Volume 40 — North Dakota Reports

Proceeding to amerce a sheriff under the provisions of § 7770, Compiled Laws of 1913. Appeal from the District Court of Fierce County, Honorable A. O. Burr, Judge. Judgment for plaintiffs.

Action for personal injuries. Appeal from the District Court of McLean County, Honorable W. 8. Nuessle, Judge. Judgment for plaintiff. Defendant appeals. An injury alone is not sufficient to support a verdict in a personal injury action. There must be evidence of negligence on the part of defendant amounting to proximate cause. There is an entire want of proof of negligence on the part of appellant.

W. Buttz, Judge. Judgment of the trial court modified, with costs. Every holder of a negotiable instrument is deemed prima facie to be a holder in due course, unless the title of the holder is shown to be defective, as defined by the Code. There is no claim here that the title of plaintiff is defective. Civ. Code, §§ 6940, 6944.

Prosecution for the crime of murder. Appeal from the District Court of Stutsman County, Honorable J. A. Coffey, Judge. Judgment for plaintiff. Defendant appeals. Where an expert hears the testimony of the witnéss, and the testimony is undisputed, as it was in this case, it is proper for him to base his opinion on that testimony. Walters v. Rock, 18 N. D. 45, 115 N. W 511.

Mandamus to compel admission to the Soldiers’ Home. Appeal from the District Court of Ransom County, Honorable Frank P. Allen, Judge. Judgment for respondents. Relator appeals. The relator here was denied admittance to the Soldiers’ Home because he was possessed of more property and had a greater personal income than the rules and regulations prescribed by the board of trustees permitted.

L. Nuessle, J. The legislature of North Dakota by enactment fixed maximum interstate rates for the transportation of coal. Laws 1907, chap. 51. This act was sustained by the decree of the supreme court of North Dakota. 19 N. D. 45; 26 N. D. 438. The decree of the supreme court of North Dakota was reversed by the decree of the Supreme Court of the United States. 236 U. S, 585.

<p>Assault and battery — with dangerous weapon — Intent to do bodily harm — prosecution for — conviction of defendant —petit jury —special panel — regularly summoned by judge — regular panel having been discharged — proceedings proper.</p> <p>1. In a criminal prosecution in which the defendant was found guilty of the crime of assault and battery with a dangerous weapon with intent to do bodily harm, it is held that no error was committed in bringing the action to trial before a special panel of petit jurors regularly summoned by the judge of the district court, in accordance with § 815, Compiled Laws of 1913, the regular panel having been discharged at the conclusion of the regular session of the term.</p> <p>Condition and appearance of place of assault — day after assault — competent to SllOW.</p> <p>2. Evidence as to the condition of a wheat field, near the highway upon which an assault was committed, on the day after the assault is held properly admissible, it appearing that the defendant and his accomplices emerged from the wheat field prior to making the assault.</p> <p>Crime — commission of —persons concerned in — aiding and abetting — accomplices — principals.</p> <p>3. Under § 9218, Compiled Laws of 1913, which provides that “all persons, concerned in the commission of a crime, whether it is a felony or a misdejneanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, . . . are principals in any crime so committed,” a verdict finding the defendant guilty of an assault with a dangerous weapon is held to be proper where it appears that he aided and abetted his accomplices who used the dangerous weapon.</p>

C. Crawford, J. Statement of facts by Birdzell, J. This is an appeal from a judgment entered in the district court of Bowman county, rescinding a contract and canceling a certain conveyance made in pursuance thereof.

