Volume 6 — Minnesota Reports

This is an action of ejectment brought in the District Court of the Second District. Judgment was rendered therein in favor of the above-named Defendant in Error, who was Defendant in said action, and against the Plaintiff in Erroi’, who Was Plaintiff therein, and the case is now brought to this Court by Writ of Error.

APPEAL PROM THE DISTRICT COURT OF RAMSEY COUNTY* Tbis cause was submitted for trial, to the Court, without the intervention of a jury, and the following is the decision rendered: “ This cause came on to be tried, and a jury trial being duly waived, the same was submitted to the Court for trial and determination. “ And now having considered the proofs and allegations of the parties, I find the following facts, to wit: That on the 12th day of July, 1858, one John Johnston…

(The facts are stated in the opinion of the Court.) Points and Authorities of Appellant. ' I. — The controversy grows out of the 20-acre tract claimed by tbe Respondent, C. C. B. Hatch, who insists… Held: no delivery. In the case now before this Court, there was no recording, nor any act which passed the deed from Becker’s exclusive possession and control — it was not left with a third party.

Points and Authorities of Appellant. I. — The Court below erred in considering any of tbe affidavits which were annexed to tbe motion for a new trial. 3 Gra. & Wat. on New Trials, 1452/ 5 Blacltf, 453; 1 Bibb, 398/ 4 PLumph, 27; 1 Gra. & Wat. on New Trials, 125/ 7 Price, 203/ 1 Gra. dk Wat., 127.

Points and Authorities for Appellants. I. — There is no ground to cancel the bond — as fraud, mistake, or performance, and the bond does not run against the Plaintiff, and he is not entitled to the possession of it. Story's Equity Juris., seo. 703, 705, &c. II. — There is no ground shown to remove the lien or cloud on the real estate, the Defendant being in possession, and the Plaintiff having his remedy at law by ejectment. Seo. 1, oh. 64, Oonvp.

Tbe complaint stated that on tbe 13th April, 1857, the Plaintiff was seized and possessed of certain real estate, describing it.

The claim for lien in this case was filed in the office of the Register of Deeds, under the act of Aug. 12, 1858. Stat. of Mirm.,]). 696. The amount claimed to be due was less than one hundred dollars, to wit, $69 75, with interest from September 5, 1858. Summons served August 6, 1860. The demurrer to the complaint raises the simple question, whether or not the District Court could entertain jurisdiction of such an action, when the amount claimed to be due is less than $100.

This is one of a large number of cases pending in the District Court of Steele county, (upon change of venue from Blue Earth county,) brought by certain parties claiming under the Municipal Pre-Emption Law of 1844, the land having been entered as the town site of Mankato, on the 6th day of March, 1858. This cause was tried before a Referee, upon whose report judgment was entered in favor of the Defendant.

The Appellant, wbo was Treasurer of Winona County, brought his action in the Court below, to recover certain fees and charges which he claimed to be entitled to under the statutes, for services for preparing lists of delinquent taxes, advertising and selling the lots therein described, and executing certificates of sale to the County of Winona, the purchaser at the tax sales.

