Volume 42 — North Dakota Reports

Murray, J. The permission to amend is not sufficient, .the pleadings must be redrawn. Satterland v. Beal, 12 N. D. 122; Bergh v. John Wyman Farm Land & Loan Co. 30 N. D. 165; Clark v. Ellingson, 35 N. D. 546. The court will not disturb the verdict unless the errors are prejudicial. McGregor v. G. N. E. E. Co. 31 N. D. 471; Buchanan v. Occident Elev. Co. 33 N. D. 346.

The policy expressed in § 1188, Compiled Laws 1913, is that no child shall be deprived of that education and an equal opportunity to the same even though the taxpayers are unwilling to vote to remove or build a school site. State v. Mostead (N. D.) 158 N. W. 349. The public schools of North Dakota are under the control of the legislature, and the respective school boards have no other powers than those expressly conferred upon them.

“When an agreement is not made for the benefit of a third party it cannot be enforced by him.” Jefferson v. Asch (Minn.) 55 N. W. 604; Parlin v. Hall (N. D.) 52 N. W. 404. “A third party cannot sue unless he is plainly designated by the instrument as the beneficiary and the covenant or promise is made for his sole benefit.” Newberry Land Co. v. New Berry (Va.) 27 S. E. 899. See also Ansteel v. Humphries (Ga.) 27 S. E. 736; Wood v. Mariority (It.

Action to recover certain grain; defendant banlc interposed counterclaim alleging a seed lien thereupon. From a judgment rendered for the bank, and from the order of the District Court, Benson County, Buttz, J., overruling a motion for judgment non obstante, the plaintiff appeals. The seed lien was unknown at common law; and hence can neither be acquired nor enforced unless there has been a substantial compliance with the act of the legislature from which the lien arises.

Allen> -I. “In the sale of an article to be used for food for human beings there is an implied warranty that the article is sound and is in fact suitable and proper to be used as food.” Nelson v. Armour Packing Co. 76 Ark. 352; Wiedman v. Keller, 171 111. 93; Hoover v. Peters, 18 Mich. 51; Burch v. Spencer, 15 Hun, 504; Divine v. McCormick, 50 Barb. 116; Houck v. Berg (Tex.) 105 S. W. 1176; Jones v. Murray, 19 Ky. 83; Emerson v. Brigham, 10 Mass. 70; Ryder v. Neitge, 21…

Action to quiet title to real estate in District Court, Divide County, Leighton, J. From a judgment rendered in favor of the defendants dismissing plaintiff’s action and quieting title in the defendants, the plaintiff appeals, and demands a trial de novo. Proof may be completed by the children of a deceased entryman. IT. S. Rev. Stat. § 2292; Bernier v. Bernier, 147 IJ. S. 242, 37 L. ed. 152.

Allen, Judge. Isolated and disconnected sales of land, without regard to the location of the land or the residence of the parties, does not amount to engaging in business in violation of a contract in which the parties agreed not to engage in the real estate, farm, loan, etc., business. The terms, “engage in business” and “carry on business,” are synonomous expressions.

<p>Banks and banking — officers — accounting —estoppel.</p> <p>In an action for accounting for certain commissions and profits claimed to have been -wrongfully appropriated by the defendant while acting as managing officer of the plaintiff bank, it appeared that during the period when the commissions and profits were earned the defendant was the owner of 60 per cent of the stock of the plaintiff bank and one B. the owner of 40 per cent; that the commissions and profits were earned in transactions not coming within the legitimate scope of the business which the plaintiff corporation was authorized to transact; that there- were settlements from time to time between the defendant and the other stockholder; that defendant sold his stock to third parties who purchased it at book value plus an agreed bonus, the book value being arrived at after an inspection of the assets of the bank and upon a statement disclosing its true condition and the claim of the defendant to commission notes held outside the bank, which were also sold as a part of the saíne transaction, it is held:</p> <p>(1) An officer of a bank who participates in the settlement of business transactions as the personal business of himself and another stockholder, which business is, in fact, ultra vires the powers of the bank, is estopped, upon later gaining control of the corporation, to use the corporate name for the purpose of compelling an account.</p> <p>(2) Stockholders who purchase a controlling interest in a bank at book value plus an agreed bonus, relying upon a true statement of the condition of the bank, and who also purchase the defendant’s personal interest in outside securities, a share of which is later claimed in an action for an accounting brought in the name of the bank, are estopped to use the corporate name to gain an interest in past ultra vires transactions.</p> <p>Banks and banking — bank as loan agent — • ultra vires transactions.</p> <p>3. The fact that a bank is designated as the agent for certain companies for whom loans are made by the officers of the bank, the commissions of whicn are either divided between them or retained by the officer negotiating the loans, does not, in a suit by the bank for accounting, preclude the officer so retaining the commissions from asserting the ultra vires character of the transactions, where the corporate name of the bank is being used by persons who either participated in settling such transactions on a personal basis or who purchased stock, relying upon a true statement of the assets which excluded the transactions in question.</p>

<p>Original application by Claude Bossen for a writ of habeas corpus against Bollin Welch, sheriff of Burleigh county.</p>

Cole, J. Service of demand and answer were complete upon the dropping of the envelop containing them in the United States Postoffice within the statutory time.” Clyde v. Johnston, 4 N. D. 92, 58 N. W. 512; Cedar Rapids N. Bank v. Coffey, 25 N. D. 459, 141 N. W. 997; Comp. • Laws 1913, § 7887; Nind v. Myers, 15 N. D. 400, 109 N. W. 335. Judgment entered before time for answer expired is erroneous and void.

Action on two promissory notes, in District Court, Barnes County, Coffey, J., from a judgment rendered for defendant, and from an order denying judgment non obst-ante or for a new trial, plaintiffs appeal.

