Volume 6 — North Dakota Reports

<p>Insolvency Law — Discharge Feature Void as to Existing Creditors.</p> <p>A creditor of an insolvent debtor, whose claim accrued before the enactment of the insolvency law under which such debtor is seeking discharge from his debts, may prove his claim and receive his dividends without waiving his right to insist that the discharge feature of such statute is, as to his claim, a law impairing the obligation of his contract in so far as it assumes to discharge his claim without full payment. That such feature of an insolvency law is unconstitutional as to creditors whose claims existed at the time the law was enacted, is well settled.</p> <p>Title by Assignment Vests in Assignee as of Date Proceedings Instituted.</p> <p>But the entire body of such a law is not unconstitutional as to such creditors. So far as such law provides for the transfer of the debtor’s property to an assignee, to be distributed among his creditors, it is valid as to all creditors, and therefore no creditor, even though his debt was in existence when the insolvency law was passed, can levy upon such property after the title thereto has vested in the assignee under the terms of the statute. The fact that the levy was made intermediate, the commencement of the insolvency proceedings and the execution of the formal assignment, is immaterial where the statute, as in this state, declares that when the assignment is executed it vests the title in the assignee as of the lime when the proceedings were commenced, and annuls all levies between these two dates.</p>

<p>Estoppel in Pais.</p> <p>Where A., who furnished the money to buy a stock of goods, bought them in the name of B., and thereafter carried on the business in B.’s name as manager, ordering and paying for goods in his name, signing his name to checks, making credit statements in his name, having his name printed on the paper on which letters were written to merchants who sold goods to the business and in every way created the false appearance that B. was the, owner of the stock and the business; and where it appeared that certain attaching creditors, who seizedcthe property as B’s property, had sold the goods for the unpaid portion of the purchase price of which they attached, relying upon the appearance of B’s ownership of the stock and of the business so created by A., a portion of the goods being the identical goods so sold by them to B., — held, that A. was estopped, as against such creditors, from setting up ownership of the goods.</p> <p>Estoppel Against Pledgee Chargeable with Knowledge.</p> <p>Held, further, that the same estoppel was operative against a receiver of a creditor of A’s who accepted a pledge of the goods from A. as his property before the attachments were levied, no value having been parted with by the pledgee at the time of accepting the pledge, and it appearing that he knew at that time that A. had created this false appearance of B’s ownership of the property, so that he, the pledgee, was chargeable with knowledge of the fact that, owing to A.’s conduct, estoppels might have arisen in favor of B.’s creditors.</p> <p>Estoppels Bind Privies.</p> <p>As a general rule, estoppels bind privies as well as those who create them.</p>

<p>Claim and Delivery — Review of Evidence.</p> <p>This case involves only questions of fact. Evidence examined, and held to sustain the findings of the trial court.</p>

<p>T axation — Assessment—Ownership.</p> <p>Under the revenue law of this state, which requires personal property to be listed and assessed as of May 1st in each year, when prior to that date an elevator compnny had sold the wheat in a certain elevator, in good faith, and. for full value, paid in cash by the purchaser at the time, it was error to assess such wheat to and against the elevator company, although it was not shipped out of the elevator until after May 1st next succeeding.</p>

<p>Expert Evidence.</p> <p>Where a surgeon, shown to be duly qualified in this profession, testifies fully before the jury as to the condition in which he found a limb that had previously been amputated, he may properly be asked what, in his opinion, was the cause of the condition in which he found the limb.</p>

<p>Appeal from District Court, Cass County; McConnell, J.</p> <p>Action by Gaar, Scott & Co., against J. K. Green and .E. E. Green. Judgment for defendants, and plaintiff appeals.</p> <p>The execution of the notes and mortgage by the defendants could furnish no consideration for the alleged new agreement to put the machine in repair. Whart. on Contracts, 500; Conover v. Stilwell, 34 N. J. L. 54; Vanderbilt v. Schreyer., 91 N. Y. 392. Defendants allege an oral warranty, but there was a written warrantyjto the same effect. In such case proof of the oral warranty was inadmissible. Zimmerman v. Dolfih, 62 N. W. Rep. 339; Buey v. Pitts, 56 N. W. Rep. 541. Evidence of the condition subsequent, viz: That the notes were not to be paid if the promise to put the machine in order was not fulfilled was inadmissible. Sections 3888-3889, Rev. Codes; Brown v. Hall, x Denio. 400; Ely v. Kilborn, 5 Denio. 514; Pay?ie v. Ladue, 1 Hill. 116; Erwin v. Saunders, I Cow. 249; Van Brunt v. Day, 81 N. Y. 25 x; Underwood v. Simonds, 12 Mete. 275; Adams v. Wilson, 12 Mete. 138; Wakefield v. Stedman, 12 Pick. 562; Spring v. Lovett, 11 Pick. 417; Sears v. Wright, 24 Me. 278; McClintock v. Cory, 22 Ind. 175; Harlow v. Boswell, 15 111. 56; University v. Boorman, 14 N. W. Rep. 819; Washabatigh v. Hall, 56 N. W. Rep. 82; ZWztz v. Bank, 6 Dak. 222; Moseley v. Hanford, 10 B. and C. 729; The agent had no authority to alter or vary the terms of the contract. Minnesota Thresher Co. v. Lincoln, 4 N. D. 410; Reeves v. Corrigan, 3 N. D. 415; Fahey v. Esterly Machine Co., 3 N. D. 220; Walter A. Wood, etc. Co. v. Crow, 30 N. W. Rep. 609.</p> <p>The notes were delivered upon condition which could lawfully be imposed. Benton v. Martin, 52 N. Y. 570. Parole evidence is admissible to show that a written contract was not to become binding until the performance of some condition precedent resting in parole. Reynolds v. Robinson, no N. Y. 654, 18 N. E. Rep. 127; Merchants Exc. Bank v. Lnckow, 37 Minn. 542, 35 N. W. Rep. 434; Westman v. LCrumweide, 30 Minn. 313, 15 N. W. Rep. 255; McFarland v. Sikes, 54 Conn. 250, 7 At. Rep. 408; Belleville Sav. Bank v. Bornman, 124 111. 205, 16 N. E. Rep. 211; Ware v. Allen, 128 U. S. 591, 9 S. C. Rep. 174; Burke v. Dulaney, 153 U. S. 228.</p>

