Volume 33 — North Dakota Reports

Appeal .from the District Court of Cass County. Polloclc, J. In legal effect, this action is by Cass county against the defendant. The cause of action accrues when consequential injury has followed official nonfeasance or misfeasance, and not before. Northern Trust Co. v. First Nat.

Action to recover on a fire insurance policy. Verdict and judgment for the plaintiff, which is set aside and a judgment notwithstanding the verdict entered for the defendant. Plaintiff appeals. Statement of facts by Bruce, J. This is an action to recover on a fire insurance policy, and the appeal is from the action of the district court in setting aside a verdict for the plaintiff and entering judgment for the defendant notwithstanding the same.

<p>Appeal from District Court of Bottineau Oounty, Burr, J.</p> <p>John Miller was convicted of crime and appeals.</p>

Tbe plaintiff, a minority stockholder in tbe corporations, defendants, bas tbe right to maintain this action and to tbe in junctional relief asked. 10 Cyc. 968, 985, 986; 2 High, Inj. §§ 1203 — 1205, 1207; 3 Pom. Eq. Jur. 3d ed. 1093; 2 Clark & M. Corp. 539, pp. 1667 — 1673; 4 Tbomp. Corp. § 4502; 5 Thoinp. Corp. § 5693; Stewart v. Erie & W. Transp.

In cases where usury has been charged and not paid, and the usurer brings an action upon his contract, the illegality of the contract may be alleged as a defense, and if established, the entire interest due upon the contract becomes forfeited, and no recovery can be had upon contract except the principal sum. Waldner v. Bowden State Bank, 13 N. D. 604, 102 N. W. 169, 3 Ann. Cas. 847; Grove v. Great Northern Loan Co. 17 N. D. 359, 138 Am.

This ease was taken for investigation and study in the practice court of the Law Department of our State University, and very creditable briefs were filed herein by consent of counsel by the following members of the Law Department, viz.: P. R. Bangs, J. Carl Loudon, C. B. Kelseh, Earl McFadden, and Franklin Page for plaintiff; and J. J. Mulready, C. F. Peterson, B. O. Angelí, Walter Scblosser, P. M. Paulson, and E. A. Sweggum for the Park Commission.

Original proceedings in this court by tbe State on tbe relation of B. Y. Moore, for tbe issuance of a writ prohibiting and énjoining tbe Commissioner of Insurance, State Treasurer, and State Examiner from establishing and operating a state bonding fund, as required by chapter 62, Laws of 1915. Tbe act contains an unwarranted delegation of judicial power to tbe state examiner and to tbe commissioner of insurance. State ex rel. Miller v. Taylor, 21 N. D. 11, 145 N. W. 428.

<p>Suit for supervising and aiding in the sale of a building and for premiums advanced by plaintiff upon insurance policies.</p> <p>Insurance — premiums — evidence — case — jury — sufficient to warrant submission to — sale.</p> <p>1. Evidence examined and held sufficient to require the submission to the jury of the first cause of action, to wit, the $500 services claimed by plaintiff to have been performed in looking after tbe building and aiding in effecting a sale.</p> <p>«Case — evidence — submission to jury — premiums — insurance policies.</p> <p>2. Evidence examined and beld sufficient to require tbe submission to tbe jury of tbe second cause of action, to wit, tbe premiums advanced upon the insurance policies.</p> <p>Evidence — conversation — between defendant and another — absence of plaintiff — exclusion.</p> <p>3. There was no error in excluding a conversation between defendant and one E. at which plaintiff was not present.</p> <p>Instructions of court — jury — proper.</p> <p>4. Certain instructions of tbe court set out in tbe opinion are without error.</p>

L. Nuchols, I. From an order denying defendant’s motion to be relieved from a default, he appeals. Excusable neglect in looking after his case, either by litigant or attorney, is a lack of attention to the progress of the cause, or failure to attend the trial, which is fully explained and justified by the peculiar circumstances of each case, and among the instances is the well-founded belief that the case would not be reached for trial as soon as it was.

