Volume 67 — Minnesota Reports

Appeal by plaintiff from an order of the district court for Jackson county, P. E. Brown, J., sustaining a demurrer to tbe complaint.

Appeal by defendant from an order of the district court for Ramsey county, Egan, J., denying a motion for a new trial, after a verdict in favor of plaintiff for $3,000.

Appeal by defendant from an order of the district court for Ramsey county, Egan, J., denying a motion for judgment notwithstanding the verdict or for a new trial.

Case certified from the district court for Polk county. Defendants were indicted as stated in the opinion.

Appeals by defendants from so much of a judgment of the district court for Kanisey county as adjudged due to plaintiff and provided for payment of an attorney’s fee of $75, and also from an order, Otis, Jr, denying a motion to modify the judgment.

Appeal by defendant from a judgment of the district court for Eice county, entered in pursuance of the findings and order of Buckham, J.

Appeal by defendants Great Northern Railway Company and Thomas F. Oakes and others, as receivers of the Northern Pacific Railroad Company, from a judgment of the district court for Ramsey county, in favor of plaintiff, after a trial before Charles D. Kerr, J., and a jury. The case against the Great Northern Company was dismissed.

Appeal by defendants from an order of the district court for Norman county, Ives, J., overruling demurrers to the complaint.

Appeal by plaintiff from a judgment of tbe district court for Dakota county, in favor of defendant, entered in pursuance of the order of Crosby, J.

Appeal by defendant from an order of tbe district court for Hennepin county, Elliott, J., denying a motion for a new trial.

Appeal by plaintiff and by defendant William P. Lardner, assignee, from an order of the district court for St. Louis county, Morris, J., made February 21, and filed February 26, 1896, ordering plaintiff to pay to defendants Joseph Wolf and others, copartners as Wolf Brothers’ Bank, the sum of $3,516.61.

<p>Appeal — Review—Temporary Injunction.</p> <p>The granting, refusing, or dissolving of a temporary injunction pendentelite rests necessarily in judicial discretion; and, unless there has been an abuse of such discretion, appellate courts will not interfere, especially where-the prosecution of an enterprise of a public nature is involved.</p>

Appeal by plaintiff from an order of tbe district court for Stearns county, Searle, J., denying a motion for a new trial, after verdict in favor of defendants.

<p>Appeal by plaintiff from an order of the district court for Lac Qui Parle county, Powers, J., denying a motion for a new trial, after an order granting defendant’s motion at the close of plaintiff’s testimony to dismiss the action.</p> <p>An assignment of wages to be earned under an existing contract of employment is valid. Likewise where there is no contract of employment for a fixed time. But an assignment of wages expected to be earned in the future, not based^ on an existing contract, is void. Mulhall v. Quinn, 1 Gray, 105; Lehigh V. R. R. Co. v. Woodring, 116 Pa. St. 513, 9 Atl. 58. But the foregoing applies to earnings of an individual by his manual labor. In this case the question involves the earnings of machinery furnished by the plaintiff, but operated by the buyers. By the contract there was a reservation of all earnings in favor of plaintiff, who was to collect them.</p> <p>Tins arrangement was devised to secure the purchase price of the machine. In most cases such security is given in the shape of an “earnings mortgage,” so called. Such instruments are valid. Sandwich Mnfg. Co. v. Robinson, 83 Iowa, 567, 49 N. W. 1031; Sykes v. Hannawalt, 5 No. Dak. 335, 65 N. W. 682. This court having adopted the doctrine of potential existence to give effect to a mortgage on a crop not yet sown and to a mortgage on after-acquired merchandise, where such intent is manifest, should apply the doctrine to the future earnings of threshing machinery.</p>

Appeal by defendant Burdic from an order of the district court for Ramsey county, Charles D. Kerr, J., denying his application to discharge the receiver and to compel him to account, and directing appellant to deliver possession of the premises to the receiver.

