Volume 32 — North Dakota Reports

<p>Original proceeding for disbarment.</p>

A motion to vacate a judgment for irregularity does not come under § 6884 of the Codes 1905, and may be made at any time within the time fixed by the court. The statute does not limit the time in which such an application may be made. Martinson v. Marzolf, 14 N. D. 309, 103 N. W. 937; Naderhoff v. George Benz & Sons, 25 N. D. 165, 47 L.B.A.(N.S.) 853, 141 N. W. 501. The judgment of a court of general jurisdiction, and the record thereof, are presumed to be regular.

From a judgment in defendant’s favor and from an order denying plaintiff’s motion for a new trial, he appeals. Where a person or a corporation has accepted money which belongs to another, he or it is bound to pay it over to the other even though no privity of contract exists between the parties and even though there is no express promise to pay such money to the party to whom it belongs, because the law presumes such a promise to pay.

<p>Action to foreclose mechanic’s lien. Trial de novo. Plaintiff alleges that it sold certain lumber to the defendant in 1907, and that it perfected a lien in 1911. Evidence examined and, held,—</p> <p>Mechanic’s lien — action to foreclose — complaint — allegations — proof — failure of — contract — between parties — absence of.</p> <p>That there is a total failure of proof of the allegations of the complaint, the proof showing a sale to defendant’s father. Being no contract, there can be no lien, and the action must fail.</p>

<p>County court — order of — appeal from — default judgment — diligence —» defense — inadvertence — motion for — relief from — discretion — abuse of.</p> <p>Upon an appeal from an order of the county court refusing to relieve defendant from a default judgment, the facts disclose that defendant acted with the-utmost diligence in arranging, through his attorney, to have a concededly meritorious defense interposed. Such attorney also acted with unusual promptitude in preparing the answer and other papers connected with the defense, but, through inadvertence, he was one day late in serving the answer on plaintiff’s, attorneys, who resided at Fargo, several hundred miles away.</p> <p>Held, under the particular facts stated in the opinion, that it was a manifest abuse of discretion on the part of the trial court to deny this motion for relief from such default.</p>

<p>Indemnity bond — action on — to recover money — employer — manager — salesman — larceny — embezzlement — findings oí court.</p> <p>1. In an action brought to recover money paid to the defendant’s* employer upon a bond by which the plaintiff obligated itself to indemnify the employer against such loss as it might sustain by reason of the larceny or embezzlement of the employer’s property by the defendant as its manager or salesman, in the sale of machinery, — held, that the evidence justified the trial court in finding that there was no larceny or embezzlement for which the plaintiff was liable to the employer on the bond.</p> <p>Stipulation — guaranty insurance company — employee — voucher — conclusive evidence — liability — void — public policy.</p> <p>2. Held, further, that a stipulation between a “guaranty insurance company” and the guaranteed employee, that a voucher or other evidence of payment by the company to the employer shall be conclusive evidence against the employee as to the fact and extent of his liability to the company, is void as being against public policy in so far as it maltes such voucher conclusive evidence.</p> <p>Voucher — liability — prima facie evidence of the fact — other evidence —• effect of.</p> <p>3. Held, further, that assuming that such voucher establishes a prima facie liability of the defendant, that the other testimony introduced by the plaintiff as to the facts of the alleged default of the defendant rebuts the prima facie showing.</p>

An appeal from the County Court of Increased Jurisdiction of Ward , County, Wm.

<p>Appeal from the District Court of Williams County, F. E. Fish, J.</p> <p>Criminal prosecution for the unlawful keeping for sale of intoxicating liquors. Defendant convicted. Defendant appeals.</p>

Defendant appeals. Tbe mere collection of interest by tbe mortgage company would not be evidence of its authority to collect tbe principal, even if tbe authority so to do bad not been in writing and specific and limited to tbe collection of tbe interest coupon forwarded for such purpose. Hollinshead v. John Stuart & Co. (Hollinshead v. Globe Invest. Co.) 8 N. D. 35, 42 L.R.A. 659, 73 Am. St. Rep. 742, 77 N. W. 89; Corey v. Hunter, 10 N. D. 5, 84 N. W. 570.

Plaintiff appeals. The written contract contains the whole agreement of the parties. It so expressly provides. A warranty is an agreement. To hold that the statutory warranties apply to this sale would in effect create a new contract for the parties. Dowagiac Mfg. Co. v. Mahon, 13 N. D. 521, 101 N. W. 903.