<p>Act of legislature — title of — fraternal beneficiary societies, orders or associations — regulating — provisions of act —title broad enough to cover — money or benefit — payable by association — attachment — garnishment — not liable to — Constitution.</p> <p>1. The title, “An Act Regulating Fraternal Beneficiary Societies, Orders, or Associations,” is sufficiently comprehensive to include a provision in the act that the money or other benefit to be paid by the association and the fund for the payment thereof shall not be liable to attachment or garnishment, either as against the insured or his beneficiary, and does not violate § 61 of the Constitution, which provides that “no bill shall embrace more than one subject which shall be expressed in its title.”</p> <p>Statutes — fraternal beneficiary society — money or other benefit — not liable to attachment or garnishment — Constitution — laws — equal protection.</p> <p>2. Section 5053 of the Compiled Laws of 1913, which provides that “the money or other benefit . . . provided or rendered by any” fraternal beneficiary society “shall not be liable to attachment” or garnishment, either against the association or beneficiary, is constitutional, and is not in violation of § 11 of article 1 of the state Constitution, which provides that “all laws of a general nature shall have a uniform operation;” nor of §'2 of article 1, which provides that “the government is instituted for the protection, security, and benefit of the people;” nor is it in violation of the 14th Amendment of the Constitution of the United States in that it denies equal protection of the laws to citizens and persons; nor is it unconstitutional because in violation of § 208 of the Constitution of North Dakota, which provides that “the right of the debtor to enjoy the comforts and necessaries of life shall be recognized by wholesome laws, exempting from forced sale to all heads of families a liomestead, the value of which shall be limited and defined by law, and a reasonable amount of personal property; the kind and value shall be fixed by law.”</p> <p>Note. — On the constitutionality of statute exempting proceeds of life or benefit insurance, see note in 1 A.L.R. 757.</p>

<p>Railway company — killing of animals by — negligence — presumptive eevidence of —facts in case — presumption may be overcome by.</p> <p>1. The statute makes the killing of animals by a railway company presumptive evidence of negligence; but when, as in this case, the facts in regard to the killing are all put in evidence, the presumption of the statute does not apply. The proved facts clear away and supersede all presumptions.</p> <p>Gross negligence — of plaintiff — right of way — permitting animals to trespass on —railway company —not guilty of negligence.</p> <p>2. In this ease it appears that plaintiff was guilty of gross negligence by permitting horses to trespass on the defendant’s right of way at an early hour in the morning of March 31st, when the horses should have been in their stable. Defendant was guilty of no negligence which in any manner contributed to or caused the killing of the horses.</p> <p>Note. — In the absence of a statute, the courts are practically unanimous in holding that a presumption of negligence does not arise against a railway company from the mere fact of injury to live stock by its trains, as will be seen by an examination of the authorities collated in a note in 15 L.R.A. 39, on presumption of negligence from injury to live stock by railway train. On duty of railroad employees to keep a lookout for live stock on track, see note in 24 L.R.A.(N.S.) 858.</p>

J. Kneeshww, Judge. Defendant appeals. A person who has never before worked in a hotel, or in the same locality, is not competent to testify upon the question of the value of her services in doing such work. Swan Co. v. Middlesex, 101 Mass. 173. Where a nonexpert witness shows that from common experience and observation he knows of the subject-matter about which he is testifying, he is qualified; but in the absence of such showing he is not competent. Alt v. California Eig.

G. Burr, Judge. “If a buyer of personal property does not pay for it according to contract, and it remains in the possession of the seller after payment is due, the seller may rescind the sale or may enforce his lien for the price in the manner prescribed by chapter 99 on Liens.” Comp.

E. Leighton, J. Res ipsa loquitur, if thoroughly understood and intelligently applied, is one of the wisest and most wholesome of legal doctrines. It much resembles the doctrine of circumstantial evidence in criminal cases. If a man is found dead near a damaged wire carrying death ■dealing voltage of electricity, it may well be presumed, in the absence •of an eyewitness, that he was killed through the negligence of the electric company. Houston v. Tractor Co. 155 N. C. 4.

Allen, Judge. Plaintiffs appeal. “The contract by which a grantee assumes the payment of existing encumbrances is separate and distinct from the conveyance.

E. Leighton, Judge. The petition was wholly insufficient and the school board had no jurisdiction. A nonresident of the district is not a proper signer of the petition. Comp. Laws 1913, § 1188. It is the duty of said board to ascertain whether the prerequisites to jurisdiction exist. 146 N. W. 727. Because the statement of the case contains no assignment of errors, the court is without power to examine it. State ex rel. Bickford v. Fabrick, 16 N. D. 94.

