Volume 5 — North Dakota Reports

From an order of the board of commissioners of Ransom County, disallowing his claim for salary of state's attorney, Hugh Doherty appealed to the District Court. The appeal having been dismissed, appellant appeals.

Action by Homer E. Sargent against Charles F. Kindred. From orders setting aside a judgment for plaintiff, and refusing, in a supplemental proceeding, to vacate said order, plaintiff appeals. The defendant did not apply for relief from the judgment entered against him, within a year after he had knowledge of the judgment. Section 4939, Comp. Laws. Service of notice of judgment upon the attorney who had appeared in the cause was sufficient.

<p>Appeal from District Court, Ramsey County; Morgan, J.</p> <p>Action by Iver E. Shelley against Mads Mikkelson. Judgment for plaintiff, and defendant appeals.</p>

<p>Action by Sheriff — Conversion by Deputy — Pleading.</p> <p>The complaint stated, in effect, that the defendant was deputy sheriff of Steele County, and that a writ of attachment issued out of the District Court for said county in a certain action, and was delivered to the defendant for service; and that the defendant, under and by virtue of said writ, levied upon certain personal property. Held, that these averments, nothing to the contrary appearing in the complaint, sufficiently allege that the court issuing the writ had jurisdiction of the subject of the action, that the writ was regular upon its face, and that the levy was made within the limits of Steele County. Order overruling a demurrer to the complaint, affirmed.</p>

<p>Discrediting Own Witness — Surprise.</p> <p>When a party calling a witness is surprised by his testimony, which not only fails to prove, but actually disproves, his case, he has a.right to ask the witness whether he has not made a statement to the plaintiff conflicting with his testimony, and which, if true, would tend to prove the plaintiff’s case.</p> <p>Disproving Testimony of Own Witness.</p> <p>Whether, if the witness denies making such statement, the plaintiff may be allowed to prove the contrary, in the discretion of the court, for the purpose of impeachment, not decided.</p>

<p>Sale by Agent — Note to Principal — Defenses—Breach of Warranty.</p> <p>When A., who was the agent of C. for the sale of certain machinery, sold a horse belonging to himself to . B., with a warranty, and received in payment therefor, B’s note, made payable directly to C., and when there was a breach of the warranty, B. could properly, in an action brought against him by C. upon the note, set up such breach of warranty, and defeat a recovery, even where C. was ignorant of the transaction on? of which the note arose, and received the same from A. upon a settlement of the agency account, and gave A. credit for the full amount thereof.</p>

<p>Appeal — Order Granting New Trial.</p> <p>The decision of the trial judge in granting a new trial on the ground of newly discovered evidence will seldom be distured on appeal. In this case the order is affirmed.</p>

Action by William D. Heebner, as Heebner & Sons, against Charles C. Shepard, on notes given for the price of a thrashing machine. From a judgment of default for want of a reply to a counterclaim, plaintiff appeals.

<p>Trial De Novo in Supreme Court.</p> <p>Actions tried below under the provisions of Ch. 82, Laws 1893, can only be tried in this court de novo.-</p> <p>All Evidence Preserved — Review of Entire Case.</p> <p>In such cases all the evidence offered in the trial court should be preserved in the record, together with the objections thereto, if any; and, when the case reaches this court, such objections will be passed upon as original questions, and evidence improperly excluded below under objections will be considered here, and evidence improperly admitted below over objections will be excluded here. A respondent cannot complain that all the evidence is not here when the omitted evidence was excluded on his objection, nor can appellant complain of such omission when it is clear from the record, beyond controversy, that such evidence was properly excluded.</p> <p>Indentification of Exhibits — Certificate of Judge.</p> <p>All exhibits offered in the court below, whether received or not, should be identified in this court by the certificate of the trial judge, as admitted exhibits are indentified in other cases.</p> <p>Condonation of Cruelty by Cohabitation.</p> <p>In an action for divorce on the ground of cruelty, cohabitation after such cruelty does not establish condonation, in the absence of an express agreement to condone.</p> <p>Revocation of Condonation.</p> <p>In such an action, an express agreement to condone is revoked, and the original cause renewed, by subsequent act of cruelty on the part of the condonor towards the condonee.</p> <p>Record Remanded for Judgment in Lower Court.</p> <p>In actions tried here under the provisions of said Ch. 82, Laws 1893, while this court will determine the final judgment or decree to be entered, such entry will not be made in this court, but the record will be remanded to the court from which the appeal was taken, under the provisions of § 26, Ch. 120, Laws 1891, and it will be the duty of that court to order the entry of a judgment in conformity with the determination of this court.</p>

Action by Owen Martin against William R. Hawthorne and another to recover the value of grain sold under a thresher’s lien. Judgment for defendants, and plaintiff appeals.