<p>Assessment — Under Valuation.</p> <p>When an assessor, acting within his jurisdiction, and in good faith, and in the exercise of his honest judgment, assesses certain property for taxtion at less than its actual value, such under valuation will not invalidate the entire assessment.</p> <p>Omission of Taxable Property.</p> <p>Nor will the omission of taxable property from the assessment roll by the assessor, while so acting, invalidate the entire assessment, whether such omission be through inadvertence or design, through a mistake of facts or a misapprehension of the law.</p> <p>Railroad Property — Assessed at Less Than True Value.</p> <p>When by statute the duty of assessing railroad property is devolved upon the state board of equalization, it is not sufficient to invalidate such assessment to show that the value fixed by such board was less than the actual value in the judgment of the said board, when the record also shows that there are grave doubts as to the liability of the property for taxation, and is silent as to whether or not the board regarded it as taxable.</p> <p>Curative Legislation.</p> <p>It is competent for the legislature, by curative act, to validate a defect levy which it might originally have authorized to be made in the manner in which it was done.</p> <p>County Tax Levy — Itemized Statement.</p> <p>The statute required that the county tax levy should be based upon an itemized statement of county expenses for the ensuing year, and that such statement should be included in the published proceedings of the board of county commisioners, but did not further indicate the form or nature of such statement. The records of such board showed a levy of a specific amount for each item of county expenses. Held, that this was a sufficient compliance with the law as to such itemized statement.</p> <p>Levy of General City Tax — Yeas and Nays.</p> <p>The statute relating to proceedings by city councils declared, “The yeas and nays shall be taken upon the passage of all ordinances, and on all propositions to create any liability against the city or for the expenditure or appropriation of its money.” Comp. Laws, § 880. Held that this did not require that the yeas and nays be taken upon the passage of a resolution levying a general city tax.</p> <p>Sale for More Than Amount Due.</p> <p>Under the revenue law of 1890, a tax sale is not rendered invalid by reason of the auditors selling for an amount in excess of the amount due,</p> <p>Tax Law Consitutional.</p> <p>A state law which directs that the entire tract of land be sold to the highest bidder, for the taxes delinquent thereon, violates no constitutional provision.</p>

<p>State Legislature — Joint Resolution.</p> <p>The expression of the sovereign will of the legislature that a particular proposition or question be submitted to the people to be voted upon need not take the form of a law. It is sufficient if it be in the form of a joint resolution.</p> <p>Constitutional Convention.</p> <p>Accordingly, held, that it is the duty of the secretary of state to certify to the county auditors of the various counties in the state a joint resolution passed by the legislature, that the question whether a constitutional convention should be held should be submitted to the people.</p>

<p>Owner of Land Presumptive Owner of Crop.</p> <p>The owner of real estate is presumed, prima facie, to own its products, including annual crops. Such presumption, however, is not conclusive and may be rebutted by evidence.</p> <p>Ownership of Crop — Question of Fact for the Jury.</p> <p>The evidence showed that B. was the owner of land upon which he did not reside, but lived elsewhere in the vicinity of the land. L., from seed purchased from plaintiff, planted, harvested, threshed, and sold a crop raised on said land in 1894. During seeding time, and for a short time prior thereto, L. resided on the land with his family, but resided elsewhere at all other times in question. Whether B. consented or did not consent to such occupancy by L. does not appear. Held, that it was not error in the trial court to submit such evidence to the jury upon the question of L.’s ownership of said crop.</p> <p>Sale of Crop was Conversion and Entitled Mortgagee to Possession Before Maturity of Debt Secured.</p> <p>L. gave a chattel mortgage on the crop to the plaintiff, which was duly filed for record. After the mortgage was filed, but before the maturity of the debt secured by it, L. sold the crop to the defendant, and the defendant received possession thereof in one of its elevators. The mortgage embraced the usual stipulations empowering the mortgagee to take possession of the property at once upon a sale or other disposition 'of the property by the mortgagor. Held, that the sale and delivery of the crop to the defendant by the mortgagor operated, eo instanti, to vest in the plaintiff the right to take possession of the crop, and to sue for and recover either the crop itself or its value. Defendant acquired title by its purchase of the crop, but such title was incumbered by the mortgage, of which defendant had constructive notice.</p>

<p>Notice of Intention — When Waived.</p> <p>A notice of motion for new trial, otherwise in proper form, which contains a notice that the motion will be made upon the minutes of the court, and upon a ground specifically stated in the notice, will operate as a notice of intention, as well as a notice of motion. Held, further, where the objection is made for the first time in this court that no notice of intention was ever served, that such objection comes too late. The objection is waived by not being made in the trial court.</p> <p>Delivery of Contract of Sale Passes Title — When.</p> <p>Where all the terms of a sale of personal property which has been identified are agreed upon, and embodied in a writing signed and delivered, such delivery of the writing operates to pass title to the purchaser. Accordingly, held, in the case of a sale of a mare, when the writing so made and delivered contained a stipulation that the sale was made without any warranty, that an oral warranty of quality, made an hour after the delivery of the writing, and made only as an inducement to the purchaser to accept and keep the mare, could not be enforced as a contract, such oral warranty being without consideration.</p> <p>Authority to Sell Implies Authority to Warrant.</p> <p>An agent, having authority to sell particular property, has implied power to warrant the goods sold; but, after consummating a sale, the authority of the agent is exhausted. He cannot, by a subsequent agreement, made without the consent of his principal, rescind the sale, and then enter into a new contract of snle to the original purchaser,</p> <p>Court May Amend Verdict in Claim and Delivery — When.</p> <p>In claim and delivery, when the value of the plaintiff’s interest in the property is not found in the verdict, but such value is not controverted, and may be ascertained by mere computation made upon the pleading, the verdict may be amended by the court, and a judgment may be entered based upon the amended verdict.</p> <p>Verdict Directed When Facts Not Controverted.</p> <p>Where facts are not controverted, or are adinitted in the pleadings, it is the province of the court to direct a verdict; and this is the rule in claim and delivery cases, as well as other cases of a civil nature.</p>

