Volume 3 — Minnesota Reports

Erom tbe record in this action, it appears that the suit was brought by the Defendant in Error, against the Plaintiff in Error, and one James Y. Caldwell and J. L.… Held: and is well settled law, that when there has been negligence or misfeasance in the management of the securities held by the creditor, or within his control, or in the pursuit of his remedies against the parties primarily liable for its payment, it will be a discharge of those who are secondarily liable.

This was a Writ of Error to tlie District Court of Ramsey County. The case originated before a Justice of the Peace, and was removed to the District Court by Writ of Certiorari. The judgment of tbe Justice was affirmed, and the Plaintiff in Error caused the Writ to be issued. The opinion of the Court contains a statement of the facts.

The Plaintiff below in his complaint states that he performed a certain work and labor for the Defendant, for which he was to be paid by a particular lot of land in the city of St. Paul.

This was a Writ of Error to the District Court of Ramsey County. The suit was brought by Hastings to obtain a division and partition of certain real estate in Bamsey County. The pleadings present a number of issues of fact, and the cause was referred, by consent, to George W. Prescott, Esq., to hear the testimony and report the facts.

Tbis was a Writ of Error to tbe District Court of Bamsey County. Armand Nelson, tbe Plaintiff below, commenced tbe action to foreclose a mortgage executed by the Defendant Olson, dated June 23, 1856, upon certain lands in Ramsey County.

This was au Appeal from the judgment of the District Court of Hennepin County, (Hon. E. O. Hamlin, J.) The opinion of the Court contains a statement of the case. The following are points and authorities relied upon by the counsel for Appellant: Tirst —The Court below erred in overruling the demurrer in this action ; in that, Second. — The answer in said action alleges no facts constituting a valid defence or counter claim. Rev. Statutes, Minn., Anfdts page 9, sec. 71.

This was a Writ of Error to the District Court of Ramsey County. The opinion states the facts. The following are the points and authorities relied upon by the counsel for Plaintiff in Error: First. — By the Organic Act, it is declared that a Writ of Error may issue on all final decisions of the District Court, under such regulations as the Legislature may provide. Orgamlc Act, Sec. 9. The Bev.

This canse originated in the Territorial side of the District Court of Ramsey County, under the late territorial organization. The case was decided in the Supreme Court of the Territory, (See 1 Mm.

The following are the points and authorities of Counsel for Plaintiff in Error: First. — The return of the Justice shows that the Jury before whom this cause was tried were guilty of gross misconduct. Second. — When a Juror so grossly misbehaves himself as to show that he had no just sense of the responsibility of his action, the verdict ought to be set aside. 1 Hill 211.

The following are the points and authorities relied upon by the Counsel for Appellant: The District Court erred in giving judgment for Defendant for the following reasons, viz : Because,' First — The Defendant in his answer in said action does not claim, allege nor state any title in, nor the right of possession of the premises in dispute in the Defendant nor any one else; but goes behind the sale by said Sheriff and his certificate thereof, and attempts to show that the…

Writ of Error to tbe District Court of Hennepin County. Hon. E. O. Hamlin rendered judgment upon demurrer to tbe answer, in favor of tbe Defendants, Hamilton, Brooks & Co., in tbe Court below, and tbe Plaintiff sued out tbe Writ of Error. Tbe facts appear in tbe opinion of tbe Court.

The Plaintiff, Banker, in his complaint states that he was the owner and in possession of a certain set of abstract books and books of indexes containing complete abstracts of title to all the lands situated in Ramsey County, with the incumbrances and liens upon the same. That said books had been prepared at great cost and expense, and labor and skill of the Plaintiff and others, and were of the value of five thousand dollars.

Tlie following are the- points and authorities relied upon by the Counsel for the Plaintiffs in Error : First. — The Plaintiffs in effect dismissed as to Hooper in the Justice’s Court, by suffering him to give evidence in his own defence, although he had not answered in the action. The judgment of the Justice was a dismissal as to Hooper. Second. — The District Court ha4 no jurisdiction of Hooper. No party can appeal from a Justice’s judgment unless he is aggrieved thereby.

