Volume 48 — Minnesota Reports

Appeal by defendants Eve Tarbox and J. B. Tarbox from an order of the district court of Ramsey county, Cornish, J., made January 20, 1891, refusing a new trial. Defendant Eve Tarbox was the wife of J. B. Tarbox, and owned an undivided one-third interest in a lot in Florence addition to St. Paul. On April 2, 1890, she made a contract in writing under seal with Peter Olson, whereby she agreed to sell and convey the lot to him, and he agreed to build a house on it.

Appeal by defendant Cooley from an order of the district court of Hennepin county, Canty, J., made June 16, 1891, denying his motion for a new trial. This action was tried May 14, 1891, before the court, a jury having been waived. Findings were made and filed May 15, 1891, directing judgment for the plaintiffs against all the defendants for $422.28. 1878 Gr.

Appeal by Obadiah Hewson and Martin Scanlan, two of the defendants, from a judgment of the district court of Bamsey county, Kerr, J., entered May 23, 1891. This action was brought to enforce a mechanic’s lien for materials furnished and labor done by plaintiff upon an unfinished building situated on a lot in St. Paul.

Appeal by defendant George G. Harper from a judgment of the district court of Ramsey county, Kerr, J., entered March 10, 1891. This action was to foreclose a mortgage made June 14, 1886, by Cyrille Beffrey and wife to Helen Bartlett, upon a house and lot in St. Paul, to secure the payment of $1,000 and interest. Beffrey and wife conveyed the property to Josiah Fairchild, September 11, 1886, subject to the mortgage, which he assumed and agreed to pay.

Appeal by defendants Henry C. Belden and Edward D. Brown from a judgment of the district court of Hennepin county, Smith, J., entered March 11, 1891. Appellants owned two contiguous lots in Motor Line addition, Minneapolis, comprising less than one acre of land.

Appeal by defendant Eve Tarbox from an order of the district court of Eamsey county, Brill, J., made June 22, 1891, refusing a new trial. This action was begun in January, 1891, after the dismissal of a prior action reported ante, p. 1. Eve Tarbox, a married woman, owned an undivided third of a lot in Florence addition to St. Paul. In April, 1890, she entered into a contract with Peter Olson to convey it to him, and he agreed with her to build a house on it.

Appeal by defendant from an order of the district court of Ramsey county, Kelli/, J., made June 30, 1891, refusing a new trial. Action to recover for injuries received by plaintiff, January 27, 1888, while a passenger upon defendant’s Selby avenue cable line. The trailer in which he rode was going east, and was overturned near the foot of the hill on the curve into Third street. Plaintiff was standing at the time, holding himself steady by a hand strap.

Appeal by the proponent of the will of William L. Southard from the judgment of the district court of Benton county, Searle, J., entered August 1, 1891, refusing to admit the will to probate. The will was admitted to probate in' the probate court held at Boston, Suffolk county, Mass., July 15,1878.

Appeal by plaintiff from an order of the district court of Mower county, Farmer, J., made April 21, 1891, refusing a new trial. Wilkins & Smith, being insolvent, on June 19,1886, made an assignment under Laws 1881, ch. 148, of their individual and firm property, not exempt, to Frank I. Crane, the defendant, in trust for their creditors, and he accepted the trust.

Appeal by defendant from an order of the district court of St. Louis county, Stearns, J., made July 11, 1891, refusing a new trial. Action by John J. Moran, an employe, against the Eastern Bail-way Company of Minnesota, to recover damages for the loss of his arm and permanent injuries to his back. He was with others at work August 17, 1889, with a gravel train, filling the ground for a yard.

Appeal by the defendants from a judgment entered in the district court of Hennepin county, April 17, 1891, Stnith, J. Action under the statute to determine adverse claim to certain real estate in Mendelssohn, Hennepin county. The defendants Edward A. Finnegan, P. James Finnegan, and J. Henry Finnegan were minors, and their father, the defendant Andrew J. Finnegan, their guardian ad litem. All of the defendants answered jointly by the same attorney.

Appeal by plaintiff from an order of the district court of St. Louis county, Ensign, J., made August 22, 1891, denying her motion for a new trial. The action was ejectment to recover possession of an undivided half of certain town lots in the town of Maple Grove, in St. Louis county. The defendant denied plaintiff’s title and' right to possession, and claimed to have title himself in fee.

Appeal by defendant from an order of the district court of St. Louia county, Stearns, J., made August 4, 1891, denying his motion for a. new trial. The action was tried April 10, 1891.