<p>Trustees of Penitentiary — Compensation.</p> <p>Section 4, Ch. 93, Laws 1889, construed. Held, that a member of the board of trustees of the penitentiary of North Dakota is entitled to receive a per diem of three dollars per day for each day actually spent in “attendance” upon the sessions of the board, including the time necessarily and actually spent in traveling by the usual and direct route from the place of his residence to and from the place where the session of the board is held.</p>

<p>Fraudulent Representation of One Partner Binds the Other.</p> <p>Every partner is liable for the fraudulent representations of every other partner made in the sale of partnership property as a means of effecting such sale.</p> <p>Judges Statement in Excluding Evidence — Effect.</p> <p>Where the trial court, by its ruling in excluding evidence, plainly asserts that the plaintiff cannot, as a matter of law, recover on the theory on which he is seeking to sustain his action, he is not bound, in the absence of notice that he must so do, to offer proof of the other allegations of his complaint. The other facts, for the purpose of reviewing the ruling of the trial court, are, under such circumstances, to be deemed capable of proof; and it is to be assumed that plaintiff could have proved them had he not been met with such adverse ruling, rendering further evidence meaningless and without force in the case.</p>

<p>Appeal from District Court, Ransom County; Lauder, J.</p> <p>Action by Anne M. Kvello and others against F. W. Taylor to recover possession of wheat. Judgment for plaintiffs, and defendant appeals.</p>

<p>Amendment of Pleading to Conform to the Proofs.</p> <p>The trial court has power to allow the amendment of the complaint on the trial to conform to the proof by the insertion of an allegation that defendant sold to itself property of the plaintiff, where the original complaint set forth a cause of action for the balance of the proceeds in the hands of the defendant on the theory that he had sold such property to a third person as agent for plaintiff, plaintiff not asking to have the complaint so amended as to entitle him to •recover as for conversion, but only on the theory of waiving the tort and suing on an implied promise to pay the value of the property so converted.</p> <p>Surprise — Abuse of Discretion to Refuse Amendment.</p> <p>Plaintiff having been so misled by defendant’s conduct as to believe that defendant had in fact sold to a third person, and having therefore framed his complaint on that theory, and defendant’s cashier having, without objection from defendant’s counsel, testified on the trial that defendant sold such property to itself, and such fact being undisputed, held, it was an abuse of discretion for the trial court to refuse to allow plaintiff to amend his complaint to conform to the proof.</p> <p>Agent Cannot Sell to Himself.</p> <p>An agent authorized to sell property of his principal cannot sell the same to himself, The rule is the same when he is authorized to sell at a specific price, and assumes to sell to himself at that price. Such a sale, followed by a claim of ownership thereunder, constitutes a, conversion of the property.</p> <p>Waiver of Tort, and Suit in Assumpsit.</p> <p>The owner may waive the tort, and treat the conversion as a purchase, and recover in assumpsit the value of the property at the time of such conversion, with interest from the date thereof.</p> <p>Practice — -No'tice of Intention, and Motion for’ New Trial- — Not United.</p> <p>It is bad practice to unite in the same instrument notice of intention to move and notice of motion for a new trial.</p>

<p>Appeal from District Court, Grand Forks County; Templeton, J.</p> <p>Action by Tracy R. Bangs, assignee, against John Fadden and others. Defendants had judgment and plaintiff appeals.</p>

Action by W. E. Purcell against the St. Paul Fire & Marine Insurance Company. From an order denying a new trial after verdict for plaintiff, defendant appeals. The defendant having been garnished in Minnesota, and the action in that jurisdiction not yet determined, the courts of this jurisdiction should not interfere until a determination of the case pending in the Minnesota court. Otherwise the garnishee may be made twice liable for payment of the same debt.

<p>Revised Codes — Time of'Taking Effect.</p> <p>Chapter 74, Laws 1893, provides for a revision of the statutes of the state, and for the publication of such revision in a volume to be known as the “Revised Codes,” and section 7 of the act provides that the finished copies of the volume shall be delivered to the secretary of stale, and thereupon the governor shall issue his proclamation announcing such delivery and his acceptance of the volume “and thirty days after the date of his proclamation said Revised Codes shall take effect and thereafter be in force and be received as evidence of the laws of this state in all the courts thereof.” Held., that it was not only the legislative purpose to fix by said section the date at which the volume should be received as evidence, but also to fix a date when the system of laws contained in the volume should go into effect; and held, further, that the alterations in and additions to the laws directed to be published in said volume do not, except when otherwise provided by an emergency clause, go into effect until the completion of the events specified in said section 7.</p>

Action for a divorce by Clinton G. Nichells against Minnie B. Nichells. From an order denying a motion to vacate a decree for plaintiff, defendant appeals. The judgment was taken against appellant through surprise, and under section 4939, Comp. Laws, it was abuse of discretion to refuse her petition for leave to come in and defend. Simpkins v. Simpki7is, 36 Pac.

Action by Sydney S. St. John, administrator of Albert C. St. John, against John F. Lofland. Judgment for defendant, and plaintiff appeals. contended that section 5260, Comp. Laws, extended its operation to transactions with the deceased as administratrix, citing: Boynton v. Phelps, 52 111. 210; Whitmere v. Rticker, 71 111. 410; Redden v. Jimman, 6 111.

