Volume 48 — North Dakota Reports

Application in the nature of certiorari for the exercise of the superintending control of this court. Minute order entered directing the transfer of the criminal cause to Pierce county and for the designation of a trial judge by the district judges of that judicial subdivision.

From a judgment of the district court of Rafnsey County, Buttz J. plaintiff appeals. The appeal in this case is- duplicitous, as it attempts to apneal from a judgment dismissing the action and an order refusing to grant a temporary injunction. National Surety Co. v. Granmer, 27 S. D. 515; 131 N. W. 864. The regular record on appeal must be accepted as true and cannot be impeached by affidavits or statements outside the record. 4 C. J. 512-514.

Action to determine adverse claims in District Court, Logan County, Allen J. The plaintiff has appealed from the Judgment and it has demanded a trial de novo. “The proceedings in foreclosure by advertisement is one in derogation of common law and the remedy must be strictly and closely pursued.” Clifford v. Tomlison, (Minn.) 64 N. W. 381; 84 N. W. 1024 (Minn.) ; 16 N. W. 499 (Minn.).

<p>Appeal from the district court of Ramsey County, Burr, J.</p>

It is not necessary to file certified copies in another state. Wilson v. Rustad, (N. D.) 75 N. W. 260 and cases cited; Keenan v. Stenson, Minn., 20 N. W. 364 and cases cited. The new note was not a payment of the instrument in absence of an agreement to that effect. 7 Cyc. and cases cited; Wirtz v. Wolter, 32 N. D. 364.

McKenna, J. The petitioners of the original petition should not be permitted to withdraw their names except upon a showing that, at the time they signed their names, they did so under misunderstanding of facts produced by misrepresentation. School Dist. v. School Dist. 63 Ark. 543, 39 S. W. 850; Re. Independent School Dist. 2 Chest Co. Rep. (Pa.) 132.

<p>From a judgment of the District Court of Ransom County, McKenna, J., defendants appeal.</p> <p>Knowledge of the fact of tenancy is of itself sufficient to charge notice of all the incidents of tenancy: 2 Devlin, Real Estate, 3d ed. ¶ 775; Pom. Eq., 4th ed. ¶ 618-625 and cases cited; Schumacher v. Truman (Cal.) 66 Pac. 591; Aden v. Vallejo (Cal.) 72 Pac. 905; Dutton v. McReynolds (Minn.) 16 N. W. 468; Lance v. Gorman (Pa.) 20 Atl. 792.</p> <p>It was plaintiff’s duty to make due and reasonable inquiry. Betts v. Tetcher (S. D.) 46 N. W. 193; Stevenson v. Campbell (111.) 57 N. E. 414; Crooks v. Jenkins (Iowa) 100 N. W. 82.</p> <p>Possession by a tenant is constructive notice of the landlord’s rights and equities therein, as well as notice of the tenant’s rights and equities. 2 Devlin, Real Estate, 3d ed. ¶ 775; Pom. Eq. 4th ed. 618-625, and cases cited; Dutton v. Warschaur (Cal.) 82 Am. Dec. 765; Peasley v. McFadden (Cal.) 10 Pac. 179; Mallet v. Kaehler (111.) 30 N. E. 549; Bowman v. Anderson (Iowa) 47 N. W. 1087.</p> <p>“A provision retaining title and possession of all crops until division is of the nature of a chattel-mortgage lien on the lessee’s share, and such lessor has no greater or different rights thereunder than a mortgagee’s under a chattel mortgage.” North Dakota Grain & Land Co. 170 N. W. 307; Carlson v. Davis, 178 N. W. 455.</p>

<p>Action in District Court, Cass County, Cooley, J. The defendants haAre appealed from the preliminary decree.</p> <p>The liability of a vendee in an executory contract for interest and taxes is determined and measured by his right to the possession of the land, and the rents and profits derived therefrom. 39 Cyc. 1630; Frits v. O’Brien Land Co. (Minn.) 136 N. W. 301, and note to the same case in 43 L.RA. (N. S.) si.</p> <p>It is clear from the contract between the parties that they understood and intended that the interest from November 1, 19x9, should be computed to the date the deal was closed and paid in cash at that time. 13 C. J. 546; Moore v. Beiseker, 147 Fed. 367; Young v. Metcalf Co. 18 N. D. 441.</p> <p>It is within the sound discretion of the court to determine under what circumstances a strict foreclosure of the contract will be awarded to the complainant, and the time that will be given the defendant within which to comply with the conditions laid down by the court. 3 Pom. Eq. Jur. 4th ed. § 1227, § 1262, pp. 2947, 2948, 3046; Wiltsey, Mortg. Foreclosures, § 977, p. 1361; Baldwin v. McDonald (Wyo.) 157 Pa^. 35.</p>

Lembke, J. Reversed and remanded. The evidence must affirmatively establish circumstances from which the inference arises fairly that the accident resulted from the want of some precaution which the defendant ought to have-taken. Wabash, St. h. & P. R. Co. v. Locke, 112 Ind. 404; 2 Am. St. Rep. 193, 14 N. E. 391 -md cases cited. There is no proof showing parties were engaged in interstate commerce at the time of the injury.

“The' crops insured under this act shall consist of all crops grown on cultivated land actually cropped, subject to and paying the taxes herein specified.” Chap. 160 of the Laws of . 1919 as amended by chap. 38 of the laws of the Special Session of 1919 (§5). The court will take judicial notice of the fact that in this state there is a large amount of unbroken land. § 7938 subdss. 35, N. D. Comp. Daws 1913.

The positions of the vendor and purchaser, are analagous to that of a mortgagee and mortgagor, and identical with that in which the mortgagee takes a deed .as security for the performance of the mortgagor’s obligations. Miller v. Shelburn, 15 N. D. 182, 107 N. W. 51; Jewett, v. Black, 82 N. W. 375, 60 Neb. 173, Dorsey v. Hall, 7 Neb. 460.

Plaintiff appeals from an order granting defendant’s motion for a new trial. The tenant is the owner of all of the straw on this land, regardless of such provision in the contract. See the late decision of -this Court. Minneapolis Iron Store Co. v. Branum, 36 N. D. 355; 162 N. W. 543. That it is a general rule of law that the tenant is the owner of the straw. Munier v. Zachary, 114 N. W. 525; 18 L.R.A. (N. S.) 572, and note to this case. Craig v. Dale, found in 37 Am.

All sales of real estate of wards must be for cash, or for part cash and. part deferred payments not to exceed three years, bearing date from date of sale as in the discretion of the judge is most beneficial to the ward. § 8911 Comp. Laws 1913; 12 R. C. L. § 26 p. 1127. A guardian may lawfully exchange personal property of the ward for other personal property without order of the court when a prudent man in the conduct of his affairs would have done so.

The legislature, acting solely by itself, cannot change the fundamental law. Changes in our constitution must have the approval of the electors. State v. Dahl, N. D. 6, 82. This appeal presents squarely a constitutional question, and it is the right and duty of .the judiciary to decide it. 8 Cyc. p. 728b and cases cited; Varney v. Justice, 86 Ky. 596;' Daily v. Swope, 47 Miss. 367; Newell v. People, 7 N. Y. 9.

