Volume 45 — North Dakota Reports

'Appeal from the District Court of Ward County, Leighton> J. “The weight of authority supports the view that an action of unlawful detainer does not lie against a vendee in possession under a contract of purchase.” 11 R. O. L. 1143; Linder v. Warnock, 91 Kan. 272, 137 Pac. 962, Ann. Cas. 1915C, 315, and note. “An action of unlawful detainer cannot be brought against one claiming the premises in question under a contract to purchase.” 13 Am. & Eng. Cyc.

Action upon an account against a former soldier in the active military service; from a judgment rendered in favor of the plaintiff, the defendant has appealed. The vital question in interpreting a statute is the legislative intent. Granger v. Lorenzen, 28 S. D. 295, 183 N. W. 259; State ex rel. Linde v. Packard, 25 N. D. 317; 6 R. O. L. 102-111.

<p>Process — service of summons on nonresident — court acquires no jurisdiction where service does not comply with the statute.</p> <p>1. The plaintiff, a resident of North Dakota, commenced an action against the defendant, a resident of Wisconsin, by the issuance of a summons, and after the issuance of the summons, attached certain lands of the defendant in Burleigh County, North Dakota. No attempt was made to publish the summons, the plaintiff sending the same to the chief of police of Oconomowoe, Wisconsin, by whom it was served upon the defendant personally. No other effort was made to serve the summons or complaint upon the defendant within sixty days after the issuance of the warrant of attachment.</p> <p>Held that, under the statutes referred to in the opinion, the district court of Burleigh county, North Dakota, in which the action was commenced, acquired no jurisdiction of the defendant, and properly dismissed the action.</p> <p>Action — commencement of action —when action is deemed commenced.</p> <p>2. The ordinary action is commenced when a summons is issued and served upon the defendant. An action is commenced in cases in which attachment is permitted when the summons is duly issued.</p> <p>Action — service of summons without the state —how made.</p> <p>3. Personal service of a summons can only be made within the state. When it is served without the state, in cases where it is permitted by a statute to be so served, service must be made by publication as provided by law.</p> <p>Note. — Authorities passing on the question of acquiring jurisdiction over foreign corporation by service of process are collated in a note in 70 L.R.A. 530.</p>

The defendant was convicted in Burke County, Leighton, J., for the crime of obtaining money under false pretenses. From a judgment and sentence rendered the defendant has appealed. False representations may be made to bring about the payment of the money or the delivery of the property. Be Cameron, 44 Kan. 64, 24 Pac. 90; State v. Williams, 32 L.B.A. (N.S.) 420 and note.

A. Coffey, Judge. An appeal lies only from a judgment duly entered. An appeal does not lie from a verdict of a jury. Clark v. Van Loon (Iowa) 79 N. W. 88. Where no judgment was entered on the verdict of the jury, an appeal will not lie. Seven Valleys Book v. Smith (Neb.) 61 N. W. 603. Unless allowed by express statutory provision, a writ of error or appeal will not lie from the verdict of a jury without an entry of judgment thereon. 3 C. J. 600.

<p>Damages — character and extent of injury a jury question.</p> <p>In an action for personal injuries occasioned to the plaintiff by the alleged negligence of the defendant, consisting in allowing the veneered brick wall of a building to remain in such condition that it was likely to fall and injure persons in the vicinity; it appearing that the wall did fall, some of the bricks striking the plaintiff and inflicting injuries upon her head, back, and shoulders; plaintiff and experts testifying on her behalf claiming that her injury had resulted in a condition of permanent paralysis due to traumatic neurosis; the defendant and experts testifying on her behalf contending that the plaintiff’s injuries were of a temporary character, and that she is not paralyzed, but afflicted with hysteria — the evidence is examined and it is held:</p> <p>Note. — -That as a general rule the courts are reluctant to interfere with the verdicts of juries, for the reason that the law furnishing no legal rule for measuring the damages, the duty of determining the amount which should be awarded in a given case has been vested in the jury, as will be seen by an examination of th\> authorities collated in an exhaustive note in L.R.A.1915F, 30, on excessiveness of verdicts in actions for personal injuries other than death.</p> <p>1. That the character and extent of the injuries of the plaintiff present questions of fact for the consideration of the jury.</p> <p>Appeal and error — verdict on evidence authorizing different conclusions cannot lbe disturbed.</p> <p>2. The evidence as to the injury being such that reasonable persons might draw different conclusions therefrom, the verdict of the jury cannot be disturbed.</p> <p>Damages — $26,000 for personal injury held not excessive.</p> <p>3. On the supposition that the plaintiff was injured as claimed, and as there is substantial evidence tending to show, the damages awarded are not excessive.</p> <p>Negligence — allowing condemned wall to remain in unsafe condition held actionable.</p> <p>4. Where a wall had been condemned by city authorities as being unsafe, and the defendant owner had full knowledge thereof, and where it is not shown that the plaintiff knew of the defects, the negligence of the defendant in allowing the wall to remain in an unsafe condition is actionable at the suit of one who was injured while rightfully on the premises.</p> <p>Landlord and tenant — lessee’s obligation to make repairs held not to exonerate owner.</p> <p>5. The obligation of a lessee to make repairs which does not relate specifically to the defect causing plaintiff’s injuries does not exonerate the owner of the building from liability.</p> <p>On Rehearing.</p> <p>6. It was reversible error for the trial court to prevent the impeachment of certain witnesses, by refusing the defendant the right to show, upon their cross-examination, that, at the trial of certain other cases in the United States District Court, the subject-matter of which was wholly different to this, that it was found by that court that they had committed perjury in fact. It was also reversible error of the trial court, in preventing the defendant from showing, upon the cross-examination of such witnesses, what those facts were concerning which they gave such false testimony, and in denying defendant’s offer of proof.</p>

