Volume 7 — Minnesota Reports

This cause being at issue in tbe District Court of Ramsey County upon complaint, answer and reply, tbe Defendants Wilcox & Barber served a supplemental answer, whereof tbe following is a copy : The supplemental answer of Carlos Wilcox and Daniel R. Barber, Defendants in the above entitled action, respectfully shows to the Court, — ■ That said Defendants, upon information and belief, aver that E. A. W. Davis, the Plaintiff in the above entitled action, was, on and prior to…

This cause being at issue in the District Court of Bamsey County, the Plaintiffs Wilcox & Barber served a supplemental complaint, containing substantially the same averments as in the “supplemental answer” served in the case of Davis v. Piérse, et ais., ante p. 14.

Motion in the Supreme Court,- to substitute certain parties for the Plaintiff, the subject matter of the action having been assigned to them by the original Plaintiff, pending the action.

<p>Motion to set aside an order of the Supreme Court, reversing an order of the District Court of Ramsey County, granting a new trial.</p>

I. — The foundation for the action that Hendricks brought against Banning was the written contract set forth in the complaint. This contract is in all respects valid, and is supported by ample consideration. This contract is not one of suretyship. It is not a promise to answer for any-default of Thompson. A surety, or one who assumes the contract of suretyship, is one who obligates himself to the creditor to pay in case the principal debtor himself makes default.

— By the Plaintiff’s own showing his judgment (as alleged) being docketed before the assignment was filed for record, there would be no cloud of title and therefore no cause of action. Cox vs. Clift, 2 Comst., 118; Scott vs. Onderdonk, 4 Mem., 14; Hart vs. Marshall, 4 Minn., 294.

— The proceedings to foreclose were irregular; the notice having been changed so as to appoint another day of sale without a notice of postponement. 8ec. 7, Oomp. Stats., p. 644; Dana II. — The proceeding was irregular in inserting another notice of sale before the original notice had run out. Said original notice was a proceeding pending at the time. III. — The Plaintiffs showed prejudice by the inadequacy of price of the property and want of competition at the sale.

— The amount claimed to be due in the notice of sale was too great and an injunction was the only and proper remedy. BidweTl vs. Whitney, 4 Minn., 76. IL- — -The threatened sale 'without any right of redemption was unauthorized as against the Appellant, and would put a cloud upon his title, which an injunction was the proper remedy against. Comp. Stats., 646; Sess. Laws of 1860, 275.

— It does not appear upon tbe complaint tbat tbe alleged notes of tbe corporation upon wbicb suit is brought, were made within the legitimate scope of tbe corporate authority, or that they were valid liabilities of the corporation. McCullough vs. Moss, 5 Denio, 567. II. — It does not appear upon tbe complaint tbat tbe Defendant was a stockholder at the time suit was brought. McCullough vs. Moss, 5 Denio, 567.

I. — Corporate powers are confined to those specifically granted, and. by implication to sneb others as may be necessary for tbe exercise and enjoyment of those conferred. 2 Kent’s Gom. 1th Ed.p. 344, cited and approved ly this court in School District against Thompson, 5 Minn. 280; Tdwa/rds on Notes, p. 348; Angel c& Ames on Oor., Sec. 271, 256; Salem Mill-dam Go. vs. Mopes, 6 Miele., 32; Berlin vs. New Britain, 9th Conn., 180; N. JT.