Ei'ror to District Court, Bai'nes County; Rose, J. Norman Markuson was convicted of contempt of court, and brings error. A writ of eri'or is the pi'oper remedy by which to review a judgment for contempt. Sections 7499, 7500 and 7502, Comp. Laws; State v. Knight, 54 N. W. Rep. 413; State v. Sweetland, 54 N. W. Rep. 416; Gandy v. State, 14 N. W. Rep. 146; Myers v. State, 22 N. E. Rep. 43; In re Smith, 7 N. E. Rep. 685; Wyatt v. People, 28 Pac.

<p>Appeal — -Trial DeNovo.</p> <p>This is an action at law, and was tried to a jury. After the testimony was introduced, and counsel for both sides had rested the case, it was agreed in open court that the jury might be discharged, and the case be submitted for determination to the court. The jury was accordingly discharged, and the court made and filed its findings, and judgment was entered thereon. Held, that the case is not triable “anew” in this court, under Ch. 82, Laws 1893. That chapter applies only to such cases as are “tried by the District Court without a jury.” This action was not so tried.</p> <p>Certificate of Trial Judge.</p> <p>The judge’s certificate appended to the record sent to this court certified only that such record contained all testimony “taken” at the trial. Held, that this does not bring the case within the terms of said chapter 82, which requires that all evidence “offered” in such cases “shall be taken down in writing,” and that “all evidence taken as provided by this section shall be certified by the judge.”</p> <p>Specifications and Assignments of Error.</p> <p>A bill of exceptions was settled below, and is embraced in the record sent to this court; but the same does not contain any specifications of error occurring at the trial, nor any exception pointing out wherein any finding of fact is not justified by the evidence. No errors are assigned in the brief of appellants’ counsel filed in this court. Held, under the statutes and rules of court, and upon the authority of Hostetler v. Elevator Co., 61 N. W. 49, 4 N. D. 357, that this court will not examine the record for the purpose of reviewing errors in the procedure below.</p>

<p>Specification of Error in Bill.</p> <p>The defendant moved in the District Court, upon a bill of exceptions, to vacate the verdict and for a new trial, and, from an order denying the motion, appeals to this court. The bill of exceptions embodied no specifications of error. Held, that alleged errors of law occurring at the trial, and discussed in the appellant’s brief, will not be reviewed by this court. Hostetler v. Elevator Co., 61 N. W. 49, 4 N. D. 357; Illstad v. Anderson, 49 N. W. 659, 2 N. D. 167; First Nat. Bank of Devils Lake v. Merchants Nat. Bank of Devils Lake, 64 N. W. 941, 5 N. D. 161.</p> <p>Assignments of Error — Rule Fifteen.</p> <p>In their brief filed in this court, counsel for appellant have attempted to assign certain errors of law occurring at the trial, which errors are discussed at length in such brief. There were and could be no specifications of errors in the abstract, as none were contained in the bill; and there was no attempt in the assignments of error appended to appellant’s brief to refer to any page in the abstract where any specification of error could be found. Held., that such attempted assignments of error were insufficient, under Rule 15 of the Supreme Court Rules. 3 N. D. xiii.</p>

<p>Constructive Notice — Facts Sufficient to Excite Inquiry.</p> <p>A person who has knowledge of facts sufficient to pul a prudent man on inquiry with regard to the existence of an unrecorded deed, and fails to make such inquiry, cannot claim protection as a bona fide purchaser under the recording act.</p> <p>Instrument Out of Chain of Title.</p> <p>Actual knowledge of the existence on the public records of an instrument purporting to be a mortgage of the property he is about to purchase is notice to such purchaser of the existence of the original mortgage, and knowledge of such mortgage, although the same is given by one who appears by the records to have no title to the land, is sufficient to make it the duty of the purchaser to inquire whether the mortgagor, who asserts in the mortgage that he owns the land, is not in fact the owner thereof.</p> <p>Chargeable with the Notice Inquiry Would have Disclosed.</p> <p>If, with such knowledge, he parts with the consideration for the land without making any investigation as to the title of the mortgagor, when such investigation would probably have led to a discovery of such title, he is chargeable with notice of it.</p> <p>Ignorance of a Recorded Instrument, Out of Chain of Title.</p> <p>But the mere recording of an instrument out of the chain of the title will not, of itself, constitute constructive notice of such instrument, so as to bind one who deals with the apparent owner of the land according to the record, in ignorance of the existence of such instrument.</p>