<p>Appeal from District Court, Richland County; Lauder, J.</p> <p>Action by the Guaranty Savings Bank against Albert Bladow, Charles Anderson and Franklin Hall. From a judgment for defendants plaintiff appeals.</p> <p>The entry made by Anderson was cancelled by the commissioner on the contest initiated by Bladow, in which case the mortgagee was not made a party defendant or served with any notice whatever. The power vested in the commissioner is not arbitrary, unlimited or discretionary, but must be exercised in accordance with law. Bogan v. Edinburgh, etc., Co., 63 Fed. Rep. 192; Cornelius v. Kessel, 128 U. S. 456; Lindsey v. Hawes, 2 Black 554; Stimson v. Clark, 45 Fed. Rep. 760. Anderson’s proof and payment had been accepted by the agents of the government and final receipt issued to him. By such purchase the land became subject to the incidents of private ownership and Anderson could legally mortgage it before issuance of a patent. Carrol v. Safford, 3 How. 450; Witherspoon v. Duncan, 4 Wall. 210; United States v. Budd, 144 U. S. 154. The mortgagee acquired a property interest in the land and the ruling of the commissioner without notice to him was not due process of law. 2 Kent Com. 13; Westervelt v. Greggs, 12 N. Y. 202; Bank v. Akely, 4 Wheat 235; Hurtado v. California, no U. S. 516; Leeper v. Texas, 139 U. S. 467. Property rights of an individual ca,nnot be divested without granting him a hearing. Windsor v. McVeigh, 93 U. S. 274; Lewis v. Shaw, 57 Fed. Rep. 516; Hollingsworth v. Barbour, 4 Pet. 466; Woodruff v. Taylor, 20 Vt. 65. The cancellation of Anderson’s entry was void and the entry remains as though it had never been cancelled, and patent to the land should have been issued upon application of the plaintiff under § 7 of the Act of March 3rd, 1891 (26 St., At Large 1095.) This statute is remedial and the broadest possible scope towards effecting the object for which it was enacted, that its language will imply, must be given to it. Suth. St. Cr. § 207; Hudler v. Golden, 36 N. Y. 446; Cullerton v. Mead, 22 Cal. 96; Oates v. First Nat. Bank, 100 U. S. 239; Smith v. Stevens, 82 111. 554; C., B. & Q. Ry. Co.' v. Dunn, 52 111. 260; Rockford R. L & St. L. Ry. Co. v. Heflin, 65 111. 366; Hudley v. Morrison, 39 111. 392. Where the land department has mistaken the law, courts of justice have power to inquire into and correct mistakes, injustice and errors. Johnson v. Towsley, 13 Wal. 72; Stark v. Starrs, 6 Wal. 402; Lindsey v. Hawes, 2 Black 554; Cornelius v. Kessell, 128 U. S. 456; Widdicombe v. Childers, 124 U. S. 400; Moore v. Robbins, 96 U. S. 530; Bernier v. Bernier, 147 U. S. 242; Perry v. O’Hanlan, 11 Mo; 373; Risdon v. Davenport, 57 N. W. Rep. 482. The defendant, Bladow, became the owner by purchase of the title acquired by Anderson subject to the mortgage. He is estopped from setting up any defense to the validity of the mortgage subject to which he purchased the land. Jones on Mortgages, §736; Johnson v. Thompson, 129 Mass. 393; Luite v. Stevens, 98 Mass. 303; Howard v. Chase, 104 Mass. 249; Hancock v. Fleming, 3 N. E. Rep. 254; Atherton v. Toney, 43 Ind. 211; Manwarring v. Powell, 40 Mich. 371; Fuller v. Hmit, 48 la. 163; Swertzer v. Jones, 35 Vt. 317; Thredgill v. Pintard, 12 How. 24.</p> <p>An entryman making a fraudulent entry of public land acquires no vested right of property in it. American Mortgage Co. v. Hopper, 64 Fed. Rep. 537; U. S. v. Peterson, 30 Fed. Rep. 307. The Amistead, 15 Pet, 518; League v. DeYoung, 11 How. 183; Parsons v. Venzke, 4 N. D. 452, 61 N. W. Rep. 1036. This court can not question the finding of fact by the commissioner. Mortgage Co. v. Hopper, 64 Fed. Rep: 557; Parsons v. Venzke, 61 N. W. Rep. 1036, 4 N. D. 452. Anderson acquired no title and plaintiff could acquire none. The protection of a bona fide purchaser relates to the legal title, or to such a right, as is completely determined. So long as something remains, to be done affecting the right those purchasing do so at their peril. American Mortgage Co. v. Hopper, 36 Fed. Rep 74, S. C. 64 Fed. Rep. 333; Jordan v. Ward, 64 Fed. Rep. 903. In this case Bladow's land would not be liable to the mortgage even if he had given it himself. Bull v. Shaw, 48 Cal. 4^, Anderson v. Carkins, 135. U. S. 483. Bladow is not estopped to defeat the pretended lien of this mortgage. Kraft v. Baxter, 16 Pa. 739; Shoreman v. Eakin, 1 S. W. Rep. 559; Bowling v. Roork, 24 S. W. Rep. 4. The mortgage in so far as it might affect the real title to this land was void at its inception. Mellison v. Allen, 2 Pa. 97; Brewster v. Maddon, 13 Kan. 249; Webster v. Luther, 52 N. W. Rep. 271; Gregory v. Kenyon, 52 N. W. Rep. $85. Midloy v, Cook, 10 S. W, Rep. 349. The aovenants in the mortgage would estop the mortgagor. Robinson v. Bailey, 26 Fed. Rep. 223; Alt v. Banholzer, 40 N. W. Rep. 830; Giles v. Miller, 54 N. W. Rep. 551.</p>

<p>Subject of Action Defined.</p> <p>The words “subject of the action,” as found in Subd. 3, § 5204, Gen. St. Minn. 1894, which requires the plaintiff who desires to serve a summons by publication to make affidavit, among other things, that the court has jurisdiction of the subject of the action, relate to the controversy between the parties, and not the property of the defendant that has previously been seized on attachment.</p> <p>Corliss, J., dissenting.</p> <p>Garnishment — Jurisdiction in Rem.</p> <p>The attachment by garnishment of property of defendant upon which the garnishee has a lien is sufficient, under Minnesota statutes cited in the opinion, to give a court jurisdiction to render a valid judgment in rem against a non-appearing nonresident defendant served by publication only. The court has power to make all necessary orders for the ultimate application of defendant’s interest in the property in satisfaction of such judgment.</p>

<p>Action to Condemn Property — Name of Corporation.</p> <p>An action to condemn property for railroad purposes should be brought in the name of the company, despite the fact that its property is in the hands of receivers appointed in foreclosure proceedings, who are operating the road.</p> <p>Amendment as to Party Plaintiff After Verdict.</p> <p>Such action having been brought in the name of the receivers, held, that it was not error for the court, after verdict fixing the compensation to be paid for the taking of the property condemned, to amend the pleadings and all proceedings by inserting the name of the corporation on its own motion. Also, held, that as the action was brought by and in the names of the receivers, on behalf of the corporation, it was not necessary to dismiss the action, and institute a new suit, as would be necessary where the sole plaintiff, who sues on his own behalf, has no interest in the cause of action, the right to sue being in another.</p> <p>Issues in Condemnation Triable to Court — Exception.</p> <p>All issues in a condemnation action, except the issue of compensation, are triable by the court, without a jury.</p> <p>Necessity of Condemnation is Question for the Court.</p> <p>The question of the necessity of condemning the property sought to be condemned, while in its essential nature a political question, has been made a judicial question in this state by statute; but it is triabie by the court, and not by a jury.</p> <p>What is Legal Necessity.</p> <p>A legal necessity, within the meaning of the statute, for the taking of private property for railroad purposes, exists when it appears that such property is needed by the corporation to enable it to augment the safety of its roadbed at points where the roadbed is unsafe at a particular time of the year.</p> <p>Diversion of Water Course.</p> <p>Section 210 of the constitution does not prohibit the diversion of a portion of a non-navigable water course, where such diversion is needed for a public use, the substantial integrity of the stream not being thereby impaired.</p> <p>Riparian Rights — Condemnation of.</p> <p>Under the statutes of this state, the right of the riparian owner to have a natural stream flow over his land is such property as may be condemned for railroad purposes,</p> <p>Verdict on View Must be Within Limits of Evidence.</p> <p>While a jury which has taken a view, under the statute, of the premises which it is claimed will be damaged by a proposed diversion of a water course therefrom, may weigh the evidence as to value in the light of what they have seen, yet their verdict must be within the limits of such evidence. It cannot rest alone upon their own judgment, based upon mere inspection of the property.</p> <p>Order of Condemnation Reversed as to Part of Defendants.</p> <p>An order of condemnation in proceedings under the eminent domain statute may be reversed as to one of the parties, and affirmed as to others.</p> <p>Question of Compensation Resubmitted.</p> <p>The court being of the opinion that the compensation awarded one of the defendants was insufficient under the evidence, held, that the order should be reversed as to such defendant, and the single question of compensation be submitted to another jury.</p>

