Volume 38 — North Dakota Reports

From a judgment of tbe District Court of Grand Forks County, Oooley, J. There is no allegation that the assessments are unfair, unjust, excessive, or inequitable. Even if they were, equity furnishes no relief or ground for restraining collection or securing cancelation of the assessments and taxes. Comp. Laws 1913, § 2240, subd. 5; Holland v. Baltimore, 69 Am.

(7. Crawford, Judge. When one desirous of selling or trading lands secures the services of a broker by promise of a commission, and such broker procures a purchaser to whom such sale is made, he must pay such broker his «commission regardless of whether the actual sale was finally consummated by the broker, or whether the principal took the matter out ■of the hands of the broker and made sale himself.

A. Coffey, Judge. “The test of whether a person is competent to make a deed is that he should be qualified to do that particular business rationally; not, on the one hand, that he should be capable of doing all kinds of business with judgment and discretion, nor, on the other, that he should be wholly deprived of reason so as to be incapable of doing the most familiar and trifling work.” Nelson v. Thompson, 16 N. D. 295, 112 N. W. 1058; Jackson ex dem.

C. Crawford, Judge. The record of an instrument which cannot be classed as a “conveyance” of land does not give notice of itself to others. The record of it. must be brought to the attention of parties dealing with the land; in other words, actual notice must be had. Comp. Laws 1913 §§. 5504, 5594, 5595; State ex rel.

Prom an order of the District Court of Wells County, Coffey, J., respondents appeal. The appellee never became the lawful wife of decedent, because she márried him within three months after decree of divorce was granted him from his then wife. That such marriage was in violation of the laws of the state and was void, and appellee never having been decedent’s lawful wife, she is not now entitled to administration of his estate. Comp.

L. Nuessle, Judge. In a local action the venue is always in the county where the property is located. This is a local action, and could not have occurred anywhere except in the county where the real estate is located. Comp. Laws 1913, § 7415, subdiv. 1, § 7418; Dhooghe v. Chicago, R. I. & P. R. Co. 91. Neb. 613, 136 N. W. 1075, and cases cited; Barbour v. Fidler, 31 S. D. 351, 141 N. W. 88; Small v. Gilruth, 8 S. D. 287, 66 N. W. 452.

<p>Complaint — statutory form of — cause of action — description of plaintiff’s estate — interest or lien — description of land.</p> <p>1. Under the statutory form of complaint set forth in § 8147 of the Compiled Laws, the complaint states facts sufficient to constitute a cause of action, so far as the description of plaintiff’s estate is concerned, when the complaint shows that it “has an estate in, and interest in, the following described real property, situated in the above-named county and state, to wit: Mineral rights, assessed in Oliver county, North Dakota,” and follows this with a detailed and itemized statement and description of the land, giving the section, township, and range.</p> <p>Board of equalization — adjournment —description of real estate — inserted in assessor’s Ibooks — Iby county auditor thereafter — value — computing taxes — extends same on tax lists —notice to plaintiff —no opportunity to he heard — assessments void.</p> <p>2. Where the county auditor, after the adjournment of the board of equalization, inserts in the assessor’s books a description of real property in the name of the plaintiff, and affixes a value thereto, computes the taxes thereon, extends the same on the tax list as taxes, advertises the land for sale for delinquent taxes, and sells the same at tax sale, all without notice to the plaintiff and without affording the plaintiff an opportunity to be heard on the assessment, such assessment is absolutely void.</p> <p>Assessments — defects in — jurisdictional — courts — relief.</p> <p>3. The defects in such assessment are of such a jurisdictional character that this court cannot afford relief under the provisions of § 2201 of the Compiled Laws.</p> <p>Grantor — “mineral rights” reserved — reservation — interest in land — assessable — against grantor — taxes — payment by grantee — does not re* lieve grantor.</p> <p>4. Where a grantor conveys land, reserving to itself the “mineral rights” as set forth in- the opinion, such reservation is an interest in the land properly asses-Mile against the grantor, and the payment of taxes by the grantee does not relieve the grantor from the duty of paying taxes on such reservations nor discharge the grantor’s taxable obligations.</p>

