Volume 31 — Minnesota Reports

On March 13, 1878, plaintiff and defendant entered into the following agreement, in writing: “This agreement made and entered into by and between S. S. Small, party of the first part, and W. S. Bedford, party of the second part, witnesseth, that in consideration of the sum of $750, paid to the said S. S. Small by said W. S. Bedford, the receipt of which is hereby acknowledged, it is agreed and covenanted by the said S. S. Small that he will sell and convey unto the said W.…

<p>Requisites of Special Verdict. — A special verdict must find all the facts wbicli are requisite to enable the court to say, upon the pleadings and verdict, without looking into the evidence, which party is entitled to judgment; and such facts should be found so clearly and unequivocally as not to leave them to be made out by argument or inference.</p> <p>Same — Findings held Insufficient — The findings of fact in this ease considered, and held to be so ambiguous and inconsistent as to be insufficient to sustain the judgment.</p>

Appeal by defendant from an order of the district court for Scott county, Macdonald, J., presiding, striking out the answer as sham and frivolous, and ordering judgment for plaintiff.

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

The plaintiffs brought this action in the district court for Hennepin county, to recover upon a policy of insurance against fire, issued to them jointly by the defendant, upon a certain house and furniture in which they allege that they had an insurable interest, and which were subsequently destroyed by fire.

Election contest. Appeal by tbe incumbent, Bieliier, from a judgment of tbe district court for Barnsey county, (where the contest was tried by Brill add Simons, JJ,,) declaring O’Gorman, the contestant, ■|o have been duly elected sheriff of that county at an election held on November 7, 1882, and to be entitled to the office, The case is stated in the opinion, It was error for the court below to make a general canvass of the ballots before cause was showm.

Appeal by plaintiff from an order of tbe district court for Dodge county, refusing a new trial, after a trial by Buckham, J., a jury being waived. Tbe ease is stated in the oxiinion. The draft or bill of exchange involved in this case is in effect a cheque, (Redfield’s Lead. Cas. on Notes, 718; First Nat. Bank v. Coates, 8 Fed. Rep. 540; Foster v. Paulk, 41 Me. 425; Cruger v. Armstrong, 3 John.

The plaintiff, having recovered judgment against the defendant in the district court for Eamsey county, instituted garnishment proceedings, seeking to reach the sum of $2,500 as owing to defendant and another jointly by the garnishee as the adjusted loss under a policy of fire insurance.

Appeal by plaintiff from an order of the district court for Goodhue county, McCluer, J., presiding, denying its motion to dismiss the defendant’s appeal from the award of commissioners made in condemnation proceedings.

Appeal by tbe state from an order of the district court for Bice county, Buchham, J., presiding, discharging one William Shaw, on habeas corpus, who had been committed by a justice of the peace, as stated in the opinion. A writ of certiorari to review the order of discharge was quashed. See State v. Buchham, 29 Minn. 462.

Plaintiff brought this action in the district court for Freeborn county, for damages alleged to have been sustained from the construction of defendant’s railway across a street or road on which his-residence was situated, bis lot fronting four rods thereon, and extending back seven rods.

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

Appeal by defendants from an order of the district court for Hennepin county, refusing a new trial, after a trial before Shaw, J., and a jury. The action was brought by- plaintiff in November, 1871, to re■cover the sum of $325, stipulated in the agreement set out in the opinion, with interest.

Plaintiff brought this action in the district court for Steele county, to recover damages for the seduction of his minor daughter, and, after a trial before Buckham, J., and a jury, had a verdict for $1,500. Defendant appeals from an order refusing a new trial.

Appeal by defendant from a judgment of the district court for Dakota county, where the action was tried before McCluer, J., and a jury, and defendant’s motion for a new trial was denied. The case is stated in the opinion. When the cause was called for trial, defendant made an application for a continuance to the next term of court.

Appeal by defendants from an order of the district court for Good-hue county, refusing a new trial, after a trial by McCluer, J., without a jury.

Plaintiff brought this action in the district court fof Steele county, alleging himself to be owner in fee of certain lands in that county, and praying that a judgment and an execution sale, under which defendant claimed title to the lands, be set aside and declared to be not a lien thereon. A jury was waived, and the action* tried by Blick■ham, J., who fQund the facts to be as stated in the opinion, and ordered judgment in favor of defendant.