<p>Liability of City for Defective Sidewalk — Proximate Cause.</p> <p>Plaintiff was injured by stepping into a hole in the sidewalk made by the displacement of a loose plank, which was thrown out of its position by a passing bicycle just as plaintiff was about to step on it, so that she stepped into the hole instead. Held., that, the defendant being, under the circumstances, liable for the defective condition of the walk, it was liable for the damages sustained by the plaintiff upon two principles: First, that the loose plank was one of the proximate causes of the injury; second, that when two causes combine to produce an injury to a traveler upon a public street or highway, both of which are in their nature proximate, the one being a culpable defect in the highway and the other some occurrence for which neither ¡rarty is responsible, the city is liable if the injury would not have been sustained but for the defect for which the city is responsible.</p> <p>Existence of Defect — Constructive Notice.</p> <p>When the defect is a loose plank in a sidewalk, it is competent to prove that the sidewalk at that place had been in dilapidated condition for a long time, as bearing on the question whether the particular defect which caused the injury had existed for a sufficient length of time to give the city constructive notice thereof; and such evidence is sufficient for that purpose.</p> <p>Recovery for Medical Attendance by Married Woman.</p> <p>A married woman, who has in fact, incurred liability for medical attendance made necessary by an injury for which another is liable, may recover as part of her damages a sum equal to the amount of such liability the same as a feme sole, although she has not paid for such medical attendance at the time of trial.</p>

<p>Contempt — Judgment of Imprisonment — Effect of Suspending Sentence.</p> <p>On June 29, 1895, petitioner was convicted of a criminal contempt of court, and judgment was entered of record against him in substance as follows: “That petitioner be imprisoned in the county jail of Barnes County for a period of ninety days, commencing with to-day at noon; that he pay a fine of $200, and if default be made in the payment of the fine he shall be imprisoned as many days as two dollars is contained in two hundred dollars, — or one hundred days.” Immediately after said judgment was entered the court, of its own motion, made certain orders in the case, which were entered of record, to the effect: First, that in case an appeal was taken the time should commence to run from the dale of the remittitur being filed in the District Court. Second, that the judgment be suspended 30 days, unconditionally, to facilitate an appeal to the Supreme Court. Third, the court ordered that the bail bond given to secure the petitioner’s attendance from day to day during the trial in the District Court be and remain valid and binding upon the petitioner, and that petitioner was ordered to obey the further orders of the district Court, whether made by that court, or made to conform to orders of the Supreme Court. Held, that the lime of said imprisonment began to run at noon on June 29, 1895, and that the several orders purporting to suspend or postpone the operation of the judgment were without authority of law, and null and void; that said orders did not operate as a stay or supersedeas, for reasons stated in the opinion of the court.</p>

<p>Action on Contract — Pleading—General Denial.</p> <p>A written contract, which is the basis of the action, is set out at length in the complaint. The contract embraced certain conditions precedent to be performed on plaintiff’s part, and the complaint alleged that “the said plaintiff has fully performed all the conditions of said instrument on her part.” The answer embraced a general denial. On motion the District Court struck out the answer as frivolous. Held, that the answer raised a material issue of fact, which defendant had a legal right to have presented to a jury for determination and hence that the answer was not frivolous. Rule of Sigmund v. Bank, 59 N. W. 966, 4 N. D. 164, followed and applied.</p>

<p>Action on School Bonds — Evidence of Want of Consideration.</p> <p>Under the decision of the court on the former appeal in this case (58 N. W. 499, 4 N. D. 30,) it was held that the defendant could show a want of consideration for the bonds sued on by proving that defendant received neither cash nor audited and canceled warrants as a conderation for them. For error in refusing to allow such proof the judgment is reversed.</p>

Action by William Braithwaite against W. B. Jordan and others on an appeal bond. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Courts of admiralty exercise a dual jurisdiction (a) as instance courts, (b) as prize courts. 3 Blackst. Com. 108, n. 14; Percival v. Hickey, 18 Johns. 257; Doanes Adm. v. Peiihattow 1 Dali. 218. As instance courts they are governed by one system of laws, and as prize courts by another system. 3 Blackst. Com. 108.

<p>Instruction as to Credibility of Witness.</p> <p>It is error for a court to instruct the jury that, if they believe that a witness has testified falsely as to any material fact in the case, they have a right to wholly disregard his testimony, except so far as it is corroborated by other credible evidence in the case, either positive or circumstantial. They should be told that this is the rule only in cases where the witness has willfully or knowingly or intentionally testified falsely. A presumption of prejudice arises from an error which might operate to the injury of the party against whom it was committed, and the burden is on the respondent on appeal to show that the appellant was not in fact injured by such error.</p> <p>Appeal from Judgment — Review of Charge.</p> <p>An error in the charge of the court to the jury can be reviewed on appeal from the judgment without a motion for a new trial being made.</p>

Action by the Security Bank of Minnesota against John P. Kingsland and others on notes. There was a verdict for plaintiff, and from an order granting a new trial plaintiff appeals. ' A denial that plaintiff is the owner and holder of the notes in suit, raises no issue. It does not meet the allegation of endorsement upon which plaintiffs title depends. Poorman v. Mills & Co., 35 Cal. I2i; Wedderspoon v. Rodgers, 32 Cal. 569; Fleury v. Rodgers, 9 How.

Action by Charles J. Stewart against Joel S. Parsons and Louisa F. Parsons. Judgment for plaintiff, and defendants appeal from an order denying defendant’s application to vacate a judgment and to be allowed to come in and answer.