From a judgment of the District Court of Williams County, Fisk, J. plaintiff appeals. The Welo entry was a necessary part of plaintiff’s chain of title and should have been pleaded, and not having been pleaded, evidence of it was and is inadmissible.

“Where exemplary or punitive damages are sought in an action for false imprisonment, proof of good motives may go in mitigation. * * Where more than actual damages are claimed, defendant may show that he acted prudently, wisely or in good faith. Ill Elliott, Evidence, § 2109; note 54 A. D. 270'; Livingston v. Burroughs, 33 Mich. 511. The damages awarded against all three defendants were excessive, and appear to have been given under passion or prejudice.

Action of mandamus in District Court, Nuessle, J. From an order sustaining a motion to quash the petition, the petitioners have appealed. “There is no doubt in the power of either branch of Congress or legislature to appoint a committee of investigation without concurrence of the other branch, to act during the session.” Re Chapman, 166 U. S. 66i; 41 D. Ed. 1154; Anderson v. Dunn, 6 Wheat. 204; Ex Parte Dalton, 44 Ohio State, 142.

Action in District Court, Stark County, Lembke, J. Defendant has appealed from the judgment in favor of the plaintiff.

Action in District Court, Case County, Cooley, J. From a judgment of dismissal the plaintiff has appealed. National banks have power to receive special deposits and their officers have authority to bind the bank by agreements made in relation thereto. First Nat’l. Bank of Carlisle v. Graham, ioo U. S. 699; 25 D. ed. 750; 36 Am. Rep. 592; McCormick v. Market Nat’l. Bank; 165 U. S. 538; 41 L. ed. 817 Minn. Mutual Life Ins.

Defendants appeal from an order overruling a demurrer to a petition for the probate of a will alleged to have been fraudulently destroyed. “The construction placed upon the statute by the courts of the state from which it was adopted is regarded as persuasive, and indeed, is entitled to very great weight, with the courts of the adopting state, but not as conclusive.” From.Text, 36 Cyc. 1156.

The court erred in refusing to permit the defendants to show by expert testimony that the cattle were afflicted with tuberculosis at the date of their purchase and in-restricting the use of Exhibits H and I. State v. McKone, 31 N. D. 547; Bixby v. Omaha Ry. Co. 75 N. W. 182 (la.) and cases cited therein. An expert is not confined to his own examination or observation in ■expressing an opinion of an expert nature.

From a judgment of the District Court of Divide County, Leighton, J., defendant appeals. “As abstracts of title should show every instrument effecting the title which is a matter of record, and if an abstracter fails to show certain instruments that cast a cloud upon the title and the person who procures such abstract is damaged thereby, the Abstract Company is liable.”. Security Abstract Co, v. Longacre, 76 N. W. 1073.

From a judgment of the District Court, Golden Valley County. Hanley, J. Plaintiff appeals.

<p>Action in District Court, Ramsey county, Burr, J., from an order sustaining a demurrer to the complaint the plaintiff has appealed.</p>

<p>Appeal from the District Court of McLean county, Nuessle, J.</p> <p>If under a contract for the sale of specific goods the seller is bound to do something to the goods for the purpose of putting them in a deliverable state, that is, into a condition in which the buyer is bound to accept them unless a different intention appears; the property does not pass until such thing is done. Simpson v. Perfett, 36 N. D. 526; 162 N. W. 900.</p> <p>Since the property was not as warranted, which is a fact found by the court, it was a bar to recovery for the purchase price. Simpson v. Perfett, 36 N. D. 526; 162 N. W. 900; Holbert v. Weber, 161 N. W. 560 (N. D.); D. M. Osborn & Co. v. Martin, 56 N. W. 905, (N. D.).</p> <p>And no recision is necessary. Nat’l Cable Mfg. Co. v. Filbert, 140 N. W. 741, (S. D.); 13 C. J. 619.</p>

<p>Sheriffs and constables — discovery of lost execution in clerk’s custody held to warrant vacation of amercement judgment against sheriff for failure to return.</p> <p>Where a judgment was entered against a sheriff in amercement proceedings and where the trial judge, at the time of ordering judgment, directed a stay of execution for thirty days within which time defendant might move to vacate, and during the pendency of the motion the execution, which had been lost and the failure to return which constituted the basis for the amercement judgment, was found in the custody of the clerk of the district court among excess files kept in a storage vault with a return endorsed thereon by the sheriff, it is held sufficient facts appeared to constitute a prima facie defense to the amercement proceedings and that the action of the trial court in granting the motion to vacate the judgment was not an abuse of discretion.</p>

<p>Appeal from district court, Morton County, Pugh, J.</p> <p>“When a decree of divorce is denied, the findings of the Trial Court must show that the parties are living apart, and that the wife needed, ox would need alimony for her support and maintenance.” § 4401 Comp Laws, 1913. Peyre v. Peyre, (Cal.) 21 Pac. 838; California Civil Code. ¶ 136; Yolkmar v. Volkmar, 147 Cal. 175, 85 Pac., 413; Bensen v. Bensen, 129 Pac. 596, (Cal.).</p> <p>Under the New York statute the Court must further find that even under this section the wife can be granted alimony only on the event that she is entitled to a decree. Davis v. Davis, 75 N. Y. 221; Robinson v Robinson; 146 App. Div. 533; 131 N. Y. S. 261; Warring v. Warring, 10c N. Y. 221; Palmer v. Palmer, 29 How. Prac. (N. Y.) 390; Douglas v. Douglas, 5 Hun. (N. Y.) 143.</p>

Proceedings in District Court, Ransom county, McKenna, J, upon the cancellation of a land contract. From an order, dissolving an injunctional order theretofore issued, the plaintiff has appealed.

<p>From a judgment of the County Court of Ransom county, Thomas, J., defendant appeals.</p>

Erom a judgment of the District Court of Dunn county, Crawford, J., plaintiffs appeal. The purpose of the action of claim and delivery is to determine the right to possession of the property at the time of commencement of the action.

Action in District Court Eddy County, Coffey, J., to foreclose a mortgage. The plaintiff has appealed. “A deed of conveyance by the husband without his wife joining, of lands including the homestead, is valid as to the excess in extent or value of the land above the homestead exemption.” Severtson v. Peoples, 28 N. D. 372; 21 Cyc. 551 and citations; 13 R. C. L. 635 and citations. “It is the homestead as created, defined and limited by law that is aim solutely exempt.

“Domicile of choice is entirely a question of residence and intent, or, as it is usually put, the factum and the animus. Both must concur in order that the domicile may be deemed established.” 14 Cyc. 838. “A new domicile is not acquired until there is not only a fixed intention of establishing a permanent residence, but until also this intention has been carried out by actual residence there.” Boyd’s Executor v. Commonwealth (Ky.) Am. & Eng. Ann.

From a judgment of the District Court of Morton county, Hanley, defendant, Farmers and Merchants State Bank of New Salem, appeals. “No matter what device or shift the holder of the first lien may resort to, every attempt to evade his duty to the owner of the inferior lien will be thwarted by the law.

