Volume 4 — North Dakota Reports

Action by John W. Jasper against Arthur H. Hazen. Plaintiff had judgment, and defendant appeals. Equity ought to be extremely cautious in its consideration of parole testimony to show a deed in form a mortgage. Andrews v. Ins. Co., 3 Mason (U. S.) 6. The evidence must be clear, convincing and equal in force to that upon which a deed will be reformed for mistake. Kent v. Lasley, 24 Wis. 654. A mere preponderance of proof is not sufficient.

<p>Compromise of Controversy — Consideration of Note.</p> <p>A compromise of a bona fide controversy constitutes a good consideration for a promise, and such consideration cannot be destroyed by showing that the promisee in fact had no claim. But the parties must act in good faith; and therefore, if one party has no claim, and knows it, the settlement of the unfounded claim he makes will not constitute a sufficient'consideration to support a promise to pay him money upon such settlement.</p> <p>Whether Claim Made — Must be Colorable.</p> <p>Whether the claim made must not be at” least colorable, or whether the promisee must not have reasonable ground for believing it valid, is not decided in this case.</p> <p>Evidence — Insufficient to Sustain Verdict by Direction of Court.</p> <p>Evidence examined, and found insufficient to show that a compromise was intended to be made, or that the dispute between the parties was in fact finally settled.</p>

Action by Samuel D. Flagg against School District, No. 70, Barnes county, to recover interest on bonds. Plaintiff had judgment, and defendant appeals. The stipulation for payment of exchange renders the bonds non-negotiable. § § 4456, 4462, Comp. Laws; Bank v. Bynum, 84 N. C. 24; Saxton v. Stevenson, 23 N. P. Can. 503; Nughitt v. John-so?i, 28 Fed. Rep. 865; Wi?idso?i Savings Ba?ik v. McMahon, 38 Fed. Rep. 283; Read v. McNalty, 78 Am.

Action by Messena B. Erskine against the County of Nelson to recover on county warrants. From the judgment rendered, plaintiff appeals. The bonding act was mandatory in fact although permissive in form, its object was to enable the county to pay outstanding warrants for which it had received consideration. The holders of these warrants were to be benefited by the provisions of the law.

Action by Bessie T. Clyde against C. D. Johnson to recover the surplus arising from the forclosure of a mortgage. From an order sustaining a demurrer to the complaint, plaintiff appeals. For the purposes of demurrer the complaint must be liberally construed, every reasonable intendment is in its favor.. The demurrer cannot take the place of a motion to make more definite and certain. Comp.

Action by John E. Paulson and P. S. Peterson, co-partners as J. E. Paulson & Co., against J. A. Ward and others. Judgment for plaintiffs, and defendants appeal. The complaint is insufficient, it simply avers that the transfer was fraudulent. It should allege the facts and circumstances of the fraud. Kinder v. Macy, 7 Cal. 206; Harris v. Taylor, 15 Cal. 348; Meeker v. Harris, 19 Cal. 280; Kent v. Snyder, 30 Cal. 667; Jones v. Massey, 79 Ala. 370.

<p>Action for Possession of Personal Property — Pleading—Denial Upon Information and Belief.</p> <p>In an action to recover the possession of an engine, plaintiff claimed title and took possession under a chattel mortgage pleaded, but not set out by copy in the complaint. The engine was described in the complaint as follows: “One 13 horse S. S. S. B. engine, complete, No. 3,784, manufactured by the plaintiff.” Defendant answered: “And now comes said defendant, and, for answer to plaintiff s complaint, denies generally and specifically each and every allegation contained in plaintiff’s complaint, except that the said engine is now in the possession of this defendant, which said denial is made upon the defendant’s best information and belief.” Held, that the answer is in effect a general denial, and that it puts in issue all material facts averred in the complaint, except that the defendant admitted that he was in the possession of the particular engine described in the complaint.</p> <p>Denial Upon Information and Belief — When Proper.</p> <p>Held, further, that a denial upon information and belief is authorized by the Code in a case where the party making the denial has information inducing a belief that the facts sought to be denied are untrue, but has not absolute knowledge that they are untrue. In such cases a general denial, or a denial of knowledge or information sufficient to form a belief, would be improper.</p> <p>Identification of Property by the Evidence.</p> <p>Plaintiff’s evidence tended to show that he had sold a certain engine in May, 1889, to one A., in the State of Wisconsin, and taken notes therefor, secured by a chattel mortgage upon the engine from A. to plaintiff. The mortgage was put in evidence, and it embraced a description of the engine in the precise words in the description set out in the complaint, and above quoted, except that the description in the mortgage omitted the words “No. 3,784.” Held, that the description as contained in the mortgage, when construed in connection with the description set out in the complaint and the denial in the answer, did not, as a mere matter of legal construction, identify the engine in question as the engine described in the mortgage.</p> <p>Failure of Proof — Verdict Directed for Defendant.</p> <p>At the close of the testimony, the trial court instructed the jury to return a verdict for the defendant. Held, that the instruction was proper. No testimony being offered to establish the indentity of the engine, and the identity not being made out as a matter of legal construction from the description in the mortgage, considered with reference to the pleadings, there was a total failure on plaintiff’s part; i. e. a failure to show that his mortgage covered the property in controversy in the action.</p>