Appeal by defendant Abigail Mullin from an order of the district court of Big Stone county, O. L. Brown, J., made May 29, 1891, refusing to vacate a judgment entered against her, and denying a new trial. Action brought by Henry W. Strong, under 1878 G. S. ch. 75, § 2, to determine the adverse claims of Joseph B. Comer and Abigail Mullin to two town lots in Graceville, Minn.

Appeal by plaintiff from an order of the district court of Polk county, Mills, J., made December 6, 1890, refusing a new trial. The action was replevin for a bar and back bar in the Canada Hotel, in Crookston, begun in justice court, where the plaintiff had judgment. Defendant appealed to the district court on questions of both law and fact. On the trial, December 6, 1890, after the evidence was all given, the judge instructed the jury to return a verdict for defendant.

Appeal by plaintiff from an order of the district court of Grant county, C. L. Broivn, J., made August 27, 1891, denying her motion for a new trial. Action to obtain possession of 4 horses, 10 cows, and other chattels detained by Tobias O... Sauby, value, $1,000. The answer denied that plaintiff owned or was. entitled to the possession of the property or any of it. The issues-were tried May 26, 1891, before a jury.

Appeal by plaintiffs from an order of the district court of Hennepin county, Hooker, J., made August 31, 1891, granting a new trial. This action was brought to foreclose a lien for $613.79 due plaintiffs for lumber sold and delivered by them' to defendant Anna Aldrich between July 29 and September 16, 1890, and used by her in building á house on a' lot in Highland Park addition, Minneapolis. The other lien claimants were all made defendants, and proved their ■claims.

Appeal by defendant from the judgment of the district court of' Hennepin county, Canty, J., entered July 28, 1891, for plaintiff for $575.58. On November 23, 1890, plaintiff, being at Butte, Mont., and unwell, got Mr. Murphy to go to the ticket agent of the Northern Pacific Railroad Company at that place, and purchase a ticket for him from Butte, Mont., to Kansas City, Mo., by way of St. Paul, Minn.

Appeal by defendant from an order of the district court of Hennepin county, Canty, J., made July 17, 1891, refusing a new trial. The action was brought by Louisa Perine, as general guardian of Edward G. Perine, an infant, against the Grand Lodge of the Ancient Order United Workmen, State of Minnesota, to recover $2,000 and interest on account of the death, on August 15, 1886, of his father, Sullivan C. Perine, while a member of Calhoun lodge No. 92, Minneapolis.

Appeal by plaintiff from an order of the district court, St. Louis county, Stearns, J., made July 2, 1891, dismissing the action. Held: and excluded the evidence. The plaintiff’s title-being held void, the court dismissed the action, and entered an order to that effect. Plaintiff tendered a case containing exceptions, and it was settled, and he appealed.

Appeal by plaintiff from an order of the district court of Eamsey county, Egan, J., made August 5, 1891, refusing a new trial. Action by Augusta Freeberg, as administratrix of the estate of Olgar Freeberg, deceased, against the St. Paul Plow-Works, a corporation, under 1878 G. S. ch. 77, § 2, as amended by Laws 1889, ch. 109. Deceased was employed by defendant as a plow fitter at its factory in the village of Gladstone.

Quo warranto on relation of Moses E. Clapp, attorney general, against the Federal Investment Company. The respondent claims to be a corporation organized in this state. •Its business is carried on by the admission of members. A person on becoming a member is required to pay $5 admission fee, and $2 monthly dues each month in advance, so long as he continues to be a member.

Appeal by plaintiffs from an order of the district court for Ramsey county, Wilkin, J., refusing a new trial after verdict of $3,690.03 for defendant, on the counterclaim pleaded in the answer.

Appeal by plaintiff from an order of the district court, Otter Tail county, Baxter, J., made August 25, 1891, refusing a new trial. Held: for a debtor to neglect to apply to be adjudged a bankrupt, and permit a judgment thereby to be rendered against him by default, and an execution issued thereon and levied, even though he had no defense, was suffering his property to be taken on legal process.

Appeal by plaintiff, Everett H. Dewey, from an order of the district court, Hennepin county, Lochren, J., made July 11, 1891, overruling a demurrer to the answer. John Paulson made his note, with interest coupons, February 1, 1888, to T. E. Penney for $450 and interest, and secured its payment by a mortgage on 80 acres of land in Brookings county, South Dakota. On March 23, 1888, plaintiff bought this note and mortgage, and they were duly assigned to him.