<p>Original application for an order fixing the amount and conditions of a supersedeas undertaking on appeal.</p> <p>Per Curiam Opinion.</p>

<p>Insurance — beneficial order held not estopped to interpose defense that insured died in military service within insurance regulations.</p> <p>1. The failure of a beneficial order to demand or secure from its insured member, an appl'cation for war permit and the payment or refusal of an extra war premium provided by its regulations for its members engaged in military service, and the reception of regular assessments and lodge dues while knowing that the insured member was in the service do not constitute, for reasons stated in the opinion, waiver or grounds of estoppel.</p> <p>Insurance — provisions of beneficial certificate limiting liability where insured engages in military service held to state grounds of a status and not of causation.</p> <p>2. The provisions in a beneficial certificate or insurance which limits the liability of the beneficial Order if the insured member shall engage in the occupation of a soldier in time of war, engage in military service in time of war*, or, shall enter in the service of the United States army, state grounds of a status and not of causation as a test, where no provisions otherwise indicate.</p>

“No oral or written misrepresentations made in the negotiation of a contract or policy of insurance by the insured or in his behalf shall be deemed material or defeat or avoid the policy or prevent its áttaching, unless such misrepresentation is made with actual intent to deceive, or unless the matter misrepresented increased the risk of loss.” Compiled Laws, § 6501; Soules v. B. of Am. Yeoman, 19 N. D. 23; 120 N. W. 760; Donohue v. Mutual Life Ins.

The provisions of the contract are not void as being against public policy. Vidal v. Girard’s Executors, 2 How. 127; Printing Co. v. Sampson, 19 Eq. 462; Page on Contracts, Vol. 1 p. 503; Interstate B. A. A. v. Atkinson, 165 Ky. 537 and 538. See also Begelow v. Berkshire Life Ins. Co. 93 U. S. 284; 23 L. ed. 918. The provisions are of different effect and scope than the provisions against “suicide,” “Self-destruction” and like acts while insane.

<p>Statutes — initiated measure amended or repealed only by a two-thirds vote of all members elected to each house.</p> <p>1. Article 26 of the Amendments to the state constitution requires a two-thirds vote of all the members elected to each house of the legislative assembly to effect an amendment or repeal of any initiated measure adopted by the electors.</p> <p>Newspapers — city special assessment notices must be published in elected official newspapers in such cities.</p> <p>2. § 5 of chap. 187 of the Laws of 1919, as amended by an initiated measure approved at the general election in 1920, requires the publication in the elected official newspaper of special assessment notices in cities in which such official newspapers are published.</p>

<p>From a judgment of the County Court of Renville County, Crewe, J., plaintiff appeals.</p>

“Lessees are obliged to work a mine for the best interest of the ownei or lessor, and with reasonable diligence and in proper manner, and if not so expressed in the lease, the law implies said conditions.” 27 Cyc. 705 and cases cited thereunder. “When a minimum royalty is provided in the lease, this does not excuse lessee from not operating the mine diligently and mining all he can,” 27 Cyc. 705-706 and cases cited in the case of Chauvenet v. Person 11 D. R. A. (N. S.) 417…

From a judgment of the District Court of Kidder County, Coffey, J., defendant appeals. Where evidence cumulative in its nature is excluded or stricken out, ■ even though done so improperly it is not prejudicial if the issue covered thereby is not in dispute. State v. Moeller, 20 N. D. 114.

, denying a writ of certiorari. An action against Egge for costs without relying on the undertaking given is not a plain, speedy and adequate remedy as contemplated by the statute on certiorari, § 8445, where we were entitled to have the amount determined in a summary manner by arbitration as provided in the Estray Law. Re Enderlin State Bank, 4 N. D. 319; 58 N. W. 514; Leonard v. Peacock, 8 Nev. 157.

<p>Appeal from an order and judgment of the District Court of Kidder county; Coffey, J.</p> <p>“It appears the best and highest evidence of which the case admits if we ask for stronger proof and adopt the rule of shutting the mouths of jurors we may as well close the doors of all inquiries of the case and leave them to act and decide as they please.” Smith v. Cheetham, (N.Y.) 3 Caines 57; Crawford v. State, 2 Yerg (Tenn.) 60; Wright v. Telegraph Co., 20 Iowa 195; Wright v. Inm. Telephone Co., 20 Iowa 212; Mattox v. U. S. 146 U. S. 140; 36 Law ed. line 20.</p> <p>“One of the causes assigned by statute for a new trial is, § 2, “Misconduct'of the jury.” But the affidavits of the jurors can only be used to show such misconduct in cases where the verdict is arrived at by chance.” § 7660, Comp. Laws, 1913.</p> <p>“Where the juror’s conduct was known at the time of the trial a motion for a new trial on that ground will not be granted, as it was his duty to call attention of the court to it during the trial.” Ewing v. Lunn, 115 N. W. 527.</p> <p>“Where motion for a new trial is made upon the grounds of misconduct of jurors, such misconduct cannot be shown by affidavit of ¿ juror— such statements are inadmissible to show misconduct or to impeach a verdict.”.</p> <p>If it appear that the alleged misconduct of a juror was not caused by the prevailing party then a new trial should not be granted. State v. Robidou, 128 N. W. 1x24; Ewing v-. Murphy, 1 L. R. A. 820; Phillips v. R. I. Co. 31 L. R. A. (N. S.) 930 and cases cited; Peoples v. Ritchie, 42 Pac. 209, Utah.</p> <p>“New York affirms the principle that jurors cannot be heard by affidavit or otherwise to impeach their verdict.” Williams v. Montgomery, 60 N. Y. 648 and cases cited.</p> <p>“Affidavits of jurors cannot be used to show how jurors arrived at their verdict.” State v. Forester, 103 N. W. 625; 14 N. D. 335; Glaspell v. N. P. R. R. Co. 43 Fed. 900; Johnson v. Seel, 144 N. \V. 237; 26 N. D. 299.</p> <p>“The affidavit of attorney as to statements and of admissions of jurors to such attorney are inadmissible.” Johnson v. Seel supra 238; Siemsen v. Oaklan, 66 Pac. 673 (Cal.); People v. Ritchie, 42 Pac. 209, (Utah).</p> <p>“A party to an action will not be heard to complain of errors which he himself has induced the trial court to commit.” 3 Cent. Dig. Col. 1312 § 3591 i Walton v. C. St. P. M. & O. Ry., 6 C. C. A. 223; 2 Dec. Dig. § 882; May v. Cummings, 130 N. W. 828; 21 N. D. 287; Knox v. Ry. Co. 203 S. W. 229, ¶ 1 (N. D.) ; Pyke v. Jamestown, 15 N. D. 161.</p> <p>“Particular errors complained of should be specified.” § 7663 Code 1913; Henry v. Maher, 6 N. D. 414; Baumer v. Freach, 8 N. D. 319; State v. School Dist. 18 N. D. 616; Chaffee v. Edinger, 29 N. D. 537; Frost v. Hallinger, 21 N. D. 560.</p> <p>Now, it is well settled/that unless the complaining party had been prejudiced by the instruction, he cannot complain. Swallow v. Bank 35 N. D. 608; 161 N. W. 207.</p> <p>Unless a defendant requests an instruction, the court’s failure to instruct in that regard is not reversible error. Huber v. Zeizzler 37 N. D. 556; 164 N. W. 131; Blackorby v. Guither, 34 N. D. 248; 158 N.'W. 354.</p>

, plaintiff appeals from an order denying an application for an order restraining an execution sale. The automobile was in the hands of the sheriff of Ramsey county awaiting the judgment in the forfeiture proceeding before the judgment was rendered on which the execution was issued. The doctrine is well settled that property in the hands of sheriffs, clerks of court, receivers, executors, etc. is regarded as being in custodia legis and cannot be reached by execution.

