this mortgage in such corporation. Held, following Hebden v. Bina, 17 N. D. 235, that the exercise of the power of sale in said mortgage by such corporation was not authorized under the provisions of § 5412, Comp. Laws of 1887, and consequently the foreclosure was void, and the purchaser at the sale, the D. S. B. Johnston Land Mortgage Company, acquired no title thereunder, but merely became an equitable assignee of such mortgage.</p> <p>Mortgagee in possession — purchaser at void foreclosure sale does not become unless in possession with consent of mortgagor — unoccupied prairie land — fee owner deemed in possession.</p> <p>4. A purchaser at a void foreclosure sale does not become a mortgagee in possession, unless he acquires the actual possession of the premises through the express or implied consent of the mortgagor or owner of the land. The premises being at the time unoccupied wild prairie land, the fee owner will be deemed to be in the possession thereof.</p> <p>Foreclosure — sheriff’s deed under — recitals in — evidence.</p> <p>5. A recital in the sheriff’s deed under foreclosure proceedings by advertisement, that the D. S. B. Johnston Land Mortgage Company has been renamed D. S. B. Johnston Land Company, is no evidence of the fact of such change in name.</p> <p>Plaintiff’s alleged title — failure to establish — cannot assail defendants’ title.</p> <p>6. The plaintiff, having failed to establish its alleged .title, or even that it is a mortgagee in possession, is not in a position to assail the validity of defendant’s title and right of possession.</p> <p>Champerty — statute against — cannot ho urged by plaintiff — defendants’ title.</p> <p>7. For reasons stated in the opinion, the statute against champerty and maintenance cannot be urged by plaintiff to destroy defendants’ title.</p> <p>Defendants — affirmative equitable relief — claiming — must do equity — mortgage barred by limitation — must pay or offer to pay amount due.</p> <p>8. To entitle defendants to affirmative equitable relief they must do equity by paying or tendering to the plaintiff all sums equitably due it, and the fact that plaintiff purchased one of its mortgages upon the land long after it became barred by the statute of limitations does not exonerate defendants from paying such sum as may be due thereon, as a condition to their obtaining affirmative relief.</p>

Action to recover for money loaned. Judgment for plaintiff. Defendant appeals. ■ Statement of facts by Bruce, J. This action was commenced by the service of summons and complaint and garnishee summons. The complaint set up a cause of action for money loaned and goods, wares, and merchandise furnished by the plaintiff to the defendant on the 5th day of February, 1891, and the 8th day of July, 1892.

<p>Seed-grain lien — conversion — damages — action — not triable de novo -Xon appeal — specification of errors — demand for review on appeal.</p> <p>1. An action to recover damages for conversion of grain upon which plaintiff claims to hold a seed lien is not properly triable de novo on appeal. Hence, it is incumbent upon appellant to furnish in this court a specification of the errors complained of, and a specification that the appellant demands a review of the entire case in the supreme court is insufficient.</p> <p>Seed-grain lien — statement in writing verified by oath — description of land — necessary.</p> <p>2. Section 6852, Compiled Laws of 1913, providing that any person entitled to a seed lien shall file “a statement in writing, verified by oath, showing the kind and quantity of seed, its value, the name of the person to whom furnished, and a description of the land upon which the same is to be or has been planted or sown,” is not complied with where such statement wholly omits a description of the land. F'ollowing Lavin v. Bradley, 1 N. D. 291.</p>

<p>Deed — setting aside — on ground of fraud — proof — clear and convincing.</p> <p>1. Where one seeks to set aside a deed on the ground of fraud, Ms proof must be clear and convincing.</p> <p>Conveyance — old man to daughter — consideration — care during old ’ age — not necessity fraudulent.</p> <p>2. A conveyance by an old and feeble man, of Ms homestead to his daughter in consideration of her caring for him in his old age, is not necessarily' fraudulent.</p> <p>Note. — The question of the validity, as against creditors, of transfers of exempt property is treated in a note in 20 Am. Hep. 150.</p> <p>Exempt property — transfer of by debtor — not fraudulent — creditors.</p> <p>3. It is not a fraudulent act for a debtor to transfer to his wife or daughter exempt property to which his creditors could not have looked for the satisfaction of their claims.</p>

From a judgment of tbe District Court of Stutsman County, Ooffy, J., defendant appeals. Tbe essential and necessary rules of law governing tbe admission of secondary evidence were not complied witb. A notice to produce tbe original letter was not given. Eead v. Chambers, — Tex. Civ. App. —, 45 S. W. 742; Jameson v. Officer, 15 Tex. Civ.

