Volume 30 — Minnesota Reports

Plaintiff brought this action under Gen. St. 1878, c. 18, § 7, in the municipal court of Minneapolis, to recover from defendant double the value of a portion of a partition fence. Defendant appeals from a judgment for plaintiff for double the value of the fence, as determined by the supervisors, and for double the supervisors’ fees. The case is stated in the opinion. The demand by plaintiff was not sufficient. Abbott v. Wood, 22 Me. 541; Whittier v. Johnson, 38 N. H. 160.

T Action to foreclose a mortgage;; trial in the district court for Wa-seca county, Buokham, J., presiding. ] On June 1, 1878, defendant Wallace made and delivered to one Oehler his two promissory notes, each for $733, dated the same day and payable, respectively, January 1, 1879, and January 1, 1880, and, to secure the payment of the same, also made and delivered to Oehler a mortgage upon certain land in Waseca county.

Plaintiff brought this action in the district court for Mower county, to recover the value of hay which had belonged to him and was stacked on his farm, and which was destroyed by a fire started on defendant’s premises. At the trial before Farmer, J., and a jury, the plaintiff had a verdict, a new trial was refused, and the defendant appealed.

Action to determine adverse claims to real property, brought in the district court for Hennepin county. A motion by defendant Clara B. Morse for judgment on the pleadings having been denied by Van-derburgh, J., the action was tried before Lochren, J., without a jury, and judgment ordered and entered for plaintiff, and the defendants appealed.

Action by plaintiff in the district court for Meeker county, to recover for breach of covenants of seizin and right to convey, contained in a deed of land in that county, executed by defendants to plaintiff in March, 1879. A jury was waived, and the action tried; before Brown, J., who ordered judgment for the plaintiff, which was, entered and the defendants appealed.

Plaintiff brought this action in the district court for Mower county, to recover the value of two colts killed by a passing locomotive on defendant’s railway track. At the trial before Farmer, Jk, the jury returned a general verdict for plaintiff, and also the following special findings, in answer to questions submitted by the court: “1. What was the value of each of said horses? Answer: Gray colt, $125; brown colt, $100. “2. Were the horses on the highway when struck?

Action for damages for assault. At the trial in the district court, for Chisago county, before Crosby, J., the plaintiff had a verdict. A motion for a new trial, on the ground, among others, of newly-discovered evidence, was denied, and judgment entered for plaintiff, and the defendant appealed. cited Humphrey v. Havens, 9 Minn. 301, (318;) Sargent v. -, 5 Cow. 106; Platt v. Munroe, 34-Barb. 291; Oakley v. Sears, 1 Abb. Pr.

Appeal ■ by plaintiff from a judgment of the district court for Becker county, where the action was tried by Stearns, J. The case is stated in the opinion. . In the foreclosure of a mortgage by advertisement all the essential requirements of the statute must be strictly pursued. Dana v. Far-rington, 4 Minn. 335, (433;) Lee v. Mason, 10 Mich. 403; Doyle v. Howard, 16 Mich. 261; Sherwood v. Fteade, 7 Hill, 431; Williamson v. Doe, 7 Blackf. 12.

Plaintiff, a corporation, brought this action in the district court for Nobles county, on a note made by defendant Carr, on which was endorsed a guaranty signed in the name of the firm of Bennett & Stone, off-which firm defendant Stone was a member.

<p>Municipal Court of Stillwater — Action Involving Title to Real Estate-Certifying to District Court. — The municipal court of the city of Stillwater has not jurisdiction to try .and determine any cause involving the title to real estate, but is required to certify causes to the district court “ where it appears that the title to. real estate is involved.” In an action commenced in that court, under the statute relating to forcible entries and unlawful detainers, to recover the possession of land upon the ground that defendant was holding, over after foreclosure of mortgage executed by him to the plaintiff, and the expiration of time for re- . demption, defendant put in issue the alleged foreclosure, and averred title in himself. Upon trial, and by evidence, the issue of title was controverted, and defendant sought to have the canse certified to the district court. This was refused, and the cause proceeded to judgment. Held, that the court had not jurisdiction to render the judgment, hut should have certified the cause to the district court.</p>

<p>Constitution — Certain Duties of Judges of Probate relating to Cities held not Judicial. — The duty and power imposed and conferred on judges of probate by Gen. St. 1878, c. 10, § 124, in respect to the incorporation of cities, are not judicial, and the statute is not unconstitutional as conferring on probate courts, or the judges thereof, judicial power beyond that authorized by the constitution. J</p>

Action in the district court for Nobles county, to recover damages for personal injuries to plaintiff’s intestate. On the trial, before Severance, J., and a jury, when plaintiff rested, the action was dismissed on defendant’s motion. Plaintiff appeals from an order refusing a new trial. The case is stated in the opinion. The failure to have a light upon the engine was a failure of the company to provide proper appliances in operating the train.

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

Plaintiffs, being creditors of defendant Pryor, procured from him a note for the amount of his indebtedness, due one day after date, and also, to secure the payment of the same, a chattel mortgage upon his stock of .goods. Plaintiffs immediately filed the mortgage and went into possession of the mortgaged property.

Appeal by Charles Heglund from a judgment of the district court for Goodhue county, Crosby, J., presiding, confirming an award of arbitrators upon a submission under Gen. St. 1878, c. 89. The case is stated in the opinion. The agreement extending the time in which to make the award was an enlargement of the submission and a material alteration. The award is therefore void, the submission not having been made in conformity with the statute.

Plaintiff brought this action in the district court for Hennepin county, to recover damages for an alleged libel by defendant. The action was tried before Youncj, J., and a jury, and plaintiff had a verdict for $2,000. Plaintiff appeals'from an order granting a new trial on the ground that the verdict is contrary to law and not justified by the evidence. The alleged libel was contained in the following article published by defendant in its paper: “Culpable Neglect.