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

Nuessle, J. Where the accused in a criminal prosecution in the trial court is forced through well grounded fears of mob violence, to plead guilty and to be sentenced to imprisonment for a term of years, he has a right to relief from such sentence and plea by proper proceedings in the same Court. State v. Calhoun, 50 Kans. 532; 18 L. R. A. (N. S.) 838; 34 Am. St. Rep. 141.

Defendant appeals from an order denying motions for an amendment and modification of a judgment. Per Curiam Opinion. There can be no doubt that at its inception the suspension was valid. The power to suspend an officer is incidental to the power to remove for cause. 29 Cyc. (Officers) 1405; State v. Megaarden, 85 Minn. 41, 88 N. W. 412; 89 Am. St. Rep. 334; State v. Peterson, 50 Minn. 244; 52 N. W. =655; Chase v. Providence, 36 R. I. 331, 89 Atlantic 1066; Am.

<p>Action to foreclose a mortgage in District Court, Wells County,. Coffey, J. The intervener has appealed from a judgment of foreclosure.</p> <p>“A mortgagee of realty is regarded a purchaser thereof; and if his mortgage is supported by actual present consideration, and is given and taken in good faith and without fraud, he is treated as a bona fide purchaser for value, and as such is protected from adverse claims of which .he had no notice, actual or constructive, including not only prior deeds or other conveyances of the premises, but also all other liens upon it or claims of interest in it.” 27 Cyc. 1183.</p> <p>“The doctrine of bona fide purchasers does not apply to an encumbrancer of a merely equitable title or estate.” Shoufe v. Griffiths 31 Pac. 93-</p> <p>A person who takes a mortgage in good faith and for a valuable consideration, the record showing a clear title in the mortgagor, will be protected against any equitable titles to the premises, or equitable claims upon the title, in favor of third persons of which he had no notice actual or constructive. 27 Cyc. 1184. 39 Cyc. 1688.</p> <p>A party taking a mortgage for valuable consideration from a party in possession of real estate under an unrecorded contract of purchase is protected as a bona fide purchaser under our recording statutes. Simonson v. Wenzel 27 N. D. 638; 147 N. W. 804; Toledo etc. R. C. Co. v. Hamilton, 134 U. S. 296; 33 Law ed. 905.</p> <p>Thompson would be regarded as the equitable owner, notwithstanding the provisions of the statute of frauds and all other laws requiring contracts for sale and conveyances of real property to be in writing.” Mitchell v. Knudtson Land Co. 19 N. D. 736; 134 N. W. 325; Torgeson v. Hauge, 34 N. D. 646; 159 N. W. 6.</p> <p>An agreement to assume and pay a mortgage by a party 'receiving a conveyance of real estate may be wholly in parole, and is not considered as being within the statute of frauds. 27 Cyc..1344; 1345; Moore v. Booker, 5 N. D. 543; 62 N. W. 607;'Bossingham v. Syck., 91 N. W. 1047, (Iowa).</p>

<p>Appeal from a judgment of the District Court of Burleigh County; Coffey, J.</p> <p>Laws of 1917 chap. 202, § 15 is a re-enactment of subsection 1 of § 15 of the uniform sales act, and was not intended to apply to an executed sale of a definite, ascertained and existing article but only to executory sale. This is also the common law. Mechem on Sales, § 1346.</p> <p>This same section does not apply to a second hand article. Mechem on Sales, § 1348.</p> <p>Questions similar to the one involved in this case have been considered in the following cases: Little v. G. E. Van Slych, (Mich.) 73 N. W. 554; Buckbinder Bros. v. Valker, (N.D.) 173 N. W. 947; Ward v. Valker, 176 N. W. 129.</p>

<p>Appeal from a judgment of the District Court of Morton county, Berry, J.</p> <p>Mandamus is the proper remedy to enforce the payment by a municipal corporation of an official salary, the amount of which is fixed.” Speed v. Common Council of City of Detroit et al, ioo Mich. 92; 58 N. W. 638; McBride v. Grand Rapids, 47 Mich. 236; 10 N. W. 353 followed.</p> <p>The cost of special improvement must be raised through special assessment of the property abutting upon and benefitted by the improvement and without cost to the general taxpayer. Pine Tree Lumber Co. v. City of Fargo, 12 N. D. 360.</p>

“The essence of a gambling.transaction is that the particular transaction shall contemplate no delivery, without reference to the making of any other deal.” John Miller Co. v. Klonstad, 105 N. W. 164. It is also well settled that where the principal cannot recover because of the gambling nature of the transaction, neither can the agent recover.

<p>Divorce — in granting divorce for incurable insanity, held proper to divide the property between plaintiff wife and the insane husband.</p> <p>Plaintiff was granted a decree of absolute divorce from defendant on the ground of his incurable insanity. The court in its decree made a division of defendant’s property between them, giving to plaintiff all of it except property valued at about Twelve.Thousand ($12,000.00) Dollars, which it permitted to remain in defendant’s name, and as his portion of the property.</p> <p>From the decree plaintiff appeals and assigns error in that the court did not decree her all of the property. It is held, for reasons stated in the opinion that the decree was proper and without error.</p>

<p>Counties — act construed as limiting total taxes to one-third of combined levies for years 1918-1920.</p> <p>Chap. 122, Session Laws of 1921, construed, concerning particular language, and, held to mean that the total amount of taxes levied for all purposes shall not exceed an amount equal to one-third of the total combined levies which were made for the years 1918, 1919, and 1920.</p>

Appeal-from the District Court of Dunn county, Berry, J, It is plain that the mortgage should not have been received for record by the Register of Deeds of Dunn county. The recording of said mortgage did not constitute .constructive notice of defendants. Pease v. Magill, 17 N. D. 166.

