Volume 46 — North Dakota Reports

Action for personal injuries in District Court, Stutsman County, Coffey, J. The defendant has appealed from an order granting a new trial. Complaint cannot be made of failure to instruct unless there is a request for further instruction made. State v. Glass, 29 N. D. 620; North Star Lumber Co. v. Eosenquist, 29 N. D. 567; State ex rel. People v. Banik, 21 N. D. 425 ; Chrestenson v. Harms, 161 N. W. 346; Huber v. Seiszler, 37 N. D. 556.

“The owner of a building holds it subject to the right of the public to prescribe reasonable safeguards and regulations for its protection and the interests of the individual must in such case give in to the requirements necessary for public safety.” Russell v. Fargo, 28 N. D. 300. “Every person has a right to assume that every other person is obeying ordinances in force in the municipality in which they are staying and may regulate his conduct accordingly, and he cannot be…

Action to determine adverse claims in Ransom county, Cole, J. Tbe plaintiff has appealed from a judgment in favor of the defendants and has demanded a trial de novo. Any deficiency in any of the jurisdictional proceedings is not a mere •defect or technicality; it goes to the very foundation of the power of the court to act at all. Roberts v. Enderlin Inv. Co. 21 N. D. 594; Johnson v. Englehard (N. D.) 176 N. W. 134; Dallas v. Luster, 27 N. D. 453.

In District Court, Hettinger County, Lemblce, J. Appeal by the defendant from a judgment rendered against the garnishee in favor of the plaintiffs. A default cannot be taken before the expiration of time allowed for appearance to which the action has been adjourned. 24 Cyc. 595. The plaintiff did not take any issue on the garnishee’s answer. Therefore' the allegations of the answer are deemed and taken to be true. Comp.

From a judgment of the District Court of Adams County, Orawford, J., plaintiff appeals. The heirs, the defendants in this action, did not take this land as a gift from the government, but by inheritance and subject to the encumbrances placed thereon. Stark v. Starrs, 6 Wall. 402; Barney v. Dolph, 97 U. S. 652; Simmons v. Wagner, 101 U. S. 260; Cornelius v. Kessel, 128 IT. S. 456; Wisconsin R. Co. v. Price Co. 133 U. S. 496.

Action in District Court, Ward County, Leighton, J., to enjoin the defendants from issuing certain school bonds.

From a judgment and an order denying a motion for judgment notwithstanding the verdict of the District Court of Stutsman County, Coffey, J., defendant appeals. That the title to unsevered crops growing on land belonging to one who is the owner of said premises or the one having right of possession has never been seriously disputed.

E. Leighton, J. The court erred in holding that the testimony of the defendant, Carroll, was barred under subdivision 2, § 7871, Comp. Laws 1913. Cardiff v. Marquis, 17 N. D. 110; Lake Grocery Co. v. Chiostri, 34 N. D. 386. He cannot be excluded unless the party against whom his testimony is offered is within one of the classes protected by the statute. 40 Cyc. 2263, 2301, and cases cited.

Cf. Burr, J. The rule is that a nonexpert witness may not express an opinion of the condition of the mind of a person under consideration at a time other than when he saw him. Blake v. Rourke (Iowa) 38 N. W. 392; Speer v. Speer (Iowa) 123 N. W. 176; Danning v. Butcher (Iowa) 59 N. W. 69; 27 L.E.A.(N.S.) 294; 140 Am. St. Eep. 268; State v. McGruder, 101 N. W. 646; Dolan v. Henry, 177 N. W. 718; Eunyan v. Price (Ohio) 85 Am. Dec. 468; Eetts v. Betts, 84 N. W. 977.

<p>Infants — application for mother’s pension denied where applicant had not resided in cotmty for a year.</p> <p>A mother made application by petition for the allowance of a mother’s pension under chapter 185, Session Laws of 1915. Under stipulated facts it appeared that she had been voluntarily absent from the county in which the application was made for more than a year previous thereto, and that she had taken up her residence in another county where she had lived for more than a year. It is held:</p> <p>1. Under ¶ 5 of § 2 of chapter 185, Sessions Laws of 1915, an applicant for a mother’s pension must have resided in the county for one year.</p> <p>Infants —statutory period applies only to those not residing in county for year immediately before applying for mother’s pension.</p> <p>2. The provisions of ¶ 4 of § 2501, Comp. Laws 1933, which, in determining the period of residence in a given county, direct the exclusion of periods spoilt as inmates in public institutions, and each month during which poor relief was received from any county, apply only with respect to persons who have' not resided in any one county for the period of a year immediately preceding the application.</p> <p>Domicil — residence in given county is lost toy voluntary absence therefrom for a year or more.</p> <p>3. Under ¶ 6 of § 2501, Comp. Laws 1913, the residence of an individual in a given county is lost by voluntary absence from the county for one year or more, regardless of the receipt by such person of poor relief during a part of the period of absence.</p>

