Volume 30 — North Dakota Reports

By foreclosure of mortgage, title passes from tbe mortgagor to tbe purchaser, but subject to tbe right of creditors of tbe mortgagor to enforce their liens upon it. Tbe senior creditor, in tbe order and under tbe. conditions prescribed by statute, by paying to tbe purchaser tbe purchase price, with interest, may redeem and become subrogated to bis rights, and so on, — tbe last redemptioner becoming tbe owner in fee.

If the owner expressly or impliedly assents to the taking, nse, or disposition of his property, he cannot recover for the conversion thereof. 38 Cyc. 2009, and cases cited. And this is true even where the person authorized to dispose of property exceeds his authority. 38 Cyc. 2110, and cases cited. The holder of a general storage ticket is never chargeable with constructive possession of any specific grain. Best v. Muir, 8 N. D. 44, 73 Am.

<p>Default judgment — vacating by consent of parties — order for — not appeal-able.</p> <p>No appeal will lie from an order entered by consent; and where it appears that an order vacating a default judgment and granting the defendant leave to answer was entered pursuant to the agreement and with the consent of the plaintiff, such order is not appealable, and plaintiff’s appeal therefrom will be dismissed.</p>

<p>Appeal from District Court, Wiliams County, F. E. Fish, J. Motion to dismiss for failure to diligently prosecute the appeal.</p>

From an order of the District Court of Eenville County, vacating a default judgment, Leighton, I., plaintiff appeals. The policy of insurance in this case cannot be forfeited by reason of the lapse of payment of premiums.

<p>Judgment — vacation of — order denying — recitals in order — statement of case — evidentiary matters.</p> <p>1. An order denying vacation of judgment should recite all the files and matters extrinsic thereto upon which it is based, and thus amount to a certificate of the basis for it, so that settlement of a statement of the case concerning evidentiary matters a part of its basis is certified and settled by the order appealed from, following § 7325, Rev. Codes 1905, § 7944, Comp. Laws 1913.</p> <p>Clerk’s certificate — on appeal — files.</p> <p>2. To such an order the clerk, under § 7206, Rev. Codes 1905, § 7822, Comp. Laws 1913, attaches the files and certifies to the record under rule 24 of this court and transmits the same as the appeal record..</p> <p>Minutes of court — must be settled on appeal — certificate — attached and sent up without notice to appellant — stricken from record.</p> <p>3. Where minutes of the court on trial are not settled by the order appealed from to be a part of the basis therefor, and are subsequently written up, certified, and attached to the appeal record without notice to appellant and opportunity to challenge the same, and contain matter bearing on the merits, such certificate will be stricken from the appeal record on motion seasonably made as not properly a part thereof, without a settlement on notice as a part of a statement of the case concerning the matters so attempted to be certified ex parte.</p> <p>Motion to strike — matters may he inserted upon notice — statement of case — appeal — records sent up.</p> <p>4. Motion to strike and remand granted, with instructions to embody the disputed matter of fact in a statement of the case after notice. Such statement will contain all evidence or affidavits .offered touching the issue involved, also the trial judge’s certificate stating the facts as it finds them to be, all of which, certified by the clerk, will be returned as the completed record on appeal.</p> <p>5. Twenty-five dollar terms conditionally allowed appellant on motion and remand.</p>

Liability is always contingent upon proof of negligence, in an action for damages against the owner of a domestic animal. 1 Thomp. Neg. §§ 841, 845; Eléteher v. Rylands, L. R. 1 Exch. 279, L. R. 3 H. L. 330, 6.Mor. Min. Rep. 129, 1 Eng. Rui. Oas. 235; Brown v. Collins, 53 N. H. 442, 16 Am. Rep. 372; Brown v. Kendall, 6 Cush. 292; 2 Greenl. Ev. §§ 85, 92; Wakeman v. Robinson, 1 Bing. 213, 8 J. B. Moore, 63, 2 Chitty, 639; Davis v. Saunders, 2 Chitty, 639, 1 Eng. Rui.

From a judgment of the District Court of La Moure County, Coffey, J. Plaintiff appeals. The principle which underlies special assessments is that the- value of the property is enhanced to an amount at least equal to the assessment. This principle cannot be departed from without taking private property for public use. Hanscom v. Omaha, 11 Neb. 37, 7 N. W. 739; Gilmore v. Hentig, 33 Kan. 156, 5 Pac. 788.

<p>This case is governed by the decision rendered in Ellison v. La Moure, ante, 43.</p>

Action to have a trust relation with reference to real property declared and to require a reconveyance of such, property to plaintiff, and to have a decree by which a mortgage shall be adjudged not a lien. Statement by PonnocK, District Judge. This appeal brings np the entire record of the court below. It was tried under the so-called “Newman act,” and a new trial in this court is asked. The record covers 311 pages; The facts are many.

