Volume 9 — North Dakota Reports

<p>Appeal from District Court, Grand Forks County, Fisk, J.</p> <p>Action by Judson C. Osborne against Christian L. Lindstrom. Judgment for plaintiff, and defendant appeals.</p> <p>It is not necessary that the law lessening the time in which to sue, should contain a provision prescribing the period within which persons holding causes of action must sue. Braithwaite v. Bank, 7 N. D. 358; Bigeloz0 v. Bemis, 2 Allen, 496; State v. Jones, 21 Md. 432; Burke v. AssJn. 40 Minn. 506. In determining what is a reasonable time, the Court must consider the time when the law was approved, and not the time when it took effect. If a reasonable time has elapsed between its passage and approval and the time when it became operative a reasonable period to sue is thereby afforded. Braithwaite v. Bank, 7 N. D. 358; Wrightman v. Boone County, 82 Fed. Rep. 412; Duncan v. Menard, 21 N. W. Rep. 714; Eaton v. Supervisors, 40 Wis. 673; Hedger v. Renneker, 3 Mete. (Ky.) 255; Smith v. Morrison, 22 Pick. 430; Stine v. Bennett, 13 Minn. 153; State v. Jones, 21 Md. 432; Bigelozv v. Bemis, 2 Allen 496; Korn v. Brozvne, 64 Pa. St. 55-57; Pierce v. Toby, 5 Mete. 172; Clay v. Iseminger, 41 Atl. Rep. 38. The reason of the rule prohibiting a plaintiff from suing upon a judgment without leave of court, is found in the fact that the common law rule that a party might sue upon a judgment immediately after its rendition often worked hardship to the debtor. § 35, Code C. Pro. 1877; Comp. Laws, § 4831. Under such statutes the fact that leave was not obtained before commencing the suit is not fatal to the action. Plaintiff may obtain an order granting such leave nunc pro tunc. Stoddard Mfg. Co. v. Mattice, 72 N. W. Rep. 891; Church v. Van Burén, 55 How. Pr. 489; Lane v. Sanlter, 4 Rob. 239. Such statutes do not prevent the assignee of a judgment or the personal representative of the judgment creditor from suing. Carpenter v. Butler, 28 Hun. 251; Hedges v. Conger, 10 N. Y. Supp. 42; McButt v. Hirsh, 4 Abb. 441; Tufts v. Braistad, 4 Duer, 607; Kopper v. Howe, 2 Hilt. 69; Smith v. Britton, 12 How. Pr. 537. Formerly an action upon a judgment could not be brought after twenty years from the time the cause of action accrued. § § 4833, 4849, Comp. Laws. At the same time the statute now found in Sec. 5215, Rev. Codes, was in force, declaring that the time an action is stayed by statutory prohibition, shall not be considered a part of the limitation period. § 4864, Comp. Laws. If the doctrine of Weiser v. McDowell, 61 N. W. Rep. 1094, is sound as applied to this case, it would be equally sound under the laws of 1877 and the result would be that no lapse of time would have barred an action upon a judgment. The revisors in cutting down the limitation to ten years, gave the creditor a year'to renew his judgment before it would outlaw.</p> <p>A cause of action upon a judgment does not accrue until the expiration of nine years from the date of the rendition of the judgment. § 5x82, Rev. Codes. If the cause of action does accrue at the date of the rendition of judgment, then the same is stayed for the period of nine years and the statutory stay cannot be considered a portion of the time within which an action may be begun, and plaintiff has nineteen years from the rendition of judgment within which to sue upon it. Weiser v. McDowell, 61 N. W. Rep. 1094; Casady v. Grimmelman, 77 N. W. Rep. 1067. The amended statute of limitations enacted in 1895 does not apply to judgments rendered prior to its passage. § 5146, Rev. Codes; Cooley Const. Lim. 455; Suth. St. Constr. 463; 23 Am. & Eng. Ene. L. 448; Sohn v. Waterson, 84 U. S. 596; 21 L. Ed. 737; Potter’s Dwarris on Statutes, 162, n. 9. The reasonable time is computed from the date the new law is passed and not from the time it takes effect. Bank v. Braithwaite, 7 N. D. 358-372. But this rule cannot apply to the case at bar because among other reasons it was impossible for the legislature to know when the codes would take effect. The legislature did not by express language make the amended statute apply to existing causes of action, as required by § 5*46, Rev. Codes. In shortening the period of limitation, the legislature must give a reasonable time for plaintiff to bring his suit before his right is barred. Is two months and fifteen days a reasonable time? 13 Am. & Eng. Ene. L. 695-696, 697, 701; Cooley’s Con. Lim. 449; Wood on Limitation of Actions, 38; Lewis v. Lewis, 7 How. 776; Terry v. Anderson, 95 U. S. 628; Sohn v. Water son, 84 U. S. 596; Turner v. New York, 168 U. S. 7&9¡ McKisson v. Davenport, (Mich.) 10 L. R. A. 507; Culbreth v. Downing, 121 N. C. 205, 61 Am. St. Reps. 661; Moore v. Brownñeld (Wash.) 34 Pac. 199; Bozvan v. City, (Wash.) 49 Pac. Rep. 551; Kennedy v. DesMoines, (la.) 50 N. W. 880; Webster v. Am. Bible Society, (Ohio) 33 N. E. Rep. 297; Parmenter v. State (N. Y.) 31 N. E. Rep. 1035; Wooley v. Yarnell, (Ills.) 32 N. E. Rep. 891; Price v. Hopkins, 13 Mich. 318; Sprecker v. Wakeley, 11 Wis. 432; McKinney v. Springer, 8 Blackf. 506; Davis v. Miner, 1 How. 183; Girdner v. Stephens, 1 Heisk. 280; Woart v. Winnick, 3 N. H. 473; Goshen v. Stromington, 4 Conn. 209; Bradford v. Brooks, 16 Am. Dec. 715.</p>

<p>Assignment — D elivery.</p> <p>A written instrument does not take effect until it is delivered, and, to be effectual, such delivery must be intentional, made .with the purpose that the instrument shall become operative, and have the effect to place it beyond the right to be recalled.</p> <p>Evidence Discloses No Delivery.</p> <p>The plaintiff’s right to equitable relief in this action is wholly dependent upon a certain written assignment which she alleges was executed and delivered to her by the defendant. Held, under the evidence, that there -was no delivery of such assignment, and it never became operative, and hence plaintiff is not entitled to relief.</p> <p>Certificate to Stated Case — Sufficiency.</p> <p>The certificate of a trial judge to a statement of the case properly settled and allowed in a case tried under section 5630, Rev. Codes, as amended by chapter 5 of the Laws of 1897, reciting that s'uch statement “contains all of the evidence introduced,” is sufficient to permit us to review the entire case upon appeal, provided it does not appear affirmatively elsewhere in the record that such statement does not contain all of the evidence offered at the trial.</p>

<p>Insurance — Parole Contract for Renewal.</p> <p>A parol agreement to renew a policy of insurance, entered into by an agent having authority to renew policies, held to be the agreement of the principal, and not of the agent.</p> <p>Authority of Agent to Bind Company.</p> <p>An insurance agent, 'having authority to solicit insurance, to accept risks, to agree upon and settle the terms of insurance, and to issue and renew policies, has authority to make a preliminary parol contract binding upon hi's principal, to renew a policy about to expire. Certain provisions of the policy respecting renewals, waivers, etc., held not to apply to such preliminary contract.</p> <p>Prepayment of Premium.</p> <p>Prepayment of premuim for renewal term is not essential to the validity of such preliminary agreement to renew.</p> <p>Amendment of Pleading — Waiver.</p> <p>Where an amendment of the complaint at the trial is allowed on condition that defendant be given sufficient time to prepare to meet t'he issues as amended, and thereafter defendant announces himself ready, and proceeds to trial on the amended pleadings, he will not be heard to urge that he was prejudiced by reason of the allowance of such amendment.</p> <p>Evidence of Custom to Extend Credit.</p> <p>Evidence of custom on the part of the agent to extend credit for premiums held admissible.</p> <p>Proof of Parole Agreement.</p> <p>Evidence that plaintiffs relied upon the preliminary agreement to renew the policy, and that, had they not believed that the policy was renewed, they would have procured other insurance, also' held competent.</p> <p>Instructions Approved.</p> <p>The court’s charge to the jury examined, and held to state the law correctly.</p>

<p>Appeal from District Court, Pembina County; Pollock, J.</p> <p>Action by Catharine Heyrock against William Surerus and John D. Geiger. Judgment for plaintiff, and defendants appeal.</p>

Action by Wilkin W. Fegan against the Great Northern Railway company. Judgment for defendant, and plaintiff appeals. A payment made under belief of a liability, which did not exist in fact, is not voluntary, and the money may be recovered back, though the mistake might have; been avoided if greater care had been taken to investigate and ascertain the facts regarding the transaction. United States v. Barlow, 132 U. S. 271-282; Brown v. Tillinghast, 84 Fed.

<p>Appeal from District Court, Cavalier County; Sauter, J.</p> <p>Action by the Plano Manufacturing Company against Edward J. Stokke, known as Edward Johnson. Judgment for. defendant, and plaintiff appeals.</p>

<p>Voluntary Transfer in Fraud of Creditors — Trusts.</p> <p>Where the owner of real estate conveys the same to another party with intent to hinder, delay, or defraud 'his creditors, and for no consideration except the promise of such party to reconvey to the grantor on request, the transaction creates no trust relation between the parties thereto. Such fraudulent grantee may retain the legal and equitable title to the property as against all the world •except the creditors of the grantor.</p> <p>Moral Consideration will Support Transfer.</p> <p>But, under such circumstances,' a moral obligation of a high character rests upon the grantee to reconvey upon the request of the grantor, and such moral obligation furnishes a sufficient consideration to support such a reconveyance.</p> <p>When Reconveyance will be Sustained.</p> <p>Such property, while in the hands of the grantee, would be subject to the claims of 'his creditors. But where no credit was given on the strength of the apparent ownership of such grantee, and where a reconveyance was made before any claims against the fraudulent grantee attached as liens upon the land, such reconveyance will be upheld as against the creditors of such fraudulent grantee.</p> <p>Knowledge in Grantee of Fraudulent Purpose.</p> <p>The fact that the original owner knew that the reconveyance was made by his fraudulent grantee with • the intent, upon 'his part, to hinder, delay, or defraud his creditors, will not taint the transfer, where such original owner requested the same in order to protect and preserve his property.</p>

Action by E. S. Kneeland against the Great Western Elevator Company for insufficient delivery of flax sold. From a judgment in favor of plaintiff, defendant appeals.

