Volume 34 — Minnesota Reports

Appeal by defendant from an order of the district court for Hen-nepin county, Koon, J., presiding, refusing a new trial.

Appeal by plaintiff from an order of the district court for Swift county, Brown, J., presiding, setting aside a service by publication of the summons in this action upon defendant Haselton. The order was made upon the failure of plaintiff to appear upon the return-day of an order to show cause why such service should not be set aside.

Appeal by defendants from an order of the district court for Wa-seca county, Buc.kham, J., presiding, overruling a demurrer to the complaint.

Appeal by defendant from an order of the district court for Clay county, Stearns, J., presiding, refusing a new trial, after a verdict finding the defendant guilty of’ manslaughter in the second degreé.

<p>Practice — New Trial — Insufficiency of Evidence. — An order of the trial court, granting a new trial for insufficiency of the evidence, affirmed, in accordance with the rule declared in Hicks v. Stone, 13 Minn. 398, (434;) Bheiner v. Stillwater Street By. & Transfer Co., 29 Minn. 147; and other cases.</p>

Appeal by plaintiff from an order of the district court for Hennepin ■ county, Young, J., presiding, sustaining a demurrer to the complaint. cited Fitzgerald v. St. P., M. é M. Ry. Co., 29 Minn. 836; Hartfield v. Roper, 21 Wend. 615; Abbott v. C., M. é St. P. Ry. Co., 30 Minn. 483.

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

Action in the district court for Hennepin county to determine adverse claims to real property lying in the city of Minneapolis. Upon the trial, before Young, J., the plaintiff introduced in evidence a tax judgment and certificate of sale. The only evidence introduced by defendants was for the purpose of showing payment of the taxes for which the judgment was rendered. Judgment was entered for plaintiff, and defendants appealed.

Appeal by plaintiff from an order of tbe district court for Washington county, MeCluer, J., presiding, refusing a new trial.

Plaintiffs brought this action in the district court for St. Louis county, to recover $1,850, on the cause of action stated in the opinion. At the trial before Stearns, J., and a jury, plaintiffs had a ver-diet for $1,737.96. Defendants having moved for a new trial, the court ordered that a new trial be had unless the plaintiffs should remit from the verdict all in excess of $1,505.80, but that, on plaintiffs making such remission, no new trial should be had.

Plaintiff brought this action in the district court for Steele county, to recover damages for trespass upon his land. The defendant pleaded that the locus in quo was a public highway.

<p>Contract to Deliver Material for Work to be Completed by Certain Day. — In case of an agreement to deliver materials for the performance of work contracted to be completed by a certain day, in wbieb no time of delivery is specified, delivery must be made within a time reasonable, in view of the circumstances of each party at the date when the agreement is entered into as respects such materials, so far as these circumstances are then known to the other party. Application of this rule to the facts and evidence of the case at bar.</p> <p>Same — Payments on Delivery of Instalments — Effect of Befusal to Pay.— Where, by the terms of an agreement to furnish materials as above, payments therefor are required to be made from time to time, at times specified, if, upon specific demand of payment, with notice that it will be insisted on as a condition of further delivery of materials, payment is refused, the other party may properly refuse to continue to furnish materials. Robson v. Bohn, 22 Minn. 410, and 27 Minn. 333.</p>

Plaintiffs brought this action in the district court for Olmsted county, praying judgment (1) for damages for defendant’s wrongful entry upon their improved land, and removal of fences, etc.; (2) that defendant has no right of way or easement over the land in question ; (3) for an injunction to restrain further trespass by defendant.

Plaintiff, a boy of 19 years, was employed by defendant about its tracks in St. Paul, in spiking rails and shovelling. On the night of June 10, 1884, the Union Passenger Depot in that city was partially destroyed by fire. In the morning of June 11th, by order of one Brennan, the defendant’s roadmaster, and of one King, the foreman of the gang in which plaintiff was working, the plaintiff was set to work at removing the ashes and debris in the depot.

Plaintiff, as assignee in insolvency of one Jacob Deutsch, brought this action in the district court for Hennepin county, against the defendant bank, the clerk of the court, and the sheriff of the county, to restrain an execution sale under a judgment in an action by the bank against Deutsch, and to amend the record and files in that action (which showed a filing of the complaint on October 28,1884,) so that they should show that the complaint was filed December 2, 1884.

Appeal by plaintiff from an order of the district court for Kandi-yohi county, Brown, J., presiding, refusing a new trial after verdict for defendant. The action was brought to recover damages for the destruction of plaintiff’s grain elevators, with their contents, by fire alleged to have been negligently suffered by defendant to escape from one of its locomotives.

Appeal by defendant from a judgment of the district court for Bice •county, where the action was tried before Buekham, J., and a jury, a verdict rendered for plaintiff, and a motion for a new trial denied.

Defendant was arraigned before the city justice of the city of Rochester, in Olmsted county, on a complaint for selling intoxicating liquor to an habitual drunkard. He pleaded not guilty, and thereupon moved to dismiss the complaint for want of jurisdiction of the court over the offence charged. The motion was denied, and defendant demanded a jury trial. Thereupon a jury was summoned and impanelled in the manner provided by the city charter, (Sp.

Appeal by plaintiff from an order of the district court for Hen-nepin county, Koon, J., presiding, refusing a new trial.