<p>Proximate Cause — Carrier’s Negligence Causing Fright and Convulsions__If the negligence of a carrier place a passenger in a position of such apparent imminent peril as to cause fright, and the fright causes nervous convulsions and illness, the negligence is the proximate cause of the injury, and the injury is one for which an action may be brought.</p> <p>Sick and Infirm Passenger — Measure of Damages. — A passenger injured by negligence of the carrier is entitled to recover to the full extent of the injury so caused, without regard to whether, owing to his previ- « ous condition of health, he is more or less liable to injury.</p>

Appeal by defendant E. L. Mabon from an order of the district court, Ramsey county, Brill, J., made January 6, 1891, sustaining plaintiff’s demurrer to his answer. The St. Paul Sanitation Company, a trading or business corporation, created under 1878 G. S. eh. 34, § 109, was on July 17, 1889, on petition of creditors, adjudged insolvent, and a receiver of its property appointed, pursuant to Laws 1881, ch. 148, as amended by Laws 1889, ch. 30.

Appeal by John F. Meagher, Amerst H. Wilder, P. H. Kelly, and other stockholders of Seymour, Sabin & Go. from an order of the district court, Washington county, made July 14, 1891, overruling their demurrer to the supplemental complaint of the Minnesota Thresher Manufacturing Company filed in the insolvency proceedings pending against said first-named corporation. Seymour, Sabin & Co. was a business corporation organized under 1878 G. S. ch. 34, § 109.

Appeal by D. M. Sabin, C. N. Nelson, George E. Finch, and others, former stockholders of Seymour, Sabin & Co., from an order of the district court, Washington county, made July 16, 1891, overruling their demurrer to the supplemental complaint of the Minnesota Thresher Manufacturing Company, filed in the insolvency proceeding pending against said first-named corporation.

Appeal by Charles D. Gilfillan, John Kerwin, Henry B. Willis, and others, holders of common stock in the Northwestern Manufacturing & Car Company, from an order of the district court, Washington county, made July 14, 1891, overruling their demurrer to the supplemental complaint of the Minnesota Thresher Manufacturing Company filed in the insolvency proceedings pending against said first-named corporation.

Appeal by defendant city of Albert Lea from an order of the district court of Freeborn county, Farmer, J., made August 10,1891, refusing a new trial. Action by John H. Graham against the city of Albert Lea to recover damages for personal injuries received about half past 7 o’clock in the evening, October 14, 1890, while walking east on the south side of Clark street, in the westerly part of that city. The issues were tried May 20, 1891. Plaintiff had a verdict for $4,000.

Appeal by Frank I. Crane, assignee of Wilkins & Smith, from an ■ order of the district court, Mower county, Farmer, J., made August. 15, 1891, refusing a new trial. W. T. Wilkins and Fay E. Smith were, in 1882, partners doing a private banking business at Austin, Minn. Henry Wheeler left money with them, and instructed them to loan it out for him on mortgage and indorsed notes.

Appeal by plaintiffs, J. E. O’Brien et al., from an order of the district court, Polk county, Mills, J., made January 31, 1891, refusing a new trial. Replevin commenced in justice court, Polk county, by J. E. O’Brien et al., December 27,1889, against William Findeisen, to recover possession of 147 bushels of wheat; value, $75. Plaintiffs had judgment in the justice court. Defendant appealed to the district court, where it was tried, July 18, 1890.

Appeal by defendants from an order of the ■district court, Bamsey county, Brill, J., made April 30, 1891, overruling their demurrer to the complaint. Action by Cornelius G. Kolff, plaintiff, against the St. Paul Fuel Exchange and its directors, to restrain them from trying him for a violation of certain by-laws of the corporation. Its charter and bylaws were copied into and made part of the complaint, and, so far as materia], are stated in the opinion.

Appeal by plaintiff from an order of the district court, Hennepin , '«county, Smith, J., made August 8, 1891, setting aside a verdict and granting a new trial.

Appeal by defendant from a judgment of the district court, Traverse county, G. L. Brown, J., entered August 5, 1891. This action was replevin for 4ft bushels of wheat, value, $39.60, commenced in justice court, March 24, 1891.

Appeal by James L. Lombard from a final decree of the district. court, Hennepin county, Pond, J., made June 27, 1891, under 1878-G. S. eh. 81, § 36, and cb. 90, § 8. Held: and that the lots be sold to pay the judgment. The lots were sold by the sheriff, May 19, 1890, and Lombard purchased them at the sale for $678.65, and the court confirmed the sale by order entered May 24, 1890.