<p>APPEAL FROM THE DISTRICT COURT OF HENNEPIN COUNTY.</p> <p>I. — The Regents bad power to make a negotiable promissory note. 2d vol. Kent’s Com., ¶. 278, note a; Attorney General vs. Life ds Fire Ins. Go., 9 Paige Oh., 470/ Moss vs. OaMey, 2 Hill, 265; Kelly vs. The Mayor, c&c., of Brooldyn, 4 Hill, 263; Bourlter vs. Mechanic Fire Ins. Go. of K. 7., 3 Wend., 94; Angelí ds Ames oh Oor., secs. 257-58; Barry vs. Merchants’ Fxchmige Go., 1 Bandf. Oh., 280; Mutual Ins. Go. vs. Davis, 2 Kernan, 569.</p> <p>II. — The evidence admitted as against Eastman & Gribson shows conclusively that the Board of Regents ratified the act of Steele and Atwater in executing the notes as their agents. See case, fol. 65.</p> <p>III. — In order to charge Eastman & Gribson as endorsers, it is immaterial whether tbe Regents were authorized to make the notes or not, or whether Steele and Atwater had authority to sign for the Board ; because Eastman & Gibson, by their endorsement, warranted the genuineness and validity of the notes, and the capacity of the maker to make them. Even if the notes were absolutely void in their inception, Eastman & Gibson, after having indorsed them to the Plaintiffs who took them in good faith, could not defend on that ground. 3 Eenfs Com.,/p. 88/ Story on Bills, secs. 110-11; Story on Promissory Notes, seo. 135/ Byles on Bills, 118, and cases cited/ Edwa/rds on Bills and Prom. Notes, /p. 289-90; it., /p. 337, 57; McKnight vs. Wheeler, 6 Hill, ¶. 492; Lambert vs. Oaks, 1 Lord Raymond, 443; Edwards vs. Dick., 6 Eng. Com. La/w, 455, (4 Barn. & Adol., 212); 1 Parsons on Con.,/p¿ 220, and cases cited/ Ghitty on Bills, ¶. 110, 116.</p> <p>IY. — If* it should be held that the notes were illegal and void in their inception, the indorsee can. recover against his immediate indorser without demand and notice. It is like drawing upon a drawee who has no funds. Chandler vs. Mason, 2 Vt., 193, a/nd cases cited', Edwa/rds on Bills and Notes, 640, 646.</p> <p>Y. — The simple endorsement and transfer of an over due note is equivalent to the endorsement of a note payable on demand, and gives rise to the same relations between the parties. Leavitt vs. PvLnam, 3 Comstock, 494, a/nd cases cited.</p> <p>YI. — The notes in this case were drawing interest, and were a continuing security; and demand and notice at the end of the year from the date of the endorsement was sufficient to charge the endorsers, and the Court erred in not so instructing the jury as requested by Plaintiff’s counsel.</p> <p>1st. Because the contract oí endorsement by its terms does not contemplate demand and notice till the end of a year. See Bayley vs. Buzzell, 19 Mai/ne, (1 A/p/pleton) 88.</p> <p>2d. Because in order to charge the indorser, the indorsee of a note drawing interest payable on demand need not present the note within any particular time, and the indorser cannot avail himself as a defence of the delay of the holder in making demand and notice. See the late case .of Merritt vs. Todd, 23 New York B., ¶. 28, where the above principle is elaborately discussed and directly decided.</p> <p>. YII. — But even if tbe Court should hold that it was necessary to make demand within a reasonable time, the question of reasonable time in such cases is a mixed one of law and fact, and was properly submitted to the jury under the instructions of the Court, and the instructions given to the jury were correct.</p> <p>The Court charged in substance, — .</p> <p>1st, That if the jury find from the evidence that payment of the notes was demanded and notice of non-payment given within a reasonable time after the transfer to Plaintiffs, under all the facts and circumstances of the case, Eastman & Gibson are liable.</p> <p>2d. That as a mere question of time without reference to any facts and circumstances in the case the time between the transfer of the notes to Plaintiffs, and presentment and notice, is not a reasonable time.</p> <p>3d. That if the jury find from the evidence that the delay in the presentment and notice was induced by statements or representations made by Eastman & Gibson to the Plaintiffs, then the jury may take those statements or representations into consideration in determining whether such presentment and notice was within a reasonable time. See ffl. 97-8.</p> <p>This left the facts to be found by the jury, and the law as laid down by the Court to be applied to those facts.</p> <p>The Respondents in maintaining that this question should not have been submitted to the jury at all, seem to confound evidence with facts. The jury must weigh the evidence and determine what facts are or are not established by it. And in this case the evidence was such as to warrant the jury in finding that the delay was with the express assent of Eastman & Gibson. See Farnham vs. Davidson,' 3 Gush. R., 232/ Ta/ylor vs. Bryden, 8 John. R., 173/ Harris vs. Robinson, 4 How. TJ. 8. 8. G. R., 345; Byles on Bills, ¶. 140, {marginal); Story on Bills of Exohmge, seo. 231/ Gould's Pleadings, eh. IX, pari II, see. 50.</p> <p>Till. — The verdict is fully supported by the evidence, and it is clear that justice has been done. Scmford vs. Mickles et al., 4 John., 227.</p> <p>IX. — The deposition of Alexander C. Hart was properly admitted. Every presumption is in favor of the jurisdiction of a court of general jurisdiction and of the validity of its orders.</p> <p>I. — The Court below, on the trial, erred in admitting the deposition of the Plaintiff Hart.</p> <p>1st. Because it is not competent to use the deposition of a party to an action in his own behalf.</p> <p>2d. Because the order for issuing the commission to take the said deposition was not made at any general or special term of the Court.</p> <p>H. — The Court below, on the trial, erred in admitting the pretended letters of the Defendants Eastman & Gibson.</p> <p>1st. Because there was no evidence that they were written by said Defendants.</p> <p>2d. Because they were immaterial and inadmissible under the issue. 1</p> <p>TTT- — The Court properly refused to charge that demand and notice at the end of the year after the endorsement, was sufficient to charge the Defendants as endorsers. This endorsement is restrictive and not an enlarged endorsement.</p> <p>IY. — The Court properly charged the jury that the evidence showed that the demand and notice were not sufficient to hold the Defendants as endorsers.</p> <p>Y. — The Court erred in charging the jury that they might consider any evidence of a waiver of demand and notice. 1 Minn., 48; 1 Kern., 25/ 4 Sand., 665.</p> <p>YI. — Even if the issue of a waiver had been made in the pleadings, the facts being uncontroverted, it was an issue of law for the Court, and the evidence does not show a waiver.</p> <p>YU. — The power and right of the Begents to make these notes depending upon a public statute of this State, the Plaintiffs were charged with notice of the extent of that power; and the contract of indorsement being wholly by implication of law, the law will not imply that the endorsers guaranteed anything which the statute did not authorize.</p>