The meaning of a contract is not evident when, if looking at the subject-matter, it is so unreasonable as to appear unlikely that the parties so intended. To enable one to read the contract in the light of the subject-matter and the effects and consequences, evidence of facts and circumstances, not mere conversations, leading up to and concurrent with the making of the contract, is often necessary. Oral testimony was admissible to show the intention of all parties.

<p>Appeal — remedy — constitution — legislature — causes which may be reviewed— power to prescribe.</p> <p>1. The right of appeal pertains to the remedy, and in the absence of constitutional inhibition, it is within the power of the legislature to prescribe the cases in which parties are entitled to a review by an appellate court.</p> <p>Interlocutory orders — appeals from — statute — causes authorized by-statute.</p> <p>2. Appeals from interlocutory orders are entirely the creation of statute, and will lie only in the cases authorized by the statute.</p> <p>Striking amended complaint from flies — order for — involves the merits — appealable.</p> <p>3. An order striking an amended complaint from the files is an order which involves the merits of an action or some part thereof, and hence is appealable under subdivision 4 of § 7841, Compiled Laws.</p> <p>Res judicata — issues — questions within.</p> <p>4. All questions which were actually and directly at issue on an appeal are res judicata, and will not be considered on a subsequent appeal in the same action.</p> <p>Appeal — dismissal — prosecution — want of — judgment — affirmance.</p> <p>5.When an appeal is dismissed for want of prosecution, and the order of dismissal did not provide that it was made without prejudice, such dismissal was in effect an affirmance of the judgment.</p> <p>Appeal — questions involved — decided on appeal from appealable order — judgment — appeal from — dismissal.</p> <p>6. When it is shown that all the questions involved in the appeal from the ■ judgment were decided on appeal from an appealable order made before judgment, the appeal from the judgment will be dismissed.</p>

Judgment for defendant, and plaintiff appeals. Oral evidence of a collateral agreement is inadmissible. 17 Cyc. 589, 644; 1 Ene. Ev. 453; 1 Dan. Neg. Inst. § 80; Joyce, Defenses to Com. Held: and thereby wipe out the security of the bank in the original transaction. 1 Morse, Banks & Bkg. 4th ed. § 167; 1 Bolles, Bkg. p. 361; 2 Thomp.

<p>Plaintiff impounded three. certain cows and notified the owner that he could have same by paying $25 damages and costs.</p> <p>Thirteen days later the owner, this defendant, offered plaintiff $25, which was refused. After a trial in justice court an appeal was taken to district court, wherein plaintiff was awarded $25 damages, besides interest and costs.</p> <p>Pounds — impounding — damages and costs — tender — offer of payment — time of — debt — how extinguished by.</p> <p>Held, that the offer made by defendant did not extinguish the debt nor constitute and offer of judgment for that amount. Plaintiff is entitled to. costs in lower court.</p>

<p>Defendant traded a tract of land to plaintiff, giving him warranty deed with a covenant against encumbrances, excepting a mortgage for $3,500. There were of record two other mortgages, — one for $650 and one for $5,700. Plaintiff sought to rescind under subdiv. 2, § 5849, Comp. Laws, 1913.</p> <p>Sale or trade for land — contract for — representations — rescission of contract — deceit — fraud — title — remedied — damages.</p> <p>1. Evidence examined, and shows that defendant believed the representations made by him to be true and had ample reasons for so believing. That he did not attempt to deceive or defraud plaintiff. That plaintiff was not damaged in any particular, and within six weeks of learning of the defects in the title defendant remedied the same. Each case must rest upon its own facts and be governed by its own equities, and it is accordingly held, that defendant did not make positive assertions in a manner not warranted by the information in his possession at the time of making the statements, and plaintiff could not rescind the contract.</p> <p>Note.' — The rescission of a land contract because of mistake as to the extent of the grantor’s title is the subject of a note in 15 L.R.A.(N.S.) 1039, and the question whether fraud may be predicated of misstatement as to title to real property is treated in notes in 28 L.R.A. (N.S.) 202, and 39 L.R.A. (N.S.) 1142.</p> <p>Consideration — failure of — evidence.</p> <p>2. Further held, that there was no failure of consideration of the original contract.</p>

E. Fish, J., special judge. Action to recover on an attorney’s lien. From an order sustaining a demurrer to the complaint plaintiff appeals. Where the legislature enacts a provision taken from a statute of another state or country in which the language of the act has received a settled construction, it is presumed to have been intended that such provision should be understood and applied in accordance with that construction. Cass County v. Security Improv.

Hemmi, J. Action to recover commissions on account of the selling of defendant’s land. Motion by defendant to extend the time in which to obtain a transcript and move for a new trial. Motion denied. Defendant appeals.