Plaintiff brought this action in the district court for Stearns county, to recover possession of a frame building. The action was tried by McKelvy, J., and a jury, and plaintiff had a verdict. Defendants appeal from an order refusing a new trial.

Appeal by Weaver from an order of the district court for Hennepin county, Young, J., presiding, refusing a new trial of an appeal taken by him in condemnation proceedings instituted by the Boom Company.

The plaintiff brought this action in the district court for Hennepin county, to compel the execution by defendants of a lease of certain land, in accordance with the terms of a prior lease mentioned in the opinion. The action was tried by Shaw, J., without a jury, and judgment ordered and entered for defendants, from which the plaintiff appeals. Covenants for renewal in a lease run with the land, whether assignees are named or not.

Appeal by defendant Annie Wrabeck from a judgment of the district court for Scott county, where the action was tried before Mficdonalcl, J., without a jury.

Ejectment. Appeal by plaintiff (a corporation) from an order of the district court for Washington county, Crosby, J., presiding, refusing a new trial. The action was tried by Hon. Charles E. Flandrau as referee, on stipulated facts, which are stated in the opinion, and judgment was ordered for defendant. Plaintiff has never been disseized.

Appeal by defendant from, an order of the district court for Ramsey county, refusing a new trial, after a trial before Brill, J., and a jury, resulting in a verdict for §400 in favor of plaintiffs. Tbe carrier of live-stock is not subject to tbe stringent common-law liability of an ordinary common carrier. Hutchinson on Carriers, §§ 217-240; Michigan South., etc., R. Co. v. McDonough, 21 Mich. 165; Lake Shore, etc., R. Co. v. Perkins, 25 Mich. 329.

Appeal by plaintiff from an order of tbe municipal court of Still-water, refusing a new trial. cited Locke v. First Div., etc., R. Co. 15 Minn. 283, (350;) Witherell v. Mil. & St. P. Ry. Co., 24 Minn. 410; Whittier v. Chic., Mil. & St. P. Ry. Co., 24 Minn. 394; Johnson v. Chic., Mil. & St. P. Ry. Co., 29 Minn. 425; Varco v. Chic., Mil. & St. P. Ry. Co., 30 Minn. 18.

Plaintiff brought this action in the district court for Houston county, to redeem certain premises from a conveyance which the complaint alleged was a mortgage in fact although g, deed in form, and for an accounting by defendant Mead, who held the title. The defendants made default, and the action was referiecl to a referee to take proofs and an accounting.

Plaintiff brought this action in the district court of Fillmore county, alleging in her complaint that she had sold and transferred certain stocks to the defendant; that $15,000 of the purchase price therefor remains unpaid; that defendant agreed, upon making such purchase, to secure the payment of said $15,000 by delivering to one H. R. Wells certain claims and securities, amounting to $22,843.39, in trust for the plaintiff, Wells to collect such claims and securities and…

Plaintiffs brought this action in the district court for Hennepin county, to enforce specific performance of the agreement for the sale of real estate recited in the opinion. The answer denies authority on the part of the agents to sell, and alleges that the defendant had no title to lot two, the title to the same being in one Clare E. Ames, of whom defendant was the guardian. The action was tried by Lochren, J., without a jury.

Appeal by defendant from a judgment of the district court for Scott county, Macdonald, J., presiding, and from an order of the same court denying defendant’s motion for judgment in his favor on the special findings of the jury.

<p>Habeas corpus with certiorari.</p>

Appeal by plaintiff from an order of the district court for Fillmore county, Farmer, J., presiding, refusing a new trial, the action having been tried by a referee'and judgment having been ordered for defendant. The facts are stated in the opinion.. The subject-matter of this action has been before this court before, in the cases of Holton v. Meighen, 15 Minn. 50, (69,) and KingY. Meighen, 20 Minn. 237, (264.) The statute of limitations has barred defendant’s defence.

Plaintiff brought this action in a justice’s court in Jackson county, to recover damages for the alleged conversion, by defendant, of a letter-case. The defendant had judgment,-and the plaintiff appealed, on questions of law alone, to the district court, where the judgment of the justice was affirmed by Severance, J. Plaintiff appeals from the judgment of the district court.

Appeals by defendants from an order of the district court for Hennepin county, refusing a new trial after a trial before Lochren, J., and a jury. cited, among other cases, Nash v. Minneapolis Mill Co., 24 Minn. 501.