<p>Suit for commission for furnishing purchaser for real estate, the terms of the listing contract being in dispute.</p> <p>Instructions to jury — commissions — real estate agent — furnishing buyer ” — contract.</p> <p>1. Instructions of the court examined and found correct in all particulars excepting the part which instructs the jury that the signing of exhibit “A” settled the controversy relative to the amount of the commission. Eor reasons stated in the opinion, this is error which necessitates 'a new trial.</p> <p>Defendant — letters — statements — inconsistent with present theory — admissions against interest.</p> <p>2. A certain letter written by defendant to a banker, containing statements inconsistent with his present theory of the commission contract, was properly received as an admission against interest.</p> <p>Plaintiff — defendant — dunning letter — threatened arrest — hias and prejudice — questions — examination of witness.</p> <p>3. It was error to ask the defendant whether he had not attempted to have plaintiff arrested for sending him a dunning letter, without first giving the witness a chance to admit his bias and prejudice against the plaintiff.</p>

From an order denying a motion for judgment notwithstanding the verdict or a new trial, defendant appeals. (Brief filed, by. way of written argument, in opposition to motion to dismiss appeal, but no authorities cited.) On motion to dismiss appeal. The motion, from the order denying which the appeal is taken, was not made within the statutory period.

Action to set aside a conveyance of real estate as an unlawful preference under the Federal bankruptcy act. Judgment for defendant. Plaintiff appeals. Statement of facts by Bruce, J. This is an action brought by the trustee of a bankrupt estate to set aside a conveyance of some 520 acres of land which was made by the debtor in bankruptcy, and to recover the same for the creditors of the estate.

From an order overruling a demurrer to the complaint, defendant • appeals. Champerty is a species of maintenance, and is defined as being a bargain with a plaintiff or defendant campum partiré to divide the land or other matter sued for between them if they succeeded, whereupon the champertor is to carry on suit for party at his own expense. 3 Bl. Com. 135 ; 1 Bouvier’s Law Diet.

From a judgment of the District Court of Burke County, Leighton,. J., defendants appeal. There was a bona fide indebtedness by Cornelius R. Pake to his wife, Frances E. Pake, and he had a right to pay to his wife the amount of such indebtedness. She was his creditor, and it was to pay her that the transfer was made. The common law recognizes the right-of the debtor to secure or pay one creditor in preference to another. Comp.

From a judgment of tbe District Court of Ward County, Leighton, J., defendant appeals. A contract for tbe sale of real property or an interest thereim, is invalid unless tbe same or some note or memorandum thereof is in writing and subscribed by the party to be charged, or by his agent. Rev. Codes 1905, § 5332. In the absence of fraud, mistake, or ambiguity, the accepted rule is that parol evidence is not admissible to vary or change the terms of a written instrument. Greenl.

F. F. Fislcy Special Judge. Action to recover from sheriff mileage collected by such sheriff for distance traveled by his deputy. Judgment for plaintiff.. Defendant appeals. The office of sheriff is on a salary basis, and all fees earned belong to the county, excepting mileage and livery hire. Comp. Laws 1913, § 3520. The mileage allowed is 10 cents per mile actually and necessarily traveled. Comp. Laws 1913, § 3521.

Plaintiffs appeal. The rule is that when an unauthorized amendment is stricken out, the parties are left in their former position. Bryant, Code PI. § 231; Frank v. Bush, 63 How. Pr. 282. A motion for an order must state the relief sought, and the order must be limited to the relief specified. The motion here was made too late, in any event. Barker v. Cook, 40 Barb. 254; Bowman v. Sheldon, 5-Sandf.‘657; District Ct.

Erom a judgment of the District Court of Burke County, Leighton J., defendant appeals. Upon a sale of a stock of goods, if both parties bave the same opportunity to examine tbe goods, neither can recover for fraud. Smith, Eraud, § 75. Failure to exercise ordinary care to avoid deceit will prevent recovery, and a recovery is barred by an opportunity to examine the property. Diligence is required of all parties. Smith, Fraud, §§ 3, 4, 61, 75, 85,. 86, 205; 2 Pom. Eq.

Action to recover commission on a sale of real estate. Judgment for plaintiff.. Defendant appeals. A broker is not entitled to compensation until he has performed the contract according to its specific terms, where there is no waiver, or ratification of other acts.

