Volume 51 — Minnesota Reports

Appeal by plaintiff, Daniel Aberle, doing business as D. Aberle & Co., from an order of the District Court of Traverse County, C. L. Brown, J., made January 18, 1892, denying his motion for judgment against A. M. Graham, garnishee, upon his disclosure.

Appeal by plaintiff, Walter Breen, from an order of the District Court of Hennepin County, Hicks, J., made March 14, 1892, granting a new trial. The plaintiff was in the employ of the Washburn-Crosby Company, assisting in loading cars with flour at the mill known as the Washburn “C” Mill, in Minneapolis.

Appeal by plaintiff, The St. Louis River Dalles Improvement Company, from an order of the District Court of Ramsey County, Kerr, J., made November 21, 1891, refusing a new trial. The plaintiff, a corporation, was organized in 1874 under the General Laws of this state.

Appeal by defendant, The Chicago, Milwaukee and St. Paul Railway Company, from an order of the District Court of Faribault. County, Severance, J., made July 23, 1891, refusing a new trial. The plaintiff, Peter Kremer, was at the time of the commencement of this action, and had been since 1886, the owner of thirteen hundred and forty-five acres of land in sections twenty-eight, twenty-nine, thirty-two and thirty-four, in township 105, range 25, Blue Earth County, Minnesota.

Appeal by defendant, The Farmers’ Mutual Insurance Company of Manchester, Freeborn County, Minnesota, from an order of the District Court of Freeborn County, Farmer, J., made March 25, 1892, refusing a new trial. This action was brought by the plaintiff, Elling A. Soli, to recover on a policy of fire insurance. The facts are fully stated in the opinion.

Appeal by defendant, the Farmers’ Mutual Insurance Company of Manchester, Freeborn County, Minnesota, from an order of the District Court of Freeborn County, Farmer, J., made March 25, 1892, refusing a new trial. This action and the preceding ease of Soli against the same defendant were tried together in the court below, and the findings in this case were the same as in that. Judgment was ordered for the sum of $75, interest and costs.

Appeal by defendants, The Duluth, Crookston & Northern Railroad Company, William Anglim, Louis Ellington, and C. O. Christianson, from a judgment of the District Court of Polk County, Mills, J., entered February 8, 1892. This action was brought by the plaintiff, George J.. McManus, a resident and taxpayer of the city of Crookston, Polk County, Minnesota, against the defendants, the City of Crookston, Wm.

Appeal by defendant, the St. Paul City Railway Company, from an order of the District Court of Ramsey County, Kelly, J., made-September 16, 1891, refusing a new trial. This action was brought by the plaintiff, David Newhart, Jr., against the defendant, to recover for injuries sustained by him in March, 1888, in attempting to set a defective brake on one of defendant’s cable ears.

Appeal by plaintiffs, Llewellyn A. Cobb and Alfred F. Norrish, formerly copartners as Cobb & Norrish, from an order of the District Court of Dakota County, Crosby, J., made March 22, 1892, refusing a new trial. On November 30, 1888, the plaintiffs, Llewellyn A. Cobb and Alfred F. Norrish, and the defendant, John E. Cole, were equal partners, dealing in grain at Minneapolis as L. A. Cobb & Co. On that date, the firm dissolved by mutual agreement.

Appeal by plaintiff, The Minneapolis Co-operative Company, from a judgment of the District Court of Hennepin County, Canty, J., entered March 17, 1892, dismissing the action, and for $49.27, costs.

Appeal by defendant, The Northwestern Mutual Life Insurance Company, from a judgment of the District Court of Hennepin County, Smith, J., entered March 4, 1892, for the sum of $407.46. April 16, 1869, the defendant, The Northwestern Mutual Life Insurance Company, issued to one Hermann Bunse a policy of life insurance. The material parts of the policy are stated in the opinion, Bunse lived until after the policy matured. In June, 1893, it was assigned to the plaintiff.

Appeal by plaintiff, John P. Elmborg, from an order of the District Court of Eamsey County, Kelly, J., made October 20, 1891, refusing a new trial.

Appeal by T. R. Eoley, one of the defendants, from an order of the District Court of Crow Wing County, Holland, J., made August 28, 1891, overruling his demurrer to the complaint. This action was brought by George Wetherby, J. N. True, and J. H. Warner, partners as Wetherby, True & Warner, against L. E. Weaver and T. R. Eoley. The complaint alleged that the plaintiffs were partners doing business as attorneys at law.