<p>Appeal from the judgment of the District Court of Stark County, Honorable W. C. Crawford, Judge.</p>

<p>Personal property — for purpose of taxation — may be separated from owner — may be taxed where it is — although not at domicil of owner.</p> <p>1. For the purposes of taxation, personal property, even though of an intangible character, may be separated from its owner, and he may be taxed on its account at the place where it is, although not the place of his domicil.</p> <p>Bills receivable — obligations or credits — owned by nonresident — derived from business in this state — assessable at business domicil —of nonresident, his agent or representative in state in same maimer as though owned by a resident.</p> <p>2. Under the provisions of chapter 229, Laws of 1917, all bills receivable, obligations, or credits owned by a nonresident and derived by him from a business conducted in this state are assessable at the business domicil of said nonresident, his agent, or representative within -this state in the same manner as though such bills receivable, obligations, or credits were owned by a resident of this state.</p> <p>Note. — For authorities discussing the question as to whether personal property having a situs for taxation elsewhere, is subject of taxation in the state of tlie owner’s domicil, see note in 36 L.R.A.{N.S.) 295. As to when debt may have situs for purpose of taxation apart from domicil of creditor, see notes in 2 L.R.A. (N.S.) 637, and 14 L.R.A.fN.S.) 493. On situs as between different states and counties, of intangible personal property for purposes of taxation, see note in L.R.A. 19150, 914.</p> <p>imposing taxes on tangible personal property — power of —state not deprived of —because owner has removed same from state.</p> <p>3. The state is not deprived of power to impose taxes on obligations evidenced by bills receivable merely because the owner has removed the bills receivable from the state.</p> <p>Obligations or debts — owed by citizens of state — to nonresidents — not purpose to tax all — only such as result from business transacted in this state.</p> <p>4. It was not the purpose of chapter 229, Laws 1917, to impose a tax upon all obligations or debts owed by citizens of North Dakota to residents of other states, but to impose such taxes only upon such credits and obligations as have arisen and have been accumulated in the course of business by one who is actually conducting a business in the state.</p> <p>Established place of business —in state — nonresident having none —loaning money in state — on applications sent to him by loan brokers — received at home office in another state —moneys remitted to brokers — by checks or draft —on bank at domicil in foreign state —not doing business in this state — such mortgage securities not subject to local taxation — within meaning of law.</p> <p>5. A nonresident who has no established placo of business or any duly authorized agent or representative in this state, and keeps no funds for investment in this state, but loans moneys on applications sent to him by loan brokers, and receives and accepts such applications at his home office in another state, from whence he transmits the moneys to the broker or borrower by draft or cashier’s check drawn upon a bank in the state of such nonresident’s domicil, is not doing business in this state within the meaning of chapter 229, Laws 1917, so as to subject such mortgage securities to taxation in this state.</p>

M. Hanley, Judge. The appeal being on questions of law alone, the district court bad no authority to order the case reopened and to stand upon the calendar for trial on the merits. The justice court having no jurisdiction, and appeal being on questions of law only, the district court bad only jurisdiction to order a reversal of judgment of the justice. Comp. Laws 1913, § 9164.

From a judgment of the District Court of Pierce County, Burr, J., defendant appeals. In mortgage foreclosure proceedings by advertisement, before an attorney’s fee can be included as an item of costs, the attorney must file his affidavit in full compliance with the statute. He must also be a resident attorney. Comp. Laws 1913, § 7792; 11 Cyc. 105; Fletcher v. Kelly, 88 Iowa, 475, 55 N. W. 474, 21 L.R.A. 347; Wilkins v. Troutner, 66 Iowa, 557, 24 N. W. 37.

Motion by respondents to dismiss an appeal from a judgment quashing a writ of habeas corpus and awarding the custody of a minor child to the possession of the defendants.

O. Crawford, Judge. Defendant appeals. Plaintiff’s cause of action is based wholly upon a contract of adjustment of the loss. “The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument.” Civ. Code, § 5889; Alsterberb v. Bennet, 14 N. D. 596, 106 N. W. 49.

From a judgment of the District Court of Eddy County, Buttz, J., defendant appeals. This lawsuit is governed by the Federal Employers’ Liability Act; the case was not so pleaded or proved, and on defendant’s motion should have been dismissed.

From an order sustaining a demurrer to the answer, defendant appeals. A board of supervisors of an organized township has full control over the highways in such township, and may lay out, alter, or vacate highways within the limits of such township, upon proper petition.