<p>Appeal from District Court, Richland County; Lauder, J.</p> <p>Action by Pehr Peterson against the St. Anthony & Dakota Elevator Company. Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from District Court, Cavalier County; Sauier, J.</p> <p>Action by John Mahon and John B. Robinson against William Surerus and Edward I. Donovan. Judgment for defendant Donovan, and plaintiff’s appeal.</p>

Action by Mary Léalos, administratrix of Edward Léalos', against the Union National Bank of Grand Forks. Judgement for plaintiff. Defendant appeals. Plaintiff is seeking to recover, so far as the allegation in her complaint is concerned, upon a contract between Edward Léalos in his life time, and the appellant.

McHenry and others, receivers of the Northern Pacific Railroad Company, against William Brett. Judgment for plaintiffs. Defendant appeals. At the time of appellant’s purchase at tax sale section 1643 Comp. Laws, was in full force and effect. The act of purchasing constituted a contract the obligation of which could not be impaired by subsequent legislation.

Action by the Northern Pacific Railway Company against William A. McClure and others to recover indemnity, under a lease, for liability for property destroyed by fire. From a judgment in favor of plaintiff, on an order overruling a demurrer to the complaint, defendants appeal. There is no privity of contract between the defendants and the Northern Pacific Railway Company, and no privity of estate which will allow the company to recover any loss which it has sustained.

<p>Jury Trial — Both Parties Move for Verdict by Direction — Waiver.</p> <p>This is an action to recover money only. A jury was sworn, and after all the evidence had been submitted, and the case was rested on both sides, the defendant requested the trial court to direct a verdict in 'his favor. This was denied, and defendant excepted to the ruling, The plaintiffs then requested a directed verdict in their favor. The trial court, without ruling on plaintiffs’ request, discharged the jury. The court subsequently made findings of fact and law, and judgment was entered in plaintiff’s favor, from which the defendant appeals to this court. No exception was taken to the discharge of the jury, and no error is assigned in this court based on such discharge. Held, that counsel have waived a jury trial, and consented by their silence to a trial by the court, and hence that the trial and appeal must be governed by chapter 5 of the Laws of 1897.</p> <p>Retrial — Statement of the Case — Rulings on Evidence — Specifications of Particulars.</p> <p>The statement of the case embodies specifications of alleged errors of law arising upon rulings of the court below upon the admission of testimony, and also a specification based upon the refusal of the trial court to direct a verdict in defendant’s favor. The statement further embrace specifications of particulars wherein the appellant claims that the respective findings of fact are not justified by the evidence. But .the statement of the case contains no declaration, as required by said act of 1897, to the effect that the appellant desires a review of the entire case in the Supreme Court; nor does the statement embrace a specification of any fact or facts which appellant desires this court to review. Held that, by reason -of said omissions in the statement of the case, this court cannot retry either the entire case, or any particular fact in the case, de novo. Held, further, that in such cases this court does not sit as a court of review, to correct errors arising upon rulings of the District Court upon the admission of evidence. Such rulings will only be passed upon in connection with a retrial in this court. Nichols & S'happard Co. v. Stangler, 7 N. D. 102, 72 N. W. Rep. 1089, followed.</p> <p>Findings Unsupported by Evidence — Cannot be Set Aside — When.</p> <p>Held, further, that said specification of particulars in which defendant claims that the findings of fact are without support in the evidence are superfluous, under said statute, and confer no- authority upon this court to retry the case, or any fact in the case, anew. Such specifications appertain to jury cases, but not to cases tried to the court. Bank v. Davis, 8 N. D. 83, 76 N. W. Rep. 998, followed.</p> <p>Error Waived by Consenting to Withdrawal of the Jury.</p> <p>Held, further, that the refusal of the trial court to direct a verdict in defendant’s favor, if error, was waived by counsel in consenting to the discharge of the jury and to a trial before the court.</p> <p>Where Abstract Does Not Show Jurisdiction the Record will be Explored to Determine the Fact of Jurisdiction.</p> <p>The appellant’s abstract stated, in general terms, that defendant appealed from the judgment of the District Court to this court, and contained a copy of such judgment, but omitted to state, as required by rule 13 of the amended rules of this court (6 N.' D. xviii), that such appeal was taken by serving and filing a notice of appeal and supersedeas bond. A motion to dismiss the appeal on the ground that the abstract failed to show on its face that an appeal to this court had been perfected was made in this court, and was denied. The abstract was faulty, for the reasons stated; but, in questions affecting the jurisdiction of this court, we shall, when necessary, -explore t)he record proper. In this case no- claim is made that the appeal itself was irregular.</p>

<p>Appeal from District Court, Cass County; Pollock, J.</p> <p>Action by Nils P. Julin against Fritzof Bowman. Judgment for plaintiff, and he appeals.</p>

<p>Divorce — Residence—Domicile—Jurisdiction.</p> <p>Section 2755, Revised Codes, construed, and held that the word “resident,” as used in said section, is equivalent in meaning to the word “domicile.”</p> <p>Jurisdiction — Mere Temporary Residence in the State for Divorce Purposes Insufficient.</p> <p>Held, further, that a resident of another state cannot acquire a domicile in this state simply by coming within the state and remaining here physically for the requisite statutory period. To bodily presence within the state there must be added the present bona-fide purpose of abiding here indefinitely as a home. Under the evidence in this case, held, that plaintiff was not domiciled in this state for a period of ninety days prior to instituting this action, and hence that the courts of this state were without jurisdiction to entertain her action for a divorce from the bonds of matrimony.</p>

<p>Appeal from District Court, Ransom County; Lauder, J.</p> <p>Action by Ira A. Hayes against F. W. Taylor, sheriff of Ransom county. Judgment for defendant, and plaintiff appeals. t</p>

<p>Review in Mandamus.</p> <p>Whether mandamus proceedings come within ■ the provisions of chapter 5, Laws 1897, relating to the trial of civil actions by the court, not decided. '</p> <p>Statement of Case — Specification of Particulars.</p> <p>But when a statement of the case fails to contain the specifications as required 'by section 5467, Rev. Codes, it must be disregarded by this court if the proceding was tried under the old system; and when it fails to contain specifications required by chapter 5, Laws 1897, it must be disregarded if tried under that law.</p> <p>Order Denying Motion to Quash Mandamus Not Part of Judgment Roll.</p> <p>Under section 5489, Comp. Laws, before an order of'the court can become a part of the judgment roll without being made so by a statement of the case, it must be an order “involving the merits and necessarily affecting the judgment.’’ Held, that an order denying a motion to quash an alternative writ of mandamus forms no part of the judgment roll, unless made so by a statement of the case.</p>

<p>Appeal from District Court, Richland County; Swater, J.</p> <p>Action by John J. Chilson against the Bank of Fairmount. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Cass County; Pollock, J.</p> <p>Action by Samuel D. Richardson against F. H. Campbell. Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from District Court, McIntosh County; Lauder, J.</p> <p>Action by Gottlieb Dobler and David Dobler, by A. W. Clyde, special guardian, against Gottlieb Strobel. Judgment for plaintiffs. ‘Defendant appeals.</p>

<p>Appeal from District Court, Stutsman County; Glaspell, J.</p> <p>Action by Nick Sluga against .Robert Walker. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Cass County; Pollock, J.</p> <p>' Action by the National Cash Register Company against Charles E. Wilson. Judgment for plaintiff. Defendant appeals.</p>

<p>Objection to Any Evidence Because of Insufficiency of Complaint Must Point Out Defect.</p> <p>An objection to the introduction of any evidence, upon the ground that the complaint does not state a cause of action, made at the beginning of the trial, is insufficient. The attack at that stage of the case must be specific.</p> <p>Mortgage of Future Crop — Statute.</p> <p>Section 4681, Rev. Codes, was enacted to prevent taking mortgages an crops to be grown for an indefinite number of years. It never was intended to avoid a mortgage of the crop for the existing year, whether matured or not.</p> <p>Presumption of Delivery.</p> <p>In the absence of testimony, the law presumes that a chattel mortgage is delivered on the day of its date.</p>

Action by John Storey against John W. Murphy and others and the State of North Dakota, intervener, to restrain- defendants, as county commissioners, from paying defendants Fred A. Baker and Charles FI. Stanley for services rendered by them as attorneys. From a judgment in favor of plaintiff, defendants appeal.

<p>Tax Deed — Delinquent Taxes.</p> <p>In the absence of a statute to the contrary, a tax deed regularly issued cuts off delinquent taxes for years previous to that upon which the deed is based.</p> <p>Prior Delinquent Taxes Cut off by Tax Deed.</p> <p>A county is seeking to secure judgments against certain lands for delinquent taxes thereon under the provisions of chapter 67 of the Laws of 1897. It appears that the land involved was sold to the county under article 19 of chapter 13 of the Compiled Laws, which authorized counties to become purchasers at tax sales. The safe to the county was in 1888 for the tax of 1887. In 1889 the same land was sold to an individual purchaser for the tax of 1888, who paid all subsequent taxes, and received a tax deed, which is conceded to have been regularly issued. Held, that the fax deed so issued cut off the rights of the county under the prior safe, and such county is not entitled to judgment for said taxes.</p>

<p>Appeal from District Court, Kidder County; Winchester, J.</p> <p>Action by Eugene S. Owen, as administrator of the estate of Eleazer Shoemaker, against E. C. Cook and others. Judgment for plaintiff. Defendants appeal.</p>

<p>Mortgage — Mechanic’s Liens — Priorities.</p> <p>The provision found in section 479s, Rev. Codes, giving a court authority, under conditons slated therein, to order real estate to be sold, and the proceeds to be divided between the mortgagee, who had the first lien upon the land, and a mechanic’s lien holder, who had a first lien upon the building, does not impair the obligations of the mortgage existing upon said land before the building was erected, and before the law was passed.</p> <p>Constitutional Requirement — Prospective Operation of Laws — Procedure.</p> <p>Such provision, as it relates to procedure only, may be applied in any case tried after its enactment, although the cause of action arose before the enactment. The rule requiring statutes to be given prospective operation only does not apply to statutes relating to procedure.</p> <p>Mechanic’s Lien Not Destroyed by Repeal of Lien Law.</p> <p>The repeal of the mechanic’s lien law, as it existed in the Compiled Laws, by the enactment of the Revised Codes, did not operate to extinguish liens that had been acquired under the prior law. Where a mechanic’s lien has attached under the law in force at that time, the holder’s right thereto becomes vested, and cannot be destroyed by the repeal of the law.</p>

<p>Appeal from District Court,'Walsh County; Souter, J.</p> <p>John Peoples was convicted of crime, and appeals.</p>

<p>Sodomy — Punishment.</p> <p>The measure of punishment which may be legally imposed upon one convicted of attempting to commit the crime of sodomy is provided by subdivision 1 of section 7694, Rev. Codes. The above subdivision fixes the punishment of attempts to commit crimes which are punishable by four or more years’ imprisonment in the penitentiary, or by imprisonment in the county jail, at not to exceed one-half of the longest term prescribed for the completed offense. Held, that the petitioner, who was convicted of an attempt to commit the crime of sodomy, and sentenced to five years in the penitentiary, was legally sentenced; the crime of sodomy being punishable to the extent of ten years in the penitentiary.</p>