Application of Gertrude Weber for a writ of certiorari to C. L. Mayer, justice of the peace in the City of Wahpeton. From the judgment on the return, the Traveler’s Insurance Company appeals.

<p>Bond on Appeal — Construction—Liability.</p> <p>In an action on an undertaking given on appeal to this court, heldx under circumstances set forth in the opinion, that the word “judgment” could not be expunged from the undertaking, and the word “order” inserted in its place, as a clerical error. There was no attempt to reform the undertaking on the ground of mistake.</p> <p>Bartholomew, C. J., dissenting.</p>

Action by Joesph Gans against Washington W. Beasley, George M. Beasley, and Nat Beasley, co-partners doing business under the firm name of W. W. Beasley & Sons. From an order refusing to vacate an attachment issued by plaintiff, defendants appeal. A partnership consisting of several persons must sue or be sued by their names at length and not in the firm name.

Action by Charles E. Roby and others against the Bismarck National Bank and others. Judgment for defendants, and plaintiffs appeal. The mortgage in dispute was an invalid mortgage because not signed by the husband, and its record did not impart notice. Higley v. Millard, 45 la. 589. The fact that the vendor retains legal title as security for the unpaid purchase money will not operate to defeat the vendees claim of homestead in the property.

<p>Judgment on Pleadings.</p> <p>In moving for judgment upon the ground that the answer served is frivolous, the motion is based upon the pleadings, and need not be supported by proof of extrinsic facts.</p> <p>Frivolous Answer — Insufficient Denial.</p> <p>An answer is frivolous which contains no new matter, and which attempts to deny material allegations in the complaint only as follows: “Defendant says that it has not information sufficient to form a belief,” etc. A denial in this form must negative both knowledge and information sufficient to form a belief. Comp. Laws, § 4914.</p> <p>Penalty for Delay.</p> <p>A penalty of 10 per cent, on the face of the judgment adjudged for delay in prosecuting the appeal. -Comp. Laws, §5187.</p>

<p>Notes — Guaranty of Collection.</p> <p>Three promissory notes payable to the plaintiffs were executed and delivered to plaintiffs by C. and S., and secured by chattel mortgage. Before the notes were delivered, the defendants indorsed upon each note a guaranty of collection, as follows: “For value received, we hereby guaranty the collection of the within note. Laughlin, Palmer & Co.” Held, construing § 4280, Comp. Laws, that by this form of guaranty the defendants undertook only that the makers of the notes were solvent when the guaranty was entered into, and that the notes were “collectible by the usual legal proceedings, if taken with reason-' able diligence.”</p> <p>Laches — Release of Guarantor.</p> <p>After two of the notes were due, plaintiff took of C. (one of the original debtors,) and one P., other notes secured by a chattel mortgage. The new notes and mortgage were executed and delivered solely as collateral to the first series of notes. The first series was not paid or surrendered, nor was the time of payment thereof extended. No action was ever brought against C. and S. upon the original notes, nor was the first mortgage ever foreclosed. Suit was not commenced upon any of the collateral notes for a period of over three years after the maturity of the first original note, and more than two years after the maturity of the first collateral note. The mortgage given with the collateral paper was not foreclosed until long after action was brought on such paper. The action is upon the guaranty. Plaintiffs had the burden of showing, as a condition precedent to recovery, that they had prosecuted their legal remedies, including the remedy of foreclosure, with reasonable diligence to collect the claim of the original debtors. Upon the facts stated, held, that plaintiffs cannot recover. The laches of the plaintiffs in pursuing their legal remedies against the debtors operates to exonerate the guarantors.</p> <p>Insolvency of Grantor will not Excuse Laches.</p> <p>Conceding that it appeared that C. and S. were insolvent about one year after their first note matured, their insolvency would not excuse plaintiffs’ laches in not foreclosing the first mortgage, nor their protracted delay in prosecuting their legal remedies upon the collateral securities.</p> <p>Directing Verdict.</p> <p>Upon such a state of uncontroverted facts, the trial court would have been justified in instructing the_ jury to find for the defendants, upon the grounds above stated, as to all the notes, and the instruction, therefore, to find for the defendants as to the first note, was not error.</p> <p>Evidence Justified Verdict.</p> <p>Evidence considered, and held that the verdict is justified by the evidence.</p>