<p>Fraud — duress — want of consideration — recovery — defeat of — action — negotiable check — indorse — infirmity — defect — bad faith.</p> <p>1. In order to defeat recovery on the ground of fraud, duress, or want of consideration between the original parties, in an action by an indorsee against the maker of a negotiable check, complete and regular on its face, which was acquired by the indorsee for value before it was overdue or dishonored, it must be shown that the indorsee had actual knowledge of the infirmity or defect or knowledge of suck facts as to amount to bad faith. American Nat. Bank r. Lundy, 21 N. D. 167, followed.</p> <p>Note. — On the general question of circumstances sufficient to put purchaser of negotiable paper on inquiry, see note in 29 L.R.A. (N.S.) 351.</p> <p>As to effect of fraud in inception of negotiable paper on rights of bona fide purchaser, see note in 11 Am. St. Rep. 309.</p> <p>Indorsee — in due course — check — defenses — original parties.</p> <p>2. It is held that the plaintiff is an indorsee in due course and as such holds the check involved in this action free from the defenses of fraud and duress and want of consideration, even though such defenses existed between the original parties.</p>

Tbe defendant was practising a fraud upon plaintiff in presenting bis bills of overcharge and collecting same, and the money paid him under these circumstances rendered him' a trustee de son tort or a trustee ex maleficio. 8 Words & Phrases, p. 7134. Equity impresses upon such money a constructive trust in favor of the one entitled to the same. Parrish v. Parrish, 33 Or. 486, 54 Pac. 352, Citing 2 Pom. Eq.

From a judgment of conviction rendered by the District Court of Mercer County, JFIanley, J\, defendant appeals. The homicide occurred in the defendant’s dwelling, his home, and while the deceased was intent upon the commission of a crime. His •assaults upon defendant in the presence of defendant’s wife and children and in their home had continued for some time.

From a judgment of tbe County Court of increased jurisdiction of Ward County, William Miw'ray, J., plaintiff appeals. The so-called sales in bulk law only applies to merchants; a transfer under sucli law must be of a stock of merchandise, or merchandise and fixtures pertaining to such business. Sess. Laws 1913, chap. 247.

Action in claim and delivery. Appeal from an order denying a motion for a new trial on the ground of newly discovered evidence and also from the original judgment. Held: handled, sold, and traded the same as his own, without any objection being made thereto until more than two years after his son had disposed of the same; this in spite of the fact that the plaintiff well knew of his son’s leaving his homestead in the summer of 1910 and never returning to the same.

The statute in question, the corrupt practice act, is unconstitutional. It is general in its terms and assumes to apply to all candidates for public office. Its consequences are also general, — applying to all who seek the public favor in an election. Const. §§ 47 — 173, 196, 197; U. S. Const. § 5, art. 1.

<p>Defendants were served with the summons and complaint in this action the 5th of August, 1913. September 12, 1913, they appeared by attorney and demanded a bill of particulars. After argument such demand was refused, and defendants were given ten days in which to file an answer. Instead of complying with the order, defendants on the 3d of October, 1913, interposed a demurrer raising substantially the same grounds covered by the motion. Plaintiff then moved to strike the demurrer as frivolous. This notice failed to state any day of any month or year for its return, but merely that it was returnable before district Judge at the village of Mott on Wednesday at 1 o’clock P. m., or as soon thereafter as counsel could be heard. The attorney upon whom this notice was served, however, was told at the time that said motion was returnable October 15, 1913, and was invited by plaintiff’s attorney to ride with him in his automobile to said hearing. Only two terms are held each year in Mott, and the dates thereof are fixed by law. The motion to strike the demurrer was not opposed and was allowed by the trial court. Under the circumstances, it is held:</p> <p>Demurrer — motion to strike — notice — time and place — default — appearance— attorneys — pleadings — terms of court.</p> <p>1. That the defendants were duly apprised of the return day of the motion to strike the demurrer and were not justified in allowing the matter to go by default.</p> <p>Answer — extension of time — court — order of granting — demurrer.</p> <p>2. The filing of a demurrer was in violation of the order which allowed the filing of an answer.</p> <p>Demurrer — frivolous — without leave of court — striking — motion for — merits — pleading.</p> <p>3. It was not error to strike the demurrer as frivolous because (a) defendants had not obtained leave of court to interpose such demurrer; (b) the complaint was not upon its face demurrable; and (c) defendants were in default and presented no affidavit of merits.</p> <p>The order of the trial court refusing to vacate said default judgment is affirmed.</p>