M. Cooley, Special Judge. It is well settled that judgments may he set aside and vacated on motion made in the original action, and such has been the practice generally in such cases. Beach v. Beach, 6 Dak. 3Y1, 40 N. W. Y01; Gaar, S. & Co. v. Spaulding, 2 N. D. 420; Yorke v. Yorke, 3 N. D. 343, 55 N. W. 1095; Nichells v. Nicbells, 5 N. D. 125, 64 N. W. 73. Fraud, as other facts, may be established by a preponderance of the evidence.

W. Bubtz, Judge. Accommodation paper is paper to which the accommodation party has put his name without consideration. 8 Corpus Juris, 255, 258 Accommodation paper cannot be revoked after negotiation. Such revocation, however, affects only one who takes with knowledge of what has been done, and does not prevent a recovery on the instrument by un innocent indorsee to whom it has been negotiated. 8 C. J. 260, 263 (¶¶ 410, 412).

A. Coffey, Judge. “A defendant in a civil action is not entitled to the provisional remedy by injunction. This remedy is entirely a creature of statute, and is awarded only to the plaintiff in a proper action.

From a judgment of the district court of Ramsey County, Knee-slum, J., defendant appeals. “Where an absolute and unqualified admission is made in a pending cause, whether by written stipulation of the attorney or as a matter of proof on the hearing, it cannot be retracted on a subsequent trial, unless by leave of court.” 20 Century Dig. § 1035, and general admissions. “Statements of plaintiff in the trial of an action between him and another defendant, involving the same…

<p>Counties — mandamus — in proceedings to remove county seat, it is for commissioners, and not court, to pass on petition — mandamus not issued to compel county commissioners to reverse their decision against sufficiency of petition for removal of county seat.</p> <p>In proceedings for tlie removal of a county seat, it is for the county commissioners, and not the court, to pass on the sufficiency of the petition for removal. When the county commissioners decide against the sufficiency of a petition, the court may not, by mandamus or otherwise, compel them to undo- or reverse their decision.</p>

Appeal- from the District Court of Ramsey County; Honorable A. G. Burr, Judge. The plaintiffs are not entitled to recover because they did not and could not deliver to defendant on the terms agreed. Under these circumstances plaintiff had nothing to sell to defendant and they knew it. That such a contract is void and no compensation or commission can be recovered by the broker under such circumstances. Halland v. Johnson (N. D.) 174 N. W. 874.

<p>Mandamus — in mandamus to obtain salary warrant, answer held to shovl petitioner’s legal removal.</p> <p>In a petition for mandamus, the petitioner sought to compel the issuance of a salary warrant. The defendants answered, alleging that the petitioner had been removed from office. The answer also set forth the proceedings had to remove the petitioner. A demurrer was interposed to the answer. It is held:</p> <p>For reasons stated in the opinion, the answer sufficiently alleges the existence of legal grounds for removal and the exercise of the power.</p>

Action upon a policy of crop insurance in District Court, Morton County, Crawford, J. From a judgment in favor of the plaintiff and from an order denying a judgment non obstante, or, in the alternative, for a new trial, the defendant has appealed. “What constitutes a reasonable time within which to declare a rescission is ordinarily a question of fact. It may, however, be a question of law, if the circumstances are such as to demonstrate unreasonable delay.” Mfg.

Criminal action upon an information for buying and receiving stolen property, in District Court, Mountrail County, Leighton, J. From a judgment of conviction, the defendant lias appealed. On trial of an indictment for receiving stolen goods tbe ownership ■of the goods, if known, must be alleged and proved as alleged.

F. Fisk, Judge. A person may do anything that is necessary to prevent the trespass «except use the dangerous weapon. Dinan v. Fitz Gibbon, 63 Cal. 387; Townsend v. Briggs (Cal.) 34 Pac. 116; People v. Payne, 8 Cal. 34Í; People v. Flanders, 60 Cal. 2; Sims v. State, 36 S. W. 256.

Action for conversion, in District Court, Ward County, Fish, J. From a judgment in favor of the plaintiff the defendant has appealed. ....... .......... The lessee has agreed that his title to his share of the crop should not vest in him until the act of division was performed by the lessor. The unjust refusal of the lessor to perform this act (division) would not make the lessee the owner of the legal title.