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

Plaintiff brought this action in tbe district court for Washington county to foreclose a mortgage on a leasehold estate. Tbe allegations of the complaint are recited in tbe opinion. On tbe trial before Crosby, J., the plaintiff, having introduced in evidence her mortgage and notes, offered evidence to prove tbe fraudulent forfeiture of the leasehold estate as alleged, tbe value of tbe premises, and knowledge on tbe part of tbe defendants of tbe facts alleged.

Certiorari. The writ was issued at the instance of a resident creditor of the Paige & Sexsmith Lumber Co., to review an order of the district court for St. Louis county, denying the petitioner’s motion that the company’s assignee be required to add to the inventory filed tin that court a large amount of personal property, specified in the motion papers, and to increase his bond as assignee in proportion to >4he value of such personal property.

Appeal by defendants from an order of the district court for Hennepin county, Lochren, J., presiding, overruling their separate demurrers to the complaint.

Plaintiffs, on behalf of themselves and all other stockholders of the defendant corporation aggrieved by the proceedings complained of, and… Held: inter alia, that the contract between the company and De Graff & Co. was not ultra vires, and not absolutely void; that the assent of Barnum and Simmons to the contracts, with knowledge of the facts, precluded plaintiffs from avoiding them; and that if Barnum and Simmons assented to the contracts, induced by the expectation of…

This action was brought in the district court for Lyon county, to recover possession of a piano, and was tried by Balchvin, J., without a jury. Judgment was ordered for defendant, and plaintiff appeals from an order by Webber, J., refusing a new trial.

Plaintiff brought this action in the district court for Stearns county, to recover for his services as a teacher in the schools of defendant. Defendant appeals from an order by McKelvy, J., overruling its demurrer to the complaint.

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

Harriet E. Wightman died seized of an eighty-acre tract, which she occupied at the time of her death as a homestead. By her will, which was duly admitted to probate in Waseca county, she devised the tract to Joshua Holbrook, her father. The estate having been duly administered upon, the probate court made a final decree, assigning this tract to Joshua Holbrook.

Plaintiff brought this action in the district court for Olmsted county, alleging title in fee in himself to a certain described lot of land in that county, and that the defendants, in March and April, 1882, “unlawfully and' wrongfully, and with strong hand, entered upon said land, and broke,, took down and dismantled the buildings thereon, and took away and carried away the materials thereof, and the seats and fixtures attached thereto, and converted the same to their own…

This action was brought in the district court for Clay county, upon the following instrument: “$100.

Plaintiff brought this action against Henry Downs and James Baxter, in the district court for Hennepin county, alleging in his complaint the making of a contract between himself and the defendants, whereby he granted and permitted to the defendants the right to quarry and remove stone from certain premises, and the defendants agreed to pay him for the stone removed at a specified rate, and that there was due him, under the contract, for stone so removed, the sum of…

Action for an accounting and the winding-up of the affairs of a, partnership, brought in the district court for Goodhue county. The-plaintiffs in the action are three of the partners and the widow and heirs-at-law of a fourth partner, and the defendant is the only other partner. The complaint sets out the making of the partnership and recites in full the partnership articles.

Petition for a writ of prohibition to restrain the respondent, claiming to be and acting as judge of the so-called Municipal Court of the City of Moorhead, in Clay county, from proceeding further in an action brought therein by one Arimond against Eastland, the relator. At the same time, the attorney general, on the relation of one Jacobson, obtained a writ restraining respondent from proceeding in another action, and to show cause, etc.

Proceedings to condemn the real estate of respondent, Esaias-Eheiner, for the purposes of appellant’s railway, instituted in the district court for Washington county. The commissioners appointed by the court having made and filed their award, Eheiner appealed from the award, and, after a trial, had a verdict for $23,500.

Appeal by defendant (a corporation) from an order of the district court for Clay county refusing a new trial, after a trial by Stearns,, J., without a jury.

Plaintiff brought this action in the district court for Stearns county to restrain the defendant Mickley, sheriff of that county, from selling a certain described lot of land in that county upon which he had levied an execution issued on a judgment in favor of defendant Sullivan and against one Oscar E. Garrison, the plaintiff’s grantor, the. judgment having been docketed prior to the conveyance to plaintiff.