<p>Appeal from an order of the District Court, Adams County, W. C. Crawford, J.</p>

From a judgment and an order denying an alternative motion for judgment notwithstanding the verdict, or for a new trial of the District Court of Stark County, W. G. Orawford, L, plaintiff appeals. No rescission of a contract can be had unless ground therefor exists and is pleaded, and proved upon the trial. This is a question of law, and not one for the jury. Bev. Codes 1905, §§ 5378 — 5380; Comp.

Action for damages for breach, of a contract of employment occasioned by wrongful discharge. Judgment for plaintiff. Defendant appeals.

Action to quiet title to real estate. Judgment for plaintiff. Defendant Ward County appeals. The doctrine of liens as between debtor and creditor is just and equitable. Jacobs v. Latour, 5 Bing. 130, 2 Moore & P. 201, 6 L. J. C. P. 243. A lien is not a collateral contract. It is a right in the subject of the contract created by the law as an incident to the contract itself. Pelham v. The B. F. Woolsey, 3 Fed. 457; Hayden v. Delay, Litt. Set. Cas. (Ky.) 278.

C. Crawford, Judge. Action in equity by Sumner Sand against O. E. Beterson, J. A. Balsinger, Tbeo Lokken, Paul M. Brown, and F. M. Jackson for a permanent injunction. From an order denying a temporary injunction, pendente lite upon return of an order to show cause, plaintiff appeals. The presumption always is that a school district is common. Laws 1911, chap. 266, § 37. A school district, being originally common, remains so, until legally organized into a special district.

From a judgment of the District Court of Pierce County, Burr, I., defendant Hans Westby appeals. There is no resulting trust, nor does the doctrine of constructive trust apply, and at most there was only an oral promise to sell the land, and such promise, being within the statute of frauds, is not enforceable. Graham v. Selbie, 8 S. D. 604, 67 N. W. 831; Baker v. Yining, 30 Me. 121, 50 Am.

A judgment is not a lien upon specific property, but merely gives a right to levy, to the exclusion of subsequent adverse interests. 23 Cyc. 1350 (A). The erroneous omission or introduction of a middle initial in defendant’s name, or a mistake in such middle initial, will prevent the judgment from having effect as a lien. 23 Cyc. 1358 (ii) and note 40; Johnson v. Hess, 126 Ind. 298, 9 L.R.A. 471, 25 N. E. 445; Crouse v. Murphy, 140 Pa. 335, 12 L.R.A. 58, 23 Am.

<p>From a judgment of the District Court of Renville County, Leighton, J., defendant appeals.</p>

<p>The Board of Commissioners of Railroads of this state ordered a separate daily passenger service to be installed on the Ambrose-Elaxton branch of the appellant railway company, which appealed to the district court where the Board’s decision was affirmed, and it appeals to this court, alleging that the findings are insufficient to support the judgment of the district court. The Board’s order was a denial of the railroad’s application to be relieved under chap. 200, Sess. Laws 1907, Comp. Laws 1913, §§ 4789-4795, from running a daily passenger service, which had been ordered by the Board. The Board denies the right of the railroad to appeal, asserting that its order is final and that a statute granting a right of appeal would be unconstitutional because administrative, instead of judicial, functions are concerned. Since the decision below was made, this branch line has been extended into Montana. Both parties request a decision on the merits and that the ease not be treated as moot. Reid:—</p> <p>Note. — In regard to the right to a direct appeal to the courts from a decision of a railroad commission, the authorities, which are reviewed in a note in 49 L.R.A. (N.S.) 565, seem to establish the rule that there can be no appeal except pursuant to constitutional or statutory provision.</p> <p>Board of Railroad Commissioners — decisions of — appeals — courts.</p> <p>1. Though chap. 200, Sess. Laws 1907, Comp. Laws 1913, §§ 4789-4795, did not expressly grant an appeal to the courts, yet as it is in pari materia with similar earlier statutes in themselves granting and contemplating generally a right of appeal from decisions of the Board to the courts, a right of appeal exists as to the matters embraced in the statute in question.</p> <p>Subject-matter — ligislative — administrative — statutes — appeals — review.</p> <p>2. That the subject-matter is legislative or administrative does not render a statute unconstitutional authorizing a review of the action of the Board in the courts on an appeal to them.</p> <p>Railroads — passenger train service — relief from — right to apply to Commissioners — permissive statute — discretion of Board.</p> <p>3. That the right of the railroad to apply to the Commission to be relieved from maintaining a separate daily passenger service (by installation of a daily mixed passenger and freight service on branch lines) is permissive in language, and not a positive direction to the Board, and vests in it a discretion does not negative a right of appeal.</p> <p>Relief — earnings — cost of operation — branch line — statutory exception.</p> <p>4. In determining whether such relief shall be granted, the earnings and cost of operation of branch line service must be determined as near as possible, and where it plainly appears that the cost of operating the branch line with separate dai-ly passenger service installed greatly exceeds the railroad’s earnings and revenues derivable from the operation of such branch line, the carrier is prima facie within the statutory exception and prima facie is entitled to be permitted to operate a daily mixed passenger and freight train.</p> <p>Branch lines — statute revenues — service — cost — investment — dividend on.</p> <p>5. The statute granting such relief has particular application to branch lines, and the revenues from service and cost of branch line service only must be considered. The petitioner cannot be compelled to operate a separate daily passenger service on this branch line at a great loss, and be compelled to make up such loss from its main line revenues. The intent of the statute is that the revenues from branch lines shall justify a daily passenger service independent of whether the railroad as a whole within the state is returning a fair dividend on its investment.</p> <p>Passenger service — revenues — express.</p> <p>6. The proof discloses that the G. N. Crosby-Berthold line furnishes ample passenger service for four fifths of the length of this Soo branch line. A separate passenger service should not be forced for the convenience alone of the town of Ambrose and vicinity, when to do so will cause an additional annual expenditure of $14,000, added to a loss already sustained under mixed train service, the revenues being inadequate to meet even the expenses of a mixed train service.</p> <p>Order — judgment — interstate commerce.</p> <p>7. The order and judgment appealed from are reversed. Since trial, this line has been extended into Montana, and questions of interstate commerce may now be involved, which conditions will be taken into consideration in future proceedings had herein.</p>