<p>Replevin — Complaint—Allegation of Value — Verdict—New Trial.</p> <p>In an action to recover the possession of personal property, the complaint, without referring to items, stated that the total value of the property described in the complaint was $1,500. The answer denied such value, and alleged that the total value of the property was $2,000. The sheriff seized and turned over to plaintiff a portion only of the property de'scribed in the complaint, and in Ms return described the property so seized by items, and with particularity. The verdict was for defendants, and fixed the value of the property seized by the sheriff, and described in his return, at $2,090. There was no evidence offered of the value of the property seized. A motion for a new trial was made upon the ground, among others, that the verdict as to the value of the property was not justified by the evidence. Pending this motion, by leave of court, defendant filed a remittitur of the excess of the verdict above $1,500, and claimed that plaintiff was bound by the averments in his complaint as to the value of the property in controversy. The motion for a new trial was granted. Held, that the order granting a new trial was proper. The allegations and admissions in the pleadings were made with reference to the lump value of certain property described in the complaint, and these could not be resorted to in fixing the value of a different mass of property, viz: that seized by the sheriff.</p>

<p>New Trial — Sufficiency of Evidence.</p> <p>Testimony examined, and held, that the verdict rests upon substantial evidence, and henoe that the trial court properly overruled a motion for a new trial, based solely upon the ground of the insufficiency of the evidence to justify the verdict.</p> <p>Review.</p> <p>Held, further, that the record does not warrant this court in holding that the trial court considered that the evidence preponderated against the verdict returned by the jury.</p> <p>Duty of Court Where Evidence Preponderates Against the Verdict.</p> <p>Accordingly, held, that the question is not presented or decided in this case whether, in a case of a substantial conflict in the testimony, it would be the duty of the District Court to grant a new trial in a case whdre that court is of the opinion that the evidence preponderates against the verdict, and is intrinsically unjust.</p>

<p>Specific Performance — Evidence.</p> <p>This action was brought to compel specific performance of a contract to sell land, whereby defendants, upon certain conditions, agreed to sell to plaintiffs the land described in the complaint. Upon a trial anew in this court, and upon consideration of the evidence and facts in the record, it appears that long prior to the commencement of this action the plaintiffs had transferred, each acting separately and at different dates, all their right, title, and interest arising under the contract of purchase and sale to these defendants; that such transfers were made knowingly and willingly, without fraud, and upon adequate consideration. Accordingly, held, that the plaintiffs are without equity, and having no standing in court upon which a claim of specific performance can be predicated.</p>

<p>Appeal from District Court, McHenry County; Morgan, J.</p> <p>Robert Rosencrans was conviced of larceny, and appeals.</p>

<p>Arson — Information.</p> <p>An information under the statutes of this state which accuses the defendant of the crime of arson, and charges facts constituting arson in the third degree as defined by the statute, is sufficiently specific as to the crime charged, and does not accuse of one crime and state facts constituting a different crime.</p> <p>Instructions — Circumstantial Evidence.</p> <p>In a criminal case, where the evidence was entirely circumstantial, the giving of the following instruction, to-wit: “The law requires the jury to be satisfied of the defendant’s guilt beyond a reasonable doubt, but, in order to warrant a conviction, does not require that you should be satisfied beyond a reasonable doubt of each link in the chain of circumstances relied upon to establish the defendant’s guilt. It is sufficient if, taking the testimony all together as a whole, you are satisfied beyond a reasonable doubt of the guilt of the defendant,”— held error.</p> <p>Error Not Cured by Proper Instruction.</p> <p>This error was not cured by 'reason of the fact that the court, in other portions of the instructions, correctly stated the doctrine of reasonable doubt.</p>

Action by John C. Oswald and Theodore Basting against Patrick Moran and others. Judgment for plaintiffs, and defendants appeal. Notice of trial must be served after the issue to be tried has been formed by service of the proper pleadings. The note of issue must specify whether the issue presented is of law or of fact, that the order of its trial may be arranged.

Barney Murphy was convicted of robbery, and appeals. Upon the showing made in this case it was error for the court to deny the motion for a continuance. Gandy v. State, 43 N. W. Rep. 747; Miller v. State, 45 N. W. Rep. 451; Newman v. State, 35 N. W. Rep. 194. Any cause that would be considered a good one for postponement in a civil action is sufficient in a criminal action. § 8141, Rev. Codes. On proper showing a defendant is entitled to a continuance as matter of right.

Action by Moses Merchant against Michael Pielke. Judgment for plaintiff, and defendant appeals. To justify a court in exorcising its power to revise a contract fraud or mistake must be clearly proven. A mere preponderance of evidence will not suffice. What the parties have solemnly reduced to writing cannot be varied or overthrown by oral proof unless the clearest evidence of mistake or fraud is produced. Clute v. Frazier, 12 N. W. Rep. 327; Newton v. Holley, 6 Wis. 592.

<p>Action for Penalty — Parties.</p> <p>An action cannot be maintained in the name of the state to recover the penalty specified in section 1686, Rev. Codes.</p> <p>Action for Penalty in Name of Person Beneficially Interested.</p> <p>Penalties can only be recovered in civil actions in this state by the party for whose 'benefit the recovery can be had.</p>

<p>Divorce — Mental Suffering.</p> <p>Under section 2739, Rev. Codes, a decree of divorce may be granted in this state by reason of the infliction of grievous mental suffering, although such suffering produce no bodily injury.</p> <p>Question of Fact.</p> <p>But whether or not, in any 'given case, grievous mental suffering has been inflicted upon the complaining party, is purely a question of fact to be determined from all the circumstances of the case, including the mental characteristics of the party complaining, so far as the same may be developed in the case.</p> <p>Evidence Does Not Show Grievous Mental Suffering.</p> <p>Upon full consideration of the evidence in this case, it is held that the testimony fails to establish the infliction of grievous bodily injury or grievous mental suffering.</p>

<p>Divorce — Extreme Cruelty — Evidence.</p> <p>Action for a divorce. Evidence examined, and held that the allegations of extreme cruelty stated in the complaint as grounds for relief are not sustained by a preponderance of evidence. . ’</p> <p>Recrimination — Condonation.</p> <p>In actions lor a divorce, where defendant’s answer sets out causes of action for a divorce against the plaintiff in recrimination and as a defense to the plaintiff’s causes of action, it is competent for the plaintiff to show at the trial that the causes of action pleaded in the answer have been 'condoned by the defendant. It is likewise competent for the defendant to show at the trial that the defendant, the forgiving party, has not, since the condonation, been treated with conjugal kindness by the 'plaintiff. If this fact is made to appear, the condonation is ineffectual, and the recrimination alleged by answer may, despite the condonation, be shown to defeat the plaintiff’s action.</p> <p>Condonation Ineffectual as a Defense.</p> <p>Evidence examined, and held that the condonation of the offenses set out in the answer as recrimination was not followed 'by conjugal kindness 'on plaintiff’s part, and hence such condonation is ineffectual lor any of the purposes of the case.</p>

<p>Justice of the Peace — Service Within County — Special Appearance— Dismissal.</p> <p>In an action commenced in a Justice’s Court in the County of Cass, to recover money only, the summons in the action proper was served upon the defendant in the County of Traill. Defendant, appearing specially, moved in the Justice’s Court, upon the return day, to dismiss the action for want of jurisdiction over the person of the defendant, and the motion was granted. Held, that the action was properly dismissed, inasmuch as the action w*as not one in which service of a summons could be made outside of the county of the justice.</p> <p>Garnishment Does Not Modify the Rule as to Service Within County Where Summons Issued.</p> <p>Held, further, that there is nothing in the garnishment statute, as found in Rev. Codes 1895, § § 5382-5402, or in chapter 82, Laws 1897, repealing or modifying the provisions of sections 6640, 6641, Rev. Codes 1895, which sections regulate the service of a summons upon the defendant in an action proper instituted in Justice’s Court.</p> <p>No Second Summons in Garnishment Case.</p> <p>Held, further, that there is no provision of law which authorizes a justice of the peace in an ordinary action to issue a second summons in a case where the first summons fails to be served in time, nor does the right to do so exist in a case where a garnishment action has been instituted as ancillary to an ordinary action in Justice’s Court. The right to apply for a second summons in attachment cases in Justice’s Court is limited by the terms of the statute which grants the right.</p>

<p>Appeal .from District Court, Cass County; Pollock, J.</p> <p>Action by Mortimer Webster against the City of Fargo and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Taxation — Grain in Elevators — Constitutional Law.</p> <p>Chapter 5 of the Laws of 1899, which relates to the assessment and taxation of grain in elevators, warehouses, and grain houses, does not violate section 176 of the state constitution, which requires that ‘‘laws shall be passed taxing by uniform rule all property according to its true value in money.” Neither is such act obnoxious to subdivision 23 of section 69 of the constitution, which prohibits the legislature from passing local or special laws for the assessment or collection of taxes; nor to section xi of the constitution, which requires that all laws of a general nature shall have a uniform operation, — and is a valid enactment.</p>

<p>Appeal from District Court, Grand Forks County; Fisk, J.</p> <p>Action by H. L. Whithed against the St. Anthony & Dakota Elevator Company and T. S. Edison. Judgment for defendants and plaintiff appeals.</p> <p>The purchaser from the time of sale until redemption and a redemptioner from the time of his redemption until another redemption is entitled to receive from the tenant in possession the rents of the property sold, or the value of the use and occupation thereof. § 5549, Rev. Codes; Clement v. Shipley, 2 N. D. 430, 51 N. W. Rep. 414. One that holds or possesses land or tenement by any kind of title, either in fee, for life, years, or at will, may be a tenant in possession within the meaning of the statute. Harris v. Reynolds, 13 Cal. 5x5, 25 Am. & Eng. Ene. L. 895.; Walker v. McCuskcr, 71 Cal. 594; Knight v. Truett, 18 Cal. 113; Shores v. Scott River Co., 21 Cal. 135; Walls v. Walker, 37 Cal. 425. The statute recognizes the purchaser as the owner in equity of the land, subject only to the right of redemption, and gives him the rents and profits, or the value of the use and occupation, in short, the entire beneficial interest except the actual possession. § 5538, Rev. Codes; Page v. Rogers, 31 Cal. 293; Harris v. Reynolds, 13 Cal. 516.</p> <p>The contract in question did not create the relation of landlord and tenant, and therefore afforded no basis for a recovery of the rent. Bowers v. Graves, 66 N. W. Rep. 231; Chase v. McDonald, 24 111. 236; Altwood v. Ruckaman, 21 111. 200; Braddish v. Schnek, 8 Johns. 151; Caszvell v. Districh, 15 Wend. 379; Adams v. Mc-Kesson, 53 Pa. St. 81. The compensation for the use of land where the relation of landlord and tenant does not exist cannot be called rent. Moulton v. Robinson, 27 N. H. 550, 12 Am. & Eng. Enc. L. 730. The appellant in this case has no greater right to recover the crops grown on the land against the party in possession after they are severed than the owner of land would have as against a trespasser who crops the land and severs the crops. The remedy of the owner is an action for damages done to and for withholding possession of the land. Lindsay v. Ry. Co., 29 Minn. 411, 43 Am. Rep. 228. The party in possession of land sold under foreclosure is not divested of his right to the standing crop until the period of redemption has expired and until the execution of the sheriff’s deed. Everingham v. Braden, 12 N. W. Rep. 142; Allen v. Elder-kin, 22 N. W. Rep. 842.</p>