<p>Appeal by plaintiff, John Noerenberg, and by defendants John Boldthen, Henry Pintz, John Helland, Phillipe Therrier, Adam Decker, George Decker, Paul Quehl, Frank E. Elmund, Gustav Carlson, Boland C. Libby, and William Thompson, from a judgment of the District Court of Bamsey county, Brill, J., entered March 10, 1892, adjudging the mortgage of defendant John L. Barnes to be a lien on the real estate therein described, superior to the liens of the appellants.</p> <p>September 8, 1890, John L. Barnes was the owner of lot 10, Block 1, Bryant’s Park Addition No. 3, in St. Paul, Minnesota. On that date he conveyed the lot to Christina G. Johnson, and at the same time Christina G. Johnson executed and delivered to Barnes a mortgage on the lot to secure part of the purchase money. The mortgagee, Barnes, signed the mortgage as a witness, and there was but one other subscribing witness to the' mortgage. The deed was recorded October 22, 1890, and the mortgage September 29, 1890. The appellants, in October, 1890, and thereafter, furnished material and performed labor in the erection of two dwelling houses on the premises. None of them had actual notice of the mortgage to Barnes.</p> <p>This action was brought to foreclose one of the mechanics’ liens for work done on, and material furnished for, the houses. Barnes was made a defendant. The trial court adjudged the mortgage to Barnes, though not recorded, superior to the liens, and ordered the premises sold, subject to the mortgage.</p> <p>If liens for labor and material are not superior to secret and unrecorded mortgages or conveyances, the law opens the door not only to hardship, but to actual fraud.</p> <p>1878 G. S. ch. 40, § 21, provides that every conveyance not recorded shall be void as against any subsequent purchaser in good faith, and for a valuable consideration, whose conveyance is first duly recorded.</p> <p>Section 25, provides that the term purchaser shall be construed to embrace every person to whom any estate or interest in real estate is conveyed for a valuable consideration. Section 26, provides that the term conveyance shall be construed to embrace every instrument in writing by which any estate or interest in real estate is created, aliened, mortgaged, or assigned, or by which the title to any real estate may be affected in law or equity.</p> <p>Mechanics’ liens are not here referred to in express terms; that is not necessary. The registry acts are interpreted according to the general intention of the legislature, rather than according to the strict language. Lamberton v. Merchants’ Nat. Bank, 24 Minn., 281; Dyer v. Thorstacl, 35 Minn. 534. The cases of Gonter v. Farrington, 46 Minn. 336, and Hill v. Aldrich, 48 Minn. 73, assume that mechanics’ liens are within the spirit of, and are protected by, the recording acts. We claim that a mechanic’s lien is also within the letter of the registry acts. Why is it not a conveyance, as much as is a release? Palmer v. Bates, 22 Minn. 532. As a. matter of fact a mechanic’s lien is in the nature of a statutory mortgage. It has all the elements of a mortgage. It may also bespoken of as an attachment. Atwater v. Manchester Savings Bank, 45 Minn. 341.</p> <p>The cases upon the converse of this proposition are from New York, where the policy with reference to the registry act is diametrically opposed to that in this state. Farmers’ Loan & Trust Co. v. Hendrickson, 25 Barb. 484; Stevens v. Buffalo é N. Y. City B.. Co., 31 Barb. 590.</p> <p>Mechanics’ liens are within the spirit and letter of the recording-act. Oliver v. Davy, 34 Minn. 292; Confer v. Farrington, 46 Minn.. 336.</p> <p>Mechanics’ lienors are, as to such liens, bona fide purchasers, for value under the statute. 1878 G. S. ch. 40, §§ 21, 25, 26.. They have parted with value on the faith of the recorded title, in. which respect they stand in a different position from judgment, creditors or attaching creditors. Holden v. Garrett, 23. Nan. 98. The recording acts should be held to protect all instruments of' whatever nature, affecting land which one obtains for a valuable-consideration. There is no way to construe the mechanic’s lien law which will make it safe for parties to act on the faith of it, unless, such liens are protected from unrecorded conveyances or incumbrances.</p> <p>Under our recording act, an unrecorded mortgage must be regarded as taking precedence over mechanics’ liens. Before the statute. was changed so as to expressly protect judgment and attaching creditors, an attaching creditor was held not a bona fide purchaser. Greenleaf v. .Edcs, 2 Minn. 264, (Gil. 226;) Baza v. Arper, 6 Minn. 220, (Gil. 142;) Dunwell v. Bidwell, 8 Minn. 34, (Gil. 18.) In order to construe the statute so as to cover mechanic’s lien creditors, it must be held that a mechanic’s lien is a conveyance; that a mechanic’s lien claimant is a purchaser in good faith. That this is not the law, the following authorities show: Holden v. Garrett, 23 Kan. 93; Kelly v. Mills, 41 Miss. 267; Stilwell v. McDonald, 39 Mo. 282; Pixley v. Huggins, 15 Cal. 127; First Nat. Bank v. Hayzlett; 40 Iowa, 659; Oliver v. Davy, 31 Minn. 292; Munger v. Curtis, 42 Hun, 465; Payne v. Wilson, 11 Hun, 302; Miller v. Stoddard, 50 Minn. 272.</p>

Appeal by defendant, Andrew N. Nelson, from an order of the District Court of Eamsey County, Otis, J., made September 29, 1891, overruling his demurrer to the complaint. This action was brought by the plaintiff, The Board of County Commissioners of Bamsey County, against the defendant, Andrew N. Nelson, to recover the sum of $15,599.50, being the amount of fraudulent certificates for jury duty paid by him as County Treasurer of Ramsey County.

Appeal by plaintiff, Gunner Smith, an infant, by Jens G. Smith, guardian ad litem, from' an order of the District Court of Hennepin County, Hicks, J., made March 9,1892, denying his motion fora new trial. The plaintiff was, on May 25, 1888, in the employ of the defendant, the St. Paul & Duluth Railroad Company, as one of a crew of section men. This action was brought by him to recover for injuries received while engaged in that employment.

Appeal by defendant, The Mille Lacs Lumber Company, from an order of the District Court of Ramsey County, Kelly, L, made March 26, 1892, refusing a new trial. The plaintiff, A. E. Peterson, was on April 27, 1891, a lumber dealer at St. Paul. The defendant was a corporation created and existing under the laws of the State of Minnesota, and engaged in manufacturing and dealing in lumber, having its mills and yards at Milaca, Minn., and its head office at St. Paul.

Appeal by defendants, W. E. Neal, W. H. Eustis and John Gf. Frazer, from an order of the District Court of Hennepin County, Canty, J., made February 20, 1892, refusing a new trial.

Appeal by Samuel W. Hamilton, from a judgment of the District Court of Winona County, Start, J., entered January 7, 1892, awarding him the sum of $3,047.41 as compensation for his land taken by the petitioner. This was a condemnation proceeding instituted by the petitioner the Winona Bridge Bailway Company, to condemn part of lot two, (2,) in section 25, township 107 north, of range 7 west, for railway and bridge purposes.

Appeal by plaintiff, Daniel W. Ham, from a judgment of the District Court of Hennepin County, Canty, J., entered December 7,1891, dismissing the action, and for $34.43 costs. This action was against the defendant, A. B. Johnson, for the reformation and specific performance as reformed, of a contract between the parties for the exchange of real estate.

Appeal by defendants, Austin T. Jenks, and C. P. Holpombe, as Sheriff of Washington County, Minnesota, from an order of the District Court of that County, Williston, J., mad6 in March, 1892, refusing a new trial.

<p>Fraud — Title to Crops — Evidence.</p> <p>Evidence considered, and held to have justified the direction of the trial court to the jury that they find for the plaintiff.</p>

Appeal by plaintiff, E. A. Child, from a judgment of the District Court of Hennepin County, Pond, J., entered March 7, 1892, dismissing the action and for $15.78 costs.

Appeal by defendant, George McNeir, receiver of the First National Bank of Anoka, Minnesota, from an order of the District Court of Hennepin County, Lochren, J., made March 19, 1892, refusing a new trial. This action was brought by the Merchants’ National Bank of St. Paul, Minnesota, against George McNeir, who was appointed by the comptroller of the currency receiver of the First National Bank of Anoka, Minnesota.

Appeal by defendant, John A. Sabin, from a judgment of the District Court of Ramsey County, Brill, J., entered January 25, 1892. This is an action of ejectment brought by the plaintiff, May Alice Banning, to recover from the defendant, John A. Sabin, the possession of certain real estate in Ramsey County, Minnesota. The case has been twice before this court. 41 Minn. 477; 45 Minn. 431.

Appeal by Lombard Investment Company, one of tbe defendants, from an order of the District Court of Meeker County, Powers, J., made March 11, 1892, refusing a new trial. On November 6, 1890, the plaintiff, Else Larson, was the owner of certain real estate in Meeker County, on which there was a mortgage for $500. On that day plaintiff applied to Stevens & Co., bankers at Litchfield, for a loan of $900, and to secure the same, offered to execute a mortgage on this property.