<p>Appeal from an order denying a motion for a new trial, Burr, J.</p> <p>“Where an instrument lias been executed by only a portion of the parties between whom it purports to be made, it is not binding on those who have executed. * * * The reason for holding the instrument void is that it was intended that all parties should execute it and that each executes it on the implied condition that it shall be executed by the others and therefore that until executed by all it is inchoate and incomplete and never takes effect as a valid contract and this is especially true where the agreement expressly provides or it is manifestly intended that it is not to be binding until signed.” 13 C. J. 305; Wilcox v. Saunders, 4 Neb. 569; and cases cited in notes 85, 13 C. J. 306.</p> <p>“One party to a contract cannot alter its terms without the assent of the other. The minds of the parties must meet as to the proposed modification.” 13 C. J. 591.</p> <p>“In an action for alleged breach of contract it is error to instruct that if the plaintiff suggested modification and the defendant failed to-answer him, he agreed thereto and the contract as modified was the true contract, since one need not answer and cannot be bound in the absence of actual consent.” “One of joint parties cannot extend the time for performance without the consent of his co-party.” 162 Pac. 843; Northwestern F. & M. Ins. Co. v. Connecticut F. Ins. Co. 105 Minn. 117 N. W. 825; Molostowsky v. Grauer, 113 N. Y. Supp. 679; Note 7, 13 C. J. 591 U. S. Central C. v. Good, 120 Fed. 793; Ehrman v. Rosenthal, 49 Pac. 460; Tutt v. Davis, no Pac. 690; State Bk. v. Heinse, 160 N. W. 903; Blalce v. Osmundson, 159 N. W. 766; Pardoe v. Jones, 143 N. W. 405; White Pine Lmb. Co. v. Mfg. Co. 158 N. W. 124; note 37, 13 C. J. 601.</p> <p>“A new trial will not be granted merely because the losing party or his attorney did not exercise prudence or erred in judgment and can probably make a better case or defense on another trial.” 29 Cyc. 832; Fincher v. Malcolmson, Cal. 38, 30 Pac. 835; Holderman v. Jones, 52 Kan. 743; 34 Pac. 352.</p> <p>“Suprise at the admission of proper evidence is generally not ground for a new trial. * * * Surprise at the exclusion of inadmissible evidence is seldom ground for a new trial and this rule applies to the exclusion of testimony of an incompetent witness and to the rejection of documentary evidence or secondary evidence for the introduction of which no proper foundation has been laid.” 29 Cyc. 862, and cases cited in notes 28 and 30.</p> <p>“The measure of damage occasioned by failure to perform a building contract in the case of substantial performance is the difference between the value of the work done or the building erected and the value of that which was contracted for.” 9 C. J. 810.</p> <p>“The fundamental idea running through all of the case law is that an owner is entitled to the performance of a contract by the contractor and where the contract is breached is entitled to recover damages that will be a just equivalent for the breach.” Waller v. Huggins, 148 S. W. 148.</p> <p>“The question ordinarily is how much" less is the .building fairly worth' than it would have been if the contract had been performed.” White v. McLaren, 151 Mass. 553; Gibson v. Harlan, 13 Tenn. 440.</p> <p>“In an action for a breach of building contract for alleged improper construction the owner’s measure of damages is the difference between the value of the building when constructed and what its value would have been if constructed according to the contract and with reasonably sound material and reasonably skillful labor.” Hartford Mill Co. -v. Hartford Tobacco Warehouse Co., 121 S. W. 477 (Ky.).</p> <p>“The measure of damages is the difference between the value of the house as finished and the house as it ought to have been finished under the contract, plans and specifications.” Small v. Lee Bros. 61 S. E. 831 (Ga.) ; Norcoss Bros. v. Vose, 81 N. E. 468; Fleming v. Lunsford, 163 Ala. 540; 50 So. 921.</p> <p>“If a person accepts and adopts a written contract, even though it is not signed by him, he is deemed to have assented to its terms and conditions and to be bound by them.” 6 R. C. L. 642.</p> <p>“Signature is not always essential to the binding force of an agreement. The object of a signature is to show mutuality or assent, but these facts may be shown in other ways; and unless a contract is required by statute or arbitrary rule to be in writing, it need not be signed, provided it is accepted and acted upon. * * * Further it is competent for the parties to adopt it as their contract without signing it, provided their intention to do so is clear.” 13 C. J. 303; Ramsay Realty Co. v. Ramsey (IoWa) 113 N. W. 468; Fortham v. Peters (111.) 69 N. E. 97; Kim v. Walters, (S. D.) 133 N. W. 277; Reed v. Coughran (S. D.) 11 N. W. 550; Henderson v. Henderson (Iowa) 114 N. W. 178; Muscatine Water Works Co. v. Muscatine Lumber Co. (Ia.) 52 N. W. 108; Merritt v. Adams Co. Land Co. 29 N. D. 496; Griffin v. Bristle (Minn.) 40 N. W. 523; .Hefferman v. Davis, (Cal.) 140 Pac. 716; Bloom v. Hazzard, (Cal.) 37 Pac. 1037; Leonard v. Howard, (Ore.) 135 Pac. 549; Ullsberger v. Meyer, (111.) 75 N. W. 482; McPherson v. Fargo, (S. D.) 74 N. W. 1057.</p> <p>The Court said, “If it (the school building) cannot be remedied, then the defendant is entitled to a judgment for the amount it paid.” That is not the law. Handy v. Bliss, 204 Mass. 513; 90 N. E. 864; 134 Am. St. Rep. 673.</p>

<p>Prohibition — lies only when inferior court or body has no jurisdiction, or is about to act in excess of jurisdiction</p> <p>A writ of prohibition is not a process for the correction of errors. Such writ lies only when there is no jurisdiction in the inferior eoult or body ox when the inferior court or body is about to act in excess of jurisdiction.</p>

Action to vacate a judgment in Morton County, Berry, J. Plaintiff has appealed from an order sustaining a demurrer. The right to proceed by garnishment is purely a statutory right and the statute must be substantially complied with to confer and preserve the jurisdiction of the Court in such proceedings.

<p>Criminal law — habeas corpus — writ may be invoked by prisoner unlawfully restrained of liberty while on probation.</p> <p>1. A person who has been placed on probation under a suspended sentence cannot be deprived of the liberty thus granted except in pursuance of the laws in such cases made and provided; and in case he is deprived of his liberty in violation of the rights and benefits thus conferred upon him, he may properly invoke the Writ of Habeas Corpus.</p> <p>Habeas corpus — probationed prisoner, wrongly deprived of his liberty, may show that Board of Experts found that he had not violated its rules.</p> <p>2. In case of his arrest and incarceration, such person may show on habeas corpus that the Board of Experts, the board under whose jurisdiction such persons are placed, have at no time found that he has violated any of the rules and regulations prescribed for probationers, but on the other hand have found that he did not violate such rules and regulations; that he has not, in fact, violated any of such rules and regulations; and that the Board of Experts have never terminated the probation.</p>

A discrepency of 25% between the debt paid and the value of the property conveyed was held such an excess as to entitle the creditors to avoid the conveyance as to the excess even though no actual fraud was imputed. Guitchtel v. Dewall, 59 N. J. Eq. 651; 41 Atl. 227. A conveyance by the husband to his wife of property worth $5,000.00 for a debt amounting to $2,856.00 was held to be void as to the excess and creditors allowed to participate.

<p>Chattel mortgages — evidence held not to sustain counterclaim for conversion by mortgagee.</p> <p>In this case the trial court dismissed both the plaintiff’s action and a counterclaim by Norlid, the appellant, against the bank for the alleged conversion of some grain. 3eld, that there is no evidence to sustain the counterclaim and the judgment is affirmed.</p>

“Arrest under a warrant, valid in form, issued by competent authority on a sufficient complaint, is not false imprisonment, though the indictment under which the warrant issued was procured maliciously and by artifice and misrepresentation, for the purpose of extorting money. The proper remedy is not an action for false imprisonment, but for malicious prosecution. Judglment (C. C. A. 1896) 77 Fed. 271, affirmed. Whitten v. Bennett, 86 Fed. 405; 30 C. C. A. 140.