<p>Malpractice — Question for Jury.</p> <p>This action was brought to recover damages wbicb the plaintiff claims she sustained by the defendant’s .malpractice, while attending her as a physician during her illness due to a miscarriage, in not seasonably discovering and removing a remnant of the placenta. Evidence considered, and held, that the question of the defendant’s negligence in the premises was one for the jury, and that the trial court erred in dismissing the action.</p>

Appeal by defendants Michael Norris and Mary Norris from an order of the district court for,St. Louis county, Moer, J., denying a motion for a new trial and from a judgment in favor of plaintiffs for $11,084.06.

<p>Decedent’s Estate — Presentation of Claims.</p> <p>Held, that the probate court erred in refusing to allow the relator to present its claim against the estate of the deceased after the expiration of the time limited for the presentation of claims.</p> <p>January 19, 1897.</p> <p>Certiorari to Probate Court — Right to Costs.</p> <p>Pursuant to the order directing the issuing of a writ of certiorari to the probate court, a citation was served upon the opposite party in interest to show cause why the action of that court should not be reversed. The relator prevailed. Held, that he was entitled to costs and disbursements against the opposite party in interest, although the writ was directed only to the probate court.</p>

Appeal by defendant from a judgment of the district court for Hennepin county in favor of plaintiff for $960.36, and adjudging that if defendant should return certain shares of stock the judgment should be satisfied in the sum of $905.88, entered in pursuance of the findings and order of Elliott, J.

Appeals by Norman Kittson and others from an order of the district court for Ramsey county, Kelly, J., denying their motion for a new trial and for modification of the findings and conclusions, and by St. Paul Trust Company, executor, irom an order denying its motion for a new trial.

Appeal by defendant from a judgment of the district court for Big Stone county, in favor of plaintiff, entered in pursuance of the findings and order of C. L. Brown, J. The receipt of a note in payment of a debt is upon the implied understanding that the note will be paid.

<p>Exception to Instructions.</p> <p>Seven separate requests for instructions to the jury were made by the defendant in this-case, several of which were erroneous, and all were refused, except as given in the general charge. The only exception taken to the action of the court was to the effect that the defendant excepts to the refusal to give those portions of the requests which the court refused, and which are not covered by the general charge. Held, that the exception was insufficient as a basis for any assignment of error.</p> <p>negligence — Race Horse — Track Bolter — Evidence.</p> <p>The basis of the plaintiff’s cause of action was the negligence of the defendant in knowingly permitting a dangerous horse, a track bolter, to run in a race controlled by it, and in which the plaintiff rode and was injured, without informing her of the vicious character of the horse, of which she was ignorant. On the trial there was evidence tending to show that the horse, to the knowledge of one of the officers of the defendant, would bolt in practice; also that the horse came upon the race track wearing blinkers. Held, that it was not error for the trial court to receive evidence to show that a race horse which bolts in practice will usually do so in an actual race; and, further, for what purpose blinkers are put on race horses.</p> <p> JUvideaoe. </p> <p>Held, further, that the trial court did not err in sustaining an objection to a question intended to show the position of the horses at the time plaintiff was injured, for the reason the witness had previously fully and clearly testified upon and covered the point.</p>

Appeal by plaintiff from a judgment of the district court for Big Stone county in favor of defendant, entered in pursuance of the findings and order of C. L. Brown, J.

Appeal by defendant from an order of the district court for Ramsey county, Brill, J., denying a motion for a new trial, after a verdict in favor of plaintiff for $900.

Appeal by defendant from an order of the district court for Carlton county, Morris, J., denying a motion for a new trial, after a verdict in favor of plaintiff for $4,000, which was reduced with his consent to $3,000.

Appeal by plaintiff from an order of tbe district court for Hennepin county, Pond, J., denying a motion for a new trial. Tbe contract of guaranty is assignable witb the note. Everson v. Gere, 40 Hun, 248. When the maker of a note which is guarantied removes from the state before it falls due, the holder may resort to his action on the warranty without pursuing the maker. White v. Case, 13 Wend. 542; Edwards, Bills, etc. (3rd Ed.) § 335; Daniel, Neg. Inst.

Appeal by plaintiff from an order of the district court for Hennepin county, Elliott, J., denying a motion for a new trial. The letters constituting the actual contract upon which the wheat was delivered impliedly assent to plaintiff’s assertion that he would not pay storage, and avoid any mention of storage charge on the part of defendant.

