Volume 43 — North Dakota Reports

From a judgment in favor of the intervener, plaintiff and defendant appeal. The interest which entitles a person to intervene in a suit between other parties must be in the matter of litigation, and of such a direct and immediate character that the intervener will either gain or lose by the direct legal operation and effect of the judgment. Gasquet v. Johnson, 1 La. 425; Lewis v. Lewis (Minn.) 10 N. W. 586; Horn v. Volcano Water-power Co. 13 Cal. 62.

Plaintiff appeals. There is no requirement in our statute that a contract need be in writing to support a mechanic’s lien, and in the absence of such requirement an oral or implied contract is sufficient.- 20 Am. & Eng. Enc. Law, 352; Carney v. Cook, 80 Iowa, 747, 45 N. W. 919, 99 N. W. 1105; Tom Sweeney Hardware Co. v. Gardner, 18 S. D. 166.

Action for a partnership dissolution and for an accounting. From a judgment in District Court, Williams County, Fisk, J., for the defendant, the plaintiff appeals and demands a trial de novo. Capital does not bear interest in the absence of express agreement or a usage of the firm to allow it. St. Paul Trust Co. v. Finch (Minn.) 54 N. W. 190.

<p>From a judgment of the District Court of Burleigh County, Nuessie, J., plaintiff appeals.</p>

Action on dealer’s contract for failure to deliver typewriters. Verdict directed for plaintiff in District Court, Cass County, Cole, J. From judgment entered and motion denying judgment non obstante, or, in tbe alternative, for a new trial, tbe defendant appeals.

A. Coffey, Judge. “From all these facts, we conclude that, while defendant charged marital infidelity against plaintiff that did not exist, and while such charges tended to destroy the domestic happiness of these parties, and may have caused plaintiff mental suffering, yet facts and circumstances for which plaintiff was, to a large extent, directly responsible so far justified the defendant in making such charges that it does not now lie in plaintiff’s mouth to accuse her of…

Fisk, Judge. Either one of these plaintiffs could • maintain the action alone, he having the qualifications of voter and being a freeholder and taxpayer residing within the territory sought to be annexed. Comp.

Action upon a promissory note and to foreclose certain mortgages. Erom a judgment for the plaintiff, in District Court, Burleigh County, Nuessle, J., the defendants have appealed. The demurrer should have been sustained on the ground that several causes of action were improperly united. Sleeper v. Baker, 22 N. D. 386, 39 L.RA.(N.S.) 864, 134 N. W. 717; Tyner v. Stoopes, 11 Ind. 22, 71 Am. Dee. 341; Be Waddell-Entz Co. 67 Conn. 335; 35 Atl. 257; 10 Ky.

“A female upon whom rape is committed may maintain an action to recover damages for the injury sustained.” 33 Cyc. 1521; Hough v. Iderhoff, 69 Or. 568, 139 Pac. 931, Ann.

County, Honorable G. ■ W. Buttz, Judge. ; “Notwithstanding the fact that the action of assumpsit is equitable in its nature, it lies only for money and only when the rights of the parties will be adequately conserved by the payment and receipt of money.” 5 C. J. 1381.

A. Coffey, Judge, presiding. In order to bar a right of action under § 8809, it must be shown that the plaintiff had actual notice of the decree complained of, and timely opportunity to protect his rights by an appeal. Fisher v. Dolwig, 166 N. W. 793. “Except as otherwise provided, the validity and interpretation of wills is governed, when relating to real property within this state, by the laws of this state.

E. Leighton, J. “The use of the thing must bo dangerous according' to common experience, at least to the extent that there is a manifest and appreciable chance of harm from what is done in view of either the actor’s knowledge or of his conscious ignorance.” Com. v. Pierce, 52 Am. St. Rep. 264.

Where a motion is not made for a directed verdict, or the sufficiency of the evidence to support the verdict is not challenged by motion for a new trial, this court will not inquire into the sufficiency of the evidence to sustain the verdict. However, that the appellant may not be foreclosed of a consideration of the merits, the facts will be reviewed.