<p>APPEAL PROM THE DISTRICT COURT OP STEELE COUNTY.</p>

<p>APPEAL PROM THE DISTRICT COURT OP STEELE COUNTY.</p>

<p>APPEAL EEOM THE DISTEIOT COUET OE HOUSTOW OOUNTY.</p> <p>The above named Respondent brought this action in the District Court for Houston County, to restrain the Appellant by injunction, from building and operating a railroad across his lands lying situate in Township No. 104, N. of R. 4 "W.,in county of Houston, which lands are described in complaint as follows, to wit: S.E. quarter of sec. 22, and "W. half of N. E. quarter of the same section, town and range aforesaid, except twenty acres out of the N.E. corner of last-mentioned tract.</p> <p>It is alleged in the complaint, that before and at the time of the committing of the several grievances complained of therein, Respondent was a citizen of the United States of America, then residing in the State of "Wisconsin; that he was seized in fee of said lands ; that Appellant was a body politic and corporate, created by and under a certain Legislative act, to wit:</p> <p>“ An Act to Incorporate the Root River Yalley and Southern Minnesota Railroad Company,” approved March 2,1855. That it was organized under said act, and known and described by said name and style aforesaid, until its name and description was changed by statute law, approved May 23d, 1857, to that of “ Southern Minnesota Railroad Company,” by which it was thereafter, and at the time of the commencement of this action, known and described in law.</p> <p>That by the name and style aforesaid, under the aforesaid act of incorporation, and two subsequent acts amendatory thereof, approved respectively February 27th, 1857, and May 23d, 1857, said corporation, (this appellant,) among other things, was authorized and empowered by law to survey, locate and construct, &c., certain railroads, specified in said act of incorporation and amendment, from the village of Hokah, in said Houston county, as the eastern terminus, westwardly, by the most feasible and practicable route, and at its pleasure to alter the line thereof, without changing the said eastern terminus, and with the privilege of a branch, “ starting from (said village of) Hokah, and running up the west bank of the Mississippi river, by the way of Target Lake, to La Crescent, in Houston county.”</p> <p>But not with the privilege of a branch starting from Hokah, and running to La Crescent by any other route than that, i.e., starting from “ Hokah and running up the west bank of the Mississippi river, by the way of Target Lake, to La Crescent.”</p> <p>That up to the time of commencement of this action, appellant had wholly neglected to construct any part or portion of the main track from Hokah, westerly, but had since its organization, and before the commencement of this action, commenced the construction of the said branch route, and committed the grievances mentioned in said complaint, and in the manner there stated, to wit: had not located it from Hokah up the west bank of the Mississippi river, by the way of Target Lake, as required by acts of incorporation and acts amenda-tory thereof; and on the contrary had located and commenced the work for the construction thereof on a route at least one and one-half miles westerly of said west bank, and then were constructing the same at least three-fourths of a mile on and across the Respondent’s said land. That the act-ings and doings of said Defendant in the location and struction of said road there, over said land, consisted in divers acts of grading, by digging and removing of earth there on said land, and all this contrary to law, and against the will and without the license or consent of Plaintiff. And that, thereof Defendant had due notice.</p> <p>That Defendant did declare it to be its plan, purpose and intention immediately to proceed with said work on said land, to completion of the grade for said branch road there, as and for a permanent work there, and on completion of said grade to lay and put down permanently thereon a railway track of iron rails, and use the same as railroad track or way for running divers locomotive engines, cars, &c., to be propelled on and along over the said track by steam.</p> <p>That said Plaintiff believed, &c., unless restrained by injunction, Defendant would carry its plan and purpose into execution ; and if it did it would be a permanent private nuisance to him (said Plaintiff,) especially injurious, and render his said lands nearly valueless to him.