Appeal by the plaintiff, Edwin C. Whitney, from an order of the District Court of Hennepin County, Hicks, J., made March 18, 1892, refusing a new trial. The plaintiff, Edwin C. Whitney, is the assignee of a judgment recovered August 25, 1888, by Samuel Hill, against Winthrop Young, as administrator of the estate of Ovid Pinney, deceased.

Appeal by The Chicago, Milwaukee & St. Paul Railway Company, from an order of the District Court of Mower County, Farmer, J., made February 13, 1892, refusing a new trial. Donald J. Cameron owned a farm of four hundred and forty-five acres in Mower County. Two lines of railroad operated by the appellant had been constructed across this farm and the right of way for each acquired.

Appeal by defendant, The Swedish-Amerioan Bank of Minneapolis, from a judgment of the Municipal. Court of the city of Minneapolis, Mahoney, J., entered January 8, 1892. This action was brought by the plaintiff, Ernst Ahlberg, against the defendant, to recover $257.67, collected by it in Norway for plaintiff, and which it refused to pay over. The court made findings of fact, and ordered judgment for plaintiff. This was entered, and defendant appeals.

Appeal by the Duluth & Winnipeg Railroad Company, from an order of the District Court of St. Louis County, Ensign, 3., made January 23, 1892, refusing a new trial. May 16, 1891, the Duluth & Winnipeg Railroad Co. filed its petition to condemn a right of way one hundred and twenty-five feet ivide, across the southwest quarter of the southwest quarter of section thirty-four, (34,) Township 49, Range 15 West, in St. Louis County, owned by George J. McManus.

Appeal by defendant, The Northern Pacific Elevator Company, from a judgment of the District Court of Wadena County, Holland, J., entered September 30, 1891, for $109.52, damages and costs. Joseph Eeiner, on June 28, 1888, mortgaged to the Plano Manufacturing Company all crops to be harvested during the seasons of 1888 and 1889, on eighty acres of land owned by him in Otter Tail County.

Appeal by N. T. Davies, one of the defendants, from an order of the District Court of Freeborn County, Farmer, J., made August 15, 1892, refusing a new'trial.

Appeal by plaintiffs, Edward M. Johnson and W. H. Hinds, from an order of the District Court of Hennepin County, Lochren, J., made June 18, 1892, refusing a new trial.

Appeal by defendant, Ole T. Nelson, from an order of the Municipal Court of Minneapolis, Elliott, J., made February 11, 1892, refusing a new trial. This action was brought by the plaintiff, Andrew P. Youngberg, against the defendant, on an oral contract of guaranty. Nelson held a note made by one Eaftery for $200.

Appeal by defendants, Henry M. Backus, Edward L. Bradley, Alva W. Bradley and the American Loan and Trust Company, from a judgment of the District Court of St. Louis County, Stearns, J., entered May 13, 1892, adjudging that the plaintiffs, Frank Burke, Jr., Bufus P. Edson, and Wallace Warner, are the owners of the land in dispute. The facts in this case are the same as those in Backus v. Burke, 48 Minn. 260.

<p>Appeal by plaintiffs, Frank Burke, Jr., Rufus P, Edson and Wallace WarTier, from a judgment of the District Court of St. Louis County, Stearns, J., ■entered April 26, 1892.</p>

Appeal by defendant, Thomas Hatton, from an order of the Mu■nicipal Court of the City of St. Paul, Cory, J., made March 30, 1892, •refusing a new trial. Eoyal Plummer, on December 1, 1883, recovered a judgment against Thomas Hatton, before A. H. Bjoraker, a justice of the peace in Eice County, for the sum of $57.86. The judgment was docketed in Eice and Eamsey counties.

Appeal by John F. Travis, one of the defendants, from an order of the District Court of Hennepin County, Smith, J., made March 28, 1892, overruling his demurrer to the reply.

Appeal by Henry Manteuffel, one of the defendants, from an order of the Municipal Court of the City of St. Paul, Cory, J., made May-31, 1892, refusing a new trial. This action was brought by the plaintiff, Charles H. Houlton, against the defendants, Henry Manteuffel and Hedwig Anna Manteuffel, to recover $207 on a promissory note, dated July 1, 1889, due two years thereafter, made by the defendants and payable to the-order of the plaintiff.

Appeal by plaintiffs, Frank C. Griswold, and thirty-nine others, from an order of the District Court of Hennepin County, Lochren, J., made'February 6, 1892, refusing a new trial. William W. Eastman and John L. Merriam, in April, 1866, were the owners of Nicollet Island, in the Mississippi River, above the falls of St. Anthony, and within the corporate limits of the city of Minneapolis. This island is a plateau elevated about forty feet above the river surrounding it.

Appeal by defendant, The Chicago, St. Paul, Minneapolis & Omaha Bailway Company, from an order of the District Court of Bamsey County, Brill, J., made June 27, 1892, refusing a new trial. This action was brought by the plaintiff, George B. Flanders, against the defendant Bailway Company, to recover for personal injuries received by him as stated in the opinion. Issue was joined, and the case tried March 29, 1892.

Appeal by plaintiff, National Investment Company, from an order of the District Court of Eamsey County, Brill, J., made September 7, .1892, refusing a new trial. This action was brought against the defendant, National Savings, Loan and Building Association, to recover the sum of $7,200, upon its written contract to purchase of the plaintiff a certain mortgage for that amount made to it by one W. J. Woolsey.

Case certified from the District Court of Mower County, Farmer, J., in proceedings to enforce payment of delinquent real estate taxes in that county. This is a proceeding instituí ed under the general tax law to recover a judgment against the north half of section twenty-two, (22,) Township one hundred and three, (103,) Range sixteen, (16,) in Mower County, for taxes thereon delinquent on the first Monday in January, 1892.

Appeal by plaintiffs D. M. Finlayson, D. H. Moon and E. Ch Long, partners as D. M. Finlayson Co., and by John J. Biebighauser, one of the defendants, from a judgment of the District Court of Ramsey County, Otis, J., entered July 15, 1891. On December 18, 1889, Joseph Li Forepaugh was the owner of lot two (2) in block three (3) of Forepaugh’s Division “A” to St. Paul.

Appeal by defendant, M. T. Hulett, from an order of the District Court of St. Louis County, Start, J., made April 14, 1892, refusing a new trial. This action was brought by the plaintiff, Hannah Hamilton, against the defendant M. T. Hulett, in November, 1891.