Tbe following is a copy of the Complaint in this action : The complaint of the Plaintiff in the above entitled action respectfully shows to the Court that on the 25th day of August, a. d. 1859, in an action brought in the District Court for the Fifth Judicial District, in the County of Scott, wherein Thomas J. Galbraith and Spier Spencer were Plaintiffs, and Comfort Barnes Defendant, judgment was duly rendered and entered in favor of said Plaintiffs and against said…

'(The substance of the thirty-five “Points” made by the-Appellant in this cause, appears from the opinion of the Court.) I. — The Defendant’s answer does not contain any defence to the demand of judgment or decree for partition or sale con-tainéd in the complaint. The Defendant admits the title precisely as it is stated in the complaint, but alleges that the title is “subject to the conditions, provisions and contract” in the answer set forth.

— Defendant’s right to judgment for a return or the value does not follow of course upon bis right to j udgment. Defendant in replevin may have judgment without being enti-tied to a return. The statutes (Oomp.

A statement of the substance of the complaint and amended -answer, and a copy of the reply in this action, will be found in 5 Minn. Rep. p. 223 27. In tbat case, the Defendant demurred to tlie third, fifth, sixth and seventh grounds of the reply. The demurrer • was sustained, and this Court affirmed the judgment thereon. The cause was then remanded to the District Court for further proceedings.

Tbe complaint of the Plaintiff below, Henry Poster, alleges that daring the year 1856, and the month of January, 1857,. be was engaged in trading with the Indians, under a license from the United States ; that he had a trading establishment stocked with goods, at the Winnebago Agency, situate upon and in tlie Winnebago Reservation, as reserved and set apart by treaty between the United States and the Winnebago Indians, dated'March 1st, 1855.

This action was brought by tbe Appellant to recover from the comity of Washington, the amount of six hundred and fifty-five dollars, expended in the location and construction of the Cannon Falls and St. Paul road, pursuant to a special act of the Legislature of the State of Minnesota, passed ■ and approved January 20, 1858. Tbe cause was tried by the Court below, & iury trial having been waved. The opinion in this. Court contains a review of tbe facts found.

— The Court below erred in sustaining the demurrer interposed by the Defendant in Error to the complaint of the Plaintiff. 1st, Because there is no misjoinder or defect of parties, Plaintiff or Defendant, to this action. 2d, Because it does not matter that the sheriff is made the proper custodian of the moneys arising from the sale in mortgage foreclosures by 'advertisement, where such premises are sold by him.