<p>Stable Keeper’s Lien.</p> <p>The lien given to a stable keeper by § 5486, Comp. Laws, is not lost, even as to an attaching creditor, because the horse is temporarily in the possession of the owner when it is levied on, who is using it in the usual manner; it being the purpose of the owner to return the horse to the stable as soon as he finishes his temporary use of it; the arrangement under which the horse is being boarded being still in existence at the time the levy is made.</p>

Action by Mary Ouverson against the City of Grafton for injuries resulting from an obstruction in a street. There was a verdict for plaintiff, and from an order denying a new trial defendant appeals. An object in the highway with which the traveler does not come in contact or collision and which is not an obstruction in the way of travel is not to be deemed a defect.

<p>Specific Performance — Contract to Control Stock of Another, at Stockholders Meeting.</p> <p>Equity will not specifically enforce a contract to give a minority stockholder the right to control the stock of another and vote it at a stockholders’ meeting, where the sole purpose is to secure control of the corporation by the use of such stock.</p> <p>Contract Contrary to Public Policy — Rescission.</p> <p>Therefore, when such a contract has been made, and on the strength of it the promisee has suffered to pass beyond his control stock which, in connection with stock owned by him, would have given him control of the corporation, and thereafter the promisor threatens to sell his stock to the opposing faction, and thus give them control of the corporation, and the promissee, to save himself from defeat in his project to secure control of the corporation, purchases such stock at a figure much in excess of its normal market value, such contract of purchase cannot thereafter be rescinded, but the purchaser must pay the stipulated price.</p> <p>Illegal Consideration.</p> <p>A contract to allow another to control the voting of stock, based upon a promise of the one who is to control such stock to secure for the owner of the stock an office -in the corporation, is illegal; and the whole contract is void, although the illegal consideration (i. e. the promise to secure for the owner of the stock a corporate office) constitutes only a part of the consideration for the agreement to give such promisee control of the stock.</p>

<p>Acceptance of Notes on Approval as Payment.</p> <p>Defendant, in settlement of a conceded balance due from him to plaintiff, paid the latter a portion of it in cash, and turned over to plaintiff certain notes of third persons, which were to be accepted by plaintiff in payment of the balance, if approved by plaintiff. Held, that the duty rested on plaintiff of ascertaining whether it would accept such notes as payment, and of notifying defendant as to its decision within a reasonable time after the delivery of the notes.</p> <p>Delay in Giving Notice of Approval.</p> <p>Held, further, that plaintiff having failed for a period of over 40 days after receiving the notes to notify defendant that it did not approve them, it was a question of fact for the jury whether they had not waited beyond a reasonable time to make manifest their disapproval, and were therefore to be deemed to have accepted them as payment.</p>

<p>Parole Evidence Inadmissable to Vary Written Contract.</p> <p>Before parole evidence can be admitted to contradict the terms of a written contract, on the ground of mistake, it must clearly appear that such mistake was mutual. Hence, when the testimony of a witness showed that he had talked but with one paaty to the contract, it was not error to refuse to let him state his understanding of what the contract between the parties was, for the purpose of establishing a mistake in the written contract.</p> <p>Parole Statements of Agent Made Prior to Execution of Contract and not in Writing — Nonenforceable.</p> <p>A. and L. guaranteed the due performance of and compliance with all the terms of the contract whereby R. was appointed agent for W. D. & Co., a corporation, on the part of R. as such agent. A general agent acted for the corporation in making the contract. The guaranty contract was on the same sheet with the agency contract. The agency contract stated'on its face that W. D. & Co. would not be bound thereby until the contract was accepted and approved at the home office in Chicago. Held, that A. and L. could not enforce, as against W. I). & Co., certain prior parole statements of the general agent, not incorporated in the written contract which was subsequently approved by the corporation.</p> <p>Modification.</p> <p>Held, further, that when the guaranty contract recited that the liability of the guarantors could not be modified or canceled, except in the manner therein specified, A. and L. could not insist upon a modification of such liability on ^ other and excluded grounds.</p> <p>Guarantors Ignorance of Contemporaneous Parole Contract.</p> <p>Held, further, that while the agent, R., agreed by parol with the general agent that his commissions for handling a certain article should be used to reduce his prior indebtedness to W. D. & Co., W. D. & Co. was under no duty to impart this agreement to the guarantors, and their ignorance of it furnished no defense to an action on the contract of guaranty.</p> <p>Guarantors not Entitled to Credit for Pledged Collaterals Securing Defalcation.</p> <p>R. defaulted largely in complying with the terms of his agency contract, and turned over to W. D. & Co. an amount of notes and accounts as collateral to his indebtedness under the contract. Held, that W. D. & Co. was not obliged to exhaust the collaterals before proceeding against the guarantors, nor were they (the guarantors) entitled to be credited with the value of such collaterals.</p>