J. “The law presumes that all acts are done in good faith,” 10 R. C. L. 875. “In the ordinary transactions of life, fairness and honesty are presumed, and conveyances, sales, and contracts are generally presumed to have been made in good faith until the contrary is proven.” Jones, Ev. Pock. ed. § 13. * “Evidence of fraud will not prevail over the presumption of honesty unless established by irresistible evidence of double dealings.” Snow v. Wathen, 127 App.

G. Burr, J. On tbe question of the proof that the insured came to his death while subjected to the hazard of naval -service, it is clear that such is not the case. He was in an inland city, and not subject to any risks not common to civilians with whom he was constantly associated. Myli v. American L. Ins. Co. 175 N. TV.- 631; Kelly v. Fidelity Mut. L. Ins. Co. 172 N. W. 153.

<p>Attorney and client — misappropriation oí funds — disbarment.</p> <p>In this proceeding it is held that the findings of the referee to the effect that the accused attorney misappropriated funds which he had collected for, and which belonged to, his client are fully sustained by the evidence; and it i& ordered that he be disbarred.</p>

Action in' district court, Dunn county, Ormvford, J. From a judgment in favor of the answering defendant, tibe plaintiff has appealed. A mortgage properly acknowledge may be introduced in evidence and read without further proof, and, when so introduced and read, it makes a prima facie case, although its execution is denied by a verified answer.

Prom a judgment of the district court of Pierce County, Butte, J., defendants Olson and Citizens State Bank of St. Peter, appeal. Held: when construed in connection with all other provisions of such contracts, as being one merely for security. Mpls. Iron Store Co. v. Branum, 36 N. I). 355; 38 Cyc. 83. A replevin cannot lie for an undivided interest in personal property.

Appeal' from the District Court of Williams County, Honorable K. B. LeightonJudge.

'From a judgment of the District Court of Eolette County, Butts, J., defendant appeals. The plaintiff has certainly not shown himself to have been injured in any way in the transaction or suffered any damage or loss on account of the same. The plaintiff, therefore, has no standing in court under the undisputed testimony in this case.

Action for personal injuries in Grand Forks County, Cole, J. From a judgment entered upon a directed verdict and an order denying a new trial, tbe plaintiff appeals. A servant who is injured while obeying a direct command of hÍ3 master does not assume the risk of such injury, nor is he guilty of contributory negligence in obeying the command.

From a judgment of the District Court, Stark County, Crawford,y J., in favor of the plaintiff and against the garnishee, the latter has appealed.

Butts, Judge. A voluntary executory agreement is not enforced in equity, and the fact that the memorandum of the contract states' a consideration is immaterial; the fact that no consideration exists may always be shown. 36 Cyc. 544, 608; Comp. Laws 1913, § 5872. There must be some consideration for the option to render it more than an offer revocable before acceptance, but the amount of the consideration is generally immaterial. 36 Cyc. 626; 9 Cyc. 309; 13 O. J. p. 312.

The statute‘not only provides for a term of two years for county superintendent, but for two years’ additional time until a successor is elected and qualified. State v. Fabrick, 16 N. D. 94. The incumbent of a public office, who has the right to hold over until his successor is elected and qualified, has such a special interest as enables him to maintain an action.

Motion of plaintiff to designate a new trial judge, under a second affidavit of prejudice, filed in a cause pending in District Court, Dunn County.

From a judgment of the District Court of Ward County, Leighton> J., defendant appeals. “Retrospective laws that violate no principle of natural justice, but that, on the contrary, are in furtherance of equity and good morals, are not unconstitutional because retrospective.” Cuyahoga Falls Real Estate Asso. v. McOaughy, 2 Ohio St. 152. The question of reasonable time is one primarily for the legislature to determine.

<p>Elections — woman may Re candidate for nomination as delegate to a national convention.</p> <p>For reasons stated in the opinion it is held that a woman may he a candidate for nomination as delegate to a national nominating convention.</p>

The district court still had jurisdiction and should have determined their differences on the merits. 15 Enc. PI. & Pr. 1030, and cases cited under note 4; Coffin v. McIntosh (Utah) 34 Pac. 247; Clarke v. Mills (Kan.) 13 Pac. 569; Wheeler v. Arnold, 30 Mich. 304. The question as to whether a partnership existed is one of fact for the jury to determine. Frankel v. Heller, 16 N. D. 387; Sparkling v. Smeltzer, 95 N. W. 571; Johnson Bros. v. Cartel*, 94 N. W. 850.