A. Coffey, Judge. . It is a well-settled principle of law that where the maker of commercial paper voluntarily places his paper in the hands of another for negotiation, or who stands by and sees the note indorsed to a party without having his right to defend against the payment of the notes indorsed thereon, or where a failure of the consideration complained of is occasioned by his noncompliance with his own agreement or obligation, he is estopped from defending against the…

“Where the judgment recites that the plaintiff has submitted to the ■court and jury all of its evidence in support of its complaint, and that judgment was rendered against them, it is a judgment upon the merits.” ■Comp.

<p>Contracts — tax record — application oí caveat emptor —void tax titles.</p> <p>The maxim “caveat emptor” applies with full force to one who purchases land from the vendee of a purchaser of a tax title; and where the tax records disclose several, jurisdictional defects rendering the tax title void, such purchaser has no cause of action against the original owner of the tax title merely because at his suggestion and solicitation the officer who issued the tax deed inserted therein a more complete description of the lands than that which appeared on the tax record.</p>

T. dole, Judge. The offer of the respondents to accept $50 in payment for services was an offer for settlement only, was not accepted, and was not admissible in evidence. Graban v. Nürnberg (N. D.) 166 N. W. 510; Busch v. S. D. Central Drug Co. (S. D.) 135 N. W. 757; Reagan v. McKibben (S. D.) 76 N. W. 943, 945; Wigmore, Evi. §§ 1061, 1062; 16 Cye. 946; note in 27 L.R.A. 811, 817, 818; Nauman v. Zoerhlaut, 21 Wis. 466; Stryker v. Cassidy, 76 N. T. 50.

Christine Ecklund appeals from an order denying her motion that the petitioner, Julius J. Ostlund, be required to give security for costs.

Action for negligence; appeal from District Court, La Moure County, Coffey, J. “Where plaintiff’s evidence established his contributory negligence •defendant may avail himself of. same by asking for advised verdict, irrespective of the allegations of the answer.” Mellon v. Great Northern JR. Co. 134 N. W. 116; 29 Cyc. 605. “When both parties have been negligent there can be no recovery.” 20 R. C. L. pp. 99, 107, 117. “No liability is predicable of the injury when it appears…

<p>Appeal from the District Court of Ward County, E. E. Leighton, J.</p>

E. Leighton, J. “The information may be amended.” Comp. Laws 1913, § 10,633; State v. Wood, 24 N. D. 156. “As to what constitutes false pretense.” State ex rel. Spriggs v. Craig, 36 N. D. 162, and eases cited; State v. Merry, 20 N. D. 349, and cases cited; State v. Stewart, 9 N. D. 409, 6 L.R.A.(N.S.)366-370.

E. Leighton, J. The court in instructing the jury shall only instruct as to the law of the case, and must stop where in any reasonable view of the evidence there is room for debate as to where the truth lies. 14 E. O. L. 738-740; N. D. Comp. Laws 1913, § 7620; 2 Thompson, Trials, p. 1535. An instruction referring to a controverted fact “as shown by controverted evidence” is erroneous. Marble v. Lyps, 82 Ala. 322, 2 So. 701; Commercial & F. Ins.

T. Cole, J. “Judgment in action of claim and delivery must be supported by a verdict of tbe jury in tbe absence of a proper waiver.” Hart v. Wyndmere, 21 N. D. 883, 131 N. W. 271, Ann.

O. Burr, J. A motion for new trial is not directed at the judgment, hut at ■the verdict, or at the decision of fact; for a new trial is a re•examination of an issue of fact.

'Action for personal injuries. Appeal from order granting judgment non obstante, District Court, Grant County, Hanley, J. “A verdict can be vacated or new trial granted only upon statutory grounds.” Comp. Laws 1913, § 7660. “The supreme court cannot go outside the specifications to find out whether or not the verdict can stand on other points not specified.” Erickson v. Wiper, 33 N. L>. 193; Buchanan v. Occident Elev.

From a judgment of the District Court of Stutsman County, Coffey, J., plaintiff appeals. A mere naked possession of property confers some rights as against ■a mere wrongdoer and trespasser. Sanford v. Millikin, 144 Mich. 311, 107 N. W. 884; Anderson v. Gouldberg, 51 Minn. 294, 53 N. W. 636; Smith v. Lydick, 42 Mo. 209; Rogers v. Arnold, 12 Wend. 30; Freshwater y. Nighols, 52 N. C. 251; Taylor v. Brown, 49 Or. 423, 90 Pac. 673; Kellogg v. Adams, 51 Wis. 138, 37 Am.

T. Gole, Special Judge. From an order sustaining a demurrer to complaint, plaintiffs appeal. •Where the lessors of each quarter of land were holding their right, title, and interest in the premises so used in trust for the benefit of the Joint enterprise, same constituted a partnership. Comp. Laws 1913, § 6386; Kayser v. Maughan, 8 Colo. 232; See notes in 115 Am. St. Rep. 4-00, and 43 Am. St. Rep. 429.

, and Nuessle, Special Judge. “Dividends can be declared only from surplus profits derived from the business.” Comp. Laws 1913, § 4543; 10 Cyc. 549, and cases cited under note 38. “In an action at law tried before a court, no motion for directed verdict is necessary in order to enable the supreme court to grant such motion.” 167 N. W. 72; Comp.

, denying motion for new trial. There are two ways in which supreme courts order new trials in the trial court.

E. Leighton, Judge. The ordinary precaution required of one approaching a railroad crossing, when he has no knowledge of the close proximity of the train, is that he look and listen, and make a diligent use of all his faculties to inform himself and avoid collision. West v. E. Co. 13 N. D. 230; ■Chicago E. Co. v. Houston, 95 H. S. 702; Sherlock v. Minnesota St. P. & S. Ste.