<p>Res Judicata — Action on Contract — Extraneous Issues.</p> <p>A defendant in an action on contract is under no obligation to litigate in that action the extraneous issue whether the debt sued on was incurred for property-obtained under false pretenses. Accordingly, held, that when, in an action of that character, the complaint embodied allegations of facts relating to false pretenses, and the judgment by default adjudged that the debt on which the judgment was rendered was incurred for the property obtained under false pretenses, such judgment was no evidence whatever as to the fact of false pretenses, in an action brought by the defendant in the judgment against the sheriff for seizing exempt property, such property not being exempt as against a judgment founded on a debt incurred for property obtained under false pretenses. The question of false pretenses must be litigated as a fact in the action brought by the owner of the property against the sheriff.</p>

<p>Bank as Collecting Agent.</p> <p>When an instrument is intrusted to a bank for collection, the bank secures no title thereto, and no right to hold it in any other capacity than as agent.</p> <p>Relation of Debtor and Creditor.</p> <p>If, from the indorsement, or the circumstances of the case, it appears that the bank was to credit the owner of the paper with the amount thereof, when collected, such bank becomes, upon receipt of the money, the debtor of the owner, and at this moment the relation of principal and agent is transmuted into that of creditor and debtor.</p> <p>Indorsement for Collection Does Not Transfer Title.</p> <p>When the owner of paper indorses it for collection, this is notice to every person or bank into whose hands the paper may come that the owner has not parted with his beneficial title, but has merely j>arted with possession, for the sole purpose of collection. The paper remains the paper of the owner down to the moment of collection, no matter how many hands it may pass through in the process of transmitting for collection; and no one through whose hands it passes can, before such collection, by credits, advances, or in any other way, secure any lien thereon or right thereto as against the owner, who may at any time prior to collection follow it into the hands of any subagent.</p> <p>Agent Must Collect in Cash Only.</p> <p>In the absence of circumstances showing a contrary purpose on the part of the owner, the agent or subagent has authority to receive only cash in making the collection; and, if he accepts other paper instead of cash,--as a draft or check,-the owner may treat either the original or the substituted paper as his property, and may follow it in the hands of the bank receiving it, although such bank has credited it as cash to the bank transmitting the original paper to it for collection. The right to make such credit, and thereby change the relation of principal and agent to that of creditor and debtor, does not exist until the agent collects the claim in money, unless there is something in the circumstances of the case showing that the parties intended that the agent should be authorized to accept, at its own risk, a draft or check instead of cash.</p> <p>Right of Owner to Trace Funds.</p> <p>But when cash is received, and credited to the transmitting bank, the relation of principal and agent between the collecting bank and the owner of the paper ceases; and thereafter whatever right the owner has as against the collecting bank'is to the credit in favor of the transmitting bank, so far as he can trace the proceeds of his property into such credit.</p> <p>Intervener Entitled to Dividends.</p> <p>Intervener held a certificate of deposit issued to him by the Lloyds National Bank. He indorsed it for collection and credit to the Anacortes Bank, which forwarded it for collection to the plaintiff. Plaintiff received from the Lloyds National Bank its draft on a St. Paul bank, and surrendered the certificate. It gave the Anacortes Bank credit for the amount of the draft, and that bank reported to intervener that the certificate had been collected, and, at his request, issued to him its certificate for the amount reported as collected. The St. Paul draft was not paid. The plaintiff immediately notified the Anacortes Bank that the collection had not been made, and charged the amount back to it. The Anacortes Bank notified the intervener of this fact, and he surrendered his certificate issued by it. That bank credited to the plaintiff the amount of the supposed collection. The plaintiff at no time since this has claimed to be the owner of the draft, or to have any interest therein, save as collateral to its claim against the Anacortes Bank for an overdraft. Held, that the intervener is the owner of such draft, and entitled to receive the dividends thereon payable out of the assets of Lloyds National Bank declared by the comptroller of the currency.</p> <p>Time Certificate Surrendered Immaterial on the Facts.</p> <p>The fact that the intervener did not surrender up his certificate until after the Anacortes Bank had suspended operations does not affect the question; it appearing that the plaintiff had, in accordance with the facts claimed that the collection had not been made, and had charged back the draft to the Anacortes Bank, and the intervener having acted on such claim, and acquiesced therein, by surrendering his certificate issued to him by the Anacortes Bank, without any withdrawal of such claim being made by plaintiff, and the plaintiff insisting down to and upon the trial that it had not made the collection, but that it merely held the draft as collateral to its demand, against the Anacortes Bank for an overdraft.</p>

<p>Certificate of Protest Prima Facie Evidence.</p> <p>Under the statutes of this state the certificate of protest of a notary public is prima facie evidence of the facts of presentment, demand, and dishonor therein set forth, as well in the case of an inland bill or note as in the case of a foreign bill.</p> <p>Notice to Take Depositions — Sufficiency.</p> <p>A notice to take depositions should state the name of each witness to be examined.</p> <p>Abstract Must Contain Sufficient to Sustain Contention.</p> <p>The appellant must embody in his abstract the necessary facts to sustain his contentions. The court will not explore the record for the purpose of finding something to induce it to arrive at a different conclusion from that reached by the trial court.</p> <p>Presentment for Payment.</p> <p>When a note is payable at a bank, a statement in the certificate of protest that it was presented at the place of payment, and payment demanded, is sufficient evidence of a legal demand, without a further statement to whom it was presented for payment.</p> <p>Notice of Dishonor — -Who Entitled To.</p> <p>In determining whether due notice of the dishonor has been given to indorsers, each agent and subagent for collection is to be regarded the same as a purchaser of the paper.</p> <p>Agent or Subagent May Give Notice of Dishonor.</p> <p>Any agent or subagent holding the paper for collection may give notice of dishonor with like effect as an owner of the paper.</p> <p>Notice of Dishonor — Whose Benefit.</p> <p>Notice given by a proper party inures to the benefit of every party to the paper whose right to give a similar notice had not at that time been lost.</p> <p>Variance Between Allegation and Proof.</p> <p>When there is a variance between the allegations of the complaint and the evidence, but no objection is made to the evidence on that account, the appellate court will treat the pleading as amended to conform to the proof.</p>

<p>Violation of Game Laws — Accident Insurance.</p> <p>One who has started to hunt prairie chickens with a loaded gun at a season of the year when it is unlawful to kill prairie chickens has not, by such act, committed the offense of attempting to kill prairie chickens.</p> <p>Unnecessary Danger — Voluntary Exposure.</p> <p>One who hunts for game with a loaded gun cannot be said to have voluntarily exposed himself to unnecessary danger by such act, within the meaning of the provision in an accident insurance policy which declares that, for injuries sustained by reason of a voluntary exposure to unnecessary danger, there can be no recovery.</p> <p>Scaling Bank With Loaded Gun.</p> <p>Nor is an attempt to scale a bank with a loaded gun in hand a voluntary exposure to unnecessary danger, within the meaning of such a provision.</p>