<p>Coporations — time for reinstatement of charter after cancelation stated.</p> <p>3. Under §§ 4518 and 4521, Comp. Laws 1913, as amended (chap. 4, Sess. Laws 1918) the six months’ period of time within which a corporation may reinstate its charter of record starts from the time of cancelation provided hy statute when the secretary of state shall cancel the charter of the corporation on the records of his office.</p> <p>Corporations — application for reinstatement of corporation whose charter has been canceled held to he in compliance with statute.</p> <p>2. In a mandamus action seeking to compel the secretary of state to reinstate a corporation, where the corporation, a fair association, has failed to file its annual reports or pay the annual filing fees required for the years 3911 to 1919, inclusive, and the secretary of state has not given notice of its default in that regal’d hy registered letter, as required by the statute, and did not enter until May 24, 1919, upon the records of his office the cancelation of such charter, and the corporation thereupon, within six months from the time of such statutory act of cancelation of record by the secretary of state, offered to file all of its annual reports required and tendered payment of the filing fees and a reinstatement fee as required within such six months’ period, it is held that the corporation complied with the statutory provisions above cited.</p>

T. Lemblce, Judge. The defendant had absolutely nothing to do with the alleged conversion. It is in no manner liable here, and the motion to dismiss should have been granted. McGregor v. G. N. R. Co. (N. D.) 172 N. W. 841; Federal Control Act, March 21, 1918, § 10 (Comp. Stat. § 3113fj) ; Haubert v. Baltimore & O. R. Co. 259 Fed. 361; Hatcher & Snyder v. Atchison, T. & S. F. R. Co. 258 Fed. 952. “Under Federal Railroad Control Act, § 10 (U. S. Comp.

<p>Surety on bond.</p> <p>1. Sections 86 and 87 of the Constitution of North Dakota constitute a grant of power to the supreme court, and, the language thereof being restrictive, this court has such jurisdiction, and only such, as is expressly or by necessary implication therein granted.</p> <p>Cases certified —■ question certified must have been presented to, and ruled on, by court below. ,</p> <p>2. In order to confer jurisdiction upon the supreme court in cases certified under chapter 2, Laws 1919, the question certified must have been presented to and ruled upon by the court below.</p>

Original application for writ of injunction. Held: Commissioner Milhollan arriving on August 13th in time to hear part of the evidence and the arguments summing up the testimony.

Murray, Judge of the County Court of Ward County, North Dakota. The burden of proving facts such as would be a bar or estoppel on the ground of res judicata is upon the party alleging same. Hanchey v. Coskrey, 81 Ala. 149, 1 So. 259. See 23 Cyc. 1536, ¶ 4 and cases cited. Extrinsic evidence may be heard, and the question is to be decided by the aid of such evidence, and not by the inspection of the record alone. Hartman v. Pittsburg Inclined Plane Co. 23 Pa. Super.

Bastardy proceedings in Morton County, Hanley, J. From a judgment and order denying a new trial the defendant has appealed. “The sole and only question for the jury to determine is whether or not the defendant is the father.” People v. Welch, 143 111. App. 191; Mann v. State (Wis.) 112 N. W. 38.

Action in claim and delivery in Ward county, Leighton, J. Prom a judgment in favor of the supply company and from an order denying plaintiff’s motion for a new trial or judgment non obstante, the plaintiff has appealed. “Where there are circumstances pointing both ways, some indicating an intent to pass the ownership -immediately, notwithstanding the bill of lading—in other words, where there is anything to rebut the effect of. the bill—it becomes a question for the jury…

Fisk, Judge. There was no negligence shown on the part of the defendant. The injury was the result of an accident. Manson v. Great Northern R. Co. 31 N. D. 643; Carver v. Internationa] & E. N. R. Co. 72 Tex. 308, 17 Am. Neg. Cas. 647; Cooley, Torts, § 543; Boyer v. Eastern R. Co. (Minn.) 12 Am. Neg.

L. Nuessle, J. Where a contract is reduced to writing and the written contract is not complete, parol evidence is admissible to show what part of the contract was omitted. Putnam v. Prouty, 24 N. O. 517; Gilbert Mfg. •Co. v. Bryan, 166 N. W. 805.