</p> <p>The first defence set up in answer is in these words: “ That in the location or commencement of construction of the branch track, of the main track of this road, alleged in the complaint, or any part thereof, they have not done, or do not design or intend to vary or change the route thereof to any other than from Hokah, and running up the west bank of the Mississippi river, by way of Target Lake to La Crescent.”</p> <p>“ And they aver and state that the said location and com. mencement of construction of said branch track, for which complaint is made by the said Plaintiff in this action, are where the said branch passes on and over the land of the Plaintiff, as stated in said complaint, and elsewhere through its entire length, on the said route from Hokah, “and running up the west bank of the Mississippi river by the way of Target Lake to La Crescent,” as allowed by the said several acts of the Legislature referred to in said complaint, and not elsewhere.”</p> <p>“ And Defendant denies that the location, completion and running of said branch road as the Defendant is designing and intending to do, will cause the said work to be a private nuisance, as alleged in the complaint or otherwise. But, on the contrary, the same will be a public work, carefully and properly constructed and operated as by law, the Defendant is authorized and empowered to do, under and by virtue of tbe said several acts of tbe Legislature,” which said location, commencement of construction, and intended completion and operation of the said branch road are and will be the same and no other, as the alleged wrong and injuries stated in the complaint.</p> <p>Points and Authorities for Appellants.</p> <p>I. — The complaint does not state facts sufficient to constitute a cause of action.</p> <p>a It fails to show the amount in controversy to exceed $100, and therefore, that the District Court had jurisdiction of the matter. ConstitMtion, curt. 6, see. 6; 2 Minn., 86.</p> <p>b -The complaint does not even attempt to show any necessity for a resort to the extraordinary remedy by injunction, “for the furtherance of justice, and the protection of the Plaintiff’s rights,” as is requisite, to warrant the exercise of that power. Bruee vs. Delaware and Hudson Canal Co., 19 Barb., 878-9. “When the remedy at law is adequate, Courts of Equity will not interpose by injunction.” Willa/rd?s Eg., 857; Adams* Eg., 453, (194); lb., 478, (207.) The damages must be irreparable, and the law furnish no adequate remedy, ib. 481, and notes citing Cutting vs. Carter, 4 Hen. and Mmnf., 424; Poindexter vs. Henderson, Walker’s Hep., 176/ Atkins vs. Ghilson, 7 Met., 398/ Spooner vs. McConnell, 1 McLean, 338.</p> <p>II. — The entire case, including the pleadings and proofs, shows conclusively, that no wrong has been committed, or threatened, on the part of the Appellant, and that the judgment restraining the company from the lawful prosecution of their business, in building and operating the road, was erroneous, and should be reversed.</p> <p>The answer discloses, in the second defence, what we deem the rights of the company, under these acts, and the action of the company under them. The company accepted the provisions of this act. The evidence fully sustains these allegations.</p> <p>1. IJnder the act of May 22, 1857, the company have a right to build, and are building, the New Railroad, thereby authorized to be built, “from La Crescent via Target Lake, up the Yalley of the Root River,” etc. No material variation is averred, or shown, in not passing by the way of Target Lake.</p> <p>2. Under the other acts referred to, the company have a right to build, and are building the old railroad authorized by their original act of incorporation, as amended, from La Crescent to Hokah, etc., by the most feasible and. practicable route.</p> <p>3. Coinciding as the two roads do, from La Crescent as far up the Root River valley as Hokah, the company build both as one road.</p> <p>g Though as a general principle of law, it is true that corporate powers are to be strictly construed, as against the corporation, the authorities are equally conclusive, that with a grant of power, all incidents necessary to make the power effectual are also granted. Angel & Ames on Corporations, 3; 2 Kent, 298; 5 Conn. R&p., 232/ Mohawk Bridge Co. vs. U. & 8 R. R. Co., 6 Paige, 554, and cases there cited. Also, 4 Wheat., 636; 2Jfm., 20.</p> <p>Points and Authorities for Respondent.</p> <p>I. — Plats of surveys of public lands certified by the Register of the Land office of the District in which such land is situated, to be a correct copy of the certified copy on file in his office, of the original plat of such surveys, entitles such certified copy to be read and used in evidence in the courts of this State. Btat. of Min., 687, see. 90; U. 8. vs. Brewarál, 16 Peters, 143/ 2d American Chancery Digest, 571, sec. 53, they have accorded to them the force and character of a deposition.