<p>Appeal by defendants from an order of the district court for Stearns county, Searle, J., granting a motion for a new trial.</p> <p>If W. H. Hayward had an interest in the money, and without making the interest known, and without objection, knowingly allowed his mother to use it in making a gift to his brother, he could not recover. If he had an interest in the money, it was his gift to that extent, and after it was executed it could not be recalled. Stewart v. Hidden, 13 Minn. 29 (43); Lamprey v. Lamprey, 29 Minn. 151, 12 N. W. 514; Furman v. Tenny, 28 Minn. 77, 9 N. W. 172.</p> <p>Was there evidence to sustain the defense of want of consideration or that of free gift? (1) Upon the undisputed evidence the money was the money of the firm, in which W. H. Hayward had an equal interest with his father. Had the note run to the firm there could have been no question of a want of consideration. The transaction amounted to an agreement by S. L. Hayward on a consideration moving from the firm to pay W. H. Hayward the amount of the money consideration. Such a transaction is enforceable, even if it had not been in writing. Goetz v. Foos, 14 Minn. 196 (265); Sullivan v. Murphy, 23 Minn. 6. Should it be treated as a loan of the firm’s money to S. L. Hayward, the same result would be reached. (2) An absolute gift which will devest the donor’s title requires a donation on the part of the donor of all his title and interest in the subject of the gift. Irish v. Nutting, 47 Barb. 370; Smith v. Ferguson, 90 Ind. 222. It is as essential an element of a gift as of a contract that the minds of the parties meet. There is not a word in the testimony to indicate W. H. Hayward intended to give the money; and there is nothing to show that either W. H. Hayward or S. L. Hayward intended it as a gift.</p>

Appeal by defendant from an order of the district court for Jackson county, P. E. Brown, J., denying a motion for a new trial, after a verdict in favor of plaintiff for $1,995.

Appeal by plaintiff from an order of the district court for Hennepin county, Smith, J., sustaining a demurrer to the complaint.

Defendant executed to Minor Ball and the Mississippi Land, Loan & Investment Company, a Minnesota corporation, the bond of guaranty mentioned in the opinion. The company named employed one H. Vandervoort to work for it. For his services he recovered judgment for $292.91 against the company on December 26,1893, in the district court for Hennepin county, on which judgment execution was returned unsatisfied. Plaintiff is the owner of this judgment.

Appeal -by defendants Herman C. Strelow and another from an order of the district court for Hennepin county, Smith, J., denying a motion for a new trial. If the creditor conceals from the surety the fact that the principal has been-a defaulter, the surety will be discharged. 24 Am. &. Eng. Enc. Law, 798; Franklin Bank v. Cooper, 36 Me. 179; Dinsmore v. Tidball, 34 Ohio St. 411; Graves v. Lebanon N. Bank, 10 Bush, 23; Wayne v. Commercial N. Bank, 52 Pa.

Appeal by plaintiff from a judgment of the district court for Ramsey county, in favor of defendant, entered in pursuance of the findings and order of Egan, J.

Appeals by defendants Bradley and others from an order of the district court for St. Louis county, Moer, J., overruling separate demurrers to the complaint.

Appeal by defendant from an order of the district court for Hennepin county, Belden, J., denying defendant’s motion for a new trial, after a verdict in favor of plaintiff for $40.

Appeal by W. W. Galkins from a judgment of the district court for Norman county declaring M. A. Brattland to be duly elected judge of probate of that county, entered in pursuance of the findings and order of Ives, J. The precinct having been established by the proper authority, the claimant having allowed the election to be held without protest, and having awaited the result of the election, and endeavored to secure its benefits to himself, he ought not to be allowed to…

Appeal by defendant from an order of the district court for Ramsey county, Brill, J., overruling a demurrer to the complaint. The complaint alleged the issue to plaintiffs of defendant’s insurance policy to indemnify them as mortgagees of a certain tract of land in block 15 of Robert & Randall’s addition to St. Paul by reason of defects in the title of the mortgagors to said tract.