I. — The action is not under the statute, which requires actual possession to sustain it. It is not to settle any question of title, for Plaintiff’s title is not disputed. But it is brought under the old head of equity jurisdiction, stated in 2 ¡Story Eq.

I. — A mortgage is not, and cannot be negotiable. It bas not a single attribute or peculiarity of negotiable paper. To be negotiable, an instrument “must be a simple, general, mere promise to pay.” 1 Am. Lead. Gas., 805. The liability to pay must be personal and absolute, and the instrument must 'be payable at all events, and at some time which must certainly come.” 1 Am. Lead.

The following is a copy of tbe Complaint in this action : The said Plaintiff complains that on tbe 16th day of November, 1859, be was tbe owner and entitled to the immediate possession of one span of horses, a double set of harness and one neck yoke, all of tbe value of two hundred and sixty-seven dollars, which property was exempt bylaw from attachment or execution — it- being tbe only team and tackel therefor owned hy this Plaintiff.

ARPEAL FROM THE DISTRICT COÜRT OF SOOTT COUNTT. The Plaintiff in this action respectfully states and shows to tbe Court, tbat on tbe first day of September, a. d. 1860, be . was seized and possessed of tbe title in fee simple to tbe following .described real estate, to wit: situate in said county of Scott, the southwest Cuarler of the northwest quarter, and the northwest quarter of the northeast quarter, and the southwest quarter of the northeast quarter of section number…

— Under the pleadings in this action, one of the material issues of fact formed was, as to the partnership of the Defendants. This was alleged in the complaint, and the Defendants by denying each and every allegation in the complaint, put this as well as every other material allegation in the complaint in issue. Benedict vs. Seymour, 6 How., 298.

— Parol evidence was properly received to show the identity of the property in controversy with that described in the mortgage, the mortgage being inexplicit. Yol. 2, Gowen, Hill II. — Upon the evidence which is nncontradicted, the verdict should have been for the Defendant. 22’ Smith N, Y. Hep., 37; 1 Ha?'Sons on Oontraots, p. 453, note a, and cases cited.

The following is tbe decision of tbe Court below upon tbe demurrer to the complaint: The complaint in this action shows that tbe Plaintiff Jennie Cratt, and the Defendant, Pauline Monette, are mixed bloods of tbe Dakotali or Sioux nation of Indians, referred to and provided for in the 9th Article of the Treaty made and conclude! at Prairie du Chien, July 15th, 1830, (7 O. 8.

I. — The causes of action alleged as against T. B. B. Eld-ridge, J. TL Eldridge, and the Bank of Saint Paul, are distinct and separate causes of action from tbe canse of action alleged against Harwood Iglebart, and are not sucb as tbe stattite authorizes to be united. Lewis dk Pickering vs. Williams db Son, 3 Mi/nn., 151; Chap. 67, Oomp. Stats., p. 606, a 609; Oomp. Stats., p. 540; Van Sant. Eg. Pr., 190, 678.

I. — This question involves the construction of section one, chapter 8, of said consolidated act, Laws of 1858, This was not property exempt by law; on tbe contrary, sucb property is made taxable under tbe constitution. See. 3-4, art. 9, State Const.’, Porter vs. Ileyward, 6 Vt., 374; Catlin vs. Hall, 21 Vt., 157. Tbe property being invested and payable in tbe city of St. Paul, bad its situs there as much as sucb personal property is capable of having a situs.

Where recovery is demanded as a matter of right, if a party voluntarily pay it with a full knowledge of the facts upon which the demand is founded, he cannot recover it back, though the claim was unfounded. Clmdc vs. Dutchie, 9 Cow., 674; 1 Wend., 365; Supervisors, dee., vs. Briggs, 2 JDenio, 26/ Wyman vs. Farnesworth, 3 Ba/rb., 369; 9 John., 370; 2 Phil. Eh., 118; 1 Taunt., 144; 2 East., 469.