<p>Constitutional law — right of free speech — responsibility for abuse of right.</p> <p>1. Section 9 of the state Constitution grants to every man the right to freely write, speak, and publish his opinion on all subjects, but makes one who abuses the right responsible for such abuse.</p> <p>Libel and slander — liability of those who libel or slander another.</p> <p>2. Under the laws of this state every person has, subject to the qualifications and restrictions provided by law, the right to protection from defamation by libel or slander, and any person who abuses the privilege of freedom of speech and liberty of the press by maliciously publishing libelous matter of or concerning another is liable to the person libeled for the injury occasioned by the publications.</p> <p>Libel and slander — statute construed.</p> <p>3. Any “false and unprivileged publication, by writing, printing, picture, eiKgy, or other fixed representation to the eye which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, . . is libelous. Compiled Laws 1913, § 4352.</p> <p>Libel and slander — pleading — effect of general demurrer.</p> <p>4. A general demurrer to a complaint in an action for libel admits allegations of falsity, publication,, and malice.</p> <p>Libel and slander — sufficiency of pleading.</p> <p>5. For reasons stated in the opinion it is held that the complaint states a cause of action.</p> <p>Note. — For authorities discussing the question of constitutional freedom of speech and of the press, see note in 32 L.R.A. 829.</p> <p>On privilege as to words or publication relating to public officer, or candidate for office, see note in L.R.A. 1918E, 43.</p>

Courts of equity bave enforced gifts of real property, notwithstanding tbe Statute of Frauds, only where tbe proof of tbe gift was clear and convincing and where tbe donee in reliance thereon entered into possession and made valuable improvements. Note in 9 L.E.A. (N.S.) 508.

<p>Corporations — evidence as to balance due on stock.</p> <p>This is an appeal from a judgment under the statute which makes a stockholder liable for the unpaid balance due to the corporation on his corporate stock. As trustee in bankruptcy the plaintiff brings the action to recover from the appellant $700 and interest as the balance due on 14 shares of common stock in Everybody’s Store. Held:</p> <p>1. The evidence clearly shows that on such stock there never was any balance due to the company.</p> <p>Corporations — stock issued contrary to state Constitution — void.</p> <p>2. Stock issued as bonus stock in violation of § 138 of the Constitution, which prohibits corporations from issuing stock or bonds except for money, labor, or- property received, is void.</p> <p>Corporations — liability of purchasers of stock illegally issued as to creditors.</p> <p>3. Purchasers of stock issued in violation of the constitutional prohibition are not, under the circumstances in the instant case, precluded from asserting- the void character of the stock as against creditors of the corporation.</p> <p>•Corporations — effect of § 4554, Compiled Laws 1913 —rights of creditors ag-alnst bona fide purchasers of stock illegally issued as fully paid.</p> <p>4. Section 4554, Compiled Laws of 1913, which provides that each stockholder is liable individually for the debts of the corporation to the extent of the amount that is unpaid upon the stock held by him, is construed, and held to create no cause of action in favor of creditors as against a bona fide purchaser of stock originally issued as fully paid contrary to law.</p> <p>Note. — On effect of transfer of shares of stock on liability for unpaid subscription, see notes in 47 L.R.A. 246, and L.R.A.1918D, 1049.</p> <p>On liability of transferee of corporate stock on unpaid subscriptions, see note in 30 L.R.A. (N.S.) 283.</p> <p>On creditor’s knowledge that stock is unpaid as affecting stockholders’ liability, see note in 7 A.L.R. 972.</p> <p>On liability of stockholders on subscription for stock, see note in 40 Am. Dec. 358.</p> <p>On liability of stockholders to the creditors of an insolvent corporation for the amount due on their unpaid stock, see note in 35 L. ed. U. S. 227.</p>

Action to determine adverse claims involving a special assessment for the construction of an intercounty drain. Appeal from judgment of District Court, Sargent County, Allen, J., entered for the defendant for $3,189.70 and interest. “The petition prescribed the extent of their power, and everything beyond that was without authority of law and void. The assent of the owner for this improvement was never obtained.

T. Cole, Judge. In many states it is the absolute rule of law that a trustee can under no circumstances purchase the trust property.