Appeal by the county of Pine, (impleaded with Don L. Willard, late county treasurer, and the trustees of school-district No. 3,) from ■a judgment of the district court for that county, McCluer, J., presiding.

<p>Appeal by defendants from a judgment of the district court for Olmsted county.</p>

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

This action was brought in the district court for Hennepin county, and tried before Koon, J., who, at the close of plaintiff’s case, ordered a dismissal, but afterwards granted a new trial. From the latter-order the defendant appeals.

The relator, having received a certificate of election as clerk of the district court for Lyon county, and having duly qualified, instituted proceedings in the district court for that county to obtain possession of the books, papers, etc., of the office, from one Woodford, who had been theretofore appointed to fill a vacancy in the office.

Appeal by defendants from orders of the district court for Washington county, Crosby, J., presiding, overruling their separate demurrers to the complaint.

To enable the defendants Armstrong and wife to obtain a certain farm in Wright county, upon which was a $300 mortgage, the plaintiff bought it and at once resold and conveyed it to Armstrong, subject to the $300 mortgage, taking back a mortgage for $900, securing nine notes for $100 each, of the same date with the mortgage, the first note payable four years from date, and the rest payable one in each succeeding year, without interest for three years from date, and with…

Appeal by defendant from an order of the district court for Scott county, Macdonald, J., presiding, refusing to require the plaintiff to make certain allegations in his complaint more definite and certain.

Plaintiff brought this action in the district court for Scott county, to-recover the value of two colts which were killed by a passing train on defendant’s railway. The complaint alleged that the defendant had neglected and failed to build and maintain a fence along its right of way through the quarter-section where the colts had been pastured,. and were killed.

Appeal by defendant from an order of the municipal court of Minneapolis, refusing a new trial after a verdict of $143.69.

This action coming on for trial in the district court for Clay county,, judgment on the pleadings was ordered and entered for the defendant, from which the plaintiff appeals. cited 3 Wait’s Act. & Def. 711; 4 Id. 740; 6 Id. 264; Ashley v. City of Port Huron, 35 Mich. 296; Wagner v. Long Island R. Co., 2 Hun, (N. Y.) 633; Goodale v. Tuttle, 29 N. Y. 459; Gould v. Booth, 66 N. Y. 62; Moran v. McClearns, 63 Barb. 185; Waffle v. N. Y. Cent.

Plaintiff, in his complaint, (in the municipal court of Stillwater,) alleges that for ten years he' has been and is a citizen, resident taxpayer and legal voter in school-district No. 10 in Washington county; “that at the regular school meeting in the fall of 1881, held in and for said school-district, the voters of said district, being then and there duly assembled, voted and ordered that during the year 1882, school should be kept and maintained in said school-district for…

Plaintiff brought this action in the district court for Hennepin county, for damages for injuries received from a fall at a street crossing, caused by an obstruction in the street, “consisting of a piece of plank or timber, deeply imbedded in the ground, and extended above the surface of said crossing,” which obstruction the defendant had negligently allowed to exist for two months preceding the injury complained of.

Action by vendor against purchaser in the district court for Ramsey county, for specific performance. Defence, insufficiency of title. The title shown by the vendor, and which the purchaser refused to accept, was derived through a conveyance from Taylor, made January 16, 1883, after the deed to Baldwin mentioned in the opinion, and after the expiration of the time for redenrption from the execution sale at which Taylor had purchased.

Appeal by defendant (impleaded with the Burlington, Cedar Rapids & Northern Ry. Co.) from an order of the district court for Freeborn county, Fanner, J., presiding, refusing to require the plaintiff to make his complaint more definite and certain.

Action for libel, brought in the district court for Scott county, the ■complaint containing thirteen counts, each charging a distinct libel. The defendant demurred to each count, as failing to state a cause of •action. The demurrer was sustained by Macdonald, L, as to the 2d, 4th and 13th causes of action, and overruled as to the others, and the plaintiff appealed.

Appeal by plaintiff from an order of tbe district court fox Hennepin county, Young, J., presiding, sustaining tbe defendant Latterner’s • general demurrer to the complaint. The action was brought against Latterner, the Minneapolis & St. Louis Ey.

Action in the district court for Renville county to determine the adverse claims of the defendants Ladd, Stearns and Sawyer, to an interest in and lien upon certain real estate in that county. The complaint is in the form usual' in such actions.