The following are the facts and conclusions of law as found by the Court below : That on the 23d day of April, a. d. 1857, one William Hol-linshead made and delivered to one J. W. Simonton his note of that date, for $1,500, payable in one year from date to the order of said Simonton, with interest until due at the rate of three per cent, per month, and after due at the rate of five per cent, per month, value received, payable at the oifice of said Hollinshead, in St, Paul,…

— The rules relating to the introduction of secondary, are the same as those regulating primary evidence, and the best evidence of which the matter is susceptible, must be produced ; hence a copy is the best evidence of the contents of a lost instrument, and the referee erred in excluding the copy of the agreement between Irvine and Barton. 9 Peters, 663, (11 Cur., 521); 4 Curtis, 428, 715; 20 Curtis U. 8., 167, (14 Sow., 263); 6 6*«.,'188; 5 Ala., 435/ 1 Peters, 591; 8 Ga.,…

This action was brought to obtain a strict foreclosure of a “ bond for deed.” The complaint fully describes the bond, its conditions, &e., a failure to pay balance due upon one of the notes therein mentioned, and that Plaintiffs have, since the maturity of the note and before the commencement of this action, several times offered to cancel and deliver up the note in part unpaid, to the Defendant, if he would release and cancel the bond, but the Defendant neglected and…

I. — The complaint alleged no wrongful taking, and should have been dismissed. There is no presumption of wrong from a mere statement of a taking, and the mode of pleading adopted by the Plaintiff in Error would seem purposely evasive. Goit vs. Weepies, 1 Mmn., 134; Reynolds vs. Lounslwy, 6 Bill, 534. II. — The Court erred in refusing to charge that Defendant in Error must show a sale for a valuable consideration.

— The only feature of the foreclosure claimed to be irregular, is the omission to serve upon the Plaintiff occupying the mortgaged premises, a copy of the notice of foreclosure sale, as required by sec. 33, chap. 63, Oomp. Stats., p. 592. This omission is the sole ground upon which this action is brought to vacate and declare void the sale.

— The motion being of twofold character, the Court below was not obliged to deny the whole, because part could not be granted. The part of the motion asking for vacation of the judgment is equivalent to a motion for re-examination or new trial; and if there were reasons for granting a new trial, the Court was bound to grant under the motion as made.

Tbe Defendants in Error, Plaintiffs below,, sued tbe Plaintiff in Error for detaining certain Sioux balf-breed Late Pepin Reserve scrip, alleging a demand and refusal. Tbe Defendant denied that be ever bad possession of tbe scrip, or ever detained tbe same. Tbe case was tried by James Grilfilian, Esq., as Referee. Tbe evidence showed that tbe scrip was in tbe possession of one Hurlbut, of St. Anthony.

The District Court erred in setting .aside the ■ verdict of the jury, finding the deeds under which the Respondents claim fraudulent as against the Appellant, and rendering judgment in favor of the Respondent upon the answer of the jury to an interrogatory put to 'them hy the counsel for the Ré-spondent. 1st. Because the said interrogatory has not any foundation in the pleadings, and the counsel for the Respondent had not the legal right to put it to the jury.

I. — The order is erroneous and against law. II. — The Defendant, White, did not show himself damaged by the writ, and could not move to vacate the same, and all proceedings thereunder. 13 Tlo'io. p. 350. III. — The Court below find that the writ was granted upon a sufficient affidavit, and that it was true, and could not then vacate the writ. Comp.

. I. — The statute expressly allows seyeral canses of action to be united when they arise out of the same transaction or when they arise out of transactions connected with the same subject of action. See chap. 60, see. 87, jp. 543, of Oom/p. Stat. II. — There is a cause of action set forth in the complaint which invokes the equitable powers of the Court, to wit, the removal of a cloud upon the Plaintiff’s title, — it cannot be reached by an action at law.

— The firm of “ Harris, Cowles & Co,,” as a firm, could not become a grantee by their firm name. Natural persons and corporations only are capable of becoming parties to conveyances of real estate. The deed to them and to James TT. Harris jointly, was at law a conveyance to James H. Harris only, and no resulting trust accrued to the members of the firm because they paid the purchase money or any part of it. Comp. Stat. 382, seo. 7; 8 John. B. 385.