</p> <p>TT- — The act of incorporation, and resolution of acceptance thereof by the R. R. V. & S. M. R. R. Co., and acts amend-atory of the act of incorporation, locate the branch of the S. M. R. R., “starting from Hokah and running up the west bank of the Mississippi river by way of Target Lake, to La Crescent, in Houston county, in the Territory of Minnesota,” and where the language used in framing a statute is unambiguous, and the intention of the lawgivers apparent without the aid of extrinsic and explanatory matter, the language used is to be first considered as being the best evidence of what that intention is. Courts will expound the language according to the common sense and ordinary meaning of the words, and will look at the whole act, and if they find in any particular clause an expression not so large and extensive in its import as those used in other parts of the same statute, if upon a view of the whole act they can collect from the more large and extensive expression used in the other parts the real intention of the Legislature, it is their duty to give effect to the larger expression. Act of i/ncorporation, approved March 2, 1855, seo. 2; Resohotion of acceptance by R. R. V. & 8. M. R. R. Co., July 4dh, 1855; Amendment of act of incorpora - tion, approved Feb. 27,1857, sec. 1; Amendment of act of incorporation, approved May 23, 1857, sec. 1 and 2; Same location required by grant of lands to the Territory of Minnesota, approved March 3d, 1857, sec. 1/ Act to accept the grant, dkc., approved May 10, 1857/ Act to execute trust created by land grant, approved May 22, 1857, chap. 8, sec. 1, 2 and 8; Resolution of acceptance of grant by R. R. V. do 8. M. R. R. Co.; Mvn. and Pacific R. R. Co. vs. Sibley, 2 Min. R., 13; 7 Mass., 526; Mason vs. Finch, 2 Scam., 223; U. S. Digest, vol. 5, 809, sec. 60; Croswell vs. Van Bwren and Crane, 7 Barb. Sup. Cowrt R., 191/ Walford on Railways, 65.</p> <p>III. — Statutes incorporating companies conferring privileges and professing to give the public certain advantages in return, are to be construed strictly against the corporation, and literally in favor of the public and individuals. Parker vs. Great Western Railway Co., 7 M. dk Gra., 263;' Grant on Corporations, 319, 300; The Mohawk Bridge Co. vs. The Utica & Schenectady R. R. Co., 6 Paige, 554/ The Proprietor of the Charles River Bridge vs. The Proprietors of Warren Bridge, et. ais., 11 Peters, 420; Perrine vs. Chesepeake & Delaware Canal Co., 9 Sow. Sup. Ct. R., 172/ Walford on Railnoays, 62,paragraph 465.</p> <p>IY. — Courts of Equity will interfere by injunction to prevent the abuse of the powers granted a corporation, when exercised to the injury of individuals, so as to prevent rights of possession, and property being injured, obstructed or taken away illegally, by a railroad company. Coates vs. the Gla/r-enae Rail/way Co., 1 Muss, and Myl/ne, 181; Bonaparte vs. Camden amd Amboy Railroad Co., 1 Bald. Cir. M., 231; 2d Story’s Eq. Jur., 258, andjNote 3 and 259; Adams’ Eq., 485, 486; Stab, of Min., 596, seo. 15; Bedford on Railways, 474; Moorhead vs. Little Miama Railway, 17 Ohio, 340.</p> <p>Y. — The complaint on its face states facts sufficient to constitute a cause of action. Stat. of Min., 596, seo. 15.</p> <p>YI. — Respondent submits that when (as in this case) rights of property depend on construction of statutes, the following inflexible rules for construing the same must apply, to wit:</p> <p>First. — That every Statute derogatory to the rights of property, or that takes away the estate of a citizen ought to be construed strictly. See Yanhorn’s Lessee vs. Dorr anee, 2d Dali., 316; Paine vs. Ely, et al., Chipman’s R&ps., 14; Wales vs. Stetson, 2 Mass., 143/ Canal Co. vs. Railroad Co., 4 Gill and Johns, 1; 14 Mass., 88.</p> <p>Second. — Technical rules of construction are not to govern} unless such be the manifest meaning of the Legislature, which meaning is to be gleaned from the Legislative acts, by reference to the subject treated of therein, or to be effected thereby, as well as the language employed in the acts. See Whit/ing vs. Whiti/ng 14th Mass. 88; S. P. Bank of America vs. Eitzsimons, 3 Binn., 356 / State vs. Boyd, 2d Gild, dc Jolms, 365.</p> <p>Third. — The Legislature is intended to mean what they have plainly expressed, (as in this case,) and the safe rule is to abide by the words the law maker has used, then there is no room left for construction. See Pisher vs. Blight, 2 Cranch, U. S. Reports, 358; Canal Co. vs. RmT/road Co., 4th Gill cfe Johns., 1; Vnited States vs. Bright et al., Wharton’s Digest, 708.</p>