<p>Crows — shooting oí — private diversion — public — not witnessed by — Sabbath breaking — crime oí — does not constitute.</p> <p>The shooting of crows as a private diversion, not witnessed by the public generally, and in such a way as not to attract a crowd or to injure anyone, does not constitute the crime of Sabbath breaking.</p> <p>Note. — As to what amusements are prohibited by Sunday laws, see note in 30 L.R.A. (N.S.) 465.</p>

<p>City council — plans — specifications — estimates — fox’ special assessments — levy of —. fox* city improvements — findings and declarations of council — prerequisite — mandatory.</p> <p>1. A finding and declaration by the city council -which is based upon and refers intelligently to the plans, specifications, and estimates, is a prerequisite to the levying of a special assessment for the erection of a standpipe, under the provisions of article 20 of chapter 44 of the Compiled Laws of 1913. Such requirement is held to be mandatory, and not to have been complied with in the case at bar.</p> <p>Statutes — provisions — lots to be assessed — personal inspection of —' for local improvement — benefits — amount of — determination of ■— mandatory.</p> <p>2. The provisions of § 3726 of the Compiled Laws of 1913, which require a personal inspection of the lots sought to he assessed for a local improvement and a determination from such inspection of the amount to which they will be benefited, are mandatory, and are held not to have been complied with in the ease at bar.</p> <p>Standpipe — erection of — contract let for — special assessment levied — waterworks district — not created — reassessment — remanded to district court — for such purpose — supreme court has no power to so order.</p> <p>3. Where a contract is let for the erection of a standpipe, and a special assessment levied therefor without a preliminary creation of a waterworks district, or a preliminary finding of necessity by the city council, the supreme court has no power under the provisions of §§ 3714 and 3715, Compiled Laws of 1915, alone to remand the case to the trial court for a reassessment.</p> <p>Standpipe — erection of — contract let for — special assessment levied — without preliminary finding — reassessment may he made — council may go hack — improvement necessary — finding of city council — resolutions of council — may correct errors.</p> <p>4. Where a contract is let for the erection of a standpipe, and a special assessment levied therefor without a preliminary creation of a waterworks district, or a preliminary finding of necessity by the city council, a reassessment can be made under the provisions of § 3713, Compiled Laws of 1913; and in such a case the municipality is given power by the statute to go back and pick up the thread of its proceedings where it has been broken off, to establish a waterworks district, to pass a resolution of necessity, — if they, in fact, find, the improvement to be necessary, — publish such a resolution, allow the statutory period for hearing objections, make the proper orders if objections are not made or are overruled, and proceed to the ultimate end of the collection of the assessment, and this although the improvement may already have been completed.</p> <p>Parties similarly interested — suit by one — for benefit of all — lot owners — join as plaintiffs — nominal — must come into action —and claim and, accept thereunder — decree — what parties to he included.</p> <p>5. One of several lot owners may sue on behalf of all others similarly situated to enjoin the collection of an illegal special assessment. Where, however, the other lot owners are not specifically made parties plaintiff, and have not personally joined in the action, but have merely stood by and allowed tlie action to be brought for all others similarly situated, and their names and lots and property to be mentioned in the body of the complaint, and the relief prayed to be asked for them as well as for the nominal plaintiffs, before they can be benefited by tbe judgment, they should come in in some way and claim thereunder and accept the same, and the decree in such case should be that the cause is remanded with directions to enter judgment for the nominal plaintiff as prayed for in the complaint, and also for such of the other parties whose names and property are mentioned in the said complaint and who shall make application to the court to come under the judgment, and who shall prove themselves entitled thereto.</p>

M. Cooley, J. It is a well-established rule that when a contract, doubtful in meaning as to any of its terms, has been prepared by one party, it shall be construed favorably to the other party and most consistent with the right of the case, and so as to accomplish the objects and purposes the parties had in view and so as not to impair or render nugatory the rights of either party. Wyatt v. Larmer & W. Irrig. Co. 18 Colo. 298, 36 Am.

