Volume 8 — North Dakota Reports

Action by J. E. Engstad, Burke Corbet, J. H. Bosard, M. Reilly, James Lanldn and O. E. Nash, residents and taxpayers of the City of Grand Forks, North Dakota, against John Dinnie, mayor; Frank A. Brown, auditor, and M. L. Gorden, treasurer of the City of Grand Forks, to enjoin the carrying out of a contract for the construction and equipment of an electric light plant, and to enjoin the issuance and payment‘of the warrants of said city to the contractors for said improvement.

<p>Appeal from District Court, Pembina County; Sauter, J.</p> <p>ActN.u ¡' Joseph Tetrault against A. M. O’Conner. Plaintiff had judgment, and defendant appeals.</p>

<p>Appeal from District Court, Cass County, Pollock, J.</p> <p>Action by the Chicago, Milwaukee & St. Paul Railway Company against Cass County and others to set aside certain taxes. Plaintiff had judgment, and Cass County appeals.</p>

Action by Olea C. Haug against The Great Northern Railway Company, to recover damages, for the death of her husband Jacob C. Haug, alleged to have been caused by the wrongful act of the railway company. Judgment for defendant on demurrer to the complaint. Plaintiff appeals.

Action by Charles Hollinshead against the Globe Investment Company, defendant, to secure the satisfaction of a certain mortgage and for the statutory penalty. John Stuart & Company intervened. Plaintiff purchased the mortgaged premises from William Glass and as part of the purchase price assumed and agreed to pay the mortgage thereon given by his grantor to the Globe Investment Company.

<p>Appeal from District Court, Cass County; McConnell, J.</p> <p>Action by William H. Best against Walter Muir and others. Judgment for defendants, and plaintiff appeals.</p> <p>It is sufficient if the defendant had constructive possession of the property, that is if it was under his control at the time of demand so that he could deliver it to plaintiff. Gallagher v. Bishop, 15 Wis. 303; Latimer v. Wheeler, 1 Keyes 468; Dunham v. Tray, 3 Keyes 543; Bradley v. Gamelle, 7 Minn. 331, 20 Am. & Eng. Ene. L. 1061. If defendant has possession of the property at the time of demand and wrongfully parts with possession before the commencement of the action, replevin can nevertheless be maintained. Nichols v. Michael, 23 N. Y. 264; Barnett v. Selling, 9 Hun. 236, S. C. 70 N. Y. 492, S. C. 3 Abb. N. C. 83; Gassner v. Marquardt, 45 N. W. Rep. 674; Timp v. Dockham, 32 Wis. 146; Grace v. Mitchell, 31 Wis. 533, 20. Am. & Eng. Ene. L. 1059 & n. Plaintiff is an endorsee in good faith of the notes before maturity and in the ordinary course of business, and therefore takes the chattel mortgage securing them relieved of equities and defenses. Jones on Chat. Morts. 503; Jones on Morts. § 834; 1 Hillard on Morts. 572, § 65; Coots on Morts 304; Powell on Morts. 908; Gould v. Marsh, 1 Hun. 566, 15 Am. & Eng. Ene. L. 855, 2 Cobby Chat. Morts. 655; Graham v. Blinn, 30 Pac. Rep. 446; Meyers v. Hassard, 50 Fed. Rep. 155; Updegraff v. Edwards, 45 la. 513; Dutton v. Ives, 5 Mich. 515; Helen v. Krolick, 36 Mich. 371; Webb v. Hasclton, 4 Neb. 305 ; Burhans v. Hutchinson, 25 Kan. 625 ; Logan v. Smith, 62'Mo. 455; Hagaman v. Sutton, 91 Mo. 519; Lewis v. Kirk, 28 Kan. 497; Gabbert v. Schwarts, 69 Ind. 149; Muir v. Beckshin, 52 Ind. 149; Carpenter v. Lougan, 16 Wall. 273; Dearman v. Trimmier, 2 S. E. Rep. 506.</p> <p>There is no evidence that respondent had possession of the wheat tickets when this action was brought. Proof of possession in October creates no presumption of possession the following April. Bethel v. Lyon, 30 N. W. Rep. 84. Replevin will not lie except against one in possession of the property when the action is begun. Willis v. DeWitt, 3 S. 'D. 281, 52 N. W. Rep. 1090; Peale v. Garlock, 28 N. W. Rep. 155; Davis v. Van de Mark, 25 Pac. Rep. 589; Cobbey on Replevin, § § 431-433. Clark, while the owner of the mortgage, consented to the transfer of the wheat from Ballinger to Muir. Under this parole license the title passed by sale to Muir, released of the mortgage lien. Frick Company v. Western Star Co., 32 Pac. Rep. 1103; Cobbey Chat. Morts. § 637. Plaintiff is in no bettci position than Clark would have been had the mortgage not been assigned. Pomeroy Equity (2d ed.) § § 704 & 1210; Oster v. Mickley, 28 N. W. Rep. 710; Kleeman v. Frisbie, 63 111. 482; Bryant v. Vix, 83 111. 11; Baily v. Smith, 14 Ohio St. 396; Hoogland v. Shampanore, 37 N. J. Eq. 588.</p>

<p>Appeal from District Court, Cass County; McConnell, J.</p> <p>Action by William H. Best'against L. C. Barrett and others. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Pembina County; Sauter, J.</p> <p>Action by the Second National Bank of Grand Forks against the First National Bank of St. Thomas. Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal — Review.</p> <p>The jury having rendered a verdict on testimony that substantially conflicts, such verdict cannot be disturbed.</p>

<p>Original application of Carl A. Kaeppler for mandamus directed to Charles A. Pollock, as judge of the Third Judicial District.</p>

<p>Appeal from District Court, Richland County; Pollock, J.</p> <p>Action by B. J. Howland against R. N. Ink for an account for legal services. From a judgment for plaintiff, defendant appeals.</p>

Action by Daniel Divet against Richland County, North Dakota, for a refund of taxes paid. From a judment for defendant, plaintiff appeals. Plaintiff’s right to recover is not barred by the statute of limitations. The time of limitation commenced when' the cause of action was first subjected to the operation of the statute. Sohn v. Waterson, 17 Wall. 596; Trustees v. Arnold, 58 111.

Action by Rebecca G. Coleman against the City of Fargo to recover for personal injuries. From a judgment for plaintiff, and an order denying its motion for a new trial, defendant appeals. The plaintiff as a condition precedent to action against the city should have presented his claim to the Board of Audit. § § 2170, 2171, 2172, Rev. Codes. The law not providing a method of service upon the board of audit the service must be personal.

Action by George Edmonson and Kate Edmonson against Thomas White, as sheriff of Bottineau County, and the First National Bank of Grand Forks, to enjoin an execution sale. From a judgment for plaintiff, defendants appeal.

Action by Mary Krump against the First State Bank of Hankinson to recover money alleged to have been paid under duress and through fraud. Judgment for defendant on a directed verdict. From the judgment and order overruling a motion for a new trial, plaintiff appeals.

Action in equity by the Township of Noble against Ole T. Aasen ' for an injunction and damages. From a judgment for plaintiff, defendant appeals.

Action by the Farmers’ & Merchants’ National Bank of Valley City against Chester H. Davis to quiet title. From a judgment for defendant dismissing the action, plaintiff appeals.

Action by Daniel Patterson against G. A. Ward and others for the appointment of a receiver and to foreclose a mortgage. After jitdgment, plaintiff moved for an order against H. D. Hurley, receiver, to pay over certain money. J. E. Paulson and others inter-pleaded, and from an order granting the motion-they appeal.

Application-for a writ of mandamus by the State of North Dakota on the relation of Charles W. Plain and others, against Fred Falley, secretary of state, to certify relators’ nomination. On the return of the alternative writ, the defendant’s motion to quash and set the same aside was denied, and a peremptory writ issued.

Action by John McTavish against the Great Northern Railway Company for damages caused by fire. Judgment for plaintiff. From the judgment and order denying its motion for a new trial, defendant appeals. Motion by plaintiff to strike statement of case and abstract from files.

Action, in the nature of an appeal from the ruling of the clerk of the District Court, by the Minneapolis & Northern Elevator Company against James Black, to recover, as costs, certain disbursements made in a former action in printing an abstract and brief. From a judgment for Black, the elevator company appeals.

<p>Appeal from District Court, Pembina County; Sauter, J.</p> <p>Action by Mathilda Morris and others against Joseph Ewing. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Pembina County; Sauier, J.</p> <p>Action by Magnus Brynjolfson against the Township of Thingvalla. From a judgment for plaintiff, defendant appeals.</p>

<p>Bills and Notes — Payment—Estoppel.</p> <p>The fact that the indorsee of a negotiable promissory mote permits or authorizes the original payee to collect the interest upon such note as it becomes due, and delivers to the said payee the coupon notes, to be delivered to the party making t'he payments, and the further fact that such party makes said interest payments, believing without inquiry, th-alt'suich original payee is the owner of said note, do not estop said endorsee, who 'has kept the principal note in his possession at all times since its indorsement to him, and' who has never in any manner authorized the original payee to collect the principal of said note, and who never in fact received said principal or any part thereof, from enforcing payment against one standing in the shoes of the maker of such note, who forwarded the full amount of the principal of said note to the original payee. Hollinshead v. John Stuart ■ & Co., ante poge 35 followed.</p> <p>Implied Agency.</p> <p>I The fact that a negotiable promissory note is made payable at a particular office does not make the party in charge of said office the agent of the holder of such note, to receive payment, unless the note ■be actually in the possession of such party. Same authority.</p>

Action by John C. Oswald and Theodore Basting against Patrick Moran and Margaret Moran for the foreclosure of a real estate mortgage securing a promissory note- for $2,966.66 and interest.

<p>Unrecorded Deed — Title Acquired.</p> <p>An unrecorded deed, the grantor holding the full legal title, is sufficient -to pass the full title to the grantee as 'between the parties, subject to be defeated only by a subsequent conveyance by the grantor in such unrecorded deed to one who takes in ignorance of the fact that such deed had been given; and -where the grantee in such unrecorded deed conveys to a third party with full covenants, and such deed is recorded, and subsequently the grantor in the unrecorded deed conveys the same property 'by quitclaim to such third party, which deed is also recorded, such party holds the full legal and record title to the property.</p> <p>Tax Deed — Record—Effect.</p> <p>A tax deed valid on its face, and which has been of record for more than the full time limited by law in which to bring an action to set aside or avoid such tax dee'd, is effective to cut off all interest under a prior tax deed on the same property.</p>

Action by Frank H. Dickinson against Andrew H. Burke and James Moug. There was a verdict for defendant Moug, and plaintiff appeals from an order denying a new trial.

Action by R. W. Peoples against Even Evens to recover possession of certain crops. The opinion states the facts. Verdict for defendant. From a order granting a new trial, defendant appeals.

District Court, Grand Forks County; Glaspell, J. Action by Esther M. Cameron against the Great Northern Railway Company. Judgment for defendant. Plaintiff appeals. It is the duty of the master not to expose his servant to extraordinary danger by putting him to work in dangerous places, or with dangerous appliances or machinery. 2 Thomp. on Neg. 972; Wood’s Master and Servant, 329; Deerings Neg. 198; Russell v. Mfg. Co., 77 Am. Dec. 212; Hough v. Ry. Co., 100 U. S. 217.

Action by the United States Savings and Loan Company against Sanford A. Shain and others. Judgment for defendants. Plaintiff appeals. The right of a corporation of another state to make contracts in this state is unquestionable, where not contrary to the known policy of the state or injurious to its interests. • Bank v. Earl, 13 Pet. 519-588.

Action by William D. Hale, as receiver of the American Savings, & Loan Association, against Mrs. Ella Cairns and others. Judgment for defendants, and plaintiff appeals. . The plaintiff may as foreign receiver maintain this action. High, on Receivers, § 241; Beach on Receivers, § 682; 6 Thomp. Corp. § 7340; Rogers v. Riley, 80 Fed. Rep. 759; Metsner v. Beauer, 98 Ind. 425; Toronto Cent. T. Co. V. Ry.

Action by John Dinnie and another against O. H. Johnson. There was a judgment for plaintiffs, and from an order granting a new trial plaintiffs appeal.

<p>Action on Contract — Substantial Performance.</p> <p>To entitle a contractor to recover upon a building contract, which 'has not 'been fully complied with by him, under the doctrine of substantial performance, it must appear, not only that he endeavored to perform it in good faith, but also- that he has done so, except as to unimportant omissions or deviations, which are the result of mistake or inadvertence, and were not intentional, and which are susceptible of remedy, so that the other party will get substantially the building lie contracted for.</p> <p>Facts Do Not Show Substantial Performance.</p> <p>Facts examined, and held not to bring the plaintiffs within the rule.</p> <p>Taking Possession of Building Not an Acceptance.</p> <p>Held, further, that the mere fact of taking possession of the building does not of itself amount to an acceptance of the same by the owner as having been erected according to contract.</p>

<p>Appeal from District Court, Grand Forks County; Fisk, J.</p> <p>Action by the First Methodist Episcopal Church of Grand Forks against John O. Fadden. E. H. Rollins & Son intervened. From a judgment for plaintiff, defendant appeals.</p>

Petition of E. C. Carruth for a writ of habeas corpus directed to E. C. Taylor, sheriff. Judgment remanding petitioner, and he appeals. The order denying the discharge of appellant was appealable under sections 5603 and 5626, Revised Codes. Winton v. Knott, 7 S. D. 159, 63 N. W. Rep. 783. In re Hammill, 9 S. D. 390, 69 N. W. Rep. 577; In re Fawkes, 53 Fed. Rep. 13.

<p>Appeal from District Court, Cass County; Pollock, J.</p> <p>Action by James B. Badford against Abraham B. Johnson. Judgment for plaintiff. Defendant appeals.</p>

Action by William James and Benjamin James against Robert Wilson and Jane Wilson to recover possession of personal property upon which plaintiffs held two chattel mortgages given by defendants. Verdict by direction of Court and judgment thereon for defendants. Plaintiffs appeal.

Action by Michael Prondzinski against James Garbutt. Verdict for plaintiff. From an order granting a new trial, he appeals. The right to redeem property sold on execution may be prolonged by parole agreement of the parties beyond the statutory period. Griffin v. Coffey, 50 Am. Dec. 519. It is a fraud for the purchaser to refuse to carry out his parole agreement after the redemption period has expired and equity will grant relief.

Action by A. F. Kuhnert against Erasmus D. Angell, for recovery of damages because of injuries to a team sustained by running into a barbed wire fence. Plaintiff obtained a verdict, a new trial was ordered and plaintiff appeals from the order granting new trial.