■ This is an appeal by plaintiff, and the next following case is an appeal by defendants, from orders of the district court for Eamsey county denying their respective motions for a new trial, after a trial before Wilkin, J., and a jury, and verdict of $4,303.09 for defendants.

This is an appeal by defendants from an order of the district court for Ramsey county, denying their motion for a new trial after a trial before Wilhin, J., and a jury, and verdict of $4,308.09 in their favor. A statement of the pleadings is contained in the report of the last preceding case, which was an appeal by the plaintiff from an order denying its motion for a new trial.

<p>Railroad Company — Designation of Elevator for Receipt of Grain— Laws 1874, e. 81. — Under chapter 81, Laws 1874, (Gen. St. 1878, c. 124, §§ 7, 8,) if a railroad company itself furnished at one of its stations suitable warehouse facilities for receiving, handling, storing, and delivering, at the rates fixed by law, all grain designated for transportation over its road, it might designate such warehouse or elevator as the exclusive place at such station at which it would receive grain for shipment, and might refuse to receive it or to furnish cars for its shipment at any other place.</p> <p>Same — Duty to Furnish. Cars for Grain.' — But if it failed or refused to furnish such facilities, or on the terms designated, it was required, upon reasonable notice, and when able to do so, to furnish cars in which to ship grain out of any warehouse adjoining its track or side track at such station.</p> <p>Same — Creating Elevator Monopoly for Benefit of Third Person. — In this case, the railroad company designated the elevator of one Sawyer as the exclusive place at which it would receive grain for transportation, and refused to furnish ears to any other warehouseman at this station. Sawyer operated this elevator in his own name and as his own personal business, and not as agent for the railroad company, so that every one depositing grain in the elevator contracted with Sawyer individually, and not with the railroad company. The railroad company, byrefusing to furnish cars at any other warehouse, gave Sawyer a monopoly of the warehouse business at this station. Sawyer also imposed conditions of storage not authorized by law. Held, that this did not constitute a providing of suitable facilities by the railroad company for the storing and handling of grain, within the meaning of the statute, and that, therefore, it was required to furnish cars, upon reasonable notice, and when able to do so, in which to ship grain out of other warehouses adjacent to its tracks at such station.</p>

Appeal by defendant, sheriff of Waseca county, from a judgment of the district court for that county, where the action was tried by Buckham, J., and a jury.

Appeal by plaintiff from an order of the district court for Henne-pin county, Lochren, J., presiding, refusing a new trial, the action having been dismissed at the trial, on defendant’s motion, at the close of plaintiff’s evidence.

Appeal by defendant from an order of the municipal court of Minneapolis, denying bis motion to vacate a judgment and for leave to' answer.

<p>Justice of the Peace — Notice of Appeal — Proof of Service. — Proof of service of a notice of appeal from the judgment of a justice of the peace, by the admission of an agent who did not act or appear for the party on the trial, and whose authority or agency is not shown, held insufficient.</p>

Appeal by plaintiff from an order of the district court for Ramsey county, Simons, J., presiding, overruling a demurrer to the answer.

Daniel M. Bobbins and the Northwestern Elevator Company, under Gen. St. 1878, c. 29, § 12, made application to the district court for Ramsey county to vacate certain portions of Vandalia and Central streets in “Hewitt’s Out-Lots” in Ramsey county, and asked the court to adjudge the title to the streets vacated to be in the Northwestern Elevator Company.

Replevin. Appeal by defendants from a judgment of the district court for Eenville county, where the action was tried by M. 0. Little, Esq., as referee.

Appeal by plaintiff from two orders of the district court for Renville ■county, Webber, J., presiding, the first granting plaintiff’s motion for a new trial unless the defendants should stipulate that judgment might be entered for plaintiff for $18.80, the value of certain bags, and the second denying the motion for a new trial, the defendants having made the stipulation.

Plaintiff brought this action in the district court for Stearns county to recover the value of medical services rendered and medicines furnished. The action was tried before Crosby, J., (acting for the judge of the seventh district,) and a jury, and upon the close of the evidence the court directed a verdict for defendant. Plaintiff appeals from an order refusing a new trial.

Habeas corpus. The relator, having been arrested and detained under a warrant issued by the governor of the state, on the requisition of the governor of the territory of Dakota, applied to the district court for the county of Fillmore for a writ of habeas corpus, which was duly issued and served.

Appeal by plaintiff from a judgment of the district court for Otter Tail county, where the action was tried before Collins, J.

The plaintiff and defendants were jointly interested in certain farming lands and personal property. Differences having arisen between them, they entered into a written agreement for arbitration, under which an award was duly made. This action was brought by plaintiff in the district court for Hennepin county to recover damages for defendants’ failure to perform the award.

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

Upon the affidavit and application of the relators an order was made by this court, directed to the respondents, requiring them to show cause why leave should not be granted to the relators to file in this court an information in the nature of quo warranto against the respondents for intruding into and usurping the offices of directors of the Mississippi and Eum Biver Boom Company.

Appeal by defendant from an order of the district court for Ramsey county refusing a new trial, — the action having been tried before Brill, J., without a jury. The decision on a former appeal in this, action is reported in 30 Minn. 496. The plaintiff’s case is solely to enforce a resulting trust under Gen. St. 1878, c. 43, §§ 7-8. It is essential to the existence of a resulting trust in favor of existing creditors that it arise from some conveyance or deed.

