Volume 33 — Minnesota Reports

Appeal by defendant Charles L. Vance from a judgment of the district court for Big Stone county, where the action was tried before Brown, J., without a jury. The case is stated in the opinion. The including in the lien claim Yen separate and distinct lots, aggregating more than one acre in area, was fatal to the lien.

Action upon a promissory note, brought by plaintiff (a corporation) in the district court for Hennepin county.

Plaintiff, who is the owner and holder of a mortgage upon certain land in Faribault, on which is situated a brewery, brought this action in the district court for Rice county to restrain the defendants from interfering with, and impairing his security by removing and selling, certain articles which plaintiff claims are fixtures of the brewery, and in particular to restrain defendant Baxter from attempting to sell these articles under a chattel mortgage.

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

Appeal by defendant from an order of the municipal court of Minneapolis, overruling the defendant Jacoby’s demurrer to the complaint.

Action for personal injuries brought in the district court for Freeborn county. Plaintiff had a verdict for $3,000, and appeals from an order by Farmer, J., granting a new trial. A former appeal in this action is reported as Morse v. Minn, é St. L. By. Co., 30 Minn. 465.

This action was commenced before a justice of the peace in Houston county upon the complaint of the chairman of the board of supervisors of the town of Brownville in that county, charging the defendant with the offence of obstructing a public highway. Upon the trial, upon the evidence given by defendant, the justice decided that a question of title to real estate was raised, and thereupon certified the case to the district court.

The plaintiffs, claiming to be the owners of certain vacant and unoccupied land in Kandiyohi county, brought this action in the district court for that county, to determine the adverse claims of the defendant thereto. The defendant answered, alleging title in himself. The-action was tried by Brown, J., without a jury, and judgment was ordered and entered for the plaintiffs, from which the defendant appeals.

Action upon promissory notes. Upon an affidavit by plaintiff that the defendant had “assigned and disposed of a large portion of his property with the intent to delay and defraud his creditors, and that said defendant is about to assign and dispose of all the balance of his property with intent to delay and defraud his creditors and the plaintiff,” a writ of attachment was allowed and issued from the district court for Bice county, on October 19, 1883.

Plaintiff brought this action in the district court for Faribault county, upon a promissory note given in part payment for a harvester. The answer alleged want of consideration, and that the harvester was sold “on trial” and guarantied to work satisfactorily, and that it was returned because it failed to work satisfactorily. The action was tried by Severance, J., without a jury, and upon the findings of the court judgment was ordered for defendant.

Appeal by defendant from an order of the district court for Henne-pin county, Koon, J., presiding, refusing a new trial, after’a conviction of the crime of entering a dwelling-house with intent to commit larceny.

Action upon a promissory note, brought in the municipal court of Minneapolis. The summons was served personally upon the defendant in Wright county, and judgment by default was entered in favor of plaintiff. Thereupon defendant appeared specially, and, upon affidavit showing that the summons had never been served upon him excepting in Wright county, moved to have the judgment set aside and vacated, on the ground that the court had no jurisdiction to render it.

Action commenced before a justice of the peace in Goodhue county to recover a balance alleged to be due for money loaned and liquors sold. After the pleadings were closed, plaintiff was allowed to amend the complaint by inserting “that during all the time said goods were being delivered to defendant, said plaintiff was duly licensed to sell spirituous liquors,” etc. The defence pleaded in the answer was that defendant was an habitual drunkard.

Appeal by defendant from an order of the district court for Wilkin County, Brown, J., presiding, refusing a new trial, after a verdict for plaintiff.

Plaintiff brought this action in the district court for Washington county, alleging a contract between himself and defendant by which he was to do certain towing, and seeking to recover (1) the value of his services lost through defendant’s negligence and delay, (2) the cost of refitting rafts, (3) the amount unpaid for the towage of the 5,080,110 feet of logs mentioned in the opinion, (4) damages for defendant’s preventing him from towing under the contract certain rafts of…

Appeal by plaintiff from an order of the district court for Hen-nepin county, Young, J., presiding, overruling a demurrer to the answer. *

Plaintiff brought this action in the district court for Hennepin county, upon a promissory note, against defendant Bixby as indorser, and the other defendants as makers, alleging a transfer of the note •before maturity by indorsement by Bixby to one Thompson, a sale by Thompson to plaintiff before maturity, and due demand, protest and notice.

Plaintiff brought this action in the district court for Clay county against the defendants as makers of the following instrument, viz.: 300.

On May 15, 1884, Alexander B. Lightner, of Augusta county, Virginia, filed a petition in the probate court for Nicollet county, asking for license, as administrator, to sell the real estate in that county of which one Mary J. Ackerman, deceased, died seized.

Plaintiff (a corporation) brought this action in the district court for Lyon county, upon a promissory note given in part-payment for a harvester and binder. The answer admitted the making and delivery of the note, and, as a counterclaim, pleaded damages from an alleged breach of a written warranty made on the sale of the machine. The facts and evidence are stated in the opinion.

Appeals by defendant in both the above actions from judgments of the district court for Hennepin county, where the two actions were tried together by Koon, J., and a jury.

