Volume 31 — North Dakota Reports

A. Coffey, J. From a judgment in contestee’s favor, tbe contestant appeals. Tbe intent of tbe act in question is to place tbe primary election under tbe regulation and protection of tbe law now in force as to elections. Nelson v. Gass, 27 N. D. 357, 146 N. W. 537, Ann. Cas.. 19150, 796. Courts bave jurisdiction, in contests for nomination to legislature. Olesen v. Hoge, 23 N. D. 648, 137 N. W. 826.

The respondent did not take the steps necessary to give the trial court authority or jurisdiction to grant a new trial, and for that reason the trial court should have refused to consider a motion for a new trial. Louder v. Hunter, 27 S. D. 271, 130 N. W. 774 and cases cited; Traxinger v. Minneapolis, St. P. & S. Ste. M. R. Co. 23 S. D. 90, 120 N. W. '770; Nerger v. Commercial Mut. Fire Asso. 21 S. D. 537, 114 N. W. 689.

<p>Note. — That equity will impress the share of an heir, devisee, or legatee with a constructive trust because of his fraud in frustrating decedent’s intention to give the property to a third person is the well-established rule. See notes in S L.R.A.(N.S.) 698; 31 L.R.A.(N.S.) 176; and 106 Am. St. Rep. 95. There is a conflict of authority, however, as to whether a constructive trust may be based upon an undertaking to hold for the benefit of another property received through devise or inheritance, where no actual testamentary intention has been frustrated and the element of personal fraud is.wanting. The decisions pro and eon on the question are collated in note in 33 L.R.A. (N.S.) 996.</p> <p>Bill of sale — warranty deed —made in contemplation of death —to wife — will later made — in favor of wife — suit by child — claiming property held in trusts- distribution — complaint — amendment — motion for.</p> <p>1. At the close of the evidence, plaintiff moved to amend her complaint by striking out all reference to the bill of sale and deed. This was denied by the trial court, and, for reasons stated in the opinion, such denial was error. However, this court in trial anew will consider the complaint properly amended.</p> <p>Evidence — clear and convincing — must be — gift of property — by will.</p> <p>2. Evidence examined and held not of that clear and convincing character necessary to establish the trust alleged, but does show a gift of the property, by will, to the mother, without any restrictions whatever, and with the express desire upon the part of the father that his estate be kept together for the benefit of the family and the payment of the debts. That the father trusted the mother to sometime make a distribution of the property in no manner changes the absolute character of the gift.</p>

Action to recover for merchandise furnished. Counterclaim for commission. Judgment for defendant on counterclaim. Plaintiff appeals. Statement of facts by Bruce, J. This action was tried to the court, a jury having been waived. It was brought by the plaintiff and appellant threshing machine company to recover from the defendant and respondent the sum of $135.90 for merchandise furnished.

<p>Congress — right of way — granting — highways — construction of — certified' plat — location — filing of —superior title.</p> <p>The act of Congress approved July 26, 1866, granting a right of way for-the construction of highways over public lands not reserved for public use, attached to and created a superior title therein to the grant of such lands to the Northern Pacific Railroad Company, under act of Congress approved. July 2, 1864, because the certified plat of definite location of said road, containing the tract afterwards deeded to plaintiff, was not filed with the commissioner of the general land office until May 26, 1873, and did not apply to-any interest in said lands previously granted to the public by the United, States government.</p>

From a judgment of the District Court of Golden Valley County, Pollock, Special J., defendant appeals. A change of venue is not complete until the files are received by the court to which they are sent, and therefore this case could not be legally put on the calendar for the term commencing before their receipt by the cleric Stringer v. Jacobs, 9 Ark. 497, 50 Am. Dec. 221; 50 Cyc. 174.

Ira Gray was convicted of the crime of grand larceny, and appeals. The court erred in permitting rebuttal examination of the witness Borth to cover matters already testified to in the state’s case in chief. Moseley v. Com. 24 Ky.

One Havlicheck and wife entered into a written contract' of sale of 400 acres of land, near Minot, to plaintiffs. Held: Appeal from tbe judgment of the District Court of Ward County, Leighton, J., and an order refusing a new trial. Defendant appeals. Plaintiffs must show title in fee simple, as alleged in the complaint, or they cannot recover. Brown v. Comonow, 17 N. D. 84, 114 N. W. 728; Hebden v. Bina, 17 N. D. 235, 138 Am.

Judgment for plaintiff. Defendant appeals. When the nature of the evidence is such that no verdict for plaintiff can be found except upon mere conjecture, surmise, or suspicion, the court should grant a motion for verdict for the defendant. Scherer v. Schlaberg, 18 N. D. 421, 24 L.E.A.(N.S.) 520, 122.N. W. 1000. A mere scintilla of evidence is not sufficient to warrant submitting case to jury. Ibid.; 1 Jones, Ev. p. 907, and cases cited in note 51.

<p>This case is governed by the decision rendered in State Bank v. Bismarck Elevator & Invest. Co. ante, 102.</p> <p>Appeal from the District Court of Mercer County; Crawford, Special J.</p> <p>Judgment for plaintiff. Defendant appeals.</p>