Action by Michael J. Barrett against Stutsman County. Judgment for plaintiff, and defendant appeals. There is no statute law in this state providing that counties shall pay the costs of criminal cases in the courts of justices of the peace. To enable a justice to recover such costs from a county he must show a statute obliging the county to pay.

<p>Principal and Agent — Accounting—Burden of Proof.</p> <p>When one sues his agent for moneys received by the agent for his use, he has the burden of proof to show the amount received and not accounted for.</p> <p>Burden on Agent — When.</p> <p>In such cases the agent has the burden of accounting for all moneys which he admits he received.</p> <p>Instructions to Agent — Evidence.</p> <p>When one acts on instructions given after communications on the same subject have passed between him and his principal, all such communications are admissable in evidence to explain the instructions.</p> <p>Ambiguous Instructions — Estoppel.</p> <p>When one gives his agent ambiguous instructions, which the latter executes in good faith, according to a reasonable interpretation of them, the principal is estopped to say that he intended them to be construed otherwise.</p>

Action by Benjamin W. Hosmer against Sheldon School District No. 2 of Ransom County. Judgment for plaintiff, and defendant appeals. The contract sued upon is void because respondent was not at the time it was made the holder of a certificate of qualification to teach. Chapter 62, Laws 1890, Ch. 56, Laws 1891. Goose River Bank v. Willow Lake School Dist. x N. D. 26; 'Butler v. Haines, 79 Ind. 579; School Dist. v. Jennings, 10 111.

<p>Preference by Insolvent Debtor.</p> <p>An insolvent debtor may pay or secure one creditor in preference to another, except in cases where he executes an assignment for the benefit of his creditors.</p> <p>Mortgage on Entire Stock Not An Assignment for Benefit of Creditors.</p> <p>Such a debtor, in this case, executed three chattel mortgages on substantially all of his property, securing certain creditors to the exclusion of others. The mortgagees at once took possession, and commenced foreclosure of the mortgages. Held, even assuming that the debtor himself knew that the consequence of giving the mortgages would be to prevent his continuing his business, that such transactions did not constitute an assignment for the benefit of creditors, within the meaning of § 4660, Comp. Laws, rendering void all preferences contained in such an assignment. Straw v. Jenks, 43 N. W. 941, 6, Dak. 414, overruled.</p> <p>Receiver — Fees—How Taxed as Costs.</p> <p>When a receiver is appointed in an action, and continues to act as receiver down to the time of final judgment, the court should embody in its decision and final judgment all matters relating to the receiver’s fees and expenses; how they should be paid, — whether out of the funds in his hands, or by the parties to the action; and whether, if paid out of the funds in the hands of the receiver belonging to one party, the other should not be compelled to made good this depletion of the fund in whole or in part. Held error for the court, without investigating and settling such matters, to direct that all of the receiver’s fees and expenses should be taxed as costs against the unsuccessful party to the suit.</p>

. Action by the Fargo Gas & Coke Company against the Fargo Gas & Electric Company to recover a balance due on the purchase price of a gas and electric plant sold by plaintiff to defendant. From a judgment for plaintiff, defendant appeals.