C. Crawford, Judge, sitting at request of Honorable J. M. Hanley, District J udge. Tbe diversified farming fund, tbe road fund, tbe county bridge fund, and tbe poor fund, and tbe county road fund (special road) fund, are not transferable under § 3287, because there is no provision under this section for so transferring. Union P. R. Co. v. Cbeyenne Co. 90 N. W. 917.

Oomstoch, L “The party for whose benefit accommodation paper has been made acquires no rights against the accommodation party, who may set up the want of consideration as a defense to an action by the accommodated party, since as between them there is no consideration, a fact which is always a defense to a suit on negotiable paper between the immediate parties.

G.' Crawford, J. A buyer who keeps personal property, continues to use it until the trial of the collector’s action for the price, is estopped to claim a rescission of the contract as a defense. Linderman Mach. Co. v. Shaw-Walker Co. (Mich.) 153 N. W. 34; Wetter Bros. v. Otto (Iowa) 162 N, W. 12; John D. Gruber Co. v. Smith (Mich.) 162 N. W. 124. Our court has settled the law on the reciprocal duties of a warrantor and warrantee in the sale of machinery.

Action to determine adverse claims in District Court, Ramsey County, Buttz, J. From a judgment in favor of tbe defendants the plaintiff has appealed and demands a trial de novo. Every transfer of an interest in property, other than in trust, made only as a security for the performance of another act, is to be deemed a mortgage, except when, in the case of personal property, it is accompanied by actual change of possession, in which case it is to be deemed a pledge. Civ.

Appeal by defendant from a judgment of tbe District Court of Cass County, Allen, Special Judge, awarding a foreclosure of a mechanic’s lien. The memorandum contract, plaintiff’s said exhibit 3, and the specifications, plaintiff’s exhibit 5, are by the express terms of plaintiff’s said exhibit 3 consolidated into one instrument. These papers must be interpreted together in construing the contract, as if they were both embodied in one paper. N. D. Comp.

W. Buttz, J. “A tender of changes must be made before suit in trover where a lien exists, unless the goods have been parted with.” Salters v. Everett, 20 Wend. 267, 32 Am.

T. Cole, Judge. Under § 4567 the directors of a dissolved corporation become trustees of its assets only in case other persons are not appointed by the court. Held: under a statute like ours, that good will survived the death of the corporation.” Greene v. Bennett (Tex.) 110 S. W. 108. The act of liquidation destroys the value of such good will, as a value separate and apart from the value of the tangible assets. Centralia Nat. Bank v. Marshall, 26 111. App. 440.

Plaintiff appeals from an order denying a new trial. Whatever an agent does in the lawful exercise of his authority is imputable to the principal, and where the acts of the agent will bind the principal, his representations, declarations, and admissions respecting the subject-matter will also bind him, if made at the same time, and constituting part of the transaction are often classed in the decisions as res gestae. Jones, Ev. § 356, pp. 444, 445; Tennessee Teleph.

Action to recover in equity moneys due and unpaid in tbe construction of a sebool building in excess of tbe constitutional debt limit. From a judgment in favor of tbe .plaintiff in District Court, Burke County, Leighton, J., defendant bas appealed. Tbe claim of plaintiff as to tbe amount of $4,295.90 being in excess of tbe constitutional debt limit, is void, and tbe plaintiff cannot recover. N. D. Const. § 183; N. D. Comp. Laws, § 2218.

Action to compel tbe inspection of boobs, records, and assets of tbe defendant corporation by tbe plaintiff and bis attorney. From a judgment awarding peremptory writ of mandamus in favor of tbe plaintiff, in tbe District Court of Ward County, Leighton, J., defendants bave appealed.

From a judgment of the District Court of Grand Forks County, Cooley, J., defendant appeals. “The general rule with reference to the measure of damages for breach of contract of sale, whether the breach was by the vendor or the vendee, is that the injured party is entitled to recover the difference between tbe contract price of tbe article sold and the market value thereof at the time and place of delivery.” Note in 57 L.R.A. 193. “The circumstances attending the making of a…

<p>From a judgment of the District Court of Renville County, Leigh-ton, J., plaintiff appeals.</p>

E. Leighton, Judge. “In order for the first judgment to be binding the issues must be the same in both cases.” Noyes v. Belding (S. D.) 62 N. W. 953; Fahey v. Esterly Mach. Co. 3 N. D. 223. “A bill of lading is an instrument of a twofold character. It is at once a receipt and a contract. In the former character it is an acknowledgment of the receipt of property on board his vessel by the owner of the vessel. In the latter it is a contract to carry and deliver.