<p>State banks — capital stock — surplus — reserve funds — undivided profits — loans and discounts — banking furniture and fixtures — not taxable to bank as personal property — collection of taxes — action to enjoin.</p> <p>Action to enjoin collection of a tax levied against a state bank upon its shares of capital stock. Eeld,</p> <p>1. The capital stock, surplus, reserve funds, undivided profits, loans and discounts, banking furniture and fixtures not real estate, and all strictly banking utilities, are not taxable to the bank, nor at all, as items of personalty, but of and to the shareholders, apportioned on a per share valuation.</p> <p>Capital stock —shares of — taxation of — bank not subj'ect to — assessed to shareholders.</p> <p>2. A bank is not subject to taxation for the value of its shares of capital stock. Instead, assessment and levy should be made upon the value of the shares determined under § 2115, Comp. Laws 1913, and in the name of and against its respective shareholders.</p> <p>Bank stock — shares — assessment and levy against bank void.</p> <p>3. The purported assessment and tax levied thereon against the bank for the aggregate value of its bank shares is void.</p> <p>Collection of — injunction to prevent — equitable relief — not proper remedy.</p> <p>4. Such a void tax cannot be canceled and its collection enjoined by a suit in equity, unless there also exists some generally recognized head of equitable jurisdiction entitling the court to administer equitable relief.</p> <p>Note. — There is a considerable conflict of authority as to whether an injunction will lie to restrain the collection of illegal taxes. The general doctrine is that it will not, and the case above is in accord with that rule. The subject receives a complete discussion, with authorities carefully collated on both sides, in note in 22 L.R.A. 699. See also note in 69 Am. Dec. 198.</p> <p>Banks — void tax — payment of — injury — action at law for recovery back.</p> <p>5. No irreparable injury can result to plaintiffs from enforced collection of this void tax, as it may sue to recover it back, and therefore has an adequate relief at law.</p> <p>Banks — action to enjoin collection of void tax — multiplicity of suits — equitable jurisdiction — will not lie.</p> <p>6. As no action at law will lie against the bank by its shareholders upon its being compelled to pay the void tax, no multiplicity of suits can arise to confer equitable jurisdiction. Equitable relief is denied and this action ordered dismissed.</p>

<p>Verdict — evidence — sufficient to support.</p> <p>Evidence examined, and held sufficient to support the verdict, and errors assigned on admission of evidence, and instructions held not well taken.</p>

, Action to have canceled and set aside certain shares of the capital stock of a corporation, and to enjoin the directors from selling any more stock, fixing the salaries of the officers, and… Held: and voted upon-some of such ballots; that at such annual meeting of the stockholders the following resolution was unanimously adopted: ‘No. 7.

<p>Note. — As to the right of the seller, upon breach of executory contract, to maintain action for contract price, see notes in 17 L.R.A.(N.S.) 808; 26 L.R.A.(N.S.) 248; and 94 Am. St. Rep. 119. And as to the right to recover purchase price where purchaser wrongfully repudiates his contract, see note in 51 L.R.A. (N.S.) 735.</p> <p>Executory contract — anticipatory breach — doctrine of — overruled.</p> <p>1. The doctrine that there can be no anticipatory breach of an executory contract of purchase and sale, adopted in Stanford v. McGill, 6 N. D. 536, is overruled, and the overwhelming weight of authority, both English and American, followed.</p> <p>Executory contract — notice of cancelation — damages — accruing to plaintiff subsequent to notice — freight charges — relief from.</p> <p>2. The unconditional notice of cancelation, though not acquiesced in by plaintiff, operated ,to relieve defendant from damages resulting from the acts done by plaintiff in performance of the contract subsequent to notice of cancelation, and relieved defendant from freight charges incurred by plaintiff after such notice of cancelation.</p> <p>Executory contract — performance — delivery — repudiation.</p> <p>3. Though plaintiff could keep, the contract alive and insist upon its performance up to the time for delivery, and could incur freight expense in so doing after notice of cancelation, its right to recover for it depends upon defendant’s subsequent withdrawal of his repudiation and subsequent performance.</p> <p>Notice of cancelation — charges incurred after — increase of damages by act of own party — purchase price.</p> <p>4. The incurring of the freight charge after notice of cancelation received is an enhancement by plaintiff of its own damages, and not recoverable, unless suit can be maintained for the purchase price.</p> <p>Delivery of property — acceptance — payment of purchase price — concurrent acts — contract may provide otherwise — title — when it vests.</p> <p>5. Unless the contract stipulates the contrary, delivery and acceptance of property and vesting of title thereunder and payment of the purchase price therefor are concurrent acts, and until delivery and acceptance title does not vest, and the purchase price payable only on the vesting of title is not recoverable in a suit for the purchase price.</p> <p>Delivery — validity of — acceptance — constructive delivery — exception.</p> <p>6. To constitute a valid delivery on sale of personal property, there must be an acceptance of it by the purchaser or his agent. Constructive delivery may be an exception.</p> <p>Acceptance of delivery — refusal — repudiation of contract — before time for delivery — title — operation of law.</p> <p>7. In the face of a refusal to receive delivery of the property in performance of a contract of purchase and sale, the purchaser standing on a repudiation of it declared while the contract was wholly executory, with repudiation not subsequently waived or withdrawn, title cannot be cast upon the purchaser by operation of law.</p> <p>Executory contract of sale — repudiation — attempted delivery after — title — suit for purchase price.</p> <p>8. The attempted delivery did not vest title, and suit for the purchase price cannot be maintained, nor can the freight charges incurred after notice of cancelation be recovered.</p> <p>Contract — construction — delivery — passing of title — recovery of purchase price.</p> <p>9. The contract cannot be construed as authorizing a recovery independent of delivery of property or vesting of title in defendant, but instead is a contract of purchase and sale with payment conditioned upon the passing of title.</p>