Appeal by plaintiff, Fred H. Gowen, from an order of the District Court of Hennepin County, Smith, J., made July 9, 1892, sustaining a demurrer to the complaint. This action was against the defendants, John W. Conlow and Walter G. Marson, to set aside an execution sale of an undivided half of lot ten (10) in block eight (8) in St. Anthony Falls, Hennepin County, and to have canceled a mortgage for $3,500 on the property, made by Conlow to defendant Marson.

Appeal by the Northern Pacific Railroad Company, one of the defendants, from an order of the District Court of St. Louis County, Ensign, J., made June 28, 1892, appointing commissioners in condemnation proceedings instituted by the Duluth Transfer Railway Company. May 10, 1892, The Duluth Transfer Railway Company filed its petition in the District Court of St. Louis County, to condemn certain lands described therein.

Appeal by plaintiff, Robert P. Lewis, from an order of the District Court of Ramsey County, Kelly, J., made June 2, 1892, striking from the files his demand for another trial of the action. . The plaintiff, in March, 1889, brought an action of ejectment against the defendant, Michael Hogan, for the recovery of certain real estate in Ramsey County.

Appeal by defendant, The Grand Lodge of Ancient Order of United Workmen, State of Minnesota, from a judgment of the District Court of Hennepin County, Lochren, J., entered July 5, 1892. This action was brought by Louisa Perine, as guardian of Edward G. Perine, an infant, against the defendant to recover $2,000 and interest, on account of the death, on August 15, 1886, of his father, Sullivan G. Perine, while a member of Calhoun Lodge No. 92, Minneapolis.

Appeal by defendant P; J. Tostevin, from an order of the District Court of Hennepin County, Lochren, J., made April 18, 1892, ordering him to pay over $60.00 disclosed in proceedings supplementary to execution. The plaintiff, Eobert Christensen, recovered judgment against the defendant, and a writ of execution was returned unsatisfied.

Appeal by plaintiff, Eugene Olivier, from a judgment of the District Court of Carver County, Cadwell, J., entered April 9, 1892. This action was brought by the plaintiff against the defendant, George Cunningham, in September, 1891, in the District Court of Hennepin County.

Appeal by defendant, The Bt. Paul Trust Company, from an order of the District Court of Eamsey County, Kerr, J., made April 22, 1892, refusing a new trial. ■ This action was brought by the plaintiff, Joseph W. Eeynolds, against the defendant, for the alleged conversion by it, on July 13, 1888, of the sum of $1,500, which plaintiff had deposited to the ■credit of Edward-C. Palmer, in the First National Bank of St. Paul, as stated in the opinion.

Appeal by plaintiff, Max Shapiro, from a judgment of the District Court of Crow Wing County, Holland, J., entered September 5,1891. This action was brought by the plaintiff against the defendant, The Western Home Insurance Company, of Sioux City, Iowa, to recover the sum of $400 on a policy of fire insurance. The case was tried before the court without a,jury in May,. 1891, on the- pleadings and stipulated facts.

, and to reverse its order made in April, 1892, denying the petition of John Krey for the payment of his claim against the estate of James W. Imeson, deceased. Between May 1, 1888, and November 21, 1890, Imeson resided with his wife and family, of eleven children, in Dakota County.

Appeal'by West Duluth Land Company, one of the defendants, from a judgment of the District Court of St. Louis County, Baxter, J., entered July 20, 1892. September 3, 1890, the appellant was the owner of Lot 17, Block 203, Third Division, West Duluth. On that day it entered into a contract for the sale of this land to Frank Eiggin, and put him in possession.

Appeal by plaintiffs, Frank J. Linne and S. P. Spates, partners as F. J. Linne & Co., from an order of the District Court of Ramsey County, Kerr, J., made February 9, 1892, granting a new trial. October 24, 1889, James Forrestal made a contract with the city of St. Paul to construct for it certain sewers.

Appeal by defendant, W. H. Lukensmeyer, from a judgment of the District Court of Nobles County, P. E. Brown, J., entered May 16, 1892. August Finke brought this action against the defendant before O. W. Freeman, a Justice of the Peace in Nobles County. The summons was served and the defendant appeared in person on the return day. The plaintiff filed a written complaint on that day, December 1, 1891, and the case was by consent adjourned to December 8, 1891.

Appeal by defendant Cyrus Eitchie, from an order of the Municipal Court of the City of St. Paul, Twohy, J., made June 18, 1892, refusing a new trial. This action was commenced in a Justice Court of the city of St. .Paul, by the plaintiff George H. Tipper, to recover of the defendant the sum of $36.07, alleged to be due plaintiff for horseshoeing done by the firm of Simons & Bowers and Simons & Tipper, who had assigned their claim to plaintiff.

Appeal by defendant Austin H. Young, as receiver of Stevens & Co., from an order of the District Court of Meeker County, Powers, J., made April 19, 1892, overruling his demurrer to the complaint.

Appeals by defendant, Samuel Spencer, and by John J. Nelson, intervener, from an order of the District Court of Meeker County, Powers, J., made December 29, 1891, denying their motions for a new trial. Eben Dennis and Samuel Spencer, on April 16, 1889, entered into a contract whereby Dennis agreed to sell and deliver to Spencer five hundred yearling steers, and Spencer agreed to pay therefor $8.25 each.

Appeal by defendant, O. C. Kneal, from an order of the District Court of Hennepin County, Pond, J., made April 19, 1892, refusing a new trial. This action was brought by the plaintiff, Mercantile Statement Company, a corporation, to recover of the defendant the sum of $1,560, the amount of assessments made on stock of the plaintiff owned by him. On the trial, a verdict was directed for the plaintiff. From an order denying his motion for a new trial, defendant appeals.

Appeal by defendant, Minnie Shaw, from an order of the District Court of Ramsey County, Brill, J., made April 18, 1892, refusing a new trial. This action was brought by the plaintiff, J. C. Brown, against the defendant, to recover the sum of $1,800, alleged to have been intrusted to her on September 21, 1889, by plaintiff for safe keeping and to have been converted by her to her own use.

Appeal by defendants, John Demars and J. M. Brown, from an order of the District Court of Morrison County, Searle, J., made January 30, 1892, refusing a new trial. In January, 1884, John Demars recovered a judgment in the District Court of Morrison County, against the supervisors of the Town of Eipley, for the sum of $157.13, as damages for the laying out of a certain highway in that town.

Appeal by plaintiffs, Abel Hoover and William Gamble, partners as Hoover & Gamble, from an order of the District Court of Big Stone County, G. L. Brown, J., made March 19, 1892, refusing a new trial. This action was brought to recover of defendant, John Maher, the sum of $560 for binder twine alleged to have been sold and delivered to him July 10, 1890, at the warehouse of the Security Warehouse Company, in Minneapolis.

