Volume 34 — North Dakota Reports

Affirmed. Where an action set for trial for a day certain, in the district court, and counsel for both parties timely notified, and this at a general term of said court, is dismissed by plaintiff’s attorney of record, without prejudice for failure of plaintiff to appear when the case is called for trial, defendant’s counsel and witnesses being in court, and ready for trial, and the court so dismisses, and enters in his trial docket a record of such fact, such dismissal…

<p>Surface waters — drain — natural servitude — lower estate —• rule — civil law — common law.</p> <p>1. Both under the civil-law rule as to surface waters and under the so-called common-law or common-enemy rule, a natural drain way must be kept open to carry the water into the streams, and the lower estate is subject to a natural servitude for that purpose.</p> <p>Note. — In addition to the note referred to in the opinion, 22 L.E.A. (N.S.) 789, which discusses the right of the owner of the lower tenement as against the right of the upper landowner to obstruct surface water in a natural drainage channel, see note in 21 L.E.A. 598, on the correlative rights as to obstruction of surface water.</p> <p>On the right of lower proprietors to obstruct the flow of surface water, see note in 16 Am. St. Eep. 710.</p> <p>Natural drain way — ditch — channel — surface waters — jury — findings of.</p> <p>2. Proof that a drain or ditch receives the surface water of a drainage area of some 168 acres, is several feet in depth, has a well defined channel, and, though it has grass growing at its sides, has a space at the bottom which is worn away by the water to a breadth of 3 or 4 feet, and that such drain or ditch serves to convey the waters of the area into a river or stream, will justify the jury in holding that such drain or ditch is a natural drain way or drainage channel, and this though there is no evidence that the water ran in the same at all times, but merely that the drain or ditch served to convey the melting snows and surface waters.</p> <p>Dower landowner — duty of — building structure across drain — obstruction.</p> <p>3. It is the duty of a lower landowner who builds a structure across a natural drain way to provide for the natural passage, through such obstruction, of all of the water which may be reasonably anticipated to drain therein, and this is a continuing duty.</p> <p>Natural drain way — obstructed — evidence of — by lower landowner — upper landowner — flooding of lands — damages — surface water — unnatural amount —« occasioned by storm — proof — burden of.</p> <p>4. Where there is evidence which tends to show that a drain way is a natural drain way, and that it has been obstructed by a lower landowner, and that such obstruction occasioned the flooding of and injuries to the property of an upper landowner, the burden of proof is upon the defendant or lower landowner, when sued for such damages, to prove that the storm which occasioned the flood was unprecedented; that it could not have been reasonably anticipated, and need not have been provided against.</p> <p>Storm — unprecedented — evidence of — jury — question for.</p> <p>5. Evidence examined, and held not to bo such as to justify a holding, as a matter of law, that the storm in question was so unprecedented that it should not have been anticipated, but rather that the fact was one for the jury to pass upon.</p> <p>Moods — unprecedented —■ unusual occurrence — anticipated — community — people — experience of.</p> <p>6. Extraordinary or unprecedented floods are floods which are of such unusual occurrence that they could not have been foreseen by men of ordinary experience and prudence. Ordinary floods are those, the occurrence of which may be reasonably anticipated from the general experience of men residing in the region where such floods happen.</p> <p>Unprecedented flood — conditions — climatic — topographical — drainage basin — danger — anticipated — provision against.</p> <p>7. In passing upon what is or what is not an extraordinary flood, or whether it should have been anticipated and provided against, the question to be decided is: “Considering the rains of the past, the topographical and climatic conditions of the region, and the nature of the drainage basin as to the perviousness of the soil, the presence or absence of trees or herbage which would tend to increase or prevent the rapid running off of the water, would or should a reasonably prudent man have foreseen the danger and provided against it?”</p> <p>Railway company — obstructing natural channel — instructions — damages — measure of — requests.</p> <p>8. An instruction in an action against a railway company for negligence in obstructing a natural channel and thereby damaging plaintiff’s goods, “that if you believe that the plaintiffs are entitled to recover as heretofore instructed, then it is your duty to determine the amount of damages sustained by reason of the flooding of these premises, and they are entitled to make matters whole,” is sufficiently definite as to the measure of damages, in the absence of any requested instructions upon the subject.</p> <p>Hardware — stock of — damaged — flood — value — witness — competency —■ manager — buying and selling — evidence.</p> <p>9. One is sufficiently qualified to testify as to the valúe of a stock of hardware, and to the injury to it by flood and its depreciation in value, who is shown to have worked in a hardware store for at least seven years, to have been manager of such store during such time, and to have had charge of the buying of goods and the fixing of prices at which they should be resold, and to have been in charge of such goods since the damage was done.</p> <p>Railway company — damages — culvert — insufficiency — drain — evidence — error — surface water — channel.</p> <p>10. Where a railway company is sought to be held liable for damages by flooding occasioned by an insufficient culvert, it is not error to allow in evidence proof of the fact that prior to the construction of the culvert a pile bridge was maintained across the drain in question. Such evidence tends not merely to show the nature of the drain way, its necessity for the carrying away of the surface water which ran therein, but the fact as to whether the drain way was a natural channel or not.</p> <p>Railway company — action — damages — culvert — inadequate — cost — proof of.</p> <p>11. It is not error, in an action against a railway company for failure to maintain an adequate culvert, to allow proof that such culvert could have been provided at a reasonable cost.</p> <p>Railway company — natural drainage — obstructing — culverts — other floods — other premises — proof of — competent.</p> <p>12. Where a railway company is sued for obstructing a natural drain way, and not providing sufficient culverts for carrying off the water, it is not error to allow proof that premises near those of the plaintiffs were flooded in the past, as such evidence tends to show the nature of the drainage district, the-course of the water, and generally the necessity of providing for a sufficient outlet for the same.</p> <p>Cumulative evidence — extent of — trial court — discretion — floods — other districts — drainage.</p> <p>13. The extent to which cumulative evidence may be introduced is largely within the discretion of the trial court; and where there is much evidence in the record as to the nature of a downpour of rain, a case will not be reversed merely because a trial court has excluded evidence that the flood occasioned no-injury to premises in a different hollow or drainage basin, although such hollow or drainage basin was close to the one in question.</p> <p>Charge of court — considered as a whole — issues — judgment — reversal of — grounds for.</p> <p>14. The charge to a jury must be taken as a whole, and where such charge as. a whole clearly presents the issues of a case, mere technical defects in portions thereof are not grounds for a reversal of the judgment.</p> <p>Expert evidence — conclusiveness — data — formula — basis —. drainage —■ area — culverts.</p> <p>15. The conclusiveness of expert evidence depends largely upon the similarity of the data or formula upon which it is based, and proof of the adequacy of a drain for a certain area and that a culvert was constructed in accordance-with prescribed formula which were computed on areas of a certain size, is not. conclusive as to the adequacy of such culvert unless it is shown that the topography of the drainage areas are similar, it being clear that the flowage eve» from the same downpour would be much greater in a given time in a hilly basin than on an almost level plain.</p> <p>Opinion filed January 28, 1916.</p>

From a judgment of tbe District Court of Burleigh County, Nuessle, J., dismissing tbis action, plaintiff appeals. Tbe defendant was negligent in tbe employing of a young, incompetent, inexperienced boy, fourteen years old, to run or operate tbe elevator. Tbis was not only negligence and in disregard of bis duties to tbe public, but a direct violation of tbe statute of tbis state. Comp. Laws 1913, § 1412.

Reversed. The complaint does not show facts constituting a cause of action. If plaintiffs cause be an action at law, there is no allegation of rescission. If an equitable action, there is no such allegation, nor any showing that plaintiff is ready, willing, and able to rescind. Iowa Nat.

G. Burr, Special ■Judge. From a judgment in plaintiff’s favor and from an order denying a motion for a new trial, defendant appeals. When an express promise of marriage is pleaded, as in this case, the promise or contract cannot be shown, inferred, or implied from acts and ■conduct. Eeynolds v. Curry, 81 Kan. 443, 105 Pac. 437; Bleiler v. Koons, 132 Pa. 101, 19 Atl. 140.

Where a party, with full knowledge of all the facts, pays a demand that is unjustly made against him, and to which he has a valid defense^ and where? there is no fraud, such payment is voluntary and cannot be recovered back. But this is a harsh rule and has been harshly applied, and courts feel that it should not be twisted and distorted so as to apply to a case such as the one before us. The money was not paid voluntarily under the evidence here.