<p>Statement oí case — preparation — settlement of — extension of time —trial court — right to grant.</p> <p>1. Under the facts of this case, briefly mentioned in the opinion, the trial court had the legal right to extend the time within which a statement of the case might be settled, and the facts justify the extension.</p> <p>Supreme Court — brief in — service of — appeal — motion to dismiss.</p> <p>2. Appellant has been slightly negligent in serving his brief in this court, but motion to dismiss appeal on that ground is denied on condition he serve and file such brief by May 25, 1915, and argue case in this court at last June, 1915, assignment.</p>

<p>Appeal from the District Court of Ramsey County, O. W. Buttz, J. Motion interposed by respondents to dismiss the appeal.</p>

Books of account are admissible as evidence of transactions therein recorded, but as a general rule mercantile books can be admitted only as affirmative evidence, and are not competent to establish that no-transaction was had, for the reason that no entry was made in the books. In other words, they cannot be used to prove a negative.

From a judgment in plaintiff’s favor and from an order denying a motion for a new trial, defendant appeals. • As a general rule there is no implied contract except in the absence of one expressed by the parties. 4 Cyc. 327, and cases cited; Marshall v. Jones, 11 Me. 54, 25 Am. Dec. 260.

Tbe lieu statement filed does not substantially comply with the statute, in that it does not state tbe name of tbe person for wbom tbe threshing was done. Parker v. Eirst Nat. Bank, 3 N. D. 88, 54 N. W. 313. The lien must contain a correct description of tbe land where tbe .grain threshed was grown. Martin v. Hawthorn, 3 N. D. 412, 57 N. W. 87, 5 N. D. 66, 63 N. W. 895; Moher v. Rasmussen, 12 N. D. 73, 95 N. W. 152, and cases cited.

Action of claim and delivery to recover possession of personal property and damages for tbe taking and detention. Judgment for plaintiff. Defendant appeals. Statement of facts by Bruce, J. This is an action in claim and delivery to recover the possession of certain horses and other personal property, and damages for tbe detention thereof. Tbe case was tried by tbe court without a jury.

From a judgment of the District Court of Benson County, E. E. Leighton, Special Judge, defendants appeal. The habendum clause in the mortgage relates entirely to the chattel mortgage feature of the instrument. The entire instrument is merely a chattel, and not a real estate mortgage. Mortgage Bank & Invest. Co. v. ITanson, 3 N. D. 465, 57 N. W. 345. A written contract supersedes all prior or accompanying oral negotitations touching its subject-matter.

Where the erroneous and incompetent evidence is grossly prejudicial, its withdrawal by the court, after having been received over objection, does not cure the error. Wojtylak v. Kansas & T. Coal Co. 188 Mo. 260, 87 S. W. 506; Manzer v. Phillips, 139 Mich. 61, 102 N. W. 292; Roydan v. Pleberstumpf, 129 Mich. 137, 88 N. W. 386.

From a judgment of the District Court of Nelson County, Cooley, T., defendant appeals.

L. Leighton, J. Action by F. W. Cathro against William Bergman et al. to determine adverse claims to real property. From a judgment in plaintiff’s favor, defendant Bergman appeals. In an administrator’s notice of sale of land, the land must be described with common certainty. Rev. Codes 1905, § 8137, Comp.