<p>Mortgagee — conversion — action for — cropping contract — tenant — owner of land — title to grain raised — to remain in owner — physical division of grain — equal parts — placed in different bins — knowledge of landlord— no objections — asserting claim — delay in — mutual account — unsettled — facts — jury — submission of case to — on questions of delivery and division — vesting title.</p> <p>1. Actions in conversion by mortgagee, plaintiff, for grain delivered elevator companies, defendants. W., owner of the land on which the grain was raised under a contract with his tenant B., intervenes, asserting that title to the grain had never passed to the tenant, and that plaintiff’s mortgage had never attached, and that intervener was entitled to said grain to satisfy his alleged claims against his tenant. The cropping contract was in the usual form, stipulating title as remaining in the landlord until after a division and delivery of the crop or its proceeds, and empowering the landlord to retain the crop or any portion thereof for any indebtedness due him from the tenant. A physical division of tlie grain into equal parts at the threshing machine was proven; also, that the portions were placed in different bins; that the tenant was permitted to hold his portion and store the same in Ms own name, understanding the same to be his share; that the landlord knew all this, made no objection, and took no steps for six weeks after threshing; and until long after marketing, to assert any claim to the tenant’s portion; that meanwhile the tenant had hauled to market the landlord’s portion, at his request, and as the landlord’s share and in compliance with the contract; that the tenant had paid- his portion of the thresh bill and performed all conditions of the contract, except one in which he was prevented during the summer by the landlord from completing; that the crop in question was raised the first year of a three years’ cropping agreement; that no formal settlement of accounts had been had or was had, although the tenant was released from further performance of the ■contract by the landlord the following spring; that there was a mutual account between the parties unsettled. The court permitted the landlord to show the full amount of his account against the tenant, but excluded proof offered by the plaintiff from the tenant that the landlord owed more than the latter owed the landlord, and that in fact the landlord had no charge or lien upon the grain at the time it was delivered at the threshing machine to the tenant and by him subsequently marketed.</p> <p>Note.- — Croppers, who they are, their title and their remedies is the subject of a note in 98 Am. St. Rep. 952.</p> <p>Croppers as tenants are discussed in note in 4 L.R.A.fN.S.) 698.</p> <p>Held: The facts were sufficient to authorize submission to the jury of whether a division and delivery with intent to vest title in the tenant had been made; and</p> <p>.Mutual accounts — landlord and tenant — between.</p> <p>2. The fact that a settlement of mutual accounts between the landlord and tenant had not been made is not necessarily controlling.</p> <p>Grain — conversion — landlord — extent of recovery — issues as framed — landlord’s claim — amount thereof — validity.</p> <p>3. In an action in conversion of grain and under issues as here framed by the pleadings, the landlord can recover only to the amount that will suffice to completely indemnify him from actual injury. It was therefore necessary to determine the validity and amount of his alleged claim and lien.</p> <p>Testimony — exclusion of — lien — waiver of — division — intent of parties — landlord — subsequent acts — amount of indebtedness.</p> <p>4. Under the pleadings and the proof the excluded testimony was admissible (a) on whether the landlord had not waived any lien he may have claimed upon the tenant’s share for advances; and (b) as bearing upon the intent with which the division was made and acts subsequent thereto were permitted by the landlord, and (c) as proper proof under the pleadings and the issues involved as to the amount the tenant was owing the intervener if he owed him anything at all.</p> <p>Plaintiff — jury — questions for — verdict — direction — error.</p> <p>5. Plaintiff was entitled to have the foregoing questions submitted to the jury,, and the direction of a verdict against plaintiff after the proof made was error.</p> <p>Judgments — appeals — orders — costs — taxation.</p> <p>6. As this appeal determines two actions, the judgments appealed from are ordered set aside and new trials are granted, with plaintiff’s costs to be taxed against the intervener. The elevator companies being mere stakeholders, no-costs will be taxed against them.</p>

Judgment for defendants. Plaintiff appeals. Statement of facts by Bruce, J. This is an action for a balance claimed to be due on an open account.

Action to recover on a contract for Hauling freight, BvMz, J. Appeal from the District Court of Burke County from an order setting aside a judgment and granting a new trial after a verdict had been directed for the defendant. Defendant appeals.