Appeal by defendants from an order of the district court, Eamsey county, Cornish, J., denying a new trial. Action for rent upon an alleged oral lease by the Minnesota State Agricultural Society, plaintiff, to Swanson Bros., defendants. The subject of the lease was the dining-hall privilege at the State Fair grounds. Defendants alleged that the lease was made with them and one Wylie as partners as Swanson & Wylie, and that it included steam for cooking purposes.

Appeal by defendant, the St. Paul City Railway Company, from an order of the district court, Ramsey county, Otis, J., made May 9, 1891, refusing a new trial. Action brought by Hagbarth Sahlgaard, as administrator of the estate of John Swainson, deceased, against the St. Paul City Bail-way Company, a corporation, to recover damages for negligently causing Swainson’s death, January 10, 1890.

Habeas corpus issued out of .this court, December 1, returnable December 4, 1891, on petition of William B. McCue, who was then in the custody of the sheriff of Ramsey county. Gates A. Johnson, building inspector, made complaint on oath, November 30, 1891, to the municipal court of the city of St. Paul, that said William B. McCue, in violation of Sp. Laws 1889, ch. 375, .as amended by Sp.

Appeal by defendant from an order of the district court, Benton county, Baxter, J., made June 23, 1891, refusing a new trial. Leander S. Ketehum and William H. Coffin, of the state of New York, purchased of the United States, July 1, 1856, section 23, in township 38 north, of range 30 west, in Benton county, and held it as tenants in common. On May 11, 1860, Coffin and wife quit-claimed to Ketehum his interest in the north half of the land, but the deed was never recorded.

Appeal by plaintiff, Fred. M. Studley, administrator of the estate of Mary Kneasey, 'deceased, from an ’order of the district court of Bamsey county, Wilkin, J., made November 19, 1890, refusing a new trial. This action was brought under 1878, G. S. ch. 77, § 2, to recover $5,000, damages for the negligent killing of Mary Kneasey, June 20, 1887, on defendant’s railroad track near the southeasterly end of Lake Phalen, within the corporate limits of the city of St. Paul.

Appeal by plaintiff, A. J. Elmier, from an order of the district court of Isanti county, Hooker, J., made November 25, 1890, refusing a new trial. E. Brant and Andrew E. Brant, his son, were partners under the firm name of E. Brant & Son, in getting out pine saw logs and other timber and doing blacksmith work.

Appeal by defendants, Frank Burke, Jr., Bufus P. Edson, and Wallace Warner, from the judgment of the district court of St. Louis county, Stearns, J., entered May 28,1891, adjudging that the plaintiffs, Hattie M. Backus and Louisa B. Smith, are owners of the land in dispute. Sextus Hoffman owned 90 acres of land in the northeast quarter of section 17, township SO, range 14, in St. Louis county, Minn.

Appeal by defendant, the township of Maple Grove, from a judgment of the district court of Hennepin county, Canty, J., entered August 28, 1891, in favor of plaintiff, David Marchand, for $127.08' damages and costs. Plaintiff owned the northwest quarter of the northeast quarter, and the northeast quarter of the northwest'quarter, of section fourteen, (14,) in township one hundred and nineteen (119) north, of range twenty-two (22) west.

Appeal by defendant, Minnesota Fire Association, from a judgment of the district court, Hennepin county, Canty, J., entered August 13, 1891, in favor of Isaac Mitchell and Samuel Picard, plaintiffs, for $1,240.60. March 11, 1889, defendant issued to plaintiffs its policy of insurance for $2,500, for one year, on a stock of clothing manufactured and being manufactured, and clothing supplies, situated in the second loft of the building No. 626 Broadway, New York.

Appeal by defendant, the Chicago, Milwaukee & St. Paul Railway Company, from an order of the district court, Mower county, Farmer, J., made August 15, 1891, refusing a new trial. The plaintiff, Soren Steffenson, was a section hand at work on August 13, 1888, for defendant under Charles Bush, the section foreman.

Appeal by plaintiff, Edward C. Baumann, from an order of the . district court of St. Louis county, Stearns, J., made September 28, 1891, refusing a new trial. Evar 0. Wohlin, of Duluth, on April 20, 1891, made an assignment to plaintiff under Laws 1881, ch. 148, of all his nonexempt property, in trust to pay those of his creditors who should release the unpaid residue of their claims.