<p>Appeal from the District Court of Dunn County, Crawford, J.</p> <p>The complaint in justice court must be so explicit as to inform the defendant of the nature of plaintiff’s claim, and that a judgment thereon will be a bar to another suit on the same cause. 24 Cyc. 558, 563 and notes.</p> <p>A defective statement or pleading will afford no basis for allowing an amendment. Maxwell v. Quimby, 90 Mo. App. 469; Lamb v. Bush, 49 Mo. App. 337; Lustig v. Cohen, 44 Mo. App. 271; Dahlgren v. Yocum Bros. 44 Mo. App. 277; Nelson v. Barker, 3 McLean, 379, Fed. Cas. No. 10,101; Brigham v. Este, 2 Pick. 420; Terra Haute & I. R. Co. v. Zehner, 3 L.R.A. (N.S) 297 note.</p> <p>The requirement that the justice enter in his docket a concise statement of each pleading made orally, is merely directory. Rev. Codes, 1905, §§ 8350, 8378, Comp. Laws, 1913, §§ 9011, 9039; Sinnamon v. Melbourn, 4 G. Greene, 309.</p> <p>The district court had authority, and it was the duty of such court, to permit plaintiff to file a new complaint, even in the absence of any complaint in justice court. Bergman v. Margeson, 31 S. D. 1, 139 N. W. 374; Simon v. Spiro, 124 Mich. 484, 83 N. W. 146; Hilliard v. Loeb, 31 S. D. 329, 140 N. W. 703.</p> <p>The objection that a cause of action is barred by the statute of limitations must be made-by answer. Rev. Codes, 1905, §§ 6770, 6796, Comp. Laws 1913, §§ 7358, 7384.</p> <p>It is not necessary to serve a complaint with the summons in an action in justice court, and as long as the cause of action is foreshadowed in the summons, the complaint when made and filed relates back to the commencement of the action. 31 Cyc. 464; Love v. Southern R. Co. 1Ó8 Tenn. 104, 55 L.R.A. 471, 65 S. W. 475; Sanger v. Newton, 134 Mass. 308; Cogswell v. Hall, 185 Mass. 455, 70 N. E. 461; Elting v. Dayton, 67 Hun, 425, 22 N. Y. Supp. 154.</p>

<p>Amended complaint — order allowing — appeal from — does not lie.</p> <p>Section 7841, Comp. Laws 1913, does not provide for an appeal from the district to the supreme court from an order allowing an amended complaint to be filed.</p>

It is the duty of the court to charge on all material points, whether requested so to do or not. He shall instruct upon the whole law of the case — not upon a part only. Rev. Codes 1905, § 7021; Moline Plow Co. v. Gilbert, 3 Dak. 239, 15 N. W. 1; Carr v. Minneapolis, St. P. & S. Ste. M. R. Co. 16 N. D. 217, 112 N. W. 972; Landis v. Fyles, 18 N. D. 587, 120 N. W. 566; Forzen v. Hurd, 20 N. D. 42, 126 N. W. 224; State ex rel.

An appeal from the District Court of Benson County, Burr, Special Judge. The showing of defendants on their application for a dismissal was absolute against tbe plaintiff, and they were entitled to a formal order dismissing the case as a matter of right. Code, 1913, § 7598; Lambert v. Brown, 22 N. D. 107, 132 N. W. 781. The order of the district court refusing to dismiss the action is not appealable. Strecker v. Railson, 19 N. D. 677, 125 N. W. 560.

George E. Hart was convicted of the crime of adultery, and appeals. Failure to demur to an information does not waive defendant’s right to object to the jurisdiction of the court. Comp. Laws 1913, § 10715. An information or. indictment may be set aside on timely and proper motion, before plea. Comp. Laws 1913, § 10728. If the motion is not made before demurrer or plea, the objections are waived. Comp.

Action to determine adverse claims to real property. Judgment of dismissal. Plaintiff appeals. Statement of facts by Bruce, J. This is an action to quiet title to a half section of land in Mercer county, North Dakota. A judgment was entered dismissing the complaint, and a trial de novo is requested. The original owner of the half section appears to have been one J. PI. Babcock.

<p>Promissory note — signer of on face — accommodation maker — no personal consideration — primarily liable to payee as joint maker — knowledge of payee of nature of transaction — immaterial — part payment of note on suit against maker and garnishee — no defense — offset — amount received by payee.</p> <p>One who signs a promissory note on the face thereof as an accommodation maker, and wlio receives no personal consideration for the same, is primarily liable to the payee on such note as a joint maker under the provisions of § 6914 and § 7076, Compiled Laws of 1913, even though such payee knows at the time of the signing and delivery of the accommodation nature of the transaction. Such accommodation maker, when sued upon such note, cannot plead as a complete defense and a release, the- fact that the payee may have theretofore sued his joint maker on such note and in such suit partially compromised with a garnishee defendant, but can only offset as against said note the amount which was actually received and collected by the said payee.</p> <p>Note. — Generally as to the rights and liabilities of makers and indorsers of accommodation paper, see note in 31 Am. St. Rep. 745.</p> <p>As to effect under negotiable instruments law, of extension of timé to principal, to release one who, on the face of the instrument, is primarily liable, but who is in fact surety, see notes in 10 L.R.A.(N.S.) 129 and 26 L.R.A.(N.S.) 99.</p>