<p>Bankruptcy — evidence held not to show a new promise after adjudication reviving the debt.</p> <p>Plaintiff brought an action to recover upon a debt discharged in bankruptcy, on the theory that a new promise of payment, by the debtor, after the adjudication, had revived the same. The case was tried to a jury, and, after the evidence was submitted, the court directed a verdict in favor of the defendant, on the ground that there was no evidence showing a new promise.</p> <p>Notb.—The question of the effect of an expression of hope or expectation as a new promise which will revive a debt after the discharge in bankruptcy has arisen in a very few instances, but in connection with this question it may be stated that in many instances the rules applicable to the tolling of a statute of limitation may be applied, as will be found by an examination of the cases collated in a note in 38 L.R.A.(N.S.) 577, on expression of hope or expectation as a new promise which will toll the Statute of Limitations or revive debt after discharge in bankruptcy.</p> <p>On the question as to what promise, acknowledgment, or payment takes ease out of Statute of Limitations, see note in 6 L. ed. U. S. 481.</p> <p>It is held, for reasons stated in the opinion, that the court, in directing a verdict, was not in error.</p>

Prom a judgment of the District Court of Rolette County, Butiz, J., defendant appeals. One wbo buys personal property is a purchaser, and not a creditor. Volekersv. Stuske, 42 N. Y. Supp. 84; Caplinger v. Vaden, 5 Humph. 629. The plaintiff, being a mortgagee holding a mortgage on the grain, may, therefore, maintain this action against the defendant, which, on account of its being a trespasser as to the grain, had and has no right to ask that the securities be marshaled.

“No person shall ... be deprived of life, liberty, or property without due process of law.” N. D. Const. § 13, art. 1. Corporations are “persons” within the meaning of this paragraph of this amendment. Home Ins. Co. v. New York, 134 U. S. 594, 606; Pembina, etc. Co. v. Pennsylvania, 125 U. S. 181; Mpls. etc. R. v. Beckwith, 129 IT. S. 28; Chicago, R. v. Arkansas, 86 Ark. 412, 111 S. W. 456; Allgeyer & Co. v. Louisiana, 165 IT.

E Fraud cannot be presumed and the burden of proving it is on him who alleges it. Meyers v. Kaiser, 85 Wis. 382, 55 N. W. 688. The presumption is in favor of good faith, innocence, and honesty. 12 R. O. L. 424; Hart v. Church, 126 Oal. 471. See also note in 34 Am. St. Rep. 402. The purchaser of the equity of redemption stands in the shoes of the mortgagor as a successor in interest. Styles v. Dickey, 22 N. D. 513, 134 N. W. 702; Griffith v. Fox, 32 N. D. 660, 156.N. W. 239.

<p>Deeds — finding that deed was not procured by fraud and conspiracy held not erroneous.</p> <p>In an action to set aside a certain deed on the ground that the execution thereof was procured by fraud and conspiracy, the trial court found that there was neither, and that the deed was valid and effective, and refused to set it aside.</p> <p>Held, for reasons stated in the opinion, that the trial court was not in error.</p>

<p>Elections — candidates for individual nominations may object to printing at head of same column of names of others indicating they represent another national party.</p> <p>Candidates whose names appear upon a general election ballot in a column devoted to “individual nominations” may properly object to the printing at the head of the same column of the names of candidates (also nominated by individual petitions) in such a way as to indicate that the latter represent a national political party with which the plaintiffs do not affiliate.</p>

<p>Elections — certificates of primary nomination on a nonpartisan ballot held properly refused by county auditor.</p> <p>Where, pursuant to chap. 117, Laws 1919, candidates for a county office have been selected upon a nonpartisan ballot at a primary election, § 501, Eev. Codes 1899 (§ 971a, Comp. Laws 1913), has no application, and certificates of nomination of a person as a candidate for such county office, to be voted on at a general election, were properly refused by the county auditor.</p>

<p>Appeal and error — in trial to court under Newman Act supreme conet presumes findings based on proper testimony.</p> <p>1. In an action under the Newman Act (Comp. Laws 1913, § 7843), prior to the amendment of chap. 8, Laws 1919, the supreme court upon appeal reviews the proper testimony in the record, and it is to be presumed that the findings of the trial court are based upon proper testimony in the record, unless the contrary is made to appear.</p> <p>Trusts — resulting trust adjudged in favor of husband, who bought and paid for land title to which was taken in his wife’s name.</p> <p>2. In an action to declare a deed a deed in trust and to determine adverse claims, where the trial court has found that the husband, the plaintiff, bought 320 acres of land in 1901 and took the title thereto in the name of his wife, and that such husband farmed, cultivated, and improved the same and alone paid all of the consideration therefor; and where it appears from the proper testimony in the record that such findings are amply sustained, and that the presumption of gift or settlement arising from the relations of the parties (husband and wife) is negatived by affirmative evidence in the record, and that such deed was not so made for any purpose of avoiding claims or demands against the husband, it is held that a resulting trust arose in favor of the husband, pursuant to § 5365, Comp. Laws 1913.</p>