<p>Judgment — Irregular Entry — Findings of Fact and Conclusions of Law — Vacation of Judgment.</p> <p>This action was brought for equitable relief, and, an issue of fact being joined, was tried to the court. Evidence was offered by both parties, and the trial court directed the entry of judgment dismissing the action with' costs, and for other relief, whereupon, on January 30, 1899, judgment was entered upon said order. No findings of fact or law were ever made or filed by the trial court, nor were findings ever waived. On the 13th day of November, 1899, plaintiff moved in the District Court for an order setting aside such judgment, said motion being made upon various grounds, including the fact that no findings were ever made or waived in the action. Said motion was granted, and an order was made vacating the judgment, from which order defendant appeals to this court. The order, will be affirmed. The judgment was irregularly entered, and the order directing its entry in the absence of findings or a waiver thereof was made without authority of law.</p> <p>Entry of Second Judgment — Dismissal Without Prejudice — Innocuous Surplusage.</p> <p>' Subsequently, and on the same day said judgment was vacated, the trial court made and filed its findings of fact and law in the action, and upon m'otion of plaintiff’s counsel the trial court directed the entry of a judgment dismissing the action ,at plaintiff’s cost; and judgment upon Such order was forthwith entered. The order and judgment both carefrilly stated the grounds and reasons upon which the court based its adjudication, and then provided as follows: “The court orders that the action be dismissed, but without prejudice to the rights of the plaintiff to litigate in a proper action the other questions in this case, which said questions have not been litigated and decided in this case.” Defendant appealls from said judgment, and claims that the same was entered without authority of law for reasons appearing in the opinion. Held, upon grounds stated in the opinion, that the last judgment is in all respects regular except that the language embodied in the order and judgment which is above quoted should n'ot have been used, and that such language is purely obiter, and surplusage. It was proper to state the grounds and reasons upon which the court acted in deciding the case, but to what extent the adjudication made in this case may or may n’ot prejudice the plaintiff in prosecuting some other action pending or to ’be brought between the parties is a different matter, and one wholly foreign to any matter at issue in this action. This language, so far as it assumes to deal with questions not before the court, is therefore improper, and, the same is disapproved. But, inasmuch as no motion was made in the trial court to eliminate the language quoted from the judgment, this court will allow the same to stand in the record as innocuous surplusage.</p> <p>Appeal from Order and from Judgment by One Notice Improper.</p> <p>Certain matters of practice are considered in the opinion, no formal decision being made thereon.</p>

<p>Injunction — Violation—Contempt—Appeal—Effect—Appealable Order.</p> <p>Plaintiff obtained a degree against defendant containing injunctional provisions. After the entry of the decree, and after notice thereof, defendant (as plaintiff alleges) repeatedly violated the injunctional provisions. Plaintiff obtained an order on defendant to show cause why he should not be adjudged in contempt. On the return of the order defendant, as a defense, set up the fact that he had appealed from the decree, and filed a proper supersedeas bond, said appeal having been taken and perfected after the issuance of the order to show cause. The fact of the appeal and supersedeas being admitted, the court held as matter of law that the decree was superseded, and that the defendant could not be adjudged in contempt, and discharged the order to show cause. Held, (1) That the proceedig set forth a civil, and not a criminal, contempt, and that'it was properly instituted -by plaintiff to enforce obedience to a decree in his favor, under the provisions of section 5934, Rev. Codes. (2) Under the provision of section 5937, Rev. Codes, this proceeding must be treated as a motion in the original action after judgment, and the order discharging the order to show cause is an appealable order, under subdivision 2, § 5626, Rev. Codes. (3) The appealability of the order is not affected by the provision of section 5954, giving the accused party who has been adjudged in contempt a,right of appeal in all cases. (4) The perfecting of the appeal and filing of the supersedeas could have no retroactive effect, and could not purge a contempt committed while the decree was in full force and effect.</p>

<p>Action on Note — Directing Verdict.</p> <p>The mere possession of a negotiable promissory note, which is not payable to bearer and is unindorsed, by another than the payee, is not prima facie evidence of the ownership of such note. Accordingly it was error for the trial court to direct a verdict for the amount of the note in suit; there being no1 other evidence of title, and plaintiff’s ownership being denied by the answer.</p> <p>Powers of Guardian.</p> <p>A guardian, in making contracts relating to the estates of his wards, can bind himself only, and can bind neither his wards personally nor their estates.</p>

<p>Homestead — Selection—Extent and Value.</p> <p>Where the head of a family owns a section of land, and his dwelling house stands upon one governmental quarter section thereof, he may select his homestead from any portion of such section that may best suit his convenience and interests, with the limitations that such selection must include the dwelling house and appurtenances, and must not exceed 160 acres in extent or $5,000 in value.</p> <p>Levy — Homestead Claim — Presumption from Failure to Assert.</p> <p>But where no homestead has been selected or homestead declaration 1 filed for record as provided .by law, either by the head of the family or his wife, and where upon the levy of execution upon the whole section under a judgment against the owner thereof no claim of exemption is made either by the owner or any member of his family, no presumption of law arises that the debtor claims as his homstead the particular governmental quarter section upon which his dwelling house stands.</p> <p>Waiver of Homestead Right.</p> <p>Under such circumstances the debtor, or some one authorized by law to make the claim for him, must claim some specific portion of the section as his homestead, or the homestead right will be waived, and a sale under the execution will pass the debtor’s title.</p> <p>Estoppel by Laches.</p> <p>Where a judgment creditor of the grantors, with an execution levied upon the land, brings an action in aid of such execution against the grantors and the grantee, claiming that the conveyance was fraudulent as to creditors, and asking that it be set aside and the judgment declared a lien upon the land, and where the defense of homestead, if it existed, was available to either and all of such defendants, and must have defeated a recovery by the plaintiff, but no such defense was interposed, and the relief asked was decreed, the fraudulent grantee cannot, in a subsequent action between himsel'f and the assignee of the purchaser at an execution sale of the land on the judgment, but made after the entry of the decree, defeat such sale by setting up the homestead defense, of Which he failed to avail himself in the first instance.</p>

<p>Action on Bond — Evidence—Erasure.</p> <p>In an action upon a bond with a large number of sureties, it appeared on the face of the instrument that one name that had been signed as surety had subsequently been erased, and other names appeared below the erased signature. Held, that the bond was primarily admissible in evidence, that the legal presumption was that the erasure was innocent and not fraudulent in fact or in law, and that the burden rested upon the Other signers to show that their implied contract of contribution had been altered by the erasure.</p>

<p>Administrator’s Deed — Mistake of Law — Estoppel.</p> <p>A11 administrator, who, as such, and under the direction of the Probate Court, sells land which, under a mistake of law, in which the purchaser shares, is believed to belong .to the estate, but which in fact d'oes not, and executes an administrator’s deed therefor, without personal covenants, is not estopped by such deed from asserting title in himself; neither does the deed estop his heirs from asserting title derived from him. Gjerstadengen v. Van Duzen, 7 N. D. 612, 76 N. W. Rep. 233, followed.</p> <p>Receipt of Money Paid by Mistake of Law Does Not Operate as Estoppel.</p> <p>Held, further, that the fact that such administrator individually received the entire proceeds derived from a sale of the land, the same being allowed and paid upón a debt due him from the estate, does not, under the circumstances of this case and set out in the opinion, estop him or his heirs from asserting title which he then had or thereafter acquired, which title was then unknown to him.</p> <p>It is Essential that Party Asserting Estoppel Should Suffer Loss.</p> <p>Held, further, that it is essential to an estoppel which will defeat his title to the land that it shall appear that the party asserting thel estoppel will suffer loss, unless the holder of the title is prevented from asserting it.</p> <p>Co-tenant Not Entitled to Compensation for Improvements in Partition.</p> <p>This is an action in equity to partition farm lands owned by several co-tenants. One of the co-tenants demands that he be allowed compensation for certain breaking and backsetting done by a remote grantor in his chain of title. Held that, inasmuch as it does not appear that such improvements were necessary, or that they were assented -to by his do-tenants, and it does appear that they were for the personal benefit of the 'person making them, and that the rents of the premises for the time he possessed them more than offset the value of such improvements, such claim should not be allowed.</p> <p>Demurrer to Counter Claim Sustained.</p> <p>Held, that the demurrer interposed to the portions of the answer which set up facts by way of an estoppel to defeat plaintiff’s title and the counterclaim for improvements was properly sustained.</p>

<p>Appeal from District Court, Walsh County; Sauter, J.</p> <p>Action by John Kadlec against Frank Pavik. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Stutsman County; Glaspell, J.</p> <p>Action by the James River National Bank of Jamestown against J. R. Purchase and others. Judgment.for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Walsh County; Sauter, J.</p> <p>Action by John Welter against William C. Leistikow. Verdict for plaintiff. From an order granting a new trial, plaintiff appeals.</p>

<p>Appeal from District Court, Ramsey County; Morgan, J.</p> <p>Action by William M. Ballou against Amund Bergvendsen. Judgment for plaintiff. Defendant appeals.</p>

<p>Mortgage Foreclosure — Notice.</p> <p>Section 5848, Rev. Codes 189s, construed, and held, that a notice of mortgage foreclosure sale by advertisement, which was published 40 days and no longer, — such publication being first made on lanuary 14th, and the sale being made February 23d, — was legally published</p> <p>Six Successive Weeks.</p> <p>Under said section, notices are required to be published “six times, once in each week, for six successive weeks.” When these provisions are complied with, there will be no occasion to consider periods of time, whether computed by days or weeks. Finlayson v. Peterson, 5 N. D. 587, 67 N. W. Rep. 953, 33 L. R. -A. 532, construing Comp. Laws, § 5414, distinguished.</p>

<p>Appeal from District Court, Towner County; Morgan, J.</p> <p>Action by A. B. McDonald against George W. Beatty and Alice L. Beatty. Judgment for defendants, and plaintiff appeals.</p>

Action by the Dakota Investment Company and others against Timothy Sullivan and others. Judgment for plaintiffs. After sale on execution, J. W. Boeing moved to set aside, the sale. W. J. Hewitt, who held the record title to a portion of the land sold, appealed from an order setting it aside.

, presiding by request. Action by Franklyn S. Dalrymple and others against the Security Loan & Trust Company of Casselton and others. Judgment for plaintiffs. Defendants appeal. The object of an action to remove a cloud upon title, and to quiet the possession of real estate, is to protect the owner of the legal title from being disturbed in his possession or title.