<p>Merchandise stock — sale of — action to avoid — sale in Ibulk — merchandise and fixtures — creditors — statutes — notice.</p> <p>A party who seeks to avoid a sale of a stock of merchandise solely on the ground that such sale was made in violation of § 7224, Compiled Laws 1913, which provides that a sale in bulk of any part or the whole of a stock of merchandise -or merchandise and fixtures pertaining to the conducting of said business, otherwise than in the ordinary course of trade, shall be void as against the creditors of the seller, unless the provisions of the law are complied with, must show that at the time of the sale or transfer he was an existing creditor of the seller and entitled to notice as such under the provisions of the law.</p>

<p>Action to foreclose real estate mortgage. The appealing defendant claims under a mechanic’s lien. Trial de novo. The elevator company furnished lumber to the coal company under contract dated November 13, 1908, f.or buildings to be erected upon the N. W. J of section 15, 156-94, which was owned by it and upon which it operated a coal mine. The openings of the coal mine, however, being some 80 feet over on section 16, the buildings were placed thereon from 80 to 200 feet from section 15. December 8, 1908, plaintiff took a $2,500 real estate mortgage upon the N.W.4 of section 15. At the time the loan was made the manager of the coal company told the managing agent of the loan company that he needed the money to take care of some lumber bills in connection with the mine.</p> <p>Real estate mortgage — action to foreclose — mechanic’s lien — description</p> <p>— use of materials furnished — on land other than stated in contract — lien attached where materials were used.</p> <p>1. Under our statutes, enumerated in the opinion, it is held that the lien attached to the N. W. J of section 15, although the lumber was used in the erection of buildings upon section 16.</p> <p>Mortgage — mechanic’s lien — priority.</p> <p>2. Under our statute, set forth in the opinion, it is held that the mechanic’s lien is prior to, and superior to, the mortgage.</p> <p>Trial court — equitable powers — debt — apportionment of — third persons</p> <p>—protection of — buildings — sale of — provision for — security on land</p> <p>— resort to.</p> <p>3. Under general equitable powers the trial court has the right to apportion the debt in order to protect as much as possible the rights of third persons. Therefore, the trial court should make provision for the sale of the buildings upon section 16 before resorting to the security- of the land upon section 15.</p>

<p>Controversy — arbitration — parties may submit to — common-law right — remedies — cumulative.</p> <p>1. Notwithstanding the provisions of the Code (Compiled Laws, §§ 8327-8347), parties in difference may agree orally to submit their controversy to arbitration. The common-law right to arbitrate is not supplanted by the Code, the remedies being merely cumulative.</p> <p>Supreme court — trial de novo — mechanic’s lien — action to foreclose — contract — extras furnished — arbitration — award — supersedes contract.</p> <p>2. Upon a trial de novo in the supreme court, of an action to foreclose a mechanic’s lien for an alleged balance claimed to be due plaintiff on a building contract and for extras furnished, the undisputed proof discloses that the parties orally agreed to submit all their differences to three arbitrators, and that pursuant thereto all such matters of difference were in fact thus submitted, and the arbitrators rendered an award.</p> <p>Note. — Arbitration agreements, their validity, and binding force, are extensively discussed in note in 47 L.R.A. (N.S.) 337, and among other topics see page 346, taking up the matter of oral submissions and giving cases holding them valid; page 342, discussing the change of the court’s early attitude of jealousy to the modern view and practice of the encouragement of the settlement of disputes by arbitration; and page 441, taking up the finality of the award made.</p> <p>As to agreements to submit disputes to arbitration, see also notes in 14 Am. Dec. 296, and 2 Am. St. Rep. 566.</p> <p>Held, that such award is valid and operated in law to supersede plaintiff’s cause of action on the contract, and the action was therefore properly dismissed.</p> <p>Arbitration — courts — favored by.</p> <p>3. Settlement of disputes by arbitration is favored by the courts.</p> <p>Arbitration — award — agreement to abide by — scope of — intention of parties.</p> <p>4. After the award was made, but before it was published, the parties, without knowledge of its terms, signed a written agreement to abide thereby as follows: “We hereby agree to accept and abide by the above report rendered by the arbitrators in full settlement of contract extras and payments of claims arising from the same.” The contention that in signing this the parties thought the award merely covered the extras is, for reasons stated, untenable.</p>

A. Polloclc, J. From a judgment in plaintiff’s favor and from an order denying motion for new trial, defendant appeals. On a sale of personal property the acceptance by the buyer is just as vital to a recovery as is the existence of the contract to sell. Dinnie v. Johnson, 8 N. D. 157, 77 N. W. 612; Stone v. Browning, 51 N. Y. 211; Caulkins v. Heilman, 47 N. Y. 449, 7 Am. Rep. 461; Taylor v. Mueller, 30 Minn. 343, 44 Am.

<p>Property owner — leaving excavation unguarded — negligence — what constitutes — legal duty — owing to plaintiff — must appear — breach of such duty.</p> <p>1. To constitute negligence of a property owner in leaving an excavation on liis premises unguarded, it must appear that such owner owed a legal duty to the plaintiff to thus guard it, and that he is guilty of a breach of such duty.</p> <p>Trespasser — license — property owner — owes no duty to — protection from injury — wilful or wanton injury.</p> <p>2. A property owner owes no duty to a trespasser or a mere licensee on his premises to protect him from injury, other than to refrain from wilfully and wantonly inflicting injuries to such person.</p> <p>Lot — public streets — excavation — guarded by a fence.</p> <p>3. Defendant caused a basement to be excavated on its lot, bounded on the north end and east side by public streets. Such excavation was adequately guarded by a fence across the north end and a row or pile of building rock along'the east side.</p> <p>Held, that defendant exercised due care to protect persons from injuries, and that it owed plaintiff no duty to place a guard along the south end, no implied invitation having been extended to the public to travel across the lot where the plaintiff was injured.</p> <p>Plaintiff — negligence — matter of law — verdict — direction of.</p> <p>4. Under the undisputed facts it is held that plaintiff, as a matter of law, was guilty of negligence which directly contributed to his injuries. Hence, the trial court properly directed a verdict against him.</p> <p>Note. — Cases discussing the duty of an owner of land which licensees are accustomed to cross, to guard against injuries in consequence of changes in the condition, will be found collated in notes in 13 L.R.A.(N.S.) 1126; 39 L.R.A.(N.S.) 217; and it will be found that there are cases both for and against the liability of such owner for resulting injuries.</p> <p>See also note in 39 L.R.A. (N.S.) 217, on the question of contributory negligence of person injured by falling into hole or excavation.</p> <p>That the owner of private property is not obliged to make it safe for trespassers or even for mere licensees is in accord with the weight of authority as will be seen by an examination of the cases in notes in 26 L.R.A. 686; and 5 L.R.A.(N.S.) 733, on the liability for dangerous condition of private grounds lying open beside a highway or frequented path. .</p>

G. Burr, J, From a judgment in plaintiffs favor and from an order denying defendant’s motion for a new trial, tbe latter appeals.

<p>Mandamus to compel the county treasurer to issue tax receipts pursuant to a compromise of taxes on several hundred tracts made by relator and the board of county commissioners of Bottineau county by resolution of said board. The county treasurer refused to comply with the order of the board and accept less than the full amount of taxes due. Held:</p> <p>County treasurer —■ issue tax receipts — mandamus to compel — taxes — compromise settlement — with board county commissioners — order of board — official proceedings — record of — compromise of taxes — grounds for — county 'treasurer — right to refuse to obey order — right of relator — must be established by action.</p> <p>1. The record of official proceedings of the hoard of county commissioners not showing affirmatively any valid ground for a compromise settlement of said taxes, the county treasurer, who is bound by law to collect the full amount of taxes due excepting where a valid compromise is made by the board of county commissioners, had the right to refuse to comply with the purported compromise settlement,- and to require relator to establish by action a valid basis and cause therefor.</p> <p>Mandamus — moving papers — no valid compromise shown — proceedings dismissed.</p> <p>2. Upon the moving papers, no valid cause for compromise being shown, this proceeding in mandamus is dismissed.</p> <p>Mandamus — moving papers — hoard of commissioners — proceedings of — tracts of land affected •— description of — not shown — judgment — must he certain — definite.</p> <p>3. Neither the moving papers nor the commissioners’ proceeding describes the tracts upon which compromise of taxes was sought to be made, and as the issuance of tax receipts on certain specific tracts are asked to be compelled, relief by mandamus could not be granted, if otherwise proper, as any judgment to be entered against the treasurer must be definite and certain as t@ subject-matter.</p>