Action in attachment by the Enderlin State Bank against Reuben P. Jennings. From an order sustaining á motion to vacate the warrant of attachment, plaintiff appeals. The defendant voluntarily appeared in the District Court of Ransom County and sought the adjudication of the court upon plaintiffs right to the writ of attachment.

Action by William M. Vail against the town of Amenia to recover damages for personal injuries. From a judgment for defendant, plaintiff appeals. The township was by express provision of law bound to maintain and repair the bridges upon its public highways and was vested with power to raise money for that purpose. The power to borrow money is as adequate for the purpose as the power to levy taxes. Hover v. Barkhoof 44 N. Y. 113.

Action by David Dows, Jr., and George B. Cooksey, copartners as David Dows, Jr., & Co., against Samuel L. Glaspel, to recover commissions and advances made by plaintiffs on account of the sale and purchase of wheat by them as defendant’s agents, in which defendant set up a counterclaim. From a judgment for defendant in the main case, and against defendant on his counterclaim, and also disallowing costs to defendant, both parties appeal.

<p>Harmless Error.</p> <p>Errors assigned upon immaterial matters will not be reviewed.</p> <p>Erroneous Instructions — When Harmless.</p> <p>An error in the charge of the court to the jury which in no manner injured appellant is no ground for reversal.</p> <p>Refusal to Give Proper Instructions.</p> <p>It is not error to refuse to give to the jury instructions requested that are correct in law, and applicable to the case, where the charge already given fairly and properly covers every point presented in the rejected instructions.</p>

Action by Minnie Riegi against H. W. Phelps and J. D. Phelps to recover a balance collected by defendants, as attorneys, on a note placed in their hands for collection. From a judgment for plaintiff, defendants appeal. A mere agent of an agent is not responsible as such to the principal of the latter. Section 3790, Comp. Laws.

Three actions by Terence Martin — one against Evan S. Tyler and others, as drainage commissioners of Cass County, N. D.; one against George Nichols, as treásurer of such county, and another; and the other against H. L. Stafford and others, county commissioners of such county — for injunctions. From a judgment in each case overruling a demurrer to the answer, plaintiff appeals. The act Ch. 55, Laws 1893, is in conflict with § 61 of the constitution.

<p>Appeal from ' District Court, Cass County; McConnell and Templeton, J’s.</p> <p>Action by John O. Bye against IT. L. Stafford and others, county commissioners of Cass County, N. D., for an injunction. From a judgment sustaining a- demurrer to the complaint, plaintiff appeals.</p>

Action in attachment by J. P. Birchall against Alexander Griggs, in which there was a judgment for plaintiff by default. From an order denying defendant’s motion to set aside the judgment and all proceedings thereunder, and dismiss the action, defendant appeals. The affidavit for attachment does not specify any statutory ground therefore. McDonald v. Keiferdorf, 18 N. Y. Supp. 763; Hewitt v. Terry, 23 N. W. Rep. 326.

Action by T. O’Brien against Henry Miller, commenced in Justice’s Court, and taken on appeal by plaintiff to the District Court. From a judgment affirming the judgment of the justice dismissing the action, and for costs in favor of defendant, plaintiff appeals.

<p>Illegal Seizure by Sheriff — Exemptions—Sufficiency of Evidence.</p> <p>After an examination of the findings filed by the District Court, held, that such findings have ample support in the evidence.</p>

F. W. Dellaire was indicted for keeping and maintaining a common nuisance. A demurrer to the indictment was sustained, and the state brings error. It is unnecessary to state the names of the persons to whom liquor is sold. People v. Sweetser, 1 Dak. 308; Whart. Cl. and PL Pr. 155, 251; Whart. Cr. Law, 2445; Black on Intoxicating Liquors, 464. Where the offense charged is the keeping and maintaining a common nuisance, a particular sale is not the gravamen of the offense.