Action by the First National Bank of Fargo against the^ Red River Valley National Bank of Fargo1. Judgment for plaintiff. Defendant appeals. It is contrary to the intention of the statute, § 5000, Rev. Codes, that the plaintiff should, by its own delay in the prosecution of its case, enhance its damages. Pickett v. Rugg, i N. D. 230/46 N. W. Rep. 446; First Nat. Bank v. Elevator Co., 8 N. D. 430, 69 N. W. Rep. 874; Page v. Fowler, 39 Cal. 412.

<p>Banks — Deposit—Evidence—Loan.</p> <p>The issuance of a deposit slip by a 'bank or the entry of a deposit in a pass book has only the effect of a receipt for money. While it raises a presumption that the deposit was made, yet it is open to parol explanation.</p> <p>Deposit to Another’s Credit — Entry in Pass Book.</p> <p>But where D. was indebted to A. & G., and applied to the bank fora credit for the amount for a few days, promising to then deposit to balance the credit, and such credit was given, the transaction amounted to a loan by the bank to D. of the amount; and Where D. took a deposit slip in the ñame of A. & G. for the amount, and also a pass book in their name, in which the deposit of the amount was entered, and delivered the same to A. & G. as payment of his debt, the legal effect was a deposit by A. & G. of the amount for which the credit was given, and the failure Of D. to fulfill the promise upon Which the credit was extended could not affect the legal rights of A. & G.</p>

<p>Appeal from District Court, Grand Forks County; Fisk, J.</p> <p>Action by W. J. Mooney and L. S. Champaigne against Owen Williams. Judgment for plaintiffs. Defendant appeals.</p>

<p>Deed — Covenants—Breach—Assumption of Debt.</p> <p>The defendants conveyed to the plaintiff a tract of land by a deed of warranty embracing, in addition ter the usual covenant for peaceable possession and quiet enjoyment, the following, as to incumbrances: “That the same are free from all incumbrances, except a first mortgage for two hundred and fifty dollars.” Said mortgage had been placed' upon the premises by a former owner, and was given to secure a loan of $250, to be paid in five years, with interest at t'he rate of 10 per cent, per annum. A not© for the principal supi, with interest at 7 per cent, per annum, payable annually until the maturity of the principal debt, was given by the borrower, and the mortgage referred to in the deed was given tq, secure such note. The borrower also gave the lender a series of notes falling due concurrently with the interest payments payable upon the 7 per cent. note. Said small notes drew no interest prior to their maturity, and in their total aggregated $35.50, which amount represented the total interest on said principal sum computed at 3 per cent, per annum for five years. A mortgage in the usual form was given to secure said series of small notes. Said mortgage was not referred to in ,gaid deed, and neither the grantors nor the grantee, knew of the existence of this mortgage at or prior to the date of the delivery of t'he deed to the plaintiff. These mortgages were of even date, and both were given to secure the payment of said lo'an of $250 and interest, and were part and parcel 'of one and the same transaction. Under the terms of the sale contract, the plaintiff assumed and agreed to pay said debt of $250, as a' part 'of the consideration and price of the land, and at that time plaintiff knew that the debt drew interest at the rate of 10 per cent, per annum. Plaintiff, after paying interest on the principal for a period of three years at 10 per cent., ceased to pay interest, and subsequently said small mortgage was foreclosed, and said premisas were sold for a balante of $18.50 then due, and secured by said small m'ortgage. The premises were not redeemed from the sale, and plaintiff was evicted from the premises under a title acquired under said foreclosure. Plaintiff sues to recover, as damages, the amount of the purchase money paid 'by him to defendants, with interest, and alleges a breach of defendants’ covenant for peaceable possession and quiet enjoyment, arising by reason of plaintiff's eviction from the land by title paramount. Held, that plaintiff cannot recover. The small mortgage was given to secure thie principal debt and interest, which plaintiff had agreed to pay, and which debt thereby became the plaintiff’s debt. Under such circumstances', the covenants sued upon did not refer to or cover either of the mortgages given to secure the debt so assumed 'by tlhe plaintiff.</p>

<p>Decedent’s Estate — Rejection of Claim.</p> <p>Under seotion 6405, Rev. Codes 1899, a claim against an estate may be rejected by an administrator either by indorsing his written dis-allowance on such claim, or by neglecting or refusing to act thereon for a period of 10 days after it is presented, and in either case the rejection is, under said section, a rejection by the administrator.</p> <p>Pleading Limitation.</p> <p>Section 6407, Rev. Codes, provides that suit must be brought upon a rejected claim within 3 months after its rejection; otherwise, it is forever barred. Accordingly held, that an answer in an action upon a rejected claim which alleged that the claim was duly presented on July 1, 1897, and that the same was not acted upon within 10 days thereafter or at all, and that more than 3 months after such 10-day period had expired before suit was commenced, states a complete defense, and a general demurrer thereto was properly overruled.</p>

Action by the Northwestern Telephone Exchange Company against the Northern Pacific Railroad Company and others. Judgment for plaintiff. Charles A. Marston and certain other defendants appeal.

<p>Distress of Personal Property for Taxes.</p> <p>In case of bulky articles of personal property (a grain elevator, in this instance), a distress for taxes, good as against the taxpayer, may be made without an actual seizure of the property. It is sufficient if the officer holding the warrant give the taxpayer, or its agent in charge, notice of seizure, and properly advertise the property for sale.</p> <p>Involuntary Payment — Recovery of Payment.</p> <p>Where a tax collector, with the tax warrant in his possession, i's in duty bound, under the law, to seize a-nd sell property for the payment of delinquent taxes, and is attempting so to seize and stell personal property, and where, to avoid such seizure and sale, the taxpayer pays an illegal and void tax under protest, and with notice to the collector thait action will be brought to recover the amount so paid, such payment is not voluntary, and may, in a proper action, be recovered. It is not necessary in such a case that the payment should be made, to release such personal property from actual detention on the part of the collector.</p>

E. H. Belyea was convicted of crime, and appeals. As against defendant’s demurrer, the information was sustained under subd. 3, § 7058, Rev. Codes. The information does not, in terms, cover the class of crime this section was intended to reach; and the language of the information is not broad enough to cover this section. The information does not aver that the acts were perpetrated without design to effect death and while defendant was engaged in the commission of a felony.

Action by M. C. Clarke, as receiver of the American Savings & Loan Association, against Mathias Olson and others. Judgment for plaintiff, and defendants appeal. Payments made upon stock that was pledged as collateral security for the payment of the loan does not constitute payment upon the loan. The purchasing of the stock and the borrowing of the money were distinct and separate transactions.

An original proceeding for the disbarment of Leslie A. Simpson, an attorney at law. The proofs were taken before a referee appointed by the court for the purpose. Upon the evidence reported, the accused was found guilty of conduct unbecoming an attorney and disbarred. By Sec. 96 Const, only judicial powers can be imposed upon the Supreme Court or any of its judges. Both the admission and the removal of attorneys are judicial acts.

Janies Montgomery and Maggie Montgomery were accused by information of assault and battery, while armed with a dangerous weapon, with intent to do bodily harm. They were found “guilty of an assault with provocation.” They appeal from the judgment of conviction. The complaining witness was erroneously permitted, over defendants’ objections, to testify to conclusions and to assume facts not in the record. Curl v. Chicago, Etc., Ry.

J. Robert H. Stewart was convicted of obtaining money by false pretenses, and he appeals. The indictment 'is fatally defective because it fails to state thjit the certificate, declared upon as a false token was not in truth and in fact issued by the township clerk, and was not in truth and in fact his act.

Andrew Ryan was convicted of forgery, and appeals. The defendant is not charged with having made the instrument the basis of this accusation, but is charged simply with uttering an instrument which someone else had made, and which the indictment says was falsely made and forged, yet purported to be the act of the person whose name was signed thereto.

Action by Willis A. Joy as administrator of the estate of Catherine L. Wording, deceased, against Tames Elton and Stillman W. McLaughlin as executors of the estate of Catherine L. Wording, and others. From a judgment in favor of. defendants, plaintiff appeals. If the same person is named as executor and also as trustee under a will, he may accept the one and decline the other.

Original application for mandamus by the state on the relation of Charles E. Wolfe v. Fred Falley, Secretary of State. A public officer charged with the duty of certifying nominations cannot conclusively determine who has been legally nominated so as to entitle his name to be certified. State v. Miller, 39 N. E. Rep. 24; Williams v. Lezvis, 54 Pac.

<p>Appeal from District Court, Steele County; Pollock, J.</p> <p>Action by Frank Keogh, trustee, against Fannie Pickert Snow. From a judgment in favor of plaintiff, defendant appeals. Motion to dismiss appeal.</p>

<p>Application for a writ of mandamus, on the relation of Hans Fosser, against Andrew T. Lavik.</p>

<p>Certificate of Nomination Must Designate Office. '</p> <p>Section 499, Rev. Codes,, requires certificates of nomination to designate the particular office for which the person named in the certificate was nominated, and a certificate not complying with that provision cannot properly be filed by the secretary of state.</p> <p>Time of Filing Certificate of Nomination.</p> <p>Section 503, Rev. Codes, requires certificates of nomination to be filed with the secretary of state not less than 30 days before election. A certificate filed 29 days before election cannot be legally filed by the secretary. The statute is mandatory.</p> <p>When Last Day Falls on Sunday — Effect.</p> <p>The fact that the thirtieth day before election fell on Sunday will, not change this rule. Section 5127, Rev. Codes, relating to excluding holidays, has n'o application to a case of this kind.</p>

Action by E. C. Tourtelot, receiver of the Grand Forks National Bank, against H. L. Whithed, assignee of the North Dakota Milling Company. Judgment for defendant, and plaintiff appeals. Section 5136 and succeeding sections of the Revised Statutes constitute, with the acts since passed, a complete code of laws for the government of banking- associations. Logan County Bank v. Townsend, 139 U. S. 67, 11 Sup. Ct.

<p>Application by William T. Anderson for a writ of injunction against J. G. Gordon, county auditor of Nelson county, and John W. Scott, county auditor of Grand Forks county.</p>

Action by the McCormick Harvesting Machine Company against William Rae and others. From a judgment overruling a demurrer to the answer of William Rae, plaintiff appeals. A co-maker of a promissory note, though a surety, is not entitled to notice of dishonor.

Action by the Gull River Lumber Company against R. H. Briggs. Judgment sustaining a demurrer to the complaint, and plaintiff appeals. Held: that the petition sufficiently disclosed that the contract was with the owner. Jarvis, Etc. Co. v. Sutton, 26 Pac. Rep. 406.

Action by Fred Plenniges and others against John Johnson and others. Judgment for defendant John Paschke, and plaintiffs appeal. The general rule of law is that a deed must designate the grantee, otherwise it is a nullity and passes no title. Allen v. Allen, 51 N. W. Rep. 473; Allen v. Withrow, no U. S. 119, 28 L. Ed. 90; Paul v. Moody, 7 Greenl. 455; Whitaker v. Miller, 83 111. 3x1; Chase v. Palmer, 29 111. 306, 9 Am. & Eng. Ene.