L. Neussle, J. Judgment for defendant. Plaintiff appeals. Ratification must be pleaded as an affirmative defense, and, if not so pleaded, evidence thereof cannot be offered. Comp. Laws 1913, § 7448, subd. 2; Erickson v. First Nat. Bank, 44 Neb. 622, 28 L.R.A. 577, 48 Am. St. Rep. 753, 62 N. W. 1078; 31 Cyc. 218, § 2.

Action in trover for the proceeds of property, rented to a third person by a cotenant. Appeal from the County Court of Cass County, A. G. Hanson, J. Judgment for defendant. Plaintiffs appeal. - Statement of facts by Bruce, Oh.

From a judgment of the District Court of Cass County, Pollock, J., plaintiff appeals. “The service of garnishee papers upon the garnishee operates as an equitable levy upon such! of the debtor’s property and credits as were at the time of such service in the hands of the garnishee.” Winner v. Hoyt, 68 Wis. 278, 32 N. W. 132; Globe Mill. Co. v. Boynton, 87 Wis. 619, 59 N. W. 136; Morawetz v. Sun Ins. Office, 96 Wis. 175, 65 Am.

A. Coffey, Judge. One tort may be counterclaimed against another tort where the two-arise out of the same transaction. The statute means something more than matters of contract — arising out of the same transaction; it may be a “performance” or an “affair;” it may mean two persons engaged in performing torts against each other. Comp.

Polloch, J. Statements made with a view to the apprehension of the offender-do not form part of the res gestee. 34 Cyc. 1645; Westcott v. Waterloo, O. E. & N. R. Co. 173 Iowa, 355, 155 N. W. 255; Pulsv. Grand Lodge, A. O. U. W. 13 N. D. 559, 102 N. W. 165. The res gestee rule, together with examples, or illustrations of its. application, may be found well stated in the following cases.

Action for the purchase of a horse. Counterclaim in fraud and deceit. Appeal from the District Court of Eddy County, Honorable G. W. Buttz, Special Judge. Judgment for plaintiff. Defendants appeal. Statement of facts by Bruce, Ch. J. This is an action to recover on two promissory notes, each for the sum of $400. The answer is a qualified, general denial. It admits the execution of the notes.

Original proceeding by tbe state on tbe relation of William’ Langer, Attorney General, upon an information in tbe nature of quo warranto •against Emil Scow and J. A. Power to oust tbe defendants from tbe •offices of members of tbe state board of regents.

<p>Attorney — disbarment — charges — proceedings.</p> <p>Evidence examined and held not to sustain disbarment charges.</p>

<p>Garnishment — judgment against garnishee — vacating — motion for — order on — grounds for — mistake of fact — discretion — order not disturbed — except for abuse.</p> <p>1. When the trial court, in the exercise of its discretion, vacates and sets aside a judgment obtained against the garnishee on the ground of some mistake of fact or for any other good reason which appeals to the sound judgment and discretion of the trial court, the order of the trial court vacating and setting aside such judgment will not be interfered with in the appellate court, unless it clearly appears there is an abuse of the discretion vested in the trial court.</p> <p>Trial court — inherent power — satisfaction of judgment — may order it set aside — where mistake of fact appears — substantial justice.</p> <p>2. The trial court, by and through its inherent powers, has the power to set aside a' satisfaction of a judgment, where such satisfaction was given or brought about through a mistake of fact, or by misapprehension of the facts, brought about by statements, letters, representations, or circumstances made by the attorneys or parties interested in having the satisfaction placed of record, to the party who caused the satisfaction of such judgment by the payment of money held in its possession as garnishee.</p>

W. Buttz, Judge. Action to recover against common carrier for loss of goods. Plaintiff appeals. Plaintiff having demanded his goods of the carrier into whose hands he placed them for proper transportation, it was incumbent upon such carrier to give plaintiff, within a reasonable time, satisfactory proof that the loss or injury did not occur while the goods were in its possession. Hailing to do so, such carrier itself is liable.

E. Leighton, Judge. The right to redeem is statutory. Civ. Code 1877, § 1714; Rev. Codes 1899, § 4691, Rev. Codes 1905, §§ 6141, 6143, Comp. Laws 1913, §§ 6717-6719. The sale of personal property under chattel mortgage foreclosure, as to everyone however interested in the property, whether an owner or junior encumbrancer, is an actual transfer of title. Rogers v. Eagle E. Ins. Co. 9 Wend. 611; Wiltsie, Mortg.