L. Nuessle, Judge. From a judgment in favor of plaintiff, both Steen and the state of North Dakota appeal. Section 3 of chapter 112 of the Laws of North Dakota for 1915 requires the clerk of the district court to pay such fees into the general fund.' Mulcrevy v. San Francisco (1914) 231 U. S. 669, 58 L. ed. 425, 34 Sup. Ct. Kep. 260; Berkshire County v. Cande (Mass.) 109 N. E. 838; Barron County v. Beckwith, 142 Wis. 519, 124 N. W. 1030.

T. Oole, J. This plaintiff having elected to proceed in tort waived her right to sue on the contract exhibit “B,” and is estopped from now suing on that contract. The law on the subject is well settled.

Action on a note, in District Court, Barnes County, Coffey, J. Appellant appeals from order granting new trial. The stationery indicated that J. E. Strong and R. B. Lowe were connected and interested in the land business. This was competent evidence under the circumstances of this case. Farmers Bank v. Saling (Or.) 54 Pac. 190; Peninsular Sav. Bank v. Currie (Mich.) 82 N. W. 511.

Buttz, Special Judge. “A judgment dismissing a suit for divorce does not bar a subsequent suit therefor unless it was rendered after a trial of the issues and upon the merits.” Haldeman v. United States, 91 U. S. 584; Rincon Water Co. v. Anaheim Union Power Co. 115 Fed. 543; Bishop v. McGillis (Wis.) 51 N. W. 1075; Wakely v. Delaplaine, 15 Wis. 554; Gocldner v. Goeldner (Iowa) 139 N. W. 889; Craig v. Craig, 87 S. E. 727; Kershaw v. Kershaw, 5 Pa. Dist.

District Court of Golden Valley County, Crawford, There is no statutory liability on tbe part of tbe attaching auditor for the safe-keeping of the property attached. Comp. Laws 1913, §§ 4431, 7540, 7542, 7543, 7553, 7559. “The sheriff must deliver over to the defendant or to the person entitled thereto, on reasonable demand, all of the attached personal property remaining in his hands.” Comp. Laws 1913, § 7562.

From a judgment of the District Court of Burleigh County, Nuessle, J., plaintiff appeals. ....... . • - . - All the laws require of a state superintendent of public instruction is that he possesses the qualifications to enable him to properly and intelligently perform the duties of such office. State ex rel.

Judgment affirmed. “If there be in any way whatever misrepresentation or concealment, a court of equity will not compel him to complete the purchase; but where the conveyance has been executed, I apprehend that a court of equity will set aside the conveyance only on the ground of actual fraud.” Wild v. Gibson, 1 H. L. Cas. 605, 1 Clark & E. 505; Decker v. Schultz (Wash.) 27 L.R.A. 335.

Action in District Court, McIntosh County, to determine adverse claims. From a judgment in favor of the plaintiff the defendants Hasn and Jones have appealed and demand a trial de novo. It is not necessary that the person signing actually himself affix his signature. If he simply touch the pen or even the hand of another, and the cross is made by his direction or with his acquiescence, the signing is sufficient. Bartlett v. Drake, 100 Mass. 17 5, 1 Am.

Defendant appeals from the judgment and from an order denying his motion for judgment notwithstanding the verdict or for a new trial.

It is unlawful for a railroad company to expel a drunken man, or to allow him to be injured after having taken him on a trip, knowing his condition. Haug v. Great Northern R. R. Go. 8 N. D. 23; Railroad Co. v. Sullivan, 81 Ky. 624, 50 Am. Rep. 186; Railroad Co. v. Velleley, 32 Ohio St. 345; Railroad Co. v. Weber, 33 Kan. 543, 6 Pac. 877; Railroad Co. v. Pitzer, 109 Ind. 179, 6 N. E. 310, 10 N. E. 70; Price v. Railroad Co. 112 Am. St. Rep. 79; Railroad Co. v.. Cooper, 16 Am.