Appeal by defendant from an order of the district court for Henne-pin county, Lochren, J., presiding, refusing a new trial, after a verdict for plaintiff for $1,500. The case is stated in the opinion. The words charged are not libellous. Robertson v. McDongall, 4 Bing. 6T0; People v. Jerome, 1 Mich. 142; Bennett v. Williamson, 4 Sandf. 60; Homer v. Engelhardt, 117 Mass. 539.

■ The defendant was arrested, tried, and convicted in the municipal court of Minneapolis, on complaint for selling intoxicating liquor without a license, on June 19, 1884, contrary to the ordinance of the city; and he appeals from the judgment entered upon the conviction and from an order refusing a new trial.

A temporary writ of prohibition and order to show cause was issued out of this court upon an affidavit by the relator alleging that upon November 4, 1884, he was elected a member of the house of representatives of this state from the 38th district, composed of Chi-sago, Pine and Kanabec counties; that since the election one W. H. Wynkoop, who was a candidate against the relator, has served the notice of contest required by statute, and in his notice designated the…

Plaintiff brought this action in the district court for Hennepin county, to recover commission alleged to have been earned by him as defendant’s agent in the sale of certain land.

Plaintiff brought this action in the district court for Hennepin county, to recover damages for personal injuries occasioned by a defective sidewalk in the city of St. Paul. The summons was served on February 15, 1883, and on February 27, 1883, the defendant served a demand in writing for a change of venue.

Action upon a fire-insurance policy for $5,000, upon an “elevator building and-additions,” brought in the district court for Hennepin county, the damage from the fire to the property insured being alleged by plaintiff to amount to $7,195. The answer admits the issuance of the policy, pleads in defence the by-laws and regulations of defendant set out in the opinion, and denies that the loss to the property covered by the policy exceeded the sum of $4,545.

<p>Probate Court — Estates of Decedents — Jurisdiction after Final Order. After a probate court has made an order for the sale of real property oi an estate, and it has been accordingly sold, the sale confirmed by the court, and a deed executed to the purchaser as directed by the order of confirmation, and the administrator has been discharged, the matter is out of the jurisdiction of the probate court, and it cannot entertain an application to review and set aside the sale proceedings.</p>

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

Plaintiff brought this action in the district court for Freeborn county, to recover damages for breach of an oral warranty of a harvesting machine, known as the Osborne self-binder, bought by him in July, 1878, for $270, from the defendant (a corporation of the state of New York) through its agent at Northwood, Iowa, one Kenaston..

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

One Peter M. Tolbert, of the city of Rochester, in Olmsted county, mortgaged to the plaintiff a large amount of personal property, consisting of horses, cattle, farm implements, etc., and including that described in the mortgage as “three four-year old horses,” all the mortgaged property being described as “being now in the possession of said party of the first part” (the mortgagor) “in the city of Rochester, and town of Rochester, county of Olmsted.” The mortgage was duly…

<p>False Imprisonment — Excessive Damages. — Pratt v. Pioneer Press Co., 82 Minn. 217, followed, and applied to this case. Verdict for $2,917, for false imprisonment, set aside for excessiveness.</p>

One John M. Cole, a miller, of Rochester in this state, having died intestate, the plaintiffs were appointed his administrators. The defendants G-. W. Van Dusen & Co., (a corporation,) Cornelius Finn, the First National Bank of Winona, and the Second National Bank of Winona alleged claims to the wheat that was in Cole’s mill at the time of Ms death.

Appeal by plaintiffs from an order of the district court for Ramsey county, Simons, J., presiding, refusing a new trial after a trial by the court without a jury. In addition to the facts stated in the opinion, the absence of Robert. Smith and bis heirs from the state was relied on by plaintiffs as taking the case out of the statute of limitations.

A petition for the laying out of a cart-way through the land of Grinager, was presented to the board of supervisors of the town of Norway, in Fillmore county, which thereupon gave notice that on November 3, 1883, it would meet, personally examine the proposed way, and determine the matter.

Appeal by defendant from an order of the district court for Ramsey county, Brill, J., presiding, refusing a new trial after a verdict of .$2,000 for plaintiff.

Appeal by plaintiff from an order of the district court for Henne-pin county, Young, J., presiding, refusing to appoint a receiver in a .supplementary proceeding.

<p>Eailway Companies — Renees and Cattle-Guards in Villages.— Gen. St. 1878, c. 34, § 54, requiring railroad companies to fence their roads, and to build cattle-guards at wagon crossings, applies as well to the limits of incorporated cities and villages as to the country.</p> <p>Same — Exceptions—Streets—Public Grounds — Depot Grounds. — This statute is to be construed as allowing an exception where the company has no legal right to do the act, as where it would obstruct public-streets or other public grounds. There is also an implied exception as to places required to be left open by public necessity or convenience, such as station or depot grounds used for the exit or entrance of passengers, or the receipt and delivery of freight. But this public convenience is the limit of the exception.</p> <p>Same — Inconvenience to Company no Excuse.— Mere difficulty or inconvenience to the company creates no' exception, and will not'relieve it from complying with the law¿</p>

Plaintiffs, as assignees of defendant Claus M. Dittman, brought this action in the district court for Ramsey county, for the specific enforcement of the contract set forth in the opinion. The action was tried by Simons, J., who ordered judgment for defendants. A new trial was refused, and the plaintiffs appealed.