Plaintiff, claiming to be the owner of the piece of land indicated on the diagram in the opinion and lying between the Mississippi river and blocks 25, 26, and 82, brought this action in the district court for Hennepin county, in April, 1882, to recover damages for the alleged wrongful and unlawful possession and use of such land by defendant, and to restrain defendant from entering upon or using it.

In September, 1884, the Minnesota Elevator Company made an assignment to the respondent Wilder for the benefit of its creditors. The assignee, upon taking possession of the property of the Elevator Company, found in its warehouses about 15,779 bushels of wheat, all of which, excepting about 679 bushels, he sold for the sum of $9,029.29.

The will of Adam Gotzian, late of the county of Eamsey, deceased, was duly proved and his estate administered in the probate court of that county, and application was made for a final decree of assignment and distribution. At the hearing of the application, the testator’s widow claimed to be entitled to the provision made for her by the will, and also to her statutory share (one-third) of the testator’s real estate.

Plaintiffs brought this action in the district court for Hennepin county to recover damages for an alleged breach of a covenant against incumbrances contained in a warranty deed; The incum-brance claimed to exist is a party-wall agreement, and plaintiffs seek to recover as damages the sum of $850, the amount paid by them for the right to use a party-wall situated, in part, on the premises conveyed by the warranty deed.

The last will of Charles Oertle was duly proved in the probate court for Nicollet county.

Appeal by defendants from an order of the district court for Hen-nepin county, Young, J., presiding, refusing a new trial.

Appeal by defendants from an order of the district court for Morrison county, Collins, J., presiding, overruling their demurrer to the complaint.

Plaintiff brought this action in the district court for Hennepin county, to restrain the defendants, the auditor and the treasurer of Hennepin county, from proceeding in the levy and collection or enforcement of taxes upon certain lands situated in Hennepin county, claimed by the plaintiff to be owned by it and to be exempt from taxation. The action was tried by Young, J., without a jury, and judgment was ordered for the plaintiff.

Appeal by plaintiff from an order of the district court for Anoka county, Lochren, J., presiding, sustaining a demurrer to the complaint. cited Maples v. N. Y. & N. II. R. Go., 38 Conn. 557; Lake Erie á W. Ry. Co. v. Fix, 88 Ind. 381; Brooke v. Grand Trunk Ry. Co., 15 Mich. 332; Maroney v. Old Colony, etc., Ry. Co., 106 Mass. 153; Murdock v. Boston é A. R. Co., 137 Mass. 293; Elmore v. Sands, 54 N. Y. 512; Rawson v. Penn.

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

Appeal by defendant from an order of the district court for McLeod county, refusing a new trial, after a trial before Macdonald, J., and a jury.

Appeal by defendant from a judgment of the district court for Blue Earth county, where the action was tried before Severance, J.

Plaintiff brought this action in the district court for Hennepin county, as indorsee for value, before maturity, of certain promissory notes made and delivered by defendants to D. M. Osborne & Co. Defendants interposed an answer, denying upon information and belief that the notes were ever indorsed to plaintiff, alleging that they are still the property of D. M. Osborne & Co., and setting up a counterclaim against the latter.

Judgment was entered in the district court for Bamsey county on October 14,1882, in favor of plaintiffs and against defendant in this action, which was brought upon a judgment rendered in 1872.

Appeal by defendant from a judgment of the Municipal Court of Minneapolis, adjudging him guilty of the larceny of five thousand feet of illuminating gas, and imposing a fine of $50 and costs. The action was tried by the court, a jury being waived.

Appeal by defendant from an order of the district court for Freeborn county, Farmer, J., presiding, denying its motion to require the complaint to be made more definite and certain. cited Hargreaves v. Deacon, 25 Mich. 1; Kohn v. Lovett, 44 Ga. 251; Cahill v. Layton, 57 Wis. 600; Fraker v. St. Paul, M. & M. By. Co., 30 Minn. 103; Madden v. Minn, é St. L. By. Co., Id. 453.

The St. Paul & Northern Pacific Railway Company having presented its petition, under Gen. St. 1878, c. 34, § 14, to the district court for Hennepin county, asking to condemn certain lands therein described, the state appeared and filed an answer, putting in issue the power of the petitioner to condemn, denying that the public use or necessity required the prosecution of the enterprise of the petitioner, and alleging that certain lots described in the petition as belonging to…

After the decision of a former appeal in this action, (reported 32 Minn. 429,) affirming the judgment of the district court for Washington county, an accounting of the earnings and profits of the steamboat Jennie Hayes was had before a referee, as directed by the judgment.

<p>Pleading Counterclaim — Rule in Mason v. Heyward Abrogated.— Laws 1883, c. 101, abrogated the rule in Mason v. Heyward, 3 Minn. 116, (182,) that defendant admits a cause of action on the contract on which the action is brought, by pleading a counterclaim on the same contract.</p> <p>Same — Reply Departing from Complaint. — Where a complaint on a contract alleged full performance according to its terms, and the answer pleaded a counterclaim upon an alleged failure to perform within the time, allegations in the reply of a valid excuse for such failure are, if intended to help the plaintiff’s cause of action, a departure in pleading, and, if properly objected to, as by a request for instruction to the jury, cannot aid plaintiff to recover, but he may rely on them to prevent a recovery by defendant on the counterclaim.</p>

Plaintiff brought this action in the municipal court of Minneapolis, to recover the possession of personal property. The action was commenced by service of a summons in the form in use in the district court, with a copy of the complaint attached.