<p>Where a question of fact has been submitted to a Court or jury, and evidence touching the same has been received on the part of both Plaintiff and Defendant, the finding will not be disturbed on the ground that it is contrary to the weight of evidence, nor unless it is manifestly contrary to the evidence.</p> <p>Among the findings of fact by the Court were, that B,¡for a valuable consideration, duly assigned and transferred to Defendants a certain note and mortgage. And that such assignment was executed as collateral security for a note and mortgage executed and delivered by Plaintiff to Defendants. Seldf that these findings were not inconsistent with each other.</p> <p>Where evidence has been received in the Court below without objection, it is too late to raise the question of its admissibility in this Court.</p>

<p>In a mortgage foreclosure by advertisement, tbe amount claimed to bo due at the date of tbe notice, should be tbe Sum legally due, but a trifling excess in sucb amount, arising from mistake, and not of sufficient magnitude to deter bidders, will not vitiate tbe sale. Any amount with in tiie terms of the security may be claimed in tbe notice. Tbe case of Spencer vs. Annan 4 M. R.} 542, approved.</p> <p>It is not essential to tbe validity of a notice of sale, in a foreclosure by advertisement, that it should be dated. "When it is dated, the time so fixed will be taken as tbe true date. "When nothing appears upon its face evidencing tbe date, tbe time of its first appearance, by publication, will be tbe</p> <p>A mortgagee may become the purchaser, at a mortgage sale, of land, under a power that runs to himself, provided tbe sale is made in good iaitli, by tlie Sheriff, in accordance with tbe provisions of tbe Statute.</p>

APPEAL EEOM THE_|DJCT.IiíCT|;PQpEff[lQEife[L!E¿MGLpÍ!¡COróTT.J rtfr...-vm itju.snii, iu»Urt7Í¿h»:>. bus tnmobi-.vi Innt» A- — .VI .,u,,oq niisiun-m (4 ji-r üwAWA |Aw.\.A\ T) ,m\>A\ 1!I írH&fc /íHe de; ¿bf^lied 'w^'ñ; anillé 4naw Points and Authorities for Respondent. I. — Actual possession has been proved. II. — No adverse possession being proved, the constructive ■ossession resulting from a claim of legal title under a recorded deed is sufficient to support this action.

The appeal in this action is brought from an order granted by his Honor, Thos. Wilson, acting Judge of the District' Court, Fourth Judicial District, Hennepin County, denying a motion made by the Defendants in the Court below to vacate and set aside a writ of attachment. The writ was allowed by the Clerk of the District Court, upon the following affidavit issued therein: Hennepin County, ss.

This action was brought to foreclose a mortgage executed by the Appellant, Eolsom, to the Eespondent.

In this cause a jury trial was waived by the parties, and the following is the finding of the Court, upon which judgment was entered for the Defendants: Hie above entitled case was brought on for… Held: whenever the question has arisen, that the first day of the Court was to be counted. Dayton vs. McIntyre, 5 How.

The following is the finding of the Court below, upon the issues of law and fact: This cause came on to be heard and a jury trial being duly waived the same was submitted to the Court for- trial and determination.

The Defendant in Error was tbe Plaintiff'below, and brought an action of ejectment against the Defendant below, alleging that he was seized of lands from which the Defendant ejected him, and praying restitution. The Defendant below pleaded two pleas. 1st. A denial. 2d. A special plea. That on the 7th October, 1850, one John R. Fish entered the land.

Points and Authorities of Plaintiff in Error. . Tlio errors apparent on this record, even though they may not be such as have been passed upon by the inferior jurisdiction, are, we hold, nevertheless cognizable by this Court. This Court will inspect the whole record and cause “to be done in the premises what oí right and according to the laws of the land ought to be done.” 11 Wheat., 172; Drecl Scott vs. Scmdford, December term Sup.

This is an action for money bad and received. The complaint charges, that on tbe 3d day of October, 1856, tbe Defendants were partners in business under tbe firm name of Taylor, Bennett & Co.; that on said day one Obas. Moore was tbe owner in fee simple of 160 acres of land in tbe county of Winona.

The complaint of the Plaintiff shows that the Defendant, William W. Pell, on the first day of September, A. D. 1857, executed to him the said Plaintiff, for a good and valuable consideration, a certain Promissory Note, of which the following is a copy : “ St. Petee, Sept. 1st, 1857. “ $100.00.

Points and Authorities for Appellants. I. — The Respondents ought not to recover in this action. The judgment below was contrary to law. 1. Because no suit can be brought in a case such as the one before the Court, where special security is taken after, the maturity of the debt providing specially for its payment, without going first upon the security. 2.

Points and Authorities for Appellants. I. — The judgment was satisfied in fact by sale upon execution, and was satisfied in the Docket by return of execution “ satisfied.” There could be no mistake for the same premises advertised were sold, and the same levied upon was advertised as set forth in the complaint. And the Sheriff could not be mistaken as to the levy, for he was required to go upon the premises to make the levy. Pub.