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

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

In proceedings in the district court for Olmsted county, to enforce payment of delinquent taxes on real estate in that county, the respondents Barber and Sedgwick each appeared and interposed his answer as to certain land owned by him.

In each of these four cases the defendant appeals from a ju mnt of the district court for Scott county, where the actions were ti\ y Wilkin, I., acting for the judge of the 8th district.

This action pending in the district court for Clay county, in the 11th district, the plaintiff moved to strike out the answer as sham and false. The motion was made before Collins, J., of the 7th district, at St. Cloud in Stearns county, being nearer the county seat of Clay county than is Duluth, the residence of the judge of the 11th district. The motion was granted, and the defendants appealed.

Plaintiff brought this action in the district court for Hennepin county, against the defendants George Knickerbocker, S. E. Knickerbocker and J. G. Layman, as partners doing business under the name of the Knickerbocker Furniture Company, to recover damages for the alleged libels mentioned in the opinion.

This action was brought in the district court for Washington county upon the probate bond of the defendants Mary Ann Judd, executrix, and James R. M. Gaskill and Ariel Eldridge, executors, of the will of George B. Judd, who died in 1872.

Appeals by plaintiff from orders of the district court for Scott county, Macdonald J., presiding, directing that certain property in the hands of a receiver be delivered to defendant.

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

The plaintiff brought this action in the district court for Fillmore ■county to foreclose a mortgage securing several notes given for a part ■of the purchase-money of land formerly owned by plaintiff. The defendants C. H. and L. J. McCormick, the owners and holders of the note first maturing under the mortgage, answered and asked to have their note first paid out of the proceeds of the foreclosure sale.

Appeal by defendant from an order of the district court for Washington county, Crosby, J., presiding, overruling its demurrer to the complaint.

On the application of the relator, Charles D. Wright, an alternative writ of mandamus was issued by the district court for Otter Tail county, requiring the respondent to make the record and return of the conditional sale mentioned in the opinion. On respondent’s motion, this writ was quashed by the court, Collins, J., presiding, and from, the order quashing the writ the relator appeals.

Appeal by plaintiffs from an order of the’ district court for McLeod ■county, Macdonald, J., presiding, refusing a new trial. The plaintiffs, L. C. Dessaint, L. A. Dessaint and F. TV.

This action was brought in the district court for Washington county, to restrain the defendants from occupying and using the plaintiffs land. The allegations of the complaint are stated in the opinion. The defendant, the Union Depot, Street Railway and Transfer Company, having answered, moved for judgment on the pleadings, which motion was granted by the court, Crosby, J., presiding.

The respondents, Margaret Brunswick and others, appealed to the district court for Washington county from an award made in condemnation proceedings instituted by the appellant company. The appeal was tried before McGluer, J., and a jury, and respondents had a verdict. This appeal is taken from an order refusing a new trial. cited Boom Co. v. Patterson, 98 U. S. 403.

Replevin. Plaintiff brought this action in a justice’s court, to recover the possession of a horse, and, judgment having been rendered in favor of defendant, appealed to the district court for Goodhuecounty upon questions of law and fact. Plaintiff’s claim to the right of possession of the horse was made as mortgagee under a chattel mortgage given by one Peterson, by whom the horse was delivered to the defendant subsequent to the giving and filing of plaintiff’s mortgage.

Actions to determine adverse claims to real estate. Appeals by ■plaintiffs from orders of the district court for Bamsey county refusing new trials, after trials before Simons, J., without a jury. The cases •are stated in the opinion. That there was error in the ruling and decision of the lower court, is evident from the unvarying decisions of the courts upon this identical question.

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

The complaint in this action, which was brought in the district court for Otter Tail county, alleges that the defendants Beardsley made and delivered to defendant Thoreson a promissory note, which is past, due and unpaid; that before its maturity the defendant Thoreson “duly endorsed said note to this plaintiff, and, for value received, duly guaranteed the payment of said note in writing,” and that plaintiff is the owner and holder.

Defendant, having been convicted in the’ district court for Nobles •county of the offence of selling malt liquor in a less quantity than five gallons, without first having obtained license therefor, under the indictment reported in State v. Langdon, 29 Minn. 393, appeals from an order by Severance, J., refusing a new trial.