A. Coffey, Judge. —• •• A part owner of personal property having same in his possession may be liable to the other owner for a conversion of his interest by doing any act in connection with the property inconsistent with or subversive of the rights of the other owner. Grigsby v. Day (S. D.) 70 N. W. 88; Frame v. North Dakota Grain & Land Co. 170 N. W. 307; Willard v. Monarch Elevator Co. 10 N. D. 405.

This is an appeal from the District Court of Hettinger County. The holder of a check is bound to use due diligence in obtaining the money, and must present it and demand payment within a reasonable time. 5 R. C. L. 506, § 30. “The acceptance of a check implies an undertaking of due diligence in presenting it for payment; and if the party from whom it is received sustains loss by want of such diligence, it must be held to operate as actual payment.” 5 R. C. L. 501, § 25.

<p>Damages —■ negligence — driving heavy load down grade with team not under control as constituting negligence — question of negligence properly submitted to jury.</p> <p>This is an action to recover damages caused by a dray running against a motor vehicle. The evidence clearly shows that the defendant was guilty of negligence in going upon a slippery down-grade thoroughfare with a heavily loaded dray and a team not under control.</p>

W. Butte, J. “Indemnity may be defined as the obligation or duty resting on one person to make good any loss or damage another has incurred while acting at his request or for his benefit.” 22 Cyc. 79. Everyone is responsible for the consequence of his own negligence; and if another person has been compelled to pay the damages which ought to have been paid by the wrongdoer, they may be recovered from him. Smith v. Foran, 23 Conn. 244, 21 Am.

<p>Prohibition — writ of prohibition will issne only when proceedings are outside of or in excess of jurisdiction.</p> <p>1. A writ of prohibition will issue to arrest the proceedings of a tribunal, corporation, board, or officer only when such proceedings are without or in ■excess of the jurisdiction of such tribunal, corporation, board, or person; and when there is no plain, speedy, and adequate remedy in the ordinary course of law. Comp. Laws 1913, §§ 8470, 8471.</p> <p>Prohibition — judges — jurisdiction of district judges — can act in another district on request.</p> <p>2. In this case it is held, for reasons stated in the opinion, that it was not an act without or in excess of jurisdiction for the defendant, Judge Hanley,— one of the judges of the sixth judicial district, — to act as judge of the fourth judicial district upon and pursuant to the written request of one of the judges of said fourth judicial district.</p>

Action upon a certificate of life insurance from a judgment entered upon a verdict directed for the defendant in the District. Court, Burleigh County, Nuessle, J., and from a judgment entered on the verdict the plaintiff has appealed. It is well settled as a proposition of law, that the local officer of the lodge, similar to the A. O. U. W., can waive the “by-laws” and relieve a member from forfeiture.

E. Leighton, J. When a minority stockholder’s suit is brought for the benefit of the corporation which has refused to sue, and the suit is successful, on the principle of benefit in preserving a trust fund, allowance for fees and expenses may be made in proper cases out of the corporate property so benefited. Louisville Bridge Co. v. Dodd, 27 Ky. L. Bep. 454, 85 S. W. 683.

Statement of the facts by .Biedzell, J. This is an appeal from an order vacating a judgment and modifying findings of fact and conclusions of law in an action for specific performance of an alleged contract to sell real property and to determine adverse claims thereto. One Mary C. Phelps, prior to June, 1914, was the record owner of lot 12, block 10, in the city of Mandan.

Defendant appeals from the judgment and from an order denying •a new trial. Our court has held that every litigant should have an opportunity to be heard on the merits. Froelich v. Northern P. R. Co. 167 N. W. 368; 38 Cyc. 1316, 1321; Zink v. Lathart, 16 N. D. 56. Appellant was entitled to an order vacating the default judgment as a matter of right. Cedar Rapids Nat. Bank v. Coffey, 25 N. D. 458.

From a judgment of the District Court of Bottineau County, Burr, J., defendant appeals. The bulletining of this train on the day in question was not within the scope of the employment of the operator and has no legal effect in so far as the company is concerned. Kinnomen v. Great Northern, 34 N. D. 556.