This was an appeal from an order of the District Court of Hennepin County, granting a new trial. The action was founded upon a contract set out in tlie opinion of the Court— and the issues joined were referred by consent to a referee, who reported in favor of the Plaintiff.

WRIT 03? ERROR TO THE DISTRICT COURT OR RAMSEY COUNTY. The record shows that a swmmons, which required the Defendant to “answer the complaint in the action, a copy of which is herewith served upon you,” &c., &c., was served upon the Defendant, on the 10th J%me, 1858, and the complaint was served upon him on the 6th day of May, 1858. Judgment was entered upon default of an answer, and the Defendant reviews the same by Writ of Error.

This was an appeal from an order of the District Court of Scott County. A. G. Chatfield, Judge.

The following aré tbe points and authorities relied on by the Counsel for the Apellant: First. — That said District Court erred in its order of December 16th, 1858, ordering the Defendant within ten days to amend said amended answer, and in default thereof that the same be stricken out. Second. — That said Court manifestly erred in holding the amended answer of Defendant uncertain as to time, when time was in no sense material.

[The points and authorities of Counsel for Appellant are not on file.] The following are the points and authorities relied upon by the Counsel for Respondent : First. — In most States and in England a continued possession of chattels in the vendor is conclusive fraud in law. 1 Smith’s Leading Gases 35; Froves vs. Case, 1 Cranch 309; 1 Gallison 419, 423; 4 Mason 312, 322; 3 Cranch C. C. 434; Ib. 354; Ib. 729; 3 Cranch 58; 3d J. J. Marshall, 643; 2d Bibb. 605; 5 Dana, 111,…

The case is stated in the opinion of the Court. The following are the points and authorities relied upon by the Counsel for the Plaintiffs in Error: First. — The interest at the rate of five per cent, per month after due on the note was a penalty,and could not be recovered. Mason & Craig vs. Callender, Flint & Co., 2 Minn. R., 350. Second. — When interest after due is a penalty, the recovery can only be seven per cent, per annum, the legal rate of damages.

The following are the points and authorities relied on by the Counsel for the Plaintiff in Error: First. — That the Court below had no jurisdiction, there being no proper summons served upon the Plaintiff in Error.

<p>WRIT OR ERROR TO THE DISTRICT COURT OR RAMSEY COUNTY.</p> <p>[Points decided similar to those in Babcock & Hollinshead vs. Scmborn <& French, ante. p. 141.]</p>

<p>ERROR TO THE DISTRICT COURT OR RAMSEY COUNTY.</p> <p>[Same points decided in case of Babcock & Hollinshead vs. Scmborn & French, cmte. p. 141.]</p>

The following are the points and authorities relied upon by the Counsel for the Plaintiff in Error: First. — Two several causes of action (that is, the cause of action to enforce a mechanic’s lien against McClung, and the cause of action against Lewis & Pickering to recover the value of work and materials) have been improperly united. These causes of action are different in their nature, and neither of them, affects all of the parties Defendant to the action. Rem.

This was an appeal from a judgment of the District Court of Ramsey County. The verdict was in favor of the Respondents, (Defendants below,) and the Plaintiff’s motion for a new trial was denied. The errors alleged to have been committed upon the trial are stated in the opinion of the Court.

The action was founded upon an obligation of which the following is a copy: “Washington, March 31, 1852. “On demand we promise to pay to the order of IT. B. Sweeny, Esq., Cashier, twenty thousand dollars, for value received — the sum of $25,000 in bonds of the Chesapeake and Ohio Canal Company being hypothecated for the same. The interest accruing on said bonds from this date to he equally divided between the said LI. B. Sweeny, Cashier, and.the undersigned.

The opinion of the Court contains a statement of the case. The following are the points and. authorities relied upon hy the Counsel for the Appellants: First. — That the taking possession of the building by Hey-ward without objection, was under the circumstances an acceptance of the work, as substantially performed under the contract.

This was a motion to dismiss the Writ of Error upon affidavits showing that the judgment was satisfied with the assent of the Plaintiff in Error.