<p>Assignment for Benefit of Creditors — Property not in Custody of Law.</p> <p>An assignment for the benefit of creditors under the provisions of our statutes does not place the property of the assignor in custody of law.</p> <p>Void Order of District Court.</p> <p>Such property having been attached in the hands of the assignee, the District Judge of the district in which such assignment was executed made an order directing the sheriff forthwith to surrender possession thereof to the assignee on the theory that the property was in custody of the court. Such order was not made in any action or special proceeding pending in court. It was granted upon the mere affidavit of the assignee, without hearing the sheriff or the plaintiff in the attachment suit, and without notice to them, or either of them. Held, that the order was absolutely void, and should be set aside on certiorari. Held, further, that the plaintiff in the attachment suit was the person beneficially interested, within the meaning of § 5508, Comp. Laws, and could therefore sue out the writ.</p> <p>Action Against Sheriff — Not Adequate Remedy at Law.</p> <p>Held, further, that the right of the plaintiff to hold the sheriff responsible for the property attached, for the reason that he could not justify surrender of the property under a void order, was neither an adequate nor a speedy remedy, within the meaning of § 5507, Comp. Laws, which forbids the issue of the writ of certiorari when the relator has such a remedy.</p> <p>Action Against Sheriff is Not a Remedy.</p> <p>Held, further, that such a remedy against the sheriff is not a remedy at all, within the meaning of this section, for the. reason that the remedy therein referred to is one which, like an appeal or a writ of error, will enable the relator to annul the proceeding complained of as void,</p> <p>Certiorari — Restitution Under.</p> <p>On certiorari this court has power to order restitution of everything taken from the relator under the void proceeding which is annulled.</p> <p>Judgment on Certiorari is Entered in Supreme Court.</p> <p>The judgment on certiorari is entered in this court. No mandate is sent to the inferior tribunal to render judgment. For this reason, and because the District Court is utterly without jurisdiction in the matter, and therefore has no jurisdiction to order restitution, the judgment in this case annulling the order will contain a direction that a writ of restitution issue out of this court to restore to the sheriff the property taken from him under the order.</p> <p>Direction to Assignee — Void.</p> <p>As the order directed the sheriff to surrender possession of the property, the application for the writ is not premature because the assignee was directed by the order to hold property until the validity of the assignment should be determined, or until the further order of the court. So far as the right of the relator to have the sheriff hold and sell the property to satisfy the plaintiff’s claim is concerned, the proceeding has terminated.</p> <p>Attachment Continued by Giving Appeal Bond.</p> <p>It was contended that relief should not be granted relator, because, by the surrender by the sheriff under the order of possession, the lien of the attachment was lost; that no new levy could be made, because the warrant had been returned by the sheriff, and also because it had been set aside by the District Court; and that, therefore, relator could derive no benefit from an annulment of the void order and from restitution of possession. There is nothing to show that the warrant has been returned; nor does it appear that the plaintiff in the attachment suit, who has appealed from the order vacating the attachment, has not secured a continuance of the life of the warrant of attachment by giving the bond prescribed by § 5228, Comp. Laws. (Might not a new warrant of attachment issue on the same papers if the old one had been returned, and the property seized and held under the new warrant?) Held., that the court would not deny relief on these grounds, as these questions are not directly before the court. After the sheriff has taken possession, they can all be raised and tried in actions to which the proper persons are parties, and should be settled in that way, and not in this proceeding. The judgment in this case does not settle them, or conclude any one with respect to them. It is only when it is clear, beyond all doubt; that relator can derive no benefit from certiorari, that the writ will be denied.</p>

Action by Charles E. Erskine and William H. Crosby, administrators of the estate of Messena B. Erskine, deceased, against Steele County, on certain county warrants. From a judgment for plaintiffs, defendant appeals. The warrant to E. J. McMahon for transcribing records, was illegally issued. The county commissioners had no authority to contract for such services. Rasmussen v. Board of County Commissioners, 43 N. W. Rep. 3.

<p>Injury to Employe — Erroneous Charge.</p> <p>Judgment reversed for error in charging the jury that liability of defendant depended solely upon freedom of plaintiff from contributory negligence, the defendant’s negligence not being established by the evidence as a'matter of law.</p>

Action by Robert Hannah against E. C. Chase to determine adverse claims to certain land. Judgment for defendant, and plaintiff appeals. The object'of this action is to try the legal title and right of possession to the land in question. Wood v. Conrad, 2 S. D. 405, 50 N. W. Rep. 903. The presumption is that the officer in making the deed, did his duty. Faley v. Kane, 4 N. W. Rep. 355; Herrick v. Ammerman, 21 N. W. Rep. 836; Love v. Cherry, 24 la. 204.