<p>Appeal by defendants from a judgment of the municipal court of Minneapolis.</p>

Plaintiff, as indorsee for value and before maturity, brought this action in the municipal court of Mankato upon the promissory note set out in the opinion.

The plaintiffs duly recovered and docketed in Chisago county a-judgment in this action for the sum'of $485.61. Afterwards the judgment was docketed in Clay county, and on December 4, 1883, an execution issued thereon was delivered by plaintiffs’ attorneys to C. P. Sloggy, the sheriff of Clay county, who was directed to levy forthwith upon property of the defendants. On February 4, 1884, Sloggy returned the execution wholly unsatisfied.

Slander. The complaint charges the defendant with having spoken words importing incontinence on the part of the plaintiff, an unmarried woman. The answer is a general denial. The action was tried in the district' court for Clay county before Stearns, J., and a jury, and plaintiff had a verdict of $675. Defendant appeals from an order refusing a new trial.

Appeal by plaintiff from an order of tbe district court for Henne-pin county, Lochren, J., presiding, refusing a new trial.

The plaintiffs brought this action in the district court for Becker county, to recover the value of certain lumber, of which they allege themselves to be the owners, and which the defendant Phinney, as. sheriff of Becker county, had, under the direction of the other defendants, taken from the possession of plaintiffs under a writ of attachment against J. D. Campbell & Co. The answer denies plaintiffs’’ ownership and possession, admits the taking by defendant Phinney, and…

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

Certiorari. The city of St. Raul, having through its council and board of public works made an assessment to pay for grading Rice ■street, applied to the district court for Ramsey county, upon due notice, for judgment against certain property -which had been assessed and on which the assessments were not paid.

This action was brought in the district court for Brown county, to enforce a mechanic’s lien for materials furnished and used in erecting a dwelling-house.

Plaintiff brought this action in the district court for Hennepin county, to recover one-half of the net profits made on the purchase and sale of certain real estate. A jury was waived, and the action tried by Koon, J., who found the facts as stated in the opinion, and ordered judgment for plaintiff for $1,890, with interest from August •8, 1881. Defendant appeals from an order refusing a new trial.

Appeal by defendant from an order of the district court for Sher-burne county, Crosby, J., presiding, refusing a new trial, after a verdict for plaintiff. The facts are stated in the opinion. Both under U. S. Bev. St. § 905, and Gen. St. 1878, c. 73, § 54, the decree of the probate court in Michigan was properly received in evidence. The decree was made in a proceeding in rem, and was conclusive as to the facts therein adjudicated, which were death and survivorship.

Appeal by defendants from an order of the district court for Bam-sey county, Lochren, J., presiding, (acting for the judges of the second district,) refusing to dissolve an injunction. The injunction was granted upon the verified complaint, and an affidavit, setting out the contract (mentioned below) between the city and the other defendants (railway companies) for the building of a bridge on Third street, in St. Paul, over the tracks of those companies.

Appeal by defendants from an order of the district court for Hen-nepin county, Koon, J., presiding, overruling a demurrer to the complaint. . The complaint alleges in substance the following facts: On April 24, 1883, the plaintiffs and defendants entered into a written contract of sale, wherein the defendants sold, and the plaintiffs purchased, certain land in Hennepin county, which the defendants 'agreed to convey by a good and sufficient warranty deed.

Plaintiff brought this action in the district court for Hennepin ■county, to recover damages for malicious institution and prosecution •of a civil action. The complaint alleges that in July, 1882, the plaintiff was the sole owner of a large and flourishing business at Fergus Falls, and had a stock of goods of the value of $15,000, the same being the whole of his property.

Action upon a mortgage note, brought in the district court for Lyon county. The answer sets up usury as a defence. The action was tried without a jury before Webber, J., who found the following facts: The plaintiffs, bankers, had an agreement with Lewis & Kelley, of Minneapolis, by which the plaintiffs were to secure applications for loans, Lewis & Kelley were to procure the money, and . the plaintiffs and Lewis & Kelley were then to divide the commissions on the loans.

Action in the district court for Chippewa county for conversion of personal property. The defendant justifies the taking, as sheriff, under a writ of attachment against one Whiteher.

<p>Appeal — Settled Case — Stenographer’s Notes. — This court cannot review findings of fact where there is no case or bill of exceptions showing upon what evidence the findings were based. The notes of the court reporter are not part of the record. — [Rep.</p>

Ejectment, brought in the district court for Fillmore county. Plaintiff had a verdict, and defendant appeals from an order by Farmer, J., refusing a new trial.

Plaintiff, wbo was injured by a fall occasioned by a defective sidewalk in the city of Stillwater, brought this action for damages in the district court for Washington county against the city and one Isaac Gray, who is the owner of the lot abutting upon the defective sidewalk.

Plaintiff brought this action in the district court for Redwood county, to recover for goods sold and also for a balance due on an account stated. At the trial, before Webber, J., and a jury, defendant had a verdict which was entered in the manner stated in the opinion. Plaintiff appeals from an order refusing a new trial. The verdict in this action was void.

Condemnation proceedings. The plaintiff having appealed from, the award of the commissioners to the district court for Hennepin county, a trial was had in the district court for Anoka county, before Koon, J., and a jury, and plaintiff had a verdict for $13,800. Defendant appeals from an order refusing a new trial.