<p>Erom the District Court of Karnsey County, Buttz, J.</p>

<p>Taxes — payment of, to avoid penalty —part legal — part illegal — payment of all for such purpose compulsory.</p> <p>1. The payment of taxes to avoid a penalty, a portion of which taxes are illegal, but the legal portion of which taxes cannot be paid, or at any rate will not be received without the payment of the illegal part, and which penalty will be incurred upon the nonpayment of the taxes, is a payment under compulsion.</p> <p>Note. — That illegal taxes paid under protest or involuntarily can be recovered is in accord with the general doctrine as shown in discussion of similar eases in note in 45 Am. Dec. 164. As to rule where payments are ma'de voluntarily, see authorities in note in 94 Am. St. Rep. 425.</p> <p>There is a comprehensive discussion of claims for refunding money paid to state, in which are included cases of illegal taxes, in note in 42 L.R.A. 69.</p> <p>County treasurer — deliver list of delinquent taxes — to sheriff — statute requires — sheriff to distrain and sell — payment of taxes under protest — seizure of property — need not wait for — not voluntary payment — suit to recover illegal tax so paid.</p> <p>2. Where the statute, as does that of North Dakota (§ 2166, Compiled Laws of 1913), requires the county treasurer to deliver a list of the delinquent taxes to the sheriff, and upon such delivery requires the sheriff to immediately proceed to collect the same, and to distrain and sell the property upon which the taxes are delinquent, and where neither the treasurer nor the sheriff has the authority to cancel or rebate the illegal taxes, a property owner may assume that the officers of the law will obey the statute, and can pay such taxes under protest, and need not wait until the seizure is actually made or threatened in order that his payment may be involuntary; and if such taxes are illegal may afterwards bring suit for the recovery of the amount so paid.</p>

L. Nuessle, J. From a judgment in plaintiff’s favor, defendant appeals. A written agreement may be subsequently abrogated, superseded, or modified by parol. First Nat. Bank v. Prior, 10 N. D. 146, 86 N. W. 362; Jones, Ev. 442. Upon the trial of an action involving such issue, and where the evidence is conflicting, the question is one for the jury.

The proofs of loss are competent evidence against the party furnishing them, of the cause or extent of a loss, or the cause of death of an insured person, or of any other material fact therein recited; and ordinarily the rule extends to certificates and affidavits of physicians and others, and verdicts of coroners’ juries. 7 Ene. Ev. 594; Dennis v. ■ Union. Mirt. L. Ins. Co. 84 Cal. 570, 24 Pac. 120; Nelson v. Nederland L. Ins. Co. 110 Iowa, 600, 81 N. W. 807; 7 Ene.

From a judgment of the District Court of Bottineau County, Burr, J., defendants Evoy and Coliton appeal. Books of account, kept in the usual course of business, are the best evidence of their contents. In an action to recover for goods sold and delivered, where account of same was properly kept, a witness cannot testify as to such account, and as to the value of the goods, by merely using such books, not in evidence, to refresh his memory. Such evidence is hearsay.

Action to quiet title to real property and to partition tbe same among certain beirs. From a judgment in plaintiff’s favor, defendant Edward BE. Sanford appeals. To establish a resulting trust in real estate by parol testimony, the evidence must be clear, convincing, and satisfactory, and of such a character as to leave in the mind of the judge no hesitation or substantial doubt.

<p>Rape — statements of prosecutrix — to school teacher and others — private investigation — not voluntary — not under oath and are hearsay.</p> <p>Defendant appeals from conviction for statutory rape. Fifty-seven assignments of error appear, but only enough thereof are discussed to entirely destroy plaintiff’s case.</p> <p>1. The testimony of prosecutrix’s teacher, the principal of the school, and a lady member of the school board, as to statements made to them by prosecutrix during a private investigation, was improperly admitted upon the trial. Such statements were not voluntary, and, not being under oath, were hearsay.</p> <p>Rape — testimony by prosecutrix — weak-minded person — memory — times, and places — contradictory — unreasonable — conviction on.</p> <p>2. The only remaining testimony properly admitted was given by the prosecutrix. She was so weak-minded that she had no memory of dates nor conception of time. Her testimony in many material particulars is contradicted. by the state’s own witnesses, and is so unreasonable that it cannot support a conviction.</p> <p>Admission of evidence — errors.</p> <p>3. Other errors, while not necessary to a disposition of the case, set forth in explanation of the action of the jury in convicting the defendant.</p>

The deeds from Herbert and from the McDowalls to Champine are void, but actions can be brought and maintained in the names of the grantors for the benefit of Mr. Champine. Galbraith v. Payne, 12 N. D. 164, 96 N. W. 258. Courts will presume that the common law prevails in a sister state, and such is our statute. Kev. Codes 1905, § 7317, subdiv. 41, Comp. Laws 1913, § 7936; Leonard v. Fleming, 13 N. H. 629, 102 N. W. 308.

Action to quiet title to land. Trial de novo.- Plaintiffs, heirs at law of deceased fee title holder, bring action against the holder of five tax deeds, whose grantee is in possession of the land. Held: that the tax deed issued for the 1894 taxes is valid, for reasons stated in the opinion. Appeal from tbe District Court of Cavalier County, Cooley, J.

<p>Complaint in justice court — information — common nuisance — preliminary hearing — offense charged — difference in time — setting aside information-motion for — objection waived — appeal — issue first presented on.</p> <p>The information included a greater period of time than was charged in the complaint in justice court as the time during which a common nuisance was maintained. A preliminary examination was waived. Defendant moved to quash the information upon the ground specified, that he had not had or waived a preliminary examination for the offense charged in the information, but without pointing out or stating as grounds for the' motion that the information included additional time to that stated in the criminal complaint. The record docs not affirmatively disclose that, in denying said motion, such variance in time was known to the court, or was presented as the grounds for the motion made.</p> <p>Held, that under § 10729, Comp. Laws 1913, requiring that a motion “to set aside the information must specify clearly the grounds of objection to the information,” or the objection be waived, that the objection based upon such variance in time was not raised and was waived, and this court will not pass upon an issue not presented below.</p>

The evidence upon which to base a judgment for the setting aside and annulment of a mortgage must be clear, satisfying, and convincing. Anderson v. Anderson, 17 N. D. 275, 115 N. W. 836. The presumption is that the deed is valid and binding, and this will not be overcome by barely preponderating circumstances. Jasper v. Hazen, 4 N. D. 1, 23 L.E.A. 58, 58 N. W. 454.