In the contest of a will after probate, the burden of proof is upon the contestant to establish the ground upon which he relies, whether it be the insanity of the testator, the exercise over him of undue influence, or the nonexecution of the will. 1 Ross, Prob.

'Appeal from the District Court of Grand Forks County, Cooley, J. Plaintiff appeals from a ¡judgment and from an order denying a new trial. “Where the question as to the consideration to be paid in an express contract rests in parol, and there is a dispute between the parties, the courts hold that it is proper to admit evidence as to the reasonable value of the work.

E. Leighton, J. “On the other hand the officers and agents of a corporation cannot ■escape liability for their acts of misfeasance or malfeasance on the ground that they were acting for the corporation.” Peck v. Cooper, 112 111. 192, 52 Am. Eep. 281; Wright v. Wilcox, 19 Wend. (N. Y.) ■343, 32 Am. Eep. 507; Greenberg v. Whitcomb Lumber Co. 90 Wis. 225, 63 N. W. 93, 48 Am. St. Eep. 911 and note, 28 L.E.A. 439; Wines y. Crosby Co. (Mich.) Ann.

L. Nuessle, Judge. An officer who levies execution on property of a stranger is guilty of conversion, although the levy was made in good faith, and although the property was not actually taken or removed.

The trial court was without jurisdiction to amend an order appealed from after the statutory period for appeal had expired. Milder v. Thompson, 31 N. D. 147. ! The discretionary power vested in courts to relieve litigants from default should be liberally exercised in the furtherance of justice. Bucknell v. Archer, 29 S. D. 22, 135 N. W. 675; Montija v. Sherer, 5 Cal.

'Action in District Court, Eddy County, Buttz, J., to recover money paid or due upon a rescinded contract. From a judgment in favor of the plaintiff, the defendant has appealed. The testimony was evidenced by writing and to permit the supposed agreement to be proven by parol would be to vary, contradict and annul the written agreement by a parol, contemporaneous agreement. This the law will not tolerate.

Action in District Court, Ward County, Leighton, J., upon an account and counterclaim for damages. From a judgment in favor of the defendant, and an order denying a new trial, the plaintiffs have appealed. Assignments of error not briefed nor argued are deemed abandoned and will not be considered. Nichols & S. Co. v. Marshall, 132 N. W. 791.

'Appeal from an order of the District Court of Burleigh County, Nuessle, J. “To inspect is to examine; to yiew closely and critically; especially in order to ascertain quality and condition, to detect error, etc.” People v. Campagnilgen Transit Alantigue, 107 TT. S. 57, 27 L. ed. 385; Peterson v. R. Am. Comp. Co. Ill N. Y. Supp.' 329; 2 Words & Phrases, 2d series, 1104. The Bank of North Dakota is a part of the state government. Bank of TT.

G. Burr, Judge. As a general rule the court will relieve a party from the effects of a judgment entered against him by default, where it appears that he has a good and sufficient meritorious defense; where there is a reasonable excuse for the delay occasioning the default; where the party acts diligently and moves promptly for relief upon receiving notice of the entry of judgment. Northern Commercial Co. v. Goldman, 37 N. D. 542; Citizens Nat.

Erom a judgment of tbe District Court of Logan County, Graham, J., defendants appeal. Tbe defense of fraud in tbe procurement of a sister state judgment is available as a defense upon an action upon sucb judgment, and tbat sucb attack is not collateral and is not contrary to tbe full faitb and credit clause of the Federal Constitution, nor the Statute of 1790. Levin v. Gladstin, 142 N. C. 482, 32 L.R.A.(N.S.) 905, 55 S. E. 371, and notes.

From a judgment of the District Court of Kenville County, Leighton, J., plaintiff appeals. The maxim, “that is certain which can he made certain,” when applied to the contract in question, renders the description sufficiently certain. Schuyler v. Wheelon, 17 N. D. 161, 115 N. W. 259; Inglis v. Fohey, 116 N. W. 857. The contract as between the plaintiff and defendant in the case at bar was plain and clear. Boehm v. Long, 172 N. W. 862.