From a judgment of the District Court of Foster County, Coffey, J., defendant appeals. The remark of the court that “four years was about the life of a furnace heating plant,” in the presence and hearing of the jury, was. highly prejudicial to defendant’s case under his counterclaim, and judicially improper in any event. Skelly v. Boland, 78 111. 438; Kane v. Kinnare, 69 111.

<p>Real estate broker — commissions — actions to recover — inconsistent contracts set out in complaint — motion by defendant to compel election.</p> <p>1. In an action by a real estate broker to recover commissions on the sale of defendant’s lands, plaintiff alleges in his complaint two inconsistent contracts covering the amount of the agreed compensation. At the commencement of the trial, defendant moved for an order requiring plaintiff to elect upon which contract he would rely, which motion was denied.</p> <p>Seld, error.</p> <p>Owner — listing lands with broker for sale — net price — compensation of broker — excess received over net price — broker not entitled to hold except by express contract — compensation must be reasonable.</p> <p>2. Where the owner lists real property for sale with a broker at a net price, such broker, in the absence of an express contract to that effect, is not entitled to receive as a commission all the selling price in excess of such list price, but is merely entitled to a reasonable commission not exceeding such excess.</p> <p>Note. — As to the nature of contract by which owner agrees to pay another all over specified sum for procuring a sale, see note in 35 L.R..A. (N.S.) 116.</p>

Our statute makes it unlawful for cattle to run at large at any time. Laws 1913, chap. 178, Comp. Laws 1913, §§ 2617 — 2622. But because cattle happen to be on the highway, it does not follow that they are running at large. “Running at large” means not under control of the owner; animals that are left and permitted to roam where they may go. Plinman v. Chicago, R. I. & P. R. Co. 28 Iowa, 491; Grove v. Burlington, C. R. & N. Ry.

G. Burr, Judge. Pi’om an order striking out an answer as sbam, and from a judgment entered based on said order, defendants appeal. An answer verified by attorney in the usual form, consisting merely of a general denial, cannot be stricken out as sham. Samuel Guppies Wooden Ware Co. v. Jensen, 4 Dak. 149, 27 N. W. 206, 28 N. W. 193; Gjerstadengen v. Hartzell, 8 N. D. 424, 79 N. W. 872; Sifton v. Sifton, 5 N. D. 187, 65 N. W. 670.

W. Buttz, J. From an order granting a new trial, plaintiff appeals.

A traveler who places himself in .a dangerous position in the highway cannot recover for resulting injury. 15 Am. & Eng. Enc. Law, 2d ed. 468. If one, knowing of the presence of stones, attempts to pass over them instead of around them, he is liable as a matter of law for injuries caused by tripping thereon. Nicholas v. Peck, 20 R. I. 533, 40 Atl. 418; Grandorf v. Detroit Citizens’ Street R. Co. 113 Mich. 496, 71 N. W. 844; 7 Am. & Eng. Enc. Law, 2d ed. 393.

<p>Mortgage of homestead — married man — wife — executed and acknowledged by — must be.</p> <p>1. A mortgage on a homestead of a married man, in order to be valid must be both executed and acknowledged by the wife.</p> <p>Acknowledgment — grantor must appear before officer — admission of authenticity.</p> <p>2. To constitute an acknowledgment, the grantor must appear before the officer, and such grantor must in some manner, with a view to giving it authenticity, make an admission to such officer of the fact that he had executed such instrument.</p> <p>Execution of mortgage — evidence of.</p> <p>3. Evidence examined and held to he no such admission in the case at bar.</p> <p>Note. — As to impeachment of certificate of acknowledgment, see note in 41 L.it.A. (N.S.) 1161.</p> <p>Wife — signature of — notes and mortgage.</p> <p>4. Evidence examined and alleged signatures of wife to notes and mortgage held not to be her signatures.</p>

Action to recover damages for injuries occasioned by over exertion in attempting to put out a prairie fire. . Judgment for plaintiff. Defendant appeals. Where improper testimony for plaintiff is allowed over objection, it is the rule that prejudice must be presumed from the error, and plaintiff must affirmatively show that the testimony was harmless.

The law does not impose any duty on a deputy sheriff; it does not recognize him as an officer within himself. 9 Am. & Eng. Enc. Law, 369; Coltrain v. McCain, 14 N. C. (3 Dev. L.) 308, 24 Am. Dec. 256. A deputy sheriff is not a state officer within the meaning of the Constitution. Russell v. Lawton, 14 Wis. 203, 80 Am. Dec. 769; State ex rel.