Appeal by defendant Ealph Eees from an order of the district court for Hennepin county, Young, J., presiding, refusing a new trial. The case is stated in the opinion. The declarations of Jennie Apt, made subsequent to the sale, are not competent to prove the conspiracy.

Defendant was convicted before a justice of the peace of selling malt liquors to a minor, and sentenced to pay a-fine of $25 and costs. On appeal to the district court for Eice county, upon questions of law alone, the judgment was affirmed by Buchham, J., and defendant appealed. Gen. St. 1878, e. 16, § 10, makes it a penal offence for “any person” to sell malt liquors to a minor.

Defendant, having been convicted before a justice of the peace of selling intoxicating liquors to an habitual drunkard, appealed, upon questions of law alone, to the district court for Eice county, where the judgment was affirmed by Buchham, J., and defendant appealed.

Defendant appeals from an order of the district court for Ramsey county, Brill, J., presiding, overruling its demurrer to the complaint.

Plaintiff agreed with defendant to take a lease from him of a certain store. Before the lease was drawn, the plaintiff, with the permission of defendant, placed in the store certain counters and shelving necessary for a drug store. When the lease was to be executed, the parties could not agree as to the terms, and it was not completed. Plaintiff sought to remove the fixtures and shelving, and defendant refused to allow him to do so.

<p>Action for Conversion of Platform attached to a Building. — A wooden platform, situate in the building of defendant, belonged to plaintiff, who had the right to remove it. The defendant refused to permit the plaintiff to enter the building and remove it, and claimed it as his own property. Held, that an action will lie against the owner of the building for the wrongful conversion of the platform, although it be attached to the building.</p> <p>Evidence considered, and held sufficient to sustain the findings of the court below.</p>

Appeal by plaintiff from a judgment of the district court for Wa-seca county, Buekham, J., presiding. The case is stated in the opinion. If the bankrupt act had not been in force when the transfer was made by John Deidrick to his wife, and the consideration on which it was made were a valid debt, then John Deidrick had a right to prefer his wife to other creditors. But the bankrupt law was in force and declared such conveyances void. U. S. Bev. St. § 5128.

Plaintiffs brought this action in the district court for Hennepin county against defendant, as sheriff of that county.

Plaintiff appeals from an order of the district court for Ramsey county, Brill, J., presiding, sustaining a demurrer to the complaint.

Appeal by defendant from an order of the district court for Freeborn county, Farmer, J., presiding, refusing a new trial. The case is stated in the opinion. cited Morrison v. Davis, 20 Pa. St. 171; Railway Co. v. Reeves, 10 Wall. 176; Denny v. N. Y. C. R. Co., 13'Gray, 481; A., T. & S. F. R. Co. v. Edwards, 20 Kan. 531.

Appeal by defendants from a judgment of the district court for Eamsey county, Brill, J., presiding, reversing, in part, a judgment of the probate court.

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

Plaintiff, claiming to be the owner of a certificate of deposit issued by defendant, payable to the order of her husband, Jerry Cassidy, presented the same to defendant for payment, which was refused because it was not indorsed by the payee. Thereupon plaintiff brought this action on the certificate, as on a promissory note.

Appeal by plaintiff from a judgment of the district court for Olmsted county, after a trial before Buckham, J., and a jury. The case is stated in the opinion. cited Ela v. French, 11 N. H. 356; Keane v. Branden, 12 La. An. 20; Douglas v. Murphy, 16 U. C. Q. B. 113; Morris v. Summerl, 2 Wash. 203; Chicago Building Society v. Crowell, 65 Ill. 453; Sedgwick on Damages, 403; Dunlap’s Paley on Agency, 18. cited 2 Schouler on Pers.

<p>Certain Contract held not to be a Promissory Note. — A certain written contract for the payment of money considered, and held not to be a promissory note;, following Third Nat. Bank v. Armstrong, 25 Minn. 530.</p>

In January, 1880, Cherry & Leach were engaged in business at Big Stone, in Big Stone county, keeping a general store, and in the early part of that month, being in embarrassed circumstances, they applied for and received from certain creditors, who are defendants herein, extensions of their indebtedness.

Plaintiff brought this action in the district court for Olmsted county, to recover damages for personal injuries alleged to have been caused by the failure of defendant to keep in repair a walk appurtenant to the county court-house. A demurrer to the complaint was sustained by Start, J., and the plaintiff appealed. cited Cooley on Const.

Order to show cause why a writ of mandamus should not be issued, directing respondent, as judge of the district court for Scott county, to restore certain statements in a proposed case winch had been stricken out by the court when it was presented for settlement. A. former application for the writ was considered by this court in State T. Macdonald, 29 Minn. 440.

Defendant’s railway crosses the farm of plaintiff, who brought this action in the district court for Sherburne county, to eject defendant .and recover for the use and occupation of that portion of his farm on • which the railroad is situated. Defendant answered, denying plaintiff’s title, setting up occupation for more than twenty years, and asking to be allowed to condemn in case plaintiff established his title,.

Plaintiff brought this action in the district court for Hennepin county.

Action on a promissory note, brought in the district court for Dodge county. Defendants set up usury as a defence to the note, and, after a trial before Buckham, J., and a jury, bad a verdict. Plaintiff appeals from tbe judgment entered on tbe verdict.

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

Defendant sold to plaintiffs certain.logs with warranty of title. Subsequently the Lake Superior & Mississippi Railroad Company recovered judgment against plaintiffs, in an action for conversion of the same logs. Plaintiffs then brought this action on the warranty, in the district court for Washington county, alleging in their complaint due notice by them to defendant of the commencement of the action by the railroad company.