<p>Vacation of Verdict of Courts Own Motion.</p> <p>Evidence and instructions in this case examined. Held, construing § 5475, Rev. Codes, that the court was not warranted in vacating the verdict, and granting a new trial on its own motion.</p> <p>Verdict Contrary to Evidence and Courts Instruction.</p> <p>Held, further, that under said section the trial court would not be justified, as a rule, in vacating a verdict of its own motion merely upon the ground that the verdict violates the instructions of the court, or is not justified by the evidence. These are grounds available on motion made by the party aggrieved by the verdict.</p> <p>Verdict Result of Passion or Prejudice.</p> <p>Unless there has been such a manifest disregard of instructions or of the evidence that the court is at once satisfied that the verdict is the result of passion or prejudice, or of a plain disregard of the court’s instructions to the jury, the court cannot be sustained in vacating a verdict on its own motion. The power to vacate should be exercised with great caution, and only in extreme cases.</p>

<p>Action to Recover Usury.</p> <p>Under Ch. 184, Laws 1890, no action can be maintained against the original owner of a usurious promissory note by the maker to recover the amount thereof, unless such original owner transfers or parts with such note before maturity, without giving the purchaser notice of its usurious character.</p>

<p>Mortgage — Homestead Acquired Subsequently.</p> <p>M. and R., to secure a debt due to A., jointly executed and delivered a mortgage to A. upon a certain city lot, located in the City of Fargo, N. D. When the mortgage was delivered, M. and R. were seised, as tenants in common, of the fee-simple title to said lot, and said lot was wholly unincumbered except by said mortgage. When the mortgage was delivered, M. was a married man, but had never resided upon said lot, but did live with his family upon another lot in said city. Subsequent to the delivery of the mortgage to A., M. moved into a building situated on said lot, and established his residence and home therein, and continued to reside in said building with his family until after said lot had been sold to A., at a foreclosure sale had pursuant to said mortgage. There was no redemption made from the foreclosure sale. Held, that M. and his family acquired homestead rights in and to said premises, but said rights were wholly subordinate to the superior rights acquired by A. as purchaser at the foreclosure sale.</p> <p>Wife Interest Subject to Mortgage.</p> <p>Held, further, that the wife of M. had no homestead rights as against the mortgagee, which would entitle her to be made a party defendant in an action brought by A. to foreclose the mortgage; nor had she any homestead rights as against A. after the title passed from her husband, and ripened in A., by a regular foreclosure of a valid mortgage.</p> <p>Abandonment of Homestead.</p> <p>M. and his family removed from said homestead to another state in June, 1888, and since such removal, and until the trial of this action, have never resided in this state, and so far as appears in the record, have never manifested an intention to return to this state to reside. About four years subsequent to such removal from this state, M. and his wife, by a deed of quit-claim, conveyed all their right, title, and interest in said lot to the defendant. Held that, prior to the execution of said quit-claim deed, said removal of M. and his family from this state, and their continued residence in another state after such removal, operated as an abandonment and forfeiture of such homestead rights as they had acquired in and to said lot and premises, and that no homestead rights passed to the defendant by said deed of quit-claim.</p>

<p>Appeal from District Court, Cass County; McConnell, J.</p> <p>Action by the Swedish American National Bank against the Dickinson Company and C. G. Dickinson. From an order refusing permission to file a supplemental complaint, plaintiff appeals.</p>

<p>Burden on Party Alleging it to Prove Indorsement.</p> <p>Where issue is joined on an allegation in the complaint that promissory notes, payable to order, on which the action is brought, were sold, indorsed, and transferred to the plaintiff in good faith, before maturity, the burden is on the plaintiff to establish the truth of such allegations by evidence; and, among other things, the plaintiff must show that the notes were in fact indorsed by the payee.</p> <p>Actual Indorsement Must he Shown.</p> <p>The mere fact that a promisory note, when offered in evidence, had indorsed upon its back the name of the payee, does not establish the fact that the payee endorsed the same, in the absence of proof of actual indorsement.</p> <p>Name of Payee 6n Back of Note Does Not Prove Indorsement.</p> <p>Plaintiff alleged that he was the owner of promissory notes payable to the order of Pulaski J. Scovil, and at the trial put the notes in evidence. On the back of each appeared the following indorsement: “P. J. Scovil.” Held, that such indorsement does not raise a presumption of law that the notes were indorsed in fact by Pulaski J. Scovil, and, without further evidence, such indorsement furnishes no proof that the payee indorsed said notes. There is no legal presumption that P. J. Scovil is the same person as Pulaski J. Scovil.</p> <p>Directed Verdict Improper.</p> <p>Evidence in the record examined, and held that an order of the District Court, made at the close of the evidence, directing a verdict for the plaintiff, was unwarranted by the state of the evidence, and hence was erroneous.</p>

<p>Payment — Evidence.</p> <p>Where the only controverted point related to the matter of payment for wheat delivered by plaintiff to defendant’s elevator, held, it was proper to prove by the plaintiff that defendant’s agent assigned as -a reason for refusing to pay him that the wheat had never been delivered.</p>

<p>Sureties on Bond — Liabilities.</p> <p>Sureties who sign a bond for the fidelity of a firm as agents for the obligee are not liable for funds misappropriated by one of the members of such firm after the dissolution of the partnership and the retirement of the other partner from the business of such agency. And this is the rule notwithstanding the fact that the obligee knew nothing of such dissolution.</p>

<p>Demurrer to Answer — Form.</p> <p>A demurrer to an answer, under § 5277, Rev. Codes, need specify no - particulars wherein the answer is insufficient. It is sufficient if such demurrer follow substantially the language of the statute.</p> <p>Answer Pleading Conclusions Only Demurrable.</p> <p>■ An answer which, sets forth new matter, consisting of conclusions only, and pleads no probative facts upon which such conclusions are based, raises no issue of fact, and is vulnerable to a demurrer.</p> <p>Denial on Information Insufficient.</p> <p>A party may not deny an allegation in his adversary’s pleading by stating that he “has not sufficient knowledge or information to form a belief thereon, and hence denies the same,” when the means of full and positive information in the form of public records are readily accessible to him.</p>

<p>Divorce — Acceptance of Alimony — Appeal..</p> <p>When, as part of the order of the court for judgment in favor of the plaintiff in a divorce suit, the court directs that the plaintiff pay the defendant a specified sum in full for all claims for alimony, costs, etc., whether for the past or future, and it is apparent that this sum was ordered to be paid on the theory that the marital relations were to stand forever severed by the decree, and because of that fact, and when the defendant accepts said sum, and the final judgment contains no provision relating to the matter, because the same has been settled, the defendant is by the acceptance thereof precluded from prosecuting an appeal from such judgment just as effectually as she would have been had such provision- been formally incorporated in the judgment.</p>

<p>Conversion — Evidence.</p> <p>Evidence held to be sufficient to justify the verdict.</p> <p>Harmless Error.</p> <p>Error without prejudice is not ground for reversal.</p>

<p>. Appeal from District Court, Ransom County; Lauder, J.</p> <p>Action by the Gull ■ River Lumber Company against the Osbrone McMillan Elevator Company. Verdict for plaintiff. From an order granting a new trial, it appeals.</p>

Application by F. H. McDermont against John Dinnie, as mayor, and Frank A. Brown, as city auditor, of the City of Grand Forks, for a writ of mandamus. From a judgment for plaintiff, defendants appeal. The jurisdiction attempted to be conferred upon municipal courts, cannot be conferred under the constitution. Sections 85, 113, Const.