'Action to determine adverse claims in District Court, Eolette County,, Buttz, J. From a judgment in favor of the defendant, William Gottbrebt, the-plaintiffs have appealed and demand a trial de novo. Until tbe will bas been duly admitted to probate in tbe proper court it is wholly ineffectual as an instrument of title. A will must be probated in tbe proper court provided by tbe Constitution and statutes before it is effectual or will pass title.

M. Hanley, Special Judge. The credits, whether secured or unsecured, owing to the plaintiffs from debtors residing in North Dakota, have no taxable situs in North Dakota and are beyond the taxing power of the state, and in so far as the laws attempt to impose such a tax they are in violation of the clue process clause and the contract clause of the Federal Constitution.

<p>Controlled case.</p> <p>This ease is controlled by the ease of Earwell, Ozmun, Kirk, & Company v, Wallace, ante, 173, 177 K. W. 103.</p>

<p>Taxation — moneys and credits tax — does not apply to foreign corporations not doing business in the state.</p> <p>Chapter 230 of the Session Laws of 1917, which provided for the taxation of moneys and credits at an annual flat rate of three mills on each dollar of the cash value, having been repealed by chapter 62 of the Session Laws of the Special Session of 1919, the latter providing that the act should not be construed to invalidate or discharge any tax theretofore levied or assessed, it is held that the plaintiffs, in respect to the business described in the complaint, are not liable for the tax sought to be imposed.</p>

<p>Controlled case.</p> <p>This case is controlled by tbe case of Capital Trust & Sav. Bank v. Wallace, No. 3810 on tbe calendar of this court, ante, 182, 177 N. W. 440.-</p>

M. Cooley, Special Judge. “The name of the person by whom the claimant was employed, or to whom he furnished the materials, must be stated in the claim of the lien.” Bloom, Mechanic’s Liens, p. 381; Hogan v. Bigler, 96 Pac. 97; Maderia Plume Co. v. Kendall, 52 Pac. 304. A mechanic’s lien being a creature of statute, every step prescribed by statute must be shown to have been substantially followed, or the lien does not exist. Stoltze v. Hurd, 20 N, D. 412.

Action of rescission in District Court, Ward County, Leighton, J. From a judgment of dismissal, the plaintiff has appealed and demands a trial de novo. An agreement, other than for necessities, made by a person when so drunk as to be incapable of understanding its nature and effect, is voidable at the intoxicated person’s option.

“A corporation can have no legal existence out of the boundaries of the sovereignty by which it is created,” and the corporation can make no valid contract without the sanction, express or implied, of the sovereignty in which the contract is made.” Paul v. Virginia, 8 Wall. 68— 131; Washburn Mill Co. v. Bartlett, 3 N. D. 138; 2 Morawetz, Priv. Corp. § 958; Waters, etc., Co. v. Texas, 177 U. S. 28; Eeimers v. Seatco Mfg.

Proceedings in District Court, Stark County, Nuessle, L, upon an attorney's lien.

'Action in District Court, Ward County, Leighton, J\, for personal injury. From a judgment in favor of tbe plaintiff, and from an order denying judgment non obstante, or, in tbe alternative, for a new trial, tbe defendant bas appealed.

E. Leighton, Judge. Any deviation from the terms of the offer contained in the acceptance is deemed to be, in effect, a rejection, and not binding as an acceptance on the person making the offer, and no contract is made by such qualified acceptance alone.

A. Coffey, Judge. See’s recognition of tbe contract, that tbe contract was existent after tbe default, waived bis right to forfeit or rescind tbe contract. 39 Cyc. 1394. Tbe failure of tbe vendor to restore or tender tbe purchaser what be received thereunder voided the purported cancelation. 39 Cyc. 1376-1380.

<p>Constitutional law — statute providing for state publication committee held valid.</p> <p>This action involves the constitutionality of chapter 188, Laws 1919. It is held:</p> <p>1. That the act does not contravene the 14th Amendment to the Federal Constitution.</p> <p>Courts — four judges of supreme court necessary to declare statute constitutional.</p> <p>2. Inasmuch as two of the judges of the supreme court are of the opinion that the act does not violate any provision of the state Constitution, it cannot be said that the act is unconstitutional as violative of' the state Constitution, in view of § 89 of the Constitution as amended (Laws 1919, article 25, p. 503); which provides that in no case shall any legislative enactment or law of the state of North Dakota be declared unconstitutional unless at least four of the judges of the supreme court so decide.</p>

There can be no recovery on a contract made in violation of a statute as between the parties thereto, or those having notice. 153 N. W. 939; Franklin v. Bank, 143 Ga. 51, 84 S. E. 131; Both v. Bank, 70 Ark. 200, 91 Am. St. Bep. 80, 66 S. W. 918; New v. Walker, 108 Ind. 365, 58'Am.