Action by Emma G. Towne against the St. Anthony & Dakota Elevator Company. From a judgment for plaintiff, defendant appeals. Defendant did not convert the wheat by receiving and storing it with other grain of like kind and grade. B) her contract with Murray plaintiff required him to deliver one half of the wheat in the elevator at Erie in her name.

<p>Claim and Delivery — Evidence of Ownership.</p> <p>In a claim and delivery action, the plaintiff sought to recover certain grain_ grown by defendant upon land upon which defendant had long resided. Plaintiff based his right to recover solely upon a certain written contract, which he put in evidence. At the trial defendant^ offered testimony to show that the contract under which the plaintiff claimed had, by a mutual understanding of the parties thereto, never, gone into effect, and that the grain in question was not raised pursuant to ,the terms of such contract. This evidence was excluded. Held, that such ruling is prejudicial error.</p>

Action by the O. S. Paulson Mercantile Company against W. K. Seaver as sheriff of Traill county, for the conversion of a stock of merchandise, held by the defendant under a seizure upon warrant of attachment in an action by L. A. Shakman & Company against one O. S. Sletto. The trial resulted in a verdict for defendant. From an order granting a new trial, defendant appeals.

Action by Terence Martin against Ferdinand Luger and Peter I Alger, co-partners tinder the firm name of Luger Furniture Company. Verdict for plaintiff. From an order denying a new trial, defendants appeal.

<p>Appeal from .District' Court, Grand Forks County; Fisk, J.</p> <p>Action by Napoleon Benoit against Joseph Revoir. A judgment for plaintiff was affirmed in the District Court, and defendant appeals. : , ; !^|¶§</p>

Action by Lucius Glynn against Carrie' S. Glynn for divorce. Judgment for plaintiff. Motion to attach plaintiff for contempt in failing to pay alimony. From an order directing plaintiff to be committed until alimony was paid, he appeals.

<p>Appeal from District Court, Grand Forks County; Fisk, J.</p> <p>Action by St. Luke’s Hospital Association against Grand Forks County. From a judgment sustaining a demurrer to the complaint, plaintiff appeals.</p>

Action by T. J. Warnken and Bertha Warnken, co-partners as Warnken & Co., against Charles Chrisholm and Charles Hunter, co-partners as the Langdon Mercantile Company. Verdict for defendants. From an order refusing a new trial, plaintiffs appeal.

<p>Appeal from District Court, Grand Forks County; Fisk, J.</p> <p>Action by Arthur F. Turner against H. IT. St. John, The Security Trust Company, Lester F. Thurber, as assignee of the Security Trust Company, The Guaranty Savings Bank of Manchester, New Hampshire, the Grand Forks Investment Company, the J. W. Reedy Elevator Manufacturing Company, and others, defendants, for the foreclosure of a mechanic’s lien upon the “St. John Block” in the City of Grand Forks, N. D. Plaintiff had judgment establishing his lien for the sum of $7,858.25 and interest from January 3, 1892, as a first lien, and directing a sale of the property to satisfy the sum so found due. Plaintiff’s claim to the amount of two thousand dollars was disallowed and not included in said judgment. Plaintiff, Arthur F. Turner, appealed from that portion of the judgment disallowing two thousand dollars of his account. The defendants, Lester F. Thurber, assignee of the Security Trust Company, The Guaranty Savings Bank of Manchester, New Hampshire, and the Grand Forks Investment Company, severally perfected appeals from the judgment in favor of plaintiff. The J. W. Reedy Elevator Manufacturing Company appealed from the judgment, declaring its account for lien insufficient and void. Case tried de novo upon the evidence taken below, and judgment ordered for the plaintiff establishing his claim for lien for full amount. The rights and priorities of all parties adjusted.</p> <p>Appellants alleged payment in full. This was sufficient to justify the introduction of evidence showing that plaintiff owed office rent which he had agreed should be applied on the lien debt. Fall v. Johnson, 8 S. D. 163, 65 N. W. Rep. 909; Bush v. Sproat, 43 Ark. 416; Farmers’ Bank v. Sherman, 33 N. Y. 69. The agreements of Clifford and the Grand Forks Investment Company to protect plaintiff against the notes given for moneys advanced, amounted to collateral security and a waiver of any right to a mechanic’s lien. § 5468 Comp. Laws; Harrison v. Council Bluffs, 25 Fed. Rep. 170; S. C. 33 Fed. Rep. 132; Bissel v. Lewis, 56 la. 231, 9 N. W. Rep. 177; Hale v. Ry. Co. 13 Fed. Rep. 204; Croskey v. Carey, 48 111. 442; Kinsey v. Thomas, 28 111. 502; E. P. Allis Co. v. Madison, 9 S. D. 459; S. C. 70 N. W. Rep. 650. Plaintiff’s lien statement was insufficient in that it contained no itemized statement of, account. Red River Lumber Co. v. Congregation, etc., 7 N. D. 46, 73 N. W. Rep. 203; Rude v. Mitchell, 11 S. W. Rep. 225; Valentine v. Ranson, 10 N. W. Rep. 338. Plaintiff overstated the amount due him in his lien statement, this vitiates his lien. Gibbs v. Hanchelte, 90 Mich. 657, 51 N. W. Rep. 691; Stubbs v. Clarinda, 22 N. W. Rep. 654; Scheibner v. Cohen, 65 N. W. Rep. 760; Hannah & Lay Co. v. Mosser, 105 Mich. 18, 62 N. W. Rep. 1120; Nicolai Bros. v. Van Fridagh, 31 Pac. Rep. 288; Lynch v. Cronan, 6 Gray 531; Hoffman v. Walton, 36 Mo. 613; Kling v. Construction Co., 7 Mo. App. 410; Foster v. Schneider, 2 N. Y. Supp. 875; Reeve v. Elmendorf, 38 N. J. L.-125.</p> <p>This appellant’s lien existed and was in full force without any statement account or claim being filed with the clerk of the District Court. §§ 5469, 5476 Comp. Laws; §§ 4788, 4791, Rev. Codes; Anderson v. Seamens, 49 Ark. 475, 5 S. W. Rep. 799; Berndt v. Armkneckt, 50 111. App. 467; Nielson v. Iowa Eastern R. Co., 51 la. 184, 1 N. W. Rep. 434; Doolittle v. Plens, 16 Neb. 153, 20 N. W. Rep. 116; Hoskens v. Carter, 24 N. W. Rep. 249; Curtes v. Broadwell, 24 N. W. Rep. 265; Noell v. Temple, 12 la. 276; Kidd v. Wilson, 23 la. 464; Evans v. Tripp, 35 la. 371; Hill v. Building Co., 6 S. D. 160, 60 N. W. Rep. 752; Wisconsin Trust Co. v. Robinson & Cary, 68 Fed. Rep. 778; Kohn v. Hager, 30 Ark. 28; Bissell v. Lewis, 9 N. W. Rep. 177; Chicago, etc. v. Des Moines, 65 N. W. Rep. 1017; Lumber Co. v. Bowman, 42 N. W. Rep. 557; Lee v. Hoyt, 70 N. W. Rep. 95; Hoppes v. Baie, 75 N. W. Rep. 495; Whittier v. Blakely, 11 Pac. Rep. 305. Appellant’s lien was good as against all defendants in this case because their rights accrued before the expiration of ninety days from the completion of the building or the elevator and subsequent to the commencement of the building. § 5478 Comp. Laws; '§ 4793 Rev. Codes; Haxton Steam'Heater Co. v. Gordon, 2 N. D. 246, 50 N. W. Rep. 708. Under the statute of this state and of Iowa, from which it was taken, a failure to file the lien statement does not defeat the lien except as to purchasers and incumbrancers. Noel v. Temple, 12 la. 276; Kidd v. Wilson, 23 Ta. 464; Neilson v. Ry. Co., 51 la. 184, 1 N. W. Rep. 434; Bissell v. Leváis, 9 N. W. Rep. 177; Evans v. Tripp, 35 la. 371. As between the parties to the contract the filing of a statement for a lien not being necessary to create a lien. Peatman v. Power Co., 64 N. W. Rep. 689; Lee v. Hoyt, 70 N. W. Rep. 95; Chicago L. Co. v. Des Moines, 65 N. W. Rep. 10x7. Therefore the filing of an erroneous statement will not necessarily defeat the right of the contractor to a lien. Ewing v. Stockwell, 75 N. W. Rep. 657; Hill v. Building Co., 6 S. D. 160, 60 N. W. Rep. 752; Parker v. Randolph, 59 N. W. Rep. 722; Wisconsin Trust Co. v. Robinson & Carey, 68 Fed. Rep. 779; Sarles v. Sharlow, 5 Dak. 100, 37 N. W. Rep. 74.8. Appellant’s account and claim for lien,, while in some respects -irregular, is not fatally defective. Howe v. Smith, 6 N. D. 432, 71 N. W. Rep. 552; White Lake L. Co. v. Russell, 3 Am. St. Rep. 262, 22 Neb. 126; Laird Norton & Co. v. Hopkins, 6 S. D. 217, 60 N. W. Rep. 857; Evans v. Sanford, 65 Minn. 271; Drexel v. Richards, 70 N. W. Rep. 23; Cary v. McCarty, 50 Pac. Rép. 745. The want of jurat upon this appellant’s lien affidavit, when the claim was in fact sworn to, does not defeat its lien. The jurat may be amended. Jackman v. City, T4.3 Mass. 380, 9 N. E. Rep. 740; Hitchings v. Ellis, x Allen 175; Hunter v. La Conte, 6 Cow. 728; People v. Rensselaer, 6 Wend. .5431 McKinney v. Wilson, 133 Mass. 131; Bennett v. Paine, 7 Watts, 334; Laswell v. Presbyterian Church, 46 Mo. 279; Pottsvill v. Ctirry, 32 Pa. St. 443; Peterson v. Fowler, 43 N. W. Rep. 10; Fortenheim v. Clafin, 47 Ark. 49, 14 S. W. Rep. 462; Wiley v. Bennett, 9 Baxt. 581; Stout v. Folger, 34 la. 71; Kruse v. Wilson, 79 111. 233; Bergsch v. Keevil, 19 Mo. 127; Ainslee v. Kohn, 16 Ore. 363, 19 Pac. Rep. 97; Cook v. Jenkins, 30 la. 432; Heffernon v. Harvey, 24 S. E. Rep. 592; Fidelity Ins. Co. v. Roanoke Iron Co., 81 Fed. Rep. 440; Bickerdike v. Allen, 157 111. 95, 41 N. E. Rep. 740; Cox v. Stern, 48 N. E. Rep. 906; Williams v. Stevenson, 103 Ind. 243, 2 N. E. Rep. 728. The omission of a jurat and irregularities therein are cured by a recital in the body of the instrument to the effect, as in this case, that the affiant was sworn. Jackman v. Gloticester, 143 Mass. 380, 9 N. E. Rep. 740; Bandy v. Ry. Co., 33 Minn. 380; Poitsville v. Curry, 32 Pa. St. 442; Fortenheim v. Claftin, 14 S. W. Rep. 462; Beckerdike v. Allen, 41 N. E. Rep. 740. This appellant upon the trial filed a new and corrected affidavit and account for lien. The lien may be filed after suit brought. Whittier v. Blakely, 13 Ore. 546, 11 Pac. Rep. 305. The provisions of the Revised Codes do not repeal the lien law under which this lien was filed. The provisions of the new are so nearly indentical with those of the old enactments in relation to mechanics’ liens as to amount to a continuation thereof. Gull River Lumber Co. v. Lee, 7 N. D. 135, 73 N. W. Rep. 430; Steamship Co. v. Joliffe, 2 Wall. 450; Wright v. Oakley, 5 Mete. 406. ,An unconditional repeal of the former statute without any express reservation of rights existing or accrued thereunder would not justify a construction that such rights expired with the statute. Christman v. Carleville, 36 Mo. 610; Winter v. Dickerson, 42 Ala. 92; Weaver v. Silk, 10 Kan. 619; Warren v. Woodward, 70 N. C. 382; In re Hope Mining Co., 1 Sawyer, 710; Fed. Cases No. 668x Strembel v. Ry. Co., 12 Wis. 67; Hallaban v. Herbert, 11 Abb. Pr. N. S. 326; Chowning v. Barnett, 30 Ark. 560; Handel v. Elliott, 60 Tex. 145; State v. Moorehouse, 5 N. D. 406, 67 N. W. Rep. 140.</p> <p>The decision of the South Dakota Court, Hill v. Alliance Building Co., 6 S. D. 160, 60 N. W. Rep. 752, is clearly unsound. The Court wholly overlooked or misconstrued portions of the statute. § § 5469, 5476, 5477, 5478, 548i and 5484, Comp.' Laws. It is essential that the lien claimant make and file his statement in strict compliance with the statute, both as against persons with, and those without notice. Brooks v. Burlington & S.' Ry. Co., roí U. S. 443. Campbell v. Jacobson, 145 111. 389, 34 N. E. Rep. 39; Von Tobel v. Ostander, 42 N. E. Rep. 152. The right to the lien bring purely statutory, the statute must be substantially complied with in all respects. Osborn v. Co., 13 So. Rep. 776; Mc-Gillivary v. District, 65 N. W. Rep. 974; Alfree Mfg. Co. v. Henry, 71 N. W. Rep. 370; Lavin v. Bradley, 1 N. D. 291. Both the drawing and filing of the verified . account are indispensable. Fraine v. Hotel Co., 5 Pac. Rep. 725; Gates v. Brown, 25 Pac. Rep. 914; Collier v. Batterton, 29 S. W. Rep. 490; U. S. Sav. L. & B. Co. v. Jones, 37 Pac. Rep. 666; Greeley, etc. Co. v. Harris, 20 Pac. Rep. 764; Stetson, etc. Co. v. Hdrris, 32 Pac. Rep. 108. The necessity of a lien statement as against the ownér and persons with notice has been recognized by this Court. Howe v. Smith, 6 N. D. 432; Red River Lumber Co. v. Congregation, 7 N. D. 46. In the jurisdictions where it is held that a failure to file the lien is not fatal, it will be found that the statute gives the lien upon the performance of the work or furnishing of material without any further action by the lien claimant. Kirkwood v. Haxie, 95 Mich. 62; Lamont v. I^afevre, 55 N. W. Rep. 687. A lien statement which does not appear on its face to be verified, where the statute requires it to be verified, is no lien statement at all and extrinsic evidence is not admissible to supply the omission. Hill v. Alliance Bldg. Co., 60 N. W. Rep. 752, 6 S. D. 160; Bank v. HinahlUfe, 4'Ark. 445; Ladozu v. Groom, 1 Denio. 429; Ennor v. Thompson, 46 111. 220; Cantwell v. State, 27 Ind. 505; Harty v. Ladd, 3 Ore. 353; McDermaid v. Russell, 41 111. 489; Hallagan v. Herbert, 2 Daly 253; Conklin v. Wood, 3 E. D. Smith 663; Gates v. Brown, 25 Pac. Rep. 914; Mill Co. v. McDonald, 5 Wash. 496, 32 Pac. Rep. 108; Colman v. Goodnow, 36 Minn. 9, 29 N. W. Rep. 338; McGillivary v. District, 65 N. W. Rep. 974; Orr v. Russell, 48 N. E.' Rep. 444; Lindsay v. Huth, 74 Mich. 712; Byrd v. Cochran, 58 N. W. Rep. 127; Finane v. Hotel Imp. Co., 5 Pac. Rep. 725; Minor v. Marshall, 27 Pac. Rep. 481; Phillips Mec. Liens (2nd.) § 366. Claiming an amount in excess of .what is due vitiates the lien, particularly where the excessive claim is due to a failure to credit payments made. Gibbs v. Hanchette, 51 N. W. Rep. 691; Hannah v. Mosser, 62 N. W. Rep. 1120; Nicolai Bros. v. Van Fridagh, 31 Pac. Rep. 288; Lynch v. Cronin, 6 Gray 531; Kling v. Ry Co., 7 Mo. App. 410. The Reedy Company did not file a ‘'just and true account” of the demand due them and a failure to comply with the statute in this particular is fatal to the lien. Rude v. Mitchell, 11 S. W. Rep. 225; Mitchell P. M. Co. v. Allison, 71 Mo. App. 251. The repeal of the former mechanics lien law by the Revised Codes, pages 15x7, 1518 and before the Reedy claim for lien was perfected, deprived it of no vested right, but destroyed the remedy by lien. D unwell v. Bidwell, 8 Minn. 34; Hanes v. Wadey, 73 Mich. 178, 41 N. W. Rep. 222. The right to a particular remedy is not a vested right. Cooley Const. Lim. (5th Ed.) 443; Woodbury v. Grimes, 1 Colo. 100; Templeton v. Horne, 82. 111. 491; Watson v. Ry. Co., 47 N. Y. 157; Frost v. Ilsley, 54 Me. 345; Hall v. Bunte, 20 Ind. 304; Smith v. Bryan, 34 111. 364.</p> <p>It being conceded that plaintiff, Turner, was entitled to $51,545.25 on account of the construction of the building, the burden rests upon the defendants of establishing all payments made to him which he does not concede. Liesemer v. Burg, 63 N. W. Rep. 999> Wallace v. Axtell, 39 Pac. Rep. 594; Brown v. Morgan, 56 Mo. App. 382; Oil Mill Slip. Co. v. Wolf, 28 S. W. Rep. 167, 30 S. W. Rep. 145; Pierec v. Hozver, 42 N. E. Rep. 223; Lent v. Ry. Co., 29 N. E. Rep. 988; Sampson v. Fox, 19 So. Rep. 896; Smith v. Lewiston, 34 Atl. Rep. 153; Terryberry v. Wood, 37 Atl. Rep. 246; Grant v. Roberts, 38 S. W. Rep. 650; Bannister v. Wallace, 37 S. W. Rep. 250; 18 A. & E. Ene. Law 201-253. When an innocent mistake is made in the statement of lien, the party claiming a larger sum than is due the lien is not affected thereby. Boisot on Mec. Liens, § 425; Harmon v. Ry. Co., 22 Pac. 407, 23 Pac. Rep. 1024, 25 Pac. Rep. 124; Gordon, etc. Co. v. San Francisco, 23 Pac. Rep. 1025; Pacific M. Ins. Co. v. Fisher, 39 Pac. Rep. 758; Bank v. Curtis, 18 Conn. 342; Hopkins v. Forrester, 39 Conn. 351; Marston v. Kenyon, 44 Conn. 349; Kiel v. Carl, 51 Conn. 440; Nichols v. Culver, 51 Conn. 180; McCormack v. Philips, 4 Dak. 506, 34 'N. W. Rep. 39; Culz)er' v. Schoth, 39 N. E. Rep. 115; Albrecht v. Lumber Co.; 26 N. E. Rep. 157; Green Bay L. Co. v. Miller, 62 N. W. Rep. 742; Parker v. Bell; 7 Gray 429; Whitford v. Newell, 2 Allen 424; Underwood v. Walcott, 3 Allen, 464; Hubbard v. Brown, 8 Allen 590; Whitney v. loslin, 108 Mass. 103; McMonegal v. Wilson, 61 N. W. Rep. 495; Greenwood v. Harris, 8 Mo. App. 603; Schroeder v. Mueller, 33 Mo. App. 28; Gaskell v. Beard, 11 N. Y. Supp. 399; Goodrich v. Gillies, 31 N. Y. Supp. 76; Rowland v. Harmon, 34 Pac. Rep. 357; Chamberlain v. Hibbard, 38 Pac. Rep. 437; Risen v. Moon, 22 S. E. Rep. 165; Whittier v. Mill Co., 33 Pac. Rep. 393; Proulx v. Mill Co., 33 Pac. Rep. 1067; Peterman v. Brewing Co., 39 Pac. Rep. 452; Bolster v. Stocks,- 43 Pac. Rep. 534; Hayes v. Hammond, 44 N. E. Rep. 422; Philips on Mec. Liens 355-356. The claim that the lien was not .transcribed by the clerk under the provisions of § 5477 is fully disposed of by this Court in Red River L. Co. v. Congregation, 7 N. D. 46, 73 N. W. Rep. 203. The statement of lien embodies a sufficient statement of the items making up the plaintiff’s claim. Hilliker v. Francisco, 65 Mo. 598; Basso v. Fette, 55 Mo. App. 453; Buchanan v. Cole, 57 Mo. App. 11; Losman v. Conlon, 57 Mo. App. 25; Spears v. Lawrence, 38 Pac. Rep. 1049; Hayes v. Hammond, 44 N. E. Rep. 422; Davis v. Hines, 6 Ohio. St. 473; Heston v. Martin, 11 Cal. 41; Leeds v. Linn, 44 N. W. Rep. 309; King v. Smith, 44 N. W. Rep. 65; Brunns v. Braim, 35 Mo. App. 337; Grace v. Nesbit, 18 S. W. Rep. 1118; Phillips on Mec. Liens, § 352; Boisot Mec. Liens, § 411. There is authority for the proposition that where the claimant makes a contract to do the work for a certain price and in the course of the work extra work is done no itemized statement of the extras is necessary even under a statute requiring an itemized statement. Hayes v. Hammond, 44 N. E. Rep. 424; Bruns v. Braim, 35 Mo. App. 337. The statute does not require that payments on the account be itemized. All that is required is that the account shall state the true amount due after allowing all credits. Where the statute does not require an itemized account, the items of debit and credit need not be set forth. Phillips Mec. Liens, § 353; Wood v. King, 2X S. W. Rep. 471; Heston v. Martin, n Cal. 41; Brennan v. Swasey, 16 Cal. 140; Selden v. Meeks, 17 Cal. 128; Jewell v. McKay, 23 Pac. Rep. 139; Nichols v. Culver, 51 Conn. 177; France v. Woolston, 4 I-Ioust. 561; Simonds v. Buford, 18 Ind. 176; Neeley v. Searight, 15 N. E. Rep. 598; Recker v. Joy, 72 Me. 106; Patrick v. Smith, 120 Mass. 510; Atkins v. Little, 17 Minn. 358; Lenkey v. Wells, 16 Nev. 271; Whittier v. Blakely, 11 Pac. Rep. 305; Ainslee v. Kohn, 19 Pac. Rep. 97; Curtiss v. Sestanovich, 37 Pac. Rep. 67.</p>