<p>Appeal from District Court, Richland County; Lauder, J.</p> <p>Action by John J. Chilson against W. F. Houston. Judgment for plaintiff. Defendant appeals.</p> <p>Antecedent representations made by the vendor as an inducement to the buyer, but not forming a part of the contract when concluded, are not warranties. Benjamin on Sales, § 610; 2 Parsons on Contracts, 477; Hopkins v. Tongueray, 15 C. B. 130; Halley v. Folsom, 48 N. W. Rep. 219; Sculley v. Bailey, 1 PI. & C. 405; Bloss v. Kittridge, 3 Vt. 28.</p> <p>Under the evidence in this case the question of the right to rely, and of reliance by plaintiff on the false representations of the defendant in making the contract in question is one of fact and not of law. Nash v. Minnesota Title Ins. Co., 139 Mass. 437, 34 N. E. Rep. 625; Ingalls v. Miller, 121 Ind. 188; Christinas v. Frei, 44 N. W. Rep. 329; Hopkins v. Hawkeye Ins. Co., 37 la. 203; Sim v. Pyle, 84 111. 271; Farr v. Peterson, gi Wis. 182. It will be presumed that the defrauded party acted in reliance upon the false representations when the contrary is not shown. Benjamin on Sales, § § 382-390; Kerr on Fraud & Mistake, § 79; Boyce v. Grundy, 28 U. S. 210; Connersville v. Wadleigh, 41 Am. Dec. 214; § § 3940-3942, Rev. Codes. This is not an action on contract of warranty but an action for deceit by which respondent was mislead into making a disadvantageous contract. Stanhope v. Szmfford 43 N. W. Rep. 403; Phelps v. lames, 44 N. W. Rep. 343; Andrezvs v. Jackson, 37 L. R. A. 402; Benjamin on Sales, § 610; Gustavson v. Rustemayer, 70 Conn. 125, 39 L.- R. A. 644; Crane v. Elder, 15 L. R. A. 795. Plaintiff was not bound to forget before the final trading all that had been stated to him six months before concerning the character of the note. “A lie six months old is quite as likely to mislead an innocent party to his damage as one hot from the liar’s mouth.” Lindauer v. Hay, 17 N. W. Rep. q8. A false affirmation, made by defendant with intent to defraud, whereby the plaintiff receives damage is ground for action, and it is not necessary that defendant should be benefited by the deceit or that he should collude with the person who is. Pasley v. Freeman, 2 Smith’s Lead. Cas. 1;. 3 Waite’s Actions & Defenses, 432; Crause v. Btisaker, 81 N. W. Rep. 406; Bird v. Kleiner, 41 Wis. 134; Cotshansen v. Simon, 47 Wis. 473; Lumber Co. v. Myhills, 80 Wis. 341; Beetle v. Anderson, 98 Wis. 560. These are actions for damages for false and fraudulent repre-. sentations inducing the making of contracts, and not contracts for breach of warranties, either embodied in or originally proven to form part of contracts. Everton v. Miles, 6 Johns. 139.</p>

Action by Stina M. Olson against M. J. O’Connor, sheriff, and Andy Jones. 'Verdict for plaintiff. From an order granting a new trial, plaintiff appeals. When the sheriff seized the property in dispute he took it from the possession of plaintiff, who told him that it was her property. He therefore cannot justify his seizure under claim and delivery process against her husband. Welter v. Jacobson, 7 N. D. 32, 73 N. W. Rep. 65; § § 2766-2767, Rev. Codes.

Action by Annie Lokken against W. G. Miller and W. J. Miller, partners as Miller Bros. Verdict for plaintiff. Defendants appeal. Defendants’ motion, made at the close of plaintiff’s case, to direct a verdict in their favor, should have been granted because there was no evidence of a demand before suit for the money claimed. 5 Am. & Eng. Ene. L. 521; Roody v. Ryler, 24 Vt. 660.

Action by David A. Gregg against Charles A. Baldwin. Judgment for defendant, and plaintiff appeals. Plaintiff took the negotiable note in suit in good faith, without notice of the alleged agreement, as collateral security for money loaned at the time the note was indorsed to him. He is a bona fide purchaser, and therefore protected as against the alleged offset. 4 Am. & Eng. Ene. L. (2d Ed.) 289, 290; § 5130, Rev. Codes.

Action by the Wells-Stone Mercantile Company against Aultman, Miller & Co. and others. Judgment for plaintiffs. Defendant appeals. This action arises out of the same subject-matter as the case of the same plaintiff against G. A. Grover, et al, 7 N. D. 460. On the 19th day of December, 1894, Grover executed a deed of trust to one Jones; Jones accepted the trust and qualified, and took possession of Grover’s property.

<p>Mutual Insurance — Applications for Membership.</p> <p>The securing of applications for membership and insurance in a purely mutual insurance company to a certain number and amount is required by section 3104, Rev. Codes, as a pre-requisite to the existence of the right to issue policies, and also to the right of the commissioner of insurance to issue the certificate of authority to do business, authorized by section 3090, Id. The taking of such applications is a necessary step in the_ formation of the corporation and is required to be done prior to the issuance of a certificate from the commissioner of insurance authorizing such corporation to commence business, and is not in violation of the provisions of the statute prohibiting the doing of an insurance business without such certificate.</p> <p>Payment of Annual Sum When No Assessment Made — Credit.</p> <p>Where a member of a mutual insurance company has obligated himself to pay such annual assessments as shail be made, not to exceed a specified sum each year, and in anticipation of an annual assessment pays to the treasurer the amount of an annual assessment in advance, and such assessment is not in fact made, the sum so paid stands to his credit, and he has a right to apply the same 'on an assessment for a succeeding year.</p>

Action by Simon Ravicz against Clinton G. Nickells, administrator. Judgment for plaintiff, and defendant appeals. The fact that the counterclaim is one for damages for tort, pleaded in an action on contract is immaterial. The question whether a counterclaim is proper or improper can only be taken advantage of by demurrer and not raised at the trial by motion. First Nat. Bank v. Laughlin, 4 N. D. 391, 61 N. W. Rep. 473.

Action by Curtiss Sweigle against T. C. Gates and others. Judgment for defendants, and plaintiff appeals. Defendants set up the statute of limitations, and also title in themselves, through tax proceedings. By pleading their tax titles defendants waived .the defense of the statute of limitations and invited a trial upon the merits. London, Etc., Co. v. Gibson, 80 N. W. Rep. 205. At the time of the tax sale for the 1887 taxes section 1640, Comp Laws, was in force.

<p>Appeal from District Court, Cass County; Pollock, J.</p> <p>Action by H. D. Scott, trustee in bankruptcy for G. A. Grover, against Albert E. Jones. Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from District- Court, Cass County; Pollock, J.</p> <p>Action by the Security Improvement Company and others against Cass County. Judgment for defendant, and plaintiffs appeal.</p>