■Ejectment. Plaintiffs, who are a sister, and the children of a deceased sister and of a deceased brother, of John Fitzgerald, deceased, claim title as the heirs-at-law of John Fitzgerald. Defendant claims title under a deed from one Charles Fitzgerald as the only son and heir-at-law of John Fitzgerald. The action was brought in the district court for Meeker county, and was tried before Lochren, J., (acting for the judge of the 12th district,) and a jury.

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

In April, 1881, the plaintiffs made a contract with the defendants, whereby the former agreed to do the general mason work required for the rebuilding of the north wing to the Minnesota State Hospital for the Insane at St. Peter, for the sum of $55,000. The work was duly completed and accepted, and this action was brought in the-district court for Winona county, to recover a balance owing on the contract, and for certain extra work, in connection therewith.

Action on three promissory notes, against an indorser, brought in the district court for Clay county. On the trial, before Stearns, J., and a jury, plaintiff introduced in evidence the notes indorsed by defendant, with certificates of protest and notice by a notary in Oil City, Pennsylvania, where the notes were made and were payable, and then rested his case.

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

Appeal by plaintiffs from an order of the district court for Wabasha county, Start, J., presiding, refusing a new trial.

Appeals by defendant from a judgment of the district court for Brown county, entered upon the report of a referee, and from an order by Severance, J., (acting for the judge of the 9th district,) refusing a new trial.

Crosby was guardian of one Illingworth, a minor, of whom Merriam is administrator. In 1872, Crosby received $950 belonging to his ward. In August, 1882, he filed his account, charging himself with that sum as having always remained in his hands without increase or profit. Merriam, as administrator, asked that the guardian be charged with interest.

Appeal by defendant (a corporation) from an order of the district court for Freeborn county, Farmer, J., presiding, refusing a new trial. The action was brought, in October, 1882, for breach of warranty on the sale of a self-binding harvester in July, 1878. The warranty is set forth in the opinion.

Appeal by defendant from a judgment of the district court for Otter Tail county, McKelvy, J., presiding. The decision on a former appeal in this case will be found in 30 Minn. 45.

Appeal by defendant Ralph Rees (impleaded with Jennie Apt) from an order of the district court for Hennepin county, Young, J., presiding, refusing a new trial.

Appeal by defendant from an order of the district court for Polk county, Stearns, J., presiding, refusing a new trial. cited 1 Addison on Torts, (Wood’s Ed.) 585; Althorp v. Wolfe, 22 N. Y. 355, 364; Lee v. Village of Sandy Hill, 40 N. Y. 442.

Certiorari, to review a judgment of the district court for Ramsey county, Brill, J., presiding, against the relator’s track, assessed for a portion of the cost of grading Seventh street in the city of St. Paul.

Appeal by plaintiffs from a judgment of tbe district court for Chi-■sago county, where the action was tried by Crosby, J., without a jury. cited Bower v. O’Donnall, 29 Minn. 135.

Appeal by defendant from a judgment of the municipal court of St. Paul. The case is stated in the opinion. To render a master liable for the negligence of his servant, the injury complained of must have occurred while the servant was acting in the scope of his employment, and in the actual course of his employment.

Appeal by defendant from an order of the district court for Hennepin county, Lochren, J., presiding, overruling a demurrer to the complaint for misjoinder of causes of action. The complaint alleges plaintiff’s ownership of certain described land, and that defendant, without right and unlawfully, entered upon and took and has since retained possession of the land, and built and has since operated its railway thereon, to plaintiff’s damage in the sum of $2,000.

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

Appeal by defendant from an order of the district court for Dakota county, Crosby, J., presiding, overruling a general demurrer to the complaint.

Action to determine adverse claims to unoccupied real property in Chisago county, brought in the district court for Sibley county, removed to Chisago county, and tried by Crosby, J., without a jury.

Appeal by defendants from an order of the district court for Blue Earth county, Severance, J., presiding, overruling a general demurrer to the complaint.

Plaintiff brought this action in the district court for Ramsey county, alleging herself to be the owner in fee of “the following described real estate, situated in the county of Ramsey and state of Minnesota, to wit: Lots numbered four (4) and five (5) in Scribner & Crittenden’s subdivision of lots eight (8) and thirteen (13) in Smith & Lott’s out-lots, according to the plat thereof on file in the office of the register of deeds of Ramsey county. ” She further alleges that…

As its first cause of action the plaintiff alleges its incorporation, its ownership of the westerly hank of the Mississippi river at, above, and below St. Anthony Falls, by virtue of which ownership and its charter (Laws 1856, c. 146) it owns and is entitled to the free and unobstructed use of the channel of the river to the centre thereof, subject only to the right of the public therein as a highway.