' “Where a machine is taken on trial to be paid for if it does work satisfactory to the purchaser, there is no sale if the purchaser is in fact not satisfied with the work done by the machine, although it does work that other persons might deem satisfactory.” “In such case the purchaser must be dissatisfied in good faith and not pretend, to be so on selfish or dishonest grounds.” Garland v. Keller, 15 N. D. 548. 1.

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

<p>Assignments — assignee of obligation to pay rent held entitled to sue thereon.</p> <p>This is an action by the assignee of a lease and bond for the payment of rent and there is no claim that the judgment is for more than the sum due. Held, that as the assignee of a contract to pay money the plaintiff has a right to maintain the action.</p>

Action in District Court, Dunn County, Pugh, J. The defendant has appealed from a judgment in favor of the plaintiff. “A witness who feigns forgetfulness of circumstances collateral to Ms main story which he must recollect if he has any memory at all, and with respect to which he is open to contradiction if untrue is unworthy of belief.” Gibbons v. Potter, 30 N. J. Eq. 204.

<p>Judgment — where pleadings, .judgment, etc., in defendant’s former action against plaintiff were in evidence, oral testimony whether an item was in issue in the former action held admissible.</p> <p>1. In an action to recover for goods and labor furnished, where a cropper recovered against his farm owner in a former action the goods and labor furnished by him, and the owner in this action recovered for his goods and his labor furnished to the cropper, and where, in each action, in the former, the owner, and, in the latter, the cropper, claimed an agreement to mutually offset their accounts for such goods and labor, which was disallowed by the jury upon the recovery allowed, it is held, for reasons stated in the opinion—</p> <p>That the trial court properly received oral testimony concerning the presentation of a specific item for hauling lumber in the former action.</p> <p>Evidence — held that court properly took judicial notice of former case between the same parties.</p> <p>2. That the trial court properly took judicial notice of the former case upon being requested and upon electing so to do.</p> <p>Recovery — held not limited by recovery in former action.</p> <p>3. That the recovery of the owner in this action was not limited to the amount of the recovery of the cropper in the former action.</p>

<p>Appeal from the District Court-of Williams County, Fisk, J.</p> <p>The owner of the land is the owner of the growing and unsevered crops. Wadge v. Kittelson, 12 N. D. 452; Warner v.' Sohn, 21 Ann. Cas. 427, (Neb.); Hartshorne v. Ingels, 23 L. R. A. 531 (Okla.) ; Carlisle v. Killbrew, 6 L. R. A. 617; Altee v. Hinckler, 85 Am. Dec. 407; 8 R. C. D. p. 367.</p> <p>The title to the crops at all times was vested in the adverse holders of the land and Dowd, though owner of the fee title to the land, never at any time had any title or interest whatever in or to the crops. Golden Valley Land & Cattle Co. v. Johnstone, 21 N. D. 101; Gunderson v. Holland, 22 N. D. 258; Roney v. Halverson, 29 N. D. 13; Aultman Taylor Co. v. O’Dowd, Minn., 75 N. W. 756. This case has been repeatedly cited by North Dakota Supreme Court with approval. Stock-well v. Phelps, 34 N. Y. 363; Page v. Fowler, 39 Cal. 412, 2 Am. R. 462; ■Johnson y. Fish, 103 Cal. 420, 38 Pac. 979.</p>

Appeal of both parties from the District Court of Cass County, Cole, J. “Before there can be -a de facto corporation, there must be a valid law under which a corporation may be formed, a bona fide attempt to incorporate under it, and an actual exercise of corporate powers.” Jennings v. Dark, 92 N. E. 778, 782, 175 Ind. 332; Gillette v. Aurora Ry. Co. 81 N. E. 1005, 1009, 228 111. 261; Marshall v. Reach, 81 N. E. 29, 227 111. 35; 118 Am. St. Rep. 247; 10 Ann.

Defendant appeals from a judgment and from an order denying .a new trial. An unofficial member of the bar may not assist in the prosecution for a fee paid by private persons. Beimel v. State, 7i-Wis. 444, 37 N. W. 244; Bird v. State, 77 Wis. 276, 45 N. W. 1126. It is the policy of the criminal law that the prosecuting attorney have active superintendence of the management of criminal trials. He should see that it does not degenerate into a private persecution or prosecution.

<p>The judgment appealed from is affirmed. The respondent is entitled to his costs and disbursements on appeal.</p>

“Testimony collateral to the issues which would merely tend to prej^ udice the jury should be rejected.” Jones Commentaries on Evidence,… Held: “That evidence to show that other cellars were flooded by a leaking meter was properly excluded.” In Clark v. Water Power Co., 52 Me. 75 it was held: “In an action for diverting a stream, injuries to another mill-owner were rejected on the facts, because “There were no elements of comparison offered which could afford any safe or…

<p>Appeal from the district court of Stutsman County, Nuessle, J.</p>

From a judgment of the district court of Ward County entered pursuant to an order for judgment notwithstanding the verdict, defendant appeals. The court erred in ordering that judgment in favor of the defendant be vacated and set aside and that the plaintiff have judgment notwithstanding the verdict since no moton for a directed verdict was made at any time during the trial of the action. 12 N. D. 74; 17 N. D. 310.

Erofrt a judgment of the district Court of Mountrail County, Leighton.

The Bank of North Dakota is authorized to purchase bonds of the State of North Dakota. Chap. 148, Laws of 1919, § 4; chap. 153, Laws of 1919, § 7; chap. 154, Laws of 1919, § 6; chap. 24, Laws Special Session, 1919, § 5. The Bank of North Dakota, as an agency of the sovereign power, has a distinct status separate and apart from that of the state itself. Its contracts are not the direct contracts of the state.

From a judgment of the District Court of Dickey County, McKenna, J., plaintiffs appeal. Where an action for’ the foreclosure of a mechanic’s lien fails the plaintiff may sue upon a quantum meruit. Anderson v. Todd, 8 N. D. 1.58, 77 N. W. >599; Marchand v. Perrin, 19 N. D. 794, 124 N. W. 1114. The measure of such recovery is the contract price less compensation for imperfections of work or materials.

From a judgment of the District Court of Richland County, Cooley, Special J., plaintiffs appeal. It is well settled that when a municipal corporation seeks to impose upon the citizens the burden of making public improvements and to hold the property of the citizens liable therefor the statutes authorizing such improvements must be strictly construed.

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

Under the maxim above cited it is the rule of law that equity always refuses to lend its aid .in any manner to one seeking its active interposition who has been guilty of… Held: Foster County State Bank v. Hester, 18 N. D. 135, 119 N. W. 1044; State v. Banks, et al 24 N. D. 21; 138 N. W. 973; Bergh v. John Wyman Land & Loan Co. 30 N. D. 158; 152 N. W. 281; Stavens v. Elevator Co. 161 N W. 558; Yocum v. Chrisman, 168 N. W. 621; Lark Equity Exchange v. Jones, 171 N. W. 863.

The insured is as a matter of law presumed to know the terms and conditions set forth in his contract of insurance, and that the same are binding upon him. Held: “A local insurance agent having ostensible general authority to solicit applications and make contracts for insurance and to receive first premiums binds his principal by any acts or contracts within the general scope o.f his apparent authority, notwithstanding an actual excess of authority.