<p>Adultery — crime of — trial — particeps criminis — chastity —> evidence of — reputation for — committing of offense — opportunity for — specific act of adultery — with other man than defendant — not permissible.</p> <p>On the trial of a man for the crime of adultery, evidence of the reputation for chastity of the particeps criminis is admissible in connection with evidence of facts showing opportunity for committing the offense, but evidence of a specific act of adultery committed with another than the defendant is not admissible.</p> <p>Note. — On evidence of other crimes in prosecution for adultery, see note in 62 l:r.a. 335.</p>

Defendant appeals from an order denying a new trial. On a motion for a new trial based on the ground of newly discovered evidence, and the showing is such that on a new trial the jury ought to return a different verdict, the motion should be granted. Where the plaintiff declares upon an express contract to pay a specific price or sum, he must prove the contract as alleged, or fail. Lowe v. Jensen (N. D.) 132 N. W. 66; 9 Cyc. 749 and cases cited.

<p>Original application for a writ of mandamus.</p>

Action to restrain the killing of a diseased horse. Appeal from the District Court of McKenzie County, Honorable Frank Fisk, Judge. Judgment for defendant. Plaintiff appeals. To permit the destruction of the property here in question would amount to the taking of property without due process of law, and that the legislative act so authorizing is unconstitutional. Martin v. Tyler, 4 N. D. 278, 25 L. R. A. 838, 60 N. W. 392; Comp. Laws 1913, §§ 2687, 2688.

E. Leighton, Judge. A physician is answerable for any injury resulting from the failure to perform his implied contract, and for failure to exercise his best judgment. Langdon v. Humphrey, 9 Conn. 209, 23 Am. Dec. 333; Barnes v. Means, 82 111. 379; Beck v. Klinik (Iowa) 7 L.R.A. 566, 43 N. W. 617; Moratsky y. Wirth (Minn.) 69 N. W. 480, 76 N. W. 1032; Boldt v. Murray (N. Y.) 2 N. Y. S. 232, 21 N. E. 1116; Allen v. Voje (Wis.) 89 N. W. 924.

L. Nuessle, Judge. Judgment for respondents. Petitioner appeals. Regulations and licenses under the police power of the state can only be exercised where it has a real substantial relation to the public health, public safety, and public morals, and unnecessary or unreasonable restrictions upon the use of private property should not be imposed.

Action for personal injuries. Appeal from the District Court of Benson County, Honorable O. W-. Buitz, Judge. Judgment for plaintiff. Defendant appeals. A municipal corporation is not required to provide steps or other means by which the streets or sidewalks may be entered from private property.

A. Pollock, Judge. One partner cannot sue bis copartner on an overdraft of the nature here presented, until their mutual accounts are settled by liquidation of the partnership Devore v. Woodruff, 1 N. D. 143; Gleason v. White, 34 Cal. 258; Parsons, Partn, 3d ed. p. 293; Painter v. Painter (Cal.) 9 Pac. 450. “A partnership interest is one owned by several in partnership for partnership purposes.” “The ownership of property by several persons is either of joint-interests, or…

Cross-actions to enjoin the obstructions of a public sidewalk, and to prohibit the city officials from interfering therewith. Appeal from the District Co-urt of Cass County, Honorable O. M. Qooley, Judge. City of Fargo appeals.

<p>Primary election law —total vote cast —party candidates for office — percentage required — of vote for governor, secretary of state, and attorney general — nominations — statute — unconstitutional and arbitrary — lacks uniformity — system must be stable and constant throughout the counties of the state.</p> <p>Section 862 of the Compiled Laws of 1913, which at a primary election provides that “if the total vote cast for any party candidate or candidates for any office for which nominations are herein provided for shall equal less than 25 per cent of the average total number of votes cast for governor, secretary of state and attorney general of the political party he or they represented at the last general election then no nomination shall be made in that party for such office,” is unconstitutional in that its provisions are arbitrary, unnatural, and lack uniformity in the different counties of the state, and does not provide a standard for determining the basis for classification which is stable and constant throughout the counties of the state.</p>

M. Hanley, J. A defendant is rightfully entitled to a fair trial, and the presiding judge should so conduct the trial that this right shall not be impaired. 12 Cyc. 519. In a rape case, evidence of previous statements made by the prosecutrix must show that they were voluntarily made, and not made under the influence of pressure or fright. A mere complaint of the existence of a certain condition is not proper evidence, except to show that the crime has been committed.