Action for the conversion of personal property of the alleged value of $2,000, brought in the district court for Mower county. The complaint alleges that defendant caused the seizure and sale of the property in question under an execution issued upon a void judgment against the plaintiff, which judgment was afterwards vacated by the court for want of service of the summons.

Action to recover damages for the hilling of plaintiff’s husband, brought in the district court for Ramsey county. Upon the trial before Brill, J., and a jury, when plaintiff rested, the action was dismissed on defendant’s motion. Plaintiff appeals from an order refusing a new trial. The case is stated in the opinion. cited Dixon v. Rankin, 1 Am. Ry. Cas. 569; Story on Agency, § 453d; Louisville, etc., R. Co. v. Collins, 2 Duv. (Ky.) 114, and note, 5 Am. Law Reg.

Action for partition, brought in the district court for Hennepin county, in February, 1884. The complaint alleges that plaintiff is the owner of an undivided one-third of the lands described, and that defendant Charles G. Secombe is the owner of the other two-thirds.

Appeal by plaintiff from a judgment of the district court for Blue Earth county, where the action was tried by Severance, J., without a jury.

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

This action was brought in the district court for Hennepin county against Joseph W. Ladd, for the recovery of money upon a contract. Upon the commencement of the action garnishment proceedings were instituted against Stephen B. Lovejoy. Upon the disclosure it appeared that Lovejoy had a large amount of property which he claimed tó hold as assignee of the defendant, in insolvency proceedings under the act of 1881.

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

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

Writ of certiorari, issued on the application of Sarah B. Merrick, and directed to the district court for Hennepin county.

Appeal by defendant from an order of the district court for Ramsey county refusing a new trial after a trial by Brill, J., without a jury. cited Chambers v. Waters, 7 Cal. 890; Clark v. Norton, 6 Minn. 277, (412;) Petty grove v. Hoyt, 11 Me. 66; Peck v. Wilson, 22 Ill. 205.

Plaintiff, as assignee of the contract set forth in the opinion, brought this action in the district court of Hennepin county, to recover damages for an alleged breach. The complaint sets out the making of the contract, and the assignment of all interest in it to plaintiff, alleges tender of full performance on the part of plaintiff on January 10, 1884, and a refusal to perform on the part of defendant, and asks $7,550 damages.

Plaintiff brought this action in the district court for Hennepin county against one Austin, and duly garnished Langdon, Shepard & Co. The disclosure of the garnishees was filed March 21,1884. The facts disclosed are stated in the opinion. On April 17,1884, an order was made by Koon, J., refusing to discharge the garnishees, which order was as follows, viz.: “It is ordered that a motion to discharge the garnishees be and the same is hereby denied.

Plaintiff brought this action in the district court for Hennepin county, to recover damages for permanent injuries to real estate, occasioned by the negligent acts of the defendant. The complaint alleges that the land in question was worth $20,900 at the time the injury was done, and prays judgment for $10,000 damages. The action was tried before Young, J., and a jury, and plaintiff had a verdict for $5,888. Defendant appeals from an order refusing a new trial.

Plaintiff; claiming to be the owner and in possession of the land in controversy, brought this action in the district court for Ramsey county to determine the adverse claims of the defendants thereto. The defendants pleaded title in themselves, and prayed for judgment accordingly. After the commencement of the action, the defendant Merriam acquired all the title and interest of the other defendants.

Plaintiff brought this action in the district eourt for Carlton county, under Gen. St. 1878, c. 32, § 78, to recover compensation for driving logs of defendant which were intermingled with his own. The action was tried by Stearns, J., without a jury, and judgment ordered for plaintiff. Defendant appeals from an order refusing a new trial.

Appeal by plaintiff from an order of the district court for Ramsey county, Simons, J., presiding, sustaining a demurrer to the complaint. While, as a qualification of municipal liablity, it is now settled that a municipal corporation is not liable for damages arising from its exercise of powers and duties of a judicial or legislative character, (2 Dillon on Mun.

, presiding, confirming an assessment made by the board of public works of the city of St. Paul to pay a large portion of the expense of grading, filling, and bridging Seventh street and portions of certain adjacent streets.

Appeal by the defendants, the Minneapolis & St. Louis Railway Company and the Burlington, Cedar Rapids & Northern Railway Company, from an order of the district court for Freeborn county, Farmer, J., presiding, refusing a new trial, after a verdict of $10,000 for plaintiff. A former appeal is reported 31 Minn. 234.

Appeal by defendants from an order of the district court for Ramsey county, Wilkin, J., presiding, refusing a new trial, after a verdict of $950 for plaintiff.

Appeal by defendant from an order of the district court for Ramsey county, Simons, J., presiding, overruling a demurrer to the complaint, the allegations of which are substantially as follows: In 1856 William H. Randall entered into a contract with one Daniel Hopkins to buy of said Hopkins, for the benefit of his wife, Elizabeth C. Randall, a certain tract of land in Ramsey county, (describing it.) William H. Randall paid a portion of the price for the land, (the amount…

Plaintiff (a corporation) brought this action in the district court for Lyon county upon two promissory notes made by defendant. The answer alleged that the notes were given as part of the purchase price of a harvester, which was sold by plaintiff to defendant with a warranty as to character, capacity, and efficiency, and pleads a counterclaim for damages for a breach of such warranty. The action was tried before Webber, J., and a jury, and defendant had a verdict.