Action for personal injuries, District Court, Stutsman County, Nuessle, J. From order and judgment granted notwithstanding the verdict in favor of plaintiff, plaintiff appeals.

G. Burr, Judge. The presumption is that the defendant did receive the policy, and after the lapse of nearly six years he cannot now be heard to deny it. 16 Cyc. 759. The policy was not the insurance, but only an incident in connection, with it. 19 Cyc. 594. (Quoting from the memorandum opinion of the district court.) The general rule is that no one becomes a member of a mutual hail insurance company unless he receives his policy.

E. Leighton, Judge. There is no presumption of negligence on the part of the employer because of the happening of some injury to some of his employees. The burden is on the employee, in an action to recover for such an .injury, to prove negligence. Warren v. Harlan & H. Corp. Del. 84 Atl. 215; Campbell v. Southern P. R. Co. 21 Cal.

Action on non-negotiable order. “The order in question not being an unconditional promise or order to pay a certain sum of money not payable on demand or at a fixed or determined future time, or to order or bearer, is not negotiable.” N„ D. Comp. Laws 1913, § 6886. “Failure of consideration is a defense against any person not a holder in due course.” N. D. Comp.

Defendants appeal from an order continuing a temporary restraining order in force. “Before an injunction is issued it must appear by the affidavit of the plaintiff or any other person that sufficient grounds exist therefor. Comp. Laws 1913, § 7530; Hyde v. Gearhart, 168 N. W. 719; 22 Cyc. 942 and cases cited. The general police power includes the usual'means of carrying out such power, includes municipal water and lighting services. Dill. Mun.

Action in District Court, Grant County, Hanley, J., to recover the consideration of a deed. From a judgment rendered for the plaintiff, and from an order denying new trial, the defendants appeal. “Where a case is based on fraud the facts to prove it must be established by clear and satisfactory evidence in a higher degree than in ordinary cases.” Lipley v. Anderson, 125 N. W. 432.

Action for personal injuries in District Court, Stutsman County, Coffey, J. From a judgment, upon a directed verdict, for the defendant, plaintiff appeals. .... ..... “The defendant was negligent in not furnishing gloves for plaintiff’s protection.” 3 Labatt, Mast. & S. § 949, and numerous cases cited, and annotations under note 2; see also § 939; 18 R. C. L. § 92, p. 589 ; 26 Cyc. pp. 1433, 1441, and citations. Snyder v. Mutual Teleph.

A. Coffey, J. A father is the natural guardian of his minor children, and is charged by law with the duty of attending to their support and education. Under our statute he is guilty of a misdemeanor if he fails to send his children to the public schools according to law. Crawford v. District School Bd. (Or.) 50 L.R.A.(N.S.) 147, 137 Pac. 217; L. O. L. § 4120; Laws 1911, p. 428; High, Extra. Leg. Rem. 3d ed. § 438.

C. »Crawford, Judge. “The animal must be an estray, and, if it is not, the taker up acquires no interest in it.” 3 C. J. 79; 1 R. C. L. 1143, § 84; Ray v. Davison, 24 Mo. 280; Walter v. Glats, 29 Iowa, 437; Sheper v. Hawley, 4 Or. 206; Roberts v. Barnes, 27 Wis. 422; “The party taking up an estray and failing to advertise same is liable to the owner for damages. The statute must be followed.” Comp.

Verdict, for plaintiffs and defendant appeals. “The defendant cannot raise the question of law for the first time in the supreme court.” De Lendrecie v. Peck, 1 N. D. 422, 48 N. W. 342; Stall v. Davis, 26 N. D. 373 (see especially syl. 3) ; Bamum v. Land Co. (S. D.) 147 N. W. 647; McNab v. Northern P. B, Co. (N. D.) 98 N. W. 353; 3 C. J. 689, 894 et seq; Stover v. Stevens (Cal.) 131 Pac. 332; Scott v. State, 37 N. D. 90; American Case & Eegister Co. v..Boyd, 22 N. D. 166;…

<p>3?leading — bankruptcy as a defense — order of discharge prima facie defense-burden of proof.</p> <p>1. Where a person who has received a discharge in bankruptcy is sued on a debt which existed at the time of the filing of the petition, the introduction of the order of discharge makes out a prima facie defense, the burden being then cast upon the plaintiff to show that, because of the nature of the claim, failure to give notice, or other statutory reason, the debt sued on was by law excepted from the operation of the discharge.</p> <p>Pleading — proof of proceedings in bankruptcy — question of authentication.</p> <p>2. A general objection to' a certified copy of a discharge in bankruptcy, followed by a specific objection that it has not been shown that a petition in bankruptcy was filed, does not raise the point that the document is not properly or sufficiently authenticated.</p> <p>Evidence — motion for directed verdict —duty of court to consider certain evidence.</p> <p>3. Where documentary evidence tending to establish a discharge in bankruptcy has been admitted over objection and is permitted to remain as evidence in the ease; and the defendant, acting on the supposition that such documents will be considered as evidence, properly there moves for a directed verdict, thereby consenting to a discharge of the jury and a trial of all questions by the court, the court may not in determining the action refuse to consider such documentary evidence, even though it was improperly admitted.</p>