<p>Upon hearing of the accounting of the receiver of a partnership certain objections were taken and overruled. On appeal it is held:</p> <p>Accounting- — partnership — receiver — objections — interest — computation and allowance — trust funds — used in private business.</p> <p>1. That interest should have been allowed upon three items of $675, $400, and $2,115 of his trust funds used by the receiver, or under his direction in his private transactions for the period during which the same was so used, and while the receiver was within this state, he having during the receivership removed therefrom.</p> <p>Receiver — removal from state — partnership members — duty to act — interest — allowance.</p> <p>2. That upon the removal of the receiver from the state, the members of the . partnership should have taken steps to require an accounting from the receiver. As they did not do so, and the receiver having left the funds within the state, interest for the balance of the time as against the receiver should not be allowed.</p> <p>Receiver — interest — charged against — district court — judgment.</p> <p>3. The interest allowed against the receiver on the above items aggregates $485. The judgment of the district court is ordered modified and interest to that amount allowed plaintiffs. All other items were properly disallowed. Plaintiffs will recover the costs.</p>

Erom a judgment of the District Court of Burke County, Leighton> J., plaintiff appeals. A pleading in a justice court is not required to be in any particular form' but must be so expressed as to enable a person of common understanding to know what is intended. It may be oral or written. Comp-. Laws 1913, §§ 9039, 9044. Proceedings before a justice of the peace should be construed with great liberality; substance, not form, being regarded. 12 Enc.

<p>Appeal from an order overruling demurrer to complaint and from tlie judgment thereafter rendered. Tlie grounds of the demurrer taken are (1) improper joinder of causes of action, and (2) insufficiency of facts pleaded to constitute a cause of action. Held:</p> <p>Demurrer to complaint — order overruling — appeal from.</p> <p>1. That the complaint is not vulnerable to demurrer upon either ground.</p> <p>Rule of construction — application of.</p> <p>2. Stark County v. Mischel, 33 N. D. 432, applied and followed as to the first ground of demurrer.</p> <p>Conversion — complaint discloses — defendants — joint act of — action lies against both.</p> <p>3. Held that the complaint discloses the conversion to have been the joint acts of the defendants, Cruden and Davies, and the action will lie against both jointly.</p> <p>Proof — sufficiency of — variance of — with pleading — appearance at trial — default — damages — proof of — on trial — no error raised — cannot be reviewed on appeal.</p> <p>4. Appellants are in no position to question the sufficiency of the proof upon the alleged variance between the complaint and the proof, they having defaulted in appearance at the trial of the issue of damages, standing upon their demurrer, and not participating in the trial. They have therefore in tlxe trial court raised no error of law on the proof of damages, and there is no error of law to review touching the same upon this appeal.</p>

From a judgment of tbe District Court of Cavalier County, Qooley, Special Judge, defendants, William Turnbull, Levi Bell, George Bell, and Samuel Connor, appeal. Tbe existence of a lake or fast dry land is a political question to be decided by tbe land department. Chapman & D. Land Co. v. Bigelow, 11 Ark. 338, 92 S. W. 534; Be California & O. Land Co. 21 Land Dec. 344; Be Goose Lake, 1 Land Dee. 527.

Leighton, J. The mortgage company was not an ostensible agent. An agent has only such authority as the principal actually or ostensibly confers upon him. Code 1913, § 6324; Mechera, Agency, § 744, p. 528. Ostensible agency is one by estoppel, and should be restricted to-cases where the agency is not real, but apparent. Harris v. San Diego Fluen Co. 87 Cal. 526, 25 Pac. 758; Hollinshead v. John Stuart & Co. (Hollinshead v. Globe Invest.

<p>In taking an appeal from a justice court, jurisdictional papers -were first filed with, the clerk and then withdrawn and served, and an admission of service indorsed thereon by the appellee within the statutory thirty days for appeal. The papers with said proof of service were returned to the clerk of the district court after said period for appeal had expired, so that the proof of service was not filed until after expiration of the statutory period for appeal; but, upon its being filed, it disclosed affirmatively that filing and service had both been made within the time allowed for appeal. Held:</p> <p>-Justice court — appeal from — jurisdictional papers — service of — clerk — filing with — statutory time — proof of service — not jurisdictional.</p> <p>The filing of proof of service within the thirty-day period for appeal -is not a jurisdictional prerequisite. Jurisdiction is vested by the filing and service of appeal papers within the statutory period. Proof thereof may be filed after expiration of said period, and the appeal will be valid and sustained as against a motion to dismiss subsequently made, when the facts of such timely service and filing affirmatively appear upon the record on appeal.</p>

Action, to qniet title to land. Appeal from the District Court of Bottineau County, A. Q. Burr, J. Judgment for defendants. Plaintiff appeals. Opinion of the court by Bruce, J., filed subsequent to petition for rehearing. A mortgage foreclosure sale will not be set aside without some good reason.

G. Burr, J. From an order granting plaintiffs motion for a new trial, defendant appeals. Where a motion for a new trial is noticed to be heard at a time certain, and the court, of its own motion, postpones the hearing and it is not brought up for six months thereafter, or after the expiration of sixty days after the verdict or decision, and no cause shown for such extension, and no memorandum decision filed, the court lost jurisdiction.

Action to recover money claimed to have been paid on account of a mistake of law. Appeal from the District Court of Renville County, Leighton, J. Judgment for defendant. Plaintiff appeals.

A. Coffey, J. From a judgment in plaintiff’s favor, defendant appeals. “If there is a presumption of payment, either from lapse of time or from the possession of the evidence of the indebtedness by the debtor, the burden of showing nonpayment is on the debtor.” 30 Cyc. 1265.

<p>jjease — conditions — tenant — growing timber — not to cut — provision — material— violation — ground for cancelation.</p> <p>1. A condition in a lease -which provides that the tenant shall not cui growing timber is a material provision, and a violation thereof may be made-a ground for the cancelation of such lease and a demand for the surrender of; the premises. '' '</p> <p>The'term “lease” — imports a contract — possession — lands — chattels.</p> <p>2. The term “lease” imports a contract by which one person devests himself of, and another person takes possession of, lands or chattels for a term.</p> <p>■Contract — parties — designation of — owner of land — provisions as to working land —lease — violation of terms — cancelation — forcible entry and detainer — action in — justice’s court.</p> <p>3. A contract which designates the party of the second part as owner of a certain farm, and provides that the party of the first part shall have the use and occupancy thereof for a certain term and shall have the right to pasture a horse and cow thereon, and shall sow and plant the land in such crops as the owner may direct and furnish all labor and machinery necessary thereto, though the owner is to furnish the seed, and which further provides that the title to the said crops shall remain in the owner of the land until the division thereof, and that, upon the faithful performance of the covenants and agreements of the party of the first part, the owner will give and deliver to him upon said premises one half of the grain raised and pay one half of the thresh bill, is, as ~to the land and buildings, a lease, and a violation of the terms thereof, which is therein made a ground for a cancelation thereof, will after such cancelation, justify an action in forcible entry and detainer in a justice’s court for the possession of said land and buildings under the provisions of ¶ 4 of § 9069 of the Compiled Laws of 1913.</p> <p>Lessee — denying owner’s title — estoppel.</p> <p>4. A lessee is estopped from denying the title of his lessor.</p>

Erom a judgment in plaintiffs favor, defendant appeals. The complaint fails to state facts sufficient to constitute a cause of action. Plaintiff cannot recover for loss or destruction of the materials he had provided. Ilis damages are limited to the profit he would have made had the contract been completed.

<p>Claim and delivery — mortgagee — suit Iby — prematurely brought — chattels — possession of— mortgagor — default hy — prior to trial — verdict fox" mortgagor — for full value — mortgage deht disregarded — contrary to laxv.</p> <p>1. Where a mortgagee prematurely sues in claim and delivery through which lie obtains possession of the chattels covered by his mortgage before he is by the terms thereof entitled to such possession, but thereafter and prior to the trial of the action the mortgagor defaults in payment of the debt, a verdict finding that the defendant, mortgagor, is entitled to the possession of the chattels, and awarding him the full value thereof regardless of the mortgage debt, is contrary to law.</p> <p>Claim and delivery — actioxx in — gist of — possession of property — at commencement of action — right to — change of — before trial — verdict and judgment should adjust equities — recovery by defendant — actual damages only.</p> <p>2. While the gist of the action in claim and delivery is the right of the plaintiff to the immediate possession of the property at the commencement of the action, yet if the right of possession changes between the commencement of such action and the date of trial, the verdict and judgment should adjust the equities between the parties as such equities exist at the time of the trial. It is accordingly held under the established facts in the case at bar that defendant was entitled to recover from the plaintiff only his damages for the unlawful detention of the property and costs of the action.</p>

From a judgment and an order denying a new trial, defendant appeals. The refusal of the trial court to allow cross-examination of a witness upon matters brought out on direct examination and relevant to> the issue is a denial of an absolute right.