The allegations of the complaint in this action are substantially as follows, viz.: On November 1, 1879, one Samuel S. Small was the owner of a certain lot in Minneapolis, and conveyed it by warranty deed, his wife joining therein, to one S. J. Wooster, which warranty deed has never been recorded.

Information, filed in this court, under the provisions of Gen. St. 1878, c. 88, §§ 19-31, charging J. A. Temple, an attorney-at-law, with wilful misconduct in his profession. Answer was made, and the matter heard on these pleadings and testimony taken by a referee.

Quo warranto. Upon the information of the attorney general, representing that certain so-called votes were improperly cast, at the annual election, in 1883, in the county of Pine, for the respondent as county superintendent of schools for that county, and that she has entered upon and usurped that office and claims and pretends to act as such officer, this writ was issued from this court requiring the respondent to appear and show by what warrant or alleged right she claims…

Plaintiff brought this action in the municipal court of St. Paul, to recover for services rendered as a domestic servant in the family of defendant. The complaint alleged that the defendant agreed to pay plaintiff $10 per month, that her services were reasonably worth $10 per month, and that on September 15, 1884, there was due her for such services, $210; and asks judgment for $200.

Plaintiff brought this action to recover the value of services, support and care, rendered and furnished in attending and caring for a pauper who was a resident of defendant. Upon the trial in the district court for Freeborn county, before Farmer, J., the action was dismissed, for the reason, as stated by the court, that there was no obligation on the defendant to care for its poor. Plaintiff appeals from an order refusing a new trial.

Appeal by defendants- from a judgment of the district court for Freeborn county, Farmer, J., presiding. The condition of the mortgage in question is as follows, viz.: “Provided, nevertheless, that if the said William P. Sergeant and Harriet I. Sergeant and Robert 0.

Action to determine adverse claims to real estate, brought in the district court for Rice county. Defendant set up a lien on the premises under a mortgage from one Noska to himself, which mortgage was given to secure part of the purchase-money upon a conveyance of the land by defendant to Noska. The title which defendant claimed to have conveyed to Noska was acquired under tax sales.

Both of these actions were brought before a justice of the peace in Scott county, to recover the value of hay alleged to have been destroyed by fire occasioned by sparks emitted from locomotives of defendant. The plaintiffs having recovered judgments before the justice, the defendant appealed to the district court, where the actions were tried before Macdonald, J., and a jury.

Plaintiff brought this action in the district court for Hennepin county, to have a deed, absolute in form, of certain property in Minneapolis, made by plaintiff to defendant, declared to be a mortgage, to restrain the defendant from conveying the property, and for leave to redeem.

The plaintiffs in this action are the owners of land fronting and abutting upon a public highway, commonly known as a territorial road, running from St. Paul to Minneapolis. The defendant has excavated a cut six feet deep and six hundred feet in width across this highway a short distance from the land of plaintiffs.

Action of ejectment brought by plaintiff in the district court for Hennepin county. Defendant, upon the trial before Young, J., and a jury, had a verdict, and plaintiff appeals from an order refusing a new trial. The facts appearing in evidence are stated in the opinion.

Appeal by defendant from an order of the district court for Lyon county, Webber, J., presiding, granting a new trial. The case is stated in the opinion. cited Cooley on Torts, 186; 2 Addison on Torts, 742; 2 Greenl. Ev. § 452; Graves v. Dawson, 39 Am. Bep. 429; Thompson v.Lumley, 50 How. Pr. 105; Laird v. Taylor, 66 Barb. 139; Pratt v. Page, 18 Wis. 337; Morrow v. Wood, 35 Wis. 59; Winn v. Peckham, 42 Wis. 493.

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

Appeals by defendants Louis P. Crevier and C. C. Bennett from a judgment of the district court for Hennepin county, entered upon default, and from an order by Loehren, J., refusing to set aside the service of the summons.

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

Appeal by defendant from an order of the district court for Henne-pin county, Lochren, J., presiding, refusing a new trial. The case is stated in the opinion. cited McCarthy v. Grace, 23 Minn. 182; Horton v. Williams, 21 Minn. 187; Goebel v. Hough, 26 Minn. 252; Bank of Farmington v. Ellis, 30 Minn. 270. cited Fletcher v. Neudeck, 30 Minn. 125, and North Star Boot é Shoe Go. v. Ladd, 32 Minn. 381.

By Sp. Laws 1876, c. 132, the defendant Daniel P. Brawley was granted a special ferry franchise for the Bed river, at St. Vincent, upon the conditions stated in the opinion. This act of the legislature was repealed by Sp. Laws 1881, c. 364, approved February 24,1881. On May 20, 1879, defendant Brawley assigned to plaintiff one-half interest in the ferry franchise. In April, 1881, the county commissioners of Kittson county, under the authority of Sp.

' Plaintiff recovered a judgment before M. M. Shields, justice of the peace for Scott county, from which judgment defendant appealed to the district court.