<p>Appeal from the District Court of Ramsey County, Honorable CL TF. Buttz, Judge.</p> <p>. The rule is to allow amendments; to refuse is the exception. Kelroy v. R. Co. 1 S. D. 80, 45 N. W. 204; Nashua Sav. Bank v. Lovejoy, 1 N. D. 211, 46 N. W. 411; Anderson v. Bank, 5 N. D. 80, 64 N. W. 114; Bigelow v. Draper, 6 N. D. 152, 69 N. W. 570; Haggarty v. Strong, 10 S. D. 585, 74 N. W. 1037; Chaffee v. Runkle, R. & Co. .11 S. D.. 333, 77 N. W. 583; J. I. Case Co. v. Erchinger, 15 S. D. 530, 91 N. 82; Hoegaard v. Trust Co. 3 S. D. 569, 54 N. W. 656; Martin v. Bank, 7 S. D. 263, 64 N. W. 127.</p> <p>“The cross-examination must be confined to the facts and circumstances connected with the matters stated by the witness in his direct examination, and to questions tending to test his accuracy, veracity, or credibility, or to shake his credit by injuring his character.” Reynolds, Trial Ev. p. 281; 1 Creen, Ev. § 445; 1 Whart. Ev. § 529; Wigmore, Ev. § 1368.</p> <p>“Evidence of the condition of a thing or place at a time prior or subsequent to the time at which the condition of the thing 'or placq is a material fact, as bearing on the probable condition at that time, is incompetent unless preceded by prima facie proof that no change has taken place in the meantime.” Abbott, Proof of Facts, 3d ed. p. 348, ¶ 6. See also: Lehigh Zinc & I. Co. v. Trotter, 42 N. J. Eq. 6G1, 9 Atl. 694; Reed v. New York C. R. Co. 45 N. Y. 574; Fitzgerald v. Clark, 17 Mont. 100, 42 Pac. 273; Grant v. Raleigh G. R. Co. 108 N. C. 462, 13 S. E. 209; Bretsch v. Plate, 82 App. Div. 399, 81 N. Y. Supp. 890.</p> <p>Century Dig. §§ 3912 — 3915, 3917 — 3921; Hoyer v. Good (Iowa) 161 N. W. 691.</p> <p>The terms of the oral contract being in dispute, the verdict of the jury in favor of defendant establishes the contract as contended for by him, and it must be so considered on appeal. Barr v. Clinton Bridge Works (Iowa) 161 N. W. 695.</p>

Action for the recovery upon a money judgment of the Superior Court of Loa Angeles County, California, District Court, Burleigh County, Nuessle, J. From a judgment in favor of plaintiff the defendant appeals. “The effect of the judgment of California must be determined by the laws of California.” 23 Cyc. 1563; 2 Elliott, Ev. § 1535 • Mills v. Duryee, 7 Cranch, 411, 3 L. ed. 478; Cole v. Cunningham, 133 U. S. 107; Fox v. Nick, 20 Cal. 599, 129 Pac. 972; 1 Nose’s Notes (U. S.)…

Action for damages. Appeal from an order sustaining demurrer, in District Court, Williams County, Fish, J. “An insane person has a right to sue.” 16 Am. & Eng. Enc. Law, «00. “A guardian ad litem is not a party to the suit, but is appointed by the court to protect the property rights of the noncompetent.” 15 Am. & Eng. Enc. Law, 2. See Comp. Laws 1913, § 7401; Mailen v. Mailen, 2 Johns. Oh. 238; Denney v. Denney, 8 Allen, 313; 1 Dan. Oh. Pr. 83; Story, Eq.

<p>Appeal from order of District Court, Ward County, Leighton, J., dismissing a judgment rendered for condemnation of an alley.</p>

<p>Appeal from the District Court of Traill County, Honorable A. T, Cole, Judge.</p> <p>“A judgment not supported by the pleadings is fatally defective as one not sustained by the verdict or findings. 1 Black, Judgm. 2d ed. § 183; 31 Cyc. 45 D; Hilliard v. Loeb, 31 S. D. 333, 140 N. W. 703.</p> <p>The plaintiff has failed to prove facts necessary to prove its case. Comp. Laws. 1913, § 2576; 30 Cyc. 1108, 1157, note 39; 117 Mass. 447.</p> <p>The party asserting residence must prove it. 16 Cyc. 931, 932; 1 Am. Rui. Cas. 237. See also 117 Mass. 447; 4 Ene. E'v. p. 848, note 4, citing cases.</p>

In case a contract for the purchase of land is breached by the vendee, the vendor has various remedies. Richard v. Marshall (Iowa) 103 N. W. 774; Waters v. Pearson (Iowa) 144 N. W. 1026; Miller v. McConnell (Iowa) 157 N. W. 943; Curr Co. v. Nygren, 114 Minn. 268, 130 N. W. 1112, Ann. Cas. 1912C, 538; 22 Ene. PL & Pr. 702. A vendor’s lien exists only when the vendor has conveyed title to the vendee. Pom. Eq. Jur. 3d ed. §§ 1260-1262.

M. Cooley, Judge. When there exists doubt as to the delivery of a deed, the true situation may always be shown by parol. Burke v. Dulaney, 38 L. ed. 698, and cases cited; 17 Cyc. 642, and cases cited in note 46; Branson v. Oregonian E. Co. (Ore.) 2 Pac. 86; Davies v. Jones, 16 C. B. 625; llallis v. Littel, 11 C. B. N. S. 369; Wilson v. Powers, 131 Mass. 539; Pawling v. United States, 4 Cranch, 219; 2 Taylor, Ev. 8th. ed. § 1135.

“Interpleader or intervention will not serve to dismiss tbe original defendant.” Comp. Laws, § 7413. Order No. 50 by McAdoo is absolutely void. The power to determine what shall be the law cannot be conferred. State v. Young, 29 Minn. 474; State v. It.

W. Cooley, Special Judge. Plaintiff appeals. Where the plaintiff in ejectment has been in possession of the land for nearly thirty years, the fact that the land was embraced in a deed to the defendant is not sufficient to defeat the plaintiff’s title. Jones v. Graham, 80 Ga. 591; LaFrambois v. Jackson, 8 Cow. 589, 18 Am. Dec. 473; Draper v. Shoot, 25 Mo. 197, 69 Am. Dec. 462.