<p>Action — properly triable by jury — tried by court — trial de novo — not had in supreme court — findings of the trial court — presumed correct — error — burden of proof — on appellant to show — evidence.</p> <p>1. Where an action properly^ triable by a jury is tried by the court without a jury, the supreme court will not try the ease de novo, but the findings of the trial court are presumed to be correct. Appellant has the burden of showing error, and a finding based upon parol evidence will not be disturbed, unless shown to be clearly and unquestionably opposed to the preponderance of the evidence.</p> <p>Evidence — trial court — judgment — guarantors.</p> <p>2. Evidence examined and held sufficient to warrant the trial court in awarding judgment against the appellants as guarantors.</p>

Appeal 'from tbe District Court, Cavalier County; W. J. Kneeshaw, J. From a judgment in defendant’s favor, plaintiff appeals. “Although the by-laws of a corporation require the entry of transfers on the stock register, yet if none is kept and a transfer by the subscriber to the capital stock is entered according to the custom of the company on the subscription list, the same is sufficient.” 10 Cyc. 593.

<p>Jurors — challenge — peremptory — right to —juror accepted — by both parties — not permitted — discretion oí court.</p> <p>1. A party is not entitled as a matter of right (and without cause shown), to challenge, peremptorily, a juror who has been accepted by both parties. Under such circumstances it is, ordinarily, a matter resting within the trial court’s discretion, whether a party should be permitted to submit such challenge, and error cannot be predicated upon tbe denial of such challenge unless it is shown that the trial court’s ruling amounted to an abuse of discretion.</p> <p>Probable cause — uncüsp.uted facts — question for court — substantial dispute as to facts — question for jury.</p> <p>2. What facts, or whether all or sufficient undisputed facts, constitute probable cause, is a question of law to be determined by the court; but when there is a substantial dispute as to what the facts are, it is for the jury to determine what the truth is, and whether the circumstances relied on as a charge • or justification are sufficiently established.</p> <p>Prosecution — malicious — question of fact — ordinarily.</p> <p>3. Whether a prosecution was malicious is ordinarily a question of fact to be determined by the jury.</p>

<p>Mortgagee — action by — against mortgagor — for possession of property — under mortgage — for purpose of foreclosure — redelivery bond — by mortgagor — death of, before trial — no administrator — third person — substitution of, as defendant — by stipulation — technicalities — waiver of — as to defect of parties — effect of stipulation — of substitution — judgment on — valid — revival of action — personal representative.</p> <p>1. Where an action is brought by the mortgagee against the mortgagor for the possession of a chattel for the purpose of foreclosing the mortgage on the same, and the mortgagor retains the possession of the article and gives a redelivery bond, but dies before the trial, and no administration is had of the estate, and after Ms death a third person marries his widow and flies a stipulation in the district court by which he agrees that he may be substituted as the defendant • in the action in the place of the deceased, and if the plaintiff recover in the action he will answer to the judgment and be bound thereby, and will waive all technicalities as to the defect of parties or wrongful or illegal substitution, and an order is entered substituting said third person as the defendant in the case, the said order and stipulation will have the same effect as if the complaint had been amended, and a judgment rendered thereon will be valid and binding as against the substituted defendant, and as between him and the said plaintiff, even though no attempt has been made to revive the action that was first brought, and as against the personal representative of the said deceased.</p> <p>Old district — causes pending in — new district — transferred to new district — judge of new district —on order of.</p> <p>2. After the formation of the ninth judicial district the cases theretofore pending in the counties of Bottineau, McHenry, and Pierce could, on order of the judge of said new district, and under the provisions of § 757, Compiled Laws of 1913, be entitled and heard in the ninth judicial district, and no prior order of the second judicial district was necessary for the purpose.</p>

<p>Verdict — evidence — substantial support — supreme court — will not weigh evidence — new trial — order denying — ground — insufficiency of evidence.</p> <p>1. Where a verdict has 'substantial support in the evidence, the supreme court will not weigh conflicting evidence; nor will it disturb such verdict, or an order denying an application for a new trial based upon alleged insufficiency of the evidence.</p> <p>Civil action — variance between pleading and proof — where material — misleading — prejudicial — action — defense.</p> <p>2. Under § 7478, Compiled Laws 1913, a variance in a civil action is not material unless it has actually misled the adverse party to his prejudice in maintaining his action or defense.</p> <p>Pleading and proof — variance — failure of proof — waiver — question — must be raised — on trial.</p> <p>3. A variance between the pleading and the proof, not amounting to a failure of proof, is waived unless such question is raised seasonably, in an appropriate manner upon the trial of the cause.</p>

<p>Civil action — justice court — judgment —■ appeal from — either party may take. .</p> <p>1. Under § 9163, Compiled Laws of 1913, any party dissatisfied with a judgment in a civil action may appeal therefrom to the district court; hence, where but one party appeals, the other will be deemed to be satisfied with the justice’s judgment.</p> <p>Judgment — justice of peace — appeal from — effect of — does not vacate — suspends during appeal.</p> <p>2. An appeal from the judgment of a justice of the peace does not vacate such judgment altogether, but merely suspends it pending- the appeal.</p> <p>Justice of peace — judgment — appeal — dismissal — consent of otlier party — respondent — counsel for — consent to dismissal — power to — or payment of amount.</p> <p>3. A party appealing from a judgment of a justice of tlie peace may dismiss or discontinue his appeal without the consent of the adverse party. This being true, it is held that counsel for such adverse party has authority to consent to a dismissal or discontinuance of the action upon payment of the full amount due on the judgment.</p>

“A contract made expressly for the benefit of a third person may be enforced by him at any time before the parties thereto rescind it.” Comp.

<p>Primary election law — United States Senator — petition — candidate for — two vacancies — full term — unexpired term.</p> <p>1. Under chapter 109, Laws of 1907, known as the primary election law, the petition of a candidate for United States Senator must specify the particular term of the office which he is a candidate for, where there are two vacancies to he filled at the same time, one for a full term, and one for an unexpired part of a term.</p> <p>Vacancies — when deemed to exist — vote for two candidates — not an expression of choice — for office.</p> <p>2. In sueli a case the vacancies are deemed to exist in two independent offices, made so in the case of United States Senators by reason of the expiration of the terms at different times, and k vote for two candidates in such a case is not an expression of choice so far as the term of the office is concerned.</p> <p>Office — title — tenure — term — name of office — relation.</p> <p>3. The title of an office, as used in § 9 of that act, includes within its meaning the tenure or term thereof, and the word does not merely relate to the name of the office.</p> <p>United States Senator — office of — vacancies — legislature — filled by — voters — permitted to express- opinion — choice — members of party.</p> <p>4. Under chapter 109, Laws of 1907, vacancies occurring in the office of United States Senator by reason of death, or otherwise, are to be filled by the legislature, but preliminary to such election the voters are permitted to express their choice for that office, as members of a party, the same as in other cases.</p> <p>Primary election law — liberally construed — remedial purposes.</p> <p>5. The primary election law should be liberally construed to effectuate its remedial purposes.</p>

.Appeal from the District Court of Ward County, Leighton, Judge. , Special proceeding brought under § 1188 of the Compiled Laws of 1913 to compel the directors of a school district to erect a school to accommodate children now distant more than 2-J miles from any school in said district. Judgment for plaintiff. Defendants appeal.

The law of this state is settled, that before a judgment notwithstanding the verdict can be entered, the defense or cause of action must be defective in matter or substance, and beyond the power of amendment. Richmire v. Andrews & G. Elevator Co. 11 N. D. 454, 92 N. W. 819; :2 Enc.

Proceedings to set aside and declare null and void a judgment obtained by default. Judgment fox defendant. Plaintiff appeals. Reversed. If it is necessary, under our statute, for an attorney to write his name to a summons with pen and ink, it is just as necessary for him to-so write'his address thereon, for both are equal requisites under the law. Comp. Laws 1913, §§ 7421, 8944.