The following is a copy of the indictment in this case : “Jolin O’Connell is accused by the Grand Tory of the county of Wright, by their indictment, of the crime of rape, committed as follows : “The said John O’Connell, on the seventeenth day of February, A. D. 1861, in the county of Wright, did feloniously ravish and forcibly and against her will carnally know one Barbara Oehrlein, a woman of the age of ten years or upward, against the peace and dignity, of the State of…

APPEAL EROM THE DISTRICT COURT OE RAMSEY COÜNTY. Points and Authorities of Appellants. I. — The entry of judgment was wholly unauthorized and Yoid ; because there was no proof filed with the clerk that no answer bad been received within twenty days after tbe service of the summons. Comp. Stat., 555. The affidavit filed purported to lrave been sworn to on tbe same day as the complaint, and before the summons was served.

Points and Authorities for Appellants. I. — The mortgage relied on bearing date 22d October, 1854, which was Sunday, and the acknowledgements of the Notary being of the same date, without his seal of office and attested by but one witness, was not entitled to record, and therefore no notice. Sees. 8, 23, 24, chap. So, Comp. Stats., 398, 400; Sigourney vs. Samuel, 10 Piole., 72; Kerns vs. Swope, 2 Watts, 75; 44 Maine, 25; 5 Blaokf., 92. .

This action was tried before W. Wilkin, Esq., special referee,, wbo reported in favor of tbe Plaintiff. Tbe Defendant moved to set aside the report, and for a new trial, which motion was denied by tbe Conrt below. The Defendant appeals.- The facts found are fully stated in tbe opinion of tbe Court. Points and Authorities of Appellant.

This was an action brought to recover personal property, to ■which the Plaintiff acquired the right and possession by a general assignment from Connor & Son, to tbe Plaintiff in trust and for the benefit of their creditors.

APREA1 EROM THE DISTRICT OOURT OK HENNEPIN COUNTY. This action comes up on appeal by tbe Defendants from tbe decision of tbe Court refusing to set aside tbe verdict of tbe jury, and to grant a new trial. Tbe action was brought by tbe Plaintiffs to recover a balance due them upon a written contract under seal, and also to recover damages for tbe breach of the contract.

This was an appeal from an order overruling a motion for judgment on the pleadings made by the Defendants in the Court below. The Aj>pellants’ points disclose the grounds of the motion for judgment. Points and Authorities of Appellant.

Points and Authorities of Appellant. The first exception relied upon is found in folio 67. Held: and intended to be held by the Plaintiff, in trust for Oazeau, and for his sole benefit, and this secret trust, thus created on the eve of the making of the assignment, is certainly competent evidence for the jury to consider in determining the intent of the assignors in making the assignment; and the only possible mode of proving…

This action was brought in the District Court of Ramsey County, to foreclose a certain mortgage executed by D. A. J. Baker and wife, to one Charles W. Pairo, — tbe Plaintiff claiming under an assignment of said mortgage. The Defendants, Banning and Knox, interposed answers, claiming title under a judgment against Baker, and which title they claim takes precedence of Plaintiff’s mortgage.

Points and Authorities of Plaintiff in Error. I. — The complaint alleges that the Plaintiff, on a day certain, had possession of the property in question. This allegation is sufficient to show the fact ofhis possession, and nothing more than possession is necessary to entitle him to sue a stranger for divesting him of his possession. But in this case it is not stated as one of the facts necessary to constitute a cause of action : it is simply matter of inducement.

Points apd Antborities of Appellant. I. — It appears from the pleadings and the evidence that the premises described in the answer were sold to the Defendant at Sheriff’s sale, under execution, on the 18th day of May,, 1859, and that from and after the said 18th day of May, 1859, the defendant was entitled to the-possession of said premises, and was entitled to the use, rents, issues and profits thereof; and it also appears that from and after the said 18th day of May, 1859,…

The following is the writ of mandamus issued in this cause: The State of Minnesota : To Oscar Roos, Register of Deeds of said County of Chi-sago, greeting: The Plaintiff in this proceeding, Andrew Swenson, citizen, resident, householder, and legal voter of said county of Chisago, has filed with us his certain affidavit in this behalf made, and our said District Court has been pleased thereupon to grant this our high prerogative writ of mandamus.