Wi Buitz, Judge. Having signed the note upon the face, the accommodation maker was a person primarily liable thereon, and the acts of the plaintiff did not release him from his obligation to pay the note. Eirst Nat. Bank v. Meyer, 30 N. D. 388, 152 N. W. 657; -Vanderfort v. Farmers & M. Nat. Bánk (Md.) 10 L.R.A.(N.S.) 129; Cellers v. Mechem (Or.) 89 Pac. 426; Wolstenhelme v. Smith (Utah) 97 Pac. 329; Anderson v Mitchell (Wash.) 98 Pae. 751; Bradley Engineering & Mfg.

<p>Schools and school districts — school district appearing in contest and stipulating facts for determination on the merits could not claim on appeal that plaintiff chose wrong remedy.</p> <p>In this ease an election was held for the selection of a schoolhouse site in Fort Totten school district No. 30 in Benson county. One site received fifty-one votes, and another site received twenty-two votes. The election board refused to count the fifty-one votes, on the ground that the site designated by them was within the boundaries of the Fort Totten military reservation (also, that thirty of such fifty-one votes weré cast by persons residing within said military reservation), and declared that the site designated by the twenty-two voters was the site chosen at such election. La Duke, a taxpayer and elector in such school district, instituted an election contest. He caused notice of contest, setting forth fully the grounds on which he assailed the findings of the election board, to be served on the proper parties. Such parties appeared and answered on the merits. Later the plaintiff and defendants entered into a stipulation of facts, and submitted the matter to the district court for determination on the merits. No objection was made in the trial court to the procedure adopted.</p> <p>It is held:—</p> <p>1. That the defendants cannot raise the question in the supreme court that plaintiff has chosen the wrong remedy.</p> <p>United States —Fort Totten Military Reservation held no longer within exclusive control of United States.</p> <p>2. That the Fort Totten Military Reservation has heen abolished by the Federal government, and that the lands formerly included therein are no longer within the exclusive governmental and political control of the United States.</p> <p>Indians — state may exercise political and governmental control over lands formerly within Fort Totten military reservation.</p> <p>3. That the state may rightfully exercise political and governmental control over lands, formerly within such military reservation, and reserved by the United States for Indian school and Indian agency purposes, to the extent of including them within its political subdivisions for political and governmental purposes.</p> <p>Schools and school districts — persons residing in former Fort Totten Military Reservation may vote at school election in which lands are included.</p> <p>4. That persons residing on the lands so reserved, and otherwise qualified to vote, are entitled to vote at an election in the school district in which such lands are included.</p> <p>Schools and school districts — schoolhouse site located on land in foi’mer military reservation included in district may be selected by voters.</p> <p>5. That a schoolhouse site located on such lands is within the school district, and may be legally selected by the voters of the district.</p>

An injunction cannot be granted to prevent tbe exercise of a public or private office in a lawful manner by tbe person in possession. Comp. Daws 1913, § 7214; 22 R. O. L. 454, § 113; 691, § 17; 29 Cyc. 1416 B; 4 Pom. Eq. Jur. 4tb ed. §§ 1756, 1757-1760. As equity deals witb property rights alone, an injunction will not issue to restrain political acts of public officers. 4 Pom. Eq.

Erom an orderr vacating certain garnishment proceedings, appeal dismissed ; thereafter, appeal reinstated upon petition for remand and certification of the record. The proceedings against a garnishee are deemed an action by the plaintiff against the garnishee and against the defendant, as parties de- • fendant, and all provisions of law relating to proceedings in civil actions at issue are applicable thereto.

From a judgment of the District Court of Traill County, Gole, J., plaintiff appeals. “A discharge obtained by fraud or made through mistake may be canceled if other parties having no notice of the fraud have not, in the meantime, acquired an interest in the property.” Jones, Mortg. 4th ed. ¶¶ 966, 966a, 967; Martin v. De Ornelas, 139 Cal. 41, 72 Pac. 440; Harker v. Scudder, 15 Colo.

Verdict for defendant* From an order granting a new trial defendant appeals. The question of whether a driver has been guilty of negligence in causing an injury is one of fact for the jury’s determination. 4 Ann. Gas. 399. A pedestrian has the right to presume that a driver of an automobile will exercise proper precaution.

Action iu District Court, Logan County, Graham, J. From a judgment rendered for the plaintiffs upon a directed verdict, the defendant has appealed. The jury are the sole and exclusive judges of the weight of the testimony, the credibility of the witnesses, and of the facts. Taylor v. Jones, 3 N. D. 236.

From a judgment of the District Court of Logan County, Allen, J., -defendant appeals. “Codes exclude common law. In this state there is no common law in any case where the law is declared by codes.” Comp.