Appeal by plaintiff from an order of tbe district court for Washington county, denying a motion to change its conclusions of law, after a trial before McCluer, J., without a jury. Defendants, also, appeal from the judgment entered. The action was originally brought against one David Syme, of whom the defendants are the administrators. cited Kean v. Connelly, 25 Minn. 222; Hause v. Hause, 29 Minn. 252.

Appeal by defendant from a judgment of the municipal court of St. Paul, in an action for unlawful detainer. The case is stated in. the opinion. The complaint failed to state a cause of action. Bush v. Dunham, 4 Mich. 339; Bryan v. Smith, 10 Mich. 229; Allen v. Carpenter, 15 Mich. 25; McGuffie v. Carter, 42 Mich. 497; Armstrong v. Hinds, 8-Minn. 221, (254;) Chandler v. Kent, 8 Minn. 479, (536.) This action only lies upon a termination of a tenancy at will by notice to quit.

Appeal by plaintiff from an order of the district court for Henne-pin county, refusing a new trial, after a trial before Young, J., without a jury.

Appeal by plaintiff from an order of the district court for Washington county, Crosby, J., presiding, refusing a new trial. The case is stated in the opinion. The court erred in refusing to admit evidence as to the pecuniary loss which the next of kin to the deceased sustained by reason of his death. Railroad Co. v. Barron, 5 Wall. 90; McIntyre v. N. Y. C. R. Do., 37 N. Y. 287; Chicago, etc., R. Co. v. Shannon, 43 Ill. 338; Ewen v. Chicago & N. W. Ry.

<p>Appeal by plaintiff from a judgment of the district court for Lyon and Lincoln counties.</p>

<p>Chattel Mortgage — After-acquired Property. — The intention of the parties that a chattel mortgage shall take effect upon and include property not then owned by the mortgagor, but to be subsequently acquired by him, must be expressed by the instrument itself in words sufficient to carry the intention into effect, and cannot be shown by extrinsic evidence.</p>

The judgment in this action was, on defendants’ appeal to this court, modified. See 28 Minn. 314. On respondents’ motion, costs of this court were taxed by the clerk in their favor, as the prevailing party. Appellants (defendants) appeal from this taxation of costs.

. Plaintiffs, having commenced an action in the district court for Bamsey county against the firm of Lawrence & Martin, garnished Broadwater, Hubbell & Co. Upon examination the garnishees disclosed indebtedness to defendants amounting to $823.09, and the Traders’ Bank, of Chicago, appearing as claimant of this fund, was allowed to file its complaint, whereupon the action proceeded between it and the plaintiffs, and was tried before Brill, J.-, without a jury.

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

On the petition of the relator, Mary J. Wilkin, a writ of certiorari was issued' from this court, directed to the district court for Hen-nepin county. From the return to the writ, it appears that on May 4, 1882, the common council of the city of Minneapolis appointed commissioners to appraise and condemn so much of block 4 in Harmon’s addition to Minneapolis as lies between Hawthorne and Linden avenues and Twelfth and Thirteenth streets, for the purposes of a public park.

Certiorari. Upon the filing in the district court of Hennepin county, on February 14, 1883, of a mandate from this court, in accordance with the last opinion, the relator, Mary J. Wilkin, moved the district court for an order that interest be computed in her favor upon the award of $13,500, from June 21, 1882, the date of the filing of the first award by the commissioners appointed by the common council.

Appeal by defendants Elwis and Eice from an order of the district court for Martin county, Dickinson, J., presiding, refusing a new trial, after a verdict for plaintiff.

Action to quiet title, brought in the district court for Morrison county. Defendant Butler answered and the action was referred to a referee for trial.

Action to quiet title, brought in the district court for Morrison county. The facts in this ease are similar to those of the last preceding case, Herrick v. Butler, excepting that, in this action, the defendants answered separately, and, upon dismissal, entered separate judgments. The order appealed from in Herrick v. Butler was also made in this action and is appealed from by plaintiff.

Plaintiff brought this action of ejectment in the district court for Hennepin county, claiming to be the owner of the premises in controversy, viz., lot 9, in block 56, of Minneapolis. On the trial, before Shatv, J., without a jury, the following facts appeared: On July 30, 1872, William Gould was owner of the lot in question, and on that day mortgaged it to defendant Phelps.

Plaintiff appeals from a judgment of the district court for Steele county, where the action was tried before Buckham, J., without a jury.

<p>Action to recover damages for personal injuries occasioned to plaintiff by the negligence of defendant in running its trains.</p> <p>It appeared from plaintiff’s testimony that, at or near Minneapolis, the train on which she was a passenger ran off the track, owing to an open switch, and that plaintiff, in the general alarm, started to get out, and jumped off or was thrown off the car and injured. Plaintiff had a verdict, after a trial before Young, J., and a jury, in the district court for Hennepin county, and defendant appeals from an order refusing a new trial.</p> <p>The allegations of the complaint are not supported by the evidence,, and the facts attempted to be shown on the trial constitute such a variance from the complaint as to be a failure of proof. White v. Culver, 10 Minn. 155, (192;) Gasper v. Adams, 28 Barb. 441; Pix-ley v. Clark, 32 Barb. 268; Butler v. Livermore, 52 Barb. 570; Kelsey v. Western, 2 N. Y. 500; Walter v. Bennett, 16 N. Y. 250; Batter son v. Chicago d G. T. Ry. Co., 13 N. W. Pep. 508; Mayor v, Parker Vein Steamship Co., 21 How.- 289; Lund v. Inhabitants of Tyngsboro, 11 Cush. 563; Vanderslice v. Neioton, 4 N. Y. 130; Spencer v. St. P. d S. C. R. Co., 21 Minn. 362; Gray v. Bullard, 22 Minn, 278; Holden v. Rutland & B. R. Co., 30 Yt. 297; 4 Wait’s Pr. 697;. 2 Greenleaf, Ev. §§ 254-256; 1 Chitty, PI. 328, 346; 2 Addison on Torts, 637; Sedgwick on Damages, 575; Thompson on Carriers of Passengers, 650.</p> <p>If the court has stated the law correctly, it is not bound to repeat a charge on request. State v. McCartey, 17 Minn. 54, (76;) State v. Beebe, Id. 218, (241;) Hocum v. Weitherick, 22 Minn. 152; Chandler v. De Graff, 25 Minn. 88; Wright v. Ames, 28 Minn. 362. The complaint is properly framed. McCauley v. Davidson, 10 Minn. 335, (418.) Whether the plaintiff fell off, jumped off or was pushed off, the injury, in either ease, was caused by defendant’s negligence. Wilson y. Northern Pacific R. Co., 26 Minn. 278.</p>