Appeal by the relator from an order of the district court for Washington county, McCluer, J., presiding, refusing a peremptory writ of mandamus. The affidavit of relator, as recited in the alternative writ, stated that on August 19, 1884, on relator’s complaint, the respondent, a justice of the peace of Baytown, and village justice of the village of South Stillwater, in that county, issued a warrant and caused the arrest of one Yorks, charged by relator with assault.

Action to enforce a mechanic’s lien, brought by plaintiffs, as part-Hers, in the district court for Ramsey county.

<p>Partnership to Buy and Sell Land — Fraud of One Partner in Purchase —Transfer to Third Person without Consideration — Trust.—H., T., and R. agreed to purchase together real estate, each to pay one-third of the cost, and that when sold the profits should be divided equally between them. T. called the attention of the others to a lot offered for sale at $2,500, and advised its purchase. While they were considering it, T. clandestinely agreed with the seller that if he, T., procured a purchaser for the remainder at $2,500, the seller would for his services convey to him a designated part of the lot. T. thereupon falsely told IT. and It1., that the designated part had been sold to another person, but that the remainder could still be purchased at $2,500, and advised its purchase, and on his recommendation the purchase was made, each paying one-third of the price, and such remainder of the lot was conveyed to the three, and at T.’s request the seller conveyed the designated part to 0., for no consideration other than the agreement between the seller and T. Held, .that 0. is to be regarded as holding the said designated part of the lot in trust for H. and B,., to the extent of their agreed interest in the venture..</p>

Plaintiffs brought this action before a justice of the peace in McLeod county, to recover the value of a horse alleged to have been killed through the negligence of defendant’s employes. Judgment having* been rendered in favor of plaintiffs, the defendant appealed to the district court for the same county, where the action was tried before Macdonald, J., and a jury, and plaintiffs had a verdict. A new trial was denied and judgment was entered, from which defendant appeals.

Ejectment. Appeal by plaintiffs from a judgment of the district court for Anoka county, where the action was tried by Koon, J., without a jury. Defendant’s title was under a judgment and sale, in 1875, for taxes for the year 1874.

Appeals by defendants from orders of the district court for Ramsey county, Simons, J., presiding, overruling their separate demurrers to the complaint.

Plaintiff brought this action in the district court for Hennepin county, upon a promissory note and an alleged balance due on an account stated, with interest, amounting in all to $284. The answer sets up three counterclaims, viz.: First, $110 for labor and services in purchasing a lot for plaintiff; second, $25 for labor and services in collecting money; and third, $15, money paid out for plaintiff.

Action to determine adverse claims to real estate, brought in the district court for Freeborn county. The complaint alleged that plaintiff was the owner and in possession of the land in question. The answer of the defendant, Daniel E. Dwyer, was a general denial.

<p>Appeal from an order of the district court for Stevens county, Brown, J., presiding.</p>

Appeal by defendants from an order of the district court for Ramsey county, Simons, J., presiding, overruling a demurrer to the complaint. The complaint fails to state a cause of action at law, for the reason that such an action, brought by partners against partners, is not maintainable except under a few well-understood exceptional circumstances, none of which are stated in this complaint.

<p>Appeal by plaintiff from an order of tbe district court for Anoka county, Lochren, J., presiding, refusing a new trial.</p>

On January 14, 1884, in an action against this defendant, commenced in the United States circuit court for the district of Minnesota, an indebtedness owing to the defendant was attached by garnishment. Thereupon, on January 22,1884, the defendant made an assignment under the provisions of Laws 1881, c. 148, for the benefit of those creditors who should file releases, to James A. Owens, who duly qualified and took possession of all the defendant’s property.

<p>Appeal by plaintiff from a judgment of the municipal court of Minneapolis.</p>

Plaintiff brought this action in the district court for Waseca county, to recover possession of certain real estate together with damages for withholding the same. The defendant denied plaintiff’s title, and set up the condemnation proceedings which were considered by this court in Minn. & St. L. Ry.

On April 7, 1874, one J. P. Wilson made and delivered to one B. T. Welles his promissory note for the sum of $1,000, due three years after date, and, to secure its payment, executed and delivered a mortgage upon certain real estate. On March 10, 1876, Welles assigned the note and mortgage to one William A. Richards. On October 7, 1876, Richards assigned the note and mortgage to one W. W. G-ibbs, as security for a debt.

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

Action in tie district court for Hennepin county, to determine adverse claims, and to have a certificate of sale on execution under which defendant claims title adjudged void. The action was tried by Young, J., without a jury, and judgment directed for plaintiff, from which defendant appeals.

Action brought by plaintiff in the district court for Hennepin county, against the city of Minneapolis and the Erie Telegraph and Telephone Company, to recover damages for personal injuries. Plaintiff had a verdict, and both defendants appeal from an order by Koon, J., refusing a new trial.

Action to determine adverse claims to real estate. Appeal by plaintiff from an order of the district court for Hennepin county, Lochren, J., presiding, refusing a new trial.

Appeal by plaintiff from an order of the district court for Henne-pin county, Lochren, J., presiding, refusing a new trial.

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

Appeal by defendant Jacoby from an order of the municipal court ■of Minneapolis, refusing a new trial. A former appeal is reported ante, p. 21.

Separate appeals by the defendants from orders by Start, J., refusing a new trial, after a trial by the court, a jury having been waived.