The facts found by the Court below are briefly as follows: The Plaintiff in Error being the owner of lots two and three in block one of Patterson’s Addition 'to Saint Paul, and being desirous of making an advancement to bis daughter, Mary E. Goodrich, of all the said lots were worth, over $1,000, conveyed the same to bis daughter, Sarah E. Daugbaday, then residing with him in the State of New'York, on tbe 30tb of December, 1854, and took back a mortgage from said Sarah E.,…

Points and Authorities for Appellant. I. — The decree and judgment were regular, authorized by law and in accordance with the rules and practice of the District Court for ‘Washington county. Oomjp. Stat. Mvrm., 463, 464,• see grounds of motion for judgment, folios 21-2, return; Stat. Minn., 543, sees. 88-9, — 541, see. 74; Bule 16 of Law, and 36 of Equity Rules of District Oou/rtfor Washington Oounty, folios 27-8, return.

This action was brought by the Plaintiffs to recover the balance of $271.04-100, for goods, wares and merchandize sold and delivered.

Points and Authorities of Plaintiff in Error. • I. The bill of sale and receipt of purchase money, a copy of which appears in the case, (see folios 14, 15,) is not such a written contract as cannot be varied by parol, even had the action been between the parties to the bill or receipt. II. There is no rule of law which will preclude a party from showing the fact of ownership, of property as against a wrong doer, by parol or other evidence. III.

Points and Authorities of Plaintiff in Error. I. — When one of tbe co-sureties bas paid tlie debt of Ms-principal, the other co-surgty becomes primarily liable to the-surety who paid the debt for one-half of the amount so paid; and nothing short oí a collection of tlie debt from tbe principal will discharge such co-surety from his liability to contribute one-half the amount so paid. 1 Parsons on Contracts, 2?. 32-3-4, and notes; Smith's Lead.

Points and Authorities of Plaintiff In Error. The questions material in this case arise, and the case depends upon the construction of a written instrument set out “ in heae verba” in the complaint, and the Plaintiff in Error claimed, I. — TJiat an agreement or lindertaking to account for' a certain sum of money is equivalent to-a promise to pay said sum •of money,, and that to account in such a case requires something more than a simple statement or information as to what…

Points and Authorities for Plaintiff in Error. Tlie certificate of the acknowledgment to a deed affixed! thereto by an officer empowered to take acknowledgments,, and regular upon its face, is conclusive evidence of the matters contained therein, and cannot be aided or disproved by parol testimony. 44 Maine, 25/ 4 Greenleaf's Oruise on Beal Property, title 32, eh. 2, see. 24, note 1/ 3 Whart., 457; 1 Tayl. 139/ 6 Blaelef., 475/ 1 Mar. ds MoMen., 211/ 3 ib., 321; 6 J. J.…

This action was brought to restrain the Defendant from collecting a promissory note made by Appellants to Respondent, which was the subject of an action then pending in the District Court of Washington county, wherein the above Respondent was Plaintiff, and the Appellants were Defendants, and which originated in Justice’s Court, and involved the sum of $60, on the ground, as claimed by these Plaintiffs, that they, by mistake, had omitted to append the words-“Trustees of…

Points and Authorities of Appellant. I. — All contracts made in tbe ordinary course of business, without particular stipulations, express or implied, are presumed.to be made in reference to any existing usage or custom relating to such trade, and it is always competent for a party to resort to such usage to ascertain and fix tbe terms of tbe contract.

The complaint alleges that on and prior to the 9th day of February, a. d. 1858, the Plaintiff had been engaged in the livery business in Saint Paul, and in connection with his said business had contracted certain debts which were then standing against him, among which was a note given by Plaintiff to Cave & Dunwell, dated August 14th, 1856, for seven hundred dollars, payable in one year, with interest at three per cent, per month, till paid.

Points and Authorities of Plaintiffs in Error. I. — The Court below erred in admitting the parol testimony concerning the contracts and agreements, and the assignment mentioned in the answer, after the note (sued on) had been offered in evidence, and when the Plaintiffs offered to show that the other contracts were also reduced to writing.