Tbe issues arise upon tbe question of tbe jurisdiction of tbe Courts of tbe State, under Chapter 86 of tbe Revised Statutes, An Act “ for tbe Collection of Demands against Boats and Vessels.” Stat. of Min. Chap.

This was a motion to dismiss an appeal from an order of tbe District Court of Ramsey County. The action was brought to foreclose a mortgage executed by husband and wife upon the separate estate of the wife. The Defendants answered separately, — the wife by her next friend, one Oliver.

Notice of an order overruling a demurrer was served October 6th, 1857. Judgment was entered April 2d, 1858. Writ of Error issued March 28th, 1859. The Defendant in Error moves to dismiss the Writ upon the following grounds: First. — The j udgment below' was rendered and notice thereof given to the Plaintiff in Error in October 1857. The Writ of Error was not sued out until March, 1859.

WRIT OR ERROR TO TnE DISTRICT COURT Or SCOTT COUNTY. The opinion of the Court gives an abstract of the pleadings and facts in the case. The following are the points and authorities relied upon by the Counsel for the Plaintiffs in Error : First. — Tbe supposed will is nothing more than a deed. It does not devise all or any of the real estate of which the decedent “shall die seized.” These words do not occur in the will.

This was an appeal from an order of tbe District Court of Ramsey County, dissolving a writ of injunction.

This was an appeal from an order of tbe District Court of Ramsey County, vacating a sale of real estate under execution. It appears from tbe record that an injunction was issued and served upon the Sheriff, restraining tbe sale, and upon its receipt, be adjourned tbe sale to a future day. He made tbe sale pursuant to tbe notice of adjournment, after tbe injunction bad been dissolved, and after tbe return day of the execution.

This was an appeal from tbe judgment and decree of tbe District Court of Ramsey County. Tbe opinion of tbe Court recites the facts involved in tbe points decided. Tbe following are tbe points and authorities relied upon by tbe Counsel for tbe Appellant: First. — Richard Chute was not tbe Attorney in fact authorized or empowered as such to bargain, contract, sell or convey tbe lot in question, or any other real estate for or in tbe name of 'William Gr.

The complaint, as amended, alleges substantially the following facts: That at a general election held October 9th, 1855, under the laws of the Territory, Edward E. Parker, the relator, was elected to the office of District Attorney of Dakota County for the term of two years, and until his successor was qualified, and was then eligible to said office, and afterwards qualified, &c., according to law; that he has never resigned, removed from said Dakota County, refused to act,…

The questions of law arising upon the trial of this cause being important and doubtful, in the opinion of the Judge before whom the same was tried in the Court below, he reported the case to the Supreme Court, under the provisions of Chap. 115, ¶. 778, Stab, of Mm.

The indictment in this case was found by the Grand Jury of Nicollet County, and the Defendant was tried in Brown County, upon a change of venue. He was found guilty of grand larceny, and sued but a Writ of Error. A Bill of Exceptions was sent up with the writ.

The folio wing^are the points and authorities relied upon by the Counsel for the Plaintiff in Error: First. — An assault may he committed by a demonstration of force or violenqe towards the party assaulted. An offer or attempt with force to do a corporeal' hurt to another, constitutes an assault in all cases. Russell on Crimbs, Vol. 1, pp. 750 and 751; Hays vs. The People, 1 Hill R. 351, and the cases there cited by Gowen, Judge; The State against Sims, 3 Strobhart, 137.

<p>An Affidavit for a change of venue upon tlie ground that the Judge was prejudiced in the cause, is not sufficient if it be merely couched in the language of the Statute. It should state the facts and circumstances upon which the prejudice is alleged to exist.</p> <p>The reading of an affidavit for a change of venue on the ground of prejudice in the mind of the Judge, is not, per se, a contempt of the Court in which it is presented.</p>

This was an. appeal from an order of the District Court of Hennepin County, denying- a motion for a new trial. The tacts are substantially stated in tbe opinion of the Court. The record contains a Bill of Exceptions, The following are the points and authorities relied upon by the Counsel for the Appellant: First. — The Court below erred in admitting in evidence the “return” of the Sheriff, for the purpose for which it was offered, or for any purpose.