From an order of the District Court of Stark County, overruling a demurrer to the complaint, Crawford, J., defendant appeals. The district court of Stark county has no jurisdiction over the subject of this action, and the demurrer should have been sustained. The complaint should allege the filing of a proper petition for administration in county court, and should contain allegations of all the facts necessary to show that the county court had jurisdiction to act.

<p>Defendant signed as surety the promissory note to plaintiff of one Jacobson, maker. To this action, brought against the surety alone, the defense was made that false statements, representations, and concealments as to material facts were made by plaintiff’s agent to defendant and because of which he became surety. Erom a motion for new trial after judgment entered on verdict in defendant’s favor, plaintiff appeals, assigning error on instructions alone. Eeld:</p> <p>Note. — The question of the effect on the liability of a surety or guarantor of the fraud of the pledgee is the subject of a note in 21 L.R.A. 409, and the authorities there reviewed are in harmony with the holding in this ease.</p> <p>Promissory notes — surety on — action against surety only — defense — false statements — misrepresentations — concealment — motion for new trial — instructions — pleadings — issues — theory.</p> <p>1. That the court did not instruct upon a theory of defense not raised by the pleadings.</p> <p>Instructions on liability — sufficient in absence of request for further surety — defenses — waiver.</p> <p>2. That sufficient instructions were given upon the liability of defendant as a surety, in the absence of a request for further instructions on matter not necessarily within the issues presented by the pleadings, but which should have been given had the same been requested, concerning waiver by defendant of said defense by a' subsequent promise (if made) to pay the note in any event.</p> <p>Assignment of error — failure to instruct on waiver — exception.</p> <p>3. That such assignment of error based on failure to instruct on waiver, even if error, would not warrant a reversal, because the assignment is not based upon any exception taken to the instructions on that ground and must be ignored on appeal.</p> <p>Instructions— liability of surety —• obligee — fraud — concealment — deception — error if any, in favor of appellant.</p> <p>4. The court could have instructed more strongly in defendant’s favor and been within the law governing the liability of a surety to his obligee, where such surety has been induced to become such because of the obligee’s fraud, either by fraudulent concealment of material facts or misrepresentation of purported facts. Any error in instructions on this question was error in favor of appellant and not against him.</p>

<p>Plaintiff contracted to give good title to a tract of land which he had previously purchased from the Great Northern Railway Company under a deed containing the following reservation: “Reserving, however, to the St. Paul, Minneapolis, & Manitoba Railway Company, its successors or assigns, for right of way or other railroad purposes, a strip of land 150 feet wide, from the above granted premises where the lines of its road or any of its branches, or the line of any other railroad or the branches thereof, now owned or operated, or which may hereafter be owned or operated, by it, is now located and constructed, or may hereafter be located and constructed.” When plaintiff tendered a deed to the premises objection was made to his title upon the grounds that it was unmarketable by reason of the foregoing reservation. The balance of the purchase price was, however, deposited in a reputable bank payable to the order of the plaintiff when he should be able to give a proper title to’ the tract.</p> <p>Real estate — title — consideration — deed — tender.</p> <p>1. Defendant was not obliged to accept the title offered, even though it might prove ultimately to be good, but he was justified in demanding a title not only good in fact, but one that was good beyond a reasonable doubt. Such reasonable doubt is one that would cause hesitation in the judicial mind before deciding it.</p> <p>Note. — An elaborate note on the question what constitutes a marketable title is found in 38 L.R.A. (N.S.) 3, and the few cases which have considered the effect of an easement to render the title unmarketable are collated on p. 33. These cases generally hold that the existence of an easement renders the title unmarketable, although the contrary is held in one case as to a highway easement across the land to be conveyed.</p> <p>Contract for deed — representations — provisions — construction — risk of title — assuming.</p> <p>2. A clause in the contract whereby defendant agreed “that he has entered upon the above written contract relying on his own knowledge of such premises, and not upon any representations made by the party of the first part, or by any other persons, touching the situation, character, or quality thereof,” does not mean that the defendant assumed the risks of title. ■</p> <p>Equity — action in — forfeiture — nonpayment of purchase price — deposit — counterclaim — relief under.</p> <p>3. Plaintiff brings this action in equity to enforce a forfeiture of the contract for nonpayment of the balance of the purchase price, which was deposited in the bank as aforesaid. Under the evidence, it is held, that such deposit was sufficient, that no grounds of forfeiture existed, and that defendant is entitled to the relief demanded in his counterclaim.</p>

from a judgment in favor of plaintiff. Defendant appeals. Appellate courts are inclined to overlook mere technicalities and irregularities in the conduct of the trial, where from the whole record it appears that they did not render the trial unfair or the result unjust. But where well established rules of evidence and procedure are violated and ignored, such a trial cannot be considered a fair trial, to which the aggrieved party is entitled at all times.