The plaintiff brought this action in the district court for Hennepin county, to recover the sum of $300 paid to defendant on the agreement for the purchase of a house and lot recited in the opinion. The complaint alleges that defendant has never been the owner of the premises agreed to be conveyed.

The plaintiff, (a corporation,) having recovered judgment in the district court for Kittson county against the defendants, duly garnished Charles H. Pelan, whose disclosure was taken.

Appeal by defendant from an order of the district court for St. Louis county, Stearns, J., presiding, overruling a demurrer to the complaint. cited Sanborn v. Rice County, 9 Minn. 258, (273;) Durkee v. City of Janesville, 28 Wis. 464; Hincks v. City of Milwaukee, 46 Wis. 559, 566.

Appeal by defendant from an order of the district court for Henne-pin county, refusing a new trial after a trial before Young, J., and verdict for defendant under direction of the court for the value of the property as found by the jury.

Appeal by defendant from an order of tbe district court for Washington county, McCluer, J., presiding, setting aside a verdict for defendant and granting a new trial.

<p>Certiorari — St. Paul — Revocation of Auctioneer’s License. — The mayor of St. Paul has no authority to revoke an auctioneer’s license. His action in assuming so todo is neither judicial nor quasi judicial, and hence (following In re Wilson, 32 Minn. 145) certiorari will not lie to review it.</p>

Plaintiff brought this action in the municipal court of Minneapolis, to recover the value of a stock of liquors alleged to have been sold to defendants. The answer admitted the sale, and.alleged payment. On the trial the defendants offered in evidence the bill of sale referred to in the opinion, which was, on objection, excluded.

<p>' Appeal by defendant from a judgment of the district court for Eice county.</p>

The St. Paul & Northern Pacific Bailway Company having condemned the land in question, plaintiff brought this action in the district court for Hennepin county, against the railway company and the defendant Borland, to determine who is entitled to the compensation awarded in the condemnation proceedings.

Appeal by defendant from an order of the district court for Freeborn county, Farmer, J., presiding, refusing a new trial, after a verdict for plaintiff. cited Hughes v. Winona dc St. P. R. Co., 27 Minn. 137; Fleming v. St. Paul & Duluth R. Co., 27 Minn. Ill; Walsh v. St. Paul & Duluth R. Co., 27 Minn. 367; Clark v. St. Paul é S. C. R. Co., 28 Minn. 128; Gates v. Southern Minn. Ry. Co., 28 Minn. 110; Morse v. Minn. & St. L. Ry. Co., 30 Minn. 465; Sullivan v. India Mfg.

On May 8, 1883, one E. J. Boxell, as principal, and these plaintiffs as sureties, made and delivered to one Frank Gray their bond in the penal sum of |1,000, conditioned, among other things, that said E. J. Boxell should perform his duties as agent for said Gray and account for all moneys collected by him. On the same day these defendants agreed in writing to become responsible to plaintiffs for all losses they might sustain on account of signing the bond of E. J. Boxell.

Plaintiff brought this action in the district court for Clay county, against Binaldo B. Briggs, Ferdinand A. Elder and George A. Elder, as copartners as Briggs & Elders, upon certain promissory notes, and, on January 14, 1885, caused the property of the defendants F. A. Elder and G. A. Elder to be attached. On January 22, 1885, each of those two defendants made an assignment in insolvency to F. J. Burnham, under Laws 1881, c. 148.

Appeal by defendant from a judgment of the district court for Clay county, Reynolds, J., presiding, affirming a judgment of a justice of the peace.

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

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

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

‘ Action in the municipal court of Minneapolis to recover the possession of a borse, wagon and harness, alleged to belong to plaintiff. The answer sets up that the defendant took the property, as sheriff of Hennepin county, by virtue of an execution against the plaintiff, issued in an action brought upon a promissory note given by plaintiff for a part of the purchase price of the same property.

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

William Lindeke, and others, creditors of J. W. Kollmann, whose claims exceed the sum of $200, filed their petition in the district court for Kamsey county, asking for the appointment of a receiver of the debtor’s property, under the provisions of the insolvency act of 1881. By consent the venue was changed to Bice county, where the petition was heard before Bwckham, J., and an order was made appointing a receiver. From this order Kollmann appeals.

Appeal by defendant from an order of the district court for Carver county, Macdonald, J., presiding, refusing a new trial. It was error to allow the prosecutrix to state that she allowed the-intercourse because of the promise of marriage. 1 G-reenl. Ev. § 65; State v. Garvey, 11 Minn. 95, (154;) Hathaway v. Brown, 22 Minn.,. 215.