E. Leighton, J. Lack of order for judgment is fatal to a judgment. Crane v. Bank, 26 N. D. 268, 144 N. W. 96; Comp. Laws 1913, §§ 7667-7677.

E. Leighton, J. A false representation as to the law, in the absence or concealment of fact, does not amount to fraud if there is no relation of trust or confidence between the parties. 14 Am. & Eng. Enc. Law, 54, and notes; Platt v. Scott, 6 Blackf. 389, 39 Am. Dec. 436; Gormely V. Gynmastic Asso. 55'Wis. 350, 13 N. W. 242; see also Hubbard v. McLean, 115 Wis. 9, 99 N. W. 465; Hinckley v. Sack Oil' Oo. 132 Iowa, 396; Schnider v. Schnider, 96 N. W. 159; 6 Enc.

8. Thomas, Judge. Where one who owns or has an interest in personal property, with full knowledge of his rights suffers another to deal with it as his own by selling or mortgaging or otherwise disposing of it, he is estopped from later asserting his own issue. 16 Cyc. 762, 761, and cases cited. Where one of two innocent parties must suffer by the act of a third person, he who has enabled the third person to occasion the loss mustestop it. Comp.

Action to recover an unauthorized and illegal payment made upon a contract with an attorney. From a judgment rendered in the District Court of Stark County, in favor of the plaintiff, the defendant's appeal. When a state court and a court of the United States may each .take jurisdiction of a matter, the tribunal where jurisdiction first attaches holds it, to the exclusion of the other, until its duty is fully performed and the jurisdiction involved is exhausted.

It is not necessary to grant a hearing on a performance on a ministerial function such as levying taxes against property which had been duly authorized. llagar v. Reclamation Dist. Ill TJ. S. 708, 28 L. ed. 572; Amery v. Keokuk, 72 Iowa, 704, 30 N. W. 780; Gillette v. Denver, 21 Fed. 824; Lower Kings etc. Dist. v. Philips, 108 Cal. 314, 39 Pac. 630, 41 Pac. 335; Hodge v. Muscatine Co. 196 H. S. 280, 49 L. ed. 481.

M. Cooley, Judge, sitting in place of A, T. Cole, Judge for tbe Third Judicial District. It was reversible for the court to charge that the uncontradicted evidence showed a compliance on the part of the plaintiff with the contract and a failure to comply with same on the part of the defendant.

Action for personal injuries, in District Court, Morton County, Crawford, J. From a judgment entered upon a verdict directed for tbe defendant, tbe plaintiff appeals. “A track repairer engaged in repairing a track over wbicb botb interstate and intrastate trains move is embraced witbin tbe provisions of tbe Federal Employers’ Liability Act.” Tbornton, Fed. Employers’ Liability Act, 3d ed. § 48, p. 76.

Action to determine a deed and a contract for a deed to be a mortgage. From a judgment of tbe District Court of Barnes County, Cole, J., for the plaintiff, the defendants appeal. In such cases the courts have, with great uniformity, required the proof that should destroy the recitals of a solemn instrument to be clear, satisfactory, and specific. Jasper v. Ilazen, 4 N. D. 1, 23 L.K.A. 58, 5S N. W. 454.

Action to recover for wrongful delivery of a cashier’s bank check sent to the defendant hank with a letter of instructions. From an order of District Court, Cass County, Cole, J., overruling a demurrer, defendant appeals. An obligation on the part of a bank relating to the guaranty of performance of a contract with a third party in which the bank has no interest is ultra vires, and not binding upon the bank except for benefits actually received.

E. Leighton, J. In case of breach of- warranty of the fitness of personality the injured person is allowed a fair compensation for the loss incurred by an ■•effort in good faith to use it for such (warranted) purpose. Comp. Laws 1913, § 7159. It is not, however, a- sufficient reason for disallowing damages claimed that a party can state their amount only approximately. It is enough if, from the approximate estimates of the witnesses, a satisfactory conclusion can be reached.

It is elementary law that all parts of the charge must be constrúed together.

Fisk, Judge. “This court has repeatedly stated what the law requires to establish a criminal charge of rape.