Evidence examined and it is held that plain tiffs, have failed to establish any right of recovery. From a judgment of the district court of Nelson County, Cooley, Ji plaintiffs appeal. A purchaser at a tax sale acquires an estate or interest in real property. It is inchoate, in that it may be defeated by redemption; but if no redemption, it will ripen into a complete title upon the issuance of a tax deed. Clark v. Darlington, 7 S. D. 148, 58 Am.

Appellants insist that under our constitution and statute law the school board of the Independent School District of Grand Dorks have the right to use money raised and levied for a certain purpose, for other school purposes, and when such money is not needed for the specific purpose for which it was raised, to divert it, and use it for other immediate school purposes, and that money raised for teachers’ wages, when not so needed, may be diverted and transferred over into the…

Action for goods sold and delivered. Proof shows deliveries at business places to those in charge. Held: An appeal from tbe District Court of Ramsey County, Bultz, Judge. Among cases in wbicb, primary evidence being unavailable, unsworn statements give rise to an inference of their truth, are declarations of third persons, not witnesses, which are opposed to the pecuniary and proprietary interests of the declarant. 16 Cyc. 1217.

From a judgment in defendants’ favor, plaintiffs appeal. School districts can only have and exercise such powers as are expressly granted by the law providing for their creation. They are created for special purposes, and have only such powers as are granted by legislative enactment. Capital Bank v. School Dist. 6 Dak. 248, 42 N. W. 774; Farmers’ & M. Nat.

E. Leighton, J. Action to recover damages for personal injuries sustained while unloading a freight car. Judgment for plaintiff. Defendant appeals. The so-called “Fellow-Servant Act” of this state does not apply in this case. Comp. Laws 1913, § 48.04; Beleal v. Northern P. B. Co. 15 N. D. 318, 108 N. W. 33, 11 Ann. Cas. 921, 20 Am. Neg. Bep. 453.