<p>Master and servant — contributory negligence and assumption of risk defenses not available to employer unlawfully employing minor.</p> <p>1. Where a minor aged thirteen years seven months is employed to assist in operating a circular saw in violation of the provisions of § 1412, Comp. Laws 1913, the defenses of contributory negligence and assumption of risk are not available to the employer.</p> <p>Master and servant — instructions on liability to minor injured in unlawful employment held proper; evidence as to unlawful employment of minor held admissible.</p> <p>2. In an action for personal injuries, where a boy, aged thirteen years, seven months, was employed by the defendant, as found by the jury, to assist in the operation of a circular saw used for sawing wood in a woodyard, it is held:</p> <p>Note.—There seems to be considerable conflict of opinion on the question of contributory negligence or assumption of risk by minor employed in violation of statute, but the view is apparently growing that neither contributory negligence nor assumption of risk can be relied upon by the master as a defense to an action for personal injuries to a child who is employed under statutory age, as will be found by an examination of the authorities collated in notes in 12 L.R.A.(N.S.) 461; 20 L.R.A.(N.S.) 876; and 48 L.R.A.(N.S.) 667, on right of one employing child under statutory age to rely on contributory negligence or assumption of risk, to defeat liability for personal injuries sustained by latter.</p> <p>Upon the general question of assumption of risk by minor servants, see note in 1 L.R.A.(N.S.) 279.</p> <p>' (a) That no prejudicial error was committed by the trial court in not instructing and in refusing-to instruct the jury upon methods of guarding the saw, the questions of the ordinary care exercised by the defendant, and the contributory negligence and assumption of risk on the part of the boy.</p> <p>(b) That the instructions fairly submitted to the jury the nonliability of the defendant, if the jury found that the boy was not so employed by the defendant.</p> <p>(c) That it was not error to admit evidence that the plaintiff and other boys, just prior to the accident, assisted in the operation of the saw.</p> <p>(d) That it was not error to charge the jury that the defendant was presumed to know the statute prohibiting the employment of minors in the operation of circular saws.</p> <p>Appeal —• party equally In fault cannot predicate error on Improper com- . ments and arguments of adverse party.</p> <p>3. In the trial of an action for personal injuries, where the counsel for both the plaintiff and the defendant are equally at fault, in comments during the trial and in arguments to the jury concerning the private and family affairs of the respective parties, improper per se, extraneous to the issue, and in part outside of the evidence, it is held upon the record that the defendant is not in a position to predicate prejudicial error upon the conduct of plaintiff’s counsel in that regard.</p>

From a judgment of the District Court of Cavalier County, Kneeshaw, J., defendants Ragnhildur Myrdal and Johann Vilhjahnur Myrdal appeal. The heirs of the entryman do not take by descent, but by purchase, and with the same force and effect as though their names were written in the patent. Hutchinson v. Caldwell, 153 H. S. 65, 38 L. ed. 356; Witenbrock v. Wheadon (Cal.) 60 Pac. 664.

<p>Libel and slander — libelous publications defined under statute.</p> <p>1. Under Comp. Laws 1913, § 4352, “any publication, by writing, printing, picture, eiligy, 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, or which has a tendency to injure him in his occupation,” is libelous.</p> <p>Libel and slander — effect of general demurrer as admission in libel action stated.</p> <p>2. A general demurrer to a complaint in an action for libel admits allegations of falsity and publication and malice, and the correctness of the innuendo as averred in the complaint, unless the innuendo attributes a meaning to the words which is not justified by the words themselves or by the extrinsic facts with which they are connected.</p> <p>Libel and slander — when publications libelous as matter of law stated.</p> <p>3. Where a complaint in an action for libel charges that the defendants maliciously published of and concerning the plaintiff a certain false and defamatory statement; that such statement was intended by the defendants to convey to the readers thereof such defamatory meaning, and was so understood by the readers,—the court cannot say that the statement was not libelous, unless it can say as a matter of law that the publication of the article of and concerning the plaintiff did not expose him “to hatred, contempt, ridicule, or obloquy,” or “cause him to be shunned or avoided,” or have “a tendency to injure him in his occupation.”</p> <p>Libel and slander — criticism of attorney general not privileged; complaint held to state cause of action in libel.</p> <p>4. Eor reasons stated in the opinion it is held that the complaint in this case states a. cause of action for libel.</p>