<p>Appeal from the District Court of Steele County, Honorable A. T. Cole, Judge.</p> <p>Where it appears on the face of a contract for the sale of land that the prohibition of assignment is not the main purpose of the covenant, but the mere means to a securing for such purpose, a contract is assignable in equity, and the assignee has all the equitable rights of his assignor. Grigg v. Landis, 21 N. J. Eq. 495; Cheney v. Bilby, 20 O. C. A. 291, 36 U. S. App. 720, 74 Fed. 52; Wagner v. Cheney, 16 Neb. 202, 20 N. W. 222; Johnson v. Eklund, 72 Minn. 195, 75 N. W. 14.</p> <p>. When it appears that the object for inserting a nonassignable clause lias been accomplished, and that the purchase money has been permitted to be paid or tendered to the vendor, and that-nothing remains to be done but to execute a deed to the purchaser, the vendor cannot be heard to allege as an excuse for not making a conveyance that at a certain time the purchaser of the land assigned a contract of purchase without his consent. Poehler v. Reese, Y8 Minn. Yl, 80 N. W. 84Y; Auxier v. Taylor, 102 Iowa, 6Y3, Y2 N. W. 291; Coles v. Shephard, 16 Minn. 153; Case v. Wolcott, 33 Ind. 5; 39 Cyc. 1384, 1386 (B).</p> <p>Whenever by the terms of an obligation a party thereto incurs a forfeiture, or a loss in the nature of a forfeiture, by reason of his failure to comply with his provisions, he may be relieved therefrom upon making full compensation to the other party, excepting in case of a grossly negligent, wilful, or fraudulent breach of duty. Comp, laws 1913, § Y138; 39 Cyc. 1559, 1560 and cases cited.</p> <p>A delay or default in payment on the part of the purchaser is excused, and a nonforfeiture can be had when the vendor’s conduct is responsible for or leads the purchaser to refrain from making payment in accordance with the terms of the contract. 39 Cyc. 1561-1564, 1606, C, and cases there cited; Hudson v. Jones, 143 S. W. 19Y; Newberry v. Langan, 4Y Can. S. C. 114; 1Y B. C. 88; Dist. Cushing v.' Knight, 46 Can. S. C. 555; Constr. Co. v. Vansickler, 51 Can. S. C. 2Y4, 31 Ont. L. Rep. 531; 6 Ont. Week. N. 526; Boyd v. Richards, 29 Ont. L. Rep. 119, 4 Ont. Week. N. 1415; Nelson v. Geaskawyer (Minn.) 8Y N. W. 1121; Plummer v. Kelley, Y N. D. 88; Bennett v. Glaspell, 15 N. D. 239; Pargusson v. Talcott, Y N. D. 183; Cughan v. Larson, 13 N. D. 3Y3; Boyum v. Johnson, 8 N. D. 306; Russell v. Timmins, 13 N. D„ 48Y; Kicks v. Bank, 12 N. D. 5Y6.</p> <p>Conduct on the part of the purchaser which is not inconsistent with the continuance of the contract in full force and effect does not amount to an abandonment. 39 Cyc. 1353, A, 2; Chapman v. Propp, 125 Minn. 44Y, 14Y N. W. 442; Wheaton v. Collins, 84 Atl. 2Y1; Comp. Laws, 1913, §§ 54Y1, 5529; Wright v. Jones, 23 N. D. 101; Zerfing v. Seeling (S. D.) 80 N. W. 140; Conklin v. Kruse, 36 L.R.A.(N.S.) 1124, and the extensive notes to this case; Doran v. Dazey, 5 N. D. 16Y.</p> <p>The property in question is in possession of third parties. It has been improved and increased materially in value. All this has taken place with the full knowledge of the defendant, and he cannot at this time be heard to assert his right to the premises. Mahon v. Leech, 11 N. D. 181, 90 N. W. 807; Rogers v. Van Northwick, 58 N. W. 757; Melms v. Pabst Brewing Co. 66 N. W. 518; Willard v. Wood (U. S.) 41 L. ed. 540; Hagerman v. Bates (Colo.) 38 Pac. 1104; Mathews v. Burdick, 38 Ped. 896; Miles v. Vivian, 79 Ped. 853; Schlawig v. Purslow, 59 Ped. 853; Burgese v. St. Louis C. R, Co. (Mo.) 12 S. W. 1054; Stuart v. Holland, 179 Ped. 193; Berwick v. Dorris, 174 Ped. 506; Powlers v. Alabama Iron Co. (Ala.) 51 So. 395; State v. Warner Valley Stock Co. (Or.) 106 Pac. 778. See also Ottow v. Priese, 20 N. D. 86.</p> <p>Where one of the parties was, during the statutory time, as required under § 5471, Comp. Laws 1913, in actual and open adverse and undisputed possession of the land, the title thereto became vested in such party. Comp. Laws 1913, § 5471; Paiver v. Retching, 10 N. D. 254; Woolfolk v. Albrecht, 22 N. D. 36; Streeter v. Predrickson, 11 N. D. 300; Schneller v. Plankinton, 12 N. D. 561; Stiles v. Granger, 17 N. D. 502; Wright v. Jones, 23 N. D. 191.</p>

M. Hanley, Judge. “The register of deeds may in all cases require the party for whom any services are to be rendered to pay the fees in advance.” Comp. Laws 1913, § 2212, as amended. A law established for a public reason cannot be contravened by a private agreement. Comp. Laws 1913, § 7247; Parrish v. Mahany, 73 N. W. 97.

The defendants appeal from an order of District Court, Hettinger County, Crawford, J., refusing to modify a judgment. The rule of law is well settled that the court can only enter judgment in conformity with the verdict, and has no power to order judgment for a larger amount. 23 Cyc. 801, ¶ 6; Alpers v. Schammel (Cal.) 17 Pae. 708; Haldane v. Arcadia (Iowa) 30 N. W. 802; Weatherford v. Planger (Ariz.) 146 Pae. 759.

From a judgment of the District Court of Ramsey County, Buitz, •J., defendant appeals. Wilson v. Aberdeen, 19 Wash. 89, 52 Pac. 524. In this case it is held that a city cannot be rendered liable generally upon warrants drawn against a special fund for the payment of a street improvement even though the remedy of a street assessment proceeding is not longer available.

Plaintiff appeals from a judgment and from an order denying & motion for a new trial. Section 6956, C. L. “Where it is payable on demand, presentment must be made within a reasonable time after its issue.” Pickett v.. Baird Inv. Co. 22 N. D. 343, 2 N. & C. C. A. 722. The principle of law, that a bank is liable for the negligence of correspondents selected by it, seems to have been originally established, in the English case: Van Wert v. Wooley, 3 Barn. & C. 349.

A. Coffey, J. Where property is “damaged” by the laying and usage of railroad tracks adjacent to it, the railroad company must respond in such-damages as are sustained when those damages are of substantial nature- and affect the direct physical condition or value of the property to its-injury.

J. Kneeshaw, Special Judge. Any distinct act of dominion wrongfully exerted over one’s property in denial of his right, or inconsistent with it, is a conversion. Bowers, Conversion, p. 1, § 1; Taylor v. Jones, 3 N. D. 235; Clendening v. Hawk, 8 N. D. 419. Where a demand is useless or unavailing a demand is unnecessary, nor is a demand necessary when the defendant has voluntarily placed himself in a position where he cannot perform.