<p>Garnishee’s liability — measure oí — relation and responsibility to defendant — recovery — in what cases.</p> <p>1. A garnishee’s liability is measured by his responsibility and relation to the defendant; and the plaintiff in a garnishment action cannot recover against the garnishee unless the defendant could recover against such garnishee in an action in defendant’s own name and for his own use.</p> <p>Mortgaged chattels — sale of — consent by mortgagee — condition — sale by public auction — proceeds of sale — applied on mortgage debt — lien not waived — as to unpaid purchase price — garnishment — not subject to.</p> <p>2. Where a mortgagee consents to a sale of mortgaged chattels on the condition that such sale be held at public auction under the supervision of, and that the purchase price for such chattels be paid by the purchasers to, the mortgagee’s agent, the mortgagee does not waive the lien of the mortgage so as to render the unpaid purchase price due from a purchaser at such sale, subject to garnishment in an action brought against the defendant by an unsecured creditor.</p> <p>Note. — In holding that the consent of a mortgagee to a sale of the mortgaged property may be conditional, and that when the purchaser is informed of such condition the consent does not become effective until the condition is performed, this case seems to be in harmony with the few other cases that have considered the question, as shown by a review thereof in a note in 43 L.R.A. (N.S.) 302.</p>

<p>Condemnation suit — evidence — value — land — adapted to subdivision —- lots, into — theory.</p> <p>1. When the plaintiff in a condemnation suit first offers evidence as to values on the assumption that the land involved is adapted for subdivision into town lots, he cannot predicate error upon the subsequent admission of evidence on the part of defendant based on the same assumption.</p> <p>Instructions — nonprejudicial.</p> <p>2. Certain' instructions examined, and held nonprejudicial.</p> <p>Action — condemnation — compensation — value oí land — purposes used — present value — uses.</p> <p>3. In a condemnation action, compensation is not to be estimated simply with reference to the value of the land to the owner for the purpose it is then used, but with reference to what its present value is in view of the uses to which it. is reasonably capable of being put.</p> <p>Theory — damages — prooí of — method — accepted and acted npon — trial court — on appeal.</p> <p>4. When a certain theory as to the method of proving damages is accepted and acted upon by the parties in the trial court as a proper one, it must be adhered to on appeal.</p> <p>Questions — objections — sustained — facts — offer of proof — error — assignment of.</p> <p>5. Where an objection to a question propounded to a witness is sustained,. ■ and the competency of- the question is not apparent on its face, the party must.' offer to prove the facts sought to be elicited before he can assign error- upon the ruling on the objection. Halley v. Eolsom, 1 N. D. 325, followed.</p> <p>Note. — That the adaptability of agricultural or unused lands for building lot purposes may be considered in estimating the damages to be allowed on condemnation of the property has been decided in many cases, as shown by a review of all the-' authorities in a note in 15 L.R.A. (N.S.) 679. °</p> <p>Conflicting evidence — verdict — based upon — supreme court — not inter?fered with.</p> <p>6. A verdict based on conflicting evidence cannot be set aside as unsupported by the evidence.</p>

“The legal wrong denominated ‘conversion’ is any unauthorized act of dominion or ownership exercised by one person over personal property belonging to another.” 38 Cyc. 2005. A defendant cannot be held for conversion unless he had actual or constructive possession of the property. 38 Cyc. 2018B, 2; Jaggard, Torts; Drome v. Dennis, 45 N. J. L. 515.