Appeal by plaintiff, John B. Cleveland, from an order of the District Court of Hennepin County, Canty, J., made September 19,1891, sustaining the demurrer of defendant Henry M. Stone to the complaint. This action was brought by the plaintiff against the defendants, Charles H. Stone and Gaylord W. Beebe, partners as Stone & Beebe, and Henry M. Stone.

Appeal by defendants, Karl O. Balstad, and Gina H. Balstad, from a judgment of the District Court of St. Louis County, Ensign, J., entered March 16, 1892.

Appeal by plaintiff, The Society of the Most Precious Blood, from an order of the District Court of Otter Tail County, Searle, J., made January 10, 1891, refusing a new trial. Joseph M. Albrecht, a resident of Otter Tail County, made his will May 31, 1870. - e died March 4, 1884. At the time of his death, Albrecht was the owner of one hundred and ninety-six acres of land in Otter Tail County.

Appeal by plaintiff, Mary Wacek, from an order of the District Court of Bice County, Buckham, J., made May 2, 1892, refusing a new-trial. This action was brought by the plaintiff against the defendant Frederick W. Frink, to recover the sum of $746.18 as damages sustained by her by reason of an incorrect abstract of title furnished her by defendant. The facts are stated in the opinion.

Appeal by defendant, David Swank, from an order of the District Court of Wadena County, Holland, J., made November 19, 1891, discharging an order to show cause why a writ of attachment should not be vacated. In the years 1890 and 1891, David Swank, the defendant, was engaged under contract with the Wadena and Park Eapids Eailroad Company in grading its roadbed in Wadena and Hubbard Counties.

Appeal by plaintiff, William L. Banning, from an order of the District Court of Scott County, Cadwell, J., made January 25, 1892, refusing a new trial.

Appeal by defendants, Hans J. Gouldberg and D. O. Anderson, from an order, of the District Court of Isanti County, Lochren, J., made November 14, 1892, refusing a new trial. This action was brought by the plaintiff, Sigfrid Anderson, against the defendants, partners as Gouldberg & Anderson, to recover the possession of ninety-three pine logs, marked L S X, or for the value thereof.

Appeal by plaintiff, Peter Blake, from an order of the District - Court of Morrison County, Baxter, J., made August 7, 1891, refusing a new trial. This action was brought by the plaintiff, a judgment creditor of the defendant Joseph Boisjoli, under 1S78 G. S. ch. 43, §§ 7, 8, to enforce a trust in favor of plaintiff in Lot two, (2,) Block fourteen, (14,) of Little Falls, the title to which stood in the name of defendant Rosalie Boisjoli.

Appeal by Mary A. Cremer and William J. Cremer, two of the defendants, from a judgment of the District Court of St. Louis County, Ensign, J., entered February 11, 1892. Theodore M. Erickson, in December, 1889, owned Lot 317, Block 72, of Duluth Proper, Second Division, and a livery stable, and outfit thereon. Mary A. Cremer owned twenty lots in Ivy Hill Falls Addition to St. Paul, and twenty-three lots in McCloud’s Park Addition to South St. Paul.

Appeal by plaintiff, the Minneapolis Mill Company, from ah order of the District Court of Hennepin County, Lochren, J., made February 20, 1892, refusing a new trial. This action was brought by the plaintiff to recover the possession of 11,900 square feet of land in the “Milling District” of Minneapolis, occupied by the tracks of the defendant, the Minneapolis and St. Louis Railway Company. The action was tried October 26, 1891, before the Judge, a jury being waived.

Appeal by Mari Louise Smith, from an order of the District Court of Brown County, Webber, J., made September 26, 1891, affirming the order of the Probate Court of said County, made April 20, 1891, denying her petition. Johann Jacob Smith died testate in Brown County on February 15, 1891. At the time of his death he was the owner of “Out lot No. 469,” containing about four acres of land, in the city of New Ulm.

Appeals. by defendant, Erick Larson, and by O. Mosness, intervener, from orders of the District Court of Clay County, Mills, J.,' ■made July 15, 1891, denying their motions for a new trial. O. Mosness,. on July 16, 1889, was the owner of the east half and southwest quarter of section seventeen, (17,) in the town of Morken, Clay County. On that day he made a written contract with Erick Larson, by the terms of which Larson ivas to farm the land on shares.

Appeal by defendant, Northern Pacific Elevator Company, from an order of the District Court of Otter Tail County, Baxter, J., made January 6, 1892, refusing a new trial. This action was brought by the plaintiff, A. Caughey, against the defendant, to recover a balance of $114.88, alleged to be due plaintiff for wheat sold to defendant. Issue was joined, and the case set for trial November 11, 1891.

Appeal by plaintiff, John B. Dow, from an order of the District Court of St. Louis County, Ensign, made March 22, 1892, denying his motion to set aside and vacate the judgment theretofore entered against him in this action.

Appeal by defendant, James Turner, from an order of the District Court of St. Louis County, Ensign, J., made March 26, 1392, refusing his application for a new trial. Action brought by plaintiff, James Dougan, to recover $1,042 balance of fifteen per cent, commissions on the price of tombstones sold, by him as agent of defendant. The issues were referred to H. F..

Appeal by defendant, William S. Albertson, from a judgment of the Municipal Court of the City of Duluth, Powell, J., rendered May 27, 1892.

Appeal by plaintiff, the Van Brunt & Wilkins Manufacturing Company, from a judgment of the District Court Of-Otter Tail County, Baxter, J., entered April 16, 1892, against it for $152.91 on defendant’s counterclaim. The issues were tried November 11, 1891. There was a verdict for defendant for $331.47. The plaintiff on December 29, 1891, moved on the minutes of the court, for a new trial.

<p>Costs on Appeal from Justice Court.</p> <p>Upon the facts, which fully appear in the opinion, it is held that the defendant did not reduce the amount of plaintiff’s recovery in justice’s court one-half or more on appeal to the district court, within the meaning of 1878 G. S. eh. 67, § 14, nor was he the successful party; and therefore plaintiff was entitled to recover her costs and disbursements in district court.</p> <p>Alleged Errors Considered.</p> <p>Other alleged errors considered and disposed of.</p>

Appeal by defendant, William E. Haskell, from a judgment of the District Court of Hennepin County, Canty, J., entered December 21, 1891, against him and the other defendants, James E. Crichton and Sarah Crichton, for damages, $4,807.13, and costs, $15.28, and in favor of plaintiff, Charles P. Burr.