<p>Schools and school districts — § 142, Session Daws 1915, construed.</p> <p>1. Section 142 of the Session Laws of 1915 provides that all students attending any model high school, graded or elementary school, which is operated and maintained or in any manner connected with the State University, any normal school, publicly maintained educational institution of higher learning,, in which model high, graded, or elementary school, members of the faculty or of student body of such university, normal school, or institution of higher learning, teach, there shall be paid by the school district in which said pupils, reside to said institution as tuition for such attendance certain amounts named in the law; held that such law is not unconstitutional.</p> <p>Note. — Authorities discussing the question of use of common school funds for normal schools or teacher’s training schools, are collated in a note in 20 LJLA. (N.S.) 1033.</p> <p>Schools and school districts — normal school part of free-school system.</p> <p>2. It is further held that the normal school is part of the free public school system of North Dakota and is defined as such in § 148 of our Constitution.</p> <p>Pleading — sufficiency of complaint.</p> <p>3. Held that the complaint in the action stated a good cause of action, and was not demurrable.</p>

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

Action for damages against a carrier for loss of cattle. From a judgment of tbe District Court of Stark County, Crawford, J., in favor of tbe plaintiffs, tbe defendant bas appealed. There must be some certainty to the proof of damage. Surmise and speculation will not do. Sutherland, Damages, 4th ed. § 53; 17 C. J. 755, 758, on damages; Evans v. Cumberland Teleph. & Teleg. Co. 135 Ky. 66, 121 S. W. 959. See also Western U. Teleg.

C. Crawford, J. “If the property is not redeemed according to law, the purchaser or his assignee, or the redemptioner, as the case may be,, is entitled to a sheriff’s deed of the property.” Comp. Laws 1913, §§ 7757, 7763. Sannon at least became, as between himself and Williams, a redemptioner and entitled to all the rights of a redemptioner. It has been so held by several courts.

<p>Judgments — duty of district court clerk —power of court to amend.</p> <p>The clerk of the district court acts in a ministerial capacity in entering judgments. He must enter such judgment as the court has ordered, and none other. And where the clerk enters a judgment different from that ordered, the court may order the judgment to be amended so as to conform to the order for judgment.</p>

The sentence is unwarranted by the verdict. State v. Cruikshank, 13 N. D. 337; State v. Hunskor, 16 N. D. 420; Territory v. Conrad, 1 Dak. 363; Comp. Laws, § 9548. In order to convict of any of these aggravated and felonious assaults, the verdict must find and declare the necessary evil intent. Omission from the verdict of a finding of the specific intent is equivalent to a finding of not guilty of the wicked intent; and hence is a verdict for simple assault only.

L. Nuessle, J. “Where the cause of action is based on consequential as distinguished from direct damages, and involves an act or omission which might have proved harmless, the cause of action must be taken as accruing only upon the actual occurrence of the damage, so that the statute runs only from that time.” In support of this are cited: — 19 Am. & Eng. Enc. Law, 200; Wabash County v. Pearson, 120 Ind.- 42G, 16 Am.

C. Crawford, J. The homestead of a married person cannot be conveyed or encumbered unless the instrument by which it is conveyed or encumbered is executed and acknowledged by both husband and wife. Swingle v. Swingle, 36 N. D. 611; Tusk v. Studt, 37 N. D. 221, 163 N. W. 1066; Rasmussen v. Stone, 30 N. D. 541; Severtson v. Peoples, 28 N. D. 382; Deiter v. Praine, 20 N. D. 484.

E. Leighton, Judge. Plaintiff appeals. It was the duty of the defendant to have the car under such control as to admit of its being stopped after he became able to discern objects on the track and before a collision with such objects should occur. La Pantney v. Shedden Co. 74 N. W. 713; Sliney v. Duluth & W. R. Co. 49 N. W. 187; 3 Labatt, Mast. & S-. p. 3402, note; Texas Co. v. Beck, 133 S. W. 439; Horton v. Crosstown Str. R. Co. 121 N. T. Supp. 749.

Tbe charter of a private corporation having capital stock, organized under a general law of the state, constitutes a “contract” between the state and the corporation, between the state and the shareholders in the corporation, and between the corporation and its shareholders, which cannot be violated by the state. Larabee v. Eolley, 175 Fed. 365, 179 Fed. 461, 36 L.R.A.(N.S.) 1065, 31 Sup. Ct. Rep. 189.

<p>Appeal from District Court of Richland. County, Allen, J.</p> <p>■ “It is discretionary with the court who shall be appointed administrator, when the heirs cannot agree.” Comp. Laws 1913, §§ 8657, 8663; Re Anderson (Neb.) 166 N. W. 261; Re Scott, 106 N, W. 1003; “The undertaking on appeal insufficient.” Stewart v. Lynnes, 22 N. D. 149. See also the late case First State Bank v. Kellogg Commission Co. 41 N. D. 269, 170 N. W. 635.</p> <p>This action was and is triable de novo both in the district court and in this court. Re Peterson, 22 N. D. 480.</p> <p>“The court have no power to declare a person incompetent to act as administrator unless he is one of the classes declared to be incompetent by the Probate Code.” Ee McClellan (S. D.) 129 N. W. 1037; Ee Banquier, 26 Pac. 178, 532; Holiday v. Holiday, 16 Or. 147, 19 Pac. 81; Li Po Tai Estate (Cal.) 41 Pac. 486; Ee Owens (Utah) 85 Pac. 277; Ee Myers (Cal.) 100 Pac. 712.</p> <p>“The right of administration of a decedent’s estate is a valuable right, and those on whom it has been conferred by statute should not be deprived of it except as the statute has provided.” Williams v. Williams, 24 App. D. C. 214; Ky. Statutes 1903, § 3896; Buckner v. Buckner, 120 Ky. 596, 87 S. W. 776; Ee Davis, 96 N. Y. Supp. 1106, 9 Dee. Dig. Executors and Administrators.</p> <p>Parties interested in the estate should administer it. Ee Davis, (Cal.) 39 Pac. 757; Ee Carmody, 26 Pac. 373; Osborne v. United States Bank, 22 U. S. 738, 6 L. ed. 204; Abbott v. L. Hommedieu, 10 W. Va. 677; State v. Cummings, 36 Mo. 278.</p>