<p>Lien for taxes — action to establish — title — asserting — United States district court — advance decision in.</p> <p>1. Plaintiff cannot assert title to the premises in himself, the same issues having been determined against this contention in an action in the United States district court in the year 1909.</p> <p>Subrogation — county—taxes—company—assets of.</p> <p>2. Under the circumstances of this case, plaintiff will be subrogated to the interests of the county in the taxes which he paid to protect the assets of the coal company.</p> <p>Stock in company — purchase of — action to rescind — evidence — bad faith — corporation — assets of.</p> <p>3. Bringing an action to rescind his original purchase of stock in the coal company is not evidence of plaintiff’s bad faith in the present action, nor of an attempt upon his part to wrongfully absorb the assets of the corporation.</p> <p>Note. — The general rule was laid down in Title Guarantee & T. Oo. v. Haven, 196 N. Y. 487, 25 L.R.A.(N.S.) 1308, 89 N. E. 1082, 1085, 17 Ann. Cas. 1131, that there is nothing in the nature of a lien for taxes or assessments, or in the fact that such lien exists in favor of a sovereign taxing power, to prevent the application of the equitable doctrine of subrogation, when justice demands it. This case, cited above in the opinion, is also found included in the discussion of authorities in note in L.R.A. 1915D, 697, on the right of one who voluntarily advances money to pay the taxes on the property of another to be subrogated to the rights of the public.</p> <p>Taxes — proof of payment-treasurer’s receipt — burden of proof.</p> <p>4. The proof of payment of the taxes by production of the official receipt, signed by the treasurer, is sufficient to meet the burden of proof imposed upon plaintiff in this action.</p> <p>Taxes — payment—lien.</p> <p>5. The particular taxes for which plaintiff is entitled to a lien upon the premises are enumerated in the opinion.</p>

This suit is a continuation of the litigation mentioned in Investors’ Syndicate v. Letts, 22 N. D. 452, where a statement of the facts may be found. Appeal from the District Court of Stark County, Crawford, ,1. The intervener has no interest in the subject-matter of this litigation, other than that of a mere stockholder. He has no right to participate in the management of the affairs of the corporation of which he is a mere stockholder. 26 Am. & Eng. Enc.

. Action for personal injuries. Judgment for plaintiff. Defendant appeals. Statement of facts by Bruce, J. This action was brought to recover damages for personal injuries sustained by the plaintiff, while in the defendant’s employ in the construction of the McKenzie Hotel in Bismarck, in the month of November, 1910. The case was first tried before a court and a jury in June, 1911.

The amended pleadings in a cause, being complete, supersede the original pleadings. By them the- issues for trial are presented. Eirst M. E. Church v. Eadden, 8 N. D. 164, 77 N. W. 615. The service of amended pleadings as of course destroys the issues, raised by the original pleadings. 31 Cyc. 366, f. and cases cited. When a new answer is filed, the former answer is withdrawn, and ceases to be a part of the record. This is true of any pleading. Rev. Codes 1905/ § 6682, Comp.

The Whites, husband and wife, signed an agreement to separate, and in-accordance with this agreement the husband tried to convey to the wife property standing in their joint names. This was attempted by both joining in a deed to a son, who in turn executed a deed to the mother. Neither of these deeds was recorded until two years later.

<p>Justice’s court judgment — suit in equity — to liave declared void — jurisdiction — equity of judgment — day of trial — failure to enter.</p> <p>1. Plaintiff and appellant, by this action in equity, seeks to have a justice’s judgment declared void for the alleged reason that the justice lost jurisdiction through a failure to enter such, judgment on the day of the trial. On defendant’s motion, judgment on the pleadings was entered dismissing the action. Held, proper, for reasons stated in the opinion.</p> <p>Notice of motion — object of stated —on pleadings and all papers filed — dismissal of action — complaint — cause of action.</p> <p>2. Defendant’s notice of motion stated that he would move for a dismissal of the “complaint” and “that judgment of dismissal of the action be entered accordingly, with costs,” etc. Such notice also contained a recital “that the said motion will be made on the pleadings and all papers and instruments filed in the above-entitled action.”</p> <p>Held, that such notice sufficiently apprised plaintiff of the fact that defendant would ask for a dismissal of the action upon the ground that the complaint did not state a cause of action.</p> <p>Pleading — meritorious defense — proof of — void judgment.</p> <p>3. Following Halverson v. Bennett, 22 N. D. 67, 132 N. W. 434, held, that equity will not grant the relief prayed for without an allegation in the complaint, supported by proof, of the existence of a meritorious defense to the action in which such alleged void judgment was entered, and no such defense is alleged.</p>

<p>Service of papers — setting time to running — personal service — service Ijy mail —effect of each.</p> <p>1. Where the service of a paper by one party has the effect of setting time to run against the opposite party, the time which thus begins to run is twice as long when the service is by mail (§ 7954, Compiled Laws), as when made personally.</p> <p>Computation of time — rule of — as to service of papers — appeals.</p> <p>2. This rule is applicable to appeals.</p> <p>Conversion — complaint in — allegations of actual conversion — demand and refusal — not necessary.</p> <p>3. Where a complaint in an action for conversion contains allegations of an actual conversion, an averment of demand and refusal is not required.</p> <p>Interpleader — order of — when allowed.</p> <p>4. Under the provisions of § 7414, Compiled Laws, an order of interpleader may he allowed only (1) in an action upon contract; (2) in an action for specific real property; (3) in an action for specific personal property.</p> <p>Conversion — action for damages for — interpleader — not allowable.</p> <p>5. An order of interpleader should not he allowed under the provisions of § 7414, Compiled Laws, in an action for damages for conversion of personal property.</p>