Appeal by defendants Horace Williston, James Charnley, A. S. McKinley, and William McKinley from an order of the district court of St. Louis county, Stearns, J., made May 9, 1891, refusing a new trial. The defendants were partners in the business of getting out pine logs1 and sawing them into lumber at their mill at Mesaba, in St. Louis county, and operated a short line of railroad to bring the logs to the mill from the woods.

Appeal by defendant, Albert Bailey, from an order of the district court of Traverse county, G. L. Brown, J., made September 1, 1891, denying his motion for a new trial. Plaintiff, Bessie I. Van Doren, brought this action to recover possession of a span of horses and a harness, and obtained a verdict at the trial in June, 1891.

Appeal by plaintiffs, Harry W. Jones, Sarah M. Garter, and Rebecca J. Dean, from the judgment of the district court of Scott county, Cadwell, J., entered September 17, 1891, in favor of Stephen N. Bliss and Margaret R., his wife. The plaintiffs are the children and heirs at law of Enos Jones, who died intestate June 18, 1889, in Oregon.

Appeal by plaintiff from an order of the district court of Hennepin county, Hooker, J., made May 11, 1891, allowing Charles Gibson to become a party and prove his claim under 1878 G. S. ch. 76, § 23, after the time limited by the court had expired. The Bay St. Louis Syndicate is a corporation. It owned the Hotel St. Louis on Lake Minnetonka, near Minneapolis. During the spring and summer of 1888,_ H. A. Spooner furnished materials and did work for it repairing the hotel.

Appeal by plaintiff, Jonas F. Brown, from a judgment of the district court of Hennepin county, Pond, J., entered January 2, 1891, dismissing the action on the merits, with costs. The action was brought against Sumner W. Farnham, surviving partner of the firm of Farnham & Lovejoy, to recover the contents of a promissory note for $12,000 given plaintiff by that firm.

Appeal by defendant, Times Printing Company, from an order of the district court of Hennepin county, Canty, J., made August 4, 1891, denying its motion for a new trial. Action brought by D. A. McArthur to recover damages sustained by him from the breach of a contract made by defendant with him.

Appeal by defendants, Tams Bixby and B. C. Elliott, from an order of the district court of Goodhue county, Williston, J., made September 5, 1891, refusing a new trial.

Appeal by plaintiffs, John F. McCarthy and John P. Courtney, from an order of the district court of Hennepin county, Hicks, J., made September 28, 1891, granting the motion of defendant H. F. Balch for a new trial. Defendant Llewellyn Groff employed plaintiffs, November 7,1887, to furnish materials for, and to do the plumbing and gas fitting for, a house he was constructing on a lot owned by him in Minneapolis.

Appeal by the defendant, the city of St. Paul, from an order of the district court of Bamsey county, Kerr, J., made September 10, 1891, overruling its demurrer to the complaint. The complaint states that on April 22, 1890, the plaintiffs William S. Moore and A. H. Anderson were partners in business carrying on an employment agency for males at No. 283 Sibley street, St. Paul.

Appeal by Harriet O’Brien and James K. O’Brien, her husband, two of the defendants, from an order of the district court of Henne-, pin county, Hicks, J., made September 26, 1891, denying a new trial and refusing to modify its findings of fact.

Appeal by plaintiffs Emma A. Kurtz and George Leidner from a judgment of the district court of St. Louis county, Stearns, J., entered August 22, 1891, adjudging that plaintiffs take nothing by their suit. George Leidner, Sr., died intestate May 4, 1860, seised of the S. J of the S. W. J of section 7, and the N. W. -J of the N. W. J of section 18, in township 49 N., of range 14 W., in Duluth.

Appeal by defendants, Harry B. Wood and Willard W. Morse, from an order of the district court of Hennepin, county, Lochren, J., made September 30, 1891, refusing a new trial. The plaintiffs were John H. Brigham, Frederick G. Brigham, and . George C. Card. The property insured and destroyed was crates of imported crockery. The issues were tried June 3, 1891. The jury returned a verdict for plaintiffs, and assessed their damages at $450. The defendants moved for a new trial.

Appeal by plaintiff, the Merchants’ National Bank of Chicago, 111., from an order of the district court of Washington county, Crosby, J., made March 30, 1891, sustaining a demurrer to the complaint.