Appeal by defendant, the Great Northern Eailway Company, from an order of the Municipal Court of the city of St. Paul, Twohy, J., made February 23, 1892, denying its application for a new trial of the action. The plaintiffs W. J. Dyer & Brothers, at Minneapolis, on April 28, 1891, sold to Michael Colwell of Anoka, Minnesota, a piano of the value of $275.

Appeal by plaintiff, John Scharffbillig, from an order of the District Court of Ramsey County, Otis, J., made May 10,1892, sustaining a demurrer to the complaint. The plaintiff was in - possession of twenty acres of school land in Ramsey county from October 18, 1864, to August 28,1886, supposing he had good title to the whole of it.

Appeal by E. A. Eilkins, receiver of the estate and property of Niels C. Frederickson, from an order of the District Court of Redwood County, Webber, J., made January 29, 1892, refusing to vacate and set aside a judgment for $11,645.85 entered against Frederick-son. The defendant Niels C. Frederickson on June 29, 1889, at Milwaukee, Wis., made his promissory note to the plaintiff E. G-.

Appeal by defendant Martin W. Roll, from a judgment of the Municipal Court of the City of St. Paul, Twohy, J., entered December 24, 1891, for $60 and costs, in favor of Mary Roll, his wife. The plaintiff and defendant were husband and wife. On June 30, 1887, they entered into the agreement in writing stated in the opinion. - They had separated and lived apart for six months prior to that time. Defendant paid his wife $15 each month up to June 1, 1890.

Appeal by plaintiff, J. P. Burke, from an order of the District Court of Faribault County, Severance, J., made April 20, 1892, dissolving a temporary injunction. The village council of the village of Wells in Faribault County was authorized by Sp. Laws 1891, ch. 168, approved April 9, 1891, to issue village bonds to the amount of $8,000 for the purpose of buying a site and building a town hall.

Appeal by plaintiff, Conrad Bauer, from an order of the Municipal Court of the City of Minneapolis, Elliott, J., made February 24, 1891. On December 27, 1889, plaintiff rented his farm in Hennepin County to the defendant Abraham Knoble for five years from April 15, 1890, he to pay plaintiff therefor $200 rent annually, to cut no green trees, and to keep in good repair the structures thereon, natural wear excepted.

Appeal by defendant, Arny Grundysen, sheriff of Polk County, from an order of the District Court of Polk County, Mills, J., made March 10, 1892, denying his motion for a new trial. The plaintiff, William Wylie, on March 22, 1890, owned and occupied as his homestead eighty acres of land in Polk county. On it was a frame granary, a fixture on the farm.

Appeal by defendant, N. T. Davies, from an order of the District Court of Freeborn County, Farmer, J., refusing a new trial. N. T. Davies recovered a judgment by default in the court of a justice of the peace against Knute Gulbranson and Gulbrand Knutson for the conversion of some hay belonging to him.

Appeal by defendants, A. K. Tubbs and Ella E. Tubbs, his wife, from a judgment of the District Court of Hennepin County, Lochren, J., entered January 30, 1892. The plaintiffs, Gregor Menzel and Samuel T. Ferguson, commenced this action to foreclose their lien for iron beams, columns, stirrups, prismatic lights, &c., furnished the defendants Tubbs and wife in 1890, at the agreed price of $1,032.31.

First case is an appeal by plaintiff, Edwin W. Dana, from an order of the District Court of Hennepin County, Lochren, J., made April 16, 1892, sustaining a demurrer to his complaint. James S. Garvin owned a lot in Minneapolis and on May 8, 1885, mortgaged it to Mary C. Lewis for $5,000. Garvin and wife conveyed the lot to plaintiff October 12, 1889, subject to the mortgage.

Appeal by plaintiff, Fred Klenk, from an order of the District Court of Faribault County, Severance, J., made March 7,1892, granting the defendants a new trial.

Appeal by defendant, Jonathan Woll, from an order of the District Court of Stearns County, Searle, J., made July 30, 1892, refusing him a new trial. Defendant was indicted by the grand jury of Stearns County for committing a public nuisance by willfully and unlawfully obstructing a public highway through his land in the town of St. Augusta. He pleaded not guilty, admitted the obstruction, but claimed the locus in quo was not a highway.

Appeal by plaintiff, the Cannon River Manufacturers’ Association, from an order of the District Court of Rice County, Buckham, J., made May 2, 1892, refusing it a new trial. By Sp. Laws 1865, ch. 67, the State of Minnesota granted to the Cannon River Improvement Company 300,000 acres of swamp lands to aid in the construction of slack water navigation on the Cannon river, and thence by way of Lake Elysian to the Minnesota river, near Mankato.

Appeal by the defendant, the West Duluth Light & Water Company, from an order of the Municipal Court of the Village of West Duluth, Himebaugh, J., made January 22,1892, denying its application for a new trial.

Writ of certiorari issued to the District Court of Ramsey County, Brill, J., upon the relation of William Thompson, made October 13, 1891. In 1886, the Common Council of the City of St. Paul ordered the opening, widening and extending of Dakota avenue to a width of sixty-six feet from Channel street to Groffe avenue in West St. Paul, and the Board of Public Works made and confirmed an assessment therefor.

Appeal by plaintiff, Lyman C. Dayton, from a judgment of the District Court of Ramsey county, Kerr, J., entered April 8, 1892. Appeal also by the defendants Elwood S. Corser and Lester B. Elwood from the same judgment. On September 20, 1890, Elwood S. Corser and Lester B. Elwood obtained judgment by confession in the District Court of Ramsey county against May I. Dayton, for $42,134.45 upon her promissory notes to them, which judgment was duly docketed.

On the relation of Swan A. Anderson and Leopold A. Plaster, an order was made by this court that Hon. Charles D. Kerr, a judge of the District Court of Eamsey county, show cause on November 10, 1892, why a writ of mandamus should not issue, directing him to-enter a final decree pursuant to 1878 G. S. ch. 81, § 36. In April, 1891, the relators had a mechanic’s lien against a lot in St. Paul owned by Amelia Kingsley.

Appeal by plaintiff, William G-. Whitaore, from an order of the District Court of Ramsey county, Kelly, J., made February 6, 1892, refusing his application for a new trial. Action under 1878 G. S. ch. 75, § 2, to determine the adverse claims of defendants Paul Martin, Henry J. Peters, Joseph Minea and others to unoccupied lots two (2) and three, (3,) in block fifteen, (15,) of Morrison’s Addition to West St. Paul.

Appeal by plaintiff, Josias N. Rogers, from an order of the District Court of Ramsey county, Kelly, J., made March 16, 1892, denying his motion for a new trial. Plaintiff and Samuel H. Marshall on February 15, 1887, owned the southwest quarter of section thirty-three, (33,) T. 30, R. 20, in Washington county, subject to a mortgage to James L. Devon foils,375. They on that day sold and conveyed the land to James W. Jones for $10,000.