<p>Vendor and Purchaser — Executory Contract.</p> <p>Under an executory contract of sale of land, where the purchaser was let into possession, with full use of the premises, but bound to pay a stipulated price therefor, and to pay each year 1 ‘so much as the one-half of all crops on said land shall amount to,” held, that no relation of landlord and tenant could arise under such contract, nor would the parties be tenants in common of the crops grown on such land by the vendee, unless the contract created such relationship by express language or necessary implication. *</p> <p>Construction — Title of Crops.</p> <p>Contract examined, and held not to constitute a transfer to the vendor, or a reservation in him of any title or ownership in or lien upon the crops to be grown on the land by the vendee.</p>

<p>Chattel Mortgage of Future Earnings.</p> <p>In this state it is competent for the owner and operator of a “threshing rig” to mortgage the future earnings thereof.</p> <p>Filing.</p> <p>But such mortgage must be filed for record in the same manner as a mortgage upon any other personal property, and, if not so filed, it is void as against a creditor of the mortgagor who became such in ignorance of the existence of the mortgage, after the same was executed, and before it was filed for record, relying upon the mortgagor’s apparant ownernership of such earnings.</p>

<p>Same Facts May be Plead Both as a Defense and Counterclaim.</p> <p>The same facts may constitute a defense to a claim made by plaintiff, and at the same time entitle a defendant to an affirmative judgment against plaintiff in excess of the claim made by the plaintiff; and, when such is the case, a defendant may plead such facts, both as a defense and as a counterclaim, and cannot be compelled to elect upon which he will rely.</p> <p>Defense of Non-performance of Contract.</p> <p>In an action to recover upon a contract to furnish materials and labor for plastering a house, the plastering to be of a certain quality, an answer which sets forth that the plastering was not such as the contract required, and that by reason of the inferior materials us'ed and unskillful workmanship the plastering was worthless, and of no benefit to defendant whatever, states a good defense.</p> <p>Evidence Sustains Finding of Fact.</p> <p>Evidence examined, and held to establish that the plastering done in this case by plaintiffs for defendant was not according to their contract, and was of no benefit whatever to defendant.</p> <p>Recovery of Money Paid by Mistake.</p> <p>And held, under these facts, that when the defendant had made a payment upon such contract before he knew of the inferior and worthless quality of the plastering, he was entitled to recover back the amount so paid.</p>

<p>Original proceeding on the relation of E. Ashley Mears against O. G. Barnes, sheriff, for discharge on habeas corpus.</p>

<p>Original application on the relation of Dwight S. Moore against O. Wellington Archibald for a writ of mandamus.</p>

Certiorari on the petition of R. S. Lewis against R. Gallup, justice of the peace, and O. G. Barnes, sheriff. Writ quashed, and petitioner appeals. Certiorari is the proper remedy. The judgment being rendered as by default it is doubtful whether appellant could have appealed at all. 2 Enc. PI. & Pr. 102; Wiggins v. Henderson, 36 Pac. Rep. 459.

Action by the First National Bank of Hastings, Minn., and others, against Joseph Lamont and others. From a judgment for defendants, plaintiffs appeal. The weight of authority is that a homestead right cannot be acquired in real property the title to which is held by tenents in common. Waples on Hd. & Ex. 131-140; Threshing Machine Co. v. Joyce, 16 S. W. Rep. 147. A partner cannot acquire a homestead right in real property owned by the firm.

<p>Appeal — Dismissal—Entry of Judgment.</p> <p>An order of the District Court, entered in its minutes by the clerk of that court, directing the dismissal of an appeal taken to the District Court from a judgment entered in a county court, does not itself accomplish the dismissal of the appeal. Until a judgment is entered in the District Court upon such order, the action will be pending in the District Court; and, while the action is pending in the District Court an appeal will not lie to this court from the county court, in which the judgment was originally entered.</p> <p>Same.</p> <p>This rule is the same whether the order of dismissal made by the District Court is made upon the appellants motion or upon the motion of his adversary.</p>

<p>Usury — What Constitutes — Failure to State Rate of Interest Separately.</p> <p>Where in the notes given for a loan of money and the mortgage securing the same, the rate per cent, of interest agreed to be paid for such loan is not separately stated, such fact alone will not make the transaction usurious and void, under § 4, Ch. 184, Laws N. 1). 1890. Nor can a court declare such notes and mortgage void for that reason, under the provisions of section 10 of said statute, as said section was not intended to create any new penalty, or to make any contract void that was not declared usurious by the other sections in the act.</p>

Application by the State of North Dakota, on the relation of B. F. Scovil, against William S. Moorhouse, as auditor of the County of Burleigh, for mandamus. From a judgment denying the writ, plaintiff appeals.

<p>Negotiable Note — Guaranty of Payment.</p> <p>When the payee of a negotiable promissory note transfers it by indorsing thereon a guaranty of payment, the purchaser is an indorsee, within the rule protecting an innocent purchaser of such paper for value, and before maturity, against defenses good between the original parties.</p> <p>Indorsee for Antecedent Debt Protected.</p> <p>One who, in the usual course of business, takes such paper in payment of an antecedent debt, is a purchaser for value, within the spirit of the rule that the business world shall be protected in dealing with such paper.</p>

Application by F. C. Myrick and J. D. Gordon for the removal of George H. McCabe from the office of sheriff of Pembina County. From an order overruling the demurrer of the defendant, he appeals.