Action by Orcelia Crandell and Barbara Knox against John R. Barker for the foreclosure of a mortgage of real éstate, the ownership of which plaintiffs claim under the will of their father Charles Toles, and which said will was made, and probated in the State of Pennsylvania. The facts appear in- the opinion. Plaintiffs had judgment and defendant appeals.

<p>Will of Personal Property Construed by Laws of Testator’s Domicile.</p> <p>The provisions of a will relating to personal property situate in this state must be construed according to the law of the domicile of the 'testator at the time of his death.</p> <p>Rule in Shelley’s Case.</p> <p>A citizen of Pennsylvania, by his will, which was duly probated in that state, declared: Item 6th. Another mortgage which I hold against John R. Barker and Maria J. Barker, of one thousand three hundred and forty-five ($1,345.00) dollars, dated March 1st. 1887, covering certain lands in Grand Forks county, I give, devise, and bequeath the use and interest thereof to my daughters Orcelia Crandell and Barbara Knox, for and during the terms of their natural lives; and at their deaths I give and bequeath the said mortgage to the heirs of my said daughters Orcelia Crandell and Barbara Knox, share and share alike.” Held that, under the laws of Pennsylvania, Orcelia Crandell and Barbara Knex, after the decease of the testator, became the absolute owners of said mortgage.</p>

<p>Exemptions — Head of Family.</p> <p>Under section 3625, Rev. Codes, an unmarried man wlio has residing with him, and under his care and maintenance, a married adult brother, who is unable to take care of or support himself, is the head of the family.</p> <p>Schedule Need Not Disclose Claimant to Be Head of Family.</p> <p>In the verified schedule of property which the law requires an exemption claimant to deliver to the officer who. has levied upon his property, it is not necessary for the claimant to state that he is the head of a family.</p>

<p>Statutes Construed — Constitution.</p> <p>Section 118 of the state constitution, and sections 411, 442, 5176, and 7755 of the Revised Codes, construed. ”</p> <p>Special Terms of District Court.</p> <p>Held, that the District Courts of this state are authorized, under the constitution and laws of the state, to call special terms of the District Court, and to require the attendance of jurors at such terms, as at other terms.</p> <p>Criminal Cases May Be Tried at Special Term.</p> <p>Held, further, that at such special or additional terms of court the District Court may lawfully try issues of fact in criminal actions.</p> <p>“ Regular Term ” — Construction.</p> <p>The words “at a regular term of the court,” contained hi section 7755, Rev. Codes, construed to mean a term at which jurors are regularly drawn and summoned, whether such terms are regular or special, with respect to. the manner of calling the same.</p> <p>Note. — In entitling the papers in habeas corpus proceedings, the state should be named as a party. Carruth v. Taylor, 8 N. D. 166, 77 N. W. Rep. 617.</p>

Action by George W. Foster against William Furlong and Anna M. Furlong. Judgment for plaintiff. Defendants appeal. The promise of defendants to pay amount due at the time to which payment was extended, with interest on accrued interest, was _ sufficient consideration for plaintiff’s promise to extend the time of payment. § 3871 Rev. Codes; Bish. Conts. § 76; Blind v. Goldslip, 26 Am. Dec. 108; Whitfield v. McLeod, 1 Am. Dec. 1; Goldspeed v. Puller, 71 Am. Dec. 572.

Information against Simon Klectzen for peddling without a license. From a judgment sustaining a demurrer to the information, the state appeals. The police power of the state can only be exercised by legislative enactment. It ■ rests solely in legislative discretion to determine when'the public welfare or safety requires its exercise.

Joseph Koerner was convicted of larceny, and appeals. Drunkenness is admissable in evidence on the question of intent, where the intent is an element in the offense without which the offense could not be committed. Peo. v. Blake, 4 Pac. Rep. 1; State v. Bell, 29 la. 316; Scott v. State, 12 Tex. App. 31; Wens v. State, 1 Tex.

<p>Appeal Statute Construed.</p> <p>Section S21S, Comp. Laws, and section 3606, Rev. Codes, construed.</p> <p>Notice of Appeal Must Be Served and Filed.</p> <p>Held, that, to take an appeal to - this Court from an order or judgment of the District Court, in addition to serving a notice, it is essential that the notice should 'be filed with the clerk of the District Court within the time limited for taking an appeal.</p> <p>Purpose of Filing Notice of Appeal.</p> <p>Held, further, that the following language, “the appeal shall be deemed taken by the serving of the notice,” must be construed to refer to- both the filing and service, inasmuch as the filing constitutes á service of notice of the appeal upon the clerk.</p> <p>Omission to File Notice Fatal to Appeal.</p> <p>Accordingly, held, where a notice of appeal from an order was served upon the party within the statutory time for such service, but such notice was not filed with the clerk of the District Court until after the expiration of the statutory period, that such omission was fatal to the appeal.</p>

C. N. Hogan being in the custody of J. G. McKecknie, sheriff of Foster county, upon a commitment issued after a preliminary ■ examination by a committing magistrate of said county, petitioned for a writ of habeas corpus, alleging- that he is illegally restrained. .The defendant demurred to the petition. The allegations of the petition appear in the Court’s opinion.

Action by Aase Boyum against Ole A. Johnson and others for the conversion of certain grain to which plaintiff claimed title under a farm contract. Judgment for defendants, and plaintiff appeals. Plaintiff was the absolute owner of the crops on the land in question, subject to Dahlen’s right of possession under the terms of the contract. Angelí v. Egger, 6 N. D. 391. Dahlen failed to pay the taxes for 1894 and 1895, and expressed a determination to abandon the contract.

<p>Pleading — Damages for Wrongful Detention of Personalty.</p> <p>In an action to recover a gross sum for value of the use of a hack and team wrongfully detained by the' defendant,, and for a fixed period, it is not necessary to plead' specially unusual conditions, which make the value of the use greater upon some days than others, to render evidence of such greater value admissible, when the conditions are equally within the knowledge of both parties.</p> <p>Evidence of the Value of Use of Property.</p> <p>Evidence as to the value of the use of personal property upon particular occasions which create an unusual demand for that kind of property is not subject to' the objection that it is speculative, when the evidence is based upon known conditions of demand and value existing at the time.</p>

Action by Burgett Kinneberg against Ole Kinneberg. Judgment for plaintiff, and both parties appeal. Plaintiff’s objection to defendant’s -offer of proof was properly sustained. Best on Evidence, § 506. “Where a tender of evidence is made to prove certain facts, some of which are admissible and others inadmissible the offet is properly rejected.