Fisk, Judge. Excusable neglect on the part of the attorney of record is sufficient ground to warrant the court in granting a new trial. Where legal'surprise is clearly shown a new trial should be granted. Citizens’ Nat. Banl?: v. Branden, 19 N. D. 489, 27 L.R.A.(N.S.) 858, 126 N. W. 102.

<p>■Crime of bootlegging — prosecution for — information — sufficiency of — — charging clause.</p> <p>1. In a prosecution for the so-called crime of bootlegging, under the provisions of § 10,144 of the Compiled Laws of 1913, an information is sufficiently definite which charges that the crime was committed in a bam on a certain block in a certain city and county, and the name of the owner of such barn is not necessary.</p> <p>Bootlegging — crime of — how committed — premises — owner of — permission of — licensee merely.</p> <p>2. Under § 10144, Compiled Laws of 1913, which provides that “the crime of bootlegging ... is committed by any person who sells . . . intoxicating liquor ... in the buildings of any person, . . . without the permission of the owner [or] of the person entitled to the possession of such . . . buildings,” no such ownership or right of possession exists in one who merely has an agreement with a livery-stable keeper that he may keep a horse in a barn which may be rented out, and, in lieu of charging for the stabling and hay, the livery-stable owner may keep one half of the proceeds of such renting, the owner of such horse being held to be a licensee merely.</p> <p>■Evidence — sufficiency of — jury — verdict.</p> <p>3. Evidence examined and held■ sufficient to justify a finding of the jury that there was an illegal sale.</p> <p>■Court — instructions to jury — waiver of written — consent to oral — defendant asked if he so consented — in presence of jury — no error.</p> <p>4. Where no error has been committed in the instructions to the jury, no complaint can be made upon the ground that the defendant was suddenly asked at the close of the evidence, and in the presence of the jury, if he would waive written, and consent to the giving of oral, instructions.</p> <p>Bootlegging — prior sales — in same place — by same defendant — admissible — may show purpose — intent — and plan of defendant — treating.</p> <p>5. Evidence of prior sales in the same place and of prior shipments may be admitted in a prosecution for the crime of bootlegging, in order to show purpose, intent, and plan, and when the defense is that the transaction was a joint purchase and treat, and not a sale.</p>

Action for commission on sale of land. Appeal from the District Court of Renville County, Honorable K. E» Leighton, Judge. Judgment for defendant. Plaintiff appeals. The purchaser tendered by appellant was ready, willing, and able to buy the land on the terms and conditions of the sale authorized, and therefore appellant is entitled to recover his commissions.

From a judgment of the District Court of Stark County, Crawford, J., plaintiff appeals. The judgment of a justice court properly transcribed to the district court records of the county becomes a lien upon the real estate owned by the judgment debtor, outside of his homestead. Comp. Laws 1913, § 8446; N. D. Bev. Codes 1905, § 7751; Comp. Laws 1913, § 8386.

Prosecution for carrying concealed weapons. Appeal from the District Court of Cass County, Honorable J. T. Cole, Judge. Judgment for plaintiff. Defendant appeals. No bill shall embrace more than one subject and such subject shall be expressed in its title. Const. § 61. The act in question violates the Constitution in that the body of the act contains provisions relating to other matters and subjects which are not expressed in its title. N. D. Sess. Laws 1915, chap. 83, § 1.

Fisk, Judge. The plaintiff and others employed by defendants in the same line of work were fellow servants. “The negligence of a foreman of a-gang, in failing to block a pile which was shoved against plaintiff, injuring him, because it was not blocked, is the negligence of a fellow servant, although the foreman had authority to employ and discharge plaintiff and the plaintiff was under his superintendence and control in doing the work in the performance of which they were…

From a judgment of the District Court of Nelson County, Cooley, J., plaintiff appeals. “Tbe provisions of the Code of Civil Procedure shall govern the proceedings in justices’ courts as far as applicable, provided by this Code.” Comp. Laws 1913, §§ 7840, 9009, 9163 and 9165.