Actions in tbe district court for Hennepin county. In tbe first case defendant cemetery association appealed from an order, Russell, J., denying a motion for a new trial. In tbe second case defendant cemetery association appealed from an order, Jamison, J., denying a motion to set aside tbe judgment and for leave to answer.

Appeal by plaintiff from a judgment of the district court for Wabasha county in favor of defendants, entered in pursuance of the order of Gould, J. The facts upon which the first action were based are stated in Watkins v. Landon, 52 Minn. 389, 5i N. W. 193. Judgment in that case was entered as stated in the following opinion. The present action was begun in August, 1895, and at the trial was dismissed as stated in the opinion.

Appeal by defendant from an order of the district court for Hennepin county, Smith, J., granting a motion for a new trial. The testimony shows beyond dispute that the blocking of the boiler on the wagon, the removal of the skids, and the unfastening of the rope were but details of the work, and it is immaterial whether Mr. Wright or some one else directed these things to be done. It was but the direction of one fellow servant to another.

Action in the district court for Jackson county to recover for personal injuries resulting from the negligence of defendant in maintaining a defective sidewalk. From an order, Severance, J., overruling a demurrer to the fifth paragraph of the answer, which set up the statute of limitations as a defense, plaintiff appealed.

From an order of tbe probate court for St. Louis county disallowing bis claim against tbe estate of Neis J. Hoff, deceased, plaintiff appealed to tbe district court of that county. Tbe case was tried before Morris, J., who found that plaintiff was entitled to allowance of Ms claim of $435. From an order denying a motion for a new trial defendant appealed.

Action in the district court for Hennepin county to recover a surplus arising on a foreclosure sale. The case was tried before Belden, J., without a jury, who found, among other things, that defendant bid in the property for $13,307.90, which was $2,687.97 in excess of the amount due, and that the property was worth at the time of sale $9,880. From a judgment in favor of plaintiff defendant appealed.

Appeal by defendant Brooks from an order of the district court for Hennepin county, Smith, J., overruling a demurrer to the complaint.

Appeal by plaintiff from an order of tbe district court for Ramsey county, Brill, J., granting a motion for a new trial. If there was error on the part of plaintiffs counsel on the McCord incident, defendant’s counsel are in pari delicto. See Hayne, New Trial, § 108; Turner v. McIlhaney, 8 Cal. 575; People v. Montgomery, 53 Cal. 577. If the verdict is undeniably correct a new trial will not be granted, notwithstanding the admission of improper testimony.

Appeal by plaintiff from an order of the district court for Hennepin county, Jamison, J., denying a motion for a new trial.

Appeal by plaintiff and intervenor, Fire Association of Philadelphia, from an order of the district court for Winona county, Gould, J., denying a motion for a new trial, after a verdict in favor of defendant.

Appeal by defendant from a judgment of the district court for Stearns county, in favor of plaintiff, entered in pursuance of the findings and order of Searle, J.

Appeal by plaintiff from a judgment of the district court for Ramsey county, in favor of defendant, entered in pursuance of the findings and order of Kelly, J.

Indictments in the district court for Washington county against Charles T. Goodrich and James Matthews and against Charles T. Goodrich and Joseph Crick. In each case orders were made, Williston, J., denying a motion to dismiss and set aside the indictment and overruling a demurrer to the indictment, and the case was certified to the supreme court for its decision upon the questions arising on the motion and demurrer.

Appeal by defendants from an order of the district court for Hennepin county, Elliott, J., denying a motion for a new trial.

<p>Appeal by defendant from an order of tbe municipal court of Duluth, Boyle, J., denying a motion for a new trial.</p>

Appeal by plaintiff from an order of the district court for St. Louis county, Moer, J., denying a motion for a new trial.

Appeal by defendant from a judgment of the district court for Ramsey county in favor of plaintiff, entered in pursuance of the findings and order of Kelly, J.

Appeal by plaintiff from an order of tbe district court for Morrison county, Searle, J., denying a motion for a new trial.