<p>Appeal from the District Court of Grand Forks County, O. Cooley, Judge.</p> <p>Action to recover for personal injuries arising from alleged negligence in the operation of an automobile. From orders overruling demurrers to the complaint, defendants appeal.</p> <p>The complaint is void of any allegation showing negligence on the part of M. Easmussen, or in anywise connecting him with the commission of the alleged negligent or wrongful act. His liability is predicated upon the relationship of the defendants. The master is liable for the acts of the servant only while such servant is acting within the scope of his employment. Warax v. Cincinnati, N. O. & T. P. E. Co. 72 Fed. 643.</p> <p>At common law the action against the servant was in trespass, and on the case against the master. They could not be joined. 1 Ohitty, PI. 12th ed. 1828; Pom. Code Eem. §§ 307, 308; Bliss, Code PL §§ 82, and 83; 26 Cyc. 1545; 5 Thomp. Neg. § 5776; Parsons v. Winchell, 5 ■Cush. 592, 52 Am. Dec. 745 ; Mulchey v. Methodist Religious Soc. 125 Mass. 487; Western TJ. Teleg. Co. v. Olsson, 40 Colo. 264, 90 Pac. •'841; Prench v. Central Constr. Co. 76 Ohio St. 509, 12 L.R.A. (N.S.) ■669, 81 N. E. 751; Clark v. Fry, 8 Ohio St. 358, 72 Am. Dec. 590; Herman Berghoff Brewing Co. v. Przbylski, 82 111. App. 361; Mc-Nemar v. Cohn, 115 111. App. 31; Campbell v. Portland Sugar Co'. 62 Me. 552, 16 Am. Rep. 503; Page v. Parker, 40 N. H. 47.</p> <p>“Although there are authorities to the contrary, the better rule, and the one supported by the weight of authority, is that where the master is liable for the negligent or wrongful act of his servant solely upon the ground of relationship between them under the doctrine of respondeat superior, and not by reason of any personal share in the negligent or wrongful act, by his presence or express direction, he is not liable jointly with the servant, and a joint action cannot be maintained •against them.” Warax v. Cincinnati, N. O. & T. P. R. Co. 72 Fed. '637; Hukill v. Maysville & B: S. R. Co. 72 Fed. 745; Helms v. Northern P. R. Co. 120 Fed. 389; Davenport v. Southern R. Co. 124 Fed. D83; Shaffer v. Union Brick Co. 128 Fed. 97; Gustafson v. Chicago, R. P. & P. R. Co. 128 Fed. 85; McIntyre v. Southern R. Co. 131 Fed. 985; Henry v. Illinois C. R. Co. 132 Fed. 715; Sessions v. Southern P. ■Co. 134 Fed. 313.</p> <p>The measure of their liability varying, and being different in degree, they cannot be joined as defendants in the same action. Davenport v. Southern R. Co. 124 Fed. 983; Gustafson v. Chicago, R. I. & P. R. •Co. 128 Fed. 85.</p> <p>The demurrer is made upon the ground that two causes of action have been improperly united in the same complaint, — separately stated. The weight of authority and the better reasons seem to support the view that the remedy in such a case is not by demurrer in the first instance, but by a motion to make more definite and certain. Lewis v. Hinson, 64 •S. O. 571, 43 S. E. 15; Cargar v. Eee, 140 Ind. 572, 39 N. E. 93; Times Pub. Co. v. Everett, 9 Wash. 518, 43 Am. St. Rep. 865, 37 Pac. 695.</p> <p>This court, in passing on the questions raised by the demurrer, can consider nothing excepting that which appears from the face of the complaint. ITartland v. Windsor, 29 Yt. 354.</p> <p>The complaint shows that the two defendants joined in the commission of the tort, and co-operated in the acts of negligence that caused the injury of which complaint is made. Pom. Code. Rem. 4th ed. § 307.</p> <p>Trespass was the form of action originally for injuries caused by force, immediate and direct. But when it was desired to enforce the liability of the master for the negligent acts of his servant, it was found, .there being no direct force emanating from the master, that the old writ of trespass did not meet the needs of the situation. Consequently, the statute of Westminster 2d was passed, giving authority to the clerks of chancery to issue writs where the case was similar to some of the existing actions. 13 Edw. I.; 2 Bl. Com. 51; 4 Reeves, History of' English Law, 430; 1 C. J. 1064.</p> <p>But under our statute all forms of pleading are expressly abolished. Comp. Laws, 1913, §§ 7355, 7439; Ed. of Blackstone 1916, p. 1643.</p> <p>The fundamental provision of these Codes is the abolition of distinction between forms of actions. Under their provisions there is but one form of civil action. Grain v. Aldrich, 38 Cal. 514, 99 Am. Dec. 423; Oolitic Stone Co. v. Ridge, 169 Ind. 639, 83 N. E. 246; Conaughty v. Nichols, 42 N. Y. 83; Soule v. Weatherby, 39 Utah, 580, 118 Pac. 833, Ann. Cas. 1913E, 75; Pom. Code Rem. p. 5 note, § 347 ; 'Hahl v. Sugo, 169 N. Y. 109, 61 L.R.A. 226, 88 Am. St. Rep. 539, 62 N. E. 135; Parsons v. Winchell, 5 Cush. 592, 52 Am. Dec. 745; ITewett v. Swift, 3 Allen, 425; Schumpert v. Southern.R. Co. 65 S. O. 332, 95 Am. St. Rep. 802, 43 S. E. 813, 13 Am. Neg. Rep. 676; Comp. Laws 1913, §§ 7355, 7439.</p> <p>“The rule seems to be wéll settled by the authorities that when the injury to the plaintiff results from the immediate force of the defendant, and is caused by his carelessness and negligence, and is not wilful, the plaintiff can maintain either trespass or case.” Howard v. Tyler, 46 Yt. 688; Gates v. Miles, 3 Conn. 64; Blin v. Campbell, 14 Johns. 432; McAllister v. Plammond, 6 Cow. 342; Brennan v. Carpenter, 1 R. I. 474; Moretón v. Plarden, 4 Barn. & C. 223, 107 Eng. Reprint, 1042, 4 Dowl. & R. 275; Williams v. Holland, 10 Bing. 112, 131 Eng. Reprint, 848, 6 Oar. & P. 23, 3 Moore & S. 540, 2 L. J. C. P. N. S. 190; 9 Bacon, Abr. 441.</p> <p>Among wilful tort feasors or intentional wrongdoers, no contribution will be allowed. Merryweather v. Nixan, 8 T. E. 186, 101 Eng. Eeprint, 1337, 16 Eevised Eep. 810 (1799) ; Peck v. Ellis, 2 Johns. Ch. 131; Arnold v. Clifford, 2 Sumn. 238, Eed. Cas. No. 555; Miller v.. Eenton, 11 Paige, 18; Hunt v. Lane, 9 Ind. 248; Ehea v. White, 3-Head, 121; Spaulding v. Oakes, 42 Yt. 343, 1 Am. Neg. Eep. 399;, Atkins v. Johnson, 43 Yt. 78, 5 Am. Eep. 260 (1870) ; Boyd y. Gill, 21 Blatchf. 543, 19 Eed. 145 (1886) ; Davis v. Gelhaus, 44 Ohio St. 69, 4-N. E. 593 (1886); Boyer v. Bolender, 129 Pa. 324, 15 Am. St. Pep-723, 18 Atl. 127 (1889).</p> <p>The general rule is that even where the parties are equally wrong, in pan delicto, as far as legal liability to respond in damages for injuries to their persons is concerned, contribution will be allowed for joint quasi delicto, where the wrong or tort was not wilful, malicious,, intentional, unlawful, or immoral. Thweatt v. Jones, 1 Eand. (Ya.) 328, 10 Am. Dec. 538 (1823) ; Wooley v. Batte, 2 Car. & P. 417 (1826) ; Horbach v. Elder, 18 Pa. 33 (1851) ; Acheson v. Miller, 2 Ohio St. 203, 59 Am. Dec. 663 (1849) ; Bailey v. Bussing, 28 Conn. 455 (1859) ; Selz v. Hnna, 6 Wall. 327, 18 L. ed. 799 (1867); Nicker-son v. Wheeler, 118 ÜVÍass. 295 (1875) ; Ankeny v. Moffett, 37 Minn. 109, 33 N. W. 320; Smith v. Ayrault, 71 Mich. 475, 1 L.E.A. 311,. 39 N. W. 724 (1888); Yandiver v. Poliak, 97 Ala. 467, 19 L.E.A.. 628, 12 So. 473 (1893); Earwell v. Becker, 129 111. 261, 6 L.E.A. 400,, 16 Am. St. Eep. 267, 21 N. E. 792 (1889); Cooley, Torts, 3d ed. 254; Mayberry v. Northern P. E. Co. 100 Minn. 79, 12 L.E.A. (N.S.) 675,, 110 N. W. 356, 10 Ann. Cas. 754.</p> <p>. This rule, however, does not apply to torts which are the result of' mere negligence. Ankeny v. Moffett, 37 Minn. 109, 33 N. W. 320;. Churchill v. Holt, 127 Mass. 165, 34 Am. Eep. 355; Acheson v. Miller,. 2 Ohio St. 203, 59 Am. Dec. 663; Torpy v. Johnson, 43 Neb. 882; 62' N. W. 253; Adamson v. Jarvis, 4 Bing. 66, 130 Eng. Eeprint, 693,. 5 L. J. C. P. 68; 9 Cyc. 804; 7 Am. & Eng. Enc. Law, 365.</p> <p>Argument that these defendants should not be joined because the-master has not the right of contribution is specious and fallacious, and1 has no substantial support in the authorities. Bliss, Code PL § 89 ;■ Addison, Contr. 34, 35; Schumpert v. Southern E. Co. 65 S. C. 332,, 95 Am. St. Eep. 806, 43 S. E. 813, 13 Am. Neg. Eep. 676; Lowell v. Boston & L. R. Corp. 23 Pick. 24, 34 Am. Dec. 33; Old Colony R. ■Co. v. Slavens, 148 Mass. 363, 12 Am. St. Rep. 558, 19 N. E. 372.</p> <p>Sucb joinder is sanctioned by the Federal courts. Davenport v. Southern R. C0‘. 68 O. C. A. 444, 135 Fed. 960; Thomas v. Great Northern R. Co. 77 C. C. A. 255, 147 Fed. 83; Charman v. Lake Erie & W. R. Co. 105 Fed. 449; Connelhv. Utica, U. & E. R. 0<x 13 Fed. 241; Kelly v. Chicago & A. R. Co. 122 Fed. 286; Comitez v. Parkerson, 50 Fed. 170; Chicago, R. I. & P. R. Co. v. Martin, 59 Kan. 437, 53 Pac. 461, 4 Am. Neg. Rep. 266, 178 U. S. 245, 44 L. ed. 1055, 20 Sup. Ct. Rep. 845; Mayberry v. Northern P. R. Co. 100 Minn. 79, 12 L.R.A. (N.S.) 675, 110 N. W. 356, 10 Ann. Cas. 754.</p> <p>Respondent contends that it is proper to join the master and servant under the facts in this case, and that this view finds ample support in the authorities, and is more in harmony with the modern and reformed procedure under the Codes. Pom. Code Rem. § 312; Bailey, Personal Injuries, p. 2173; Wood, Mast. & S. 667; 2 Thomp. Neg. § 11; Cooley, Torts, 3d ed. 241, 242; Ohannan v. Lake Erie & W. R. Co. 105 Fed. 449; Mayberry v. Northern P. R. Co. 100 Minn. 79, 12 L.R.A. (N.S.) 675, 110 N. W. 356, 10 Ann. Cas. 754; Wright v. Compton, 53 Ind. 337, 2 Mor. Min. Rep. 189; Ilowe v. Northern P. R. Co. 30 Wash. 569, 60 L.R.A. 94, 70 Pac. 1100; Thomas v. Great Northern R. Co. 77 C. C. A. 255, 147 Fed. 83; Greenberg v. "Whitcomb Lumber Co. 90 Wis. 225, 28 L.R.A. 439, 48 Am. St. Rep. 911, 63 N. W. 93; Schumpert v. Southern R. Co. 65 S. C. 332, 43 S. E. 813, 13 Am. Neg. Rep. 676, 95 Am. St. Rep. 802, note p. 809; Kelly v. Chicago & A. R. Co. 122 Fed. 286; Henshaw v. Noble, 7 Ohio St. 226; Whalen v. Pennsylvania R. Co. 73 N. I. L. 192, 63 Atl. 993; Southern R. Co. v. Grizzle, 124 Ga. 735, 110 Am. St. Rep. 191, 53 S. E. 244; Winston v. Illinois O. R. Co. Ill Ky. 954, 55 L.R.A. 603, 65 S. W. 12; Central of Georgia R. Co. v. Brown, 113 Ga. 414, 84 Am. St. Rep. 250, 38 S. E. 989, 10 Am. Neg. Rep. 30; Gardner v. Southern R. Co. 65 S. O. 341, 43 S. E. 816; Phelps v. Wait, 30 N. T. 78; Wright v. Wilcox, 19 Wend. 343, 32 Am. Dec. 507; Suydam v. Moore, 8 Barb. 358; Hewett v. Swift, 3 Allen, 420; Roberts v. Johnson, 58 N. T. 616, 5 Am. Neg. "Cas. 200; Newman v. Fowler, 37 N. J. L. 89; Brokaw v. New Jersey R. & Transp. Co. 32 N. J. L. 328, 90 Am. Dec. 659; Shearer v. Evans, 89 Ind. 400.</p> <p>No punitive damages could be allowed or collected under the pleadings in this case, as no malice or gross negligence is charged. Therefore counsel’s argument on this point is not pertinent. Hannening v. How-land, 25 N. D. 38, 141 N. W. 131; Shoemaker v. Sonju, 15 N. D. 518, 108 N. W. 42, 11 Ann. Cas. 1173; Davis v. Seeley, 91 Iowa, 583, 51 Am. St. Rep. 356, 60 N. W. 183; Comp. Laws 1913, § 7466.</p>

If plaintiff was living in adultery, and tbe decedent did not support ber, sbe could not recover in this action. Tbe court erroneously limited and restricted defendant in its proof in these respects. Defendant bad tbe right to have evidence of these facts go to tbe jury. Ferren v. Moore, 59 N. H. 106; Boos v. Minneapolis, St. P. & S. Ste. M. R. Co. 127 Minn. 381, 149 N. W. 660; Stimpson v. Wood, 59 B. T. N. S. 218, 57 L. J. Q. B. N. S. 484, 36 Week.

'Appeal from the District Court of Mountrail County, Franlc E. Fislc, Judge. Judgment for plaintiff. Defendant appeals. Action in amercement under § 7770, Compiled Laws of. 1913.