If § 2263 of tbe 1913 Compiled Laws is construed to mean that a petition once filed makes it tbe duty of tbe county commissioners to levy sucb tax each year thereafter, then tbe law is unconstitutional, in that it is a delegation of power to a minority of the voters of a county. N. D. Const, art. 2. This law is mandatory. No discretion is vested in the board of ■county commissioners. When a valid petition is filed, it becomes their duty to act at once and make the levy. Comp.

Tbe wife’s money cannot be used in payment of ber husband’s debts, ■without ber consent in writing. Williams v. Whiting, 92 N. O. 683; Rev. Codes 1905, §§ 5712-5723, 5775, Comp. Laws 1913, §§ 6281-6292, 6343. Tbe oral promise of tbe husband, acting as bis wife’s agent, to pay bis own debts out of her property, is not binding upon ber. Lowry v. Beckner, 5 B. Mon. 41.

Action for breach of promise of marriage. Appeal from order of District Court of Towner County denying motion for change of venue, Buttz, J. Statement of facts by Bruce, J. This is an appeal from an order of the district court denying a motion by the defendant for a change of venue in a case of breach of promise to marry.

From a judgment of the District Court of Foster County, Coffey, J., defendant appeals. In order for respondents to maintain their cause of action as pleaded, it was incumbent upon them to prove default in payment of the notes secured, or a breach of some condition of the mortgage. Madison Nat. Dank v. Farmer, 5 Dak. 285, 40 N. W. 345. In the absence of a statute, no formal language is necessary to constitute a valid demand.

In the absence -of a statute, the settlement and adjustment between the parties was an arbitration and award at common law, and as such will be upheld. Diederick v. Richley, 2 Hill, 271; Wood v. Auburn & R. R. Co. 8 N. Y. 160; Robertson v. M’Niel, 12 Wend. 578; Bum-side v. Whitney, 21 N. Y. 148; Pierce v. Kirby, 21 Wis. 125; Conger v. Dean, 3 Iowa, 463, 66 Am. Dec. 93; Wood v. Tunnieliff, 74 N. Y. 38.

Erom a judgment of the District Court of Stark County, Crawford, J., plaintiff appeals. The testimony of defendant himself proved the account upon which suit is brought, and made a prima facie case. As to payment, the burden of proof shifted to defendant. Second Nat. Bank v. Eirst Nat. Bank, 8 N. D. 53, 76 N. W. 504. The defense of payment must be specifically pleaded, and the burden is on defendant to prove it.

Appeals from orders of the District Court of Stark County, Crawford, J., denying applications to vacate judgments. The' manner of bringing a civil action on for trial is prescribed by our Code, and there is no other way, except by stipulation of parties and order of court thereon. Comp. Laws 1913, § 7610; 38 Cyc. 1271, 1275 et seq.; Miner v. Galvanotype Engraving Co. 30 Misc. 200, 61 N. Y. Snpp. 1102.

The foreclosure of a real estate mortgage by advertisement, by an assignee, where his assignment has not been duly recorded, is void. Hickey v. Eichards, 3 Dak. 345, 20 N. W. 428; Morris v. McKnight^ 1 N. D. 266, 47 N. W. 375.

Cooley, Special Judge. Action to compel the delivery of sheriff’s deed on a mortgage foreclosure sale. Judgment for defendants. Plaintiff appeals. Bedemption from the purchaser of real estate mortgage foreclosure must be made within one year. Franklin v. Wohler, 15 N. D. 613, 109 N. W. 56; Kenmare Hard Coal, Brick & Tile Co. v. Biley, 20 N. D. 182, 126 N. W. 241; Nichols v. Tingstad, 10 N. D. 172, 86 N. W. 694; Laws 1887, § 5151, Comp.

From an order of the District Court, Cooley, J., affirming final accounting in the Probate Court of Nelson County, plaintiff, a claimant, appeals. ■ It is the duty of the court to carefully scrutinize an account presented for settlement, and to reject any improper items therefrom, whether or not exceptions are interposed.

Prom a judgment of the District Court of Barnes County, Coffey, J., defendant appeals. While a wide discretion is vested in the trial court in the matter of the amendment of pleadings during the trial, or at any time prior or after, yet an amendment should not be allowed to make the pleading correspond to the proof, where the proof itself clearly shows a contradictory state.