Action in District court, Nelson county. Cooley, J., upon a building contract: The plaintiff has appealed from a judgment notwithstanding the verdict. The question whether a contract has been substantially performed is generally one of fact.

G. Burr, J. That Houska was the agent of the plaintiff and that she is bound by liis acts in the premises. See: 21 R. C. L. (principal and agents ¶ 5, 6 and 25). Luke v. Griggs, 4 Dak. 287, 30 N. W. 170, 31 Cyc. p. 1215; 31 Cyc. p. 1566, ¶ E. The retention of the money tendered by Martin constitutes an estoppel. Dowagiac Mfg. Co. v. Mellekson, 13 N. D. 257, 100 N. W. 717; Russel v. Waterloo Thresh. Mach.

Action in District Court, Stark County, Crawford, J., to recover damages for failure to accept hides pursuant to a contract of sale. Defendant has appealed from a judgment in plaintiff’s favor. If there is any evidence whatever from which the jury could decide the fact, such finding by the jury will not be disturbed by any appellate court.

Defendants appeal from an order denying a motion for a change of venue. An order for change of venue is an appealable order. Bolten v. Donavan, g N. D. 575; 84 N. W. 357. An order denying an application for change of venue is appealable because it affects the merits. Robertson Lumber Co. v. Jones, 13 N. D. 112; Kramer v. Heins, 34 N. D. 507; Candy v. Bissell’s Estate 115 N. W. 571; North Dakota Statute.

An appeal from an order denying motion for judgment notwithstanding the verdict or for a new trial, and from the judgment, Berry, J- There was no proof of negligence here. Aerkfetz v. Humphreys, 145 U. S. 418-421; Hinson v. Atlanta & C. Air Line Ry. Co., 90 S. E. 722; Land v. St. Louis & S. F. R. Co., 148 Pac. 612; Fort Worth & D. C. Ry.

Unity of possession -is the distinguishing feature of a tenancy in common, and each co-tenant has an equal right with the other or others to the possession of the subject of the tenancy. Tiedeman on Real Property, § 239, p. 109; 2 Bl, Commentaries, (Chase’s ed.) 191. “The only unity there, is that of possession — because no man can certainly tell which part is his own.” See also collection of cases vol. 29 L. R. A. (N. S.) 225.

Equitable action in District Court, Ramsey County, Butts, J., to cancel a land contract. “Before the owner of land who has agreed to convey the same by a contract of sale, can cancel the contract for non-compliance therewith he must proceed promptly to declare his election to cancel on discovery of defaults and if he does not proceed promptly to do so, he will be deemed to have waived his right to insist that the vendee has lost his rights in equity on account of failure to…

If a board is the agent of the city, the city is liable for its acts and omissions. 33 N. D. p. 69, et seq. The same doctrine is held in many other cases of which the following are a few.

Bastardy proceedings against George Fuchs. Plaintiff had judgment, and defendant appeals from the judgment and from an order denying a new trial.

Both defendants appeal from a judgment and from an order denying their motions for judgment notwithstanding the verdict or for a new trial. “Officers* who have no personal knowledge of the transaction, having been appointed long after the transaction in issue, cannot be examined.” Blasius v. Ins. Co. 175 N. Y. Supp. 709. “A mere soliciting1 agent or salesman is not managing agent or officer under the terms of the statute.” Blasius v. Ins.

<p>From a judgment of the District Court of Burleigh county, Coffey, J.</p> <p>Opinion of the Court, Birdzell, J.</p>

Defendant contends that the statements of plaintiff (as to the times the old man stayed at her place, being the times for which plaintiff is making this claim against the old man’s estate) come within the definition of a “transaction with the deceased,” and were therefor incompetent and prejudicial.

Action in District court, Rolette county, Buttz, J. Plaintiff has appealed from a judgment in defendant’s favor. “A fee simple title is presumed to be intended to pass by a grant of real property, unless it appears from the grant that a lesser estate was intended.” Little v. Braun, 92 N. W. 200, 11 N. D. 10; Jasper v. Hazen, 58 N. W. 454, 4 N. D. 1; 32 L. R. A. (N. S.) 1046 and cases cited; 5 L. R. A. (N. S.) 3§7; § 6754 C. L. 1913. “Every grant of real property or of an…

An appeal from a judgment of the District court of Ward county, Leighton, J. “Under certain circumstances the vendor becomes the trustee of the title for the benefit of the vendee, and the vendee becomes the trustee of the purchase money for the benefit of the vendor, but this doctrine applies only in equity.” Cummings v. Duncan, 22 N. D. 534. Dallmann’s possession does not alter the situation. His possession was simply that of his vendor.

<p>Elections — where election judge accompanied to booth voters who had declared no disability, such votes cannot be held legal on contest.</p> <p>Section 988 oí the Compiled Laws of 1913, which provides for rendering assistance to voters who declare to the judges of election that, they cannot read or that owing to blindness or other physical disability they are unable to mark their ballots, is mandatory, and where one judge of election is shown to have accompanied a number of voters to the election booth where no such disability appeared or was declared, such votes, upon contest, cannot be regarded as legal.</p>

Judgment reversed and case remanded for a new trial. If persons chargeable with a duty of care and caution towards them leave exposed to the observation of children anything which would be tempting to them, and which they in their immature judgment might naturally suppose they were at liberty to handle or play with, they should expect that liberty to be taken. Powers v. 'Harlow, 53 Mich., 507, 31 Am.

<p>Dismissal and non-suit — refusal to dismiss for failure to bring action to trial within five years held not error.</p> <p>1. In an action for conversion of wheat in 1909 where suit was instituted in January, 1914, and was not brought to trial until January, 1920, after a change of venue had b'e,en taken by the defendant, in December, 1918, from Ward county to Pierce county, it is held, for reasons stated in the opinion, that the trial court did not err in refusing to dismiss the action for failure to bring the same to trial within five years, pursuant to Section 7598 C. L. 1913.</p> <p>Trover and conversion —■ verdict for conversion of wheat sustained.</p> <p>2. In such action, it is held, for reasons stated in the opinion, that the- special verdict of the jury finds support in the evidence.</p> <p>Interest — judgment for interest from date of conversion to date of verdict, where jury did not find plaintiff entitled to interest, held erroneous.</p> <p>8. In such action, where the conversion of wheat occurred in 1909 and a jury, by its special verdict, allowed the market pric'e therefor existing at the time of such conversion without any finding that the plaintiff was entitled to interest upon such amount from the date of conversion, it is held, for reasons stated in the opinion, that the trial court erred, in its order for judgment, permitting plaintiff to recover interest for over ten years upon the amount found by the jury.</p>