<p>Appeal by defendant from an order of the municipal court of St. Paul, refusing a new trial.</p>

Appeal by defendant from an order of the district court for Hennepin county, Young, J., presiding, refusing a new trial after verdict of $4,000 for plaintiff.

<p>Railroads — Duty to Fence. — Rule of liability of a railroad company for failing to fence its road, stated in Nelson v. Chicago, M. & St. P. Ry. Co., 30 Minn. 74, followed.</p> <p>New Trial.' — Where it is evident that the party applying for a new trial will not be benefited by it, it may be denied, though there was error in the first trial.</p>

Appeal by defendant from a judgment of the municipal court of St. Paul, in an action for negligently running over and killing the plaintiff’s cow at the crossing of Grace street, within the limits of that city.

Appeal by plaintiff from an order of the district court for Hennepin county, Young, J., presiding, refusing a new trial. cited Welch v. Huntington, 23 Minn. 89; Kerchner v. Kempton, 47 Md. 568; Schouler on Husband & Wife, §§ 277, 278; Jones v. Walker, 63 N Y. 612.

Appeal by defendant from an order of the district court for Hennepin county, Young, J., presiding, refusing a new trial after a verdict of f1,000 for plaintiff. cited Ryan v. N. Y. Cent. R. Co., 35 N. Y. 210; Pennsylvania R. Co. v. Kerr, 62 Pa. St. 353; Fent v. Toledo, etc., Ry. Co., 59 Ill. 349; Milwaukee & St. Paul Ry.

In the first cause of action stated in his complaint (and which is stated in the opinion) the plaintiff claimed $1,055. The second cause of action was for 'extra material, of the value of $23.75. He then admits payments to the amount of $507, “upon account of the matter herein alleged,” and asks judgment for $571.75. The answer and reply as to the first cause of action are stated in the opinion, the contract set forth in the answer being signed and sealed by both parties.

Appeal by plaintiff from an order of the district court for Bamsey county, Brill, J., presiding, denying bis motion to vacate an order of dismissal, made at the trial, and for a new trial.

Appeal by plaintiff from an order of tbe district court for Hennepin county, Lochren, J., presiding, sustaining a general demurrer to the complaint.

<p>Bailroad — Injury to Horses from neglect to Fence. — Where a railroad corporation had inclosed its line of road with a barbed-wire fence, except a gateway into plaintiff’s field, which it had negligently left open, and through which plaintiff’s horses escaped within its right of way, where they -were suddenly frightened by an approaching car, and were thereby caused to run violently against the adjoining railroad fence and were seriously injured thereby, held, that the question of defendant’s liability was properly left to the. jury upon the evidence, and that the negligence of the company in leaving open the fence might, under the circumstances, in connection with the act of its servants in operating the road, be deemed the proximate cause of the injury.</p>

Action for slander, brought in the district court for Blue Barth county. At the trial before Macdonald, J., (acting for the judge of the Oth district,) and a jury, the defendant had a verdict. Plaintiff appeals from an order refusing a new trial. A decision on a former appeal in this case will be found in 28 Minn. 28.

This action was brought before a justice of the peace in Ramsey county to recover for services rendered by plaintiff as a brakeman.

Appeal by plaintiff from a judgment of the district court for Freeborn county, Farmer, J., presiding, reversing a judgment of a justice of the peace.

Appeal by defendants from a judgment for restitution in an action for unlawful detainer in the municipal court of Minneapolis. To entitle plaintiff to recover, she was required to prove as alleged that the relation of landlord and tenant existed between her and the defendants, and that they were holding over after the expiration of the lease, without any other claim of right to the possession or occupancy of the same.

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

Appeal by plaintiff from an order of the district court for Freeborn county,Farmer, J., presiding, refusing a new trial, after a verdict of $271, for defendants.

Mandamus. The relator presented to the common council of Minneapolis a bill for printing and publishing. The council duly authorized payment of the bill, and directed the city clerk to draw an order for the amount on the city treasurer. The-city clerk thereupon drew the required order and presented it for signature to the respondent, A. A. Ames, then mayor of the city.