This is an action brought by Hanford, Thayer, & Co., and Bertbold, Rozier & Co., judgment creditors of Burideo and Mower, two of Appellants in tbis action, to set aside certain conveyances of real estate executed by Samuel Burkleo and wife and William H. Mower and wife — and by Samuel Burk-leo and wife separately — and by William H. Mower and wife separately, — to Martin Mower, Jr., executed on the 12th and 13th November, 1857, a portion of which real estate is situate in…

Points and Authorities for Appellant. I. — The District Court erred in refusing to set aside the judgment entered on pretence of failure to answer, because the Defendant’s answer was lawfully served in time.

Plaintiffs sued Defendant and others in the Second District Court for goods sold. The Defendant alone answered. The case was referred to a referee, who reported tor the Plaintiffs, and judgment was entered on the report. Sometime after judgment was entered, Defendant moved for leave to make a case, which motion was denied, Defendant having omitted to serve part of his moving papers. On the denial of the first motion no leave to renew was asked or granted.

<p>Judgments in this Court may be set off upon motion, — and where one of the judgments is upon appeal, and the appeal undetermined, the motion may remain undecided until the final determination of the appeal, in order that the judgments may be set off in the event of affirmance.</p> <p>Where there are judgments .against, and in favor of each party to an action, rendered upon different trials thereof, the assignee of one of the judgments cannot'escape having had notice of the judgment against his assignor at the time he took the assignment, the judgment being in the same action, upon a retrial upon the same record. And having such notice, he takes the judgment assigned, subject to the equitable right ol the debtors therein, to have their judgment set off agaiust it.</p> <p>The judgment sought to he satisfied by set off, being in the Supreme Court, the motion for set off should be made iu that Court, as it can act directly upon the record by its order.</p>

Judgment had been rendered in the Court below against Plaintiffs in Error, execution issued, and levied upon their personal property. The Defendants sued out a -writ of error, and filed a bond as a supersedeas. Upon service of the writ and filing the bond, they demanded a release of the property from the effects of the levy.

Points and Authorities of Plaintiffs in Error. I. — In an action under the code to recover possession of real estate, the complaint is sufficient, if it states that the Plaintiff has the lawful title, as owner in fee simple, to the premises described therein, and that the Defendant is in possession of the premises, and unlawfully withholds possession thereof from the Plaintiff, and the Plaintiff demands that the Defendant may surrender the possession thereof to him.

<p>MOTION TO DISMISS AN APPEAL FROM THE DISTRICT COURT OF WASHINGTON COUNTY.</p>

<p>A Defendant demurred to a complaint upon two separate reasons or specifications, wherein he claimed the complaint did not state facts sufficient to constitute a cause of action. One of these reasons or specifications the Court held well taken, and the other insufficient. The Defendant then appealed from that part of the order disallowing one of these specifications, claiming the right under Chap. 25, iSess. Laws of 1861, p. 186. Held that the appeal does not lie. It would be unjust to allow an appeal to test the correctness of a decision upon an abstract question, which may ultimately have no bearing upon the case.</p> <p>Where the return to an appeal is not filed in this Court until too late to permit the giving ten days’ notice of argument, as required by Rule XV, of this Court, the rule does not apply, and the Respondent may move a dismissal at any time during the term, upon eight days' notice of motion.</p>

Points and Authorities of Appellant. L-r-The District Court has no power to compel a party to proceed and enter a judgment. 2 Minn. Rep., Deuel vs. Hawke, ¶. 50. II. — The District Court has no power to allow an adverse party to cause the entry of judgment to be made by the Clerk of the Court. See same case in the opinion of Mandrau, J. III. — The District Court has no power to order a judgment to be entered forthwith, thereby depriving the party of his costs.

Upon tbe order referred to in tbe foregoing opinion, judgment was entered by tbe clerk in favor of tbe Plaintiff. Tbe Defendant then sued out a writ of error to review tbe judgment.

The following is a copy of the complaint in this action : The Plaintiffs above named respectfully show to the Court, that under and by virtue of a special contract in writing between them and the above named Defendants, they performed work and labor for said Defendants in and upon certain sections of the Minneapolis and Cedar Valley Railroad, to wit: No. 33 and 32, between the 28th day of August, 1858, and the 20th day of June, a. d. 1859, and that by the terms of said…

<p>MOTION FOE RE-AEGÜMENT OF CASE IN 5 MINN., 505.</p>