Defendant appeals. “Tbe duties and obligations of tbe common carrier witb respect to tbe goods commence witb tbeir delivery to bim; this, delivery must be complete, so as to put upon bim tbe exclusive duty of seeing to tbeir safety. Tbe law will not divide tbe duty or tbe obligation between tbe carrier and tbe owner of tbe goods and until it has become imposed upon tbe carrier by a delivery and acceptance, be cannot be held responsible for loss.

<p>United States — Constitution — Amendment — state courts — trials in — not applicable.</p> <p>1. The 6th Amendment to the Constitution of the United States is not applicable to trials in state courts.</p> <p>Supreme court — criminal cases — appeals in — judgment — technical errors — without — substantial rights.</p> <p>2. Under the provisions of § 11013, Compiled Laws 1913, the supreme court, in determining appeals in criminal causes, must give judgment without regard to technical errors or defects or exceptions which do not affect the substantial rights of the parties.</p> <p>Trial courts — discretion — conduct of trials.</p> <p>3. Trial courts are vested with great discretion as regards the conduct of a trial and the regulation of matters incident thereto.</p> <p>Witnesses — testimony — talcing of — criminal action — at hospital — county seat — place of trial — jurisdiction — judgment — discretion of court.</p> <p>4. Taking the testimony of a witness in a criminal action at a hospital in the cbunty seat where the trial is being conducted, to which the presiding judge, jurors, court officials, state’s attorney, and the-defendant and his attorney, go for that purpose, against the defendant’s objection, does not deprive the court of jurisdiction or nullify the judgment, and it cannot be said that any substantial right of defendant has been affected, unless it is shown that the trial1 court abused its discretion to the defendant’s prejudice.</p> <p>Note. — Upon the validity of proceedings in course of a trial outside of the court room, see note in 41 L.R.A. 563, in which the cases appear to be in conflict with the doctrine of State v. Tracy, although the annotated case Selleck v. Janesville, 41 L.R.A. 563, is in accord therewith, holding that taking the testimony of the plaintiff at her own home, to which the presiding judge and the jurors go for that purpose, against the defendant’s objection, although it cannot be regarded as done in open court, does not deprive the court of jurisdiction or nullify the judgment, but is at most an irregularity.</p>

From a judgment of the District Court of Williams County, Fisk, J., defendant appeals. In an action for damages for breach of promise of marriage, the testimony of the plaintiff upon all of the material matters must be corroborated. Huston v. Johnson, 29 N. D. 546, 151 N. W. 774; 5 Cyc. 1017; Giese v. Schultz, 65 Wis. 487, 27 N. W. 353 ; Musselman v. Barker, 26 Neb. 737, 42 N. W. 759; Chamness v. Cox, 131 Ind. 118, 30 N. E. 901; Kennedy v. Rodgers, 2 Kan.

<p>Action — venue — change of — affects the merits — order on — appealable,</p> <p>1. An order which changes the venue of an action affects the merits thereof, and is appealable under the provisions of § 7841 of the Compiled Laws of 1913.</p> <p>■County court — appeals from —probate proceedings — district court — calendar of causes — jurisdiction — continuance over term — causes for — illness of counsel.</p> <p>2. Section 8615 of the Compiled Laws of 1913, which provides that appeals from the county court in probate proceedings must be docketed in the district court and placed on the calendar of causes for trial according- to the date on which they are perfected, cannot, and is not so construed as to, imply that such district court will lose jurisdiction of the action when an appeal has been regularly taken to it, and the case has been regularly docketed, and merely because the case has been continued over the term on account of the illness of counsel.</p> <p>«Change of venue — civil cases — witnesses — convenience of — trial court — adjoining county — cause sent to — not required.</p> <p>3. Section 7418 of the Compiled Laws of 1913, which provides for changes of venue in civil cases, presupposes that the convenience of witnesses and the saving of expense will be considered by the trial judge who grants the change, but does not require that in all cases the action shall be sent for trial to an adjoining county.</p>

<p>'State Constitution — heir — suit for partition — other heirs and administration — against — cannot maintain — in district court — jurisdiction — county court taken — after — prohate purposes — before final decree.</p> <p>1. Under the provisions of § 111 of the Constitution of North Dakota, and §§ 8524, 8707, 8730, 8733, and 8797, of the Compiled Laws of 1913, an heir cannot maintain a suit for partition against the other heirs and the administrator of an estate in the district court, after the county court has assumed jurisdiction to probate and administer the same, and has appointed an administrator for that purpose, and before a final decree of distribution has been made in the county court.</p> <p>Partition — action in — brought in name of heirs alone — or jointly with administrator — statute — confers no right of hostile action — administrator — against.</p> <p>2. Section 8797 of the Compiled Laws of 1913, which provides that actions in partition may be brought in the name of the heirs alone, or by the heirs and administrator jointly, confers no right to maintain an action which is hostile to the rights of such administrator.</p>

<p>Perjury — false testimony — civil action — during trial of — issues — no proof of — testimony — materiality of — conviction for — immaterial testimony — will not stand — advised verdict — motion for — error raised by — instructions — exceptions.</p> <p>A prosecution for perjury for alleged false testimony given by defendant during trial of a civil action. There was no proof made of what the issues were in such civil action. Hence, there was no evidence from which to determine the materiality of such false testimony. A conviction of perjury cannot be sustained upon immaterial testimony, or sustained without proof of materiality of the false testimony upon which the prosecution is predicated. Such error was raised by motion for an advised verdict of acquittal, again on exceptions to instructions.</p> <p>Note. — Authorities on the question of whether a charge of subornation of perjury may be based on false testimony which is immaterial are collected in a note in 25 L.R.A. (N.S.) 120, which may be of interest in connection with this case.</p>

<p>Mandamus — original proceedings — state auditor — appropriations — tax commission — unexpended balance — contemplated allowance — law — one-man tax commission — legislature.</p> <p>1. Original mandamus proceedings to compel state auditor to credit certain alleged appropriations claimed by the tax commission to be standing appropriations for its use under chap. 303, Session Laws 1911, and for an alleged unexpended balance of appropriations. The auditor’s return discloses that he has credited the commission with all the appropriations provided for it by the 1915 legislature. The commission claims that the 1915 appropriation is invalid because alleged to have been enacted as contemplated allowances for a one-man tax commission, which the legislature assumed would be enacted by senate bill 261, failing of passage in the closing days of the last legislature.</p> <p>General appropriation — bill — salaries — tax commissioners — validity of law.</p> <p>2. The first item of subdivision 18 of said chap. 43, Sess. Laws 1915, the general appropriation bill, has been so held void in State ex rel. Packard v. Jorgenson, 31 N. D. 563, for failing to appropriate for salaries for the tax commissioners. The validity of the balance of the subdivision, being appropriations for eleven specific classifications of expense, is the issue involved here.</p> <p>Meld, The last eleven items of said subdivision 18 are valid appropriations, and were not passed under misapprehension or by legislative inadvertence. .</p> <p>Sections 6 and 7 of chapter 303 of the Session Laws 1911, did not constitute an appropriation for the tax commission of more than $6,000 per annum, for all the items therein included.</p> <p>Appropriations — form of — balance — continuing appropriation — commission — biennial period.</p> <p>3. The form of the appropriations made under chap. 303, Sess. Laws 1911, was such as to leave no unexpended balance of appropriations remaining over as a continuing appropriation for the use of the commission, in the event that such sums were not all expended during such biennial period.</p> <p>State auditor — validity of law — appropriation — unexpended balance — commission not entitled to.</p> <p>4. The state auditor’s contention as to both the validity of subdivision 18, and that there is no unexpended balance from the preceding biennial period to which commission is entitled to credit, is sustained. This proceeding is dismissed without costs.</p>

From a judgment of tbe District Court of Grand Forks County, Cooley, J., defendant appeals. An agent cannot do indirectly what be is forbidden to do directly. Tbe agent in this case bad no authority.to bind tbe company to tbe promise to pay Griffith any sum of money to reimburse him for advancement made to tbe injured workman. He bad no ostensible or apparent authority to malee tbe alleged promise.