<p>Building Association — Insolvency—Rights of Members-</p> <p>When, by reason of losses, there was such a deficiency in the assets of a building and loan association that it could not mature its stock, the purposes for which it was organized could not be carried out, and the court proceeded to wind it up, held, this put an end to the contract between it and its members, at least so far as future performance was concerned.</p> <p>Same — Rescission.</p> <p>Held, further, in adjusting matters between it and its members, the court should proceed on the principle of rescission, as far as the same can be equitably and justly applied, and each member should, to that extent, receive back what he paid, and pay back what he received.</p> <p>Same — Losses and Expenses — Set-Off.</p> <p>But held, it is the duty of each member to bear his share of the losses and expenses of the association, and the expenses of the receiver appointed by the court. Therefore the borrowing member is not entitled to-set off all that he has paid against the loan or advancement which he has received; but a sufficient portion of what he has so paid Should be held until final distribution, to cover such losses and expenses, and only the rest of what he has so paid should be set off against such loan or advancement, and the remainder of such loan or advancement should be collected from him.</p> <p>Same.</p> <p>Held, it does not appear that the court below ordered an unreasonable-amount of what each borrowing member so paid in to be so held to cover such losses and expenses.</p>

Appeals by plaintiff in each case from an order of the district court for Ramsey county, Charles D. Kerr, J., denying a motion for a new trial.

Appeal by defendant from an order of the district court for Good-hue county, Williston, J., denying a motion for a new trial, after a verdict in favor of plaintiff for $442. A bridge over a highway built by an individual but used by the public must be kept in repair by the public.

Appeal by defendants from an order of tbe district court for Hennepin county, Smith, J., denying a motion for a new trial, after a verdict in favor of plaintiff for $499.68. The fifth request of defendant to charge was as follows: Fifth.

Appeal by defendants Lauer Bros, from an order of the district court for Bamsey county, Otis, J., denying a motion for judgment notwithstanding the verdict.

Appeal by defendant Gross from an order of tbe district court for Morrison county, Searle, J., denying a motion for a new trial. This is an action to enforce tbe so-called double liability of stockholders. Tbe provision of tbe constitution creates an individual liábility of tbe stockholder. McKusick v. Seymour, 48 Minn. 158, 50 N. W. 1114.

Appeal by defendants McBain and another from an order of the district court for Brown county, Webber, J., sustaining a demurrer of plaintiff to one of the defenses set up in their answer.

Appeal by plaintiff from an order of the district court for Redwood county, Webber, J., denying a motion for a new trial. The general rule as to the appropriation of payments upon a running account applies. Clayton’s Case, 1 Mer. 584; Munger, Applic.

Appeal by plaintiff from an order of the district court for Faribault county, Severance, J., vacating- a judgment in favor of plaintiff.

Separate appeals by plaintiff from an order of the district court for Hennepin county, Russell, J., sustaining the demurrer of defendant Dunn to the complaint, and by defendant Metropolitan Trust Company from an order overruling its demurrer to the complaint.

Appeal in each case by defendant from an order of the district court for Fillmore county, Whytock, J., denying a motion for a new trial.

•Appeal by plaintiff from an order of the district court for Watonwan county, Cadwell, J., denying a motion for a new trial.

Appeal by defendant from an order of the district court for Ramsey county, Otis, J., denying a motion for judgment notwithstanding the verdict or for a new trial.

Appeal by defendants Manley and others from an order of the district court for Hennepin county, Belden, J., denying a motion for a new trial. None of the appellants were in fact or law holders of stock in the bank, because the proposed increase of stock was never legally made. The statute provides that no increase of capital shall be valid until the whole amount of the increase is paid in cash. Such payment must be certified by the proper officer. G. S. 1894, § 2498.

Appeal by defendant from an order of the district court for Ramsey county, Kelly, J., overruling a demurrer to the complaint.

Action in the district court for St. Louis county by A. W. Bradley and another against M. C. Burke and another, as defendants, and Eastern Bailway Company of Minnesota, as garnishee.

Appeal by tbe City of Dulutb, Henry Truelsen, Mayor, Cyrus T. Crandall, a member of tbe Common Council, and tbe Common Council, from a judgment of tbe district court for St. Louis county, entered in pursuance of tbe findings and order of Moer, J.