Appeal by plaintiff, the Merchants’ National Bank of . Chicago, 111., from an order of the district court of Washington county, Crosby, J., made March 30, 1891, sustaining the defendants’ demurrer to the complaint. •This action is against the Northwestern Manufacturing. & Car Company, Maurice Auerbach, and about 70 others, its, stockholders, under 1878 G. S. ch. 34, § 9, to recover from them $73,729.69 and interest, due the bank from the said Northwestern Manufacturing & Car…

Appeal by plaintiff, Henry A. Bruns, from an order of the district court of Clay county, Mills, J., made June 15, 1891, 'refusing a new trial.

Appeal by defendant, Julia A. Haworth, from a judgment of the district court of Hennepin county, Lochren, J., entered March 12, 1891. The plaintiff, Silas Overmire, of Minneapolis, was employed by Lysander L. Haworth, of Illinois, in March, 1889, to trade $6,000 of stock in an Illinois coal company for real estate in Minneapolis.

<p>Appeal by plaintiff, John M. Finnegan, from an order of tbe district court of Hennepin county, Lochren, J., made April 9, 1891, refusing him a new trial.</p>

Appeal by defendant Imperial Fire Insurance Company of London from an order of the district court of Eamsey county, Cornish, J., made June 22, 1891, refusing a new trial. Plaintiff, Powers Dry Goods Company, was on November 27,1890, at St. Paul, Minn., a business corporation dealing in dry goods at wholesale, and had on that day in its building, on Fourth street, merchandise of the value of $345,275.45.

Appeal by defendant, St. Paul City Eailway Company, from an order of the district court of Eamsey county, Egan, J., made June 26, 1891, refusing a new trial. 1 The plaintiff, Eobert B. Lorimer, was employed as conductor on defendant’s electric street cars, Grand avenue line, St. Paul. At the west end of the line the motor car is detached, and taken through the switches to the east end of the trailer, and again attached for the return trip.

Appeal by intervener, Samuel A. Booth, from an order of the district court of Hennepin county, Pond, J., made September 30, 1891, denying, his motion for a new trial, On January 3, 1890, Charles E. Cottrell was a manufacturer of flour barrels at Minneapolis, and had there in his cooperage warehouse a large quantity of barrels and material for making barrels. He was largely indebted.

Appeal by plaintiff, the village of Glencoe, from an order of the-district court of McLeod county, Cadwell, J., made August 17,. 1891, refusing a new trial. This action was ejectment to recover the possession of an alley one rod wide between lots three (3) and six, (6,) in block thirty-three, (33,) in Franklin, now included in Glencoe, Minn. The answer was adverse possession for more than 20 years next before the commencement of the action.

Appeal by defendant, Minneapolis & Northern Elevator Company, from an order of the district court of Hennepin county, Hooker, J., made August 3, 1891, overruling its demurrer to the complaint. This action was commenced January 14, 1891.

Appeal by plaintiff, the Sandwich Manufacturing Company, from a judgment of the district court of Rock county, Perkins, J., entered June 1, 1891, in favor of the defendants. ' This action was commenced September 30, 1889, to foreclose a mortgage made by Julius Zellmer and his wife, Fredericke Zellmer, to plaintiff on September 11, 1882, upon a quarter section of land belonging to him, and on which they resided. The'north half of the land was his homestead.

Appeal by William Frisbie, as executor of the last will and testament of Josephine 0. Frisbie, deceased, from a judgment of the district court of-Blue Earth county, Buckham, J., entered September 31, 1891. Josephine 0. Frisbie was the wife of William Frisbie. She died at Mankato, Minn., May 1, 1889, of exophthalmic goiter. She was 44 years old, and of sound and disposing mind and memory.

Appeal by plaintiffs, William H. Burns and Willis B. Shaw, from an order of the district court of Ramsey county, Kelly, J., made September 19, 1891, refusing a new trial. The defendant Thomas Tyrer was the owner of a lot in West St. Paul, and on April 21, 1890, made a contract with defendant Charles B. Lawton regarding it, whereby Lawton agreed to construct a dwelling house thereon.

Appeal by plaintiff, August Johnson, from an order of the district court of Hennepin county, Smith, J., made August 4, 1891, refusing a new trial. The defendant, the Northwestern Telephone Exchange Company, erected poles with cross arms, and strung its telephone wires thereon, in Central avenue, a public street in the business portion of East Minneapolis. One of the poles, bearing about 100 wires, stood at a curve in the street.