<p>Railway company — malicious assault — brakeman — peace officer — committed by — railway company — property of — protection of — furtherance of its business.</p> <p>1. A railway company is not liable, under tbe provisions of § 10591, Compiled Raws of 1913, for a malicious assault committed by a peace officer and a brakeman who are in its employ, when such assault is not committed for the purpose of protecting the property of the said company or in the furtherance of its business, or while said persons are acting for it.</p> <p>Note. — That the case of Kinnonen v. Great Northern R. Co. expresses and is in accord with the great weight of authority on the question of the liability of an employer for the acts of a special policeman will be found by an examination of the notes in 23 L.R.A.(N.S.) 289; 30 L.R.A.(N.S.) 481; 39 L.RA.(N.S.) 122; and 43 L.R.A. (N.S.) 1164, on the liability of private person or corporation for acts of special police officer appointed by public authority.</p> <p>Malicious assault — by brakeman — special police officer — train —person assaulted —ejected from — public street — trespasser — stealing ride on train.</p> <p>2. A railway company is not liable for a malicious assault upon a person, committed by one of its brakeman and by a special peace officer employed by it, after such person has been ejected from and left its train for stealing a ride therefrom, and who after such ejection, and a mile or so from the place thereof, and while the train is stopping at a station, gets into an altercation with another brakeman, and then runs and is chased away, and later returns towards the train, and then is arrested upon a public street by the peace officer, either on the charge of an assault with a deadly weapon alleged to have been committed during the aforesaid altercation, or for having unlawfully stolen a ride on said train, and who, after such arrest, is assaulted by the brakeman, who is aided by the police officer either by standing by without interfering, or by holding the plaintiff; there being no proof whatever in the record that at the time of such assault either the police officer or the brakeman were acting for the protection of the property of the company, or that the said plaintiff was about to, or intended again to, board the train, or that the said peace officer and brakeman had any idea that he intended so to do.</p> <p>Railway property — protecting — guarding — malicious assault — time intervening — between the acts — appreciable — deemed personal assault — employer — not act of;</p> <p>3. Where an appreciable interval intervenes between the acts of protection which are exercised by persons in the guarding of the property of their employers and a malicious assault which they afterward^ commit, the assault will be deemed to be a personal act of the servant, and not an act of the employer.</p>

From a judgment against defendant in District Court, Ward County, Leighton, Judge, defendant appeals. “Money received by a bank solely for tbe purpose of transmission to a correspondent bank becomes a special deposit.” Cutler v. American Excb. Nat. Bank, 113 N. Y. 593, é L.B.A. 328, 21 N. E. 710. “Tbe fact that money so collected bas been mingled in tbe vault with other funds of tbe bank does not alter or destroy tbe relation of bailor and bailee.” Plano Mfg.

<p>Supreme court —trial de novo in —demand, for —written contract — reformation — fraud — cancelation for — title to land — possession — contract — abandonment — forfeiture — annual rental — interest in lieu of— costs.</p> <p>Both parties appeal. Trial de novo demanded by defendant and partial retrial by plaintiff. Reformation of a written contract and its cancelation for alleged fraud of defendant, and forfeiture for his defaults under the contract, are sought by plaintiff; defendant asks that title of the land in suit be quieted in him, on condition.</p> <p>Held: There was no fraud practised upon plaintiff, inducing her to make the contract for sale of the land to defendant.</p> <p>(2)- Possession in defendant was contemplated by the contract.</p> <p>(3) There was no abandonment by defendant of the contract or premises.</p> <p>(4) Plaintiff is not entitled to forfeiture.</p> <p>(5) Plaintiff should not recover an annual rental of $300 and interest thereon for defendant’s possession of the premises.</p> <p>(6) In lieu of rental allowed by the judgment, plaintiff should recover only interest at 7 per cent per annum on the $2,100 balance due on contract from its date of deposit made with the clerk.</p> <p>(7) Balance of deposit over $2,100 and interest and costs of trial less defendant’s costs on this appeal, ordered returned to defendant, in whom also title is quieted to the half section in dispute.</p>

G. Grawford, L From a judgment in defendants’ favor, plaintiffs appeal. Unless these proceedings can be inquired into in an action or proceeding in the nature of quo warranto, the plaintiffs are without remedy; and where this remedy is available, it has been held there is no concurrent remedy in equity, unless by statutory provision. Comp. Laws 1913, §§ 1147, 3298; 32 Cyc. 1415, 1424, 23 Am. & Eng. Enc. Law, 2d ed. 637; State ex rel.

<p>Taxes — lands sold for — to county — deed — quitclaim — tax deed — purchaser— note — mortgage — lack of title —to defeat mortgage — cannot claim — claims hy third parties —none ever asserted — purchaser in possession — undisputed — rents — receiving.</p> <p>1. Where the record shows that land was sold to the county of M. for taxes (though there is no proof of the issuance of a tax deed), and was afterwards quitclaimed by the county to A by an instrument which recited that a tax deed had been issued to the county therefore, and was occupied by A for five years and improved by him, and later sold by him by warranty deed to C, and then by 0 conveyed by warranty deed to D, the last purchaser, D, cannot, when sued on a note and mortgage which were given by him as part payment on such purchase, avoid the payment thereof by alleging a lack of title in the original grantor and by proof merely that there is no evidence of the issuance of a tax deed to the county, and if the property was not obtained by the county under tax sale, the title remains in the original owners, who have never asserted any title thereto or made any claim therefor, the said D never at any time having offered to return the property, nor brought any suit to quiet the title thereto, nor attempted to rescind his contract of purchase, but, on the other hand, having remained in the possession of the premises, and being in such possession and collecting the rent thereof at the time of the trial.</p> <p>Warranty — breach of — rescission — damages — suit for.</p> <p>2. Parties who claim a breach of warranty may do one of two things. They may rescind or they may stand on their contract and sue for damages for the breach. They cannot do both.</p> <p>Seisin — implies possession — legal right — estate in lands.</p> <p>3. Seisin implies possession. It is possession with a legal right to the estate in the land.</p>

<p>Appeal from the District Court, Hettinger County, W. C. Crawford> J.</p> <p>Erom a judgment in defendants’ favor, plaintiffs appeal.</p>

<p>Appeal from the District Court of Burleigh County, Hon. W. L. Nuessle, J.</p>

From a judgment of the District Court of Richland County, Allen, J., defendant appeals. The whole contract is an example of rare ingenuity, and comes very near being inherently fraudulent on its face, and void as against public policy. The defendant was an unsuspecting purchaser. He relied upon what the agent said and read to him, and supposed that the instrument he signed contained just what the agent had read to him.

<p>Personal property — warranty oí quality — breach of — ‘executed contract — rescission — fraud — absence of.</p> <p>1. A person cannot for breach of warranty of the quality of personal property rescind an executed sale in the absence of fraud or an agreement authorizing a rescission.</p> <p>Counterclaim — evidence — damages — proof of — jury — questions for — verdict — motion for directed — error.</p> <p>2. Evidence examined and held insufficient to warrant a submission to the jury of the defendant’s counterclaim, there being insufficient proof of damages occasioned by the breach of warranty therein alleged. It was therefore error to deny plaintiff’s motion for a directed verdict.</p> <p>Damages — measure of — breach of warranty — quality of personal property.</p> <p>3. The true measure of damages for breach of warranty of the quality of personal property is the excess, if any, of the value which the property would have had at the time to which the warranty referred, if it had been complied with, over its actual value at that time.</p>

<p>Witnesses — credibility — testimony of — weight of — questions for jury.</p> <p>1. The credibility of -witnesses and -weight of their testimony are questions for the jury.</p> <p>New .trial — motion for — trial court — rulings of — grounds for — must be. presented — waiver.</p> <p>2. Where there is a motion for a new trial, rulings of the trial court constituting proper grounds for a new trial under the statute must be so presented; otherwise they will be deemed waived.</p> <p>Evidence — admission — rulings on.</p> <p>3. Certain rulings on the admission of evidence examined and held nonprejudicial.</p> <p>Trial court — discretion — abuse of — new trial — motion for — newly discovered evidence.</p> <p>4. It is held that the trial court did not abuse its discretion in denying a motion for a new trial on the ground of newly discovered evidence.</p> <p>Complaint — cause of action — failure to set forth — objection — may betaken anytime — first in supreme court — not viewed with favor — liberal construction.</p> <p>5. Where a complaint wholly fails to set out a substantial cause of action, and cannot be made good by amendment, the objection to its sufficiency may be-urged at any time; but such objection is not viewed with favor where raised for the first time on appeal, and the complaint will be construed liberally and supported by every legal intendment.</p>

The parents of Andrew Torgerson entered into an oral understanding with him in 1839, whereby he should x’eside with and care for them during their lives, and should receive their property. They executed and delivered to him their joint written will constituting him sole devisee of all their property. Andrew purchased an adjoining quarter, sold his own homestead in another county, and for fifteen years lived with his parents.