Appeal by plaintiff from a judgment of the district court for St. Louis county, in favor of defendant, entered in pursuance of the findings and order of Moer, J.

Appeal by defendant from an order of tbe district court for Hennepin county, Belden, J., denying a motion for a new trial, after trial by the court and order for judgment in favor of plaintiff for $6,130.14. As respects third persons an agency may be created or its character determined in three ways: (1) By express authority; (2), by authority implied from the relations of the parties; and (3) by the apparent authority which one person permits another to possess.

Appeal by defendant from two orders of the district court for Hennepin county, Pond, J., the one granting plaintiffs a rehearing and setting aside a previous order which granted defendant a new trial, and the other denying defendant’s motion for a new trial, after a verdict in favor of plaintiffs for $1,033.65. The appeal from the trial court’s order granting a rehearing of the motion for a new trial should be dismissed.

Appeal by defendant Weeks from an order of the district court for Hennepin county, Belden, J., denying a motion to dissolve a temporary injunction. Weeks was simply a creditor having a lien, hence he could lawfully acquire an adverse tax title. Wilson v. Jamison, 36 Minn. 59, 29 N. W. 887; Allison v. Armstrong, 28 Minn. 278, 9 N. W. 806; Blackwood v. Van Vleit, 30 Mich. 118; Reimer v. Newel, 47 Minn. 237, 49 N. W. 865. Weeks was not an assign of the mortgagor.

Appeal by defendant from an order of the district court for Hennepin county, Elliott, J., denying a motion for a new trial.

Appeal by defendants Walter A. Wood Mowing & Reaping Machine Company and Van Santvoord and another, its receivers, and Cheney and another, trustees, from an order of the district court for Ramsey county, Brill, J., denying a motion for a new trial.

Appeal by plaintiff from that part of an order of the district court for Stearns county, Baxter, J., which denied its motion for judgment notwithstanding the verdict.

Appeal by plaintiff from an order of the district court for St. Louis county, Morris, J., denying a motion for a new trial. In ■ condemnation proceedings a judgment can bind a person only when he is a party to the proceedings. When an interested party is omitted the proceeding is nugatory as to him. State v. Easton & A. Ry. Co. 86 N. J. Law, 181; Columbus & W. Ry.

Appeal by plaintiff from an order of the district court for Hennepin county, Smith, J., sustaining a demurrer to the complaint.

Action in the district court for St. Louis county against David Hood, Hurd Refrigerator Company and New Duluth Land Company. From a judgment in favor of plaintiff and from an order, Ensign, J., denying a motion to set aside the judgment, defendant Refrigerator Company appealed.

Appeal by Frederick J. Will from an order of the district court for Stearns county, Searle, J., denying a motion for a new trial. The recital at the beginning of tbe will proves tbe incompetency of testatrix. Sbe makes ber will because a law of tbe order commands it. To this order sbe is bound by a solemn vow. Sbe does not state that sbe is of sound and disposing mind and memory, etc. No individual can be a member of this order and at tbe same time be a free moral agent.

Appeals by Lafayette G-. M. Fletcher from orders of the district court for Blue Earth county, Severance, J., the one appointing commissioners in condemnation proceedings, and the other denying a motion to set aside the report of the commissioners. Order appointing commissioners confirmed. The city ordinance was an attempt on the part of the council to delegate to the company a legislative function, and hence is void.

Appeal by plaintiff from an order of tbe district court for Hennepin county, Pond, J., denying a motion for a new trial. Appellant contends that the conversation by telephone should not have been admitted in evidence: (1) Because there was no identification of the party sufficient to justify the contention that it was Mr. McKee who telephoned, the latter having testified that he never had any conversation with defendant over the telephone. Oberman B. Co. v. Adams, 35 Ill.

Information in the nature of quo warranto. Laws 1893, c. 143, is unconstitutional, because the subject is not sufficiently expressed in its title. The title is “An act to provide for the creation and organization of new counties,” etc. The act not only provides for the creation and organization of new counties, but for changing the lines of counties already organized.

Appeal by defendants from an order of the district court for Sibley county, Cadwell, J., denying a motion to dissolve an injunction.