<p>Appeal Statute — Prospective in Operation.</p> <p>Chapter 82, Laws 1893, construed, and held not to apply to a case tried in the year 1892, where the trial was had and the record thereof completed by filing the judgment roll, embracing findings and a bill of exceptions.</p> <p>Specifications of Error.</p> <p>Held, where the bill of exceptions contained no specifications of errors of law, such errors, if they exist, will not be considered in this court, in reviewing the case. This established and. statutory rule applies to cases of trials to the court, where no motion for a new trial is made below, the same as in other cases. Laws 1891, Ch. 121; Sup. Ct. Rule No. 13.</p> <p>Assignments of Error — Court Rules.</p> <p>Where assignments of error in this court do not refer to the abstract, they are insufficient assignments, under Rule 15 of the rules of this court; and such assignments of error will not be considered unless, for reasons satisfactory to the court, said rule is relaxed, in furtherance of justice, and on such terms as may be deemed just.</p> <p>Exceptions to Findings of Fact.</p> <p>Where exceptions to findings of fact do not specify wherein such findings are not justified by the evidence, this court will not explore the record to ascertain whether or not the finding is supported by the evidence.</p> <p>Findings Supported by the Evidence.</p> <p>Findings of fact examined with reference to the evidence. Held, that such findings are supported by the evidence.</p> <p>Mortgage of Future Crop — Filing.</p> <p>Sections 4328, 4379, Comp. Laws, construed. Held, that an instrument in the form of a chattel mortgage, covering a crop not yet planted, may be filed in the office of the register of deeds of the county where the land described in the mortgage is situated, and such filing will be constructive notice to third parties of the rights of the mortgagee, as in other cases. In such cases' the filing gives priority, and the lien will attach as soon as the crop comes into existence by the agency of the mortgagor. Following Grand Forks Nat. Bank v. Minneapolis N. E. Co., 6 Dak. 357, 43 N. W. 806; Bank v. Mann, 2 N. D. 456, 51 N. W. 946.</p>

Action by the Hazelton Boiler Company against the Fargo Gas & Electric Company on a contract for the sale of a boiler. Judgment for plaintiff, and defendant appeals. The defendant offered upon the trial testimony tending to establish all the facts necessary to substantiate the defense of fraudulent representations. The evidence given and offered was sufficient on the question of fraud to warrant the submission of the case to the jury. Meyer v. Salazee, 24 Pac.

Action by R. S. Tyler against James Shea, administer of the estate of Edward A. Schram, and others; for the possession of real estate. From a conditional judgment in favor of defendants, and from an order denying his application for execution thereon, plaintiff appeals. Appeal from judgment dismissed. The default of November 1st, 1892 and appellants action thereupon entitled appellant to possession of the px-emises under the terms of the contract.

Action by the First National Bank of Decorah against A. H. Laughlin and others on a promissory note. Judgment for defendants, and plaintiff appeals.

Action by the Minnesota Thresher Manufacturing Company against W. H. Lincoln and others. A verdict for plaintiff was directed, and, from an order granting defendants a new trial, plaintiff appeals.

Action by the Walter A. Wood Harvester Company against Charles E. Heidel, August Heidel, and others, and separate actions by the Duluth Dry Goods Company and by the Merchants’ State Bank of Fargo against the same defendants. Defendants had judgment in all the actions, and plaintiffs separately appealed. The appeals were dismissed, and appellants moved to reinstate.

<p>Embezzlement — Indictment.</p> <p>In a prosecution for embezzlement under our statute, it is necessary to allege the ownership of the property embezzled, and prove the same as alleged.</p>

<p>Appeal Bond — Liability of Surety.</p> <p>It is no defense to an action against sureties on an appeal undertaking that the plaintiff holds security amply sufficient to pay the claim for which the sureties have become bound, and that plaintiff has refused on demand to resort to such security for payment, there being no proof that the sureties were prejudiced by such refusal.</p> <p>Rights of Surety as to Collateral Held by Creditor.</p> <p>Whether a surety may not, under exceptional circumstances, compel a creditor to exhaust collateral security before suing him, not decided.</p>

Action by Octavia J. Parsons against Gustav Venzke and others. From a judgment for defendants, plaintiff appeals. When a patent for land is issued by mistake, inadvertance or other cause to parties not entitled thereto, they will be declared trustee’s of the true owner.