<p>Appeal by plaintiffs from a judgment of the district court for Ramsey county, Brill, J., presiding.</p>

Action upon a bond given to discharge an attachment, brought in the district court for Hennepin county.

Plaintiff brought this action in the municipal court of St. Paul, to recover the purchase-money paid for a cow sold by defendant to plaintiff, and which was taken from plaintiff’s possession by a third person claiming to -be the true owner. The answer alleged title in defendant, at the time of the sale to plaintiff, through a purchase at a pound-master’s sale.

Appeal by defendants from an order of the district court for Hennepin county, Young, J., presiding, refusing a new trial, after a verdict for plaintiff.

Appeal by defendants from an order of the district court for Rice ■¡county, Buckham, J., presiding, sustaining the plaintiff’s demurrer to 3i portion of the answer. The case is stated in the opinion. Laws 1881, c. 148, § 4, speaks of two classes of instruments, to wit, those executed within the four months, and those not executed within the four months.

Proceeding under Gen. St. 1878, c. 79, to determine the right of the defendant to continue to hold and exercise the duties of the office of county treasurer of Olmsted county.

Appeal by defendants from an order of the district court for Winona county, Start, J., presiding, overruling a demurrer to the complaint, the substance of which is stated in the opinion. Mere acquiescence, short of the statutory period of limitations, after the removal of the disability, never operates as a confirmation of an infant’s deed. This is as firmly settled as adjudications can settle any proposition.

Defendant appeals from an order of the municipal court of Mankato, refusing a new trial. After the argument and submission of this appeal, State v. Gould, ante, p. 189, was decided, and the appellant thereupon moved “to disaffirm,” as stated in the second of the two following opinions.

Plaintiff brought this action in a justice’s court, to recover the value of services alleged to have been performed for defendant. Because of the defect in the summons stated in the opinion, the defendant appeared specially and moved to dismiss, which motion the justice denied. Defendant then answered, and the cause proceeded to trial, judgment being rendered in favor of the plaintiff.

<p>Appeal by defendant from an order of the municipal court of Minneapolis, refusing a new trial.</p>

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

This action was brought in the district court for Hennepin county, to recover commissions claimed to have been earned by finding a purchaser for certain real estate owned by defendant. The case was tried before Young, J., and a jury, and plaintiffs had a verdict. Defendant appeals from an order refusing a new trial.

Plaintiff (a corporation) brought this action in the district court for Bamsey county, upon two promissory notes, given as part of the purchase price of a steam-engine. The defendant pleaded, as a counterclaim, damages for a breach of warranty on the sale. The place of trial was changed to Dakota county, where the action whs tried before McGluer, J., and a jury, and defendant had a verdict. Plaintiff appeals from an order refusing a new trial.

<p>Constitution — Act legalizing Highways. — Upon the facts found in this case, held, that the act entitled “An act to legalize certain roads or highways in Bamsey county” (Sp. Laws 1879, c. 226,) is applicable to the highway in controversy, and that the same is a valid and constitutional exercise of legislative authority, within the principles laid down in State v. Messenger, 27 Minn. 119.</p>

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

Appeal by defendant from a judgment of the district court for Hen'nepin county, where the action was tried by Koon, J., without a jury,

Appeal by defendant from a judgment of the district court for Dodge county, Buckham, J., presiding, affirming the judgment of a justice of the peace from which the defendant had appealed on questions of law alone.

Appeal by defendant from a judgment of the district court for Clay county.

Appeal by defendant from an order of the district court for Hennepin county, Koon, J., presiding, refusing a new trial after verdict of $1,613.75, for plaintiff.

Appeal by plaintiff from a judgment of the district court for Olmsted county, where the action was tried by Start, J., a jury being, waived.

Appeal by defendant from an order of the district court for Fillmore county, Farmer, J., presiding, refusing a new trial after a verdict of $3,000 for plaintiff.

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

This action was brought in the municipal court of Moorhead, to recover the value of two young oxen, alleged to have been taken and converted by defendants. The complaint prayed for judgment for $150, claiming treble damages. The answer justified the taking under a writ of execution against plaintiff.

Action to enforce specific performance of an alleged agreement by defendant to convey certain land situated in Martin county, brought in the district court for that county. The agreement sought to be enforced is contained in the following circular and “permit,” (referred to in the opinion as “Exhibit A,”) viz.: Circular Relating to the Lanes oe the Southern Minnesota Railway Extension Company'.

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