<p>Appeal by plaintiff from an order of the district court for Swift county, Powers, J., denying a motion for a new trial.</p>

Appeal by defendants from an order of the district court for Hennepin county, Russell, J., denying a motion for a new trial. Exhibit B, referred to in the opinion, was a contract between the Columbian Fire Insurance Company and defendants, by which the company appointed them its general agents for three years for Minnesota, North Dakota and South Dakota.

Appeal by plaintiff from an order of the district court for Ramsey county, Willis, J., vacating a judgment in favor of plaintiff for |765.87, and allowing defendant to answer.

Appeal by plaintiff from an order of the district court for Good-hue county, Williston, J., denying a motion for a new trial, after a verdict in favor of defendant directed by the court. The certificate in issue, omitting that part of the certificate beginning with the words “To be left,” is substantially the same as that in the case of Mitchell v. Easton, 37 Minn. 335, 33 N. W. 910. In construing the words “To be left six months. No interest after maturity.

Action in the district court for Hennepin county against the receiver of an insolvent corporation to recover $1,486.81 with interest. From an order, Russell, J., denying a motion for a new trial, after findings and order for judgment in favor of plaintiff for $625.72, with interest, defendant appealed. Any equities that existed against the insolvent at the time of Ms appointment can be enforced against the receiver. Haggerty v. Palmer, 6 Johns.

Application by tbe state of Minnesota, on tbe relation of H. N. Hagestad, for a writ of prohibition against F. A. Sullivan and others. A law cannot be uniform in its operation when by its terms it is limited to such portions of the state as may adopt it. Nichols v. Walter, 37 Minn. 264, 269, 33 N. W. 800; State v. Cooley, 56 Minn. 540, 552, 58 N. W. 150; Johnson v. St. Paul & D. R. Co., 43 Minn. 222, 45 N. W. 156.

Appeal by plaintiff from an order of the district court for Hennepin county, Elliott, J., denying a motion for a new trial. The decision in the former action was based on the fact that it was necessary to make connection with lake traffic at that point on Lake street, and that the defendant then maintained and used these facilities for connection with such traffic.

Action in the district court for Hennepin county. The case was tried before Pond, J., and a jury, which rendered a verdict in favor of plaintiff for $4,160.67. A motion on the part of defendant for judgment notwithstanding the verdict was denied, and from a judgment entered pursuant to the verdict defendant appealed.

Action in the district court for Mower county by O. -L. Gregg and others, as trustees of School District Number 123 in the county of Mower, against John H. French and! others, as trustees of School District Number 23 of said county.

Action in the district court for Ramsey county for recovery of possession of three bales of tobacco. The case was tried before Willis, J., who directed a verdict in favor of defendant. From an order denying a motion for a new trial, plaintiff appealed.

Action in the district court for Redwood county for the recovery of $6,000. At the trial the court, Webber, J., granted defendant’s-motion to dismiss on the ground that plaintiff had failed to establish a cause of action. From an order denying a motion for a new trial plaintiff appealed.

Appeal by defendant from a judgment of the district court for Hennepin county, in favor of plaintiff, entered in pursuance of tin-findings and order of Elliott, J. Lake Minnetonka is a navigable body of water. Minnehaha creek is its outlet. It rises and falls with the waters of the lake and is virtually a part of the lake. The world is charged with notice that the lake is navigable, and that the waters of the creek are waters of that lake.

Appeal by plaintiff from an order of the district court for Otter Tail county, Baxter, J., denying a motion for a temporary injunction.

<p>Verdict for Tort — Assignment.</p> <p>G. S. 1894, § 5171, provides that, after a verdict of a jury or report of a referee in any action for a wrong, such action shall not abate by the death of any party. Held that, under this statute, a verdict in an action for a wrongful personal injury is assignable. Hunt v. Conrad, 47 Minn. 557, distinguished.</p>

<p>Appeal by plaintiff from an order of the district court for Ramsey county, Egan, J., denying a motion for a new trial.</p>

Action in tlie district court for Norman county .on a promissory note alleged to have been made by defendants and by the payee before maturity indorsed to plaintiff for a valuable consideration. The answer alleged that the note was given in payment of the price of goods sold by the payee and that there was a breach of warranty and failure of consideration.