<p>Warehouse Receipts — Conversion of Wheat.</p> <p>Action for the conversion of wheat. Plaintiff had a chattel mortgage upon a crop of .wheat. The mortgagor, after threshing the wheat, placed the same in elevators, and received the usual storage tickets therefor. Subsequently the mortgagor delivered the' tickets to the defendant as collateral to a seed lien held by defendant against the mortgagor. Defendant did not have anything to do with placing the graih in the elevators, and never had the actual possession of the wheat. Prior to commencing the action, plaintiff demanded of defendant the wheat, or its proceeds, and the demand was not . complied with. Upon such facts the tidal court instructed the jury to the effect' that the defendant, by virtue of the _ storage tickets held by him, had ■ constructive possession of the grain, and that his refusal to comply with the demand operated as a conversion of the ■wheat, and, consequently, that an action would lie for such conversion. Held, that the instruction was error. The tickets did not entitle the defendant to demand or receive possession of any particular wheat, much .less of the identical wheat upon which the. plaintiff had a lien. See Best v. Muir, 8 N. D. 44, 77 N. W. Rep. 95.</p> <p>Statement of the Case Should be Filed Before Making Motion for New T rial — W aiver.</p> <p>Plaintiff had a verdict. Defendant served notice of intention to riiove for a new trial, embracing a notice that the motion would be made upon a 'Statement of the case to be thereafter settled and allowed. A statement was thereafter settled and allowed. Subsequently, and pursuant to a stipulation between counsel, said motion was argued in the District Court, and no objection was ever made in that court that the statement had not been filed with the clerk at or prior to hearing the motion. Held, that correct practice requires that a statement of the case upon which a motion for a new trial is based should be filed with the clerk a't or before the hearing of such motion, but that its nonfiling is a mere irregularity, whiah, in this case, was waived by counsel for the plaintiff.</p> <p>Irregularities Cannot Be First Raised on Appeal.</p> <p>Held, further, that the objection cannot be raised for the first time in t'his Court. The nonfiling, under the circumstances, was not jurisdictional to the hearing of the motion, nor to the order made thereon.</p>

Action by Joseph Baumer against Jesse R. French. Verdict for plaintiff. From an order granting a new trial, he appeals. The courf can vacate a verdict and grant a new trial on its own motion only where the error of the jury is so gross as to be at once apparent, and the court should exercise its power as soon as the verdict is rendered. Hayne New Trials, § io; Gould v. D. & D. Elev. Co., 2 N. D. 216; Clement v. Barnes, 6 S. D. 483, 61 N. W. Rep. 1126.

<p>Appeal from District Court, Richland County; Lauder, J.</p> <p>Action by Leonard J. Flauberg and Henning L. Hanberg against the National Bank of Wahpeton. From an order dismissing the complaint, plaintiffs appeal.</p>

Action by Ernest Mares against Harry Wormington and others. Judgment for plaintiff, and defendant Ernest C. Eddie appeals. The court had no authority under § 5297, Rev. Codes, to allow an amendment setting up a new cause of action, to correspond with the proofs. Such is the holding under similar statutes. St. Louis, etc. Ry.

Action by John McTavish against the Great Northern Railway Company. Judgment for .plaintiff.' Defendant appeals. The prima-facie presumption of negligence from the setting out of the fire by defendant’s engine raised by § 2984, Rev. Codes, is a disputable one and was rebutted by the facts admitted in the stipulation. Volkman v. Chicago, St. P. M. & 0. Ry. Co., 37 N. W. Rep. 73T S Dale. 69; Dailey v. C. M. & St. P. Ry. Co., 43 Minn. 319; Menominee, etc. Co. v. Ry.

<p>Appeal from District Court, Pierce County; Morgan, J.</p> <p>Action by Ira L. Young against the Great Northern Railway Company. Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from District Court, Grand Forks County; Fisk, J.</p> <p>Action by John P. Bray against Lewis E. Booker and Katie E. Booker, to established and enforce a vendor’s lien for $8,000 and interest, pursuant to section 4830, Rev. Codes. The trial court awarded plaintiff a lien for $3,000, with interest, but held that because plaintiff had taken collateral security for $5,000 of the purchase price of the property he lost his lien to that extent. The plaintiff, Alse J. Gronna, intervener, and the defendants severally appeal.</p> <p>The bank stock'was put up to secure payment of Booker’s note to the indorsee, the Merchants’ National Bank, and not to Bray. This dops not forfeit the right of lien. Wilson v. Lyons, 51 111. 166; Carey v. Boyle, 11 N. W. Rep. 47; Barrett v. Lewis, 5 N. E. Rep. 910. When the payee of a note transfers it and remains liable thereon as indorser or guarantor, if he subsequently redeems the note the lien revives. Jones on Liens, § § 1092-1096;* Perkins v. Gibson, 24 Am. Rep. 644; Green v. De Moss, 10 Hump. 371; Kelley v.Payne, 18 Ala. 371; Rogers v. James, 33 Ark. 77; Turner v. Homer> 29 Ark. 440; Bancroft v. Crosby, 74 Cal. 583, 16 Pac. Rep. 504. The lien given by Sec. 4830, Rev. Codes, should be in no way restricted by construction. '§ 5138, Rev. Codes. The lower court properly established a lien for $3,000, that portion of the price unpaid and unsecured. McCauley v. Hols, 62 Ind. 205. Plaintiff did not lose his right to vendor’s lien because of accepting the substituted obligation of Booker to pay his obligations to the Grand Forks National Bank, and the Security Trust Company. Turpie v. Lowe, 15 N. E. Rep. 834; Elliot v. Plattor, 43 Ohio St. 198; Ry. Co. v. Lewton, 20 Ohio St. 401; DeForest v. Holum, 38 Wis. 5x6; McDale v. Purdy, 23 la. 277; Merrill v. Allen, 38 Mich. 487; Mills v. Bliss, 55 N. Y. 139; 2 Warville on Vendors, 706; Rice v. Sanders, 152 Mass. 108, 24 N. E. Rep. 1079; Williams v. Crow, 84 Mo. 298. Bray could maintain an action upon Booker’s promise to make these payments, and could enforce the lien as security therefor. Steene v. Aylesford, 18 Conn. 244; Piggot v. Thompson, 3 B. & P. 149 n.; Furnas v. Durgan, 119 Mass. 500; Locke v. Homer, 131 Mass. 93; Farnsworth v. Boardman, 131 Mass. 115; Wicker v. Hoppock, 6 Wall 94; Valentine v. Wheeler, X22 Mass. 566; Muhlig v. Fiske, 131 Mass. 110; Gaffney v. Hicks, X31 Mass. 124; Reed v. Paul, 131 Mass. 129; Coffin v. Adams, 131 Mass. 133; Williams V. Fozvle, 132 Mass. 385; Pierce v. Plumb, 74 111. 326; Mills v. Allen, 133 U. S. 423; Anoka Lumber Co. v. Fidelity C. Co., 63 Minn. 286, 65 N. W. Rep. 353; Churchill v. Hunt, 3 Denio. 321; Stotit v. Foulger, 34 la. 71, 11 Am. Rep. 138; Kohler v. Metlage, 72 N. Y. 259; Connar v. Reaves, 103 N. Y. 527. The bank and its receiver have by suing Bray repudiated Booker’s promise to pay his debt. No action would lie in favor of the bank against Booker for this debt until an acceptance of the agreement, which would amount to a consent by the bank and its receiver that Bray, the original promisee be discharged from his original obligation. Woods v. Moriarity, 9 Atl. Rep. 427; Warren v. Batchelder, 16 N. H. 580; Bohanan v. Pope, 42 Me. 93. Some word or act is essential to show an acceptance or adoption by the creditor of the substituted promise. Dimick y. Register, 9 So. Rep. 79; Wheat v. Rice, 97 N. Y. 296; Dunning v. Leavitt, 85 N. Y. 35; Crowe v. Lewin, 95 N. Y. 423; Turk v. Sidge, 41 N. Y. 206; Moore v. Ryder, 65 N. Y. 438; 'Crowell v. Currier, 27 N. J. Ecp 152; Trimble v. Strother, 25 O. St. 378; § 3840, Rev. Codes. But the contract was not made expressly for the benefit of the bank or the trust company" and therefore they could not maintain an action thereon against Booker. § 3840, Rev. Codes; Pardee v. Treat, 82 N. Y. 385; Beveridge v. Ry. Co., 112 N. Y. 26. This agreement was made for plaintiff’s benefit and it is not sufficient that it might incidentally benefit the third parties named. Parlin v. Hall, 2 N. D. 473; Am. Exc. Nat. Bk. v. Ry. Co., 76 Fed. Rep. 130; Austin v. Seligman, 18 Fed. Rep. 519; Crandell v. Payne, 39 N. E. Rep. 601; Constable y.Nat. Steamship Co., 154 U. S. 51; Savings Bank v. Thornton, 44 Pac. Rep. 466; Wright v. Terry, 2 So. Rep. 6; Say ward v. Dexter, Horton & Co., 72 Fed. Rep. 758; Chung Kee v. Davidson, 15 Pac. Rep. 100. The burden is upon defendants to prove waiver, if in doubt the court should sustain the lien. Cramp ton v. Prince, 3 So. Rep. 519; Manley v. Slason, 21 Vt. 271, 52 Am. Dec. 60; Wilson v. Lyon, 51 111. 166; Story Eq. Jr. § 1224; Maroney v. Boyle, 141 N. Y. 462, 36 N. E. Rep. 511. No consideration moved from Mrs. Booker to the plaintiff, she was not a bona fide purchaser for value, but a mere volunteer, and plaintiff can enforce his lien against the property. Pylant v. Reeves, 25 Am. Rep.605, 53 Ala. 132; Crampton v. Prince, 3 So. Rep. 519, 3 Am. St. Rep. 718; Davis v. Smith, 7 So. Rep. 159; Davenport v. Murray, 68 Mo. 198; Pratt v. Eaton, 65 Mo. 157; Hunt v. Marsh, 80 Mo. 396; Williams v. Crow, 84 Mo. 298. ’ The fact that Bray deeded to Mrs. Booker, at the request of her husband, with whom the contract was made, does not alter the situation. Jones on Liens, § 1084; Taylor v. Allozvay, 3 Litt (Ky.) 216; Davis v. Pearson, 44 Miss. 508; Humphrey v. Thorne, 63 Ind. 296; Baker v. Gilbert, 93 Ind. 70; Burgers v. Fairbanks, 23 Pac. Rep. 292.</p> <p>Bray discounted the $5,400 note to the Merchants’ National Bank. He transferred the note absolutely and not by way of pledge, and thereby destroyed his lien to this extent. § 4831, Rev. Codes; Moshier v. Meek, 80 111. 79; Elder v. Jones, 85 111. 384. A vendor’s lien has never been placed upon any substantial basis of principle. 2 Jones on Liens, § 1063; 28 Am. & Eng. Ene. L. 159; Frame v. S-liter, 45 Pac. Rep. 290. A vendor’s lien cannot be assigned. 2 Jones on Liens, § 1092. The taking of additional security waives the lien. 2 Jones on Liens, § 1086. It is such an insubstantial and shadowy equity that the lien of a subsequent creditor will prevail against it. Bayley v. Greenleaf, 7 Wheat. 46; Meckreth v. Symmons, x Lead. Cases in Eq. 373; Bray v. Booker, 6 N. D. 526. The lien 5s opposed to the general policy of our registration statutes. Pomeroy Eq. § 1250 and n.; 2 Jones on Liens, 1063; Frame v. Slite'r, 45 Pac. Rep. 290; Hammond v. Peyton, 27 N. W. Rep. 72.. It would seem therefore that one who asserts a vendor’s lien is not entitled to any special favor from the courts. Kauffelt v. Bozver, 7 Serg. & Rawle, 64. Real and personal property were sold together for a lump sum. No price was agreed upon for the real estate, hence it cannot be determined for what sum a lien can be allowed. 2 Jones on Liens, § 1072; String fellow vr Joe, 73 Ala. 207; McCandlish v. Keen, 13 Grat. 615; Peters v. Tunell, 43 Minn. 473'; Griffin v. Byrd, 19 So. Rep. 717; Wilkinson v. Palmer, 83 Ala. 367; 28 Am. & Eng. Ene. L. 166. Plaintiff took in place of $3,000 cash Booker’s promise to pay the debts of Bray owing to the Security Trust Company and the Grand Forks National Bank. A vendor’s lien cannot be sustained as security for this substituted obligation. 2 Jones on Liens, § 1074; 3 Pom. Eq. Jr. 1252; Mc-Killip v. McKillip, 8 Barb. 552; 2 Devlin on Deeds, § 1256; 1 Lead. Cas. in Eq. 355; Paterson v. Edzvards, 29 Miss. 71; Chapman v. Beardsley, 31 Conn. 115. When as part of the transaction Booker agreed to pay the notes held by these corporations against Bray, he became liable therefor under the rule that a third person may sue upon such a promise as being made for his benefit. Wager v. Link, 150 N. Y. 549; Alvord v. Spring Valley, 40 Pac. Rep. 27; Williams v. Zaftser, 37 Pac. Rep. 4x1; Keller v. Ashford, 133 U. S. 622; Moore v. Booker, 4 N. D. 543; Dean v. Walker, 107 111. 540; Pugh v. Barnes, 19 So. Rep. 370; Redelsheimer v. Miller, 107 Ind. 485. In California under a statute similar to § 3840, Rev. Codes, it is held that the assumption by a person of a debt owing to a third party renders the promisor liable to such third party for the debt. Williams v. Zaftser, 37 Pac. Rep. 411; Alvord v. Spring Valley, 40 Pac. Rep. 27. A lien cannot be established as security for damages resulting from a breach of a covenant made by the vendee. Whitely v. Central Trust Co., y6 Fed. Rep. 74; Peters v. Tunell, 43 Minn. 473; Harris v. Haine, 37 Ark. 348; Arlin v. Brown, 44 N. PI. 102; Chapman v. Beardsley, 31 Conn. 115; Patterson v. Edzvards, 29 Miss. 71. And where the vendor accepts as part of the purchase price the promise of the vendee to pay to third persons debts owing them by the vendor, no lien exists. Patterson v. Edzvards, 29 Miss. 71; Chapman v. Beardsley, 31 Conn. 115; Harvey v. Kelly, 93 Am. Dec. 267; 28 Am. & Eng. Ene. L. 165. Any conduct which evinces a purpose not to look to the land for payment is sufficient evidence of waiver. Orrick v. Durham, 79 Mo. 174; 2 Jones on Liens, § 1073; 2 Warville on Vendors, 713; Moshier v. Meek, 80 111. 79. Taking collateral for a portion of the purchase price is fatal to a claim of a vendor’s lien, not only for the portion secured but also for the remainder, x Lead. Cas. in Eq. 356; 2 Jones on Liens, § 1087; Bond, Y. Kent, 2 Vern. 281; Orrick v. Durham, 79 Mo. 174; Briscoe v. Callaghan, 77 Mo. 134; Calaiborne v. Castle, 32 Pac. Rep. 807. Mrs. Booker was a bona fide purchaser and took the land free of any lien. Wert v. Naylor, 93 Ind. 431; Adams v. Vanderbeck, 47 N. E. Rep. 24; Butterfield v. Pitcher, 36 N. J. Eq. 482; Bunn v. Sclmellbacher, 45 N. E. Rep. 227; Adams v. Vanderbeck, 45 N. E. Rep. 645; State Bank v. Frame, 20 S. W. Rep. 620; Heath v. Selverthorn, 39 Wis. 146; Mayer v. Heidebach, 123 N. Y. 332. The real party in interest is the Merchants’ National Bank and not Mr. Bray in whose name the action is being prosecuted. Elder v. Jones, 85 111. 384, 387.</p>

Action by George H. Marshall against A. C. Andrews and J. E. Gage, co-partners as Andrews & Gage. Judgment- for plaintiff, and defendants appeal. The action is in replevin, the fact that claim and delivery proceedings were not instituted in the case does not transmute the action from a replevin action into an action for conversion. Benjamin v. Smith, 44 N. W. Rep. 1083. The judgment is for money damages and not in the alternative as required by statute. § 5484, Rev. Codes.