In proceedings to obtain judgment against certain tracts of land owned by Maealester College the District Court of Ramsey county Kelly, J., gave judgment June 25, 1892, sustaining the tax levy.

Appeal by plaintiffs, Edwin Clark, Clark Milling Company and John M. Clark, from a judgment of the District Court of Stearns county, Searle, J., entered April 8, 1892. Edwin Clark and wife on October 27, 1884, mortgaged to William Bohmer the property described in the opinion. On August 6, 1890, he and wife mortgaged a part of the property to L. Kells. On February 9, 1891, he and wife mortgaged to John B. Johnson a part of the property so mortgaged to Kells.

Appeal by defendant, the National Investment Company, from a judgment of the District Court of Bamsey county, Kerr, J., entered April 7, 1892, against it for $905.38. Appeal also by defendant from an order of that court made July 19,1892, refusing to set aside the judgment and allow it to interpose a supplemental answer setting up a counterclaim for mechanics’ liens paid by it since the trial. Both appeals were argued and decided in this court at the same time.

<p>Appeal by defendants, Henry F. Leopold and wife, from an order of the District Court of St. Louis County, Stearns, J., refusing a new trial.</p> <p>Edson & Hanks, Johns, Michael é Johns, Holcomb dc O’Reilly, for respondents. 0</p>

Appeal by plaintiff, Charles E. Adamson, from a judgment of the Municipal Court of the City of Minneapolis, Elliott, J., entered June ■3, 1892. On October 12, 1889, the defendant N. O. Sundby was owing plaintiff $185, and interest.

Appeal by plaintiff, Jennie Snider, from an order of the District Court of Ramsey County, Kelly, J., made May 14, 1892, overruling her demurrer to the answer of the City of St, Paul.

Appeal by the plaintiff, the Pioneer Savings and Loan Company from an order of the District Court of Hennepin County, Hooker, J., made March 26, 1892, granting the defendants Charles G. Hillman and Herman Yogt a new trial. On June 2, 1890, the plaintiff, a corporation, loaned to defendant Charles Bartsch $10,000, and as security for its repayment took his note and a mortgage made by him and his wife upon a lot in Baker’s Addition to St. Anthony.

Appeal by defendant, J. P. Johnson, from a judgment of the District Court of Douglas County, Searle, J., entered April 20, 1892, against him for $823.72. At McIntosh, Minn., on June 16, 1890, the defendant and fourteen other farmers of that vicinity executed and delivered to Thompson & Cowen their joint and several negotiable promissory note for $700 and interest, due November 1,1891.

Appeal by defendant D. Davis from a judgment of the District Court of Nobles County, P. E. Brown, J., entered in favor of the plaintiff Russell & Co., a corporation, upon two promissory notes made to it by defendants D. Davis and Bennett Evans. The facts appear in the opinion.

Appeal by defendant, Walter S. Whitten, from a judgment of the District Court of Hennepin County, Smith, J., entered September 10, 1892.

Appeal by defendants, Northern Pacific Eailroad Company and Northern Pacific Beneficial Association, from an order of the District Court of Crow Wing County, Holland, J., made March 5, 1892, overruling their demurrers to the complaint.

Appeal by defendants, Joseph P. Thwing and Mary, his wife, from an order of the District Court of Hennepin County, Hooker, J., made June 21, 1892, overruling their demurrer to the complaint. William Hunt of Onondaga county, N Y., died testate February 10, 1888, seised in fee of eight lots in Minneapolis. His will was duly proved in the Surrogate Court of that state, and letters testamentary were issued to John Hunt and David F. Pulford.

Appeal by plaintiff, Charles W. Piper, from an order of the District Court of St. Louis County, Ensign, J., made May 14, 1892, denying his motion for a new trial. Action against defendant, the Chippewa Iron Company, to determine its adverse claim to the north half of the southwest quarter and the southwest quarter of the southwest quarter of section fifteen, (15,) T. 62, E. 14, in St. Louis county, alleged to be unoccupied.

Appeal by defendant, Ole O. Bente, from an order of the District. Court of Stearns County, Searle, J., made August 24, 1891, denying a new trial. The plaintiff, D. F. Gibbons, brought this action to recover of defendant $1.00 and interest.

Appeal by defendant Mary Vanstrom, from an order of the Municipal Court of the City of Minneapolis, Mahoney, J., made May 17, 1892, refusing her a new trial. Action by Minneapolis Envelope Company, a corporation, to recover a balance due for goods, wares and merchandise sold and delivered to defendant on October 7,1891, of the reasonable and agreed price and value of $103, on which defendant had paid $5.15.

<p>Appeal by plaintiffs Albert Dallemand and others from a judgment of the District Court of Hennepin County, Hooker, J., entered May 27, 1892.</p> <p>Action against the defendants Peter P. Swenson, sheriff of Hennepin county, and Edwin M. Janney and others, to recover the value of a.stock of wines and liquors and $8.80 in money, seized by the sheriff on a writ of execution. Janney and others recovered judgment against D. A. Allen and others, and caused this writ to be issued thereon. The sheriff seized the wines and liquors and money on the writ, as the property of Allen. The plaintiffs appeared and' claimed the property and money, and asserted that Allen was their agent, and had possession of it as such. They brought this, action to recover damages for its conversion. The issues were tried October 9, 1891. Plaintiffs’ sixth request to charge the jury was this:</p> <p>“6th. A person who has an interest in the profits arising from the sale of property has no interest in that property which is subject to levy.”</p> <p>The jury found.a verdict for the defendants. The plaintiffs moved for a new trial. The second ground of the motion was that the verdict was not justified by the evidence and was contrary to law.</p> <p>The court, upon defendants’ request, charged the jury: “If you find as a fact that any of the witnesses have sworn falsely upon any material fact, not corroborated by other evidence, then you have the. right to disregard their testimony, unless that testimony has been corroborated by other reliable testimony. ” This charge was erroneous in that it did not show that the falsity must have been known to the witness. Schuek v. Hagar, 24 Minn. 339; State v. McCartey, 17 Minn. 76, (Gil. 54.)</p> <p>The sixth request is a statement of law which has often been approved by this court, and was a vital point in this case, and should have been, given. Vose v. Siickney, 8 Minn. 75, (Gil. 51;) Benz v. Geissell, 24 Minn. 169; Hankey v. Becht, 25 Minn. 212.</p> <p>The verdict was not justified by the evidence, and is contrary to law.</p>

Appeal by plaintiff, O. E. Flaten, from an order of the District Court of Clay County, Mills, J., made April 20, 1892, refusing an injunction. On September 2, 1878, the Lake Superior and Puget Sound Company, a New York corporation, in consideration of one dollar, conveyed to the then Village of Moorhead, its successors and assigns, a piece of land situated near the center of the village.