<p>Banks and banking — evidence held not to sustain a verdict for balance of price of bank stock.</p> <p>In this case the plaintiff recovered a verdict and judgment against the defendants for $1,367.66, and interest, as the balance due on fifty shares of hank stock which Olson sold to defendant Lee. Held, that there is no evidence to sustain the verdict.</p>

W. Butts, Judge. T. J. Clifford, as president of tbe defendant bank, was not authorized to bind the bank by an unrestricted indorsement. The officers of the bank had no authority to guarantee payment by unrestricted indorsement. 5 Cye. 467, 468, 470, 477; Asher v. Sutton (Kan.) 1 Pac. 635; Greenwalt v. Wilson (Kan.) 34 Pac. 403; Spongberg v. First Nat. Bank (Idaho) 31 L.R.A.(N.S.) 736; Comp, laws 1913, § 6337.

<p>Deeds — whether grantor depositing deeds with scrivener, intended to part with control, held a question of intent.</p> <p>1. Where deeds are executed and left with a scrivener, accompanied with the statement that the grantor wanted the same recorded, if anything happened to her, the question of a constructive delivery thereof to the grantee named is a question of fact, to be determined from tbe evidence whether the grantor deposited such deeds with a stranger and with intent to part with all control and dominion thereover.</p> <p>Note. — On delivery of deed to third person or record by grantor, as a delivery to the grantee, see notes in 54 L.R.A. 865; 9 L.R.A. (N.S.) 224; and 38 L.R.A. (N.S.) 841.</p> <p>Deeds — grantee asserting title held to have burden of proving constructive delivery.</p> <p>2. The burden is upon the grantee, asserting the title, to prove such constructive delivery, and upon failure so to establish, by proof, the deeds will be adjudged invalid for want of delivery.</p> <p>Executors and administrators — administrator may sue to determine adverse claims.</p> <p>3. The administrator, as the representative of the estate of the deceased, has authority to maintain an action to determine adverse claims concerning the possession, the interest, or the title of the estate therein.</p>

Erom a judgment of the District Court of Mountrail County, Leigh-ton, L, plaintiff appeals. The right to rescind a contract for breach of warranty is a question upon which the courts are not entirely in harmony, but in this state the-rule is well established that such rescission may be made. 24 R. C. L. 287 and cases cited; Minn. Thresh. Mfg. Co. v. Hanson, 3 N. D. 81;-Canham v. Plano Mfg. Co. 3 N. D. 229; Emerson-Brantingham Improv. Co. v. Busch (N. D.) 175 N. W. 201; Comp.

<p>Appeal from the District Court of Burleigh County, Nuessle, J.</p> <p>Capital stock is the entire sum agreed to be contributed to the enterprise whether paid in or not. 40 Ga. 98; 24 N. J. L. 195; 1 Words & Phrases, 562; Cooke v. Marshall, 43 Atl. 314.</p> <p>The capital stock of a corporation is the money contributed by the corporators to the capital, and is usually represented by shares issued to subscribers to the stock on the initiation of the corporate enterprise. 10 Cyc. 364; Eoote v. Creilick (Mich.) 132 N. W. 473; Stemple v. Bruin (Fla.) 49 So. 151; Tapscot v. Mexican Colo. River Land Co. (Cal.) 96 Pac. 271.</p> <p>The general rule is that capital stock means a stock actually subscribed for and issued. Platt v. Munson, 17 Hun, 475; Oarlington v. Gilbert, 17 N. Y. 489; Eisk v. Chicago, etc. R. Co. 36 How. Pr. 20; Green Point Sugar Co. v. Whiten, 69 N. Y. 328; Christianson v. Eno, 106 N. Y. 97; State v. St. Louis & S. E. R. Co. 105 Pac. 688.</p>

L. Nuessle, Judge. The defendants owed to plaintiff- a duty that the ordinary common carrier owes to its guest. Johnson v. Coey, 237 111. 88, 21 L.R.A. (N.S.) 81 and note; Routlidge v. Rambler Automobile Co. 95 S. W. 749; Perkins v. Galloway (Ala.) L.R.A.1916E, 1190; Gresh v. Wannamaker, 221 Pa. 28; Burnham v. Central Automobile Exeh. (R. I.) 67 Atl. 429; Jacobs v. Jacobs (La.) L.R.A.1917F, 253, 74 So. 992.

M. Cooley, Judge. Self-serving declarations are not admissible in the trial of a cause. That rule has always been applied to the records of a corporation. 3 Jones, Ev.

Election contest, upon tbe removal of a county seat, in Sioux County, Crawford, J. From a judgment of dismissal, tbe plaintiff bas appealed. Tbe Indians are not a portion of tbe political community called tbe people of tbe United States; and, altbougb not foreign nations or persons, they always have been regarded and treated as distinct and independent political communities.