<p>Wife as Surety for Husband — Mortgage Covenant.</p> <p>Where F. executed certain promissory notes and a mortgage upon certain real estate belonging to himself to secure the same, and, at his request, his wife also executed the mortgage, and the mortgage contained an express covenant that the mortgagors would pay the debt thereby secured in accordance wit'h the terms of said notes, but the wife did not sign the notes, and the mortgagee knew that the debt siecured was the debt of F., the obligation assumed by the wife in the covenant contained in the mortgage was, to the knowledge of the mortgagee, that of surety for F.</p> <p>Receiver Chargeable with Knowledge of Bank.</p> <p>Where a receiver is placed in charge of the assets of a national bank, he stands, as to such assets, in the place of the bank, and is chargeable with knowledge of all facts known to the bank affecting the character of such assets.</p> <p>Extension of Time by Receiver.</p> <p>Such receiver has authority, uipon sufficient consideration, to extend the time of payment of a debt owing such bank, where by so doing lie can, in his judgment, strengthen the security he holds for the payment of such debt</p> <p>Extension of Mortgage.</p> <p>Section 4699, Rev. Codes, provides, among other things, that a mortgage can be “extended” only by an instrument in .writing formally executed, but such provision has no reference to an extension of time • for the payment of the debt secured by this mortgage. A mortgage is extended when it is made to stand for some debt or obligation not originally included therein.</p>

Action by Henrick Ferdinand Eddie and Axel Eddie against Nickolai Eddie and others. Judgment for plaintiffs. Defendants appeal. The plaintiffs are the illegitimate children of decedent, born in the Kingdom of Norway, where they still reside, all acts of recognition by which it is claimed they became legitimated took place in Norway. In the absence of proof it will be presumed that the common law prevails there. Starr v. Peck, i Hill, 270; Throop v. Hutch, 3 Abb.

<p>Appeal from District Court, Cass County; Pollock, J.</p> <p>Action by the Commercial Bank against the Red River Valley National Bank of Fargo. Judgment for defendant, and plaintiff appeals.</p> <p>Plaintiff has such an interest in the matter in controversy as to enable it to maintain the action. It was liable to E. P. Reed & Co. for damages sustained by them for the non-collection of the notes. The transaction between plaintiff and Reed & Co. was a New York contract and governed by the laws of that state. Reed & Co. can sue and recover from plaintiff under the laws of New York. Allen v. Merchants’ Bank, 22 Wend. 215; 34 Am. Dec. 289 and n.; Montgomery Bank v. Albany Bank, 7 N. Y. 459; Ayrauli v. Pac. Bk., 47 N. Y. 570; Commercial Bank v. Union Bank, 11 N. Y. 203; Exchange Nat. Bank v. Third Nat. Bk., 112 U. S. 276. This is the law of North Dakota. § 4133, Rev. Codes. And of other states. Sthreissguth v. Bank, 44 N. W. Rep. 797; American Express Company v. Haire, 21 Ind. 4; Titus v. Bank, 35 N. J. L. 588; Reeves v. Bank, 8 Ohio St. 465; Simpson v. Waldly, 63 Mich. 439, 30 N. W. Rep. 199; Van Wart v. Wooley, 3 Barn. & Cres. 439. It was defendant’s duty to exercise reasonable care and diligence in the performance of its assumed duties. First Nat. Bank v. Fourth Nat. Bank, 77 N. Y. 320. To give plaintiff’s business preference to its own. § 4111, Rev. Codes. And to keep plaintiff informed of its acts. § 4131, Rev. Codes. It failed to discharge any of these duties and is liable in damages therefor. Mound City Co. v. Bank, g Pac. Rep. 709. The instructions of plaintiff could not be varied, modified or superceded by any local usage. The Reeside, 2 Sum. 567, 20 Fed. Cas. 458; Insurance Co. v. Wright, 1 Wall. 470; De Witt v. Berry, 134 U. S. 312; 1 Greenl. Ev. 292; § 3896, 3897, Rev. Codes. The measure of damages is prima facie the amount of the notes and interest . The burden is on defendant to mitigate damages. Miranda v. Bank, 26 Am. Dec. 493; Durnford v. Patterson, 12 Am. Dec. 514; Washington v. Triplett, 1 Pet. 25; Mechem on Ag-ency, § 518; Sedgwick Dam. 340; Story, Agency, 219; Daniel's Neg. Inst. § 329; Borup v. Nininger, 5 Minn. 523; Suth. Dam. 18; Allen v. Suydam, 20 Wend. 330; Mound City Co. v. Bank, 9 Pac. Rep. 709.</p> <p>The burden is upon plaintiff to show both negligence and that it was damaged by it. Nat. Bk. v. Bank, 91 U. S. 92; Pabens v. Bank, 23 Pick. 330; Warren Bank v. Suffolk, 10 Cush. 582; Sahlien v. Bank, 90 Tenn. 221, 16 S. W. Rep. 373; Bruce v. Baxter, 7 Lee. 477. Defendant had a right to prefer its own claim in taking security. Freeman v. Bank, 78 la. 150; U. S. Nat. Bank v. Westerfelt, 75 N. W. Rep. 857. The debtor was insolvent and no damages are proven. Sahlien v. Bank, 16 S. W. Rep. 373; Exchange Nat. Bk. v. Bank, 112 U. S. 276.</p>

<p>Statutes — Title of Act — Constitutional Law.</p> <p>Chapter 25, Laws' 1895, is entitled “An act to increase the revenues of the state by changing and increasing the boundaries of the counties of Billings, Stark and Mercer.” The body of the act simply increases the boundaries of such counties. Held, that the act is unconstitutional, because the subjeot of the act is not expressed in the title, as required by section 61 of the constitution of this state.</p>

Election contest between Joseph Miller and A. V. Schallern. Judgment for plaintiff, and defendant appeals. The ballots not marked with the initials of the inspector or one of the judges of .the election were illegally counted. § 524, Rev. Codes. This statute is mandatory. McCrary on Elections, § 190-191; Slaymaker v. Phillips, 42 Pac. Rep. 1049.

<p>Election — Validity of Ballots.</p> <p>In this case precisely the same question is raised by the record which was involved and -decided by this Court in the case of Miller v. Schallern (decided at this term), 8 N. D. . — -, 79 N. ,W. Relp. 865. The decision in this case will be governed by the rule laid down in Miller v. Schallern.</p>

<p>Complaint Charging False Imprisonment and Malicious Prosecution— Motion for Verdict.</p> <p>Where a complaint in an'action states, in a single count, facts that constitute a cause of action for false imprisonment and also for malicious prosecution, and where plaintiff, at the close of the testimony, moved for a directed verdict in his favor upon stated grounds, and which motion should have 'been sustained if the action was false imprisonment, but should have been denied if the action was malicious prosecution, and where, immediately upon the denial of such motion, plaintiff requested an instruction to the jury, which was given, and which limited any recovery in the case to- damages for malicious prosecution, held, that plaintiff could not urge in this Court, as ground of reversal, that the trial court erred in denying the motion for verdict.</p> <p>Improper Cross Examination.</p> <p>For the error of the trial court in permitting an improper cross-examination, as set forth in opinion-, the case is reversed.</p> <p>Affidavit of Arrest Insufficient if Made on Information and Belief.</p> <p>An affidavit which is used.as the basis for a warrant of arrest in insolvency proceedings, and in which the probative .facts 'by which it is sought to-establish the existence of -the unl-tiimate facts j required by the statute are alleged upon information and belief, but no’grounds for such information and belief are stated, is insufficient to give the court jurisdiction to issue a warrant of arrest in that particular case.</p>

Suit by Edwin H. McHenry and Frank G. Bigelow, receivers .of the Northern Pacific Railroad Company, against the County of Kidder and the State of North Dakota. Judgment for plaintiffs, and defendants appeal.

Action by A. E. Clendening against M. E. Hawk. Judgment for defendant, and plaintiff appeals. The Court erred in directing a verdict for defendant. It is only where there is no legal evidence which if believed will establish a fact material to the plaintiff’s case that the Court can direct a verdict. Carver v. Plank Road Co., 61 Mich. 584. Where evidence is conflicting, or the credibility of witnesses is questioned the case is for the jury.

<p>Appeal from District Court, Ransom County; Lauder, J.</p> <p>Action by Martin Peterson Gjerstadengen, Peter Peterson Sandvig, and Charles O. Peterson against "'Afilliam J. Hartzell for the partition of a quarter section of land in Ransom county, or for a sale of the property and division of the proceeds. The plaintiff' moved to strike out certain portions of the defendant’s answer as sham. Motion granted, and defendant appealed from the order striking out portions of his answer.</p> <p>The action of Gjerstadengen against Van Duzen & Co. was pending until its final determination on appeal on the second day of June, 1898. Sec. 5739, Rev. Codes; Alrich v. Case, 73 N. W. Rep. 161; Martin v. Gilmore, 72 111. 200; Hills v. Sherwood, 33 Cal. 478; Brown v. Evans, 18 Fed. Rep. 59. No lis pendens was filed. Defendant had no constructive notice of the pendency of the action against Van Duzen & Co. § 525L Rev- Codes; Heard v. Fordyce, 17 Cal. 152; Mills v. Bliss, 55 N. Y. 141; Richardson v. White, 18 Cal. 103; Jewell v. Land Co., 64 Minn. 540; Conkey v. Dyke, 17 Minn. 457. Defendant had no actual notice of th’e pend-ency of the action or of the decree, and is not bound thereby. The decree in the Van Duzén & Co. case was not recorded in the register of deeds office, prior to the conveyance to defendant, as it should have been to convey constructive notice. § § 3563, 3594~3595> ®-evCodes; Story’s Eq. Jur., § 404; Farmers’ L. & T. Co. v. Maltby, 8 Paige, 361; 'Mesick v. Sunderland, 6 Cal. 316; Rower v. Bingham, 17 Ind. 542. The amount paid by defendant as taxes against the common property, as well as for improvements should be considered in the partition, and the averments in the answer covering them should not have been stricken out. Ch. x, § 93, Laws 1897; 11 Am. & Eng. Ene. L. 1109; Oliver v. Montgomery, 39 la. 601; Kite v. Church, 142 Mass. 586; Dean v. O’Mera, 47 '111. 120; Kurts v. Hibner, 55 111. 514; Robinson v. McDonald, 11 Tex. 390; Sarbach v. Newell, 30 Kan. 102; Allen v. Hall,' 50 Me. 265; Titsworih v. Stout, 49 111. 78; Alleman v. Hawley, 117 Ind. 532; Note "c”,to Ward v. Ward, 29 L. R. A. 482; Oliver v. Montgomery, "42 la. 36; Green v. Putnam, 1 Barb. 507. Paragraph nine of the answer alleging ownership and possession in defendant was improperly stricken out. § 5802, Rev. Codes; Bonham v. Weymouth, 39 Minn. 92; Bollo v. Navarro, 33 Cal. 467; Freeman on Cotenancy (2d Ed.) § 502-503; 17 Am. & Eng. Ene. L. 712.</p> <p>Lis pendens terminates upon the entry of judgment. Scudder v. Sargent, ij N. W. Rep. 369; Parker v. Courtney, 44 N. W. Rep. 863; Monell v. Lawrence, 12 Johns. 334; Grattan v. Wiggins, 23 Cal. 16, 38; Sheridan v. Andrezvs, 49 N. Y. 478; Black on Judgments, § 552. In consequence of this rule a purchaser was held not to be affected by a reversal- on appeal. To correct this injustice the legislature adopted the rule of Sec. 5739, Rev. Codes. This statute, however does not suspend the operation of the judgment for all purposes pending appeal.' § § 5610-5616, and § 5412, Rev. Codes. The doctrine of lis pendens is based on necessity. Bellamy v. Sabine, i- De Gex & Jones, 566; Houston v. Timmerman, 4 L. R. A. 716. Under the old system'the effect of lis pendens terminated with the eiitry of the decree. Purchasers after entry of decree were not lis pendens purchasers but were bound by the decree by the doctrine of estoppel. Page v. Waring, 76 N. Y. 463; Sheridan v. Andrezvs, 49 N. Y. 478. The grantee o-f the person against whom the decree affecting property was rendered is a privy in estate with his grantor. Stranger v. Johnson, no Pa. 21; Tell v. Bennett, 110 Pa. 181; Goddard V. Benson, 15 Abb. Pr. 191; Herman on Estoppel, § 139-143-144, and a privy in estate cannot acquire by his purchase greater rights than his grantor had to sell. Herman on Estoppel, § 143-144; Cushing v. Edwards, 25 N. W. Rep. 940; Morrill v. Morrill, xi L. R. A. 155 and n.; Howard v. Huron, 5.S. D. 539; Eakin v. McCraith, 3 Pac. Rep. 838. The statute modifies the old rule so that a purchaser pendente lite is not bound by the decree subsequently rendered in the action unless he has notice actual or .constructive of the pendency of the action. Sheridan v. Andrews, 49 N. Y. 478. A judgment is not a conveyance within .the meaning of the recording act. § 3594 and 3595, Rev. Codes; Hoag v. Howard, 55 Cal. 564. Those parts of defendant’s answer in which he sets forth by way of counterclaim matters which had been or could have been litigated in the Van Duzen case, -were properly stricken out.' The Van Duzen judgment estops, not only, as to the issues actually determined thereby, but also as to all matters which could have been litigated in the action in which it was rendered. Enderlin Bank v, Jennings, 4 N. D. 228; Howard v. Huron, 5 S. D. 539; Eakin v. McCraith, 3 Pac. Rep. 838; Morrill v. Morrill, 11 L. R. A. 155 and n.; 1 Herman on Estoppel, 51-74-127. The answer shows on its face that the improvements were not made at the request or with the assent of the other co-tenants, therefore the co-tenants excluded from possession cannoc be compelled to contribute to the improvements. Ward v. Ward, 29 L. R, .A. 449, n. a.; Gage v. Gage, 28 L. R. A. 829 and n.; Cosgriff v. Foss, 36 L. R. A. 753. -</p>

Action by the First National Bank of Fargo against the Minneapolis & Northern Elevator Company. Judgment for plaintiff. Defendants appeals. The statute giving the highest market price between the date of the conversion and the verdict, Subd. 2, § 5000, Rev. Codes, does not apply under the facts proven. Pickert v. Rugg, 1 N. D. 230, 46 N. W. Rep. 446.