<p>Summons — When Issued.</p> <p>Under section 4993, Comp. Laws (section 5354, Rev. Codes,) a summons is “issued” when it is duly drawn and signed with the intention that it be served, even though it yet remained in the hands of plaintiff’s attorney.</p> <p>. Right to Answer After Default.</p> <p>When, under Subd. 5, § 4900, Comp. Laws (section 5260, Rev. Codes,) application is made by a party on whom service has been made by publication before judgment, but after he is in default, for leave to serve an answer and defend in the case, when the court holds that sufficient cause has been shown, the right of such party to defend against the claim of plaintiff and the whole thereof is absolute.</p>

Action by the Northwestern Cordage Company against D. E. Rice. From a judgment for plaintiff, defendant appeals. The oral agreement to allow a rebate for damages was valid and did not vary the terms of the notes. Brayley v. Henry, 12 Pac. Rep. 621; Maltz v. Fletcher, 18 N. W. Rep. 228. Such-’an agreement as is contended for may be shown. Dickens v. Morgan, 7 N. W. Rep. 145; Buscher v. Knapp, 8 N. E. Rep. 263; Staab v. Ortiz, 1 Pac. Rep. 857.

Action by C. A. Christianson and J. E. Stair against the Farmers’ Warehouse Association. From a judgment for defendant, plaintiffs appeal. A contract must not be construed so as to deprive it of all force if it is susceptible of another construction. Wing v. Glick, 56 la. 473, 9 N. W. Rep. 384; Dewey on Contracts, 45; Story v. Solomon, 71 N. Y. 420. The evidence shows that Mann-Fraser Co., understood the purchases were for hedges.

<p>Appeal from District Court, Grand Forks County; Templeton, J.</p> <p>Action by Alexander Anderson against the First National Bank of Grand Forks. From an order directing a verdict for defendant, plaintiff appeals.</p>

Action by Joseph Seybold against the Grand Forks National Bank. Charles H. Baldwin, administrator, intervened. From a judgment for plaintiff, defendant and intervener appeal. The action must be brought in the name of the real party in interest and not by the person in whom the mere naked apparent legal title is vested. Sections 5221, 5223, Rev. Codes; Pom. Rem. 156. The assignee must hold both the legal and equitable title to be the real party in interest.

<p>Notice to Attorney is Notice to Client.</p> <p>Notice to the attorney for defendant of the entry of judgment against such defendant is notice to the defendant, within the meaning of the statute (section 4939, Comp. Laws) which confers upon the District Court power to relieve a party from a judgment entered against him through his mistake, inadvertence, surprise, or excusable neglect within one year after notice thereof.</p> <p>Notice of Motion to Vacate Judgment by Default.</p> <p>It is not sufficient that the notice to vacate a judgment under this statute is made within the year. It must also be submitted and decided within the year. But the court may, to prevent injury to the suitor through its own delay in deciding the motion, direct that the order granting the relief be made and entered nunc pro tunc as of the time when the motion was finally submitted.</p>

<p>Factor’s Lien — Delivery of Possession.</p> <p>The lien of a factor is dependent on possession. A delivery of property to a carrier by the owner, to be shipped to another point, not the place of business of the factor, and the taking by the owner from the carrier of a bill of lading in the name of such factor, and forwarding it to him, are not conclusive on the question of the intent of the owner to deliver possession to the factor, where there are other facts in the case tending to show that it was not the purpose of the owner to surrender possession to the factor, but that the object of shipping in the name of the factor was to obtain the benefit of a through rate, which’ could not be attained if the shipment was made part of the way in the name of the owner, and thereafter the balance of the distance to the place of business of the factor in his name.</p>

Action by Anna Greenberg against the Union National Bank of Grand Forks. Verdict for plaintiff. From an order denying a new trial, defendant appeals. The object of the statute is not only to protect the credit of the mortgagor but to protect the title to the land and enable the owner to remove all clouds from the title. Jones v. Fidelity Co., 63 N. W. Rep. 554; Deeter v. Crosley, 26 la. 180; Thomas v. Reynolds, 29 Kan. 309.

Herbert Root was convicted of contempt of court, and suspended from practicing as an attorney at law, and appeals. Contempt of court is a criminal offense, and a proceeding to subject a defendant to the penalties fixed by law for contempt of court is a criminal action. Sections 5159, 7746, Rev. Codes; State v. Markuson, 64 N. W. Rep. 934; Fisher v. Hayes, 6 Fed. Rep. 63; Durant v. Supervisors, 1 Woolworth, 377; Ex parte Kearney, 7 Wheat, 38; In re Mulle, 7 Blatchf. 23.