<p>Claim and delivery — sales — action for possession of personal property — question for jury.</p> <p>In an action brought to obtain possession of personal property transferred to the plaintiff by a bill of sale, where the plaintiff had gained possession under claim and delivery proceedings, and the defendant counterclaimed, setting up a cause of action for damages for misrepresentation and fraud affecting the consideration that supported the bill of sale, and in addition to his claim for damages asked for specific performance of the contract as alleged in the counterclaim, it is held:</p> <p>(1) The election to affirm the contract, to obtain specific performance; as far as possible, and to recover damages, amounts to an admission of the plaintiff’s right to possession under the bill of sale.</p> <p>(2) Where the pleadings present no issue of fact upon which the plaintiff's right of possession depends, error is not committed in instructing the jury to find that the plaintiff is entitled to possession.</p> <p>(3) Where the plaintiff had possession of the property in question at the time of the trial, and where the pleadings admit the right of possession, under § 7635, Compiled Laws of 1913, it is unnecessary to submit to the jury the question of the valuq of the property.</p> <p>(4) Sections 7449, 7453, 7605, and 7679, Compiled Laws of 1913, concerning counterclaims, are considered and held to authorize the entry of an appropriate judgment in a possessory action, while issues upon which the defendant’s counterclaim for damages is based remain undetermined.</p>

M. Hanley, Judge. Negligence is never presumed, but is an affirmative fact, and the burden of proving it is on the plaintiff in' order to make out a case. Manson v. G-..N. R. Co. 31 N. D. 647; Adams v. Paper Co. 143 N. W. 658; Patton v. Texas & P. R. Co. 179 IJ. S. 658; Pioneer Const. Co. v. Sandberg, 98 111.

Cooley, Judge. ....... Owing to the confidential and fiduciary relations between an attorney and his client and to the influence of the attorney over his client growing out of that relation, courts of law, and especially of equity, scrutinize most closely all transactions between an attorney and his client. 4 Cyc. 960; 2 R. C. L. §§ 42, 43; 6 C. J. p. 737, § 311; 1 Perry, Trusts; 2 Pom. Eq.

, for the plaintiff, and from an order refusing to vacate ¡the same. When the remittitur says, “Order affirmed and case remanded for further proceedings,” it means that the order of the lower court granting new trial is upheld, and that the case must he retried in lower court. 4 C. J. 1113, § 3095; Schumacher v. G-. N. R. Co. 23 N. D. 231; Comp. Laws 1913, §§ 7643, 7844; Cahn v. Tootle (Kan.) 48 Pac. 919; Ball v. Rankin (Okla.) 101 Pac. 1105.

Plaintiff appeals. Section 3142, Comp. Laws 1913, provides: “The title of goods and •chattels stored with a public storage company or any public warehouse shall pass to a purchaser or pledgee by the… Held: may be presumed to have entered into and formed a part of the contracts and understandings of persons engaged in such business and those who deal with them.” Morningstar v. Cunningham, 110 Ind. 328, 59 Am.

<p>Appeal from the County Court of Ward County, Honorable William Murray, Judge.</p> <p>Defendant admits that some time before the trial he received from plaintiff a statement of the account sued on in this case, and also received a letter from plaintiff’s attorney concerning it. It nowhere appears that he ever made any objection to the charges or disclaimed liability for any part of it. We submit that, under the law, this constituted an account stated between the parties, and that defendant is estopped to deny liability.</p> <p>When a surgeon calls another into consultation, or for assistance in the treatment of any surgical ease, the physician called in consultation or assistance is simply called by the attending doctor on behalf of the patient himself, and, under the law, the patient at all times, under these circumstances, is held responsible for all fees of the attending or consulting surgeon, and cannot look to the party calling him for his fees. 30 Cyc. p. 1597, and note; Guerard v. Jenkins, 1 Strobh. (S. 0.) 171.</p>

, from judgment for plaintiff and from order denying judgment non obstante, or for a new trial. The burden is always on the patient to prove that the particular injury complained of resulted from want of care or skill on the part of the physician, and a bare possibility of such result is not sufficient. The burden of proof is not shifted by showing that an unsuccessful result has attended the treatment of the patient by the physician. 21 It. C. L. § 49, pp. 406, 407.

“The property of the (school) district is regarded as state property, subject to the action of the legislature or school boards, which are deemed state agencies when empowered by statute to act.” School Dist. v. King, 20 N. D. 619, 127 N. W. 515. “Such public institutions as counties or school districts are a part of the machinery of the state, invented by the state itself, and brought into existence by the authorities of the state for the purpose of executing and performing…

’Appeal from the District Court of Benson County, O. W. Buttz, J. “Property escheats when. All property, real and personal, within the limits of this state, which does not belong to any person or to the United States, belongs to the state. Whenever the title of any property fails for want of heirs or next of kin, it reverts to the state.” Comp.

W. Buitz, Judge of the Second Judieial District, •acting for and at the written request of Honorable W. J. Kneeshaw, Judge of the Seventh Judicial District. “A trustee is entitled to the payment out… Held: “Where the mortgagor has suffered his right of redemption to elapse or become barred by fraud practised upon him, or ignorance of his rights or consequence of his acts or through unavoidable accident or justifiable mistake, he may maintain a bill in equity to redeem.