<p>Chattel mortgage — bill of sale — in the form of — properly filed — absence of fraud and deception — not void.</p> <p>1. In this case it is held that a chattel mortgage in the form of a bill of sale is not void when duly made and filed, without fraud or deception, to secure an honest debt.</p> <p>On Rehearing.</p> <p>Transfer — made in fraud of creditors — question of fact — generally.</p> <p>2. Whether a transfer is made in fraud of creditors is generally a question of fact.</p> <p>Bill of sale — absolute on face — given as security only — for present indebtedness — future advances — not fraudulent — as a matter of law.</p> <p>3. A bill of sale absolute on its face, but given to secure the payment of a present indebtedness and future advances, is not fraudulent as against creditors as a matter of law.</p> <p>Possession of property — retention of — by vendor — not conclusive of fraud — merely presumptive.</p> <p>4. Under § 7221, Compiled Laws of 1913, the retention of possession of personal property by the vendor is not conclusive, but merely presumptive, evidence of fraud in the transaction.</p> <p>Unrecorded chattel mortgage — valid as to persons with actual knowledge.</p> <p>5. An unrecorded chattel mortgage is valid as against all persons who have actual knowledge thereof.</p> <p>Bill of sale — vendee — other security for debt — fact of — not defense.</p> <p>6. The fact that the vendee in a bill of sale, absolute on its face, but given to secure an indebtedness, had other security sufficient to satisfy his demand, is not available as a defense in an action brought by the vendee against an officer who, in disregard and defiance of the vendee’s special interest, levies upon and sells some of the chattels covered by such bill of sale.</p>

L. Nuessle, Judge. The situs of personal property for taxation purposes is determinable the first day of April, — not prior or subsequent thereto. Gaar, S. & Co. v. Sorum, 11 N. D. 164, 90 N. W. 799. The expression in the statute, “all other property,” merely means all other personal property not falling within the itemized lists or classes named for taxation purposes. Rev. Codes 1899, § 1191.

A. €offey, Judge. Defendants appeal. In actions arising on contract, the defendant may set' forth in answer by way of counterclaim any other cause of action on contract, existing at the time of the commencement of the action. Comp. Laws 1913, §■ 7449; St. Louis Public Schools v. Broadway Sav. Bank, 12 Mo. App. 104, 84 Mo. 56; Cal. Civ.

From a judgment of the District Court of Eansom County, Honorable Frank P. Allen, Judge, defendant appeals. Current or delinquent taxes upon real estate must be paid before the county auditor shall enter the transfer, or before deed conveying the property can be recorded. Comp, laws 1913, §§ 2166, 2169, 2174, 2186, 2212; Danforth v. McCook County, 11 S. D. 258, 74 Am. St. Eep. 808, 76 N. W. 940.

<p>Promissory note — form of — marginal entries — partial payments — maturity — from what determined — dishonor.</p> <p>1. The following note is held not to have been dishonored by nonpayment at the expiration of the time mentioned in the marginal memoranda for partial payments before maturity:</p> <p> </p> <p>Purchaser — before maturity — holder in due course — may show such fact.</p> <p>2. The purchaser of the above note before maturity is entitled to show that he is a holder in due course.</p> <p>Note. — As to what circumstances are sufficient to put a purchaser of negotiable paper on inquiry in order to secure rights of bona fide holder, see notes in 29 L.R.A.(N.S.) 351, and 44 L.R.A.(N.S.) 395.</p> <p>On effect of exchange of commercial paper to constitute one a holder in due course for value, see note in 17 L.R.A.(N.S.) 747.</p>

Q. Burr, Judge. In construing contracts the first and main rule is that the intent of the parties, as expressed in the words they have used, must govern. 9 Cyc. 577; Travelers Ins. Co. v. California Ins. Co. 1 N. D. 151, 8 L.R.A. 769, 45 N. W. 703. It can never be assumed that the parties were making a contract they both knew would not be performed. Gorder v. Hilliboe, 17 N. D. 281, 115 N. W. 843.