<p>Default judgment — application to reopen — relief from — evidence — neglect.</p> <p>Defendant made application to the county court under § 7483, Comp. Laws 1913, to be relieved from a default judgment. Evidence examined and shows that the defendant was not guilty of any neglect, and that the application to reopen the judgment was properly allowed.</p>

There is only an attempted nullity of tbe taxes. Paine v. Dickey County, 8 N. D. 581, 80 N. W.. 770. Having taken these taxes in tbe manner received, tbe plaintiff and bis assignor received and paid them all, tbe certificates and tax receipts, at their own risk. Tbe purchase was made under tbe rule of caveat emptor, and without a statute authorizing a recovery for tbe taxes. Budge v. Grand Porks,. 1 N. D. 309, 10 L.E.A. 165, 47 N. W. 390; Laws 1907, chap. 67, § 28.

<p>Defendant and wife purchased a vacant city block, improved the same for three seasons, finally erecting a dwelling house and other buildings thereon. Immediately on completion of the house, plaintiff took a mortgage on the tract, signed only by the husband, who declares in the mortgage that the tract “does not now and never has constituted any part of his homestead.” The wife refused to sign the mortgage. They owned no other real estate, but had rented in the same city since long before the purchase of this tract, which they testified to have bought “to make a home of it.” The wife paid part of the purchase price. To clear the land of a $200 mortgage a lease for a term of one year was given codefendant W., and immediately on completion of the house he and family moved in. Four months afterward defendants moved their furniture into three rooms of the house not rented, intending to reside in it, but because of inconvenience from the occupancy of the W. family did not actually take up their residence therein, but attempted to oust W., but did not succeed. A cow' and some chickens were moved on the tract at the same time the furniture was moved into the house, and remained there several months until feed on the place gave out. A year and four months after the mortgage was taken, and about two months after vacation by W., defendants established actual residence, since maintained continuously in said dwelling. W. had signed the notes as a joint maker with S. The husband and wife defend, claiming the mortgage to be void, and that the premises at the time it was taken was their homestead, which could not be legally encumbered, except the wife join therein. Held:</p> <p>Homestead — mortgage on — void when.</p> <p>1. The mortgaged premises was the homestead and the mortgage is void.</p> <p>Recitals in mortgage — land not homestead — covenants — mere statements.</p> <p>2. The recitals in the mortgage, that the premises are not a homestead, is not a covenant. It falls with the mortgage, and amounts to but a statement of the husband, which cannot of itself operate to validate the. mortgage.</p> <p>Homestead — property purchased for — family dwelling being built — characteristics of homestead — intent to so occupy — exemptions — in advance of actual occupancy — residence established in reasonable time.</p> <p>3. Property purchased and improved in pursuance of a good-faith intent to build the family dwelling thereon, and to reside therein, is impressed with homestead characteristics entitling the possessors to the homestead exemption in advance of the establishment thereon of actual residence of the claimant and family, where, pursuant to a previous good-faith intent, the actual residence is established within a reasonable time after completion of the dwelling.</p> <p>Note.- — The general question of the conveyance or encumbrance of a homestead. by one spouse alone is considered in a note in 95 Am. St. Rep. 909.</p> <p>Residence — delay in making — explanation and excuse.</p> <p>4. The time so elapsing here before residence began is sufficiently explained and excused.</p> <p>Homestead right — constitutional — to family — presumptions in favor will he indulged — good faith.</p> <p>5. The homestead right of exemption is a constitutional right guaranteed the family, and all reasonable presumptions in its favor will be indulged where the facts appear consistent with a good-faith claim of homestead right.</p>

Action of ejectment. Judgment for defendant. Plaintiff appeals. Statement of facts by Bbuce, J. This appeal is from an order of the district court of Eichland county denying appellant’s motion for a new trial. The action is in ejectment for the recovery of the possession of an irregular strip of land containing 3 29/43 acres.

W. L. Nuessle, Judge. Circumstantial evidence should be expressly defined, and the rules governing its effect should be concisely stated. It is always the duty of the trial court to so clearly define such evidence, whether requested or not, and a failure to do so is prejudicial error. The court failed to do so in this ease, and the defendant’s substantial rights were prejudiced, and he is entitled to a new trial. 12 Oyc. 633; 1 Greenl.

An alternative writ of mandamus directed to a district judge commanding him to decide a pending suit, or show cause why he does not do so, will be quashed where the return to such writ shows without dispute that the delay complained of was occasioned by the conduct of counsel for the complaining party in volunteering at the close of the trial to furnish a transcript of the evidence for the assistance of such judge, which transcript was not furnished.

From an order overruling a demurrer to a portion of defendant’s answer, plaintiff appeals.. The counterclaim mentioned in tbe action must be one in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action.