<p>Promissory Note — Consideration for Collateral Paper.</p> <p>On February 28, 1895, R. was indebted to plaintiff in the sum of $9,000, and-on 'that day gaye Ms promissory note for that amount to plaintiff, payable September 28, 1895. On the same day, as collateral to said indebtedness, R. gave the plaintiff his promissory note for $2,000, falling due ora September 1, 1895, and secured,said $2,000 note by a chattel mortgage. The collateral paper had no independent consideration. Held, that the original indebtedness furnished a consideration for the collateral paper.</p> <p>Extension of Time for Payment Sufficient Consideration.</p> <p>Held, further, that extending the time of payment upon the original indebtedness was also a sufficient consideration for the collateral paper. Su'ch transaction is considered as one transaction, and is construed as such.</p> <p>Mortgage of Stock of Merchandise Without Change of Possession.</p> <p>Where a chattel mortgage upon a stock of merchandise provided in terms that tire mortgagor should remain in possession, and sell the mortgaged property at retail for cash only, and also required the mortgagor to' keep accurate accounts of such sales, and turn over ail the proceeds thereof to the creditor, to be applied by him upon the mortgage debt, held, that such mortgage is not fraudulent in law.</p> <p>Oral Agreement for Salary to Mortgagor in Possession is Not per se Fraudulent.</p> <p>Where, in such case, after the execution of the mortgage, the parties thereto entered into an oral agreement whereby the mortgagor, as a part of the expense incident to selling the gotods at retail, is to retain a stipulated' salary, not excessive in amount, as compensation for selling the goods at retail, held, that such oral agreement is to be construed with, and as a part of, the mortgage.</p> <p>Mortgage Embodying Secret Trust.</p> <p>So construing the same, held, further, that such mortgage is not fraudulent in law, as embodying a secret trust for the benefit of the debtor. In such cases the crucial question is whether the arrangement entered into is honestly made to secure the payment of an actual indebtedness, secured by the mortgage, or whether, on the contrary, it is a mere shift or device to shield the debtor’s property from attack by other creditors, while it enables the debtor to proceed with his business for his own advantage.</p> <p>Mortgage Sustained.</p> <p>Under the facts in this case, held, that the arrangement was not fraudulent in fact.</p>

Action by Thomas O’Toole and Ann O’Toole against O. M. Omlie and David Lane, to have an instrument in form of a quitclaim deed executed by the appellants to O. M. Omlie and covering certain lands in Pembina county, declared to be a mortgage, also for an accounting as against O. M. Omlie, and to have a deed from the defendant Omlie to defendant David Lane set aside. Judgment was given for defendants, and plaintiffs appeal.

Action by J. M. Smith, trustee for the use of Franklin S. Dalrymple and others, against the Security Loan & Trust Company of Casselton and others. From an order overruling a demurrer to the complaint, defendants appeal. Plaintiff has no estate or interest in the real property in question and cannot maintain this action. Sec. 5904, Rev. Codes.

<p>Appeal from District Court, Cass County; Pollock, J.</p> <p>Action by Charles E. Wilson against the County of Cass. Judgment for defendant, and plaintiff appeals.</p> <p>The legislature intended to compensate the sheriffs for making sales under Chap. 67, Laws 1897. More acts are to be performed by the sheriff under this law than on other judicial sales. They are given compensation for levying a writ of attachment and for collecting moneys under the provisions of section 2 of the act, viz: “the same fees as are allowed by law upon execution in a civil action.” Sec. 25, Ch. 67, Laws 1897. The fee is given either when he receives money or when he collects it without actually receiving it. Where the plaintiff in execution bids in the property so that not a dollar is actually received by the sheriff, the sheriff is nevertheless entitled to his fees under the statutes giving him fees for collecting money under execution. Sharuey v. Iron Co., 58 N. W. Rep. 864; Jurgens v. Plauser, 47 Pac. Rep. 809; :Litchfield v. Ashford, 30 N. W. Rep. 649. The cases which appear to hold the contrary rest upon the peculiar phraseology of the statutes giving fees only on moneys actually received. State v. Prince, 37 Pac. Rep. 291; Coleman v. Ross, 12 Pac. Rep. 648; Fiedeldey v. Diserens, 26 Ohio St. 312.; Peery v. Wright, 45 Pac. Rep. 46. The word “collection” as used in this statute means that the sheriff has through the discharge of the duties cast upon him by law in and about the sale of property under process been the procuring cause of the plaintiff in the process realizing the amount due him. Where the creditor receives the money before sale the sheriff is entitled to his fee. Hildreth v. Ellis, 1 Caines Cas. 192; Alehin v. Wells, 5 Term. Rep. 470; Campbell v. Cothran, 56 N. Y. 282; Bank v. Coal Company, 68 N. Y. 585-590; Parsons v. Bowdoin, 17 Wend. 14; United States v. Haas, 5 Fed. Rep. 29; Morse v. Gibbons, 43 Cal.-377. See, also, Baldwin v. Shaw, 35 Vt. 272; Boszvell v. Dingley, 4 Mass. 411; Bullen v. Ansley, 6 Esp. N. P. hi; Rawstorne v. Wilkinson, 4 M. & S. 256; Earle v. Plum.mer, i Salk. 332; Bolt on v. Lazvrence, 9 Wend. 435; Scott v. Shaw, 13 Johns. 378; Adams v. Hopkins, 5 Johns. 253; Miles v. Harris, 104 Eng. Com. Law, 550; Arnold, v. Dinsmore, 3 Cold. 235. The person or corporation on whose behalf the sheriff executes the process is liable for his fees. Jurgens v. Hauser, 47 Pac. Rep. 809; Sharvey v. Iron Co:, 58 N. W. Rep. 864; Morse v. Gibbons, 43 Cal. 377; Baldwin v. Shaw, 35 Vt. 272; Campbell v. Cothran, 56 N. Y. 281; Boswell v. Dingley, 4 Mass. 411; Hildreth v. Ellis, 1 Caines Cas. 192; Rawstorne v. Wilkinson, 4 M. & S. 256.</p> <p>The law makes it the duty of the treasurer to attend at the sale and receive all money paid. Sec. 13, Ch. 67, Laws 1897. In cases where the property is bid in for the county no money is paid over, and there is no money to be received by any one. The words “money received and disbursed” as used in section 2082, Rev. Codes, and the words “receiving or collecting money” in the delinquent tax law of 1897 have the same significance. Sec. 5106, Rev. Codes.</p>

<p>Appeal from District Court, Morton County; Winchester, J.</p> <p>Action by Morris Rosenbaum and others against Jerry Hayes, as sheriff of Stark county. Judgment for defendant, and plaintiffs appeal.</p> <p>It has once been held in this case that under the evidence the question of delivery of possession was a question of fact. Rosenbaum v. Hayes, 5 N. D. 477. Defendant’s motion for a directed verdict was equivalent to a demurrer to the evidence, and the rule in such cases is well settled. Cameron v. The Great Northern Railway, 8 N. D. 124, 77 N. W. Rep. 1016. It was not necessary to show the authority of the agent of the railroad company to issue the bill of lading even as against the company. A fortiori it was not necessary as against third persons. Hanson v. Ry. Co., 41 N. W. Rep. 529; Brooks v. Rd,. Co., 21 Am. & Eng. R. R. Cas. 64. The bill of lading was admissible even though not authorized. Prince v. Ry. Co., 101 Mass. 542; Bryant v. Nix, 4 M. & W. 775. It was error for the Court to strike out the drafts admitted in evidence to show payment. 1 Greenl. on Ev. § 38; 2 Greenl. on Ev. § § 475, 5x8; 18 Am. & Eng. Ene. L. 206; State v. Brooks, 52 N. W. Rep. 240; Peavey v. Hovey, 20 N. W. Rep. 272; Baring v. Clark, 19 Pick. 220. There never was a waiver of the factor’s lien or an election to rely on the claim of ownership as against the attachment. But the claim of a factor’s lien was not inconsistent with a claim of ownership if the latter claim failed through lack of proof of notice. Holbrook v. Wight, 35 Am. Dec. 610. ’ Even 'if the claims are inconsistent plaintiffs made their election when they brought this action claiming under a factor’s lien. 7 Enc. PI. & Pr. 364, n. 1. Election of remedies or waiver of lien is a defense which must be pleaded in order to be available. Rev. Codes., 5273; .Roberge v. Winnie, 39 N. E. Rep. 932; Nysewander v. Lowman, 24 N. E. Rep. 355- Words, unless designed to influence the course of a party concerned and actually having that effect, will not constitute election. 7 Enc. PI. & Pr. 367.</p> <p>The allegation that the sheep were attached and that they were levied upon by virtue of a writ of attachment is, in legal effect, an •admission that the writ was issued in due course of law and that all the preliminary conditions to its issue existed and were complied with. Bowersock v. Adams, 55 Kan. 681; Carpenter v. Sherman, 33 Wis. 109: 'Remington v. Benoit, 36 Atl. Rep. 718. When a public officer has dpne an act which, if certain preliminary conditions have not been complied with, is illegal, it will be presumed that such preliminary conditions were complied with. Best on Ev. page 657, n. 1. One who claims that any such pre-requisite did not exist must affirmatively show the fact. Nofire v. U. S., 164 U. S. 657, 17 Sup. Ct. Rep, 212; Valley Township v. Bridge Co., 4 Kan. App. 622; Board of Education v. Boyce, 47 Pac. Rep. 1090; Ch. no, Subd. 15 of Sec. 3, Laws 1897, page 178; Knox County v. Bank, 147 U. S. 91, 13 Sup. Ct. Rep. 267; Long v. Rush, 47 N. E. Rep. 156; Carpenter v. Scott, 53 N. W. Rep. 329; , Naslen v. Haynes, 2 Nev. 53; Didley v. Sherman, 2 Nev. 67. A record is substantially' a written history of the proceedings from the beginning to the end of a case. United States v. Taylor, 147 U. S. 698; In fe Bennett, 84 Fed. Rep. 326. Courts take judicial notice of their own records and judgments. Subd. 19, Sec. 2, Ch. 65, Laws 1897; State v. Stevens, 56 Kan. 723; State v. Bowen, 16 Kan., 473; In re Bennett, 84 Fed. Rep. 327; Poole v. Leroy, 70 la. 275; Pittel v. Ins. Co., 86 Fed. Rep. 255; Kimball v. J. S. M. Co.., 9 Col. 349; Allen v. Swoope, 44 S. W. Rep. 78; Cent. Trust Co. v. Asherville, 72 Fed. Rep. 365; Bruckel v. State, 19 Wis. 567. They may take notice of other records in the court, and are not bound to limit judicial notice to records in the case on trial. /Denny v. State, 144 Ind. 517; Fredericks v. Daniels, 6 Mont. 462; Washington Ry. Co. v. Ry Co., t6o U. S. 77; Treat v. Dunham, 41 N. W. Rep. 876. It is therefore incumbent upon this Court tp take judicial notice of its findings and decision in Rosenbaum v. Hayes, 5 N. D. 476, where the Court find that the sheep in question were taken in replevin from Jerry Hayes who seized them as sheriff on attachment. Also in the case of Gam v. Beasley, 4 N. D. 140, where the Court find that the defendants made a general appearance in that action, and that Joseph Ganz made and filed affidavit for attachment, that upon an attachment duly sued out Jerry Hayes as sheriff seized the sheep. The settled case on the last appeal (5 N. D. 476) is a record of the District Court in this action, (Subd. 2, § 5489 Rev. Codes) and is made a part of the record in this appeal. It appears therefrom W. W. Beasley & Sons are the same firm as George M. Beasley & Co. That Jerry Hayes as sheriff attached at the suit of Ganz in 1893, as the property of Beasleys 5,600 sheep. Courts take notice of .all prior proceed ings in the case. Subd. 13, § 2, Ch. 65, Laws 1897. The word “proceedings” here means any step taken by a suitor to obtain the interposition or action of the court. Irwin v. Bank, 6 Ohio St. 81; Dea v. Washington Co., 3 Neb. 1x8; Wilson v. Mackin, 7 Neb; 50; State v. Stevens, 46 Kan. 720. The papers in the attachment suit are sufficient prima facie evidence of indebtedness in action against the sheriff by a third party. Treat v. Dunham, 41 N. W. Rep. 876; Howard v. Dwight, 66 N. W. Rep. 935; Hall v. Stryker, 27 N. Y. 45; Rinchey v. Stryker, 28 N. Y. 45; Fuller v. Sears, 5 Vt. 527. The Court should inform the jury of facts of which it takes judicial notice. State v. Stevens, 56 Kan. 723. The sheep were not entrusted to appellants as factors in the due course of business. The fact that Beasley accompanied the sheep when shipped and unloaded them at Dickinson, disproves that they were in the possession of the railroad company as agent for plaintiff. Edwards on Bailments, 573; Hutchinson on Carriers, § 217; III. Cent. Ry. Co. v. Morrison, 19 111. App. 136; Terre Haute & L. Ry. Co. v. Sherwood, 132 Iñd. 129; Heller v. .Ry. Co., 109 Mich. 53; 4 Elliott on Rys. § 1549-X552; Burger v. Ry. Co., 75 N. W. Rep. 192; Grieve v. Ry. Co., 74 N. W. Rep. 193;. Clark v. Ry. Co., 64 Mo. 240. The terms of the bills of lading disprQve plaintiffs’ contention. Porter’ on Bills of Lading, § 421, 424. 'The bill of lading could not represent the first train load of shee'p because they were transported, unloaded and taken onto the range before the bill was made. . Porter on Bills of Lading, § 424-425. The sheep were herded together on the range and no attempt was made to identify those included in the second shipment, to establish a lien thereon. Scheuler on Per. Prop. § 47; Hamilton v. Robinson, 8 Md. 321; Foster v. Warner, 49 Mich. 643; McDowell v. Russell, 37 Pa. St. 164; Rosenberg v. Thompson, 8 S. W. Rep. 895; Kelley v. Kelley, 77 Me. 135; Robinson v. Holt, 39 N. R. 557. The herding pf the sheep on the range by herders employed by plaintiffs was not sufficient to create a factor’s lien in their v favor. 2 Kent’s Com. 637; 2 Par. on Conts. (8th Ed.) 99; Dixon v. Stansñeld, 10 C. B. 399; Thacher v. Moors, 134 Mass. 156. The herders were employed by plaintiffs through Beasley as agent. Beasley was not competent as the agent of plaintiffs to invest plaintiffs with possession by engaging herders on their behalf. Wordall v. Smith, 1 Camp. 333. The rule as to the change of possession from the principal to the factor and the continued possession necessary to protect the factor against an attachment by a creditor of the principal is the same as in the sale of personal property under a statute making such sales fraudulent unless accompanied and followed by an actual and continued change of possession. MeFarland v. Wheeler, 26 Wend. 467; Dook v. Brubaker, 1 Nev. 185; State v. Benham, 84 N. Y. 638; Parker v. Kendrick, 29 Vt. 390; Brunswick v. McClay, 7 Neb. 137; Rosenbaum v. Playes, 5 N. D. 479. The change of possession necessary to protect a sale of chattels against creditors of the vendor must be open, notorious, actual, visible, unequivocal, substantial and continued. Clañin v. Rosenberg, 97 Am. Dec. 340 and note; Conrad v. Smith, 2 N. D. 408; Morrison v. Omm, 3 N. D. 76; Grady v. Baker, 3 Dak. 298. That the property was in possession of the hired man of the vendor, who had agreed to take care of the same for the vendee is not sufficient change of possession to give notice to creditors. Flanagan v. Wood, 33 Yt. 327. Plaintiffs’ claim of ownership was inconsistent with their claim for lien thereon. It amounted to a repudiation, waiver or abandonment of their lien claim. Picquat v. McKay, 2 Blackf. (Ind.) 465; Hudson v. Szvan, 83 N. Y.-560; Everett v. Buchanan, 2 Dak. 260; 13 Am. & Eng. Ene. L. 624, note 2; Cox v. Harris, 62 Am. St. Rep. 188.</p>