Certified question of law, from District Court, Stutsman County, Coffey, J. A surety is an insurer of tbe debt. Northern State Bank y. Bellamy, 19 N. D. 509, 125 N. W. 888. A paid surety or bonding company is treated rather as an insurer than a surety. Long y. American Surety Co. 23 N. D. 492, 137 N. W. 41; 20 Cyc. 1400. If a debt ought to be paid at a particular time, and is not then paid, legal interest upon it shall be paid during such time, as the party is in default.

Two actions in District Court, Burleigh County, Nuessle, J., to recover upon hail insurance contracts, tried and considered together. From a judgment of dismissal the plaintiffs separately appeal. As to the question whether or not the company has signed it or given consent, see Nowark Machine Co. v. Kenton Ins. Co. (Ohio) 22 L.K.A. 768. As to the question of acceptance by mail, see Northwest Mut. L. Ins. Co. v. Joseph, 31 Ky. L. Kep. 714, 12 L.R.A.(N.S.) 439, 103 S. W. 317.

A. Coffey, Judge. Prior and remote cause cannot be made the basis of an action if such remote cause did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible. Cavanaugh v. Centerville Block Coal Co. (Iowa) 109 N. W. 303.

T. Cole, Judge. A gift by a donor who is ignorant of the fact that he is giving cannot be sustained by a court. A. O. TJ. W. v. Gandy (N. J. L.) 53 Atl. 146. Insured had no interest at all capable of being transferred by gift or assignment to respondent. This is also the clear voice of authority. M. W. A. v. Headle (Vt.) L.B.A.1915A, 586; Holland v. Taylor, 111 Ind. 121, 12 N. E. 116; Fink v. Fink, 171 N. Y. 616, 64 N. E. 508; Ireland v. Ireland, 42 Hun, 212.

<p>Master and servant — trial — direction of verdict held error — power to direct verdict defined.</p> <p>In this case plaintiff appeals from a judgment on a directed verdict; The verdict was directed on a motion which argues the merits of the case and covers nine pages of the record; and on the merits the motion was granted. That was error. The facts, which speak louder than words and the testimony of plaintiff were sufficient to sustain a verdict in his favor. On a motion to direct a verdict against a party his testimony should be taken as true, unless clearly false. The motion is in the nature of a demurrer to the evidence and the conceded facts. It does not question the legal sufficiency of the pleadings, which may be amended to conform to the evidence. It raises merely a question on the legal sufficiency of the evidence to sustain a verdict against the moving-party. 38 Cyc. 1564-1569.</p>

From a judgment of the District Court of Logan County, Graham, J., defendant appeals.

'Appeal from an order of the District Court of Stutsman County,, Honorable J. A. Coffey, J. A judgment dissolving the relation of husband and wife should never be granted except on the most positive showing, and more than in any other class of cases there should be offered the fullest opportunity for-both parties to be heard.

P. Allen, J. An intended wife may, by an antenuptial agreement, release her claim or right to the statutory allowance given to widows out of their deceased husband’s estate. 13 R. C. L. 1013; Kroell v. Kroell, 219 111. 105; Houghton v. Houghton, 14 Ind. 505; Rieger v. Schnaible, 81 Neb. 33. The homestead right of one spouse in the real estate of the other, on the latter’s death, may he barred by antenuptial contract. 13 R. C. L. 1014; Appleby v. Appleby, 100 Minn. 408.

<p>Appeal from District Court of Williams County, Leighton, T.</p>

Erom au order of the District Court of Grant County, Hanley, J., defendant appeals. The order denying the motion to vacate should be reversed and the judgment should be vacated. Whittaker v. Warren (S. D.) 86 N. W. 638; Williams v. Fairmont School Dist. 21 N. D. 198; Mougey v. Miller (N. D.) 169 N. W. 735.

Action in tbe nature of sequestration proceedings in District Court, Wells County, Coffey, J. From a judgment of dismissal tbe plaintiff bas appealed and demands a trial de novo.

Criminal action for statutory rape in District Court, Cavalier County, Kneeshawj J. Defendant has appealed from a judgment of conviction and an order denying a new trial. Dnder a law similar to chapter 17, Laws of 1901, the state of Wisconsin held that an unofficial member of the bar may not assist in the prosecution for a fee paid by private persons. Beimel v. State, 71 Wis. 444, 37 N. W. 244; Bird v. State, 77 Wis. 276, 45 N. W. 1126.

Action in District Court, Billings County, Crawford and Hanley, JJ., to foreclose a mortgage. Plaintiff has appealed from a judgment and order denying a new trial and has demanded a trial de novo.

Erom a judgment of the District Court of Billings County, Crawford, J., plaintiff appeals. “It is a general rule, to which there are certain exceptions, that a person may not be the agent for both the contracting parties at the same time.” 2 O. J. 448, 712, §§ 47 c, 367 j. “An agent can never have authority, either actual or ostensible, to do an act which is and is known or suspected by the person with whom he deals to be a fraud upon the principal.” N. D. Comp.