Burr, Judge. From tbe first presentation of a claim against an estate, tbe limitation statute as to barred claims begins to run, and a subsequent presentation cannot revive tbe claim or toll tbe statute. Comp. Laws 1913, § 8742; Mann v. Bedmon, 23 N. D. 508, 137 N. W. 478; Singer v, Austin, 19 N. D. 546, 125 N. W. 560.

A. Coffey, Judge. Statement of facts by Gíraos, J.: This action was originally commenced in the justice court of Barnes county, before A. IT. Beckley, a justice of the peace. The action is one of replevin to recover from the defendant the possession of a team of horses upon which the plaintiff had two valid and subsisting liens by virtue of two chattel mortgages.

T. Oole, J. Action to recover for personal injuries. 'Order sustaining demurrer to complaint. Plaintiff appeals. Statement of facts by Bruce, Oh.

Fisk, Judge. In a prosecution for, keeping and maintaining a common nuisance,, where the state unnecessarily charges a more particular description than an allegation of its commission within the county, the particular description given must be proved. Such specific description narrows-the scope of the proof. State v. O’Neal, 19 N. D. 426, 124 N. W. 68;. State v. Kelly, 22 N. D. 5, 132 N. W. 223, Ann. Cas. 1913E, 974;. State v. Kozum, 8 N. D. 548, 80 N. W. 477.

From a judgment of the District Court of Stark County, Crawford, L, plaintiff appeals. Where one uses a natural running stream of water as a dumping place for all offal matter from his mill, and for all the excrement of his many employees, this is not a reasonable use, by a riparian owner, so' as to exempt him from damages, and furthermore, such acts are criminal under our statutes. Comp.

From a judgment of the District Court of Cavalier County, Honorable W. J. Kneeshaio, Judge, defendant appeals. All of the defenses alleged in the answer are based upon facts within the knowledge of plaintiff, and he therefore cannot claim to be surprised. When one has fall knowledge of all the facts set out in the amendments, he is in no position to claim surprise. Ennis v. Eetail Merchants Asso. Mut. F. Ins. Co. 33 N. D. 20, 156 N. W. 234; Southern Ins.

<p>This case is governed by the decision rendered in Beauchamp v. Retail Merchants Asso. ante, 483.</p>

C. Crawford, Judge. In an affidavit for service of summons by publication, in an action against one whose residence is unknown, the statement that his “whereabouts” are unknown to affiant is equivalent to a statement that his “residence” is unknown, and is a full compliance with the statute. Comp.

Action on an accident insurance policy. Appeal from tbe county court of Ward county, Honorable William Murray, Judge. Judgment for defendant. Plaintiff appeals. An agent of an accident insurance company who is authorized to accept applications for such insurance and to receive payment of premiums acts as the agent of the company in so doing, and not as agent of the insured.

Action to sequestrate the assets of an insolvent corporation. Appeal from the District Court of Wells County, Honorable J. A. Coffey, Judge. Order for plaintiff overruling demurrers to complaint. If the directors of a corporation have a right to give a preference, then their intent is wholly immaterial and no fraud can be predicated thereon. If they acted with fraudulent intent and such was known to the defendants, such knowledge would not be material.

Action on the contract for the recovery of a commission. Appeal from the District Court of Stark County, Honorable W. C. Crawford, Judge. Judgment for plaintiff. Defendant appeals. Where the county designated in the complaint is not the county of the defendant’s residence, and he desires a change of the place of trial to his own county, he must demand same before the time for answering expires. Comp. Laws 1918, § 7418.

T. Cole, Judge. “Where incompetent evidence is admitted over objection, before such error can be disregarded as npnpre judicial, it must appear that the error did not and could not have prejudiced the rights¡ of the complaining parties. And the case must be such that thé appellate court is not called upon to decide, from a preponderance of the evidence, that the verdict was right, notwithstanding the error complained of.” Huston v. Johnson, 29 N. D. 546, 151 N. W. 774.

L. Nuessle, Judge. Defendant appeals. As the basis for a motion for a new trial on the ground of newly discovered evidence, it must appear that such evidence is material, not merely impeaching nor cumulative, and that by the exercise of due diligence it could not have been discovered before the former trial, and that it has been discovered since the trial. 4 Enc. PI. & Pr. 791.