Appeal by defendant from a judgment of the district court for Steele county, where the action was tried before Buckham, J., without a jury. The case is stated in the opinion. The statute makes each stockholder liable to the amount of stock held or owned by him for corporate debts, and creates a right flowing directly from each stockholder to the creditor. The creditor has his remedy at law, and is not compelled to pursue his remedy in equity.

Plaintiffs brought this action in the district court for Olmsted county, to restrain the defendants from foreclosing the mortgage mentioned in the opinion, and asking to have it declared void as against their judgments against defendant Thomas Campion.

Appeal by defendant from an order of the district court for Ramsey county, Simons, J., presiding, overruling its demurrer to the eom-plaint. _The substance of the complaint is stated in the opinion. The contract set out in the complaint is an independent, personal covenant, distinct from the land, requiring no act to be performed on the land, and creating no privity of estate between the contracting parties, and did not vest any rights in their grantees.

Action in the district court for Le Sueur county, to recover damages for the destruction of plaintiff’s grass, occasioned by the careless and defective construction, by defendant, of embankments and a bridge over the Cannon river, whereby the water of the stream was dammed up and overflowed plaintiff’s land, causing the injuries complained of. Plaintiff had a verdict after a trial before Macdonald, J., and a jury, and defendant appeals from the judgment entered thereon.

Plaintiffs brought this action in the district court for Sibley county, to recover damages for injuries occasioned to a portable steam-engine belonging to them, by reason of the negligence of defendant in failing' to keep a public highway and bridge in repair, whereby the engine was thrown to the ground and broken. Upon the trial, before Mac-donald, J., and a jury, upon the opening of plaintiff’s case, defendant moved for a dismissal, which was granted.

Plaintiff commenced this action in the district court for Hennepin -county, and garnished Curtis H. Pettit, the assignee of defendant under an assignment for the benefit of creditors.

Appeal by plaintiff from an order of the district court for Henne-pin county, refusing a new trial, after a trial by Vanderburgh, J., without a jury. The case is stated in the opinion. cited Thompson v. Morgan, 6 Minn. 199, (292;) Barret v. Shaubhut, 5 Minn. 258, (323;) Boss v. Worthing-ton, 11 Minn. 323, (438;) Meighen v. Strong, 6 Minn. Ill, (177;) Everest v. Ferris, 16' Minn. 14, (26.)

Appeal by Minnie Mousseau, contestant in this matter, from an order of the district court for Hennepin county, Shaw, J., presiding, and Young and Lochren, JJ., concurring, dismissing an appeal from the probate court for the same county. The case is stated in the opinion. The first probate of the will of Fannie Mousseau was defective and void, because no guardian ad litem was appointed for Minnie Mous-seau. It was not a valid judgment against her.

Appeal by plaintiffs from an order of the district court for Redwood county, Baldwin, J., presiding, dismissing their appeal from a judgment of a justice court, for $ 15 and costs, in favor of defendant.

In 1857, the plaintiff, then the wife of Thomas Garvey, advanced to him- $200, to be used in pre-empting land, and which was so used by him.. In 1858, Thomas Garvey died, and the expenses of his last sickness and of his funeral, amounting to $205.50, were paid by Patrick Garvey, upon the request of plaintiff, and upon her agreeing to repay them, which she did in 1859.

<p>Negligence — Railroads — Incompetent Evidence. — A recovery being sought against a railroad company, on the grounds only that it employed an engineer who was old, near-sighted, and unacquainted with the road, and by reason of such defects incompetent, and that a brake upon one of its ears was defective, which incompetency and defect are alleged to have caused the injury complained of, it was error to have allowed proof of the fact that, after the accident complained of had occurred, such engineer ran his train (freight) without a brakeman a distance of several miles, and ran the engine off the track. Certain evidence excluded by the court on cross-examination held to have been admissible.</p>

Appeal by defendant from an order of the district court for Ramsey county, Wilkin, J., presiding, refusing a new trial. The case is stated in the opinion. cited Eaton v. Delaware, etc., R. Co., 57 N. Y. 382; Marvin v. Wilber, 52 N. Y. 270; Nicholson v. Erie Ry. Co., 41 N. Y. 525; Robertson v. N. Y. cited Notion v. Western R. Co., 15 N. Y. 444; Wilton v. Middlesex R. Co., 107 Mass. 108; Sherman v. Hannibal & St. J. R. Co., 72 Mo. 62.

Appeal by defendant from an order of the district court for Rice County, Buckham, J., presiding, overruling his demurrer to the com-' plaint.

Appeal by defendant from a judgment of the district court for Eamsey county, where the action was tried before Brill, J., and a jury.

Appeal by defendant from an order of the district court for Kam-sey county, Simons, J., presiding, refusing a new trial.

Appeal by plaintiffs from an order of the district court for Clay county, McKelry, J., presiding, (acting for the judge of the 11th district,) dissolving an attachment. The case is stated in the opinion.

Appeal by plaintiff from an order of the district court for Eice county, Buclcham, J., presiding, refusing a new trial. The case is stated in the opinion.