<p>Promissory notes — transfer of — by deceased person during last illness — suit by the administrator — to set aside transfer.</p> <p>The plaintiff brings suit as administrator of Stina Lindquist to set aside an alleged transfer to defendant of promissory notes and a mortgage for $2,000 and interest. The transfer, if made at all, was made by the deceased during her last sickness and about a month prior to her death.</p> <p>Transfer without consideration — except oral contract for care — during life — and to pay funeral expenses.</p> <p>a. It was made without any consideration, only an alleged oral contract to care for his mother during her life and to pay her funeral expenses.</p> <p>Obtained by fraud — undue influence — deceased feeble in mind —incompetent.</p> <p>b. It was obtained by fraud and undue influence, and when the mother was feeble-minded and incompetent and helpless, and in the power of the defendant.</p> <p>Promissory notes — transfer of —none in fact —no delivery of notes or mortgage.</p> <p>c. There was in fact no transfer of the notes and mortgage. The alleged transfer was not signed by the deceased, except possibly by her mark, and she never delivered to the defendant either the notes or the mortgage.</p>

<p>Appeal from an order of the District Court of Stark County.</p> <p>Defendant appeals.</p> <p>In an action for money had and received it is essential that plaintiff prove that the defendant actually received the money. 27 Cyc. 860; Borroughs v. Peterson (Utah) 114 Pac. 758; Abbott, Trial Ev. 2d ed. p. 337.</p> <p>“The action for money had and received will not lie against a party into whose hands the money is not shown to have come.” Whittier v. Home Sav. Bank (Cal.) 119 Pac. 92; Hoyt v. Paw Paw Grape Juice Co. (Mich.) 123 N. W. 529; J. C. LeClair Co. v. Rogers-Rogers Co. (Wis.) 102 N. W. 346.</p> <p>“Although trial courts are vested with a large discretion in granting or refusing new trials, such discretion is a legal discretion, and appellate courts will not hesitate to interfere for the protection of litigants in a clear case of abuse of such discretion.” Olson v. Riddle, 22 N. D. 144, 132 N. W. 655.</p> <p>An insurance policy is a personal contract between the insured and the insurer, and not a contract which in any sense runs with the property, and the insurance money is generally payable to the insured without regard to the nature and extent of his interest in the property, provided he had an insurable interest at the time of making the contract • and at the time of loss. 19 Cyc. 883; McLaughlin v. Park City Bank (Utah) 63 Pac. 589; Anderson v. Quick (Cal.) 126 Pae. 871; 19 Cyc. 663 — 884; Ryan v. Adamson (Iowa) 10 N. W. 287; Nor dyke & Marmon Co. v. Gery (Ind.) 13 N. E. 683; Johnson v. Northern Minn. Land & Inv. Co. (Iowa) 150 N. W. 596; Imperial Elev. Co. v. Bennett (Minn.) 149 N. W. 372.</p> <p>The defendant makes no claim of offset against the rents and profits of the amount he paid as premium for the insurance. There is nothing of this nature in the answer. Comp. Laws 1913, § 7762.</p> <p>The defendant in an action is not bound by matters extraneous to the issues, and a finding by the court on such extraneous matter is merely surplusage, and not binding on anyone. Sobolisk v. Jacobson (N. D.) 69 N. W. 46; Bank of Visalia v. Smith (Cal.) 81 Pac. 542; Lillis v. Emigrant Ditch Co. (Cal.) 30 Pac. 1108; House v. Lockwood (N. Y.) 33 N. E. 595, 23 Cyc. 1317.</p> <p>Redemption must be made within one year from date of sale. Comp. Laws 1913, § 7754.</p> <p>The law governing accounting • actions does not give the court the right to extend the time of redemption. It is the statute, and not the act of the court, that gives the extension of time. The court ha3 no jurisdiction beyond the limits of the statute. Little v. Worner, 11 N. D. 382, 92 N. W. 456.</p> <p>The time in which to move for a new trial was not extended by the court. Therefore, after the expiration of such time, the court had no authority to grant a new trial. Comp. Laws 1913, § 7664.</p> <p>Appellant now claims that he did not receive the insurance money and therefore this suit cannot be maintained, because an action for money had and received will not lie unless the party sued actually received the money. That appellant, even though the money was placed in the bank and to his credit, did not receive the actual money. The proof shows the receipt of the money, and it was not questioned on the trial, but raised for the first timo in this court. McLain v. Nurnborg, 16 N. D. 144, 112 N. W. 243; VanGorden v. Goldamer, 16 N. D. 323, 114 N. W. 609; Poirier Mfg. Co. v. Kitts, 18 N. D. 556, 120 N. W. 558; Golden Valley Land Co. v. Johnstone, 21 N. D. 97, 128 N. W. 690; Allen v. Cruden, 34 N. D. 166, 157 N. W. 974.</p> <p>The case must come to this court and here be presented on the same theory upon which' it was tried in the lower court. DeLaney v. Western Stock Co. 19 N. D. 630, 125 N. W. 499; Jackson v. Sabie (N. D.) 161 N. W. 722; Victor Produce Co. v. C. & N. W. R. Co. (Minn.) 160 N. W. 201; 3 O. J. 689, § 580.</p> <p>The former judgment has never been attacked or assailed. The court had jurisdiction over the parties and over the subject-matter. Even though it may be irregular as to form or erroneous as to the law, it is conclusive, so long as it remains unreversed and in force, and it cannot be impeached collaterally. 23 Cyc. 1090; 15 R. C. L. p. 859, §§ 334-337, 339; 10 N. D. 440, 87 N. W. 977; St. A. & D. Elev. Co. v. Marinean, 30 N. D. 425, 153 N. W. 416; 23 Cyc. 1095, and cases cited in notes; Black, Jndgm. 2d ed. § 261.</p> <p>Having charged the premium to his pledgeor and having received payment therefor, the appellant was in the position of a trustee for his pledgeor, holding the money arising from the loss for the benefit of the pledgeor, for whose benefit he would be adjudged to have continued the insurance in force. 27 Cyc. 1263.</p> <p>A motion for a new trial is addressed to the sound judicial discretion of the court, and its ruling in granting a new trial will not be disturbed on appeal, unless the court manifestly abused that discretion. Where a new trial has been granted the supreme court will be reluctant to reverse the lower court. Keystone Grain Co. v. Johnson, 165 N. W. 977; First National Bank v. Davidson, 36 N. D. 1, 161 N. W. 281; Reid v. Ehr, 36 N. D. 552, 162 N. W. 903; Blackerby v. Guinther, 34 N. D. 248, 158 N. W. 354; State v. Cray, 31 N. D. 67, 153 N. W. 425; McGregor v. Gt. Northern R. Co. 31 N. D. 471, 154 N. W. 261; Aylmer v. Adams, 30 N. D. 514, 153 N. W. 419.</p>