I. — It will be seen that there is but a single point in this case, which is, where a party claiming on a note reads the same in evidence, whether the endorsements of payment appearing on the note should be considered by the court or referee without being formerly alluded to until the argument. When an endorsement is made on a note, it becomes a part of it. The note itself, by that endorsement, is made evidence of a less indebtedness than it was before.

I. — The Court below erred in refusing to set aside and vacate said award, and in accepting and confirming the same and rendering judgment thereon. Comp. Stats. ¶. 691, see. 13. 1st. Because said arbitrators exceeded their powers under the submission. The articles of submission did not authorize them to direct a sale of the property, but simply to determine which of the parties was entitled to possession.

I. — 'Any interference with the property on the part of the Defendant Willis, so that the same was diverted from the purpose or object to which the award directed it to be applied, would be as much a breach of the condition as any other act which the Defendant might or could have done. II. — The Court erred in sustaining the demurrer. 1. Because the demurrer admits a full and complete breach of the condition of the bond. 2.

— The answer in this case is a full and explicit denial of a material allegation of the complaint. This is perfectly shown by striking out cf said complaint the allegations traversed by said answer. No one can claim that the remaining allegations of said complaint would constitute a cause of action.

The following is a copy of the complaint in this action : The complaint of Bridget 0.

The following is a copy of the complaint : The Plaintiff in the above entitled action for amended complaint therein, respectfully states and shows to the Court;— the complaint then proceeds with allegations showing that Defendant Gierman was on the 3d of April, 1860, duly elected a Justice of Peace for Scott county, and that the Defendants, on the 7th of July, 1860, duly executed a bond in the penal sum of $500, to “ the chairman of the Board of Supervisors of the town of…

I. — The Court erred in holding the agreement between Dr. Paterson and Towlerton void as being by parol. Towlerton had partly performed by entering into possession and making improvements, and paid in work and taxes some of the consideration money. That takes the case out of the statute on the ground of part performance. Seager vs. Burns, 4 Minn., 141.

— The Court erred in submitting tbe whole case to the jury. • Only the doubtful questions of fact in the case should have been submitted to them, and a special verdict should have been taken. It is as much against the policy of the law for juries to sit as chancellors now, as it was under the old equity practice. They are no better or safer judges of the law now than they were then.. Comp. 8tat. 557, seos. 6, 7; id. 561, secs. 34, 35; Sow.

There was a verdict in the Court below in this cause in favor of the Plaintiff for $401.03. The Defendants moved for a new trial, wbicb motion was sustained. The Plaintiff appeals from this order.

I. — We claim that under sec. 6, art. 6, chap. 4, II. S., which was in force at the time the note described in the complaint in this action was protested, the record of the notary, or a certified copy thereof, kept as directed by said provision, is the only admissible evidence to prove notice to the endorsers. and tbe other facts which- by law such record ought to contain.

The following are tbe facts and conclusions of law as found by James G-ilfillan, tbe Referee, before whom said cause was tried: That at tbe City of St. Paul, County of Ramsey and State of Minnesota, on tbe 25tb day of March, 1861, and on divers days thereafter, tbe parties, Plaintiffs and Defendant, by their respective attorneys, came before me and proceeded with tbe trial of tbe cause, and having beard all the allegations and proofs of tbe respective parties and tbe…

— The finding of the referee that the conveyance of the land by Plaintiff to Defendant, was made in pursuance of the propositions and conversations had at Millville, in Ohio, is entirely unsupported by evidence, and is directly against the evidence, both of Plaintiff, and as shown by Defendant’s letters, A, B, O and E, (folios 29 to 42 inclusive.) II. — It appears that the conveyance of the land was made by Plaintiff to Defendant, with a view on the part of Plaintiff of…

Tbe above named Plaintiffs show to the Court that they are partners in business under the firm name and style of M. D. Gilman & Co.;… Held: charged and considered only as an endorser thereto, and not as a maker thereof, and the said Defendant should and would be entitled to notice of non-payment thereof by the said P. Peckham, and the Defendant aforesaid further says that he has not at any time received any notice of protest or of non payment of said note, and therefore…

I. — The Plaintiff shows himself in possession of the land in question, prior to Defendant’s purchase. This is notice to the world of the title of the Plaintiff. Miner vs. Willoughby II. — The entry of the land by Hammond, July 28th, 1855, divested the title of the United States, and the United States cannot, any more than a private individual, resume or cancel its own grant.