Erom a judgment in intervener’s favor, plaintiff appeals. Good faith consists in the honest intention to abstain from taking an unconscionable advantage of another, even through the forms or technicalities of law, and an absence of all information or belief of facts that would serve as notice. Hunter v. Coe, 12 N. D. 505, 97 N. W. 869; Thompson v. Sioux Ealls Nat. Bank, 150 U. S. 231, 37 L. ed. 1063, 14 Sup. Ct.

<p>Husband’s affections — alienation of— by unmarried woman —action against — by wife — abandonment.</p> <p>1. An action by a married woman against an unmarried woman for alienation . of her husband’s affections will lie even though plaintiff’s husband has not completely and in a literal sense abandoned her.</p> <p>(Note. — The right of a wife under modern married women’s acts to sue for alienation of tbe affection of her husband is set forth in notes in 4 L.R.A.(N.S.) 643; •29 L.R.A.(N.S.) 842; and L.R.A.1915A, 67.</p> <p>Generally, on the wife’s right to sue for alienation of her husband’s affection, see also notes in 28 Am. St. Rep. 217 and 46 Am. St. Rep. 472.</p> <p>Wrongful acts of defendant — conjugal affection — society — wife deprived, of — marriage contract — injury — recovery.</p> <p>2. If through defendant’s alleged wrongful acts the plaintiff’s husband was induced and persuaded to deprive plaintiff of the conjugal affection and society which the marriage contract entitled her to enjoy, she has a right to recover for the injury thus inflicted.</p> <p>Personal relations — wife’s conjugal rights — violation of — protection.</p> <p>3. Section 4355, Comp. Laws 1913, which prescribes what is forbidden by the rights of personal relation, was not intended to prescribe the only rules of conduct as to the violation of the .wife’s conjugal rights. Held, further, following King v. Hanson, 13 N. D. 85, that subdivision 1 of said section gives to the wife the same protection as subdivision 2 gives to the husband.</p> <p>Liability — degree of fault — husband’s conduct — defendant’s conduct — exoneration.</p> <p>4. Defendant will not be exonerated from all liability merely because the-plaintiff’s husband may have been more blamable than defendant.</p> <p>Husband and wife — estrangement of wife — defendant — illicit relations with husband — action.</p> <p>5. The fact that plaintiff was estranged from her husband prior to his illicit relations with defendant will not defeat the action.</p> <p>Criminal conversation — action for — married woman — causes — allegations.</p> <p>6. Whether an action will lie by a married woman for criminal conversation, and also whether such a cause of action is alleged in the complaint, not decided for reasons stated.</p> <p>Illicit relations — direct proof of — not required — circumstantial evidence — sufficient.</p> <p>7. Direct proof of illicit relations is not required, circumstantial evidence being sufficient.</p>

From a judgment in plaintiff’s favor, defendants appeal. The fact that defendants in their answer did not assert the invalidity of the note because of its execution and delivery on a legal holiday does not preclude them from availing themselves of such defense. Jacobson v. Bentzler, 127 Wis. 566, 4 L.R.A.(N.S.) 1151, 115 Am. St. Rep. 1052, 107 N. W. 7, 7 Ann. Cas. 633. A loan of money on Sunday is void, and not subject to a ratification on a subsequent day.

From an order of the District Court of Stark County, Grawford, J., overruling demurrer, defendants appeal. The complaint states various separate causes of action, some in tort, some upon contract, and others seeking equitable relief, and against different defendants, not of the same class, the causes of action not common to all, and the liability of defendants, if any, being separate and distinct. Such a complaint cannot stand the ordinary test of pleadings.

<p>Complaint — first assailed —by general objection to evidence — trial court — all favorable presumptions indulged — construed as sufficient — when possible.</p> <p>1. Where a complaint is assailed for the first time by a general objection upon the trial, every presumption will be indulged in favor of the pleading, and the pleading construed as sufficient, if it is reasonably possible to do so.</p> <p>Trial court — complaint — construction of — answer — leave granted to amend — in conformity — cause — trial of — theory — defendant — appeal — cannot complain on.</p> <p>2. Where the trial court places a certain construction upon a complaint, and the defendant asks for and obtains leave to amend his answer to conform to the trial court’s construction, and the cause is tried upon such pleadings and such theory, the defendant cannot be heard to say on appeal that the trial court’s construction and rulings made prior to the amendment of the answer were erroneous.</p> <p>Goods sold — price or value — action to recover — burden of proof — contract of sale — terms thereof — price or value — delivery — acceptance — amount.</p> <p>3. In an action to recover the price or value of goods sold, the burden is on the plaintiff to prove, among other things, the existence and validity of the contract of sale, and the terms thereof, the price or value, the delivery and acceptance of the goods, and the amount thereof.</p>