<p>Appeal from District Court, Traill County; Pollock, J.</p> <p>Action by C. Tronson against the president and trustees of Colby University. Judgment for plaintiff. Defendant appeals.</p> <p>The note in suit is drawn with a stipulation for the payment of current rate of exchange in New York City in gold, or its equivalent, its negotiability is thereby destroyed. Flagg v. School District, 4 N. D. 30. In every other respect it is a perfect and valid promissory note. Hastings v. Thompson, 54 Minn. 182, 55 N. W. Rep. 968, 21 L. R. A. 178; Whittle v. Bank, 26 S. W. Rep. 1106. The note was given to McLaughlin in consideration of the $170 in money and the latter’s agrément to use the balance of the loan in paying off and securing the discharge of certain indebtedness due from Tronson to third parties. In this transaction there was a good, valuable and sufficient consideration for the $1,000 note. Consideration in bills and notes is some right, interest, profit or benefit accruing to the one party, or some forbearance, loss, or in other words, detriment suffered by the other. Bigelow on Bills & Notes, 213; Currie v. Nind, Law Rep. 10 Exch. 162. It is always sufficient to hold the note if the maker thereof got what he contracted for whether that consideration be commensurate to the amount of money stated in the note, as measured by the ordinary theories of value, being entirely immaterial. Wolford v. Pozvers, 85 Ind. 294, 44 Am. Rep. 16; Earl v. Peck, 64 N. Y. 596; Amherst Academy v. Cozvls, 23 Mass. 427, 17 Am. Dec. 38.7. The true consideration for the note and mortgage now in controversy was the money in hand paid by McLaughlin to Tronson, and McLaughlin’s contract to become respondent’s agent and pay off certain of respondent’s debts. This was sufficient consideration to support the note and mortgage. Chapman v. Eddy, 13 Vt. 205; Earle v. Angelí, 32 N. E. Rep. 164; Trask v. Vinson, 20 Pick. 103; Hub on v. Park, 116 Mass. 541; Turner v. Rogers, 121 Mass. 12; Hodgkins v. Moulton, 100 Mass. 309; Gutlon v. Marcus, 43 N. E. Rep. 123; Wells v. Sutton, 85 Ind. 70; Thompson v. Thompson, 43 Ky. 302; Lindell v. Rokes, 60 Mo. 249, 21 Am. Rep. 395; Hamer v. Sidtvay, 21 Am. St. Rep. 693; Wright v. Wright, 54 N. Y. 437; Gould v. Banks, 24 Am. Dec. 90; Overton v. Curd, 8 Mo. 420; Babcock v. Wilson, 25 Am. Dec. 263; Davis v. Callozvay, 95 Am. Dec. 671; Howe v. O’Molly, 3 Am. Dec. 693; Sharon v. Sharon, 8 Pac. Rep. 614; VanEpps v. Rediield, 68 Conn. 39, 34 L. R. A. 360; Provenshee v. Pi/xjr, 36 Atl. Rep. 552; Pullman v. Booth, 28 S. W. Rep. 719; Gum Co. v. Braendly, 51 N. Y. Supp. 93; Daniels on Neg. Inst. § 187; Randolph, Com. Paper, § § 479-481. Respondent is not entitled to the relief prayed for, viz: the cancellation of the note and, mortgage, because he has shown no mistake; he got all he contracted for. Pie has shown no fraud or accident. The note is non-negotiable, was past due when respondent commenced this action. No ground for the exercise of equity jurisdiction for the cancellation of a written instrument is alleged or proven. Lezvis v. Tobias, 10 Cal. S75; Field v. Holbrook, 14 Plow. Prac. 108; Hamilton V. Cummings, 1 Johns. Chan. 517; Pom. Eq. Jur. § 1377. There must be a controlling reason for coming into equity. Boyd v. Boyd, 33 N. E. Rep. 568. Relief is never given as against an innocent purchaser. Pom. Eq. Jur. § § 776, 871 and 918. Tronson made his note and mortgage to McLaughlin for a good and complete consideration. Pie thus put it in McLaughlin’s power to transfer the securities. The instruments were valid in their inception and valid when taken by the Colby University. They are still valid and cannot be delivered up and cancelled without working an injustice to the present holder. 18 Enc. PI. & Prac. 730, note 2; Brozvn v. Boyd, 158 Mass. 470, 33 N. E. Rep. 568; Dixon v. Wilmington Trust Co., 20 S. E. Rep. 464; Mayes v. Robinson, 3 S. W. Rep. 611. There was no time specified for the performance of the promise of McLaughlin to secure releases of the prior incumbrances. Plaintiff must therefore allege and prove a demand and refusál to perform, or that McLaughlin is insolvent and unable to perform. Worley v. Mourning, 4 Ky. 254; Hamble v. Tower, 14 la. 330; Morey v. Enke, 5 Minn. 392; Adkins v. Farrell, 42 S. W. Rep. 1143; Mount Joy v. Mnllikin, 16 Ind. 226; Gray v. Greene, 9 Hun. 334; Parker v. Parker, 9 South. Rep. 426; Tom v. Wollhoefer, 61 Tex. 277; Charpanx v. Bellocq, 31 La. Ann. 164; Duggar v. Dempsey, 43 Pac. Rep. 357; Axtel v. Chase, 77 Ind. 74; Maness v. Henry, n South. Rep. 410.</p> <p>Tronson .executed to McLaughlin his note secured by mortgage, in consideration whereof McLaughlin agreed to take up and satisfy of record a mortgage amounting to $616, and judgments amounting to $201, which he failed to do. Was the agreement dependent or independent? It will be construed as dependent unless a contrary intention appears from the terms of the contract itself. Davis v. Jefferies, 58 N. W. Rep. 813; Lester v. Jewett, n N. Y. 453; Kane v. Hood, 13 Pick. 281; Swan v. Drury, 22 Pick. 485; Williams v. Healey, 3 Denio, 363; Grant v. Johnson, 5 N. Y. 247; Parker v. Pármele, 20 Johnson, 130; Galvin v. Prentice, 45 N. Y. 162; Dunham v. Pettee, 8 N. Y. 308; Smith v. Leíais, 26 Conn, no; Clark v. Weis, 87 111. 438; Wagon Co. v. Crocker, 4 Fed. Rep. 578; Perry v. Connell, 31 S. W. Rep. 683. If the note in question had been made payable at a time so soon after its execution that McLaughlin could not with reasonable diligence have secured satisfaction of mortgage and judgments, then a recovery could be had in an action commenced when the note fell due without showing a compliance with his part of the agreement, but if he delayed bringing the suit until a time when satisfactions should have been secured then a compliance with his agreement must be shown before a recovery can be had. First Nat. Bank of Madison v. Spear, 80 N. W. Rep. 166; Bank v. IJagner, 1 Peters, 433; Loud v. Water Co., 153 U. S. 564; Hogan v. Kyle, 35 Pac. Rep. 399; Divine v. Divine, 58 Barb. 264; Underwood v. Tew, 34 Pac. Rep. 1100; Shelly v. Mikkelson, 63 N. W. Rep. 210, 5 N. D. 22. The validity of the defense of want of consideration was passed on in Flagg v. School District, 5 N. D. 191; Towle v. Greenberg, 6 N. D. 37, 68 N. W. Rep. 82. A partial failure of consideration is a good defense pro tanto. 4 Am. & Eng. Ene. L. (2d Ed.) 193. The facts set out in the complaint are sufficient to invoke the aid of a court of equity. 3 Pom. Eq. Jur. 1188, 1233; 1 Pom. Eq. Jur. 166, 170 and 171; Heywood v. City of Buffalo, 14 N. Y. 334; Ward v. Dewey, 16 N. Y. 519; Byne v. Vivian, 5 Ves. 604; Crooke v. Andrews, 40 N. Y. 547; Marsh v. City, 39 N. Y. 280; Lewis v. Tobias, 10 Cal. 575; Field v. Holbrook, 14 Plow. Prac. 108; Pierce v. Webb, 3 Barb. Ch. 16; Jackman v. Mitchell, 13 ,Ves. 581; Hayward v. Dimsdale, 17 Ves. m; Petit v. Shepherd, 5 Paige, 498; 2 Story’s Eq. Jur. 700; Ryerson v. Willis, 81 N. Y. 277; Fitzmaurice v. Mosier, 16 N. E. Rep. 175; Otis v. Gregory, 13 N. E. Rep. 39. A party to an instrument which is of no legal force or validity whatever ma}'- ask the aid of a court of equity in procuring its surrender and cancellation. Bishop v. Moorman, 98 Ind. 1; Scobey v. Walker, 15 N. E. Rep. 674; Brown v. Kranse, 23 N. E. Rep. 1012; Hon-nan v. Hartments, 27 N. E. Rep. 731. A court of equity will freely rescind a conveyance by parents to a son in consideration of his covenant to support them, in case of a breach of such covenant. Morgan v. Loomis, 48 N. W. Rep. 109; Blum v. Bush, 49 N. W. Rep. 142; Lampery v. Lampery, 12 N. W. Rep. 514; Mansñeld v. Mansñeld, 52 N. W. Rep. 290; Barker v. Smith, 52 N, W. Rep. 723. Such a court of equity will lend its aid to cancel a mortgage that is claimed to have been paid. Donaldson v. Wilson, 44 N. W. Rep. 429; Ingals v. Bond, 33 N. W. Rep. 404; Shilling v. Darmody, 52 S. W. Rep. 291; Rogers v. Day, 74 N. W. Rep. 190. By going to trial without raising the point, either by demurrer or answer, appellant cannot now for the first time be held to question respondent’s right to the relief prayed. Black v. Miller, 50 N. E. Rep. 1009; Stout v. Cook, 41 111. 447; Ryan v. Duncan, 88 111. 144. An objection to the jurisdiction of the court that there is a perfect remedy at law cannot be made for the first time at the hearing, it should be taken by demurrer to the bill or by answer. 1 Enc. PL & Prac. 883; Clay v. Greenwood, 53 N. W. Rep. 659; Corey v. Sherman, 60 N. W. Rep. 232; Buck v. Young, 27 N. E. Rep. 1006; Mayes v. Goldsmith, 58 Ind. 94; Day v. Henry, 4 N. E. Rep. 44; Lauder v. Green, 46 N. W. Rep. 1108; Benjamin v. Vieth, 45 N. W. Rep. 731; (Gould v. Hurto, 15 N. W: Rep. .588; First Nat. Bank v. Rowley, 61 N. W. Rep. 195; Bright v. Ecker, 68 N. W. Rep. 326; McVey v. Marratt, 45 N. W. Rep. 548; Dodge v. Davis, 52 N. W. Rep. 2; § 5272, Rev. Codes; Kolka v. Jones, 71 N. W. Rep. 558.</p>

Action by the state, on the relation of P. J. McClory, assistant attorney general, against N. McGruer, to abate a liquor nuisance. From the judgment both parties appeal.

<p>Parties Defendant — Appealable Order.</p> <p>This action is instituted for the recovery of money only, and was originally commenced against C. C. Donavan as sole defendant. Upon an application made to the trial court by said1 defendant, which was opposed by the plaintiff, the trial court, by its order, directed that the defendant the John Miller Company be brought into the action as an additional defendant. Held, that said order was error, construing sections 3230, 3238, Rev. Codes 1899. In such actions the plaintiff cannot be compelled to litigate his claim as against a party he has not chosen to sue.</p> <p>Bringing in Additional Party Defendants.</p> <p>Held, further, that said order bringing in the additional party defendant is one which “involves the merits,” within the meaning of section 5626, Rev. Codes 1899, and hence is appealable under said section.</p>

<p>Cancellation of Deed — Burden of Proof — Alteration.</p> <p>In a case where a plaintiff seeks to annul a deed of conveyance, and alleges as ground of relief that the deed has been materially altered after its execution, the burden to show such alteration rests upon the plaintiff; and in such cases the plaintiff must make out his case by evidence which is clear, strong, and convincing.</p> <p>Evidence Insufficient.</p> <p>Applying the rule above 'stated to the evidence in this case, held, that the plaintiff has failed to establish her cause of action.</p>