This was an appeal from tbe District Court of Ramsey County, and tbe record is accompanied by an agreed case, giving the proceedings of tbe trial and evidence offered in the Court below. Tbe main points in controversy upon tbe appeal arise upon objections to the admissibility of depositions, offered upon tbe trial, which objections are stated in tbe opinion of tbe Court.

The Defendant below was prosecuted in the Police Court for an. alleged violation of an ordinance of said city. The Defendant was convicted by the City Justice, and the record, &c., removed to the District Court, Pamsey County, on appeal. The District Court acquitted the Defendant.

The following is a statement of the case: This was an action brought in tbe Court below by Louis Seitz, against tbe City of Saint Paul, in the nature of an action on the oase, for damages alleged to hare been suffered by him through tbe negligence of certain alleged servants or agents of said City. Tbe case was referred to W. Wilkin, Esq., to report specially upon tbe facts, in tbe nature of a special verdict.

There were two causes entitled as above, which were actions of replevin in the District Court of Dakota County, the property in controversy in each being a quantity of cord wood. The issues joined in the two actions were referred to a referee, who reported a general finding for the Defendant, and an assessment of the value of the property in controversy in each case. Judgments were entered upon the reports, and the Plaintiff appeals therefrom.

This was an appeal from an order of the District Court of Blue Earth County. The action was before a Justice of the Peace in that County. His judgment was reversed upon Certiorari to the District Court, and the Plaintiff below appeals from the order of reversal. The ground of error appears from the opinion of the Court.

Action upon a promissory note against Defendant Baker, as endorser, wbo answered putting in issue the facts of a due presentment for payment, and protest of the note in suit. Also, denying that due notice of presentment, non-payment and protest was given him. The cause was tried by the Court, and the facts found appear in the opinion. Judgment in favor of the Defendant Baker.

The following are the points and authorities relied upon by the Counsel for the Plaintiffs in Error: There is no better settled principle in the commercial law, than that as between the original parties to a note or its transfer, a party apparently liable on the face of the instrument to the holder, may, for any cause, show by parol that in point of fact he is not so liable.

The complaint in this action was founded upon a inomissory note, of which the following is a copy: “ St. Anthony, Min., February 24th, 1859. “ $200.- “ Four months after date, for value received, the Regents of the University of Minnesota promise to pay to the order of Alden, Cutter & Hull, two hundred dollars, with interest at the rate of one per cent, per month till paid.

The following are the points and authorities relied upon by the Counsel for the Appellant: The Court below erred in allowing the Plaintiff any interest upon the second note specified in the complaint. First. — Interest could not be allowed, because there was no contract to pay interest. Mason & Craig, Plaintiffs in Frror, vs. Calendar, Flint & Co., Defendants in Error, ease not reported, decided at December Term, Min. Sup.

The following are the points and authorities relied upon by the Counsel for the Plaintiff in Error: First. — The said District Court erred in rendering judgment for a greater amount than the sum expressed in the promissory note described in the complaint, and interest thereon at the rate of seven per cent, per annum. Second. — The said District Court erred in taxing and rendering judgment for the sum of $29 as statute costs to said Defendant in Error.

Tbe Kespondent below having demurred to tbe complaint in tbe action, tbe Plaintiff’s Attorney noticed tbe demurrer for argument before E. S. Jones, Court Commissioner for Hennepin County, wbo overruled tbe same, with leave, &c. Tbe time to answer baviüg expired, tbe Oourt Commissioner ordered an inquest by Sheriff, Jury, &c. Judgment was entered upon their report.

Motion before the Court Commissioner of Hennepin County, to set aside a summons, motion denied by the Commissioner, and the Defendant appeals. The points and authorities of Counsel do not refer to the question decided in the opinion of the Court.

Tbe following are tbe points and authorities relied upon by tbe Counsel for tbe Plaintiff in Error: First. — Tbe Court below erred in giving judgment against Plaintiff in Error, B. Y. L. Black, on an indebtedness wbicli be bad paid by paying and satisfying a prior judgment of tbe same Court rendered against bim as garnishee.