Petition for mandamus by the State of North Dakota, on the relation of Lester R. Brooks, Dwight F. Brooks, and Anson S. Brooks, co-partners as Brooks Bros., against Michael J. O’Connor, sheriff. Judgment for plaintiffs. Defendant appeals.

Action by B. F. Warren against Leslie Stinson and others. From a judgment for plaintiff, defendants appeal. This action will not lie. The appropriate remedy being a motion to set aside the sale and to vacate the order of confirmation. The proceedings not being void cannot be attacked collaterally. Wilcox v. Raben, 38 N. W. Rep. 844; Morrow v. Moran, 32 Pac. Rep. 770; Neligh v. Keene, 20 N. W. Rep. 277; Willey v. Morrow, 1 Wash.

<p>Fraudulent Conveyances — Parties to Action.</p> <p>In an action brought by judgment creditors of the grantors to set aside con- • veyances of real estate as fraudulent and void, and in which no accounting for rents and profits is asked, it is not necessary to bring in as a party defendant a receiver of the rents and profits of said real estate, appointed long after the conveyances were made, and in an action to which none of the plaintiffs in this action were parties.</p> <p>Execution in Name of Deceased Judgment Creditor.</p> <p>Under §5110, Comp. Laws, where, after judgment is rendered, the judgment creditor dies, execution may properly be issued upon the judgment by the representatives of the deceased, and in his name. Formal proceedings reviving the judgment in the name of the representatives are not now necessary.</p> <p>Void Transfer.</p> <p>Following the ruling of this court upon practically the same evidence in Pcmlson v. Ward, 58 N. W. Rep. 792, 4 N. 1). 100, it is held that the conveyances here attacked were executed and received for the purpose of defrauding the creditors of the grantors, and are, as against these plaintiffs, void.</p> <p>Conveyances Made to Defraud One Creditor Void as to All.</p> <p>Where, in an action by creditors of the grantors to set aside conveyances of real estate as fraudulent and void, it is shown that the conveyances were executed and received for the purpose of defrauding any creditor of the grantors, then, under § 5052, Rev. Codes, such conveyances are fraudulent as to all creditors of the grantors.</p> <p>Fraudulent Grantee Cannot Hold Land as Security for Advances.</p> <p>Where, at the time of the execution of the conveyances of real estate made and received for the purpose of defrauding the creditors of the grantors, the grantee, as a part of the same transaction, agrees with the grantors to pay off certain existing valid encumbrances upon the real estate so fraudulently conveyed, and subsequently, and in pursuance of such agreement, the grantee pays such encumbrances, he cannot, when such conveyances are declared fraudulent and void as against the creditors of the grantors, hold such conveyances as security for the amounts so paid.</p> <p>Rights of Purchaser of Judgment.</p> <p>But where, at the suit of one judgment creditor of the grantors, such conveyances are declared fraudulent and void, and the lien of the judgments of such creditor are declared superior to any claim of the grantee under such conveyances, and thereafter such grantee purchases such judgments, and has them assigned to a trustee for his benefit, in such case, when another action is brought by other judgment creditors of the grantors to set aside the same conveyances, and a decree to that effect is obtained, and the land ordered sold upon executions issued upon the latter judgments, the grantee is entitled to have a provision in such decree declaring the liens of the judgments so purchased and held by him, through his trustee, senior and superior to the liens of any of the judgments held by the plaintiffs in the second action.</p>

<p>Claim and Delivery — General Denial.</p> <p>In claim and delivery a general denial puts in issue plaintiff’s ownership and right of possession, and also the wrongful detention by the defendant, and under such denial defendant .may introduce evidence to establish any of the issues so raised. '</p> <p>Chattel Mortgage — Pleading and Proof.</p> <p>Where, in such an action, plaintiff bases his claim to the property upon a chattel mortgage executed by defendant, and defendant, in his answer, admits the execution of the mortgage, and denies all the other allegations of the complaint, and also pleads certain facts upon which he predicates fraud in procuring the mortgage, if the evidence fails to establish fraud, but does show that defendant never, intended to give, and plaintiff never intended to take, a mortgage upon the property in controversy, and that the mistake was not the result of defendant’s negligence, then defendant will be entitled to a verdict in his favor, notwithstanding his failure to prove fraud.</p> <p>Directing Verdict for Defendant.</p> <p>Evidence examined, and held, that the court did not err in directing a verdict for defendant.</p>

Action by W. S. Conrad against Charles W. Smith, sheriff of Cass County. Judgment for plaintiff. Defendant appeals. This case is controlled by § 4657, Comp. Laws. To apply the amendment as contained in Ch. 78, Laws 1893, to this case would be to give the amendment retroactive effect. A statute should not receive such construction as to make it impair existing rights.

<p>Appeal from District Court, Barnes County; Rose, J.</p> <p>Action by Elmer Nearing against Walter Coop and the New England Mortgage Security Company. Judgment for plaintiff, and defendant’s appeal.</p>

<p>Contract of Subscription — Construction.</p> <p>Written instrument construed.</p>

Action by Fred McRea against the Hillsboro National Bank. Verdict directed for plaintiff. From an order refusing to vacate the verdict and grant a new trial, defendant appeals.

<p>Appealable Orders — Receivers.</p> <p>Where the account of a receiver covers the entire period for which he was originally appointed, and embraces all the transactions of the receiver during such period, an order passing upon such account, made by the District Court, is a determination in the nature of a final judgment of a special nature, and as such may be reviewed on appeal to this court. Motion to dismiss the appeal is accordingly denied.</p>

Action by Alexander McKenzie, for himself and others similarly situated, against the Bismarck Water Company, in the nature of a creditor’s bill. George A. Hughes and Eber ,H. Bly, and the Central Trust Company of New York as trustee in a mortgage, intervened. There was -a judgment declaring the mortgage a superior lien, and an order granting a new trial, and the trustee appeals.

Action by Walcott Township of Richland County against Erick Skauge. From a judgment for plaintiff, defendant appeals. Neither prescription nor bankruptcy can run against the government. Peo. v. Herkimer, 4 Cow. 345; Peo. v. Gilbert, 19 Johns, 229; Gibson v. Chonteau, 13 Wall. 92; Langdon v. Harris, 21 Wall. 521; Sparks v. Pierce, 115 U. S. 408; Jordan v. Barrett, 4 How. 169; Burgess v. Gray, 16 How. 48; Frisby v. Whitney, 9 Wall. 187;.

Action by Erasmus B. Angell against John H. Egger. Judgment for defendant, and plaintiff appeals. By contract of the parties the title of all crops raised was in plaintiff. This was a lawful and binding stipulation.