<p>Real estate — mortgages — securities — marshaling of — purchaser — foreclosure.</p> <p>1. Gr. gave three mortgages upon his land. The first covers all of sec. 33, and the southeast quarter and south half of the northwest quarter of sec. 27, all in township 137, range 67, and this mortgage is owned by plaintiff H., who seeks to foreclose the same as to the land in sec, 27, he having released such mortgage as to sec. 33 upon payment by the grantee of the mortgagor, one B. of his pro rata share of the indebtedness owed plaintiff., The second ran to N. and was assigned to defendant and appellant, the Case Company, and covers all the land above described. The third covers merely the land in see. 27, and runs to appellant, the Case Company. The latter mortgage was foreclosed by advertisement in June, 1910, and went to sheriff’s deed on June 6, 1911, the appellant company being the purchaser. Such purchase took place prior to the release.by the plaintiff of the land in section 33 and after B’s purchase from the mortgagor of said section 33. The appellant seeks to compel plaintiff to marshal his securities by restoring to the land not covered by the third mortgage. Reid, under the facts, that such attempted defense is untenable. '</p> <p>Equitable rule — marshaling’ of securities.</p> <p>2. The equitable rule as to marshaling of securities as embodied in § 6716 of the Compiled Laws of 1913 (§ 6140, Rev. Codes 1905) is explained and applied in the opinion, and it is held not to sustain appellant’s contention,</p> <p>Mortgage — foreclosure of — title under — mortgagee — purchaser — rights, of — third party — mortgage lien of purchaser — extinguished — debt satisfied.</p> <p>3. Appellant purchased and obtained the title through the foreclosure of its mortgage, not as mortgagee, but as purchaser, and thereby obtained only sueli rights as any third-party purchaser might have obtained, and by such purchase its mortgage lien was extinguished and its debt satisfied.</p> <p>Note.. — -As to the general rule of marshaling assets and securities, see note in 59’ Am. Rep. 389.</p> <p>As to marshaling assets for benefit of mortgagor, see note in 47 L.R.A. (NJ3.) 302*</p> <p>And for authorities on rule as to inverse order of alienation as affected by assumption of mortgage, see note in 39 L.R.A. (N.S.) 359.</p> <p>Foreclosure sale — bids at — by holder of inferior lien — places value on property — subject to first mortgage — position of — same as stranger — grantee — debt and mortgage — assuming — extent of.</p> <p>4. By its bid at the foreclosure sale the Case Company voluntarily placed a value upon the equity subject to the first mortgage of the amount of its bid, and it stands in no more favorable position than would any stranger who had purchased at the sale. Such purchaser could not urge that the land in section 33 owned by a prior grantee from the mortgagor should be first applied towards the satisfaction of plaintiff’s mortgage, except to the extent that such prior grantee had assumed and agreed to pay such indebtedness.</p> <p>Purchaser — at mortgage sale — title acquired — same of mortgagor — at date of mortgage foreclosed — equity — prior liens — subject to.</p> <p>5. By its purchase through the foreclosure proceedings culminating in the issuance to it of the sheriff’s deed, the Case Company acquired the same title which the mortgagor possessed at the date of the delivery of the mortgage, which was his equity subject to the prior liens.</p> <p>Foreclosure sale — value fixed by bids — presumption — prior existing liens.</p> <p>O. It is presumed that the Case Company bought the land at the foreclosure sale at its full value, less the amount of prior existing liens thereon.</p> <p>Property — lien upon — sale of — extinguished lien — marshaling securities — rule of — right to invoke.</p> <p>7. The Code (Comp. Laws 1913, § 6721), expressly provides that “the sale of any property on which there is a lien in satisfaction of the claim secured thereby extinguishes the lien thereon.” The instant, therefore, that appellant’s lien was thus satisfied, its right to invoke the rule as to marshaling securities ceased.</p> <p>8. The doctrine that a court of equity will, under certain circumstances, treat a mortgage as still existing after the lien thereof has been extinguished, has, for reasons stated in the opinion, no application under the facts in the case at bar.</p>

Action to recover damages for personal injuries by wrongful act. Judgment for defendant. Plaintiff appeals. Where the'facts as to the acts which A is contended constitute con-tributary negligence are in dispute, the question is one for the jury,, and it is error for the court to take such a case from the jury, or to direct a verdict.

Defendant appeals. In actions based upon tbe negligence or omission of a statutory duty by a railroad company in regard to its road, a recovery, as in other cases, may be denied on account of contributory negligence. Reynolds v. Missouri, K & T. R. Co. 70 Kan. 340, 78 Pac. 801, 17 Am. Neg. Rep. 228; Ward v. Paducah & M. R. Co. 4 Fed. 862; Marshall & E. T. R. Co. v. Petty, — Tex. Civ. App. —, 134 S. W. 406; Atchison, T. & S. E. R. Co. v. Jones, 110 111.

From a judgment of the District Court of Burleigh County, Nuessle, J., defendant appeals. “Verbal” offers to agent are not sufficient; they must be made to principal. Johnson Bros. v. Wright, 124 Iowa, 61, 99 N. W. 103. Where compensation is not fixed by contract, recovery must be on basis of quantum meruit. Boysen v. Robertson, 70 Ark. 56, 68 S. W. 243; Ford v. Brown, 120 Cal. 551, 52 Pae. 817; Kennedy v. Meriekel, 8 Cal. App. 378, 97 Pac. 82; Turnley v. Michael, 4 Tex. App.

Action of trover for the conversion of a check. Judgment for plaintiff. Defendant appeals.