I. — The Court below erred in overruling the Defendant’s (now Plaintiff in Error) motion for judgment upon the pleadings, (the complaint.) 1. Because the complaint contains no cause of action, and does not show that either law or justice has been violated. 2. The complaint also does not allege or set up that either the taking or detention of the timber was wrongful or tor-tious or unlawful, or in any manner obnoxious to law or justice.

The following are the facts and conclusions of law, as found by the Court below, a jury trial having been waived: That at the time alleged in the complaint, the Defendant was sheriff of the county of Hennepin, and Moses W. Getch-ell, his deputy, acting as such.

The following are tbe facts in regard to tbe payments made on tbe note as found by tbe Court below — a jury'trial having been waived: Fvrst. — That tbe promissory note declared on in this action was made and delivered by tbe Defendant, J ames H. Mills, to L. S. Pease, the payee of said note, and that to secure the payment thereof said James H. Mills and Naomi C. Mills, bis wife, executed and delivered to said Pease tbe indenture of mortgage as alleged in this complaint, and…

I. — There is no evidence to sustain any verdict in this case. Therefore the Court below erred in allowing the verdict to stand in any case whatever. Gra. . 1162; 12 Piole., 198. This was an action for conversion of money, and that was the main and principal issue, — an issue which was tendered by the Plaintiff, and not supported by the evidence.

I. — The time of recording was the substance of the issue, and must be proved by the record alone. 1 Greenleaf on Ev., seo. 60 and eases cited, 3., 63, 64, 69, 'TO, 479 etc., 499 etc., and cases cited; 1 Starkie’s Ev., 189 etc., 383-84 etc.-, ib., 429, 430 etc.-, 2 ib., 48. II. — The complaint charges no mistake in the record, but does allege a correct record.

I. — The Court below erred in each of the conclusions of law found, except the ninth. 1st. Because the facts found show a sufficient statement of the facts out of wbicb tbe indebtedness from Bacbin to Kern arose, to authorize the entry of a judgment by confession under our .statute. Comp. Btat., chop. 72, sec. 2 ; .9 How. Hr.

<p>APPEAL FROM THE DISTRICT COURT OF WASHINGTON COUNTY.</p>

<p>Upon the trial of an issue of fraud in the making of a voluntary assignment for the benefit of creditors, it is error to admit evidence of the mere declarations or admissions of an agent of the assignor, made prior to the assignment and not within the scope of his agency, to prove the intent with which his principal subsequently made an assignment; nor are such declarations or admissions evidence of the intent, though made after the assignment, and while holding possession of the property assigned, as the agent of the assignee.</p> <p>Evidence of the acts, declarations or admissions of a witness, inconsistent with his statements on the stand, cannot be received to discredit his testimony, without his attention has first been called to the particular act, declaration or admission which it is intended to prove.</p>

The complaint charged that on the 6th day of January, 1857, Plaintiffs were the owners and possessed of. certain personal property, (describing the same,) and that on said day “the said Defendant became possessed of and wrongfully detained from them, said Plaintiffs,' said personal property, of the value,” &c. There was no allegation of a demand or refusal. Defendants answered, and Plaintiffs demurred to the answer.

— The judgment roll should not have been admitted, for the reasons urged on trial, and without this evidence Plaintiffs must have failed in the Court below, and this Court will try the cause on legal evidence only.

APPEAL PEOM THE DISTEICT COUET ÓE BLUE EARTH COUNTY. I. — The verdict is clearly supported by the evidence ; the preponderance of testimony goes to establish the facts found, and a fair trial having been had, the Courts will not interfere to disturb the finding of the jury. Ora. c& Wat. on N. Trials, vol. l,y>. 362, cites 2 Arch. Pr., 222; 0¥a. Pr., 514/ 3 Ora. db Wat. on New Trials, 1240-41.

This was an action brought by the Plaintiff to set aside a sale of the west half of the north-east quarter section 3, town ■102, range 10, made by defendant Pickett, as sheriff ofEillmore county, on an execution issued to him for a judgment in favor of Defendant, Millard, and against Plaintiff, at which sale Defendant, Butler, became the purchaser of said premises.