<p>Pleading- — terms of written agreement annexed control allegations on demurrer; averments inconsistent with writing disregarded.</p> <p>1. Where a written agreement is incorporated as a part of a complaint, its terms control and determine the sufficiency of the complaint as against a demurrer in every particular, where the contract terms do not sustain the allegations of the complaint as to its contents, and where the averments are contradictory of, or inconsistent with it, they will be disregarded.</p> <p>Brokers — complaint in action for commission for making loan held not to show full performance of broker or of loan company.</p> <p>2. In an action on a contract to recover commissions due for making a loan, where the complaint alleges due performance of the conditions precedent on the part of the plaintiff to be performed, and,- further, specifically alleges specific acts of performance by the plaintiff, and where, under the terms of a written agreement incorporated in the complaint, conditions precedent are required of the plaintiff, and also of a specific loan company mentioned therein, and where, further, the facts as alleged fall short of showing due performance, it is held that the general allegations of due performance do not aid in supplying the necessary allegations to show full performance on the part of this designated company, or of the plaintiff.</p>

<p>Appeal from District Court, Bottineau County, W. J. Kneeshaw, J.</p>

Fisk, Judge. ..... “Where circumstances under which a transfer of property by a debtor is made are suspicious, the failure of the parties to testify or to produce available, explanatory, and rebutting evidence is a badge of fraud.” 20 Cyc. 450. The question of the delivery and possession of the' automobile was a question of fact for the jury. Rosenbaum Bros. & Co. v. Hayes, 5. N. D. 476.

Original application to prohibit and restrain the respondents from usurping the powers and duties of the state examiner, and from wrongfully continuing its appointee as receiver of the Scandinavian American Bank of Fargo. Writ granted directing the state examiner to continue in charge of said bank, with full power to release possession of such bank to its officers when he deems fit, and restraining the respondents from further continuance of their wrongful acts.

Separate appeals by tbe Northern Pacific Railway Company and Walker D. Iiines, Director General of Railroads, from District Court of Dunn County, F. T. Lemblce, J. In an action against a carrier for loss of goods, the failure of the declaration to allege compliance with a provision of the bill of lading requiring notice of claim for injuries renders the declaration subject to demurrer. Williamsport Lumber Co. v. B. & O. R. Co. II S. E. 333; Cooke v. N. P. R. Co. 22 N. D. 266.

“Exemptions are favorably considered by the court, but in order that one may come within the protection of the statute the statute must be obeyed. ... If, therefore, he does not assert his claim within the time and in the manner prescribed by law, his rights are waived.” Bur-sail v. Goldstein, 23 N. D. 257.

W. Buttz, J. It is always competent to prove by parol what the real consideration of a written instrument is. Comp. Laws 1913, § 6901; Grebe v. Swords, 28 N. D. 330; 7 Cyc. 706; First State Bank v. Kelly, 30 N. D. 84. ......— A banking corporation cannot lend its credit to another by becoming surety, indorser, or guarantor for him. 7 O. J. 547, 815; 3 E. O. L. 425; 32 L.B.A.(N.S.) 545, note.

G. Burr, Judge. A deed executed by a wife to her husband, and delivered to him upon the understanding that it was not to be recorded unless the husband survived the wife, was not delivered so as to pass title. Elliott v. Murray, 225 111. 107, 80 N. E. 77; Bigley v. Sawyer (Mich.) 8 N. W. 98.

T. Cole, Judge. From a judgment in favor of plaintiffs’ defendant appeals. The relationship between Swenseid and Watson was that of landlord and tenant. Mpls.

Proof of the command or procurement may be direct or indirect, positive or circumstantial, but it is a matter for the jury, and not of legal competency. Terrell, Crimes hy Nat’l. Bank Officers & Agents, pp. 41, 42; Billingsley v. United States, 101 O. C. A. 474, 178 Fed.-653; United States v. Eish, 24 Fed. 593.

<p>Counties — mandamus — in proceedings to remove county seat it is for commissioners, and not court, to pass on petition; mandamus not issued to compel county commissioners to reverse their decision against sufficiency of petition for removal of county seat.</p> <p>In proceedings for the removal of a county seat, it is for the county commissioners, and not the court, to pass on the sufficiency of the petition for removal. When the county commissioners decide against the sufficiency of a petition, the court may not, by mandamus or otherwise, compel them to undo or reverse their decision. It may not appoint a special commission to act in place of the county commissioners.</p>

<p>Mandamus — to compel county auditor to place petitioner’s name on general ballot as a candidate held proper.</p> <p>. The trial court awarded a writ of mandamus directing the defendant to print petitioner’s name upon the general election ballot as a candidate for the office of state’s attorney of Divide county in this state. On appeal to this court, the judgment is affirmed for reasons stated in the opinion.</p>

J. Graham, Judge. When a prima facie case has been met by evidence which is not in conflict with material evidence, or with the circumstances surrounding the injury or killing, the presumption arising under the statute is eliminated, and it becomes incumbent upon the plaintiff to show actual negligence by a fair preponderance of the evidence. Whether such presumption has been fully met and overcome by the defendant’s evidence is, in the first instance, a question of law.