<p>Appeal from the District Court of Eenville County, Leighton, J.</p> <p>Opinion of the court by Burke, J.</p>

<p>Action to restrain the Tax Commission from enforcing chapter £55, Session Laws of 1915.</p> <p>Tax Commission — action to restrain — Publici juris — state — sovereignty of — multiplicity of suits — writ of prohibition — original — private suitor — upon his relation.</p> <p>1. Following State ex rel. Shaw v. Harmon, 23 N. D. 513, it is held that the question here presented is publici juris, directly affects the sovereignty of the state, will prevent a multiplicity of suits, is timely brought, and, therefore, this court will issue its original prerogative writ of prohibition upon the relation of a private suitor.</p> <p>Statutes — Constitution — in contravention of.</p> <p>2. Chapter 255, Session Laws of 1915, is in contravention of § 175 of the State Constitution.</p> <p>Note. — For a review of the authorities on the question of prohibition against proceeding under unconstitutional statute, see note in 1 L.E.A. (N.S.) S43, and on the question as to when writ of prohibition lies generally, see notes in 12 Am. Dec. 604; 18 Am. Dee. 238; and 111 Am. St. Rep. 929.</p>

From a judgment of the District Court of Morton County, Nuchols, J., plaintiff appeals. Every action must be prosecuted in the name of the real party in interest. Revi Codes 1905, § 6807 ; Comp. Laws 1913, § 7395; Edmison v. Zborowski, 9 S. D. 40, 68 N. W. 288; McKinney v. Jones, 55 Wis. 39, 11 N. W. 606, 12 N. W. 381; Lenoch v. Yoss, 157 Iowa, 314, 136 N. W. 542.

<p>Judgment — motion for new trial —order on — appeal from both —not duplicitous.</p> <p>An appeal from a judgment entered on August 7, 1915, and also from an order subsequently entered denying a motion for a new trial, is not duplicitous.</p>

Plaintiff appeals. The parties here signed the note as makers; they are absolutely liable, and required to pay it; they cannot afterwards be heard to assert the contrary. Wolstenholme Y. Smith, 34 Utah, 300, 97 Pac. 329; Bev. Codes 1905, § 6421; Comp. Laws 1913, § 7004. The signers were all principal debtors; none were mere sureties, and none were discharged.

A. Coffey, J. Action by John D. Cook against the Northern Pacific Railway Company. From a judgment in defendant’s favor, plaintiff appeals. “Everything that the jury might reasonably infer from the evidence is to be considered as admitted.” Cameron v. Great Northern R. Co. S N. D. 124, 77 N. W. 1016, 5 Am. Neg.

This is an appeal from the District Court of Bottineau County; Burr, J., action by A. L. Miller and Clyde Webber, copartners, against the National Elevator Company. Erom a judgment in plaintiffs’ favor, defendant appeals. To state a cause of action in conversion, the complaint must show that plaintiff is the owner or has a special property in the subject of conversion, that he is entitled to its possession, and that defendant wrongfully converted it. Parker v. Eirst Nat.

An appeal from the District Court of Sheridan County. Honorable W. L. Nuessle, J. Where an action is properly begun in county court Costs must be taxed according to the law governing in the court where the trial is had. Actions must be commenced in the proper courts, as to the amounts involved, in order that costs shall follow. Rev. Codes 1905, § 7794, Comp. Laws 1913, § 8429; De Smet Twp. v. Dow, 4 S. D. 163, 56 N. W. 84.

<p>Habeas corpus — writ of — rape — crime of — penalty — statute — amendment — ex post facto law — saving clause — construction — implication — district court — jurisdiction — sentence.</p> <p>Relator, who seeks to regain his liberty through a writ of habeas corpus, was convicted during the present month of the crime of rape in the second degree, and was sentenced to a term of four years in the penitentiary. The law prescribing the penalty, and in force at the date of the offense, was amended at the last session of the legislative assembly, and the old statute was- expressly repealed by the provisions of the new law, and a greater penalty prescribed, such new statute taking effect on July 1st, 1915, and embracing no saving clause as to past offenses. Held: That such new statute is, as to relator, an ex post faeto law, and he cannot be punished thereunder. Held, further, that § 7316 of the Compiled Laws of 1913 prescribed a general saving clause which is applicable, and must be read into the new statute by necessary implication. Hence, the district court had jurisdiction to impose sentence under the former statute, and the writ is accordingly quashed.</p>

Fisk, J. From a judgment in defendant’s favor, plaintiff appeals. The last mortgage given and delivered for the same debt secured by a prior mortgage, but including other indebtedness, did not cancel the first or prior mortgage, but it was obliterated by the second or new mortgage, which was substituted for the old one. It was the last and really the only, agreement standing between the parties.