Appeal by defendant from an order of the municipal court of Still-water, refusing a new trial, after a trial without a jury. The scale-bills referred to in the opinion were in the following form, viz.: “Scale of Loas eos C. N. Nelson Lumber Co. In Mill-Boom at Stillwater. “M N D 4.350 “Z 4 1.140 :M : 2 . - - - - 180 * * * # * * * * “Stillivater, Minn., April SO, 1884. “Jno. S. Proctor. “Sur.

The plaintiffs brought this action in the district court for Clay county, to enforce a mechanic’s lien for materials furnished and used in the erection of a store building on the land of defendant Hannah Peterson, joining the other defendant W. H. Davy, as claiming some interest in the land, such interest being alleged to be subordinate to the plaintiffs’ lien. The defendant Peterson made default.

Appeal by defendant Wm. H. Sweeney (impleaded with Thomas E. Sweeney) from a judgment of the district court for Clay county, affirming a judgment of a justice of the peace. cited Johnson v. Lough, 22 Minn. 203; Armstrong v. Lewis, 14 Minn. 308; (406.)

Appeal by Ellen M. Mills, one of the children and heirs-at-law of Eliza A. Mills, deceased, from an order of the district court for Mower county, Farmer, J., presiding, reversing, on certiorari, an order of the probate court which denied the application of one Allan Mollison for an extension of time for presenting claims against the decedent’s estate. cited Mass. Mut. Life Ins. Co. v. Elliot, 24 Minn. 134.

Appeal by plaintiff from an order of the district court for St. Louis County, Stearns, J., presiding, sustaining a demurrer to the complaint.

Appeal by defendant from an order of the district court for Stearns county refusing a new trial. Held: that he is entitléd to recover for such services and expenditures by virtue of such employment and direction. Appeal by defendant from an order of the district court for Stearns county, Collins, J., presiding, refusing a new trial after a verdict for plaintiff.

Action brought in the district court for Carlton county, under Gen. St. 1878, c. 75, § 2, to determine defendant’s adverse claim to real estate in that county. Defendant having answered, alleging title in himself and asking to be adjudged owner of the property, the plaintiff moved for judgment on the pleadings. The motion was granted by Stearns, J., and defendant appeals, from the judgment.

Plaintiff (a corporation) brought this action against defendant upon his written guaranty of payment upon certain promissory notes.

Appeal by defendant from a judgment of the district court for Chippewa county, affirming the judgment of a justice of the peace.

Appeal by defendant from an order of the district court for Ramsey county, Simons, J., presiding, overruling a demurrer to the complaint in an action for specific performance.

Appeal by defendant from a judgment of the municipal court of Minneapolis. The action was tried by a jury, and at the close of the testimony, a verdict was directed for plaintiffs for the amount claimed in the complaint.

Appeal by plaintiff from an order of the district court for Scott county, Macdonald, J., presiding, denying his motion for an injunction to restrain the defendant, as county treasurer, from collecting certain personal taxes.

Action of ejectment, brought in the district court for Dakota county, and tried by McCluer, J. On November 26, 1859, one William Gil-litt owned the land in question, and on that day it was duly sold, on execution against Gillitt, to one Howes, for $500. On November 25, 1860, Gillitt tendered to the sheriff of the county $550 for redemption of the land from such sale, which tender was refused. After the year of redemption, a sheriff’s deed was made and delivered to Howes.

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

Plaintiff brought this action in the district court for Bamsey county, to recover damages for personal injuries occasioned by the falling of one of defendant’s telegraph poles, the plaintiff being at the time of the injury engaged in the service of the defendant, and at work upon the top of the pole. The action was tried before Brill, J., and a jury, and plaintiff had a verdict for $1,500. Defendant appeals from an order refusing a new trial.

Appeal by Gustav Willius and other defendants from an order of the district court for Bamsey county, Wilkin, J., presiding, overruling their demurrer to the complaint.

Appeal by plaintiffs from an order of the district court for Todd county, Collins, J., presiding, assessing and allowing defendants certain damages under the stipulation referred to in the opinion.

Ejectment. The plaintiff claims title under a quitclaim deed made by one Hope Davis, on November 9,1883. The defendant Thompson claims under a warranty deed made by Hope Davis, by Henry IT. Davis as attorney-in-fact, on April 2,18^, and under a warranty deed, made October 28, 1867, by Levi Butler and wife to the First Presbyterian Church of Minneapolis. The intervenors claim title as the widow and heirs of Levi Butler.

Plaintiff brought this action in the district court for Hennepin county, to recover damages for alleged false imprisonment. The answer of the defendant admitted the imprisonment, and justified the same under the warrant of commitment recited in the opinion. The reply admitted that defendant was sheriff of Hennepin county, that the warrant of commitment was issued as alleged in the answer, and that the defendant imprisoned the plaintiff under such warrant.

Action for libel. Tbe publication complained of was printed and published on August 17, 1882, in the St. Paul Daily Pioneer-Press, and was as follows: “For it presented no evidence in support of its malicious charges except a statement by a half-imbecile shyster, who is tbe butt of tbe town, of his feeble-minded suspicions, indorsed by another fool in full regimentals, who is the laughing-stock of the state, and who, without knowing anything about it, appended to Gribble’s…

Appeal by defendant P. H. Rahilly from a judgment of the district court for Olmsted county, where the action was tried by Severance, J., (acting for the judge of the 3rd district,) without a jury.