Appeal by plaintiffs from an order of the district court for Ramsey county refusing a new trial after a trial by Brill, J., without a jury.

Appeal by plaintiff from a judgment of the district court for Otter Tail county, where the action was tried by McKelvy, J., without a jury- The rule that “every man must so use his own property as not to injure the property of another” is not absolute, but is so qualified as to allow each to make a reasonable use of his property, even though the other may thereby suffer some detriment.

Appeal by defendant from a judgment of the district court for Blue Earth county, entered on the report of J. F. Walsh, Esq., referee.

Appeal by defendants Smith and Doran (impleaded with the sheriff, Patrick Bray, as to whom the suit was dismissed before trial,) from a judgment of the district court for Sibley county, Macdonald, J., presiding. The plaintiff having selected the north 80 acres as his homestead, the sale is-valid as to the south 80. .

Appeal by defendant from an order of the district court for Sibley county, Macdonald, J., presiding, adjudging him guilty of a contempt and sentencing him to imprisonment therefor.

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

Plaintiff brought this action in the district court for Ramsey county for the conversion of a car-load of corn, the complaint alleging, in general terms, title and right of possession in plaintiff, a conversion by defendant on July 2, 1880, and the value of the property.

<p>Chattel Mortgage not filed Postponed to Subsequent Unfiled Mortgage taken in Good Faith. — -Under the statute in relation to chattel mortgages, (Gen. St. 1878, e. 39, § 1,) where the possession is not delivered, a prior mortgage will be postponed to a subsequent bona fide mortgage, if not duly filed when the latter is executed, although the former may he subsequently filed prior to the filing of the second mortgage.</p> <p>Same — Definition and Evidence of Good Faith. — In order to entitle the second mortgage to such preference, it must be taken in good faith, which means for a valuable consideration and without notice. The good faith of the second mortgagee may be inferred from the payment of a valuable consideration, where the transaction occurs in the ordinary course of business, and is free from suspicious circumstances.</p>

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

Prohibition. The facts stated in the petition and writ were, in substance, as follows: Cadwallarler C. Washburn, of La Crosse, Wisconsin, died May 14, 1882, having made his last will on December 31, 1881, in which he named the relators as his executors.

Plaintiff brought this action in the district court for Hennepin county to recover possession of “lot 6 in block 128, of the town, now city, of Minneapolis, according to the plat thereof now on file and of record in the office of the register of deeds within and for said county of Hennepin.” A jury was waived and the action tried by Vander-burgh, J., who found the facts in substance as follows: On April 23, 1855, one D. M. Hanson (the common source of title) pre-empted and…

Appeal by defendant from an order of the district court for Ramsey county, Simons, J., presiding, refusing a new trial after verdict for plaintiff. The evidence shows that after indorsing the note to plaintiff, (about March 1,1880,) the German-American bank reported the note as paid and credited as paid — the same report and credit it would have given the First National bank, had the note been collected from a party liable on it.

Appeal by plaintiff from an order of the district court for Nicollet county, Cox, J., presiding, setting aside a verdict and granting a new trial.

Plaintiffs brought this action to the district court for Ramsey county, against the city of St. Paul and its treasurer, to enjoin the enforcement of a special assessment against their real estate described in the complaint. A demurrer to the complaint was overruled by Wilkin, J., and the defendants appealed.

This, like the last preceding ease, was an action brought against the city of St. Paul and its treasurer, to restrain the enforcement of an assessment for a local improvement. A demurrer to the complaint was overruled by Wilkin, J., and the defendants appealed.

Plaintiffs, tbe owners and mortgagors of the threshing-machine mentioned in the opinion, brought this action in the district court for Hennepin county to recover damages for the alleged conversion of the threshing-machine by defendant, the mortgagee.

Appeal by plaintiff from a judgment of the district court for Sib-ley county, Macdonald, J., presiding, reversing a judgment of a justice of the peace.

Plaintiff brought this action in the district court of Ramsey county, to recover a balance claimed to be due it on account of the taxes of 1880. The action was submitted to the court, Simonsj J., presiding, on stipulated facts, from, which it appears that defendant had paid as taxes (under Laws 1857, Ex.

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

Appeal by defendant from an order of the district court for Ramsey county, Simons, J., presiding, refusing a new trial after atrial by the court without a jury.

Appeal by plaintiffs from an order of the district court for Stearns county, McKelvy, J., presiding, refusing a new trial after verdict for defendant.

Appeal by defendants (not including Getman) from an order of the district court for Dodge county, Buckham, J., presiding, refusing a new-trial, after trial by the court, a jury being waived. The caséis stated in the opinion. The court below did not acquire jurisdiction over these appellants. The application to make them parties was made under Gen. St. 1878, c. 66, §§ 154, 155.

Action for specific performance. Defendants appeal from an order of the district court for Hennepin county, Lochren, J., presiding, refusing a new trial. The case is stated in the opinion. There is such a lack of mutuality in this contract that it should not be enforced in equity. Bailey v. Austrian, 19 Minn. 465, (535;) Goodwin v. Lyon, 4 Porter, (Ala.) 297; Hays v. Hall, Id. 374; Boucher v. Van Bushirh, 2 A. K. Marsh. (Ky.) 346; Page v. Hughes, 2 B. Mon.

Appeal by plaintiff from an order of the district court for Hennepin county, Young, J., presiding, refusing a new trial. The action was brought by plaintiff to recover the purchase price of barley alleged to have been sold and delivered to defendants.

Mandamus. The relator purchased at tax sales, for the years from 1858 to 1862, certain land in the county of Washington, and paid the taxes thereon till 1878, when the tax sales were adjudged void by the district court of that county.