<p>Thresher’s lien — statement for — trial of filing — waiver of right to lien — estoppel.</p> <p>1. Under § 6854, Comp. Laws 1913, which gives a thresher a lien upon the grain threshed “upon filing the statement provided for in the next section,” and under the next section (§ 6855) which provides that such statement may be filed within thirty days after the completion of the work, it is held that a thresher who, before the filing of any such statement, goes with the owner of the grain to the elevator and stands by and remains silent while such owner sells the grain and receives payment therefor, is afterwards estopped from asserting any such lien against such elevator company.</p> <p>Pleading — qualified general denial — conversion — estoppel or waiver — ownership of property — admission.</p> <p>2. Where a qualified general denial is filed in an action for the conversion of property, and such denial merely denies the allegations of the complaint, except “as hereinbefore are specifically and in words admitted,” and prior to such denial there is to be found in the answer a plea of estoppel or waiver which admits the ownership of the grain, such ownership will be deemed to be conceded by such denial.</p> <p>Facts — issues — pleading — admitted — court — instructions as to — jury — practice.</p> <p>3. Where facts and issues are admitted by the pleadings, the proper practice is for the court to instruct the jury as to the issues in the case and that such a fact has been admitted, rather than to allow the pleadings to be read in evidence to the jury or taken by them into the jury room.</p> <p>Lien statement — person — property — grain — price — amount — description.</p> <p>4. A lien statement is sufficient under § 6855, Comp. Laws, 1913, and sufficiently describes the person “for whom the threshing was done,” which names the person with whom the contract was made and who had charge of the operations and of the land, even though his interest in a part of the land was joint. (Following Dahlund v. Lorentzen, 30 N. D. 275.)</p>

An appeal from a judgment of tbe District Court of Pierce County, Burr, J., dismissing tbis action. The school board, under the law, had the power and it was its duty to designate depositaries where school funds could be deposited by the district treasurer. Such a designation was made in 1905, and bank designated, gave a bond as provided by law.

Where a note is assigned and later on the assignee and holder obtains from the maker a new note for the amount of the old or assigned note, in lieu thereof, and made payable to himself, it is founded upon a valuable consideration, and independent of that on which the original note was founded; a failure of consideration of the original note is no defense in an action on the latter. 8 Oyc. 36; Williams v. Bank, 1 Ind. 230.

By reason of defendants’ failure to perform their contract and do the plaintiff’s threshing in proper time, plaintiff was compelled to and did pay out for stacking the grain a large sum, and that by such failure of defendants he lost a large amount on the market price of said grain. Such damages are not too remote, hut are properly recoverable in this action. Such damages were in contemplation of the parties when they made their contract, and at the time of its breach.

Action to quiet title to land. Appeal from the District Court of- Adams County, W. G. Grawford, J. Judgment for defendants. Statement of facts by Bruce, J. This is an action to foreclose a real estate mortgage, the defense being usury, and a counterclaim being interposed by one of the defendants.

The question of constitutionality should not be passed upon. No one can be allowed to attack a statute as unconstitutional who has no interest in it or who is not affected by its provisions. The constitutional guaranties are for the benefit of those whose rights are affected. State v. McNulty, 7 N. D. 169, 73 N. W. 87; Clark v. Kansas City, 176 U. S. 114, 44 L. ed. 392, 20 Sup. Ct. Rep. 284; Cooley, Const. Lim. chap. 196; Re Wellington, 16 Pick. 96, 26 Am.