<p>Statutes — where words are plain and unambiguous, the statute is not subject to construction.</p> <p>1. Where plain and unambiguous words are used in a statute the statute is not rendered subject to construction, especially where the words have long been employed in similar legislation in their ordinary sense and where the attempt to find a different meaning requires a resort to speculation.</p> <p>Statutes — where the same words used in concurrent legislation resorted to are not inconsistent with their ordinary meaning, use in a qualified sense cannot be ascribed thereto.</p> <p>2. Where concurrent legislation is resorted to in an effort to show that ordinary words were used in a qualified sense, the limited meaning will not be ascribed to the legislature where the concurrent legislation is not inconsistent with the ordinary meaning of the words in question.</p> <p>Constitutional law — statutes should be construed to make them constitutional if possible.</p> <p>3. Statutes should be construed, if possible, so as to be constitutional in their operation and if, where ordinary words are given their ordinary meaning, the statute may operate constitutionally whereas, if given a restricted meaning, it would operate unconstitutionally as to a portion of the subject matter .affected, it must be held that the legislature intended the ordinary meaning to attach.</p> <p>Constitutional law — courts not concerned with legislative policy.</p> <p>4. Courts are not concerned with the policy reflected in legislation, or with the motives of the legislature.</p> <p>Taxation — “bonds” and “stocks” as used in tax law held to include all bonds and stocks which would otherwise be subject to taxation.</p> <p>5. Ohap. 230 lof the Session Laws of 1917, which provides for a uniform tax of three mills on the dollar upon moneys and credits “including bonds and stocks” and exempts the property embraced from other taxation, is construed ®nd it is held that the term “bonds and stocks” includes all bonds and stocks which would otherwis'e be subject to taxation in some other form.</p> <p>Taxation — statutes construed as exempt, and all bank stocks and bonds from taxation other than that provided in act.</p> <p>6. Chap. 62 of the Laws of the Special Session of 1919, which repeals Ohap. 230 of the Session Laws of 1917 and which affirmatively exempts moneys and credits “including bonds and stocks'” from taxation— exempting from the exemption income derived therefrom and providing that “stocks and bonds” shall remain subject to a capital stock tax — , is construed and it is held to exempt all stocks and bonds from taxation other than that provided for in the Act,</p>

Action in District court, Morton county, Pugh, J. Plaintiff has appealed from a judgment and has demanded a trial de novo. “The law provides that in order that a payment shall be voidable as a preference, it is necessary that a creditor should have been insolvent at the time it was made.” 7 C. J. Bankruptcy, p. 150, § 247, and authorities cited. “The Courts have held that the petition filed is competent evidence to prove the insolvency of the bankrupt at any time within the…

D., Butts, J. David H. Ugland was convicted of the crime of grand larceny and appeals. Held: the indictment sufficient. State v. Vincent, 16 S. D. 62, 91 N. W. 347. In the case of Ward v. People, 3 Hill 395, the accused was indicted for stealing the property of one Flagg, — proof established the fact that Flagg himself had stolen the property from the true owner.

Equitable action in District court, Williams county, L,owe, J-. to set aside ante-nuptial and post-nuptial agreements and the final decree in an estate.

Appealed from the District court of McLean county, Nuessle, J. The propriety of the remedy selected. This proceeding for a writ of certiorari is a proper proceeding for the relief demanded. Section 8445, C. L. 1913. State ex rel. Mayo v. Thursby-Butte Special School Dist.. 178 N. W. (N. D.) 787; State ex rel.

The ballots should not have been received in evidence and if. received should have been stricken on the testimony offered. Davenport v. Ole-rich, (Iowa) 73 N. W. 603; Delong v. Brown, (Iowa) 85 N. W. 624;.

From a judgment of the District court of Richland county, Allen> J. plaintiff appeals.

<p>Appeal from the District court of Bowman county; Eembke, J.</p>

Original application for a writ of injunction against the members of the State Industrial Commission, and the Commissioner of Insurance, the State Treasurer, and the Manager of the State Hail Insurance Department.

From the judgment of the District court of Ward county, Lowe, J., defendant appeals. “For the violation of a statute to constitute actionable negligence the person suing must ordinarily belong to that class of persons for whose benefit the statute was passed.” Indiana & Chicago Railway Co. v. Neal, 166 Ind. 458; 9 Am. & Eng. Ann.

Defendant appeals from an order setting aside a stipulation of dismissal, and from an order denying an application for a change of' place of trial. “In determining an application for a change of place of trial, the court should look to the affidavits, as well as to the issues to be tried, and determine upon the entire showing made, in which of the two courts a trial will be most accessible to the greatest number of witnesses whose personal attendance the parties may require…

Action on promissory note in District court, Eddy county, Coffey, J. From an order denying judgment non obstante, or, in the alternative, for a new trial, the plaintiff has appealed. It was not necessary that any consideration should pass directly to the makers of said note, or that the makers should receive any personal benefit by reason of the execution and delivery of said note.

<p>Appeal from District court, Ward county, Moellring, J.</p> <p>W. H. Sibbald, B. R. Sinkler, and Greenleaf & Wooledge, for respondent.</p>

Before the court is entitled to direct a verdict for the plaintiff in an action -of this kind the testimony must not only be such as to show consistently the good faitn of the purchaser of the note in suit, but it must also be such that no fair-minded person can draw any other inferences therefrom. Sweet v. Anderson, 41 N. D. 375; Union National Bank v. Moomaw, 184 N. W. 5, Nebr.; 26 R. C. L. p. 1068; 26 R. C. L. p. 1069.

<p>Appeal from a judgment of the District court of Cass county, Cole, J.</p>

“It is the duty of the court to charge the jury, whether requested or not, upon every point material to the decision of the case upon which there is evidence, and to charge correctly and fully.” Moline Plow Company v. Gilbert, 3 Dak. 239, 15 N. W. 1; See also 38 Cyc. 1626, 29 Cyc. 788; Macen v. Ry. Light Co. v. Suthern Bell etc. Co. 93 S. E. 531, 20 Ga. App. 827. This doctrine was affirmed by this Court in the case of Putnam v. Prouty, 24 N. D. 517.

An appeal from a judgment of the District court of Sioux county, Pugh, J. The statute is explicit that the publication must be for thirty days. Held: that such statutes, which are provided a safeguard to the taxpayer against private rapacity and official indifference is mandatory, and it is held in all the cases that a failure to follow such mandatory provision makes the contract void.

Appealed from the District court of Hettinger county, Berry J. Appealed from an order overruling a demurrer. “The mere fixing of the amount of loss is not, of itself, an admission that any liability exists against it upon such policy aiid does not raise an implied promise to pay.” 2 Wood Fire Ins. ¶ 450 Willoughby v. St. Paul German Ins. Co. (Minn.) 71 N. W. 272. “To result in a contract, an offer must be certain.

The question, therefore, is: Are the general and residuary legatees to be placed on the same footing as to the taking of their beneficial interests for the purpose of meeting expenses and debts ? To this question, we submit, the answer must be in the negative. There is no other rule or method directed than that prescribed by § 5722, and it is clear, definite and mandatory.

, Per Curiam. The fact that a juror has an opinion does not disqualify him, providing he states that he can disregard that opinion, and try the case on its merits. See People v. Wolf, (Cal.) 190 Pac. 22. . “The old theory that a juror’s mind must be like a piece of blank paper, has happily gone into ancient history.

From a judgment of the District court of Morton county, Rembke, J., defendant appeals. Held: that the juror was disqualified. See also Olive v. State, 11 Neb. 1, 7 N. W. 444; Curry v. The State, 4 Neb. 545; Carroll v. The State, 5 Neb. 31; People v. Bock, 96, ’N. Y. 188; Hayes v. Missouri, 120 U. S. 68; Reynolds v. U. S., 98 U. S. 145.