<p>Part Payment of Past Due Obligation Not Good Consideration for Contract.</p> <p>Part -payment of an existing indebtedness which is- due is not consideration for a new promise. Accordingly, held, that the promise of a creditor -to his debtor, which is made at the time of a partial payment by the latter, that he will ‘'take care of” a certain judgment against the latter in favor of a third person, is without consideration, so far as it -'is dependent upon such payment.</p> <p>What Constitutes Consideration for Promise.</p> <p>The consideration for a promise may be found in some prejudice either suffered or agreed to he suffered by the promisee, other than such as he is at the time lawfully bound to suffer. Held, that -the facts stated in the opinion do not show that the promisee either suffered or agreed to suffer any prejudice, and hence the promise, which has no other support, is therefore without consideration.</p> <p>Transfer of Chose in Action.</p> <p>A chose in action may be transferred either 'by parol or by written assignment.</p> <p>Conflict in Evidence is for Jury to Settle.</p> <p>It appears that on January 30, 1896, one R. made a written assignment to the plaintiff of a money demand owned by her against the defendant bank; further, that prior thereto, and on January 25, 1896, the account was garnished by the intervener, who- is her creditor. There is some evidence tending to show that she had assigned the ■account to plaintiff by parol about a month prior to the written assignment. Held, that under this conflict of evidence the material inquiry as to when the account was transferred so as to vest title thereto in the plaintiff was entirely a question for the jury.</p> <p>Erroneous Instruction.</p> <p>The Court, in substance, instructed the jury that, if they found that at a time prior to the garnishment an oral agreement for the sale of . the account to plaintiff was realched, then they must find for plaintiff. Held, that this instruction was erroneous, for the reason that it permitted the .plaintiff to recover upon the account, as against the intervener’s garnishment thereof, even though the title thereto may not have vested in plaintiff prior to such garnishment; further, in not confining plaintiff’s right to an actual purchase 'of Hire account, as distinguished from an agreement to purchase.</p>

<p>Appeal from District Court, Nelson County; Fisk, J.</p> <p>Action by Edgar A. Howser against J. A. Pepper. Judgment for defendant, and plaintiff appeals.</p> <p>The court below erred in sustaining objections to the admissibility in evidence of the ballots from Lee and Center townships. The true rule is as stated in Soné v. Williams, 130 Mo. 530, 32 S. W. Rep. 1016, that the ballots are the best and primary evidence provided they have been kept by the proper custodian in the manner required by law and have not been tampered with. When the boxes are produced and they and the ballots contained in them are fair on their face they are prima facie admissible and the burden of showing that they are not shifts to the other party. Tebbe v. Smith, 108 Cal. 101, 41 Pac. Rep. 454; Dooley v. Van Hohenstein, 170 111. 630, 49 N. E. Rep. 193; Hartman v. Young, 20 Pac. Rep. 17; Apple v. Barcroft, 158 111. 649; Baris v. State, 75 Tex. 420, 12 S. W. Rep. 957; Hudson v. Solomon, 19 Kan. 177; Hunnicutt v. State, 75 Tex. 233, 12 S. W. Rep. 106. Statutory provisions to be obeyed by the election officers are quite uniformly held directory, those to be obeyed by the voter mandatory. Tebbe v. Smith, 41 Pac. Rep, 454; O’Gorman v. Richter, 31 Minn. 25, 16 N. W. Rep. 416; Peo. v. Livingston, 79 N. Y. 279; Horning v. Burgess, 77 N. W. Rep. 446; McCrary on Elections, § 724. The ballot marked with a cross in the square at the head of the independent and democrat column and also a cross opposite respondent’s name in the republican column should be counted for appellant. Valier v. Brakke, 64 N. W. Rep. 180; McKittrich, v. Pardee, 65 N. W. Rep. 23; Church v. Walker, 10 S. D. 450, 72 N. W. Rep. 101. Else one mark neutralizes the other. Stale v. Fransham, 48 Pac. Rep. 1; In re Assessor, 40 Atl. Rep. 822. The ballot with a diagonal mark in the square at the head of the independent and democrat column should be counted for appellant. The statute does not require a cross mark. Laws 1897, Ch. 76; Tebbe v. Smith, 41 Pac. Rep. 456. Our constitution (Sec. 129) provides for a secret ballot. So does the statute. Sec. 559 Rev. Codes; Ex parte Arnold, 128 Mo. 256, 30 S. W. Rep. 768. . Certain of the ballots crossed opposite every name in the republican column are illegal as bearing distinguishing marks. Distinguishing or identifying marks are either marks of a kind not authorized by law or marks authorized by law which are put in unauthorized places. Curran v. Clayton, 86 Me. 42, 29 Atl. Rep. 930; Parvin v. Wiemberg, 30 N. E. Rep. 790, 130 Ind. 561; McCrary on Elect. § 724; § 559 Rev. Codes; Attorney General v. McQude, 94 Mich. 439; Whitiam v. Zahorik, 59 N. W. Rep. 57; Dennis v. Caughlin., 41 Pac. Rep. 768; In re Ballot Marks, 27 Atl. Rep. 608; Segó v. Stoddard,. 36 N. E. Rep. 204; Zeis v. Passwater, 41 N. E. Rep. 796; Bechtel v. Albin, 33 N. E. Rep. 967; Lauer v. Estes, 53 Pac. Rep. 262; Oglesby v. Sigman, 58 Miss. 502. Exhibits 3 and 8 have crossmarks outside of the squares. This kind of marking has been repeatedly condemned. Vallier v. Brakke, 64 N. W. Rep. i8o; Apple v. Bancroft, 158 111. 649; Curran v. Clayton, 29 Atl. Rep. 930; Taylor v. Blenkley, 39 Pac. Rep. 1045; Attorney General v. Gaser, 102 Mich. 405; Béchtel v. Albin, 33 N. E. Rep. 967; In re Flynn, 37 Atl. Rep. 523; Dennis v. Caughlin, 41 Pac. Rep. 768; Parvin v. Weimberg, 30JN.E. Rep. 790. Exhibits 11 and 12 each were marked opposite the respondent’s name, an attempt was clearly made to obliterate it by making other marks over the first, and on each ballot a well defined cross appears in the square opposite appellant’s name. These circumstances indicate an honest purpose to vote for appellant and that the first mark was a mistake which the voter endeavored honestly but ignorantly to correct. State v. Walsh, 17 L. R. A. 364, 25 Atl. Rep. 1; Dennis v. Caughlin, 41 Pac. Rep. 768; State v. Fawcett, 49 Pac. Rep. 346. Exhibit “E” should have been counted for appellant. The fact that appellant’s name was already printed upon the ballot did not destroy the éffect of writing his name thereon. Sannor v. Patton, 155 111. 553. Nor does the fact that the name of E. A. Howser was written on Exhibit “E” instead of Edgar A. Plowser deprive appellant of the right to have this ballot counted as a vote for him. Newton v. Newell, 26 Minn. 529; State v. Foster, 38 Ohio St. 599; Opinion of Justices, 64 Me. 596; Attorney General v. Coldburn, 62 N. H. 70; Clark v. Board, 126 Mass. 282; Peo. v. Smith, 45 N. Y. 772. The notice of contest was sufficient to allow the admission of the tallies in .evidence. Bragunier v. Penn. 29 Atl. Rep. 12; Hadley v. Gutridge, 58 Ind. 302. The tallies should control the figures. State v. McFadden, 65 N. W. Rep. 800.</p> <p>Defendant’s objection at the opening of the trial that section 566, Rev. Codes, had not been complied with and jurisdiction was lost, should have been sustained. Brown v. Hixon, 45 Mo. 340; Seeley v. Killoran, 53 Minn. 240; Cosiello v. St. Louis, 28 Mo. 278; Wilson v. Lucas, 43 Mo. 290. The statute requires the inspector to retain the ballot box locked with the ballots in it for sixty days next after election. § 526, Rev. Codes. After the expiration of the statutory time for holding the ballots they ceased to have a legal existence. State v. Bates, 36 N. W. Rep. 17. The ballots for the four precincts under investigation by this contest were not in proper custody of law, had not been properly kept. The boxes into which they were placed were not sealed as required by law. In two of the precincts the ballots had not been kept by the officer required by law-to keep them. They were offered in evidence ten days after they had ceased to have any legal existence. The burden of showing that the ballots offered in evidence were the identical ballots cast was upon contestant. Their integrity was sufficiently impeached to shift the burden of proof. Hudson v. Solomon, 19 Kan. 177; McCrary on Elections, § 478; Dorey v. Linn, 31 Kan. 758; Murphy v. Battle, 155 111. 182; Albert v. Twohig, 35 Neb. 563. Where the statute provides a mode of preserving the identical ballots for the purpose of being used as evidence the statute must be! strictly followed. If it appears that they have been handled by unauthorized persons or that they have been left in an exposed and improper place they cannot be offered to overcome the official count. Mc-Crary on Elections, § 471; Butler v. Lehman 1 Barb. 353; Powell v: Holman, 6 S. W. Rep. 505; Hughes v. Holman, 23 Ore,. 48; Tebbe v. Smith, 108 Cal. 101; Hartman v. Young, 17 Ore. 150; Peo. v. Burden, 45 Cal. 241. The party offering the ballots to impeach the official returns must show affirmatively that they are the identical ballots cast. Beall v. Albert, T59 111. 126; Fenton v. Scott, 17 Ore. 189; Nezvton v. Newell, 26 Minn. 529; Martin v. Miles, 58 N. W. Rep. 732. The proviso in section 524, Rev. Codes, ameliorates the otherwise harsh rule of construction. The statute is directory as to the method of the voters designating his choice. Dickerman v. Gelsthorpe, 47 Pac. Rep. 999; State, v. Russell, 51 N. W. Rep. 465; Spurgin v. Thompson, 55 N. W. Rep. 297; Peo. v. McManus, 34 Barb. 620; Houston v. Steele, 34 S. W. Rep. 6. The mark prohibited by law is such an one as shows an intention to distinguish the ballot from others of its class. State v. Russell, 51 N. W. Rep. 465; Tebbe v. Smith, 41 Pac. Rep. 454; Houston v. Steele, 34 N. W. Rep. 6; 33 Am. St. Rep. 625. Exhibit “E” should not be counted for either party because there is no cross or mark after the name of either candidate. Laws 1897, page 117; Martin v. Miles, 65 N. W. Rep. 889. Also for the reason that there is no evidence showing that Edgar A. Howser and E. A. Howser is one and the same person. Vickery v. Burton, 6 N. D. 245, 69 N. W. Rep. 193; State v. The Judge, 13 Ala. 805; Opinion of Justices, 64 IVIe. 596; Redman’s Appeal, 174 Pa. St. 59; McCrary on Elections, 528-530. Exhibit “2” should be counted for respondent, it is not a void ballot. McMahon v. Polk, 10 S. D. 296.</p>

<p>Purchaser Pendente Lite — Intervention.</p> <p>A party who purchases property from a defendant pendente lite may, with the permission of a court of equity and under section 5234, Rev. Codes, appear in the case a,t any-stage of the procedings to defend h!is interests.</p> <p>Assignment to Bank Cashier — Rights of Bank.</p> <p>A land contract was assigned to “C. C. Schuyler, Cashier,” the assignor knowing at the time-that Schuyler Was the cashier of a certain bank, and being also at the time indebted to the bank. The bank claimed that such assignment was made as security for the payment of such indebtedness, and in a proper action sought to foreclose the assignor’s interest thereunder. Whether or not such assignment raised a presumption that it was made to the bank not decided, but held that, if -such a presumption d’id arise, it was a rebuttable presumption, and was fufly rebutted in this case.</p>

Action by Matilda Roberts against the First National Bank of Fargo and W. D. Hodgson to determine adverse claims to lot 20, block “G,” of Charles Roberts’ Addition to the City of Fargo. . Held: that under said tax deeds the defendant bank was the owner of. the south half of said lot 20, and that the defendant Hodgson was the owner of the north half thereof, and that The title of each therein should be quieted and confirmed. Plaintiff appealed.