Appeal by plaintiff from an order of the district court for Redwood county, dismissing the action. Respondent moved for a dismissal of the appeal.

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

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

Appeal by defendants from an order of the district court for Hennepin county, Tfoung, J., presiding, refusing a new trial. Dickinson, J. The questions involved in this case are the same as those considered in Johnson v. Corser, supra, and the result is controlled by that decision.

Appeal by defendant from a judgment of the district court for Wright county, where he was convicted of murder in the first degree after a trial before Lochren, J., and a jury.

Plaintiff brought this action in the district court for Otter Tail county, to obtain possession of certain personal property taken by the defendant, as sheriff, on an execution against plaintiff’s husband. Defendant appeals from an order by Baxter, J., refusing a new trial. In a contest between a husband’s creditors and his wife, there is a presumption against her which must be overcome by affirmative proof.

On May 2,1884, an order was made by the district court for Chi-sago county in an action therein pending, between Frank Breuer and another, plaintiffs, and S. B. Elder and others, defendants, directing C. P. Sloggy, sheriff of Olay county, to pay to the plaintiffs or their attorneys the sum of $508.83. From this order Sloggy appealed to this court, giving a supersedeas bond.

Action upon an oral contract of fire-insurance. Appeal by defendant from an order of the district court for Steele county, Buckham, 3., presiding, overruling a demurrer to the complaint.

Appeal by plaintiff from an order of the district court for Dakota county, Crosby, J., presiding, refusing a new trial. The case is stated in the opinion. cited Taylor, Ev. § 1035; 1 Greenl. Ev. §§ 275, 276, 305; 1 Parsons on Contracts, 589; 2 Benjamin on Sales, § 942; Jones v. Alley, 17 Minn. 269, (292;) Bandalla. Rhodes, 1 Curt.

Plaintiff brought this action in the district court for Eamsey county, to obtain a dissolution and accounting of a copartnership alleged by plaintiff to have existed between defendant and plaintiff, and which was formed for and engaged in the business of dealing in pine lands. The answer denies that the defendant ever entered into copartnership with the plaintiff for any purpose.

On November 13, 1879, the defendant, being then the owner of certain land, conveyed the same in fee to the plaintiff by a warranty deed containing a covenant that the land was free from all incum-brances, the expressed and real consideration for such conveyance being $650, which was fair and adequate.

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

<p>Constitution — Power of Respondent to Revoke Certificates. — Laws 1883, o. 125, § 9, entitled “An act to regulate the practice of medicine in the state of Minnesota,” provides that “the board of examiners may refuse certificates to individuals guilty of unprofessional or dishonorable conduct, and may revoke certificates for like causesHeld, that the revocation of such certificates is not an exercise oí judicial power, and hence it may be constitutionally vested in the State Board of Medical Examiners.</p>

<p>Writ of prohibition.</p>

Plaintiff brought this action in the district court for Washington •county, on the probate bond of the executors of George B. Judd, deceased, the breach assigned being the refusal of the executors to pay to the plaintiff the amount of a judgment in his favor, which the probate court had ordered them to pay out of assets in their hands.

The plaintiffs commenced this action in the district court for Wright county by personal service of the summons with a copy of the complaint attached. The allegations of the complaint were: “First. That on the 13th day of March, 1883, at the town of Cokato, Wright county, an account was. stated between the plaintiffs and the defendant, and upon such statement a balance of $695 was found to be due from said defendant to the plaintiffs. Second.

Plaintiff brought this action in the district court for Hennepin county, to recover damages for personal injuries received by him while engaged in the employment of the defendants in the Crown Eoller Mills at Minneapolis.

Appeal by plaintiff from an order of tbe district court for Bamsey county, Simons, J., presiding, sustaining a demurrer to tbe complaint.

Appeal by plaintiff from an order of the district court for Eamsey county, Brill, J;, presiding, sustaining a demurrer to the complaint. The action was brought to recover damages for injuries done to the property of plaintiff by firemen of the defendant in carelessly and negligently driving a hose-cart while responding to a public alarm of fire.

Appeal by plaintiff from an order of the district court for Otter Tail county, Baxter, J., presiding, vacating and setting aside a judgment entered upon default.

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

Action upon a promissory note. The defendants admit the making and delivery of the note to the plaintiffs, and plead usury as a defence. The action was tried in the district court for Wadena ■county, before Baxter, J., and a jury, and defendants had a verdict. Plaintiffs appeal from an order refusing a new trial.

Appeal by defendant from an order of the district court for Otter Tail county, Baxter, J., presiding, refusing a new trial. cited Larson v. Jensen, 53 Mich. 427; Jones v. Cooper, 1 Cowper, 227; Chase v. Day, 17 John. 114; Fitzgerald v. Morrisey, 14 Neb. 198; West v. O’Hara, 55 Wis. 645.

<p>Order granting New Trial — Discretion of Court. — Held, in conformity with the rule laid down and followed in numerous decisions of this court, that the order granting a new trial in this action, on the ground that the verdict was not justified by the evidence, was within the discretion of the trial court, and should not be disturbed on appeal.</p>

Defendant W. L. Anderson made an assignment to defendant Johnson, in 1884, under the provisions of Laws 1881, c. 148. Plaintiff, the father-in-law of Anderson, filed claims with the assignee amounting to over $20,000, based on promissory notes made by defendant Anderson for money alleged to have been advanced by plaintiff.