E. Leighton, J. There was a waiver by their duly appointed and acting agent Kane, which waiver was a valid and binding one as far as the defendant company was concerned. McDonald v. Equitable L. Ins. Co. (Iowa) 169 N. W. 852; Ins. Co. v. Eggelston, 96 IT. S. 572, 24 L. ed. 841; Union L. Ins. Co. v. Wilkinson, 13 Wall. 222, 20 L. ed. 617.

<p>Evidence — fraud — testimony of bankers tbat signatures indorsed on backs of grain checks were not in defendant’s handwriting held admissible.</p> <p>In an action to recover moneys alleged to have been fraudulently obtained through the issuance of grain checks, where the plaintiff in its complaint has alleged that the defendant forged signatures of payees’ names in such checks, and where further in its proof it has sought to establish that the defendant did sign and forge in his own handwriting the names of payees on the backs of such checks, testimony, of bankers to the effect that such signatures so indorsed on such check were not in the handwriting of the defendant, and that some of them were in the handwriting of plaintiff’s manager, was both competent and material.</p>

A wife is no longer regarded as her husband’s chattel. The husband is no longer regarded as the superior and the wife as the inferior as in the days of Blackstone. 2 Sharswood’s Bl. Com. p. 142; Rott v. Goehring, 33 N. D. 413. Extreme cruelty is the infliction by one party of a marriage of grievous bodily injury or grievous mental suffering upon the other. Comp. Laws 1913, § 4382. Mental suffering is ground for a divorce in the absence of any bodily injury.

Defendant appeals from a judgment and from an order denying a new trial. ' • The telegram is neither a contract nor sufficient memorandum of one. Hastings v. Webber, 56 Am.

<p>Evidence — witnesses — cross-examination of defendant as to arrests for prior similar offenses improper.</p> <p>1. In a civil action to recover damages for assault and battery, cross-examination of the defendant with reference to arrests for prior offenses of a similar nature is improper.</p> <p>Assault and battery — evidence as to binding over of defendant to district court inadmissible in civil action for damages.</p> <p>2. Where the defendant had been arrested on a criminal charge of assault, and upon preliminary hearing before a police magistrate had not testified in his own behalf and had been bound over to the district court, the action of the magistrate in binding him over is inadmissible in a civil action to recover damages for the same assault.</p> <p>Appeal and error — cross-examination of party as to prior offenses held prejudicial error.</p> <p>3. Where, during cross-examination of a party, counsel persists in pursuing an improper line of examination for purposes of affecting credibility, the questions asked relating to the witness’s commission of prior petty offenses, and the rulings thereon, being accompanied by intimations of possible admissibility for certain purposes, it is held that the asking of the questions and the pursuit of the line of examination was prejudicial error.</p>

<p>Deeds — evidence sustaining finding that deed was not delivered.</p> <p>In an action to determine adverse claims to certain land, plaintiff claimed title under a certain warranty deed from one Andrew Anderson, Ms father. Nine years after the date of the deed, and a few months after his father’s death, plaintiff recorded the deed. The defendant, administrator of the father’s estate with the will annexed, contended that no grant ever was made by the deed. It is conceded that it was signed and acknowledged. The sole issue in the case was whether or not it was delivered. The answer denied the delivery of it. There was evidence by and on behalf of plaintiff, tending to show delivery, and evidence on behalf of defendant, tending to show there was no delivery. The trial court made its finding of fact, to the effect that there was no delivery.</p> <p>Held, that such finding is sustained by the evidence, and hence the judgment should he and is affirmed.</p>

From a judgment of the District Court of Mercer County, Hanley, J., plaintiff appeals. A reservation is a clause in a deed whereby the grantor reserves some new thing to himself issuing out of the things granted and not in esse before. 4 Kent, Com. 468; Marshall v. Trumball, 28 Conn. 183, 73 'Am. Dec. 667; Winston v. Johnson, 42 Minn. 401, 45 N. W. 958; Devlin, Deeds, § 979.