Appeal by defendant from an order of the district court for Norman county, Ives, J., denying a motion for a new trial. That part of the article preceding the libel was as follows: “More Legal Discussion.” “In the Halstad Reporter of Feb. 6 appears an article signed by N. T. Moen, which I think no more than right to answer. Moen says that after a jury of 12 men had taken their solemn oaths to do justice they talk about more cheek than a government mule.

Appeal by plaintiff from a judgment of the district court for Clay county in favor of defendant, entered in pursuance of the order of Searle, J. The court cannot say, as a matter of law, that the deceased was guilty of contributory negligence.

Appeal by plaintiff from an order of the district court for Hennepin county, Elliott, J., sustaining a demurrer to the complaint. The purchase of the mortgaged premises at the foreclosure sale by the defendant for the full amount due paid the debt and satisfied the mortgage.

<p>Appeal by plaintiff from an order of the district court for Ramsey county, Egan, J.., denying a motion for a new trial.</p>

Appeal by plaintiffs from a judgment of the district court for Nobles county in favor of defendant, entered in pursuance of the findings and order of P. E. Brown, J.

Appeal by plaintiff from an order of the municipal court of Still-water, Jack, J., denying a motion for a new trial. The provisions of G. S. 1894, c. 66, relating to counterclaims that may be interposed in a civil action, have no reference to proceedings under the forcible entry and detainer act.

Appeal by defendant from an order of tin* district Court for Hennepin county, Elliott, J., denying a motion for a new trial, after a verdict in favor of plaintiff for $525.

Appeal by Philadelphia Trust, Safe-Deposit and Insurance Company and other defendants from an. order of the district court for Hennepin county, Jamison, J., denying a motion for a new trial.

Appeal by defendant Eaton from an order of the district court for Ramsey county, Brill, J., denying a motion for a new trial.

Appeal by defendants from an order of the district court for Hennepin county, Elliott, J., denying a new trial. The question in this case is not whether in Minnesota a married woman can maintain an action in her own name for enticing away her husband. Certain facts in this case differentiate the question here from that question. (1) After plaintiff’s marriage the defendants gave her a home and asylum.

Appeal by defendant from an order of tke district court for Hennepin county, Elliott, J., refusing a new trial after a verdict for $500. A lessor who agrees to repair cannot be charged with a breach of the agreement without notice of need of repairs. Moore v. Clark, 5 Taunt. 90, 95; Holton v. Waller, 95 Iowa, 545, 64 N. W. 633; Wolcott v. Sullivan, 6 Paige, Ch. 117; Cooke v. England, 27 Md. 14; Ploen v. Staff, 9 Mo.

Action by the state against the Merchants’ Bank of Lake City to forfeit its charter. Herman B. Kennebeck intervened, and filed a cross complaint, bringing in the stockholders of the bank, for the purpose of enforcing their double liability.

<p>Appeal by defendant from an order of the district court for Morrison county, Baxter, J., denying a motion for a new trial after a verdict for plaintiff for $185.50.</p>

Appeal by plaintiff from an order of the district court for Ramsey county, Kelly, J., sustaining a demurrer to the complaint.

Appeal by defendant from an order of tlie district court for Ramsey county, Charles D. Kerr, J., granting a motion for a new trial. • The contract of insurance is entire and indivisible. If any part of it is void the whole is void. Plath v. Minnesota F. M. F. I. A., 23 Minn. 479, 10 Ins. Law Jour. 433; Thomas v. Commercial U. A. Co., 1G2 Mass. 29, 37 N. E. 072; Stevens v. Queen Ins. Co., 81 Wis. 335, 51 N. W. 555; Dolilantry v. Blue Mounds Ins.

In the probate court for St. Louis county, Lucy Gray Harrison, executrix, obtained a license to sell land belonging to her testator. Louise Henry Harrison, an infant, by Henry S. Mahon, guardian ad litem, appealed to the district court for that county. From a judgment of the district court, entered pursuant to the order of Cant, J., affirming the order of the probate court, she appealed.