Proceeding to restrain the construction of a school building. Appeal from the District Court of Ransom County, Honorable Frank P. Allen, Judge. Judgment for defendant. Plaintiff appeals. School boards are authorized to “repair” school buildings, and not to remodel or build new ones without further express authorization as by law provided. “To repair” means to remake; not to make a new thing, but to refit or make good or restore an existing thing. Comp.

E. Leighton, J. This action being one to foreclose a real estate mortgage and to make a collection, and not a sale of collateral, the court could not appoint a guardian ad litem, for one not a party to such action. Comp. Laws 1913, § 6213; Farmers Bank v. Biedlinger, 27 N. D. 318, 146 N. W. 556. Such appointment cannot be had when the incompetent is not a party to the original action. Comp. Laws 1913, §§ 7401, 8886, 8887.

C. Crawford, Judge. Defendant appeals. It is necessary to allege and prove the execution and delivery of a power of attorney in foreclosure proceedings. Comp. Stat. 1913,' § 8075. “An issue of fact in an action for the recovery of money only must be tried by a jury.” Comp. Stat. 1913, § 7608. Evidence to show mistake on the part of both parties, or on the part of only one of the parties, or fraud by one party on the other, is always admissible.

Action upon policy of accident insurance. Appeal from District Court, Stutsman County, J. A. Goffey, J. Where a casualty insurance company policy provides that it shall not cover loss from injuries, fatal or otherwise, resulting wholly or in part, directly or indirectly, from hernia, the assured sustains injury by falling and this is followed by hernia, the loss is partly due, or indirectly due, to hernia, and no recovery can be had.

Allen, Judge. A certified check is not a payment even though the amount is sufficient to cover the obligation; and, assuming the bank had authority to collect the obligation, it could receive nothing but cash without special authority. It does not discharge the debt, nor does it constitute a tender. Schafer v. Olson, 24 N. D. 542, 43 L.R.A.(N.S.) 762, 139 N. W. 983, Ann. Cas. 1915C, 653; First Nat.

Allen, Judge. Defendant appeals. To entitle a party to foreclose a mortgage by advertisement, all assignments must first be duly recorded. Code, § 8077, subd. 3; Page v. Smith, 33 N. D. 369, 157 N. W. 477, and cases cited; Morris v. McKnight, 1 N. D. 266, 47 N. W. 375; Langmaack v. Keith, 19 S. D. 351, 103 N. W. 210.

Mandamus to compel the delivery of a salary warrant. Appeal from the District Court of Ward County, Honorable K. E. Leighton, Judge. Judgment for plaintiff. Defendant appeals. The sheriff’s salary is regulated by the population of his county as last officially reported by the state or Federal census, and any ehange resulting should not take effect during the term of a present incumbent. Comp. Laws 1913, § 3520; Sess. Laws 1915, chap. 112.

Application by tbe State of North Dakota, upon tbe relation of tbe Attorney General for a writ of mandamus against Carl R. Kositzky, as State Auditor. “It is elementary, ‘except as limited by constitutional provisions,’ that tbe legislature has control over tbe finances of tbe state; that its power as to tbe creation of indebtedness, or tbe expenditure of state funds, or making’ appropriations, is plenary, and tbe exercise of tbis power cannot be controlled or reviewed by…

Action to recover upon the guaranty of a promissory note. Appeal from the District Court of McHenry County, Honorable A. G. Burr, Judge. Judgment for defendant.

• Appeal from District Court, Ward County, Honorable F. F. Fish, Special Judge. “As to tbe quantum of proof required to establish a charge of adultery, the prevailing rule is that, as in other civil actions, such fact need be proved only by a preponderance of the evidence.”' R. C. L. 328, § 105 ; Ellett v. Ellett, Ann. Cas. 1913B, 1215, and note, 157 N. C. 161, 39 L.R.A. (N.S.) 1135, 72 S. E. 861; Taft v. Taft, 12 Ann. Cas. 959, and note, 80 Yt. 256, 130 Am.