“The vital difference between the contract of a surety and that of a guarantor is that a surety is charged as an original promisor while the engagement of the guarantor is a collateral undertaking.” 12 R. C. L. 1057; Saint v. Wheeler, 36 Am. St. Rep. 210; 32 Cyc. 20. The contract of the surety is the joint and several contract of the principal and surety, while the contract of the guarantor is his own separate undertaking in which the principal does not join.

<p>Municipal corporations — action by public utility company for - electric current furnished — complaint alleging current furnished to city, and not paid for, states a cause of- action.</p> <p>In an action by a public utility company against a municipality, where it is alleged that plaintiff has furnished defendant electric current, the valué of which, calculated according to a reasonable rate, amounts to $1,402.02, which sum has been demanded and refused, it is held,:</p> <p>The complaint states a cause of action.</p>

Action on a bond given for a warrant of seizure, in District Court, Hettinger County, Crawford, J. From an order denying a new trial the defendant has appealed. “Where an attachment is wrongfully issued, the attachment defendant cannot in general recover in an action on the defendant bond for attorney’s services in defending the main suit.” Ames v. Chirurg (Iowa) 132 N. W. 427; 6 C. J. 542, 544; Massina Sav.

'Appeal from District Court .of Wells County, Coffey, J. “A guarantor is exonerated, except so far as be may be indemnified by the principal, if by any act of the creditor -without the consent of the guarantor the original obligation of the principal is altered in any respect, or the remedies or rights of the creditors against the principal in respect thereto is in any way impaired or suspended.” Secs. 6668, 6672; Leonhardt v. Citizens State Bank, 76 N. W. Rep. 452, 453;…

When the plaintiff in the case at bar conceded the equitable issue involved, if there was an equitable issue involved, the plaintiff was then entitled to a jury trial. Lehman v. Coulter (N. D.) 168 N. W. 724; Tinker v. Farmers State Bank (Iowa) 160 N. W. 349; N. D. Comp. Laws 1913, § 7608; N. D. Const. § 7. This is an interlocutory ox*der, aixd consequently is not appealable unless an appeal is provided for by the statute either expressly or by necessax-y implication.

<p>Judgments — vacating and setting aside judgment where the court was deceived as to certain material facts — may he vacated even after the expiration of one year.</p> <p>1. Where the trial court makes an order or judgment, and judgment is entered upon such order, and it is afterward made to appear to it that it was deceived as to certain material facts, at the time of the making of such order, and which affected the making thereof, as between the parties, it may vacate and set aside such judgment' and order at any time, even after the expiration of one year.</p> <p>Judgments — order for judgment — where order Is filed contrary to facts in the case, court may change judgment to conform to facts on own motion.</p> <p>2. Where a trial court made a mistake in signing an order for judgment, which was contrary to the facts in the case, it could, upon the mistake being called to its attention, correct its records so as to conform to the facts, and this, upon its own motion, under and by virtue of its inherent powers.</p>

E. Leighton, J. Sectioh 5594 of Compiled Laws of 1913, tbe statute on which this action hinges, has been before and considered by this court in a number of cases. Held: notwithstanding the statute, to be superior to the subsequent recorded lien. In general, see Ft. Smith Mill. Co. v. Mikles, 61 Ark. 123, 32 S. W. 193; Kersehner v. Fracier, 106 Ga. 137, 32 S. E. 351; Rea v. Wilson, 112 Iowa, 517, 81 N. W. 539; 31 Cyc. 951.

T. Cole, J. From a verdict in favor of defendant on its counterclaim, plaintiff appeals. “A contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties.” Comp. Laws 1913, § 5903; Deacon v. Mattision, 11 N. D. 190.

Allen, J. “A written instrument, has no valid existence until delivered in accordance with the intention of the parties.” Guild v. More, 32 N. D. 432. Nothing will excuse culpable misrepresentations, if you find any were made, short of proof that they were not relied on, either because the other party knew the truth, or because he relied wholly on his own investigation. Stevens v. Venema (Mich.) 168 N. W. 531; Stevens v. Pearson (Minn.) 163 N. W. 769; Pom. Eq. Jur. § 891.