Appeal by plaintiff, Fred. W. Eder, from an order of the municipal court of the city of St. Paul, H. W. Cory, J., made August 28, 1891, refusing a new trial. Action to recover of Thomas Eeilly, defendant, pay for 24,000 sewer brick at $8.75 per 3,000. They were manufactured by plaintiff at Chaska, Minn., and shipped by cars to defendant, a contractor at St. Paul. He denied that he bought or received any more than 5,000 brick.

Appeal by defendants Harry B. Wood and Willard W. Morse from an order of the district court of Hennepin county, Smith, J., made September 25, 1891, refusing a new trial. The plaintiff, Clara G. Conover, brought this action to recover the value of her goods stored with defendants, and destroyed by fire July 15,1890, in the New Security warehouse. The statement of facts in Brigham v. Wood, ante, p. 344, obviates the necessity of any further statement here.

Appeal by defendant, Anne Birdsall, from an order of the district court of Wright county, Pond, J., made September 5, 1891, refusing a new trial. Both mortgages were given for purchase money, and are on an equal footing. Defendant’s mortgage, being prior in date and in record, is superior in equity. Jacoby v. Crowe, 36 Minn. 93. The description of the mortgaged premises in the notice of sale omitted the exception of the west 25 feet.

Appeal by plaintiff, George E. Eobinson, from a judgment of the district court of Hennepin county, Lochren, J., entered September 26, 1891, dismissing the action on the merits. Plaintiff was in July, 1890, the owner of a lot on Washington avenue, Minneapolis, situated a short distance north of the railway tracks of defendant, where they cross that street.

Appeal by defendant, George N. Kneisley, from an order of the district court of Hennepin- county, Hicks, J., made September 20, 1890, overruling his demurrer to the complaint. Action by John W. Shackleton against George N. Kneisley to compel an accounting and to wind up the affairs of a partnership.

Appeal by defendant the St. Paul, Minneapolis & Manitoba Railway Company from an order of the district court of Hennepin county, Lochren, J., made April 19, 1891, refusing a new trial.

Appeal by plaintiff, Charles T. Allen, from a judgment of the district court of Hennepin county, Hooker, J., entered September 19, 1891, dismissing the action. On August 7, 1890, the defendants Elliott C. Allen and Bertha M. Allen, his wife, in consideration of $250 paid to them, deeded to plaintiff a lot in Minneapolis. They covenanted in the deed that they were well seised in fee of the premises, and had good right to sell and convey the same.

Indictment of Henry Stein for perjury. His demurrer thereto was overruled, Canty, J., July 25, 1891, and, the questions of law arising thereon being important, the case was reported, with defendant’s… Held: in State v. Raymond, 20 Iowa, 583, that this averment is only necessary where the assignment of perjury is upon the statement by the accused of his belief, or denial of his belief, of the alleged false matter.

Appeal by plaintiff, Charles H. Benedict, as administrator with the will annexed of the estate of Josephine M. Boy, deceased, from a judgment of the district court of Bamsey county, Egan, J., entered September 28, 1891.

Appeal by defendant, James H. Pottle, from an order of the district court of Hennepin county, Lochren, J., made July 28, 1891, refusing a new trial. Emil V. Koessel was on May 10, 1890, and long had been, a butcher and keeper of a meat market in Minneapolis, Minn.

Appeal by plaintiffs, Edward H. Owings and Thomas T. Owings, from an order of the district court of Ramsey county, Egan, J., made June 27, 1891, refusing a new trial. In 1851 one Vital Guerin owned a large tract of land lying west of and adjacent to what was known as the “Bazille & Guerin Line,” running north, 41° 35' west, in Section 31, T. 29, R. 22, in St. Paul, Minn.

Appeal by plaintiff, Walter C. Fullington, from a judgment of the district court of Hennepin county, Hicks, J., entered September 20,. 1891. Held: and the decision was based upon the holding, that there never was any conveyance or assignment of the bonds by the company to Sibley, but that he simply held them as the agent of defendant. Harlan v. Maglaughlin, 90 Pa. St. 293. About the only state tending to sustain such a doctrine as appellant contends for is Massachusetts.

Appeal by plaintiff, the Trustees of the German Evangelical Society of St. Cloud, Minn., from an order of the district court, Stearns county, Searle, J., made September 4, 1891, refusing a new trial. cited Trustees of East Norway Lake N. E. L. Church v. Halvorson, 42 Minn. 503; Fadnessv. Braunhorg, 73 Wis. 257; Lucas v. Case, 9 Bush, 297; Landis’ Appeal, 102 Pa. St. 467; Ehrenfeldt’s Appeal, 101 Pa. St. 186. cited McGinnis v. Watson, 41 Pa.