Motion by respondent to dismiss the appeal taken by Pauline Graeff and another from an order of the district, for Olmsted county, Start, J., presiding, appointing a receiver of the estate of said Pauline Graeff, on the application of Dennis Leary and others, under Laws 1881, e. 148, § 2.

The city of St. Paul having instituted proceedings for the opening of a street through a portion of plaintiff’s land, used by it for depot purposes, plaintiff brought this action in the district court for Ramsey county, to restrain defendant from further proceeding in the matter.

<p>Attachment — Discharge on Motion of a Stranger. — It is only the defendant whose property has been attached to whom Gen. St. 1878, c. 66, § 157, gives the right to procure a discharge of the attachment upon executing a bond to the plaintiff in the writ. A stranger to the suit, although he has an interest in the attached property, has not this right.</p> <p>Same — Effect of Such Order on Attaching Creditor’s Bight to Bedeem from Mortgage Foreclosure. — But the order discharging the writ of attachment, upon the motion of such stranger, was not void, but merely voidable, and, until such order was vacated, the lien of the plaintiff- in the writ upon the attached premises was discharged; and, at least as against such intermeddler, he was not required, in order to save his rights, to offer or attempt to redeem, within the time fixed by statute, after his attachment was discharged.</p> <p>Same — Action by Creditor against Such Stranger — Tender not Necessary. — In a suit by such attaching creditor against such stranger, by whose unauthorized acts he has been thus deprived of the privilege of redeeming the -attached premises within the statutory period, asking to be still allowed to redeem, it is not necessary that the complaint allege a tender, or contain an offer to pay the amount due. If it state facts showing that the plaintiff had a statutory right of redemption, and that he was wrongfully deprived of it by the unlawful acts of defendant, it states a cause of action.</p>

Appeal by plaintiff from a judgment of the district court for Wright county, Lochren, J., presiding, reversing' a justice’s judgment from which, the defendant had appealed on questions of law alone.

Plaintiff brought this action in the district court for Mower county, to recover possession of the E. J of the N. W. i of section 22, township 101, range 18, in that county.

Plaintiff brought this action in the district court for Bice county, alleging in her complaint that on and long prior to March 2, 1881, the plaintiff and defendant were the owners of four Minnesota state railroad bonds, numbered 1740, 1742, 1743 and 1745, drawing interest at 7 per cent, per annum from March 10, 1869, and payable to bearer, tbe defendant’s interest therein being two-thirds and plaintiff’s one-third.

Action for damages brought in the district court for Freeborn county, for the death of plaintiff’s intestate.

Appeal by plaintiff from an order of the district court for Henne-pin county, Shaw, J., presiding, discharging the garnishees.

Appeal by plaintiff from an order of the district court for Henne-pin county, Shaw, J., presiding, refusing a new trial, the action haying been dismissed at the close of plaintiff’s evidence.

Appeal'by defendant from an order of the district court for Washington county, Crosby, J., presiding, refusing a new trial. The action was for specific performance, and, to prove the contract, the plaintiff introduced in evidence a letter from one Comfort (his agent) to defendant, dated December 19, 1881, in which he stated: “I am informed that you are the owner of the south-east quarter of section 29, township 30, range 21, Washington county, Minnesota.

Appeal by defendants from an order of the district court for Washington county, McGluer, J., presiding, overruling a demurrer to the complaint.

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

Appeal by defendant Christopherson 'from a judgment of the district court for Scott county, Macdonald, J., presiding, in an action brought against appellant and one William Cressey and his wife. The ease is .stated in the opinion.

By written contract between the plaintiff of the first part, and defendants (partners as Smith & Culver) of the second part, the plaintiff appointed defendants its agents for the sale, in Olmsted county, -of Dewey harvesters, and other machines made by plaintiff, agreeing to supply these articles in specified quantities and at designated prices, the defendants to sell at the regular retail prices established by plaintiff, on terms of credit provided in the contract.

In his lifetime, Peter Neskern became a member of the defendant association, organized for the purposes of mutual life-insurance, and received from defendant the following policy, or certificate of membership, viz.: “Age 59. No. 498.

This action was brought in the district court for Washington county, to recover damages for assault and battery. The application of plaintiff for an allowance for “expert fees” having been denied by McGluer, J., the plaintiff appealed; and the parties to the action entered into a stipulation that the appeal be heard without further notice, waiving bond and security. The case containing the evidence does not appear to have been settled and allowed by the court below.

On June 7, 1882, plaintiff sold to defendant 3,000 bushels of wheat, 600 bushels at the agreed price of $1.40 per bushel and 2,4U0 bushels at $1.28 per bushel. Prior to August 7, 1882, plaintiff delivered 53040/60 bushels of the $1.28 wheat, and, on that day, defendant gave plaintiff notice that it would not receive any more wheat. Plaintiff offered to deliver four loads of wheat on August 8th, and defendant refused to receive them.

Ejectment. Both parties claim title, through Adaline Babcock, to the south-east quarter of the north-east quarter of section 32, in township 117, range 23, situate in Hennepin county.

Action in the district court for Freeborn county, to recover damages for the alleged conversion, by defendants, of mortgaged property. The property in question was wheat, and was levied upon by defendant Sheehan, as sheriff of Freeborn county, as the property of one Austin. Plaintiff claimed title under a chattel mortgage from Austin. A jury was waived and the action tried before Farmer, J., who found the facts as recited in the opinion, and ordered judgment for plaintiff.

Replevin. Plaintiff purchased. 80 bushels of barley at a foreclosure sale under a chattel mortgage. The sale was made at defendant’s house, where the barley was stored, both plaintiff and defendant being bidders. At the sale defendant made no claim to the barley nor to any lien upon the same.

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

Appeal by plaintiff from a judgment of the district court for Hen-n'epin county, where the action was tried before Young, J., without a jury. The case is stated in the opinion.