Action by E. V. Hoffman against the Bank of Minot. From an order appointing a receiver, from an order refusing to discharge the receiver, and from an order overruling a previous order dismissing the original action, defendant prosecutes three separate appeals, which are consolidated, and disposed of in one opinion.

<p>Appeal from District Court, Cass County; Rose and Lauder, J’s.</p> <p>Action by E. V. Hoffman against the Mortgage Bank & Investment Company. From an order appointing a receiver, from an order refusing to discharge the receiver, and from one overruling a previous order dismissing the original action, defendant prosecutes three separate appeals, which are consolidated, and disposed of in one opinion.</p>

Application by Frederick H. Jackson for a peremptory writ of mandamus to compel the City of Ellendale to repair the service pipe connecting the city water main with his premises. From an order denying peremptory writ, plaintiff 'appeals.

Application upon relation of Robert Butler against J. F. Callahan, to compel defendant to surrender to plaintiff possession of the office of county superintendent of schools. From a judgment directing the issuance of a peremptory writ, defendant appeals. Mandamus will not lie to try title to office. Merrill on Mandamus, 143; McCrary on Elections, 322, Spelling Ext. Rel. 1572, 1510; Peo. v. Barrett, 8 N. Y. Supp. 677.

<p>Gross Earnings Law — Void.</p> <p>Chapter 99 of the Laws of 1883, commonly known as the “Gross Earnings Law,” was repugnant to § 1925 of the Revised Statutes of the United States, and void.</p> <p>Railroad Land Taxable.</p> <p>The exemption of the plaintiff’s land grant thereunder falls with the statute, and such lands are therefore taxable.</p> <p>Payment of Gross Earnings Tax Not Bar to Land Tax.</p> <p>The payment by the plaintiff of the gross earnings tax under the gross earnings law, and the acceptance of the same by the territory (said payment being made before the admission of North Dakota as a state,) do not bar the right of the different counties in which plaintiff’s land grant is situated to levy taxes against such land.</p> <p>Non-mineral Land — Title Relates Back.</p> <p>Said land grant was not exempt from taxation, because the question of its non-mineral character had not been finally settled.</p> <p>Unsurveyed Land — Survey Fees.</p> <p>Unsurveyed portions of plaintiff’s land grant are exempt from taxation where the survey fees have not been paid, under the rule laid down in Northern Pac. R. Co. v. Traill County, 115 U. S. 600, 6 Sup. Ct. 201, as the act of congress providing that said land grant shall be taxable despite the nonpayment of survey fees is by its terms declared to be inapplicable to unsurveyed lands.</p> <p>Burden on Plaintiff to Show Illegality of Tax.</p> <p>Plaintiff cannot avail itself of that provision of this act which excepts lands in unorganized counties, for the reason that it has failed to allege that the lands in question were situated in an unorganized county at the time the taxes were levied. The action being in equity to have tax proceedings annulled, the burden is on plaintiff to show the illegality of which it seeks to avail itself,</p> <p>Tax Proceedings Vacated — Judgment for Tax.</p> <p>Certain irregularities held, fatal to the validity of the tax proceedings, but not the taxes themselves in equity. They are the same as are set forth in the opinion in Railroad Co. v. Barnes, 2 N. D., at p. 389, et seq., 51 N. W. 386. Judgment is therefore directed to be entered for the amount of such taxes, interest, and penalties, under § 1643, Comp. Laws, and the tax proceedings are set aside.</p>

<p>Railroad Co. v. McGinnis, 61 N. W. 1032, 4, N. D., — ■ followed.</p> <p>Appeal from District Court, Barnes County; Rose, J.</p> <p>Action by the Northern Pacific Railroad Company against Christian A. Benson, county treasurer. From a judgment for plaintiff on the pleadings, defendant appeals.</p>

<p>Appointment of Receiver — Rights of Judgment Creditor.</p> <p>To entitle a judgment creditor to an order appointing a receiver of his debt- or’s property it must be made to appear that the creditor has in good faith exhausted his remedies at law; and to that end it must appear, unless special circumstances are shown to excuse it, that execution has been issued upon the judgment to the sheriff of the county of defendant’s residence, and been returned unsatisfied in whole or in part.</p>