<p>Laborer’s lien — default in payment — owner may take possession of property covered by.</p> <p>1. The statutes of this state authorize the owner of a farm laborer’s lien, upon default in payment of the debt secured thereby, to take possession of the-property covered by the lien.</p> <p>Right of possession — against one who has converted the property — action, at law may be maintained.</p> <p>2. Such right of possession may be enforced by an action at law for damages against one who has converted the property covered by such lien.</p> <p>Lien — waiver — question of intent.</p> <p>3. The question of waiver is generally a question of intent.</p> <p>Property covered by lien — grain — lien not waived by party hauling to elevator.</p> <p>4. A farm laborer does not waive his right to a farm laborer’s lien, where, in performance of-the work for which he was hired, he hauls and delivers at an elevator grain on which the lien is claimed.</p>

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

In the sale of lands, mere “words of praise” or “dealers’ talk,” even though relied upon by the purchaser, do not furnish ground for action for damages for fraud and deceit. It is the duty of the purchaser to investigate for himself. Failing in this, he takes his own chances. Kerr, Fr. & Mistake, p. 84; Van Horn v. Keenan, 28 111. 448; Miller v. Craig, 36 111.

Habeas corpus for tbe possession of a minor child. Statement of facts by Bruce, J.. This is a proceeding upon a writ of habeas corpus to determine the right to the custody of Herbert Clark, an infant, the controversy being between the natural parents and the parents by adoption of the child, who is now some eight years of age.

<p>Motion to strike appellant’s statement of ease and brief and for an affirmance of tbe judgment.</p>

<p>Appeal — dismissed — remittitur transmitted to and filed in lower court — appellate jurisdiction lost — mistake or fraud — recall for review.</p> <p>1. Where an appeal has been dismissed, and the remittitur transmitted to and filed in the trial court, the appellate court has lost jurisdiction of the case, and cannot recall the remittitur, or review its decision unless the order was based on fraud or mistake of fact, or the remittitur was sent down through inadvertence or mistake.</p> <p>Appeal — reinstatement of — motion for —grounds fox* — mistake — inadvertence — surprise — excusable neglect — merit in appeal.</p> <p>2. Upon a motion to reinstate an appeal, on the ground that the order of dismissal was entered against the appellant through his mistake, inadvertence, surprise, or excusable neglect, appellant must show apparent merit in the appeal.</p>

Erom an order of tbe District Court-of Barnes County; Coffey, J., plaintiff appeals. A “good, and merchantable title” in respondent is not shown or satisfied by showing the legal title in someone, and an equitable estate in respondent. Such does not satisfy or fulfil his executory contract. It is an independent covenant on the part of respondent, and a condition precedent.

Action to determine adverse claims to real estate. Answer setting up conditional contract of purchase, which provided for a cancelation of the contract at the option of the defendant or purchaser, and a claim of such cancelation, and the recovery of the amount paid, as a condition precedent to the quieting of the title. Judgment for defendant. Plaintiff appeals.

Prosecution for maintaining a liquor nuisance. Judgment for plaintiff. Defendant appeals. Held: and not one that may be held. Rev. Codes 1905, § 9791, Comp. Laws 1913, § 10628; State v. Fleming, 20 N. D. 105, 126 N. W. 565.

Action to recover on certified check. Demurrer. Judgment for plaintiff overruling demurrer. Defendant appeals.

<p>Appeal from the District Court of Eddy County; Buttz, J. Action, to recover on a certified check. Demurrer.</p> <p>Judgment for plaintiff overruling demurrer. Defendant appeals.</p>

Action in claim and delivery to obtain tbe possession of personal property. Judgment for plaintiff. Defendant appeals. Statement of facts by Bruce, J. This is an action in claim and delivery, -which is brought by the trustee in bankruptcy of an insolvent debtor for the possession of certain personal property which he claims belongs to the estate.

<p>Contributory negligence — evidence of — subject to different conclusions — as to facts —or conclusions drawn from the facts —one of fact for jury.</p> <p>1. When the evidence in regard to contributory negligence is such that different minds may reasonably draw different conclusions, either as to the' facts or the conclusions to be drawn from the facts, then the question of contributory negligence is one of fact to be determined by the jury.</p> <p>Shipment of horses —care taker — riding in stock car instead of caboose — accident — contributory negligence — matter of law.</p> <p>2. It is held that, under the terms of the contract and the circumstances of the case, a care taker of a shipment of horses, who at the time of the accident was riding in the stock car instead of in the caboose, was not guilty of contributory negligence as a matter of law.</p> <p>Shipment of live stock — person in charge — riding under shipping contract — passenger for hire.</p> <p>3. A person in charge of live stock, riding under a contract which evidences his right of transportation on the train transporting the stock shipment, and contemplates his carriage to care for the stock, is a passenger for hire.</p> <p>Stock shipment under contract — care taker riding in stock car —mode of transportation — risks reasonably incident thereto — assumption of — occurrences — unnecessary — unusual — train — handling of — risks and dangers — not assumed.</p> <p>4. A person so traveling will be deemed to have assumed all risks reasonably incident to the mode of transportation utilized, but not those risks and dangers produced .by. unnecessary and unusual occurrences not incident to the proper handling of a train of that kind.</p> <p>Kailway company — must exercise care — safety of such a passenger — obligation — not relieved from.</p> <p>5. A railway company is not relieved from its obligation to exercise great care for the safety of such passenger.</p> <p>Proximate cause — use of term by court — further definition — not necessary — unless requested — not error.</p> <p>6. It was not reversible error for the court to use the term “proximate cause” without otherwise defining it, in absence of a request for an appropriate instruction.</p> <p>Instructions to jury — considered as a whole.</p> <p>7. The court’s instructions to the jury should be considered and construed as a whole.</p> <p>Instructions — correct as far as given — if further are desired — should be requested.</p> <p>8. Where an instruction is correct as far as it goes, a party to the action who deems the same not sufficiently explicit should present requests for more specific and comprehensive instructions.</p> <p>New trial —motion for — affidavit — diligence — acts performed — must be specific —must be shown — province and duty of court — general assertions of diligence — insufficient — opinions — conclusions.</p> <p>9. An affidavit, presented to show diligence, in support of a motion for new trial on the ground of newly discovered evidence, should specifically state the acts performed in order that the court may determine what diligence was used, and mere general assertions of diligence are insufficient, as they constitute only the opinions or conclusions of the affiant.</p> <p>New trial — motion for — newly discovered evidence — court — sound judicial discretion — addressed to —appellate court — will not interfere — unless abuse is shown.</p> <p>10. A motion for new trial on the ground of newly discovered evidence is addressed largely to the sound, judicial discretion of the trial court, and the appellate court will not interfere unless a manifest abuse of such discretion is shown.</p>