Plaintiff brought this action in the district court for Scott county to recover the value of goods alleged to have been converted by the defendant.

Action to recover possession (with damages) of a strip of land in Otter Tail county, upon which the defendant, without taking proceedings to condemn, bad built and for more than a year operated its railroad. In its answer the defendant admitted the taking, and (pursuant to Gen. St. 1878, c. 34, § 34) averred its readiness to pay compensation for the land, to be ascertained by the jury upon the trial.

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

<p>Judgment — Insufficient Findings. — A judgment (of the municipal court of St. Paul) based upon findings of evidence, and not of issuable facts, cannot be sustained.</p>

Appeal by defendant from an order of the district court for Washington county, McCluer, J., presiding, refusing a new trial. The case is stated in the opinion. To permit plaintiffs to recover in this action, if they wrongfully abandoned the drive which plaintiffs and defendants started under contract, is to allow them to take advantage of their own wrong.

Defendant was convicted of murder in the first degree in the district court for Hennepin county, after a trial before Lochren, J., and a jury. The indictment was found in the district court for Bamsey county, and after a trial resulting in a disagreement, a change of venue was granted. Defendant appeals from the judgment.

Plaintiff brought this action in the district court for Hennepin county, to recover the amount alleged to be due upon a contract for a year’s employment.

The Capital Bank of St. Paul, a creditor of the insolvents in this matter, filed its petition in the district court for Bamsey county, alleging that Charles W. Kirtland, one of the insolvents, is a non-resident and has never transferred to the receiver herein any of his separate and individual estate; that at the instance and request and by the procurement of the insolvents, and especially of Kirtland, and by money furnished by him, one George S. Lord has purchased and…

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

Appeal by defendant from an order of the district court for Henne-pin county, Young, J., presiding, making an allowance to plaintiff for counsel fees and expenses in an action for divorce.

Appeal by plaintiff from an order of the district court for Stearns county, Collins, J., presiding, denying plaintiff’s motion to strike out the answer as sham.

Appeal by plaintiff from an order of the district court for Ramsey county, Simons, J., presiding, sustaining a demurrer to the complaint. The allegations of the complaint are fully stated in the opinion.

Plaintiff, a corporation, brought this action in the district court for Bedwood county, upon two instruments, similar in form, one of which is as follows, viz.: “Springfield, Minnesota, November 15, 1880. “On or before the first day of November, 1881, for value received in renewal of my note, No. 60,759, due November 1,1879, I, or we, the undersigned, each as principals, of Willow Lake township, county of Brown, State of Minnesota, promise to pay to the order of C. Ault-man…

The amended complaint sets out the following facts, viz.: About July 1, 1881, the defendant, a corporation, sold to plaintiff a harvester and binder warranted to be properly constructed and to do good work. The machine, ■though properly tried and tested, failed to do good work, and was not as warranted.

Plaintiff brought this action in the district court for Hennepin county, to recover for the alleged conversion of certain logs. The substance of the complaint is stated in the opinion.' The answer denied that defendant bought the logs in question from Griffin, alleged that be bought them from one Beard, and denied, upon information and belief, the material allegations of the complaint.

Plaintiffs brought this action in the district court for Bamsey county upon a policy of fire insurance. The action was tried by Simons, J., without a jury, and judgment directed for plaintiffs. Defendant appeals from an order refusing a new trial.

Plaintiff brought this action in the district court for Ramsey county, to recover for alleged wrongful ejectment by defendants from certain premises in St. Paul.

Appeal by defendant from an order of tbe district court for Otter Tail county, Collins, J., presiding, refusing a new trial, after a verdict of $750 for plaintiff. The action was brought to recover damages for the killing of plaintiff’s trees by fire caused by defendant’s ■negligence.

Plaintiff brought this action in justice’s court in Houston county, alleging in his complaint that at the delinquent tax sale in September, 1882, for taxes of 1881, the defendant, as county auditor, sold certain described premises to one Arndt, who made the required payment and received the proper certificate; that the taxes levied on the land for 1882 amounted to $19.45, and became due December 1, 1882, and were paid by Arndt February 16, 1883; that Arndt, on May 1,1883,…

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

Appeal by plaintiffs from an order of the district court for Hen-nepin county, Young, J., presiding, setting aside a verdict of $500, in favor of plaintiffs, and granting a new trial.

Appeal by defendant from an order of the district court for Good-hue county, Crosby, J., presiding, refusing a new trial.-

Appeal by plaintiff from an order of the district court for Bamsey county, Simons, J., presiding, dissolving a temporary injunction.

Appeal by defendant from a judgment of the district court .for Dakota county, Crosby, J., presiding, perpetually enjoining the defendant from interfering with or directing the course and flow of the lake mentioned in the opinion. cited Eulrich v. Richter, 37 Wis. 226; Pettigrew v. Village of Evansville, 25 Wis. 223; Gannon v. Har-gadon, 92 Mass.

Appeal by plaintiff from an order of the district court for Bamsey county, Wilkin, J., presiding, refusing a new trial of specific issues submitted to a jury. The opinion on a former appeal is reported in 31 Minn. 414. ... that a preponderance of evidence was sufficient for the .establishment of plaintiff’s equity, cited Burr v. Willson, 22 Minn. 206, and Thoreson y. North-xoestern Nat. Ins. Go., 29 Minn. 106.