<p>Disbarment of Attorney — Grounds For.</p> <p>Where the statute enumerates grounds for the disbarment of an attorney, no other grounds can be considered by the court.</p> <p>Evidence Insufficient to Sustain Findings.</p> <p>Evidence in this case considered, and held insufficient to warrant the finding of any fact that is ground for disbarment under the statute in force in this state.</p>

Action by N. Swenson against F. Greenland. From an order overruling a demurrer to the amended complaint, defendant appeals. In the complaint no attempt was made to state facts showing a valid tax. O’Neil v. Tyler, 3 N. D. 47; Miller v. Hurford, 12 N. W. Rep. 832; Brown v. Corbin, 40 Minn. 508, 42 N. W. Rep. 481; Weiner v. Porter, 42 Mich. 569. Contended that the validity of the tax, the levy and tax warrant is presumed until the contrary is alleged and proven.

<p>Conflicting Evidence — Verdict Undisturbed.</p> <p>Where the evidence is conflicting upon a question of negligence, the verdict will not be set aside on the ground of the insufficiency of the evidence. Evidence examined, and held., the evidence being conflicting, that the verdict will not be set aside in this case upon such ground.</p> <p>Stock Killing — Private Crossing.</p> <p>In an action against a railroad company for negligently killing an animal at a private crossing, put in by the defendant for the plaintiff’s use in passing from one part of his farm to another, the question of negligence is usually a question for the jury. Held., under the evidence in this case, that the question of negligence was properly submitted to the jury.</p> <p>Care Commensurate With Danger.</p> <p>A colt belonging to the plaintiff was turned loose to feed upon the plaintiff’s land, and, while attempting to pass across the railroad track upon such crossing, was killed by defendant’s cars. Held-. First, that such animal was not, when killed, a trespassing animal, but was lawfully upon the crossing; second, that defendant in running its trains, was bound to exercise due care in approaching and passing over such private crossing, and is bound to anticipate that animals and persons may be rightfully upon its right-of-way at the point of crossing. The care must be commensurate with the danger reasonably to be apprehended at the point of intersection.</p> <p>Improper Evidence Favorable to Objecting Party.</p> <p>Certain testimony was allowed to go before the jury against defendant’s objection thereto. Such evidence examined, and found to be wholly favorable to the defendant. Held, that, if the evidence was improperly admitted, the ruling admitting the same was error without prejudice.</p> <p>Evidence Withdrawn from Jury’s Consideration.</p> <p>In its instructions to the jury the trial court pointed out certain testimony which had been admitted against defendant’s objection thereto, and distinctly informed the jury that, for reasons which were stated, such testimony was withdrawn from the case, and must not be considered at all by the jury. Held, under the circumstances of this case, that the error, if error there was, in admitting such evidence, was cured by such instructions to the jury. Whether such withdrawal would cure the error in all cases not decided.</p>

Action by Louisiana E. Moore against Lewis E. Booker, George W. Ryan, and others to foreclose mortgages. Plaintiff had judgment, and defendants Booker and Ryan appeal. The court erred in denying defendants motion to suppress depositions — the notice not specifying the place or office at which the depositions were to be taken. Lucas v. Richardson, io Pac. Rep. 183; Williams v. Chadbourne, 6 Cal. 559.

Action in claim and delivery by Garr, Scott & Co. against W. B. Clements. Defendant had judgment, and plaintiffs appeal. The mechanic’s lien law of 1890 under which the defendant claims ownership is unconstitutional. Getchellv. Allen, 34 la. 559; Equitable Life Insurance Co. v. Slye, 45 la. 615; Meyer v. Berlandi, 40 N. W. Rep. 513; Dennison v. Shuler, 11 N. W. Rep. 402; Laird v. Noonan, 20 N. W. Rep. 354.

Action on a policy of insurance by Emma Tierney and Charles A. Morton against the Phoenix Insurance Company of Brooklyn, N. Y. Plaintiffs had judgment, and defendant appeals. Under the policy in suit the rights of the mortgagee were subject to be defeated by any act which defeated the rights of the mortgagor. Section 4104, Comp. Laws; Grosvenor v. Atlantic F. Ins. Co., 17 N. Y. 395.

Myron R. Kent, having been convicted of murder, brings error. The word “may” as used in the last clause of § 7312, Comp. Laws, is mandatory.