.Action by John Swords against Benjamin McDonell. Plaintiff had judgment. Defendant appeals. It is the duty of the master to furnish a reasonably safe place for his servant to work. He is not required to provide a place that is absolutely safe. Frequently the work which the servant is employed to do is dangerous in itself, and of course the servant assumes the ordinary risk in performing that work.

From a judgment of the District Court of Ward County, Leighton, J. Defendants appeal.

From the District Court of Bowman County Nuessle, Special Judge. The verdict is not sustained because it clearly appears that the defendant entered into negotiations with the complaining witness for the purpose of inducing him to pay a just debt to defendant, and because there is no evidence of any threat to accuse or prosecute the complaining witness.

<p>Reversed and remanded by consent of parties.</p> <p>Appeal from District Court of Ward County; Leighton, J. Defendant appeals.</p>

<p>Intoxicating liquors — importing — for sale as a beverage — evidence — bills of lading — receipts — consignments — rulings of trial court.</p> <p>1. Appellant was convicted of the crime of importing intoxicating liquors for sale as a beverage, and he has appealed, assigning a large number of specifications of error relating to rulings in the admission of testimony. In the main, the testimony was of a documentary character, consisting of bills of lading and receipts showing, without dispute and beyond all doubt, numerous large consignments of liquors to appellant from points in Minnesota. It was also shown that appellant held both a retail and wholesale liquor dealers’ license from the Federal government. Appellant’s guilt was established beyond all question. In the light of the record it is held, for reasons stated in the opinion, that none of the rulings complained of, even if erroneous, were of a prejudicial character.</p> <p>Evidence — frequent large Importations of liquors — criminal purpose.</p> <p>2. Evidence of frequent large importations of liquors by appellant on dates immediately prior to the date charged in the information was admissible as tending to show a criminal purpose as charged in importing the liquors on such date.</p> <p>Criminal cases — appeals in statutory rule — technical error's — substantia] rights.</p> <p>3. The statutory rule that on appeals in criminal cases this court shall give judgment without regard to technical errors or defects or exceptions which do not affect the substantial rights of the parties is applied and enforced, it clearly appearing that none of the rulings complained of could have prejudicially affected the substantial rights of appellant.</p> <p>Evidence — railway company agent — bills of lading — figures and abbreviations — made in regular business — explaining meaning.</p> <p>4. The court did not err in permitting the witness McDonald, agent of the Northern Pacific Railway Company at Bismarck, to explain the meaning of certain figures, designations, abbreviations, and letters appearing on the bills of lading, and receipts for consignments to appellant aforesaid, it appearing that such notations were made in the regular course of business of such common carrier and unfamiliar to persons outside of the railway service.</p> <p>Eviderce — certified copy of records — revenue collector.</p> <p>5. Following the rule announced in the recent case of State v. Kilmer, decided by this court, it is held that exhibit “A,” consisting of a certified copy of the records of the collector of internal revenue for the district of North and South Dakota, was competent evidence.</p> <p>Instructions —persons —receiving goods —paying freight —jury may infer that defendant imported goods.</p> <p>6. Among other things the jury was instructed in effect that a person to ■whom the goods were consigned and who pays the freight and receives the same may he deemed to have imported the same within the meaning of the statute against importations of liquors. Such instruction merely advised the jury that they may infer from such acts that the defendant imported the liquors and the same was clearly proper.</p> <p>Instructions — errors — specifications.</p> <p>7. The instructions when considered as a whole were substantially correct, and the specifications relating thereto are without merit.</p>

Action to condemn additional right of way. Held: Erom a judgment of the District Court of Ward County; Leighton, J. Plaintiff appeals. Held: Erom a judgment of the District Court of Ward County; Leighton, J. Plaintiff appeals. If the two strips of land had been condemned all the way through defendant’s land, then all damage of which legal complaint might be made would be removed.

<p>Mandamus — original writ — state auditor — state Tax Commission — laws — repeal oí — salaries — appropriation for.</p> <p>Seld, that chapter 43, Sess. Laws 1915, does not directly or indirectly repeal § 5, chapter 303, Sess. Laws 1911, which, under the holding in State ex rel. Birdzell v. Jorgenson, 25 N. D. 539, appropriates money for the salaries of such tax commissioners.</p>

234, Sess. Laws 1915, creating said board and defining its duties. The respondents by answer state their willingness to organize and act as a board, provided § 7 of chap. 234, Sess. Laws 1915, is in force.