<p>Tublic highways — across public lands — congressional grant of — acceptance — user by the public — highway established — public authorities — positive act by — intent to accept — manifest.</p> <p>In order to constitute an acceptance of the congressional grant of right of way for public highways across public lands, there must be either user by the public for such a period of time and under such conditions as to establish a highway under the laws of this state, or there must be some positive act or acts on the part of the proper public authorities clearly manifesting an intent to accept such grant with respect to the particular highway in question.</p> <p>Note. — The annotation to Vogler v. Anderson, referred to in this opinion, in 9 L.E.A. (N.S.) 1223, on the effect of the mere use of a highway over the public domain as acceptance of the grant of the right of way, gives several other cases in accord with the case above; the case itself holding, as here, that the establishment of the public highway in some manner provided by statute is necessary to constitute an acceptance of the congressional grant of a right of way across public land and perfect the grant; and therefore a mere user short of the time necessary to establish title by adverse possession is not sufficient. - ■</p>

From a judgment of the District Court of Traill County, Pollo oh, J. Defendant appeals. The statute defines no crime, nor has the legislature created thereby any crime; the statute is void because it delegates legislative powers to the court or to the jury. It is well settled that the functions of government must be kept separate, and the delegation by the legislature of its powers to other departments of government has always been held unconstitutional.

<p>Conversion of grain — chattel mortgage — action for — mortgagee — prima facie case — mortgagor — interest in property — subject of mortgage — filing — grain — sold to defendant — identification of grain — lease — tenant.</p> <p>A plaintiff makes out a prima facie case in an action for the conversion of grain upon which it holds a chattel mortgage, by showing that its mortgage covers the half interest of the mortgagor in grain grown upon a certain tract of land, that the mortgage was on record, and that all of the grain raised on said land Was sold to the elevator company by the tenant and mortgagor, that it was raised on said land by the mortgagor, and that said mortgagor was farming and in possession of the premises, and this without actually introducing in evidence the lease, if any, under which the tenant held.</p>

From a judgment in defendant’s favor, plaintiff appeals. Tbe transfers bere involved were in fraud of creditors of tbe vendor and void. Rev. Codes 1905, § 6637; Civ. Code 1877, § 2023; Rev. Codes 1899, § 5052; Comp. Laws 1913, §§ 5849, 5850; Baulson v. Ward, 4 N. D. 100, 58 N. W. 792. Tbe grantee, at tbe time of tbe transfer, bad knowledge of tbe fraudulent intent of tbe grantor, and sucb transfer is void for tbis reason. Tbe grantee’s title was tainted witb tbe actual fraud.

<p>This case is governed by Lee v. Imperial Elevator Oo. 34 N. D. 1, just decided by this court. In this case, however, exception is taken to the remarks of one of the counsel for plaintiff, who asserted that it was the policy of corporations to fight claims of this class, whether right or wrong. The court immediately admonished the jury that there was no evidence supporting such statement and to disregard the same. Eeld that the incident was without prejudicial error.</p>

From a judgment of the District Court of Benson County, Butiz, J.. Defendant appeals. A breach of a contract consists of “the violation or nonfulfilment of an obligation, contract, or duty.” “The Commission of some act or the omission of an act specified or implied in the contract.” Black’s Law Diet.; People ex rel. Johnson v. New York Produce Exch. 8 Misc. 552, 29 N. Y. Supp. 307; James v. Adams, 16 W. Va. 267; Davis v. Bronson, 2 N. D. 300, 16 L.E.A. 655, 33 Am.

<p>Promissory note — suit on — purchaser in due course — before maturity — without notice — defenses — maker — answer of — proof of — non-negotiable — when executed and delivered — materially altered — after delivery.</p> <p>1. In a suit on a promissory note by a purchaser in due course before maturity and without notice of any defenses, the maker may answer and thereunder oiler proof to establish that when executed and delivered the note was non-negotiable and contained no words of negotiability, but that it had been materially altered by their insertion after delivery and before its purchase; and that this alteration was made by the erasure of a line striking out all words of negotiability.</p> <p>Note — payee named — “the order of” —omitted — words of negotiability — similar import — not contained — non-negotiable.</p> <p>2. An instrument payable to a person named, omitting “the order of,” or words of negotiability of similar import, is non-negotiable under the uniform negotiable instruments act, as .declared by § 6893, Comp. Laws 1913.</p>

John U. Remmi> J. From a judgment in plaintiff’s favor, defendant appeals. The special contract claimed by the defendant, whereby plaintiff was to take, and did take defendant’s litigation shown in the record on a contingent fee basis, was not and is not champertous, but was and is a valid contract for professional services. Sedgwick v. Stanton, 14 N. T. 289; Huber v. Johnson, 68 Minn. 74, 64 Am. St. Rep*. 456, 70 N. W. 806; cases cited in 6 Cyc. 858, notes 38, and 39.