Suit by George D. Lay against Lewis Emery, Jr. Judgment for plaintiff. Defendant appeals. Under the contract between the parties, Lay had exclusive management of the business, Emery being engaged with large interests in the East, was unable to give any personal attention to the farm.

Action by Margaret Trost against the City of Casselton. From a judgment for plaintiff, defendant appealed. The damages are excessive, the plaintiff, a woman of sixty years, received by her fall a bruised arm and shoulder. Dr. Hormell, the only expert for plaintiff, indicated that in his opinion the fall may have caused or aggravated an attack of heart trouble.

John Crawford was indicted for burglary in the third degree and acquitted by direction of the Court, and the state appeals. The appeal in this case is by the state pursuant,to Subd. 5, § 8329, Rev. Codes. The boring of holes into a granary and thereby extracting grain therefrom is such a breaking and entering of the building as to constitute-burglary. 2 Bish. New. Cr. L. § 92, Subd. 2 and 3; 2 Whart. Cr. L. § 1549, 1550.

Action by B. E. Ingwaldson, as trustee, against J. P. Skrivsech and wife. From an order affirming a taxation of costs by the clerk, plaintiff appeals.

Charles Currie was convicted of maintaining a liquor nuisance, and appeals. The Court was without juxdsdiction to try the defexrdant on a legal holiday, viz: the day for holding annual township meetings. § § 5124, 2540, Rev. Codes. It was error for the Court to instruct the jury that beer is intoxicating and that the burden was on defendant to show that the beer sold was non-intoxicating.

Joseph Rozum was convicted of keeping and maintaining a common nuisance, and appeals. The information laid before the committing magistrate was insufficient because it did not particularly describe the place where the liquor was kept. § § 7601, 7602 and 7614, Rev. Codes. The information before the committing magistrate not stating a public offense there is no base upon which to rest the information upon which defendant was convicted.

<p>Appeal from District Court, Walsh County; Sauter, J.</p> <p>John Anderson Ekanger was convicted of keeping and maintaining a common nuisance, and appeals.</p> <p>An opinion formed by conversation with witnesses or by reading reports of testimony or evidence disqualifies. Brozvn v. State, 70 Ind. 576; State v. Culler, 82 Mo. 623; Dugle v. State, 100 Ind. 259; 12 Am. & Eng. Ene. L. 355. An opinion even though based on newspaper reports or rumors if so fixed as to require evidence to remove it, disqualifies though the juror may state that he can render a fair and impartial verdict on the evidence. Olive v. State, 7 N. W. Rep. 444; Marion v. State, 29 N. W. Rep. 91 x; Cowan v. State, 35 N. W. Rep. 405; Miller v. State, 45 N. W. Rep. 451; Owens v. State, 49 N. W. Rep. 226; State v. Wilcox, 39 Pac. Rep. 368; State v. Lattin, 52 Pac. Rep. 314; State v. Murphy, 37 Pac. Rep. 420; Peo. v. Shufelt, 28 N. W. Rep. 79; Peo. v. Barker, 27 N. W. Rep. 539; Stephens v. Peo., 38 Mich. 739. The discretion of the trial court in denying a challenge is subject to review. State v Rutten, 43 Pac. Rep. 30.</p> <p>The juror challenged was not disqualified for actual bias. Ch. 31, Laws 1897; Aaron Bur/s Case, 1 Burr’s Trial, 416; 12 Am. & Eng. Ene. L. 354 and cases cited.</p>

<p>Appeal from District Court, Morton County; Winchester, J.</p> <p>Chris Kellar was convicted of incest, and appeals.</p>

<p>Appeal from District Court, Traill County; Pollock, J.</p> <p>Action by A. L. Plummer and E. Y. Sarles against E. A. Borsheim, county superintendent pf schools of Traill county. Demurrer to the.complaint was sustained, and plaintiffs appeal.</p> <p>House Bill Number 26, entitled “An act to amend section 660 of the Revised Codes North Dakota 1895, relating to what territory may be organized into district school corporations,” is unconstitutional. It conflicts with section 11, subds. 4 & 12 of section 69, and with section 70, Constitution. This law applies only to the city and school township of Hillsboro. It makes no difference that it is general in form, being special in operation. Nichols v. Walter, 33 N. W. Rep. 800; Vermont L. & T. Co. v. Whithed, 2 N. D. 82; Anderson v. City, 42 N. J. L. 486; McCarthy v. Com., 2 Atl. Rep. 423, 5 Atl. Rep. 215; Morrison v. Bachert, 5 Atl. Rep. 739; Closson v. Board, 5 Atl. Rep. 323; Edmonds V. Herbrandson, 2 N. D. 270; Clark v. Davis, 106 Pa. St. 377. The act conflicts with section 61 of the state constitution in that it embraces more than one subject, and the subjects are not expressed in' the title.' -State v. Nomland, 3 N. D. 427; Div'et v. Richland County, 8 N. D. 65. Judicial notice must be taken of 'the contents of the legislative, journals. § 11, Ch. 65, Laws 1897. Each bill shall have three readings. § 63, Const. An entry of the signing of a bill must be made in the journal. § 66, Const. An inspection' of the senate and house journals will disclose that they contain no entry that the presiding officer of either house signed the bill in the presence of the house over which he presided. This is fatal. Hunt v. State, 3 S. W. Rep. 233; Cooley’s Const. Lim. 164; Perry v. Ry. Co., 58 Ala. 540; State v. Buckley, 54 Ala. 599; Spangler v. Jacoby, 14 111. 297; State v. Smith, 7 N. E. Rep. 447; South Ottowa v. Perkins, 94 U. S. 260; Bank v. Ottowa, 105 U. S. 667; Koehler v. Hill, 14 N. W. Rep. 738; Fordyer v. Godman, 20 Ohio St. i; Ecwífe v. Comm’s’rs, 25 S. E. Rep. 966; Cohn v. Kingsley, 49 Pac. Rep. 985.</p> <p>Population may be made the basis of classification, provided such classification is not made a means of avoiding the constitutional interdict or is no't plainly illusory. In such acts the legislation is constitutional if its subject matter be one having a natural relationship to population. State v. Hoagland, 16 Atl. Rep. 166; State v. Mortland, 20 Atl. Rep. 673; State v. Court, 15 Atl. Rep. 272; Peo. v. Onahan, 48 N. E.' Rep. 1003; Johnson v. Harrison, 50 N. W. Rep. 923; Tulare v. May, 50 Pac. Rep. 427; In re Norton, 64 N. W. Rep. 190; In re Church* 92 N. Y. 1; Darrow v. Peo. 8 Pac. Rep. 661; Marmet v. State, fs.N. E. Rep. 463; State v. Donovan, 15 Pac. Rep. 783; State v. "Long, 52 Pac. Rep. 645; Bowe v. St. Paul, 73 N. W. Rep. 184. The intention of this' legislation was to relieve the farming districts from the burden of contributing to the support of schools in cities using that term in its popular sense. In that sense the word “city” includes ‘ towns and villages. Peo. v. Stephens, 62 Cal. 209-236; Burke v. Monroe Co. 77 111. 610; State v. Board, 29 Pac. Rep. 974; Elma v. €arney, 30 Pac. Rep. 732; Peo. v. McCune, 46 Pac. Rep. 658; Van Riper v. Parsons, 40 N. J. L. 4; Herrman v. Town, 43 Atl. Rep. 703. ' The statute does not embrace more than one subject, which is sufficiently expressed in the title. State v. New Whatcom, 27 Pac. Rep. 102Q; State v. Brown, 4 N. W. Rep. 379; McGurn v. Board, 24 N. E; Rep. 529; Mor ford v. anger, 8 Iowa, 82; State v. Board, 6g\ N. W. Rep. 1083; Johnson v. Harrison, 50 N. W. Rep. 923; In ' re Board, 32 Pac. Rep. 850; State v. Hocker, 18 South. Rep. 767. Comm’s’rs v. Bailey, 13 Kan. 600-609; State v. Commissioners, 21 Pac. Rep. 601; Peo. v. Barkelow, 37 Mich. 453; Fielder v. State, 49 S.. W. Rep. 376; Hargrave v. Weber, 32 N. W. Rep. 921; Roby v. Sheppard, 26 S. E. Rep. 278; Sweet v. Syracuse, 27 N. E. Rep. 1081; State v. Cassidy, 22 Minn. 312; Supervisors v. Heenan, 2 Minn. 281; Attorney Gen’l v. Weimar, 26 N. W. Rep. 773; State v. Gallagher, 44 N. W. Rep. 529; Hoskins v. Crabtree, 44 S. W. E.ep. 434; 23 Am. & Eng: Ene. L. 237, n. 3.</p>

Action by O. M. Omlie against the Farmers’ State Bank of St. Thomas. Verdict directed for plaintiff, and defendant appeals. Plaintiff neither owned the property, nor was he entitled to its possession at the time suit was commenced, hence could'not maintain conversion. Parker v. Fust National Bank, 3 N. D. 87; Ellestad v. N. W. Elev. Co., 6 N. D. 93; Donovan v. St. A. & D. Elev. Co., 7 N. D. 521.

<p>Appeal from District Court, Richland County; Lauder, J.</p> <p>Suit by August Brummond and Louisa Brummond against Albertina Krause and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>Appeal from District Court, Ramsey County; Morgan, J.</p> <p>Action by B. S. Ricks against Amund Bergsvendsen. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal 'from District Court, Dickey County; Lauder, J.</p> <p>Action by J. A. Paine against Dickey County. From an order sustaining a demurrer to the complaint, plaintiff appeals.</p>

Appeai from District Court, Cavalier County; Sauter, J. Action by E. I. Donovan against the St. Anthony & Dakota Elevator Company. Verdict for defendant, and from an order granting plaintiff a new trial defendant appeals.

Application by Mrs. A. V. Oliver for a writ of mandamus against Charles E. Wilson, sheriff. From an order directing the writ to issue, and judgment to be entered against defendant, and from a judgment so entered, defendant appeals. Respondent had an adequate and speedy remedy at law, hence was not entitled to mandamus. State v. County Judge, 5 Iowa, 380; Inhabitants v. Mulliken, 7 Gray, 280; Peo. v. Chase, 70 111. App. 42; Wright v. Kelley, 42 Pac.

<p>Appeal from District Court, Cass County; Pollock, J.</p> <p>Suit by George C. Peclcham against W. S. Van Bergen. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Rolette County; Morgan, J. ffl</p> <p>Action by William H. Becker against William A. Duncan. Verdict was for defendant, and from an order denying a new trial plaintiff appeals.</p>

<p>Appeal from District Court, Pembina County; Sauter, J.</p> <p>Action by John Pleyrock against R. K. McKenzie. Verdict was for plaintiff, and from an order denying a new 'trial defendant appeals.</p>

<p>Compromise and Settlement — Evidence.</p> <p>Evidence examined,’and held that it appears to the satisfaction of this Court that a certain settlement of difference between the plaintiff and defendant, which is referred to at length in the opinion,. was made, as a matter of fact.</p>

<p>Replevin — Conclusiveness of Judgment.</p> <p>A judgment in claim and delivery is conclusive upon both parties thereto as to the right of possession of the property in dispute and the value thereof, and the damages to which the successful party is entitled to the date o'f the verdict or decision.</p> <p>Tender of Property in Satisfaction of Judgment.</p> <p>The sucessful party in claim and delivery may not refuse to receive the property in dispute when tendered in satisfaction of the’ judgment for value, and at the same time bring an action to recover •damages to said property, whether accruing before or after t'he date of the judgment in claim and delivery.</p>

<p>Appeal from District Court, Grand Forks County; Fisk, J.</p> <p>Action by the First National Bank of Corunna, Mich., against the Michigan City Bank. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal From Paid Judgment.</p> <p>A party who voluntarily pays a judgment against him cannot appeal therefrom.</p> <p>Payment of Amount for which Judgment is Ordered Bars Appeal from Judgment.</p> <p>A party who voluntarily pays the amount specified in an order for a judgment against him cannot, in case formal judgment is thereafter entered upon such order, appeal from such judgment on the ground that the order was improperly granted.</p>

<p>Witness — Impeachment—T rial.</p> <p>It is error to permit the cross-examination of a witness, over objection, for the purpose of impeachment, upon matters irrelevant to the issue; and the answer of a witness as to such irrelevant matters is binding upon the party eliciting it, and cannot be contradicted. To permit the introduction of evidence in contradiction, over objection, is error.</p> <p>Argument-of Counsel Presumed to be Based upon the Evidence.</p> <p>It will be presumed, in the absence of a contrary showing, that statements made by an attorney in his arguments to a jury are based upon the evidence in the case, and that they are not his individual^ statements of facts. Accordingly, held, under the facts stated _ in the opinion, that it was error to permit plaintiff to be cross-examined for the purpose of impeachment, against objection, as to a certain statement made by him in an argument of a case wherein he was attorney.</p> <p>Contradiction of Witness upon Collateral Matters Elicited upon Cross Examination.</p> <p>Also, held, that it was error to admit evidence, over objection,, to contradict his answer, and that such errors were prejudicial.</p>

<p>Injury to Railroad Employe — Evidence.</p> <p>Evidence examined and held that the trial court properly directed a verdict for the defendant.</p>

<p>Principal and Agent — Delivery of Goods — Sale.</p> <p>The delivery of goods by a principal to -his agent, to be sold by the latter upon commission only, does not amount to a sale to such agent.</p> <p>Taking of Money Judgment Not Payment — Waiver.</p> <p>The mere taking of a money judgment by a principal against his agent for the value of goods wrongfully withheld by t-he latter does not alone operate to invest the agent'with the title to the property so withheld. Payment of the judgment is necessary.</p> <p>Township Warrants Non Negotiable — Judgment No Estoppel Until Paid.</p> <p>Defendant purchased two road machines from an Illinois corporation through the 1-atter’s agents, and issued a township warrant in payment therefor, payable to such agents. Under the contract between the corporation and its agents, the title to the machines and the order taken therefor was in the former. Said order was transferred to plaintiff for value. Defendant paid the principal directly the amount represented by such warrant. Held, that said warrant is subject to the same defenses as in the hands of the original payees. Held, further, that the subsequent rendition of a money judgment in favor of the principal against its agents for the value of the road machines in question does not operate to clothe such agents with the title to said machines or the warrant issued in payment for the same, it not appearing that such judgment is paid.</p>