<p>Appeal from District Court, Emmons County; Winchester, J.</p> <p>Action by the County of Emmons against the lands of the First National Bank of Bismarck and others, to enforce payment of taxes on real estate delinquent in and prior to the year 1895 in such county. Judgment for defendants, and plaintiff appeals.</p> <p>This appeal is from an order vacating, as null and void, a final judgment in tax proceedings under the tax law of 1897, and allowing the defendant, the owner of the land against which the judgment was rendered, to serve an answer in the case. The statute, in terms, declares that the proceedings under it constitute an action. and such is the holding of all the courts construing this and similar statutes. McHem'y v. Kidder County, 8 N. D. 413, 79 -N- W. Rep. 875; Pine County v. Lambert, 58 N. W. Rep. 990; State v. Lands_, 42 N. W. Rep. 476; In re Stutsman County, 88 Fed. Rep. 337; Wells County v. McHenry, 7 N. D. 246, 74 N. W. Rep. 241. The filing of the list is the filing of the complaint and also constitutes a notice of the pendency of such action. When the list is filed the clerk prepares a notice which, with the list, is published for three weeks, and this notice constitutes the process, and the publication thereof the service of such process, and, upon default, judgment is entered as in other cases, but against the land and not against any person. Chap. 67, Laws 1897. The defendant has moved to vacate a final judgment in a civil action. The burden is upon him to set forth the specific grounds on which such judgment shall be vacated. As against his attack, the law presumes the judgment to be valid and regular and the court must consider only the defects, irregularities and grounds for vacating the same, which are embraced in the motion and supported by competent proof. 15 Enc. PI. & Pr. 286; Farrington v. New England Investment Co., 1 N. D. 108-109, 45 N. W. Rep. 191; Busching v. Sunman, 49 N. E. Rep. 1091. The claim that the judgment is void because entered by the clerk, is untenable. The entry of judgment is purely a ministerial act. The clerk is not called upon to pass upon any controverted issues of fact or question of law, because the default of those interested in the land confesses the legality of the tax appearing upon the published list; besides the clerk has before him a prima facie case. The statute declares that the list filed with the clerk shall be prima facie evidence that all the provisions of law in relation to the assessment and levy of the tax have been complied with. § 9, chapter 67, Laws 1897; § 1383, Statutes of Minnesota, 1894; Bond v. Pacheco, 30 Cal. 330. The jurisdiction of the court does not depend upon there being a valid tax, but upon the fact that a complaint has been filed against the land claiming a certain tax to be legal, and the land itself brought within the jurisdiction of the court by the publication of the notice and list, which, under the statute, constitutes lawful service against the property. The courts construing similar statutes have uniformally held, that the jurisdiction of the court was not affected by the fact that the land was exempt from taxation, or that the tax had been paid. Chisago County v. Railway Company, 6 N. W. Rep. 854; Chauncey v. Wass, 30 N. W. Rep. 826. This holding necessarily assumes that the jurisdiction of the court does not depend upon the existence of a tax, for in each of these cases there was no tax; in the one case because there was no power to tax the land at all, and in the.other case because the tax had been paid. The general plan and scheme of this tax law, as a whole, is that delinquency is the very issue tendered in these proceedings ,and upon which the judgment is conclusive. Everything, whether payment of the tax, exemption of the property from taxation, illegality of the tax, or anything that would show the land was not delinquent in fact, is intended to be mere matter of defects. Chisago County v. Railway Co., 6 N. W. Rep. 454; Wallace v. Brown, 22 Ark. 118; Worthen v. Ratcliffe, 42 Ark. 330; Knoll v. Woelken, 13 Mo. App. 275 ; Stale v. Sargent, 12 Mo. App. 228; Mayo v. Foley, 40 Cal. 281; Cadmus v. Jackson, 52 Pa. St. 295; Gaylord v. Scarff, 6 la. 179; Gage v. Parker, 103 111. 528. One of the so-called jurisdictional defects in the assessment is, that the assessor did not assess the land from actual view or upon any reliable information, but that the land was arbitrarily valued and assessed at a sum in excess of the value placed upon other lands. This in no manner affects the jurisdiction. The taxpayer must, for an unequal assessment, seek redress before the administrative body established by law for the purpose of hearing- his grievances. State v. Lakeside Land Co., 73 N. W. Rep. 970; State v. West Duluth Land Co., 78 N. W. Rep. 1x5. The other grounds of defects in the assessment and levy are, that in certain years the land was not properly described, and that levies were made by percentage and not in specific amounts and were made without being based upon an itemized statement. These defects do not take away the jurisdiction of the court to adjudicate that the taxes were legal. Wells County v. McHenry, 7 N. D. 246; In re Stutsman County, 88 Fed. Rep. 337. There was no affidavit of merits presented upon the motion ,and this is fatal to the order appealed from. Sargent v. Kindred, 3 N. D. 1; Kirschner v. Kirschner, 7 N. D. 291; Freeman, Judgments, 108; 6 Enc. PL & Pr. 187-188. No proposed verified answer was served with the moving papers. This is essential. 6 Enc. PL & Pr. 181-184; St. Paul, Etc. Ry. Co. v. Blackman, 44 Minn. 514. Defendant has been guilty of gross and inexcusable laches. The law proceeds on. the theory that, this being a proceeding in rem, personal notice is not given, or required to be given to those who are interested in the res. ■Dausman v. St. Paul, 23 Minn. 394; 6 Enc. PL & Pr. 164-190. Section 9, chap. 67, Laws 1897, is taken from § 1.588, Statutes of Minnesota 1894. The Supreme Court of Minnesota have held that a taxpayer cannot show, on the proceedings to obtain a tax judgment, that his land was not fairly assessed. State v. Lakeside Land Co., 73 N. W. Rep. 970; State v. West Duluth Land Co., 78 N. W. Rep. 115; McCurddy v. Prugh, 55 N. E. Rep. 154. The court acquired jurisdiction over the land by the publication of the statutory notice. Such mode of acquiring jurisdiction in such cases has been repeatedly sustained. Chaunccy v. Wass, 30 N. W. Rep. 628; Francis v. Grote, 14 Mo. App. 324; Gage v. Parker, 103 111. 528; Wallace v. Brown,>22 Ark. 118; Dausman v. St. Paul, 22 Minn. 394; Chisago County v. St. Paul Ry. Co., 6 N. W. Rep. 454; Commissioners v. Morrison, 25 Minn. 295; State v. Sargent, 12 Mo. App. 228; Watson v. Ulbrich, 18 Neb. 186-189. This is a proceeding in rem and not a proceeding against a person. The court takes jurisdiction of and proceeds against specified property exclusively; the final judgment is rendered against such property and not against any person. The statute forbids the setting aside of the sale by indirection, as by setting aside the judgment, and in proceedings to vacate the judgment after the sale has been made, except on the ground of want of jurisdiction would be futile. § 15, chap. 67, Laws 1897; Chauncey v. Wass, 30 N. W. Rep. 828. The legislature may prescribe the time within which a party may obtain relief against a judgment. Sargent v. Kindred, 5 N. D. 472; 6 Enc. PI. & Pr. 197; Chauncey v. Wass, 30 N. W. Rep. 831. It is the fact of the service of process or the publication of notice that gives jurisdiction, and not the proof thereof. It is elementary that the proof of service may be filed at any time or the fact of service established by any competent evidence. Cozvan v. Farrell, 7 N. D. 397; Lawrence v. Howell, 2 N. W. Rep. 617; Hugh v. Clark, 66 N. W. Rep. 262; Bernett v. Blats, 46 N. W. Rep. 319; Frisk v. Reigelman, 43 N. W. Rep. 1117; Commissioners v. Morrison, 22 Minn. 179; Southern Pacific Fruit Exchange v. Starum, 54 Pac. Rep. 345. Courts have frequently reversed orders vacating judgments, even in cases involving discretion, on the ground of the abuse thereof, and such orders will always be reversed when illegally granted. Bailey v. Laffee, 29 Cal. 422; Dausman v. St. Paul, 23 Minn. 394; Gauthier v. Rusicka, 3 N. D. 1; Kirschner v. Kirschner, 7 N. D. 291; Sargent v. Kindred, 5 N .D. 472. Even when the motion is made within the time fixed by statute it will be denied if the party has been guilty of laches. 6 Enc. PI. & Pr. 192; Gerrish v. Johnson, 5 Minn. 10; Groh v. Bassett, 7 Minn. 254; Altman v. Gabriel, 28 Minn. 134. The order is appealable. It is an order made after final judgment affecting a substantial right. Petition of St. Paul & Duluth Ry Co., 6 N. W. Rep. 454.</p>

<p>Tax Sales — Vacation of Judgment.</p> <p>Construing certain sections of chapter 67, Laws 1897: This is an appeal from an order of the District Court for Emmons county vacating a real estate tax judgment, and a tax sale made thereunder, pursuant to said chapter, and allowing the owner of the real estate so sold to file an answer to the complaint in the action. The order vacates the judgment, and sets aside the sale, upon the express ground that the judgment is “null and void.” The affidavit upon which the 'order is based embraces averments tending to establish the following faots: (1) That the owner of the land is á non-resident, and had no actual notice of the pendency of the action in which said judgment was entered until long subsequent to the entry of judgment; (2) that the judgment was entered by the clerk of the District Court, and so entered without an order or direction so to do from the District Court or a judge thereof. (3) That the publisher of the newspaper in which the delinquent tax list was published did not, prior to the entry of the judgment or at all, file with the clerk of the District Court the requisite number of copies of the newspaper in which such list was published, as required by section 4 of said chapter. (4) That the taxes appearing upon said delinquent list, and for which said judgment was entered, were illegal and vo'id, in whole or in part, on account of certain fundamental defects in the tax proceedings relating to the assessment and levy of the taxes appearing on the delinquent list, and for which taxes the judgment was entered. Held, upon this state o'f facts, that the order vacating the judgment and the sale made thereunder was erroneously made, and that none of the grounds above mentioned and stated in the affidavit operated to defeat the jurisdiction of the District Court to enter such judgment.</p> <p>Publication the Delinquent List — Judgment by Default.</p> <p>After an affidavit showing the publication of the delinquent list had been filed, the clerk of the District Court, under the authority conferred by section 6 of the act, proceeded to enter judgment by default against the land in question for the taxes, interest, and penalty appearing on the list. Held, that the fact of publication, coupled with the filing of the requisite affidavit of publication, conferred authority to enter such judgment; and, further, that the additional evidence of publication, to-vyit: the filing of the several copies of the newspaper, is not a pre-requisite to the entry of a judgment by default. Such newspapers could lawfully haye been filed later in the action nunc pro tunc.</p> <p>Order for Judgment Unnecessary in Tax Matters.</p> <p>Held, further, that in entering such judgment the clerk of the District Court acted in a ministerial capacity, and upon competent prima facie evidence of the validity of the taxes, viz: the statutory evidence. See section 9 of chapter 67. No evidence of the validity of a tax other than the statutory evidence would be competent in a default case. In such a case an order to enter judgment is not required by the act, and such an order would be without validity or effect.</p> <p>Motion to Vacate Default — Affidavit of Merits — Verified Answer.</p> <p>Held, further, and upon the assumption that the judgment was irregularly entered, and hence vulnerable to a proper attack thereon if one had been seasonably made, that it is nevertheless true that no attack is here made upon this judgment on the ground of mere irregularity, nor can the order be sustained on such ground. Neither an affidavit of merits or a proposed verified answer was filed or presented to the District Court as a basis for the motion to vacate. This omission is fatal where the motion is based upon a mere irregularity. Nor could the sale be set aside upon any ground of mere irregularity in the entry of the tax judgment. Section IS, chapter 67, Laws 1897.</p>

<p>Appeal from District Court, Emmons County; Winchester, J.</p>

<p>Appeal from District Court, Emmons County; Winchester, J.</p>

<p>Appeal from District Court, Emmons County; Winchester, J.</p>

<p>Appeal from District Court, Emmons County; Winchester, J.</p>

<p>Appeal from District Court, Emmons County; Winchester, J.</p>

<p>Appeal from District Court, Emmons County; Winchester, J.</p>

<p>Appeal from District Court, Emmons County; Winchester, J.</p>

Action by Flora B. Douglas against George P. Glazier. Judgment for plaintiff. Defendant appeals. The state tax levy was void because the board- of equalization had no power to levy the same; such a levy is the exercise of legislative power which may not be delegated. Willis v. Austin, 53 Cal. 178; Harper 'v. Rowe, 54 Cal. 235; Houghton v. Austin, 46 Cal. 648; § § 174 and 175 Const.

<p>Appeal from District Court, Emmons County; Winchester, J.</p>

<p>Appeal from District Court, Cass County; Pollock, J.</p> <p>Action by J. W. Stewart against Gregory, Carter & Co. Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from District Court, Cass County; Pollock, J.</p> <p>Action by Eliza Fields against Martha Mott. Judgment for defendant. Plaintiff appeals.</p>

Action by Thomas Miller, Jr., against the Township of Oakwood. Judgment for plaintiff. Defendant appeals. . The fact that Mr. Dobie had, for a period of years, permitted a trail to be traveled across his farm, had no bearing upon the question of the public usefulness and necessity of the road. Opp v. Timmons, 149 Ind. 239, 48 N. E. Rep. 1028.

Action by Albert Bidgood against the Monarch Elevator Company. Judgment for plaintiff. The Monarch Elevator Company appeals. It was error to permit the mortgagor to testify over objection that the chattel mortgage was signed by him in the presence of the witnesses mentioned on the mortgage. Keith v, Haggart, 2 N. D. 18; Donovan v. Elev. Co., 8 N. D. 383.