Taxes for 1879 were assessed and levied on certain personal property as belonging to defendant, consisting mainly of wheat.

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

Action in the municipal court of St. Paul, upon a promissory note, made by defendant, payable to the order of Laraway, King & Per-rine, by whom, the complaint alleges, it was sold, indorsed and delivered to plaintiff.

Appeal by defendant from an order of the district court for Clay county, where the action was tried before Stearns, J., and a jury, refusing a new trial.

Appeal by plaintiff (a corporation) from a judgment of the municipal court of Stillwater,'where the action was tried by the court. The instrument in suit, referred to in the opinion, was as follows, viz.: “$35,00.

This action was commenced in the district court for Freeborn county. Defendant, a corporation created and existing under the laws of New York, upon affidavits showing that for more than a year past it had had an office and general place of business in Hennepin county, and had no agent, agency or place of business in Freeborn county, moved for a change of venue to the former county.

Appeal by defendant from an order of the district court for Washington county, Crosby, J., presiding, refusing a new trial. The case is stated in the opinion. \ The contract of which specific performance is sought in this action is one of which time is the essence. The parties had a right to make it. The contract, having been broken, should not be enforced. A court of equity has no right to interfere to.make a new contract which the parties have not made.

Appeal by plaintiff from an order of tbe district court for Steams county, McKelvy, J., presiding, dismissing her appeal from the award made by commissioners in condemnation proceedings. The case is stated in the opinion. cited Reynolds v. La Crosse é Minn. Packet Co., 10 Minn. 144, (178;) Johnson v. Knoblauch, 14 Minn. 4, (16 ;) Tyrrell v. Jones, 18 Minn. 281,- (312;) Anderson v. South Minn. R. Co., 21 Minn. 30; Curtis v. Jackson, 23 Minn. 268; Kasson v. Brocker, 47 Wis. 79.

• This action was brought in the district-court for Waseca county, to recover damages for personal injuries occasioned to plaintiff, who was in defendant’s employ as a brakeman, by reason of a train being thrown from the track, owing to the alleged negligence of defendant in failing to keep its road in good condition.

Action for personal injuries. Appeal by defendant from an order of the district court for Eice county, Buckham, J., presiding, refusing a new trial, after a verdict of $10,000 in favor of plaintiff. The case is stated in the opinion. Plaintiff was guilty of contributory negligence and is therefore not entitled to recover in this action.

<p>Action on Running Account — Former Judgment a Bar. — It is a general rule (in the absence of special facts creating an exception) that an indebtedness of his customer to a retail dealer upon a running account furnishes one cause of action, and, if such cause of action be split, and a recovery had upon a part of it, the judgment is a bar to any further recovery thereupon.</p>

Appeal by defendants'from an order of the district court for. Ramsey county, Brill, J., presiding, overruling their demurrer to the complaint.

Appeal by defendant from an order of the district court for Hen-nepin county, Loehren, J., presiding, overruling.-its'demurrer td the complaint. The ease is stated in the opinion. „ ■> : . ■ The damages sustained by the next of. kin-/should .have' been pleaded specially., - General damages are such as -the -law-.implies or presumes from the wrongful act. Special damages are such as really occurred, but are not implied by law.

On November 12,1878, plaintiff insured his house with the defendant company for three years. Before the expiration of this insurance, plaintiff requested the agent to renew his insurance, increasing the amount as stated in the opinion. Plaintiff’s house was destroyed by fire on December 14, 1881. This action was brought in the district court for Scott county, to recover the amount of the insurance requested by plaintiff.

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

This aption was brought in the municipal court of Minneapolis, to recover the price of glass alleged to have been sold and delivered to defendant in Minneapolis. The answer sets up as a defence that the contract of sale required a delivery to defendant in Brainerd, and that plaintiffs had failed to make such delivery. Upon the trial, it appeared that the plaintiffs had shipped the glass to defendants by rail, and that it was broken in transit from. Minneapolis to Brainerd.

Certain creditors of Pauline Graeff, whose claims exceeded $200, having made application, upon the grounds stated in the opinion, to the district court for Olmsted county for the appointment of a receiver of her property under the provisions of Laws 1881, c. 148, an order was made by Start, J., granting such application and appointing a receiver. Pauline Graeff and William W. Doty, a preferred creditor, appeal from this order.

Plaintiff brought this action in the district court for Hennepin county, to recover damages for trespasses by defendant, and to enjoin it from use of, or interference with his land, and recovered judgment granting a perpetual injunction against defendant.

Appeal by plaintiff from a judgment of the district court for Washington county, where the action was tried before McGluer, J., without a jury. A former appeal in this action by plaintiff was dismissed by this court. See opinion, ante, p. 119, for statement of case. Babcock & Davis, for respondents, cited Wooden-Ware Go. v. United tates, 106 U. S. 432; Weymouth v. Chicago dcN. W. By. Go., 17 Wis. 50: Winchester v. Craig, 33 Mich. 205.

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

Minnie D. Lustfield appeals from an order of the district court for Bice county, Buckham, J., presiding, made on plaintiff’s motion, adjudging her to be in contempt for the disobedience of an order of such court requiring her to appear and answer in supplementary proceedings in this action, and also appeals from a further order of the same court requiring her to pay $25 for her contempt of court, or to be committed to the county jail.

Action brought in the district court for Blue Earth county to recover the value of colts killed on defendant’s track by a passing train, ■Upon a trial before Severance, J., and a jury, plaintiff had a verdict, and defendant appeals from an order refusing a new trial. The case, is stated in the opinion. The court erred in refusing to charge as defendant requested. Illinois G. R. Go. v. Swearingen, 47 111. 206; Wooley v. Fry, 30 111. 158 ; Toledo á W. Ry.

