^^^. V A 9vv5 Cornell University Law Library The Moak Colfection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN HEnORY OP JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS cornel, university Ubrarv KFM5445.1.S43 ...^ supreme C Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017908918 DIGEST DECISIONS OF THE SUPREME COURT MINNESOTA. FROM VOL. I. TO XVI., INCLUSIVE. By jasper N. SEARLES, ATTORNEY AT LAW. CHICAGO: CALLAGHAN & CO., PUBLISHERS. 1872. Entered according to Act of Congress, in the year One Thousand Eig-lit Hundred and Seventy-Two, By CALLAGIIAN & CO , In the Office of the Librarian of Congress, at Washington. Printed and bound at the Courier Steam Printing HousEj Ann Arbor, Mich. EXPLANATORY NOTE. Tlie decisions digested in tliis volume include all tlie reported cases in the lii-st six- teen volumes of the Minnesota Reports, except a few cases in the ttrst volume, which were reluctantly omitted on account of an entire absence of any opinion of the Supreme Court. The value of this work to the practising lawyer will depend somewhat upon a thorough understanding of the plan upon which it is constructed. While it is thought that the body of the work will explain itself, yet a few words to that end, in this place, may not be out of place. First. In drawing off the points decided, it has been the aim of the author to show, whenever it was practicable, the exact state of the facts which gave rise to the decision. But where an opinion was not directly called for by the facts presented, it has still been drawn off, especially if it was designed to indicate the proper practice under any given circumstances, in the hope that the volume would thereby be better calculated to supply the want of any work on practice in this State.. Second. No attempt has been made to show whether a jioint is within the class of res adjudicata, or simply a dictum, otherwise than as stated heretofore, for the reason that the disputed territory lying between a binding authority and the merest dictum is so great, and subject to so many qualifications, that it was thought impracticable to attempt the adoption of any system which should pretend to stamp each point with its degiee of importance. Third. In the arrangement of the titles, regard has been had more to the law as it is, than to what it has been. Living titles have had the preference. The design has been to inn3ress upon the work the character of all those changes which modern legis- lation has made with the law and its procedure. Especially is this noticeable in the titles Givil Action, Pleading, and Practice. FourtJi. Every title has been made as comprehensive as possible, so that wherever it was practicable, the whole of the law on a given subject, so far as illustrated by the decisions of the court of last resort, may be found under that title. Fifth. The design has not been to repeat a point, but to arrange it under the head of tlie law to whicli it was most directly related, and by proper cross notes and a copi- ous index to refer to other heads of law to which it was less directly related. Sixth. The incorporation of the Statutes, construed into the body of the work, would have rendered the publication of the book at this time inexpedient. Hence, the iv EXPLANATOEY NOTE. difficulty has been remedied, so far as possible, by incorporating into the draft of a point the operative words of the Statute on which it turns. Seventh. It was intended to insert at the top of each page a running title contain- ing the sub-heads of the different titles, but the rapidity with which the titles succeeded each other rendered it