Action to determine adverse claims. Judgment for defendant. Plaintiff appeals. Iverson was the managing officer of the bank, in fact, the sole management thereof rested with him. As to the funds of the bank, he was a trustee. He occupied a fiduciary relation so far as the bank’s funds were concerned. Bev. Codes 1905, §§ 5712 — 5715, 5718, 9282, 9206, 4657, 9277, 4822, 5706, 5711, 5710, 5724, Comp.

<p>New trial — motion for — newly discovered evidence — judicial discretion of court — appellate court — interference by — abuse must appear.</p> <p>1. A motion for a new trial on the ground of newly discovered evidence is addressed to the sound judicial discretion of the trial court, and the appellate court will not interfere unless manifest abuse of such discretion is shown.</p> <p>Trial court — discretion — new trial.</p> <p>2. In the instant case it is held that this court cannot say that the trial court manifestly abused its discretion in granting a new trial.</p>

<p>Consignment of goods — sight draft for price — inspection of goods — opportunity to make — acceptance — findings.</p> <p>1. Appellant consigned from Montana a carload of apples to respondent at Minot, which shipment was accompanied with a sight draft for the selling price. Respondent could not properly inspect such apples while in the ear, and before it was permitted to unload the apples it was required to pay the sight draft, which it paid. When the fruit was unloaded respondent discovered, for the first time, that a-large portion thereof was damaged, whereupon it wired appellant that it declined to accept the shipment, offering, however, to handle it on appellant’s account. Appellant replied by mail, accepting such offer and instructing respondent to keep track of lot numbers and names on boxes and make full report. Such acceptance did not reach respondent for several days after the date of its telegram, and owing to the bad condition of the apples, and in order to minimize the loss, respondent proceeded to sell the same to the trade, which it did to the best advantage, sustaining a loss, however, of $255.51, to recover which respondent sues.</p> <p>Held, that the evidence is sufficient to sustain the findings of the trial court in plaintiff’s favor.</p> <p>Sight draft —paying for — title transferred — right to rescind — upon full discovery of condition.</p> <p>2. Eeld, further, that while the acts of paying the sight draft and unloading the shipment operated to transfer title of the apples to respondent, it had the right, upon discovering their damaged condition, to rescind its purchase by acting promptly as it did in sending the message.</p> <p>Parties — subsequent contract — evidence sufficient to establish.</p> <p>3. Evidence examined and held sufficient to establish a subsequent contract between the parties, whereby plaintiff was to act for defendant and on its account in the sale of such apples, and in the light of the uncontroverted facts plaintiff's failure to furnish a detailed report as requested is excusable, and will not operate to defeat a recovery.</p>

Erom a judgment of the District Court of Dunn County, Crawford, J., defendant appeals. A general denial in any answer puts in issue all material facts, and plaintiff is required to make a prima facie case before anything is required of defendant. Plaintiff cannot take advantage of an admission in an answer, in form a general denial, without stating to the court his desire to do so.

From a judgment the District Court of Dunn County, Crawford, J., defendants Coutts and Wiech appeal. Piesik was the holder of the notes and mortgage for the cancelation of which this action was brought. He was a necessary party. 39 Cyc. 1396, (III). Substituted service on Piesik by publication was attempted. It was void because of the insufficiency of the affidavit.

<p>Appeal — statement of case — motion to dismiss appeal — exhibits — certificate of judge — copies — index — typewritten — costs.</p> <p>Respondent moves to strike out statement and dismiss this appeal because (1) the exhibits were not incorporated as a part of the transcript served and . subsequently settled as the statement of the case. (2) Because the certificates authenticating the exhibits were insufficient. (3) Because copies, instead°of the original exhibits, were transmitted as a part of the appeal record, containing that the repeal of § 7058, Rev. Codes 1905, § 7655, Comp. Laws 1913, authorizing transmission of copies in lieu of the originals, requires the originals to now accompany the appeal record. (4) Because there is no sufficient index to the exhibits or statement of the ease. (5) Because typewritten instead of printed briefs are filed, and the judgment for damages exceeds $300. (6) Because the appeal bond is alleged to be insufficient as to justification of sureties.</p> <p>Beld: On grounds set forth in the opinion, the motion to dismiss is denied. No costs allowed on the motion.</p>

<p>New trial — causes for — statute — exclusive.</p> <p>1. The causes for which a new trial may be granted are specified in § 7660, Compiled Laws, 1913; and these causes are exclusive.</p> <p>Court reporter — transcript of evidence — failure — inability — not ground.</p> <p>2. The failure or inability of a court reporter to furnish the defeated party with a transcript of the evidence is no ground for a new trial.</p> <p>Action — deemed pending — appeal — time for — jurisdiction.</p> <p>3. Compiled Laws, § 7966, provide that an action is deemed pending from the time of its commencement until its final determination upon appeal, ox the time for appeal has passed, unless the judgment is satisfied.. And following Grove v. Morris, — N. D. —, it is held that, when the time for an appeal has expired, the action is terminated, and the trial court has no jurisdiction to hear a motion for a new trial.</p>