Action to compel the removal of a frame building constructed in violation of a village ordinance. Appeal from the District Court of McIntosh County, Honorable Frank P. Allen, Judge. Judgment for defendant. Plaintiff appeals.

G. Burr, Judge. In an action by the owner of grain for the conversion thereof, defendant may plead and prove by way of defense and in mitigation of damages, any lien on the grain which has been paid by defendant, or which is held by defendant. Comp. Laws 1913, § 6721; Force v. Peterson, 17 N. D. 220, 116 N. W. 84. The payment of such lien is equally beneficial to the owner of the grain.

<p>Appeal from the District Court of Bottineau County, North Dakota, Honorable A. G. Burr, Judge.</p>

A. Coffey, Judge. Defendant appeals. The court erred in directing the jury to return a verdict for the plaintiff. The evidence was in no manner clear or decisive, and in any event the matter of damages was a question for the jury. Kingsbury v. Joseph, 94 Mo.

W. Buttz, Judge. Defendants appeal. The appellant was not guilty of negligence. “Where the relations between .two parties are analogous to that o£ principal and agent, or principal and surety, or master and servant, the rule is that a judgment in favor of either in an action brought by a third party, rendered upon a ground equally applicable to both, should be accepted as conclusive against the plaintiff’s right of action against the other.” Eeatherstone v. Newburg, 71 Hun,…

W. Buttz, Judge. Where the mortgagor gives a subsequent mortgage upon the same property, his purchase at sale under first mortgage will operate for the benefit of it in the same way as a discharge or a transfer to himself. 3 Jones, Mortg. § 1887 and cases cited; Ayer v. Phila. & B. Brick Co. 157 Mass. 57, 31 N. E. 717. He cannot set up against his own encumbrance another one that he himself has given.