<p>Daw case — rulings of lower court — appellant must challenge — specifications— assignments of error.</p> <p>1. Where appellant in a law ease fails to challenge the correctness of the lower court’s ruling by any specification or assignment of error, his appeal presents nothing to the supreme court for consideration.</p> <p>District court — appeals to — justice court — return of justice — certificate — impeachment of — by later certificate of justice — leave of court.</p> <p>2. A return made pursuant to statute by a justice of the peace on an appeal to the district court cannot be later impeached by a certificate of the justice thereafter made and filed without leave of court.</p> <p>Appeal — statutory return of justice — certificate — impeachment — judgment — regular upon its face. .</p> <p>3. Even if such statutory return were thus subject to impeachment, it is held that such certificate wholly fails to impeach the same, and that the judgment of the justice was in all respects regular upon its face.</p> <p>Verdict of jury — judgment on —entered same day — compliance with statute. " ■</p> <p>4. The record discloses that the judgment was entered by the justice on the same day upon wliicli the verdict was returned, and — following Peterson v. Hansen, 15 N. D. 198, — it is held that this was a compliance with the statute.</p>

<p>Promissory note — indorsement — by president of company — suit on — proof of indorsement — ownership — possession — pleadings.</p> <p>1. The proof of indorsement made by the president of the defunct CourierEorum Publishing Company together with the admissions of the answer and . the possession of the note by plaintiff, made a prima facie showing of indorsement and ownership.</p> <p>■Agreement — between defendant and payee — note not to be considered valid — except upon contingency — wrongful transfer of note — consideration for note —failure of — rulings of court — error — defense to note — purchaser in due course.</p> <p>2. It was error in the trial court to reject the offer of the defendant to show an agreement with the Courier-Eorum Publishing Company to the effect that said note would not be valid unless a consolidation of the Courier-News and Eorum was effected. This evidence was competent to show a defense in the hands of the original holder of the note sufficient to put the plaintiff on proof as an innocent purchaser in due course.</p> <p>President of company — cross-examination — books — custody of — stock of corporation — subscriptions to — failure to secure — consideration for note.</p> <p>3. It was error in the trial court to restrict the cross-examination of the president of the defunct Courier-Eorum Publishing Company when called by the defendant under the statute. Such testimony was competent to show custody of the books of said defunct corporation and for the purpose of showing any knowledge that the witness may have had of the subscriptions to the stock of said corporation. Defendant was given a certain written instrument wherein it was agreed that the note should be invalid unless certain Democrats were to subscribe $15,000 to such corporate stock, or the defendant’s note should be invalid. Defendant should have been allowed to prove the failure to secure those subscriptions.</p> <p>Plaintiff corporation — president of — cross-examination — defense to note — knowledge of president — purchaser.</p> <p>4. It was also error in the trial court to exclude questions asked of the president of the plaintiff tending to show that at the time of the purchase of the note he knew of the defense outlined in the answer.</p>

• The commissioners had no jurisdiction to hear and determine the matter involved. The doctrine of implied authority cannot be relied upon by the commissioners in this case, since our statutes give them but a supervisory control of the railroads in the state, and gives them no authority or power to regulate the building and maintenance of highway crossings over the track and right of way of railroads. Eev. Codes 1905, § 369, Comp. Laws 1913, § 589.

<p>Statement of case — settled by supreme court — upon refusal of trial court — facts — trial court — counsel — disagreement between.</p> <p>Section 7657, Comp. Laws 1913, authorizes the supreme court to settle a statement of ease only in cases wherein the trial judge refuses to settle it in accordance with the facts. This section applies in cases where there is a disagreement between the trial court and counsel as to the facts concerning the trial, and may be invoked when the trial court refuses to allow a truthful statement of what occurred at the trial; but it has no application to a case wherein the trial court refuses to settle a statement because it was not presented for settlement within the time prescribed by law, and no good cause was shown for the delay.</p>

Action of conversion for the conversion of certain grain claimed to be subject to the lien of a mortgage. Judgment for plaintiff. Defendant appeals. A mortage to secure future advances is good in law, and it is permissible to show by parol the agreement to advance the money thereunder, and holdings of the trial court to the contrary constitute prejudicial error, for which a new trial must be granted. Union Nat.

Exception by creditors to the administrator’s final account, and demurrer thereto sustained. Section 5128 of the Compiled Laws of 1887, created “a general present exemption”' which the debtor by his selection converts into a specific exemption.

<p>Order of district court — notice of — appeal from — within sixty days after — filing order with clerk — appeal.</p> <p>An appeal to the supreme court, from an order of the district court, under § 7820, Comp. Laws 1913, must be taken within sixty days after notice thereof, and can be taken before such order is filed with the clerk of the district court.</p>

From a judgmeut of the District Court of Cass County, Pollocli, J., defendant appeals. Section 211 of the Federal Laws of the United States provides that it is a crime to cause to be sent through the mail any letter, writing, ■or to take from the mail any drug, medicine, etc., to be used or applied for preventing conception. This includes the procuring of medicines with the intent and purpose of preventing conception.