An appeal from the district court of Foster county; Coffey, J. Where a prima facie case is made out, and there is no question of fact to go to the jury, — questions controverted by evidence, — the case still having been submitted to the jury, and the jury having found its. verdict clearly contrary to the evidence, it should be set aside..

<p>Appeal from District Court, Golden Valley County; Crawford, J. Motion to dismiss appeal.</p>

An appeal from a judgment of the District Court of Stutsman County; Coffey, J. Defendant appeals. The statute recognized tbe rule generally prevailing without the aid of any statute, that it is not usurious to charge and collect interest at the lawful rate in advance.

Where there is no ambiguity in the language of the contract, the language itself must be alone consulted in ascertaining the intention. '20 Cyc. 1423, 1424; Manhattan Rolling Mill v. Dellon, 113 N. Y. Supp. 571. But where the court and the lawyers on both sides of the case fail to agree on what the contract means, under such circumstances oral testimony was admissible to throw light upon its meaning.

Action to foreclose a mortgage and for a deficiency decree. Judgment for plaintiff. Defendant appeals. Statement of facts by Bruce, J. This is an action for tbe foreclosure of a mortgage and for a deficiency decree, and comes before us for a trial de novo after judgment being rendered in the trial court in favor of the plaintiff.

From a judgment in defendants’ favor, plaintiff appeals. As soon as an indebtedness is greater than the constitutional limit of 5 per cent, the law is violated, even though it may be but for the moment. Birkholz v. Dinnie, 6 N. D. 511, 72 N. W. 931. At the time the contract was signed it became obligatory on both parties, and the indebtedness was incurred.

Defendant appeals. “A party cannot be defrauded in being induced to do what good faith and a proper observance of his promises make it his duty to do.” Marsh v. Cook, 32 N. J. Eq. 262; Herring v. Draper, 2 Houst. (Del.) 158; Farmers’ Stock Breeding Asso. v. Scott, 53 Kan. 534, 36 Pac. 978; Faribault v. Sater, 13 Minn. 223, Gil. 210; Miller v. Bayne & B. Co. ■— Tex. Civ. App. —, 151 S. W. 341; Randall v. Hazelton, 12 Allen, 412; Smith v. Chadwick, L. R. 9 App.

<p>Appeal from the District court of Cass County, Polloclc, J.</p>

A new trial will not be granted on tbe ground of surprise, where the party went to trial without material evidence which he could have procured by the exercise of ordinary diligence. Linard v. Crossland, 10 Tek. 462, 60 Am. Dec. 213; Tooney v. State, 5 Tex. App. 185. The situation presented by such a motion must not be attributable to the negligence of the party asking for a new trial on the ground of surprise. He must show’ good diligence, and free himself from negligence.

An appeal from the District Court of Grand Forks County, Cooley, L, adjudging defendant guilty of robbery. A defendant on trial for crime has the right to have his witnesses present in court, and to the process of the court to procure them. Comp. Laws 1913, § 10787; N. D. Const. § 13, art. 1.

An appeal from an order of tbe District Court of Eddy County, Butiz, J., granting a new trial. A person in actual possession of, and having actual control over, personal property is prima facie the owner thereof. Mariner v. Wasser, 11 N. D. 361, 138 Am.

Action to recover damages for personal injuries. Judgment for plaintiff. Defendant appeals. The z*ight of the trial court to participate in the examination of witnesses is conceded; but it is urged as the settled role, that such right should he exercised with great caution and impartiality, to the end that the jury may not be mislead or influenced. State v. Hazlett, 14 N. D. 490, 105 N. W. 611; Comp.

“Objection to the illegality of the service is considered as abandoned only when the party pleads to the merits in the first instance, without insisting upon the illegality.” Motion to quash the order of the court to show cause, specifying and preserving all objections, was the proper practice. Harkness v. Hyde, 98 H. S. 476, 25 L. ed. 237.