W. Buttz, Judge. Plaintiff appeals. Except for latent defects, the buyer of goods becomes bound to pay the purchase price, and cannot complain of the quality, if he accepts the goods after inspection. 35 Cyc. 229, and cases cited; Bullock v. Consumers Lumber Co. (Cal.) 31 Pac. 367. “If the vendee receives the goods in discharge of the contract after having inspected them,’or having had a fair opportunity of inspecting them, the terms of the contract are complied with and he…

Fish, J. Action to recover the rental value of property sold under a contract of sale. Such action cannot be brought in connection with any other except for rents and profits accrued or damages arising by reason of the defendant’s possession. No counterclaim can be interposed except as a set-off to a demand made for damages or rents and profits. Vidger v. Nolin, 10 N. D. 358, 87 N. W. 593; Comp. Laws 1913, § 9072; McLain v. Nürnberg, 16 N. D. 144, 112 N. W. 243.

From a judgment of the District Court of Ward County, Honorable K. E. Leighton, Judge, dismissing an election contest, contestants appeal. “The objection that the action was not commenced within the time limited can only be taken advantage of by answer.” Comp. Laws 1913, § 7358. The rules of practice, unless otherwise provided, are the same as provided by the Code of Civil Procedure. Comp. Laws 1913, § 1057.

W. Butiz, Judge. Plaintiff appeals from an order denying an alternative motion for judgment notwithstanding the verdict or for a new trial. After judgment in claim and delivery directing a return of the property seized and rebonded by defendant, it is defendant’s duty to at once return the property in the same condition as when taken. Oobbe, Replevin, § 1182; Capital Lumber Co. v. Learned, 30 Or. 544, 78 Am. St. Rep. 792; 34 Cyc. 1575 and cases cited.

Action to-enjoin the maintenance of a public highway. Appeal from the District Court of McHenry County, Honorable A. G. Burr, Judge. Judgment for defendants. Plaintiff appeals. Statement of facts by Bruce, Ch. J. This is an action to have a certain highway decreed to have been illegally established and not to exist, and to restrain the defendant from in any way entering upon, working, or repairing the same.

M. Cooley, J. The foreclosure by advertisement of a real • estate mortgage containing the power of sale carries to the purchaser all the rights and benefits accorded to a purchaser under foreclosure by action and sale of the land under execution. Code § 7762; Code, art. 1, chap. 30. Unlike our Code and practice, in California mortgages are foreclosed by action, and the sale is made under execution issued upon the decree.

M. Hanley, J. The statute under which this action is brought is squarely in conflict with the Constitution of the state. “No law extending or restricting the right of suffrage shall be in force until adopted by a majority of the electors of the state voting at a general election.” N. D. Const. § 122. The word “elections” as used in the Constitution has been held to have reference to the choice of officers alone.

C. Crawford, J. The right of suffrage is not an inherent one, nor a necessary incident of citizenship, but is merely a privilege granted by the sovereign power, and subject to the restriction of the Federal Constitution. 15 Cyc. 280 and cases cited; 9 R. C. L. 1023 and cases cited. The enlargement, by the legislature of constitutional requirements and qualifications of voters, as well as the abridgment of the same, is obnoxious to the Constitution.

E. Leighton, Judge. The burden of. proof is upon defendant to show that the original note was paid by the renewal note, and that therefore the mortgage securing the original note indebtedness was satisfied. First Nat. Bank v. Flath, 10 N. D. 281, 86 N. W. 867; Bank v. Flath, 10 N. D. 275.

Cr.. Bun-, Judge. “The statements made by the witness on his oral examination were immaterial upon the main question in the case, as such statements were in square conflict with those made in the document offered in evidence. This being so the document was competent evidence as tending to impeach the witness.” Baumer v. French, 8 N. D. 328, 79 N. W. 340. Such document, when offered for such purpose, was proper, and it. was reversible error for the trial court to disallow it.