Ejectment. After the decision in this action, reported 32 Minn. 228, the defendant demanded a second trial, at which a verdict was directed by Koon, J., for plaintiff. Defendant appeals from an order refusing a new trial. Plaintiff, as purchaser under the certificate, is entitled to maintain this action to recover possession of the land. Gen. St. 1878, c. 38, § 17.

Plaintiffs brought this action in the district court for Hennepin county, to recover compensation for driving logs owned by defendant and which were intermingled with those of the plaintiffs. Defendant appeals from an order by Young, J., refusing a new trial, after a verdict for plaintiffs.

Appeal by defendant from an order of the district court for Le Sueur county, Macdonald, J., presiding, refusing a new trial, after a verdict of $3,500 for plaintiff.

On April 19,1870, the city council of St. Anthony duly passed an ordinance relating to the width of sidewalks and the planting of shade trees, in which it was provided that in streets eighty feet wide, twenty feet in width on each side should be reserved for sidewalks, and that on this space of twenty feet, at specified places, the property owners might plant shade trees and protect them by fences while young. By Sp.

Plaintiffs, having commenced an action in the municipal court of St. Paul against one Vaughan, duly garnished S. P. Crosby, whose disclosure was regularly taken.

Action of ejectment, brought by plaintiff in the district court fori Hennepin county.

Anna R. Mintzer, widow of deceased, filed a claim in the probate court for Ramsey county for money loaned to him in his lifetime. The probate court disallowed the claim, and an appeal was taken to the district court, which was tried by Brill, J., without a jury, and judgment directed and entered disallowing the claim, from which judgment the widow appeals.

Upon the information of the relator, alleging his appointment and qualification as surveyor general for the first district of the state, that the respondent, which was incorporated under Laws 1883, c. 138, has appointed and designated one Judson W. MeKusick as its surveyor, and has undertaken to confer upon said McKusiek authority to scale all logs in the first lumber district of the state; that the respondent has appointed a secretary for the purpose of keeping á record of…

<p>Complaint — Vendor’s Lien for Unpaid Purchase-Money. — A complaint, alleging, among other things, a sale of land for an agreed price, to be paid upon the delivery of the deed, alleging the delivery of the deed, and the payment at that time of only a part of the price, but that the “ defendant agreed to pay to the plaintiff the balance of said purchase-money within a few days thereafter,” construed as not showing the making of a new contract indefinitely extending the agreed time of payment. Complaint considered as sho wing a right to recover the unpaid purchase-money, and the existence of a vendor’s lien, on account of the same.</p>

Plaintiff brought this action in the district court for Otter Tail county to recover the price of brick sold to the defendant, under the writing set out in the opinion. The defendant in his answer pleaded (among other things) a counterclaim for commission on brick sold by plaintiff in Fergus Falls.

Appeal by Louisa Post and another, executrices of said estate, from an order of the district court for Ramsey county, Simons, J., presiding, affirming a judgment of the probate court.

Defendant was prosecuted before a justice of the peace of Ohippewa county on a complaint, subscribed and sworn to before the justice, and charging “that on the 4th day of July, A. D. 1884, at Milan, town of Krageri, in said county, Neis Nerbovig did unlawfully sell and barter spirituous, vinous, fermented and malt liquors in less quantity than five gallons at one time without first having obtained a license therefor from the county commissioners of said Chippewa county,…

<p>Appeal by plaintiff from an order of the district court for Bamsey county, Simons, J., presiding, refusing a new trial.</p>

<p>Action on Contract—Counterclaim admits Performance.—Mason v. Heyward, 3 Minn. 116, (182,) followed, to the effect that a defendant, by pleading a counterclaim for breach, of the contract which is the subject of the action, disables himself to claim as a bar to the action that plaintiff has not performed the contract.</p> <p>Same—Charge of Court as to Excuse for lion-performance.—Where plaintiff had not performed his contract within the stipulated time, a charge that nothing but acts of defendant preventing snch performance will excuse the non-performance, renders it unnecessary for the court to refer to other matters, and charge that they would not excuse.</p> <p>Same—Burden of Proof.—The refusal of the trial court, when requested, to instruct the jury upon which party the burden of proof of a fact rested, sustained, on the ground that under the circumstances of the case it might mislead the jury.</p> <p>Contract—Decision of Agreed Third Party as to Completion.—Where an owner and a contractor to construct or do work upon a building agree that a certain person shall determine when the work is completed, the bona fide decision of such person is binding.</p> <p>Note. On reargument, at October Term, 1885, the foregoing decision was reversed, the court holding that the rule in Mason v. Heyward, 3 Minn. 116, (182,) had been abrogated by Laws 1883, c. 101. Sée Trainor v. Worman, 25 N. W. Rep. 401, to appear in 34 Minn. — [REPORTER.</p>

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

Plaintiff brought this action in the district court for Goodhue county,, to recover damages for an alleged breach of warranty made by defendants on a sale of a harvesting machine. Defendant Higham appeals from an order by McCluer, J., refusing a new trial, after a verdict for plaintiff.

Plaintiff brought this action in the district court for Douglas county, to recover damages for an alleged breach of warranty made by defendant (a corporation) on the sale of a harvester and binder. Defendant appeals from an order by Collins, J., refusing a new trial, after a verdict for plaintiff.