John Wetzel and Michael Eyan presented to this court on October 15, 1891, their information, duly verified, stating that thirty persons, claiming to be residents and legal voters, filed a petition June 1, 1891, with the board of county commissioners of Hennepin county, asking that certain territory in that county be incorporated under the name of Village of Minneapolis Park, pursuant to Laws 1885, ch. 145, as amended; that the proceedings had thereon were irregular in…

Appeal by defendant Michael A., Harmon from an order of the district court of Hennepin county, Smith, J., made June 22, 1891, overruling his demurrer to the complaint.

Appeal by Ella Dearborn and James Hess, proponents of the will of Timothy Hess, deceased, from an order of the district court of Winona county, Start, J., made January 23, 1891, refusing a new trial in the matter of the probate of the will. Timothy Hess, deceased, made his will September 24, 1888, at the house of Theodore Searl, a justice of the peace, at Witoka, in Winona county, Minn.

Appeal by defendant the Duluth, Bed Wing & Southern Bailroad Company from an order of the district court of Goodhue county, Crosby, J., made April 23, 1891, refusing it a new trial. Held: in Meyer v. Berlandi, 39 Minn. 438, was not repealed by laws 1887, ch.' 170. The railroad company demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action against it, and because Keating Bros. & Co. were not made parties to the action.

Appeal by defendant, the Chicago, St. Paul, Minneapolis & Omaha Railway Company, from a, judgment of the district court of Scott county, entered upon default, December 5, 1890, in favor of plaintiff, John Roberts. Appeal also by defendant from an order made in the same action by Hicks, J., April 15, 3891, discharging an order to show cause why said judgment should not be vacated.

Appeal by plaintiff, Patrick McCarthy, from an order of the district court of Eamsey county, Otis, if., made June 12, 1891, refusing a new trial. At Gladstone, Mich., on September 12, 1889, plaintiff was temporarily employed to assist in loading defendant’s steamer E. P. Wilder with flour in barrels. He was in the hold of the vessel, receiving the barrels as they were lowered through the hatchway, and was unhooking the clamps from them, and rolling them back to be stowed.

Appeal by plaintiff, Stephen 0. England, from an order of the district court of Grant county, C. L. Brown, J., made August 7, 1891, refusing his application for a new trial. The defendants, Carrie Thompson and Thore Thompson, her husband, were on January 26,1887, indebted to plaintiff somewhat over $300, and on that day they bought of him a horse, for which they agreed to pay him the further sum of $125.

Appeal by plaintiff, Emmett P. Browning, assignee, from an order of the district court of Hennepin' county, Pond, J., made July 10, 1891, refusing a new trial. The Price-Condit Fence Company was incorporated October 1,1886, under 1878 G. S. ch. 34, tit. 2. Its capital stock was $80,000, divided into 1,600 shares of $50 each. The corporation issued to defendant, William H. Hinkle, on January 13,1887, fifty of these shares.

Appeal by plaintiff, Thomas Mackellar, from an order of the district court-of Hennepin county, Lochren, J., made September 12, 1891, refusing a new trial. . . The plaintiff recovered a judgment on July 9, 1890, in the district court, Hennepin county, against the Anchor Manufacturing Company, of Detroit, Mich., for $16,544.06, and caused a writ of execution to be issued thereon. This writ was returned wholly unsatisfied.

Appeal by Frank C. Moren from a judgment of the municipal court of the city of Minneapolis, Elliott, J., entered May 9,1891, that he was guilty of drawing a lottery. cited Ex parte Shobert, 70 Cal. 632; Kohn v. Koehler, 96 N. Y. 362; Yellow Stone Kit v. State, 88 Ala. 196. cited ü. S. v. Olney, 1 Abb. (U. S.). 275; Wooden v. Shot-well, 23 N. J. Law, 465, 24 N. J. Law, 789; Seidenbender v. Charles, 4 Serg. & E. 151; Bell v. State, 5 Sneed, 507, 509; Bish. St. Crimes, I 955.

Appeal by plaintiff, Asa Guilford, from a judgment of the municipal court of the city of Minneapolis, Mahoney, J., rendered March 5, 1891,… Held: and disposed of by, the said party of the fourth part, as trustee, and subject to which agreements and conditions the bonds secured hereby are to .be issued, and the bonds so issued are to be held by each and every holder of the said bonds, and the agreements and covenants of the said party of the first part in respect to the said…