Appeal by defendant H. C. Maxwell, from an order of the District • Court of Swift County, Powers, J., made April 22, 1892, refusing a new trial. The plaintiff, John Parker, on November 7. 1887, at Appleton, Minnesota, borrowed of S. F. Spencer $90 in money and bought of him eighty-three bushels of wheat for all which he gave his note for $154.84 with interest at ten per cent, a year, due October 15, 1888.

<p>Contract Interpreted, by Circumstances and Local Custom.</p> <p>The defendant being engaged under a contract with a city in constructing a sewer, the plaintiff, who was a manufacturer or quarryman,. contracted to and did sell and deliver to him granite blocks of two specified sizes, viz., four by eight and six by six inches, respectively, at specified prices per “square yard;” it being understood that they were to be used in the construction of the sewer; there being no express agreement as-to how the number of “square yards” of stone sold should be determined, whether by a measurement of the area of the completed stone work in the sewer, or by taking the aggregate measurement of the faces of the stone blocks. Held, that the circumstances with reference to. wliieh the contract was made might be considered for the purpose of discovering the real intention of the parties, and that proof of a local custom under sui'h circumstances, to measure stone in the completed structure, was competent, even though such a custom had not been pleaded.</p> <p>Measurement of Area of Paving.</p> <p>In the floor of the sewer, which was paved with these stone blocks, was a considerable space filled by the defendant with cement and broken stone. In the settlement for the construction of the sewer, between the city and the contractor, the city measured the whole area of this floor as though it had been composed entirely of granite blocks. The court charged the jury in effect that they might consider that' fact as a guide to ascertain the quantity of the granite. Held error, there being no controversy as to the area of the floor of the sewer.</p> <p>Implied Warranty that Stone Sold for Paving should be Reasonably Pit for the Work.</p> <p>When a manufacturer contracts to sell and deliver chattels (not (particularly designated) for a particular purpose, there is an implied warranty that they shall be of a quality reasonably fit for that purpose; and for a breach thereof the purchaser receiving and using the chattels may recover damages, such a case being distinguished from those of Haase v. Nonnemacher, 21 Minn. 486; Maxwell v. Lee, 34 Minn. 511; and Thompson v. Libby, 35 Minn. 443.</p>

Tried before Mr. Justice Q’Neall, at Fairfield, Spring Term, 1830. Tins was an action' of assumpsit for the recovery of seven years’ rent of a tract of land, reserved on a lease by parol, all of which accrued in the life time of the intestate. The defendant pleaded the genera! issue, with notice of discount, and plene administravitprater. Several questions were made upon the evidence, which it is unnecessary to specify.

Appeal by defendant the Chicago, Milwaukee & St. Paul Eailway Company, from an order of the District Court of Mower County, Farmer, J., made May 17, 1892, denying its motion for a new trial. After a new trial of this action was granted, 48 Minn. 285, the issues were again tried March 16, 1892. The facts proved were substantially the same as on the preceding trial.

On the application of John Brown, relator, writs of Habeas Corpus and Certiorari were issued from this court to John Fitzgerald, keeper of the city workhouse of the City of St. Paul, to produce in court the body of the relator, with the cause of his detention. The respondent made return that he held the relator by virtue of a conviction before the Municipal Court of the city, for violation of a city ordinance.

Appeal by defendants Patrick E. Murphy and Mary A. Murphy, his wife, from an order of the District Court of Ramsey County, Brill, J., overruling their demurrer to the complaint.

On June 13,1892, the Board of Public Works of the City'of Duluth resolved to grade and improve Piedmont Avenue East in that city, and estimated the expense at $110,000. They assessed $90,750 of this upon the property lying within two hundred feet on either side of the avenue. On August 29,1892, the judges of the District Court of the Eleventh Judicial District made an order revising and confirming this assessment.

Appeal by plaintiff, Edward Hanson, from an order of the District Court of Bamsey County, Egan, J., made dune 1, 1892, denying his motion for a new trial. Peder O. Eoss recovered judgment February 3, 1891, against Edward Elison in the Municipal Court of the City of Minneapolis, for $109.70 upon a note given him by Elison, September 29, 1890.

Appeal by defendants, Henry P. Button and twenty-five others, from an order of the District Court of Ramsey County, Kerr, J., made April 28, 1892, denying their application to open a judgment entered against them January 6, 1891, and allow them to answer.

Appeal by Mons Anderson, one of the defendants, from an order of the District Court of Hennepin County, Hooker, J., made April 9, 1892, appointing John H. Field receiver of the rents and profits of the mortgaged premises pending foreclosure.

Gustav A. Musgang was indicted for larceny and convicted in the District Court of Bamsey County. A question of law arose on the trial which, in the opinion of that court, was so doubtful as to require the decision of this court. The defendant desiring it, the case was reported so as to present the question and certified here. 1878 ■G. S. ch. 117, § 11.

Appear by defendant, Andrew C. Haugan, from an order of the District Court of Hennepin County, Hicks, J., made July 2, 1892, denying his motion for a new trial. The plaintiff, Christian J. Haug, was a real-estate broker at Minneapolis, and on October 1, 1890, was.employed by defendant to trade certain incumbered lots and houses for farm property. He introduced Roswell G-. Brooks to defendant and they exchanged property.

Appeal by plaintiff, C. Aultman & Co., a corporation, from an order of the District Court of Mower County, Farmer, J., made July 21, 1892, refusing a new trial. The defendant C. J. Falkum, on July 20,1888, bought of plaintiff a Buckeye Folding Binder and agreed to pay $ 145 for it.

<p>Action for the Conversion of Real Estate.</p> <p>An action will not lie to recover the value of real estate as for converting it against one who caused it to be sold under execution issued on a judgment which had been paid; certainly not unless such person has, conveyed to a bona fide purchaser.</p>

Appeal by defendant, Richard F. Piatt, from a judgment of the District Court of Ramsey County, Cornish, J., entered November 21, 1891, against him for $5,382.07 and interest and costs. The plaintiff, the American Express Company, a corporation, brought this action to recover moneys belonging to it which had come into the hands of the defendant as its agent at St. Paul, between July 22, and September 13, 1890.

Appeal by defendants, Benjamin F. Howard, John G. Howard and Julius D. Howard, executors of the will of John D. Howard, deceased; from an order of the District Court of St. Louis County, Ensign, J., made September 17, 1892, denying their motion for a new trial.