Appeal by plaintiffs from an order of the district court for Henne-pin county, Koon, J., presiding, refusing a new trial after verdict for defendants.

<p>Sale — Evidence—Order-List.—Where a witness, who personally sold a bill of goods selected by a buyer, and caused a memorandum of the same to be entered on <a list or order blank, is able to verify the list as correct, such memorandum or order may be received in evidence as a statement or account in detail of the goods testified to by the witness as having been sold by him.</p> <p>Same — Sale by Sample — Acceptance and Part-Payment. — Where goods sold by sample were received by the buyer and retained, and a portion thereof sold by him, without any objection in respect to their character or quality for several months, and until after suit brought, and he had in the mean time paid a portion of the price, and tendered his notes for the balance, held to be evidence sufficient to support a finding by the jury that the goods were of the description ordered.</p>

The defendants purchased a harvesting and binding machine of plaintiff, as agent for George Esterly & Son, for the sum of $300, and in part-payment gave two promissory notes, each for the sum of $100. This action was brought in the district court for Wabasha county, to recover the amount of these notes, which plaintiff alleges were duly sold and transferred to him, though not indorsed by the payees.

Plaintiff brought this action in the district court for Olay county, upon a promissory note for a first cause of action, and to recover the agreed price of services rendered in superintending defendant’s farms as a second cause of action.

Appeal by defendant from an order of the district court for Henne-pin county, Young, J., presiding, striking out the answer as sham.

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

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

The complaint in this action, commenced in the district court for Hennepin county, alleges a copartnership between plaintiff and defendant under the following agreement, viz.: “Memorandum of agreement made this 20th day of November, 1882, between A. G. Bausman, party of the first part, and P. M. Woodman, party of the second part, witnesseth: 1st. That they do hereby enter into an agreement for the publication of Woodman’s Court Almanac and Lawyers’ Diary for the years 1883…

On August 4, 1884, the board of supervisors of the town of Scam-bler, Otter Tail county, filed in the town clerk’s office their order and determination laying out a highway in said town, and awarding to Peter P. Restad $.10 damages. On September 1,1884, Restad duly served notice of appeal, in which he claimed $250 damages, upon the chairman of the board, and on September 2, 1884, filed the bond on appeal in the office of the clerk of the district court.

Appeal by defendant from a judgment of the district court for Hen-nepin county, Lochren, J., presiding. A former appeal in this action is reported in 31 Minn. 367.

Appeal by defendant from a judgment of tbe district court for Hen-nepin county, and also from an order by Young, J., refusing a new. trial, after a verdict for plaintiff.

Action of ejectment brought in the district court for Murray county against one Malhoit. The complaint of the intervenor denies plaintiff’s title, and, among other things, alleges title in itself acquired in. the following manner: In August, 1876, one N. P. Shepard, the husband of plaintiff, was county treasurer, and was robbed of the county funds, thereby becoming indebted to the county in a large sum.

By Sp. Laws 1881, c. 188, approved February 10,1881, there was created the board of water commissioners of the city of St. Paul. On April 15,1884, this board made and entered into a contract with the firm of Hough & Gear for the construction of a portion of the line of conduit of the water-works of the city.

Mandamus. Appeal by the Board of Park Commissioners from an order of the district court for Hennepin county, Young, J., presiding, directing a peremptory writ to issue, commanding respondent to pay to relator, or to set aside and deposit for relator, the amount of the damages awarded to her for taking land for park purposes.

In this matter the executors of the deceased appealed to the district court for Mille Lacs county from an order of the probate court, allowing the claim of one B. 0. Gile against the estate of their testator for $200, alleged to be due on the special contract set out in the opinion. The appeal was tried before Collins, J., and a jury, and a verdict was rendered allowing the claim. The executors appeal from an order refusing a new trial.

On December 31, 1883, a writ of attachment, issued from the district court for Hennepin county, was duly levied on a portion of the stock of Yan Norman & Brother, a copartnership doing business at Minneapolis. On the same day Yan Norman & Brother made an assignment to plaintiff under the insolvent law. Laws 1881, c. 148.

In proceedings in the district court for Hennepin county to enforce payment of the taxes for the year 1882, application was made for judgment against certain land owned by the defendant railway company. Upon the application, made before Young, J., the defendant appeared and objected, upon the ground that the land was conveyed to it on July 5, 1882. This the court found to be the fact, and ordered judgment for defendant, from which judgment the plaintiff appeals.

Quo warranto. Application by relator for leave to file an information in the nature of a quo warranto, upon a complaint and affidavit alleging that at a municipal election in the city of St. Paul, held May 5,1885, for the office of alderman of the second district of the first ward of that city, the relator received the greatest number of legal votes for such office; that the judges of election for such district duly canvassed the votes and returned that relator received 526…

In proceedings in the district court for Ramsey county, to enforce payment of taxes delinquent on June 1, 1883, application was made for judgment for the tax of 1882 and prior years against certain pieces of land, the title to which was in the defendant railway company. Upon the application, before Brill, J., the railway company appeared and objected, claiming the lands to be exempt under Gen. St. 1878, c. 11, §§ 128, 129.