M. Hmley, Judge. Whoever deals with a corporation by its purported agent does so at his peril as to the existence of the relation of principal and agent between the corporation and the purported agent. Grant County State Bank v. Northwestern Land Co. 28 N. D. 479.

T. Lembhe, Judge. “Where a farm is rented for a share of the crops, the landlord and tenant are tenants in common of the crops raised by the tenant.” Mpls. Iron Store Co. v. Branum, 36 N. D. 355, 162 N. W. 543; Bohrer v. Babcock, 126 Cal. 222; McNeal v. Eider, 79 Minn. 153; Eiddle v. Dow, 98 Iowa, 7; Wilber v. Sisson, 53 Barb. 258.

Defendant appeals from an order overruling a demurrer to the complaint. The intention of the legislature must be ascertained and given effect in construing statutes. State ex rel. Langer v. Kositzky, 31 N. D. 623. The object of all statutory interpretation and construction is to ascertain and give effect to the legislative intention. State ex rel. Linde v. Taylor, 33 N. D. 98; Power v. Hamilton, 22 N. D. 179.

Section 8445. A writ of certiorari shall be granted by the supreme and district courts when inferior courts, officers, board, or tribunals have exceeded their jurisdiction, and there is no appeal, nor, in the judgment of the court, any other plain, speedy, and adequate remedy, and also when in the judgment of the court it is deemed necessary to prevent a miscarriage of justice.

<p>Appeal from District Court of Rausom County, Butts, J., sitting at tbe request of Allen, J.</p> <p>A petition with the statutory number of signers is a mandatory prerequisite. Stephens v. Jones (S. D.) 123 N. W. 705; West End v. State (Ala.) 36 So. 423; Borchard v. Ventura Oounty (Cal.) 77 Pac. 708; People v. Stratton (Colo.) 81 Pac. 245; People v. Pike (111.) 64 N. E. 393; Atty. Gen. v. Bice, 31 N. W. 203; Tard v. Ocean Beach (N. J. L.) 5 Atl. 142; State v. Jenkins (Mo.) 25 Mo. App. 484; Kaiser v. Lawrence (Iowa) 8 N. W. 772; McGarahan v. Mining Co. 96 1J. S. 316; Page v. Board, etc. (Cal.) 24 Pac. 607; People v. Linden (Cal.) 40 Pac. 115; Be Taylorport (Pa.) 13 Atl. 224; Dartmouth Sav. Bank v. School Dist. 6 Dak. 332.</p> <p>After the petition had been signed by all but two persons one of the members of the defendant board unlawfully added more territory. This act rendered the petition void as to those whose lands were affected by such charge, and as to all petitioners. White v. Hass (Ala.) 70 Am. Dec. 548 and note; Inglish v. Breneman (Ark.) 41 Am. Dec. 96; Walsh v. Hunt (Cal.) 53 Pac. 115; Ins. Co. v. Martindale (Kan.) 88 Pac. 559; Bacon v. Hooker (Mass.) 58 N. E. 1078; Erickson v. Bank (Neb.) 62 N. W. 1078; Newman v. King (Ohio) 43 N. E. 683; Bank v. Mullen (Okla.) 120 Pac. 257; State ex rel. Merriweather v. Campbell (Mo.) 25 S. W. 392.</p> <p>Notice in the form and manner prescribed by § 1240, Comp. Laws, is a prerequisite to complete annexation. Hnless this is done the board does not obtain jurisdiction. State v. Schols (Kan.) 20 Pac. 523; State v. Lentton (Iowa) 5 N. W. 613; Butterfield v. School Dist. 61 Me. 583; Coulter v. School Dist. (Mich.) 26 N. W. 649; Howard v. Eorester (Ky.) 59 S. W. 10; Hyser v. Township Board (Mich.) 91 N. W. 1020; State v. Steele (Wis.) 82 N. W. 295; Gentle v. School Inspectors (Mich.) 40 N. W. 928.</p> <p>There is a distinction between acts complete and incomplete. Price v. Eargo, 18 N. D. 296.</p> <p>It is not mere matter of lapse of time, but change of situation during neglectful repose, rendering it inequitable to afford relief. O’Brien v. Wheelock (H. S.) 46 L. ed. 627; Goss v. Herman, 20 N. D. 295; 2 Pom. Eq. Jur. p. 917; Wilson v. Auger (111.) 52 N. E. 289; Manning v. Mulrey (Mass.) 78 N. E. 551; Smith v. Linder (S. C.) 58 S. E. 610; Eoote v. Harrison (Wis.) 119 N. W. 291; Shiffer v. Morien (Pa.) 74 Atl. 426; Foote v. Hambrick (Miss.) 35 Am. St. Rep. 631 and note; Erickson v. Bank (Neb.) 62 N. W. 1078.</p> <p>Annexation is an arbitrary power, the delegation of such power is always strictly construed, with all doubts resolved against the recipient of that power. Ster v. Fargo, 18 N. D. 289; 19 R. C. L. Municipal Corporations, ¶ 75, note 8.</p> <p>The following cases hold that laches is not a mere matter of time, but principally a matter of inequity, in permitting the claim to be enforced founded upon some change in the conditions or relations of the parties. Greenfield School Dist. v. Hannaford Special School Dist. 20 N. D. 393; State ex rel. Frish v. Nohle, 16 N. D. 168; Sherer v. Hutterische Bruder Geminde (S. D.) 134 N. W. 63.</p> <p>An estoppel may arise from laches covering a period of time shorter than that prescribed by suit. Kennedy v. McKenzie (S. D.) 127 N. W. 597.</p> <p>When a person with actual or constructive knowledge of the fact induces another by his words or conduct to alter his position, such person is estopped from repudiating the transaction to the other’s prejudice. McDonald v. Beatty, 10 N. D. 511; 16 Cyc. 791, 792; 2 Pom. Eq. Jur. § 809.</p>