Appeal by defendants from a judgment of tbe district court for Ramsey county, Simons, J., presiding, restraining and enjoining tbe defendants from entering upon a certain strip of land adjudged to belong to the plaintiffs, and claimed by defendants to lie witbin tbe limits of a public highway.

<p>Appeal by plaintiffs from an order of the municipal court of Minneapolis, refusing a new trial.</p> <p>cited 2 Parsons on Cont. 652; Townsend v. Wells, 3 Day, 327; Smith v. Loomis, 7 Conn. 110; Van-liooser v. Logan, 3 Scam. (Ill.) 389; Johnson v. Seymour, 19 Ind. 24; Norton v. Webb, 36 Me. 270; Morey v. Enke, 5 Minn. 316, (392;) Roclaoell v. Rockwell, 4 Hill, 164; Pinneyv. Gleason, 5 Wend. 393; Newton v. Galbraith, 5 John. 119; Barns v. Graham, 4 Cow. 452; Roberts v. Beatly, 2 P. & W. (Pa.) 63; Church v. Feterow, Id. 301; Steioart v.Donelly, 4 Yerger, (Tenn.) 176.</p>

On August 27, 1881, the probate court of Mower county made an order disallowing a claim which plaintiffs had filed against the estate of Warren H. Dean, deceased. The plaintiffs did not have notice of this order till September 1, 1881.

Appeal by defendant from a judgment of the district court for Ramsey county, where the action was tried before Brill, J., and a jury, and plaintiff had a verdict, which was in the following form, viz: “The jury in the case of Leonard v. Maginnis find for the plaintiff and assess the value of the property at the amount of $1,039.77.”

Plaintiffs brought this action in the municipal court of Minneapolis, to recover rent due on a lease for one year, alleged to have been made between plaintiffs and defendants. The answer denied the making of the lease. The action was tried by the court, who found that the lease was made as stated in the opinion and directed judgment for the plaintiffs. Defendants appeal from an order refusing a new trial.

Appeal by defendants from an order of the district court for Hen-nepin county, Young, J., presiding, refusing a new trial.

The plaintiffs brought this action in the district court for Ramsey county, to enforce a mechanic’s lien.

Appeal by defendant from an order of the district court for Hen-nepin county, Koon, J., presiding, refusing a new trial.

The plaintiffs brought this action in the district court for Ramsey county, to enforce a mechanic’s lien for lumber furnished for and used in the erection of a house on the land of defendant Bartlett.

Order to show cause why relator should not be permitted to file an information in the nature of quo warranto against the respondent, for alleged unlawful usurpation of the powers and duties of the office of colonel of the first regiment of the state militia.

Appeal by plaintiff from an order of the district court for St. Louis, Lake and Cook counties, Steams, J., presiding, sustaining a demurrer to the complaint.

After the decision of a former appeal in this action, reported in 31 Minn. 486, the plaintiffs amended their complaint. The defendant,, having answered, moved for judgment on the complaint and answer, which motion was granted by Young, J., and the plaintiffs appeal from the judgment so entered.

The plaintiff brought this action in the district court for Ramsey county, to have the title to a certain tract of land adjudged to be in it, and to have defendants barred from any interest or title.

Plaintiffs brought this action in the district court for Houston county upon a memorandum executed by defendant as security for costs in an action brought in a justice’s court by the defendant Layland against these plaintiffs, the complaint alleging a judgment of the district court in the action, for costs in favor of the defendants therein, (now plaintiffs.) The answer alleges that Layland had judgment in the justice’s court from which an appeal was taken to the district…

Plaintiff brought this action in the district court for Polk county and garnished one Zwickey, who disclosed that he had in his hands, as sheriff, the sum of $580.85 and that this sum was the surplus (after satisfying the mortgage debt) of the purchase-money received by him at a sale, on foreclosure by advertisement, of certain land of the defendant.

On May 14, 1873, plaintiff borrowed of one Eogers $250, and, to secure repayment, executed and delivered to him a warranty deed, absolute in form, of certain premises in Eice county described in the complaint, of wbicb she was the owner. At the same time Eogers executed and delivered to her a bond for a deed, in the ordinary form, conditioned for the conveyance of the land to her upon the payment of $250, with interest, within two years from its date.

An alternative writ of mandamus was issued by the district court for Carlton county, directing the defendant, who is county auditor, to-issue warrants to the plaintiff for his salary as county attorney, at, the rate of $900 per annum. The defendant answered, alleging that, the salary of plaintiff, having been fixed at $900, was afterwards, by resolution of the board of county commissioners, reduced to $300.

Action for personal injuries to a child, brought by the father in the district court for Hennepin county. When the plaintiff rested his case, the action was dismissed by Korn, J. Plaintiff appeals from an order refusing a new trial. on the question of contributory negligence, cited Wheelock v. Boston do Albany B. Go., 105 Mass. 203; Loucks v. G. M. é St. P. By. Go., 31 Minn. 526; Mayo v. Boston & Maine Bailroad, 104 Mass. 137; Gaynor v. Old Colony é N. By.