Action to recover damages for personal injuries. Appeal from the District Court of Stutsman County, Coffey, J. Judgment for plaintiff. Defendant appeals.

<p>Real éstate mortgage — action to foreclose — material alterations — defense of —trial de novo — questions of fact — evidence.</p> <p>Action to .foreclose real estate mortgage. Defense: material alterations of tire notes and mortgage; trial de novo in this court. The only question involved is whether the notes and mortgage in question were changed from $800 to $844.45, 'before or after their execution. The evidence is examined and held that the notes and mortgage in question had not been changed in any particular since their execution.</p>

<p>Verdict — refusal to direct — close of plaintiff’s case — motion for — by defendant — evidence after — by defendant — renewal of motion — must be — error.</p> <p>1. Error cannot be predicated upon a refusal to direct a verdict at tbe close of plaintiff’s case, when testimony is thereafter offered by defendant, unless the motion is renewed at the close of all the testimony.</p> <p>Jury — instructions of court.</p> <p>2. Certain instructions to the jury considered and held nonprejudicial.</p> <p>Instructions — correct as given — incomplete — more specific — more comprehensive— request fox' —must be made.</p> <p>3. Where an instruction ib correct as far as it goes, error cannot be assigned on the ground that it is not sufficiently full or explicit, unless request is made for more specific and comprehensive instruction.</p> <p>Witness — questions — objections — sustained — error — curing — full testimony on same matters.</p> <p>4. The error, if any, in sustaining objections to questions propounded to a witness is cured where the witness elsewhere in his testimony is permitted to testify fully upon the matters covered by such questions.</p>

<p>Action in' claim and delivery. Plaintiff demands possession of enough grain to satisfy a thresher’s lien. Appellant argues three groups of errors which we cannot sustain, for the reasons stated below:</p> <p>Claim and delivery — action in — thresher’s lien — errors — evidence — defendant— grain beyond control — admission of —admitted fact.</p> <p>1. An examination of the evidence discloses that defendant admitted that, the grain was beyond his control. It was therefore not error to exclude further evidence of this admitted fact.</p> <p>Thresher’s lien — evidence — offered in —exclusion—grain — unidentified.</p> <p>2. It was not error to reject the thresher’s lien when offered in evidence. The evidence disclosed that the grain in question could not be identified as having been grown upon the land covered by the lien.</p> <p>Offer of proof — lien — erroneously drawn — intention.</p> <p>3. It was not error to reject plaintiff’s offer to show that the lien was not intentionally erroneously drawn.</p>

The agreement of a grantee of an interest in real property to assume encumbrances thereon need not be in any stated form. It may be in the instrument under which the grantee acquires title, or by a separate written instrument, or it may even rest in parole, and in such case is not within the statute of frauds.

From a judgment of the District Court of Steele County, Pollock? L, defendants appeal. Fraud is a question of fact in this jurisdiction, and must be pleaded. The bill of sale upon which appellants relied could only be impeached for fraud, and since this was not pleaded, the court’s ruling thereon was error. Harkins v. Cooley, 5 S. D. 227, 58 N. W. 560; Cobb v. Cole, 55 Minn. 235, 56 N. W. 828, 51 Minn. 48, 52 N. W. 985; 8 Ene. PL & Pr. p. 945, notes 1 and 2; State ex reí.

Action for maliciously biting tbe ear of plaintiff. Appeal from tbe District Court of Cavalier County, Kneeslum, J. Judgment for plaintiff. Defendant appeals. Statement of facts by Bruce, J. Tbis is an action to recover damages for an assault and battery, and tbe defendant appeals from a judgment wbicb was rendered against bim.

Erom a judgment of the District Court of Cavalier County, Kneeshaw, J., defendant appeals. Parol evidence is always admissible to show a consideration for a written contract, and when that consideration consists in whole or in part of a dependent contract to be performed by the other party, such contract may be shown, and the failure to perform may also be shown by parol evidence, even though such contract be in writing. 1 Greenl.