'Action for civil libel against a newspaper in Morton County, Nuessle, J. The defendant bas appealed from an order overruling the demurrer.

Defendant appeals from a judgment and from an order denying a motion for judgment notwithstanding the verdict or for a.new trial. The employee is not deemed to have any distinct possession, his possession being deemed in law, during the employment, that of his employer, without any rights surviving the employment. 16 R. O. L. p. 582, § 57; Lane v. Au Sable Electric Co. Ann. Cas. 19160, 1112 note; Wood, Master & S. 2d ed. § 155, p. 304; DeBrair v. Mintrum, 1 Cal. 450.

Honorable F. T. Lemblce, Judge. Where the plaintiff is bound by the terms of his policy in the event of a loss to furnish the insurer certain proofs of loss, but -wholly fails to do so within the time limited by the policy, or at all, he forfeits his right to a recovery under the policy unless the defendant has waived tho requirement. Johnson v. Dakota F. & M. Ins. Co. 1 N. D. 167, 45 N. W. 799.

<p>Mortgages — payment of amount due by purchaser of land subject to mortgage constitutes discharge.</p> <p>1. Where one who has purchased land subject to and with knowledge of certain encumbrances against it (the amount of which is in effect deducted from the purchase price), pays the amount due upon and procures an assignment of one of such mortgages, the mortgage is discharged.</p> <p>New trial — in trial by court insufficiency of evidence not ground.</p> <p>2. Insufficiency of the evidence does not constitute a ground for a new trial in an action properly triable, and tried, to the court without a jury under § 7846, Comp. Laws 1913.</p> <p>New trial — diligence must be shown to obtain newly discovered evidence.</p> <p>3. For reasons stated in the opinion it is held that a motion for a new trial on the ground of newly discovered evidence was properly denied.</p>

J. Hnglert, Judge. From an order denying motion for new trial, defendant appeals. There was but one cause of action, and that was for the tort or wrong. Friedrickson v. Renard, 247 H. S. 207-213; Nash v. Myls.

A directed verdict should be given when the prima facie case has been completely destroyed by unimpeached and uncontradicted documentary evidence. Kazee v. Kansas City L. Ins. Co. 217 S. W. 341; Automobile Co. v. St. Louis Union, 187 S. W. 109; Darlington Lumber Co. v. Missouri P. E. Co. 243 Mo. 224, 147 S. W. 1052.

<p>Homestead — the “home” and “residence” is the place where a person resides.</p> <p>1.The “home” and “residence” of a person is the place where he commonly resides; a place to which, when absent, he returns, like a bee to its hive, a carrier pigeon to its home, a bird to its nest.</p> <p>Homestead — wife’s homestead right is not affected by death of husband.</p> <p>2.Erom sale on execution the law exempts a homestead — a city lot and the dwelling house in which the owner and head of a family resides. When the wife owns the homestead her title and her exemption right are not affected by the death of her husband. While she continues the head of a family and resides in her home it is exempt.</p> <p>Homestead —at husband’s death wife takes an estate for life or years.</p> <p>3.When the husband owns a homestead and dies leaving a wife and children, the title does not vest in the wife, but she takes an estate for life or years, as provided by statute.</p> <p>The law gives it and the court awards it.</p> <p>Note. — Where a husband and wife occupy a homestead, it was held that she was the head of the family, at his death, as will be seen by an examination of the cases collated in 4 L.R.A. (N.S.) 365, and L.R.A.19170, 361, on what constitutes a family under homestead and exemption laws.</p> <p>On homestead rights of nonresident widow, see note in 96 Am. Dec. 412.</p> <p>As to what constitutes abandonment of homestead, see notes in 102 Am. St. Rep. .388, and 60 Am. Dec. 607.</p>