Appeal by plaintiff from an order of the district court for Henne-pin county refusing a new trial, after a trial before Young, J., and a jury.

The complaint in this action, brought in the district court for Ramsey county, alleges that plaintiff is a judgment creditor of defendant Joseph C. Green, (husband of the other defendant,) that his judgment was docketed December 8, 1876,. and that execution on the judgment has been returned unsatisfied; that after the' docketing of the judgment, several described pieces of land were conveyed to defendant Nellie It.

<p>Appeal from Order Denying New Trial — Affirmance under Rule 14— Subsequent Appeal from Judgment. — Where, upon an appeal from an order denying a new trial, the order is affirmed, under rule 14, for failure of appellant to serve copies of the paper-book and points, all questions that might have been raised on that appeal are res adjudicata, and will not he considered on an appeal from the judgment entered upon the verdict.</p>

Plaintiff brought this action in the district court for Goodhue county against defendants, as co-sureties with himself, seeking to enforce contribution from them. The action .was tried before -McCluer, J., and a jury, and, when both parties rested, the court, on defendants’ motion, directed a verdict in their favor.

Action for false imprisonment, brought in the district court for Hennepin county. Trial before Young, J., and a jury, and verdict of $350 for plaintiff. Defendant appeals from an order refusing a new trial. The offence for which plaintiff was arrested by defendant was disorderly conduct, in violation of a city ordinance.

Plaintiff, tbe person designated by Albert G. Manson in his certificate of membérship in defendant to receive the sum of $2,000, upon his death, brought this action in the district court for Bamsey county, to recover that sum. The action was tried before. Wilkin, J., a jury being waived, and judgment was ordered for plaintiff. Defendant appeals from an order refusing a new trial.

Thu creditors’ petition in this proceeding under the insolvent law of 1881 was addressed to the district court for Eenville county, and stated “that the above-named Jerome W. Barnard and Eosalia A. Lewis are, and for more than twelve months last past have been, co-partners, doing business at Bird Island in said county of Eenville, under the firm name of Barnard & Lewis,” but it did not state the residence of either of the debtors, or that they were non-residents of the state.

The complaint sets out the facts stated in the opinion and seeks to recover the rent due for one year’s actual occupation. The action is brought in the district court for Winona county, and defendant appeals from an order by Start, J., overruling a demurrer to the complaint. The lease is void in every respect. The language of the statute is unambiguous.

Appeal by defendant from an order of the district court for Jackson county refusing a new trial, after a trial before Severance, Jand a jury, resulting in a verdict for plaintiff. The case is stated in the opinion. The charge of the court in defining probable cause is correct. The first part of the definition has been approved by this court in Cole v. Curtis, 16 Minn. 161, (182, 195,) and the second part is almost identical with 1 Hilliard on Torts, 430.

Action to determine adverse claims, brought by plaintiff in the district court for Hennepin county, in 1882. Defendants, in their answer, set up, as a cause of action, fraud on the part of the plaintiff, in obtaining a’conveyance of the property in question, in 1871, from their mother, who died in 1878, and whose heirs they are. In his reply, the plaintiff pleaded the statute of limitations to the defendants’ cause of action.

Defendant and another were arraigned in the district court for the county of Otter Tail, upon the following indictment, viz.: “Louis Brin and H. Malloy are accused by the grand jury of the county of Otter Tail and State of Minnesota, by tbis indictment, of the crime of larceny, committed as follows'. “The said Louis Brin and H. Malloy, on the 13th day of July, A. D. 1882, at the city of Fergus Falls, in the county of Otter Tail, in the state of Minnesota, feloniously topk,…

<p>Plea in Abatement for Misnomer — Certainty required. — A plea or answer in abatement ior misnomer of defendant must be so full as to wholly exclude plaintiffs right to sue defendant by the name used. "Where the name used is “ Frank,” an allegation by defendant that his true and only name, and the only name by which he is known and goes by, is Francis and, not “ Frank,” is not enough, for he may have previously gone by the name of Frank, so as to be properly suable by that name.</p>

Appeal by plaintiff from an order of the district court for Murray county, Severance, J., presiding, overruling a demurrer to the answer, on the ground that the contract set out in the complaint is void as against the homestead law of the United States, the court stating that it had been so uniformly held in that district, but expressing doubt as to the correctness of so holding. The ease is stated in the opinion.

<p>Certiorari, directed to respondent, a justice of the peace of Houston county.</p>

Complaint was made against defendant, before a justice of tbe peace, for obstructing a highway by building a wire fence along and across it. He pleaded not guilty and title to the land in question in himself. The question of title coming into dispute upon the evidence, the justice certified the case to the district court for Waseca county, and defendant was thereupon tried in that court, before Buckham, J., and a jury, and convicted.

Appeal by defendant Caroline L. Baldwin, from a judgment of the district court for Hennepin county, where the action was tried by Shaiv, J.,-without a jury.

Plaintiff brought this action in November,.1881, in the district court for Hennepin county, to recover possession of land in that county. The defendant answered March 1, 1882'. On October 18, 1882, the defendant, on affidavit, moved for leave to serve an amended answer.

Appeal by plaintiff from an order of the district court for Henne-pin county, Young, L, presiding, overruling her demurrer to the answer.

' Plaintiff brought this action, in the district court for Goodhue county,' to recover the value of a stock of millinery goods, alleged to have been converted by defendant.

Appeal by defendant Nourse from an order of the district court for Anoka county, Shaiu, J., presiding, refusing to open a judgment.

Appeal by the New York Life Insurance Company from an order of ■the district court for Big Stone county, Broion, J., presiding, vacating an order of dismissal and reinstating a petition in insolvency against Studdart, in which the insurance company as a preferred creditor was joined as a co-respondent. The original petition was filed by Webster Smith and others on July 17, 1882, and a hearing thereon was ordered for August 1, 1882.