The following are the points and authorities relied upon by Counsel for Plaintiff in Error: First. — On the decision of a demurrer, the Court will consider the whole record, and give judgment to the party who, on the whole, appears to be entitled to it. See Stephen on Pleading, p. 144/ 2 Hill P., p. 59, United States vs. White et al.; 2 Itill, P., p. 210, Meroeien vs. Smith/ 18 Gorm. P., p. 395, Bishop vs. Quinta/rd.

WRIT OF ERROR TO TnE DISTRICT COURT OF RAMSEY COUNTY. The following are tlie points and authorities relied upon by the Counsel for the Plaintiff in Error: We think the Court erred in sustaining the demurrer.

The following are the points and authorities relied upon by the Counsel for the Appellant: First. — The resolution under which the Respondent holds the property in question — as an assignment — would be void as to creditors, and the Appellant being a creditor, would therefore be entitled to take the same in execution as the property of the Company, and to the same end might employ the statutory remedies in aid of execution, as attachment, garnishee proceeding, &c. 1.

The facts are stated in the opinion of the Court. The following are the points made on behalf of the Plaintiff in Error, which were considered by the Court and passed upon in the decision: The bonds were a species of property subject to attachment, and were duly attached in this case.

The Appellants summoned the law firm of Sanborn, French & Lund, as garnishees, upon their indebtedness to James Y. Caldwell, for services rendered by said Caldwell as Sheriff of Ramsey County, to the garnishees. The substance of the evidence given upon the disclosure, is stated in the opinion of the Court. The Plaintiffs below moved for judgment against the garnishees, which motion was denied.

The appellants, Temple & Beaupre, in October, 1857, obtained judgment in tbe Court below against the Respondent, Scott, for $800 42, upon which execution issued and $95 47 were collected. No further sum has ever been collected on this judgment, and it appears by affidavit that Scott has no property that can he reached in execution.

APPEAL PROM THE DISTRICT COURT OP RAMSEY COUNTY, Yerdict in favor of Defendant and judgment for costs; the Plaintiff appeals. The opinion gives an abstract of the facts proved upon the trial. The following are the points and authorities relied upon by Counsel for the Appellant: First. — The Respondent justified the taking of the property of Appellant on the ground of authority for so doing,- derived from the Appellant, through and by the Appellant’s agent, Leodora Bennett.

The Defendant below having been convicted of the crime of murder in the first degree, moved in arrest of judgment upon certain grounds which were claimed to be disclosed by the record, and which are enumerated in the opinion of the Court.

The Defendant was indicted for an assault with intent to kill, Ac.; upon one Capt. Morton. The indictment described the offence simply as committed with a pistol on Capt. Morton. There is no other description of the offence. The evidence showed an assault, &c., on one Toleton, — or, at best, left it doubtful whether the assault was committed on said Toleton or Morton.

<p>Tho statute providing that a person held to answer a charge for a public offence may challenge the panel of the grand jury, or any individual juror, before they retire, and after they are sworn and charged by the Court, is permissive in its nature, and does not oblige the Court or prosecutor to bring into Court the party held, (oven if imprisoned,) before the grand jury are charged. Be has the right to make the challenge if any canso exists. But if he makes no attempt to assert the right at the proper time, and is not prevented from asserting it, bo waiyes the privilege, and the • indictment will not be sot aside.</p> <p>The statute prescribes a certain form of the oatli to be administered to the jury on the trial of criminal cases not capital, as well as in capital cases; upon the trial of a capital case, the jury were sworn in accordance with the form prescribed for criminal cases not capital. Held — to be error, and that the form prescribed by statute should be strictly followed.</p> <p>In a case of felony, one of the jurors separated himself from his fellows, for a time, without the attendance of the officer having the jury in charge, after they had retired to deliberate upon their verdict. Held — that the fact of separation is sufficient ground for a new trial, without regard to the length of time of the separation, and without showing a tampering with, or oven a conversation with the juror, upon the subject of the trial.</p>

The issues joined by tbe pleadings in this cause, are stated in tbe opinion of tbe Court. Tbe case was tried in Steele County, upon a change of venue from Blue Eartb County; and a verdict rendered in favor of tbe Respondent, Defendant below.