<p>Divorce — evidence — uncorroborated statement, admission or testimony of parties — collusive divorces — object of statute — strength of corroboration.</p> <p>1. Section 4400, Compiled Laws 1913, which provides that “no divorce can be granted . . . upon the uncorroborated statement, admission, or testimony of the parties,” was intended to guard against collusive divorces, and in any action, where the record and evidence considered as a whole precludes any reasonable probability of collusion, the corroboration need not be very strong, or extend to every feature of the cause alleged.</p> <p>Physical violence — extreme cruelty — what constitutes — conduct — mental feelings — impairment of health — ends of matrimony.</p> <p>. 2. Physical violence is not necessary to constitute extreme cruelty within the meaning of §§ 4380, 4382, Compiled Laws 1913 (relating to divorce), hut any unjustifiable conduct on the part of either husband or wife which so grievously wounds the mental feelings of the other as to seriously impair bodily health, or utterly destroy the legitimate ends and objects of matrimony, constitutes extreme cruelty within the meaning of the statute, although no physical or personal violence may be inflicted.</p> <p>Note. — For various illustrations of the doctrine that cruelty which will justify a divorce does not necessarily involve violence, hut may consist of any unjustifiable conduct which destroys the legitimate ends and objects of matrimony, see Miller v. Miller, 89 Neb. 239, 34 L.R.A.(N.S.) 360, 131 N. W. 203; Hooe v. Hooe, 122 Ky. 590, 5 L.R.A.(N.S.) 729, 92 S. W. 317, 13 Ann. Cas. 214; MeClintock v. McClintock, 147 Ky. 409, 39 L.R.A.(N.S.) 1127, 144 S. W. 68; Bechtel v. Bechtel, 101 Minn. 511, 12 L.R.A.(N.S.) 1100, 112 N. W. 883; Robinson v. Robinson, 66 N. IT. 600, 15 L.R.A. 121, 49 Am. St. Rep. 632, 23 Atl. 362; Barnes v. Barnes, 95 Cal. 171, 16 L-K-A. 660, 30 Pac. 298.</p> <p>And for discussion of the general question of cruelty as ground for divorce, see notes in 29 Am. Dec. 674; 73 Am. Dec. 619; 40 Am. Rep. 463; 51 Am. Rep. 736; and 65 Am. St. Rep. 69.</p>

The district court of Polk county, Minnesota, had jurisdiction of the subject-matter of the action as set forth in the complaint herein, and its determination is conclusive upon all the stockholders of the defunct corporation, and cannot be challenged in any other tribunal, regardless of the place of residence of the stockholders. Straw & Ei Mfg. Co. v. L. D. Kilbourne Boot & Shoe Co. 80 Minn. 125, 83 N. W. 36; London & N. W. American Mortg. Có. v. St. Paul Park Improv.

The complaint shows that the majority of the stockholders and directors are prejudiced against Mr. Beyer and his interests. He can maintain this action. Pom. Eq. Jur. § 1095; Thomp. Corp. 2d ed. § 4568; 2 Machen. Corp. § 1179; Kley v. Healy, 127 N. Y. 555, 28 N. E. 593; Continental Securities Co. v. Belmont, 206 N. Y. 12, 51 L.R.A.(N.S.) 112, 99 N. E. 138, Ann. Cas. 1914A, 777; Pollitz v. Wabash R. Co. 207 N. Y. 113, 100 N. E. 721.

W. Buliz, J. From a judgment and order in defendants’ favor, plaintiff appeals. Forgery of an instrument like the note in question takes place whenever any person, with intent to defraud, falsely makes, alters, forges, or counterfeits any instrument in writing, purporting to be the act of another, by which any pecuniary demand or obligation is or purports to be created. Criminal intent must be shown. Comp. Laws 1913, § 9898; Eaton & G-. Com. Paper, § 129.

<p>Appeal from an order setting aside a sale of land made after appeal and supersedeas bond.</p> <p>Sale of lands — order setting aside — made after appeal — application for sucli order — notice of — not jurisdictional.</p> <p>1. Under the facts in this ease the giving twenty-four hours’ notice to the adverse party of intention to apply for an order fixing the amount of the supersedeas bond is not a jurisdictional requirement.</p> <p>Trial court — decree — correction of — order to show cause — true description of land — old decree as corrected — binding' judgment — supersedeas bond — effect of.</p> <p>2. The trial court had, upon due notice, made a correction in its decree in order to show the true description of the land to be sold. It is apparent that the old decree as corrected remained the binding judgment of the court from which the appeal was taken and to supersede which the bond was given. It follows that the judgment was properly superseded; the sale thereafter made,, void; and the order of the trial court setting it aside, proper.</p>