Jacob Bronkol was convicted of selling mortgaged property, and appeals. The jury having been impaneled and sworn jeopardy attached. People v. Sam Chung, 29 Pac; Rep. 642; Franklin v. State, 11 S. E. Rep. 876; Lee v. State, 26 Ark. 260; People v. FPunckeler, 48 Cal. 331; Foster v. State, 7 So. Rep. 185; Ex parte Snyder, 29 Mo. App. 256; Ex parte Ulrich, 42 Fed. Rep. 587; State v. Snyder, 12 S. W. Rep. 369; State v. Snyder, 11 S. W. Rep. 1036; State v. St. Clair, 7 So.

William W. Pancoast, informed against as Myron R. Kent, was convicted of murder, and brings error. The change of venue from the Sixth Judicial District to the Third Judicial District, after the trial had begun, was without authority of law. Section 7312, Comp. Laws. The court was without jurisdiction, and defendant could not confer jurisdiction by consent.

Action by Robert Coulter against the Great Northern Railway Company. From a judgment for defendant, plaintiff appeals. The crossing in question was a public crossing within the purview of section 2976 of the Revised Codes. C. B. & Q. Ry. Co. v. Metcalf, 28 L. R. A. 824; C. & A. Ry. Co. v. Dillon, 24 111. App. 203; Missouri Pac. Ry. Co. v. Lee, 7 S. W. Rep. 857; Cranston v. N. Y. Cent. Ry. Co., n N. Y. Supp. 215, affirmed 26 N. E. Rep. 756; Ewen v. C. & N. W. Ry.

<p>Appeal from District Court, Grand Forks County; Templeton, J.</p> <p>Action by Alexander Finlayson against Peter C. Peterson. Judgment for defendant, and plaintiff appeals.</p>

Application by the state, on the relation of John Little and others, against H. A. Langlie and others, for mandamus. From an order denying a peremptory writ, relators appeal.

<p>Ferry Law — Constitutionality.</p> <p>The statute authorizing boards of county commissioners of the several counties of the state to grant exclusive ferry franchises for a period of years to the highest bidder therefor is not repugnant to section 20 of the constitution, which declares that no privileges or immunities shall be granted to any citizen or class of citizens which shall not be granted to all citizens on the same terms.</p> <p>Exclusive Franchise.</p> <p>No one has a right to operate a public ferry for toll without authority from the state. The franchise granted by it to a person or corporation to run a ferry may be, and usually is, an exclusive franchise.</p> <p>Legislative Control Absolute.</p> <p>Whether the state will itself operate the public ferries within its borders, or whether it will confer this right on others, and the terms on which it will give others this special privilege, and whether an exclusive franchise shall be granted, — these and all other questions connected with the subject are abso- , lutely within the control of the legislature.</p> <p>Remedy by Injunction.</p> <p>Injunction is the proper remedy to employ when one without authority of law is operating a ferry to the injury of another, who is the owner of a ferry franchise.</p> <p>Legality of Grant.</p> <p>Certain questions relating to the legality of the plaintiff’s franchise examined, and the franchise held to have been legally granted to plaintiff by the board of county commissioners of the proper county.</p> <p>Powers of Commissioners.</p> <p>The board of county commissioners to which an unorganized county is attached for judicial purposes has no power to grant a ferry franchise between points one of which is within the unorganized, but neither of which is within the organized county, whose board granted the franchise.</p>

<p>Conversion by First Mortgagee.</p> <p>Where the mortgagee, holding a first mortgage, after talcing possession of property under his mortgage, sells the same without foreclosure, and at private sale, such sale is a wrongful conversion of the property, and operates to extinguish the lien of the mortgage.</p> <p>Measure of Damages in Conversion by Junior Incumbrances.</p> <p>*</p> <p>Where, in such case, a second mortgagee brings an action against the first mortgagee for the wrongful conversion of the property covered by the two mortgages, his measure of damages is the value of the property converted, modified by the principle of compensation for the actual injury suffered on account of the wrongful conversion.</p> <p>First Mortgagee Can Recoup Value of Special Interest.</p> <p>In such case the defendant is liable for the value of the property converted, but will be allowed, upon principles of equity, and to avoid circuity of action, to recoup damages to the value of his special interest in or lien upon the mortgaged property. The plaintiff can only recover to the extent of his actual loss.</p> <p>Conversion Without Damage.</p> <p>Where, in such case, the value of the property sold was" less than the amount secured by the defendant’s mortgage, and the sale was without fraud, the plaintiff can recover no damages, because he suffers none, as a result of the wrongful act of which he complains.</p>

<p>Constitutional Law — Taxation—Interstate Commerce.</p> <p>Sections 1738-1743, both inclusive, of the Revised Codes, are unconstitutional and void so far as they attempt to tax persons engaged in the occupation of offering for sale by samples in this state goods to be shipped into it from -another state, to fill the orders for goods so obtained. Thej> are void as unlawfully interfering with interstate commerce. The statutes, being void as to such persons, are void as to all others, as it cannot be assumed that the legislature would have discriminated against the business interests of the state by passing a law imposing burdens upon such interests which would not affect similar business interests of nonresidents, the precise contrary being shown by the provisions of the act.</p>