<p>Executory Contract of Sale — Title Passes on Delivery.</p> <p>Under an executory contract by which a vendor agrees to sell and deliver to the vendee certain personal property, and the vendee agrees, as a part consideration therefor, to deliver to the vendor certain personal property then owned by him, no title to property passes either way until the acceptance by the vendee of the property specified in the contract.</p> <p>Refusal to Accept Property Mere Breach of Contract.</p> <p>Where, in such a case, the vendee, when such property is subsequently tendered, wrongfully refuses to accept the same, such refusal may constitute a breach of the contract, but it gives the vendor no title to the property that was to be delivered in part ¡Dayment of the property refused.</p> <p>Unauthorized Delivery by Agent.</p> <p>Where an agent of the vendor makes a conditional delivery of property to the vendee, when, to the knowledge of the vendee, he had no authority so to do, the vendor may immediately retake the property; but he cannot convert . such unauthorized conditional delivery into an unconditional delivery, so as to pass the title to the vendee.</p> <p>Estoppel.</p> <p>Where the vendee of personal property, who has received the same conditionally, returns said property, as not complying with the conditions, and the vendor subsequently sells such property to a third person, he cannot claim that there was such a delivery to and acceptance by the first vendee as passed the title to him.</p>

<p>Escrow — What Constitutes — Title to Notes.</p> <p>Where promissory notes were placed by the parties thereto in the hands of a third party, with instructions not to deliver the same until the maker so directed, the transaction did not constitute an escrow. The notes still remained in the control of the maker. There was no delivery in law, and no title to the notes vested in the payee.</p> <p>Replevin Will Not Lie Against Depositary — When.</p> <p>The maker of the notes having directed such third party not to deliver the notes, replevin therefor by the payee named therein against such third party would not lie.</p>

<p>Estoppel — Motion for Directed Verdict.</p> <p>Where, in a jury trial, counsel on both sides request the court to direct a verdict, and a verdict is directed, counsel thereby consent to a withdrawal of the case from the jury, and consequently are estopped from predicating error upon such withdrawal.</p> <p>Consent to Sale of Mortgaged Property — Waiver of Lien.</p> <p>Where the mortgagee authorized the mortgagor to sell the property described in the mortgage at private sale, and, with the proceeds, pay the debt secured by the mortgage, and the sale was accordingly made by the mortgagor, but he failed to pay the debt, held that, by authorizing such sale, the mortgagee waived the lien of the mortgage, and could not thereafter recover the property, nor its value, from the purchaser.</p> <p>Directed Verdict — Error.</p> <p>Upon the facts stated, the trial court directed a verdict in favor of the mortgagee against such purchaser, at private sale. Held, that such ruling was error.</p>

<p>Sufficiency of the Evidence — How Challenged.</p> <p>, A party who desires to challenge the sufficiency of evidence to support a verdict must either request that a verdict be directed in his favor, or except to the charge of the court submitting questions of fact to the jury. In either of which cases he may review the rulings of the court as errors in law. Or he may move for a new trial on the ground of the insufficiency of the evidence. No other mode of raising the question of sufficiency of evidence is provided by law.</p> <p>Motion on Court’s Minutes — What Notice of Intention .Must Specify.</p> <p>Where a motion for a new trial on the ground of insufficiency of the evidence is made upon the minutes of the court, the notice of intention must specify the particulars wherein the evidence is alleged to be insufficient, or the motion must be denied.</p> <p>Specification in Statement of Case.</p> <p>If such motion is made on a statement of the case, the specification must be embodied in the statement, or the motion must be denied. In either case this court on appeal is not permitted to look into the evidence unless the statute in this respect is obeyed.</p> <p>Errors Not Specified, Not Considered.</p> <p>No errors in law will be considered by this court unless they are specified in the statement of the case.</p> <p>Waiver of Objection to Entry in Justice’s Docket.</p> <p>This action was commenced before a justice of the peace. On application of the defendant, it was transferred to the next nearest justice in the same county. The defendant appeared before such justice without objection, and the case was tried before him upon the merits. Held, that such justice had jurisdiction of both the subject-matter and the person of the defendant, and that defendant could not for the first time raise in the District Court the point that the record did not affirmatively show that the parties had not agreed upon a justice to whom the case should be transferred.</p>

<p>Action on Note — Bona Fide Purchaser — Burden of Proof.</p> <p>When fraud in the inception of a negotiable instrument is proved, the burden is shifted to the indorsee to prove that he is a purchaser for value, before maturity, without notice, and in good faith. Held, under the facts of this case, that such indorsee had not sustained such burden, but that the trial court was justified in finding that he was not a purchaser in good faith.</p>

<p>Waiver of Appeal.</p> <p>By appealing from a judgment of a county court to the District Court, the appellant waives his right to appeal from such judgment to the Supreme .Court, and such waiver is irrevocable.</p>

<p>Specifications of Error — Review on Appeal.</p> <p>Where a motion for a new trial is based upon a statement, errors, (whether in the verdict, decision, or in the rulings of the court below) will de disregarded in this court unless the same are specified in the statement.</p>

<p>Appeal from District Court, Cass County; McConnell, J.</p> <p>Action by J. J. Howe and A. B. Barton, copartners as J. J. Howe & Co., against W. G. Smith and N. M. Stimmel. Judgment for defendants, and plaintiffs appeal.</p>

Action by William McArthur against W. S. Dryden and the Monarch Elevator Company. Dismissed as to the elevator company. On appeal to the District Court, judgment rendered for plaintiff, and defendant appeals.

<p>Conversion — Sufficiency of Demand.</p> <p>Where plaintiffs, claiming certain grain under a chattel mortgage, demanded the delivery to them of the grain before suit was brought for converting the grain, such demand being made of defendant’s agent in charge of one of its elevators located within this state in which the grain was stored at the time of such demand, held, that such demand was sufficient, as against the elevator company.</p>

Action by Bjorn S. Brynjolfson against the Northwestern Elevator Company. Judgment for plaintiff. Defendant appeals. The complaint neither alleged that the mortgage had been properly filed or that defendant had actual notice of its existence. The attachment of the copy of the mortgage to the complaint did not constitute it a part of the pleading.

<p>Agency — Evidence—Ratification.</p> <p>Under the evidence in this case the court erred in submitting the case to the jury. Agency cannot be established by the statement or act of the pretended agent, nor will the ratification of an act that the principal was bound to perform or of an act that could only inure to its benefit, have any tendency whatever to establish an agency to act generally concerning the matter for such principal.</p>

Action by Jacob Kolka against Andy Jones. Judgment for plaintiff, and defendant appeals. No action will lie for the prosecution of a civil action with malice and without probable cause when there has been no arrest or seizure of the property of the defendant, and no special injury sustained. Potts v. Imlay, 4 N. J. L. 377, 7 Am. Dec. 603; Meyers v. Waller, 64 Pa. St. 289; Kramer v. Stack, 10 Watts, 115; Eberly v. Rupp, 90 Pa.