<p>Vendor — vendee — special assessments — statutes — lien — drainage assessments — incorporated cities.</p> <p>1. Chapter 35 of the Laws of 1903, which provides that “as between vendor and vendee, all special assessments upon real property for local improvements shall become and be a lien upon the real property upon which the same are assessed, from and after the 1st day of December, next after such assessments shall have been certified and returned to the county auditor, to the amount so certified and returned, and no more,” is applicable to drainage assessments upon country property as well as to property which is .benefited by local improvements within the limits of incorporated cities.</p> <p>Terms of act — doubtful — legislature- — intention — words — parts and provisions— construed as whole — statutes — pari materia — general law.</p> <p>2. Where the terms of an act are doubtful, an attempt must be made to give effect to the intention of the legislature, and, in doing so, all parts, words, and provisions of the act must be examined and considered, and, if possible, all parts must be brought into a harmonious whole; and statutes which are pari materia should be considered, and an attempt made to harmonize the particular statute with such statutes and with the general law.</p> <p>Statutes — system — relating to same class or subject — uniform application,</p> <p>3. If statutes are a part of a general system relating to the same, class or subject and rest upon the same reason, they should be construed, if possible, so as to be uniform in their application and in the results which they accomplish.</p> <p>Lien of general taxes — drains — assessment of benefits — cities — outside of — bonds — pari materia statutes.</p> <p>4. Section 2186 of the Compiled Laws of 1913, which provides that the lieri of general taxes shall attach on the 1st day of December of each year; chapter 62 of the Laws of 1905, which provides for special assessments in case of city improvements, and §§ 2474 and 2475 of the Compiled Laws of 1913, which provide for the assessment of benefits in the case of drains outside of the limits of incorporated cities, and § 2494 of the Compiled Laws of 1913, which provides for the issuance of bonds in such cases, — are pari materia.</p> <p>Statutes — repeal of — act — title of — scope of — incorporated cities — country property.</p> <p>5. Section 193 of chapter 62 of the Laws of 1905 does not repeal chapter 35 of the Laws of 1903, being § 3743 of the Compiled Laws of 1913, in so far as such section relates to country drainage assessments and to the liens thereof, since the title of said act of 1905 relates merely to incorporated cities, and country property is not mentioned or included thereon.</p>

E. Fish, Special Judge. Action to set aside a deed to real estate and a bill of sale of personal property. Judgment for defendant. Plaintiff appeals. Statement of facts by Bruce, J. Tbis is an action to set aside a deed to real estate and-a bill of sale of personal property executed by the plaintiff to the defendant, A. C. Wiper, the cashier of the defendant bank, the First National Bank of Bowbells.

A mere failure to perform a promise cannot relate back to render the same fraudulent. Fraud cannot be predicated upon a mere promise or statement of intention. 14 Am. & Eng. Enc. Law, 2d ed. pp. 47, 48; Cerny v. Paxton & G. Go. 78 Neb. 134, 10 L.R.A. (N.S.) 640, 110 N. W. 882; Miller v. Sutliff, 241 111. 521, 24 L.R.A.(N.S.) 735, 89 N. E. 651. ....

Allen, J. From a judgment in plaintiff’s favor, defendant Blodgett appeals. Where possession of land is consistent with the record title, it is presumed to be under such title, and is not notice of outstanding unrecorded equities. Smith v. Yule, 31 Cal. 180, 89 Am. Dee. 167; Dutton v. McBeynolds, 31 Minn. 66, 16 N. W. 486; Townsend v. Little, 109 U. S. 504, 27 L. ed. 1012, 3 Sup. Ct. Bep. 357; Williams v. Sprigg, 6 Ohio St. 585.

Defendant appeals. Our statutes upon the question of right of an attorney at law to buy promissory notes with the intention to bring suit on them are practically ■declaratory of the doctrine of champerty. Comp. Laws 1913, §§ 9412, 9414, 9416 and 9417. The purchase of the note in question with intent to sue, if necessary, was a criminal act, and void, and gives plaintiff no right to bring or maintain this action.

Cross Appeals from the District Court of Morton County, Nuessle, Special Judge. A contemporaneous and practical construction of either a constitution or a statute is entitled to great, if not controlling, weight. Cooley, Const. Lim. 4th. ed. pp. 81-86; Gaar-S. & Co. v. ¡3oxum, 11 N. D. 164, 90 N. W. 799; Wiles v. McIntosh County, 10 N. D. 594, 88 N. W. 710; Northern P. 17.

The defendant was the bolder of a sheriff’s certificate of sale upon foreclosure. It is the settled law that tbe bolder of such a certificate is entitled to tbe rents during tbe year of redemption. Clement v. Shipley, 2 N. D. 432, 51 N. W. 414; Whithed v. St. Anthony & D. Elevator Co. 9 N. D. 224, 50 L.R.A. 254, 81 Am. St. Rep. 562, 83 N. W. 238; Comp.