T. Cole, J. A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful. Comp. Laws, § 5896; Young v. Met-calf Land Co. 18 N. D. 441, 122 N. W. 1101; Miller v. St. Paul F. & M. Ins. Co. 26 S. D. 454, 128 N. W. 609; Fletcher v. Arnett, 4 S. D. 615, 57 N. W. 915; Frost v. Williams, 2 S. D. 457, 50 N. W. 964. Language must be followed when clear and explicit.

It is elementary that a non-negotiable instrument is subject to all defenses in the hands of an assignee that could have been interposed by the party bound as against the original payee. Clow v. Sweeney (N. D.) 172 N. W. 66. And contracts to take stock in a corporation stand upon the same footing as all other conventional obligations. If induced by fraud, that create no obligation, and the injured party has a right to have them abrogated.

, in favor of tbe administrator, construing a will and settling a final account of an administrator, upon an appeal bad from tbe County Court of Cass County. So far as the interests of the children of a testator not mentioned in the will are concerned, it has been held that the validity and construction of the will may be discussed and adjudicated within a year from the probating of the will or at any time before the distribution of the estate.

A. Coffey, Judge. “A mere attempt to claim a right or pursue a remedy to which a party is not entitled, and that without obtaining any legal satisfaction therefor, will not deprive him of a right or the benefit of a remedy to which he orginally had a right to claim or resort. The doctrine of election between inconsistent rights or remedies has no application to such a‘case.” Bennet v. Lapp-, 41 Minn. 494, 43 N. W. 334.

<p>Plaintiff files a motion for rehearing.</p>

From a judgment of the District Court of Hettinger County, Honorable W. 0. Crawford> Judge, defendants appeal. A vendor of land is entitled to retain money paid by the vendee on account of the purchase price as liquidated damages, after the vendee’s breach, whether it be so designated in the contract or not.

Original proceeding in mandamus on relation of the Attorney General. Congress was empowered by the Constitution to vest in the President, or in the Interstate Commerce Commission, control over intrastate rates and fares. Pappens v. United States, 252 Fed. 55; Minnesota Rate Cases, 230 U. S. 352, 399; Shreveport Case, 234 U. S. 342.

<p>Officers — Workmen’s Compensation Act — state treasurer as custodian oí funds — special fund.</p> <p>1. Under the Workmen’s Compensation Act the state treasurer is made custodian oí the fund which is accumulated in the manner prescribed by law for the payment of claims allowed by the workmen’s compensation bureau. Held, that such fund is a special, and not a public, fund.</p> <p>Officers — duty of state treasurer to pay drafts from workmen’s compensation fund.</p> <p>2. When a claim has been presented to the .workmen’s compensation bureau by one who claims benefits under the Workmen’s Compensation Act, and such a claim has been determined by the bureau, and a definite amount awarded the claimant, the bureau, under the provisions of the act, may draw its voucher, or in this case its voucher-warrant, against the treasurer as custodian of such fund, directing the state treasurer, as custodian of the fund, to pay the claimant the amount stated in the voucher-warrant.</p> <p>Officers — state auditor has no authority to issue warrants in payment of award by workmen’s compensation bureau.</p> <p>3. Under said act, the state auditor has no authority to issue a warrant for the payment of any award made by the workmen’s compensation bureau.</p>

Petition for original writs of mandamus. The courts have always construed the provisions of law governing nomination of candidates for office liberally and in the interest of the public. Where a statute requires that an act be performed a fixed number of days previous to a specific date, the last day should be excluded, and the first day included, in making the computation. State ex rel. Jones v. Board of Deputies, 112 N. W. 136; State ex rel.

'Appeal from the District Court of Cass County, Honorable Chas. ■A. Polloch, Judge. The rule is well settled that one cannot faithfully serve two masters whose interests are diverse. Andrews v. Pratt, 44 Cal. 309; San Diega v. S. D. L. A. R. Co. 44 Cal. 106; Wilbur v. Lunde, 49 Cal. 290 (19 Am. Rep. 645); Cumberland Coal & I. Co. v. Sherman, 30 Barb. 553; Jackson v. Ludeling, 21 Wall. 616.