<p>Appeal from District Court, Grand Forks County; Templeton, J.</p> <p>Action by Kate McCanna against Charles Anderson and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Special School Districts — Equalization of Interests.</p> <p>Where a school district is divided, by the organization of a city or incorporated town or village situated within said district, into a special school district, under the provisions of Chapter 62 of the Laws of 1890, the board of arbitration provided for by said chapter to equalize the interest of said districts must take into consideration the school building owned by the original district, and adjust the rights of the respective districts concerning the same.</p>

<p>Appeal — -Waiver of Objections.</p> <p>Where defendant, after his motion to direct a verdict is overruled, introduces evidence in the case, and then fails to renew his motion at the close of the case, he is not in a position to claim that the court erred in denying his motion.</p> <p>Error Cannot be Predicated on Charge to Which no Exception Was Taken.</p> <p>No portion of the charge having been excepted to, the defendant cannot predicate error upon instructions to the jury.</p> <p>Specification of Particulars Wherein Evidence Fails to Sustain Verdict.</p> <p>The question of the insufficiency of the evidence not having been raised in this court by a proper assignment of error, such question will not be considered.</p>

<p>Objections to Depositions — When Taken.</p> <p>All objections to depositions, except for incompetency or irrelevancy, must be taken before the trial is commenced or they are forever waived.</p> <p>Construction of Written Contract is for the Court.</p> <p>The construction of a written agreement is a question of law for the court, and therefore ordinarily it is incompetent to prove what either party to a written contract considered its meaning or its legal effect.</p> <p>Former Opinions Adhered to.</p> <p>Questions decided on the former appeals in this case re-affirmed.</p> <p>Proof of Value of Promissory Note — How Made.</p> <p>The promissory notes of individuals have no market value, and evidence of their market value is therefore incompetent. Witnesses are not permitted to testify generally as to the value of such paper, but must confine their evidence to facts which bear upon the question of value. The insolvency of the maker, the fact that the paper is not secured or that the security is inadequate, the existence of a defense to the paper, and other facts of a like nature affecting the value of such paper, may be proved. But mere opinions as to value are not competent. This is the rule not only in actions for conversion of ' such paper but also in actions in which the party injured waives the tort and sues in assumpsit for the value of such paper on the theory of a sale.</p> <p>Presumptive Value of Chose in Action.</p> <p>Prima facie a chose in action is worth what appears to be due upon it, and unless the presumption is rebutted by legal evidence it is conclusive.</p>

<p>Constitutional Debt Limit.</p> <p>Under § 183 of the Constitution the indebtedness of a city cannot be increased beyond the limit therein specified, even though such debt is incurred by the issue of bonds, for the purpose of refunding the indebtedness of such city. In such a case the debt is temporarily increased beyond the constitutional limit, and such increase may be permanent, owing to the loss or diversion of the fund created by the sale of such refunding bonds.</p>

<p>.Mortgage — Consideration—Compromise.</p> <p>Evidence in this case examined, and held sufficient to support the defense of total want of consideration for the notes and mortgage sued upon. While the settlement of a good-faith difference between parties, when voluntarily made, and without any material mistake of fact, will furnish a sufficient consideration for any promise based upon such settlement, yet, where one of the parties knew or had good reason to believe that his claim had no just foundation in fact, the compromise of such claim will furnish no consideration for the promise of the other party based thereon.</p>

<p>Attachment — Grounds—Affidavit.</p> <p>In this action an attachment issued, based upon an affidavit which stated as the sole ground of the attachment “that the defendant, Richard E. Giese, has left the State of North Dakota, with intent to cheat and defraud his creditors.” Held, construing § 5352, Rev. Codes, that said affidavit is insufficient in substance to authorize an attachment under said section.</p>

Action by John P. Bray against L. E. Booker and others. From an order denying him leave to intervene, E. C. Tourtelot, receiver of the Grand Forks National Bank, appeals. Where the debt is assigned as collateral security or while the vendor continues to have an interest in the payment, the lien continues and can be enforced by the assignee.

<p>Directing Verdict. Amendment to Conform to Proof.</p> <p>When a conclusive defense is proved without objection on the ground that it is not set up in the answer, and the court, on motion, amends the answer to conform to the proof, it is the duty of the court to direct a verdict for the defendant.</p> <p>Specifications of Error.</p> <p>Specifications of error held sufficient. .</p>

<p>Appeal from District Court, Cass County; McConnell, J.</p> <p>Action by Lyman C. Stanford against Samuel G. McGill and others. Judgment for plaintiff. Defendants appeal.</p>

<p>Malicious Prosecution — Probable Cause.</p> <p>In an action for malicious prosecution, probable cause is, as a general rule, conclusively established by the fact that in the proceeding charged to have been instituted and carried on without probable cause the decision was adverse to the defendant therein, despite the fact that such decision has been reversed, and such defendant has finally succeeded in the case.</p> <p>Conviction Procured by Fraud Not Conclusive.</p> <p>If, however, the prosecutor of such proceeding (the defendant in the action for malicious prosecution) procured the decision therein through fraud, such decision is not conclusive on the question of probable cause.</p> <p>Conclusiveness of Court’s Finding After Reversal.</p> <p>Where, upon uncontroverted facts, a prosecution to punish a person for contempt, and to disbar him, was set on foot, held that the decision of the District Court that such facts warranted a conviction for contempt and the disbarment of the defendant is conclusive on the question of probable cause, although such decision was subsequently reversed by the Supreme Court.</p> <p>Judge Not Liable to Civil Action for Judicial Act.</p> <p>The judge of a superior court is not liable in a civil action for damages on account of any judicial action taken by him in a proceeding before him as such judge, in which he had jurisdiction; and the fact that it is charged that he acted corruptly does not affect this principle.</p> <p>Judge Acting Without Jurisdiction Not Liable.</p> <p>It would seem (but the point is not decided) that, even in a case where the court of which he is judge had no jurisdiction of the subject-matter, he is not liable unless the want of jurisdiction is so palpable that it is obvious that he could not honestly assume to act as judge in such matter.</p> <p>Effect of Allegation of Official Misconduct.</p> <p>The fact that it is alleged that the judge who rendered the decision which was afterwards reversed not only acted carruptly in deciding the case, but also was himself one of the instigators of the prosecution, does not establish any cause of action against him. Probable cause being shown by the decision against the plaintiff in the suit for malicious prosecution, it is not competent to prove the misconduct of the judge as a ground for overthrowing the conclusive force of such decision on the question of probable cause.</p>

Application by the State of North Dakota, on the relation of Arthur Tompton and others, for a writ of mandamus to David Denoyer and others, county commissioners of Benson county. Judgment for plaintiff awarding peremptory writ of mandamus and defendants appeal. The people of the state have disclaimed all right and title to all lands owned or held by any Indian or Indian tribes within the state. Subdivision 2, § 4, Enab. Act. Subdivision 2, § 203 Const.

<p>Tax Sale — Mistake of Officer — Recovery of Bid.</p> <p>In 1888 the county treasurer of Barnes County sold the lands described in the complaint at a tax sale, for an -alleged tax levied on the lands in 1887. The lands so sold were described upon the assessment roll, and also upon the tax duplicate delivered to the treasurer by the county clerk, by a system of arbitrary signs or symbols, which descriptions were, at a date long subsequent to said sale, held to be insufficient in law, and void, under a decision of this court. Held, that inasmuch as the defective descriptions of the land were placed upon the assessment roll and tax list of the county by other officials of the county, who were responsible for the descriptions, and by them delivered to the treasurer, it became the duty of the treasurer, as a ministerial officer, to sell the lands so described, upon which the tax was not paid, and that such sale, under the facts stated, was not a mistake or wrongful act of the treasurer, within the meaning of § 1629 of the Comp. Laws. No action will lie, upon such a state of facts, under said section, to recover the amount bid with interest, either against the county, or the county treasurer who made the sale.</p>

<p>Appeal from District Court, Traill County; McConnell, J.</p> <p>Action by Daniel Patterson against G. A'. Ward and others. From an order settling the account of H. D. Hurley, receiver, plaintiff appeals.</p>