From a judgment of the District Court of Burleigh County, Nuessle? J., plaintiff‘appeals. The plaintiff is entitled to equitable remedy, or to injunction. The value of the personal property taken by the sheriff, as well as any damages suffered, cannot be ascertained and recovered in an action at law. Schaffner v. Young, .10 N. D. 245, 86 N. W. 733; 5 Pom. Eq. Jur. §§ 359, 362.

Article four (4) of chapter forty-two (42) of the Political Code is a removal statute, and not a relocation statute. Miller v. Norton, 22 N. D. 196, 132 N. W. 1080. The Constitution preserved in force all territorial laws not repugnant to its provisions. Schedule to Const. § 2. Repeals by implication are not favored. There must be a positive repugnancy between the provisions of the new laws and those of the old laws.

■ Action to determine adverse claims to real estate. Judgment for plaintiff. Defendant appeals. Statement of facts by Bruce, J. This is an action to quiet title and to determine adverse claims, to real estate. Michael Volk filed on a quarter section of government land.

<p>Redemption — subsequent Hen holder — mortgage — foreclosure — remedial — benefit of creditors —to prevent sacrifice of debtor’s property.</p> <p>1. Sections 7755 and 7756, Compiled Laws of 1913, which relate to the redemption by subsequent lien holders from the foreclosure of mortgages, are remedial in their nature, and are intended not only for the benefit of the creditors holding a lien subsequent to the lien in process of foreclosure, but also to make the property of the debtor pay as many of his debts as it can be made to pay, and to prevent its sacrifice.</p> <p>Subsequent lienor — redemption — notice of — duplicate filed with register of deeds — other lien — notice of claim to — filing of — further redemption — not' required to pay other lien without notice.</p> <p>2. Where a subsequent lienor redeems from a mortgage under §§ 7755 and 7756, Compiled Laws of 1913, and fails to file a duplicate of his notice of redemption with the register of deeds of the county, and a notice of another lien which he may happen to have against the property, as prescribed by § 7756, Compiled Laws of 1913, a person having a still subsequent mortgage or lien may redeem from such prior redemptioner within sixty days after the period of one year has elapsed since the foreclosure, and without the payment of the other lien so claimed by the prior redemptioner.</p>

<p>Homestead laws — widows — children — deceased persons — homestead interest.</p> <p>1. The homestead laws of North Dakota were made for the protection of the widows of deceased persons as well as for that of their children, and if such a widow had once had a homestead interest during the lifetime of her husband, such interest will not be devested upon the death of her husband merely because she happens to have no children, or because her children have grown up and no longer need her care and support.</p> <p>Note. — As to whether the continuance of the family is a condition of the continuance of the homestead, where its existence is a condition of the inception of the homestead, see note in 16 L.R.A.(N.S.) 111.</p> <p>Homestead — title to property claimed as — name of wife — name of husband.</p> <p>2. It is immaterial under the statutes of North Dakota whether the title to the property which is used as a homestead is in the name of the wife or in that of the husband, and property which was held in the name of the wife, but which was occupied as a home, may be claimed by the wife after the death of the husband.</p> <p>Homestead laws — liberally construed — family — protection of.</p> <p>3. The homestead provisions of the Code are liberally construed as being intended for the protection and preservation of the family as a ■whole, including the wife.</p> <p>Homestead — abandonment — occupied by widow — after death of husband — house rented — room reserved — furniture stored — intention and acts.</p> <p>4. A homestead will not be deemed to have been abandoned where a widow has occupied the same exclusively for ten years after the death of her husband, and until her children have married or became able to take care of themselves, and who, since that time and for a period of two years, has rented the house on a month to month lease, and has spent her time visiting with her children, but has nevertheless retained a room in said house in which her furniture has been stored, and which, though crowded, she has herself occupied from time to time between the visits to her children, and has always intended to retain as a homestead.</p>

From a judgment of the District Court of Foster County, Nuessle, Special J., defendants appeal. Every contract on a negotiable instrument is incomplete and revokable until delivery of the instrument for the purpose of giving it effect. Anderson v. Goodwin, 125 Ga. 663, 51 S. E. 679; Ayres v. Milroy, 53 Mo. 516, 11 Am. Rep. 165; 16 Cyc. 578, 579; Pepper v. State, 22 Ind. 399, 85 Am. Dec. 130; Dixon v. Bristol Sav. Bank, 102 Ga. 161, 66 Am.