<p>Appeal from the County Court of Cass County, A. G. Hanson, T.</p> <p>Prom a judgment of conviction for the crime of practising veterinary dentistry without a license, defendant appeals.</p> <p>An affidavit upon information and belief is insufficient upon which to base constructive criminal contempt proceedings, and gives no jurisdiction. State ex rel. Harvey v. Newton, 16 N. D. 154, 112 N. W. 52, 14 Ann. Cas. 1035.</p> <p>So, also, an affidavit for a search warrant must be made by one with knowledge of the facts, and should be positive in form. State ex rel. Register v. McGahey, 12 N. D. 545, 97 N. W. 865, 1 Ann. Cas. 650, 14 Am. Crim. Rep. 283; State v. Gottlieb, 21 N. D. 183, 129 N. W. 460; State v. Cropper, 4 Kan. App. 245, 45 Pae. 131; State v. Black-man, 32 Kan. 615, 5 Pac. 173.</p> <p>The motion to set aside the warrant in this case should have been granted. State v. Gleason, 32 Kan. 245, 4 Pac. 363, 5 Am. Crim. Rep. 172.</p> <p>A charge verified upon information and belief is good for all purposes except for the issuance of a warrant to bring the defendant into court. State v. Moseli, 49 Kan. 142, 30 Pac. 189.</p> <p>“The complaint must set up the facts constituting the offense on the Icnowledge of the person who makes it, and, if he does not know them, ■other witnesses must be examined who do know them, and no person can be arrested on the mere belief of the person making the complaint. 'The liberty of the citizen is not held upon so slender a tenure as that.” People v. Heffron, 53 Mich. 527, 19 N. W. 171; Ex parte Dimmig, 74 Cal. 164,15 Pae. 619; Swart v. Kimball, 43 Mich. 443, 5 N. W. 635.</p> <p>■ There is a, distinct statutory difference between a complaint and an information. This is apparent from the statutory provisions. Comp. Laws 1913, §§ 10525-10527, and 10684.</p> <p>• A warrant may be issued by the county court only, for a person against whom an information has been filed. Comp. Laws 1913, § 8962.</p> <p>The term “complaint” is a technical one, descriptive of proceedings before magistrates. 12 Cyc. 290.</p> <p>A prosecution by information implies and means one by the public prosecuting officer, and from a presentment or indictment which is the method of accusation by the grand jury. 12 Cyc. 290, 291, note 28.</p> <p>Our law has no provision concerning “charging and receiving pay” by one who does work along* the line of veterinary dentistry. Comp. Laws 1913, § 2716; Sackett, Instruction to Juries, § 4810, note 16.</p> <p>“The performance of dental work, and the charging and recovering -therefor, is practising dentistry” (Texas Statutory Rules) — but there is no such showing in this case. Aldenhoven v. State, 42 Tex. Crim. Rep. 6, 56 S. W. 914.</p> <p>To “practise” is to exercise a calling, trade, or profession. People Hse of State Bd. of Health v. Blue Mountain Joe, 129 111. 370, 21 N. E. 925; French v. Parker, 16 R. I. 219, 27 Am. St. Rep. 733, 14 Atl. 872; Rawlinson v. Clarke, 14 Mees. & W. 187, 14 L. J. Exch. N. S. 364.</p> <p>To make a single sale of land, under brokerage laws, does not make one a broker. Jackson v. Hough, 38 W. Ya. 236, 18 S. E. 576; Hart y. Folsom, 70 N. H. 213, 47 Atl. 603.</p> <p>The practice of medicine is defined by our Code, and the fee element is included. Comp. Laws 1913, § 463.</p> <p>Dentistry as applied to human beings is also defined, and we there fj.nd the fee element. Comp. Laws 1913, §509.</p> <p>It is clear that a complaint must, in order to show probable cause, be a statement of facts, supported by oath or affirmation. Such was the condition in this case when application for a warrant of arrest was made. State v. MeKnight, 7 N. D. 444, 75 N. W. 790; State v. Longstreth, 19 N. D. 268, 121 N. W. 1114, Ann. Cas. 1913D, 1317.</p> <p>Cases where complaints alleged facts merely on information and belief, and were so verified, are not in point. State v. Collins, 8 Kan. App. 398, 57 Pac. 38; Alderman v. State, 24 Neb. 97, 38 N. W. 36; State v. Stoffel, 48 Kan. 364, 29 Pac. 685; People v. Staples, 91 Cal. 23, 27 Pac. 523; Com. v. Mallini, 214 Pa. 50, 63 Atl. 414; State v. Etzel, 2 Kan. App. 673, 43 Pac. 798; State v. Crombie, 107 Minn.. 171, 119 N. W. 660; Potter v. Barry, 156 Mich. 183, 120 N. W. 586.</p> <p>The true meaning of the word “practise” as used in-the law under consideration is “to perform any act or acts of the art or science defined.” Our law does not require one act, or two acts, or frequent acts. State v. Blumenthal, 141 Mo. App. 502, 125 S. W. 1188; State v.Crombie, 107 Minn. 166, 119 N. W. 658.</p>

Action upon implied contract for rental of pasture land. Both parties concede law, as given in instructions, correct. Appeal from the District Court of Stark County; Crawford, J. There being no evidence of damage or rental value of the land in. question, defendant’s motion to dismiss, made at the close of plaintiff’s case should have been granted.

<p>Interstate commerce — section boss — band car — riding on — railroad company — Federal employer’s liability act — negligence.</p> <p>Plaintiff was a section boss engaged in interstate commerce. Upon the day of his injury he took a hand car with thirteen men, besides himself, and worked upon an adjoining section. While returning in the evening it began.to rain, and one of the men under him let go of the handle bars to put on his coat. In so doing he lost his balance, and plaintiff, in order to hold the man’upon the hand cai-, himself released his hold, fell from the car, and was injured. Therfe is no evidence that plaintiff had requested more hand cars or complained of-the crowded condition. Evidence examined and held:</p> <p>That the railroad. company is guilty of no negligence for which it is liable under the Federal employers’ liability act.</p>

Appeal by plaintiff from an order of the district court of McLean county, Winchester, J., quashing an attachment and dismissing the action. The alleged trust, as between the defendant and the grantors in the deed conveying the property .in question to him, is void. Rev. Codes 1905., §§ 4821, 4835, Comp. Laws 1913, §§ 5364, 5378; Enderlin Invest. Co. v. Nordhagen, 18 N. D. 517, 123 N. W. 390.