impracticable. Eiglith. The execution of the plan of the work falls far short of perfection, but it is hoped the performance, with all its shortcomings, will form a valuable assistant to those for whose use it is designed. Ninth. In the arrangement of some parts of the work I have been materially aided by the Messrs. Abbots' Form Books, Tillinghast & Sherman's Practice, and Waite's New York Digest, titles Civil Action, Pleading and Practice. J. N. S. HASTINGS, Minn., December, 1872. OFFICERS OF THE SUPREME COURT OF THE TEUEITORY OP MINNESOTA. CHIEF JUSTICES. Hon. AARON GOODRICH. Hon. JEROME FULLER. Hon. WM. H. WELCH. ASSOCIATES. Hon. B. B. MEEKER. Hon. D. COOPER. Hon. MOSES SHERBURNE. Hon. ANDREW J. CHATFIELD. Hon. R. R. NELSON. Hon. CHAS. E. FLANDRAU. REPORTERS. WM. HOLLINSHEAD, Esq, ISAAC ATWATER, Esq, JOHN B. BRISBIN, Esq, MICHAEL E. AMES, Esq. HARVEY OFFICER, Esq, OFFICERS OF THE SUPREME COURT STATE OF MINNESOTA. TO THE CLOSE OP THE PERIOD COVERED BY THE REPORTS DIGESTED IN THIS VOLUME. CHIEF JUSTICES. Hex. LAFAYETTE EMMETT. Hon. THOMAS WILSON. Hon. C. G. RIPLEY. ASSOCIATES Hon. ISAAC ATWATER. Hon. CHAS. E. FLANDRAU. Hon. THOMAS WILSON. Hon. S. J. R. McMILLAN. Hon. JOHN M. BERRY. ATTORNEYS GENERAL. Hon. CHAS. H. BERRY. Hon. GORDON E. COLE. Hon. WILLIAM COLVILLE. Hon. F. R. E. CORNELL. CLERKS. J. J. NOAH, Esq, A. J. VAN VORHES, Esq.. GEORGE POTTER, Esq^ SHERWOOD HOUGH, Escl- REPORTERS. HARVEY OFFICER, Esc^ WM. A. SPENCER, Esc^ JUDGES OF THE DISTRICT COURTS DURING THE I'KRIOI) COVERED BY THE REPORTS DIGESTED IN THIS VOLUME. FIRST DISTRICT. Hon. S. J. R. McMILLAN. Hon. Ci-ias. McCLUEE. SECOND DISTRICT. Hon. E. C. PALMER. Hon. WESCOTT WILKIN. THIRD DISTRICT. Hon. THOMAS WILSON. Hon. I>L0YD BARBER. FOURTH DISTRICT. Hon. E. O. HAMLIN. Hon. C. E. VANDERBURG. FIFTH DISTRICT. Hon. N. M. DONALDSON. SIXTH DISTRICT. Hon. L. BRANSON. Hon. HORACE AUSTIN. Hon. M. G. HANSCOM. Hon. F. H. WAITE. SEVENTH DISTRICT. Hon. JAMES M. McKELVY. EIGHTH DISTRICT. HON.L. M. BROWN. Hon. ANDREW J. CHATFIELD. NINTH DISTRICT. Hon. M. G. HANSCOME. ERRATA. The body of this work was originally completed for the press when there were but fifteen volumes of the reports published. The subsequent incorporation of the matter of the sixteenth volume resulted in changing the numbers of the sections throughout the work, and rendered necessary a revision of the cross references. In some instances it is found that a cross reference has escaped the attention which the calls of a reasona- bly active practice enabled the writer to give to the matter. These miscitations are all coiTected in the index. Below are noted such errors as would tend to mislead, so far as they have been discovered. Page 26, Sec. 9, for ^'■AUen v. Jones, 8 Minn. SOS,-' read "Barker v. KdderJwuse, S Minn. ;?07." Page 118, Sec. 1, last line, for '• 7 Minn.''" read " 8 Minn.^' Page 137, ninth line from bottom of Sec. 23, after "receipts" insert "nothing." Page 188, Sec. 17, line eight, for "now" read "were." Page 310, Sec. 118, last line, for "9 Minn. 38," read "9 Minn. 28." ABBREVIATIONS. " R. S.," or " B. S. (1851)"— Used for the Territorial Laws known as the " Revised Statutes of Minnesota," compiled in 1851. "C. S.,"or"Comp. St."— Used for the "PublicStatutesof the State of Minnesota;" compiled by Moses Sherburne and William Hollinshead, Commissioners, and published in 1858; sometimes cited as " Pub. Stat.," but more generally as " Comp. Stat." " G. S.," or " Gen. Stat."— Used for the " General Statutes of the State of Minne- sota." This is the revision of 1866, and the one now in force. " G. L." and " Sess. Laws."— Used synonymously for the annual " General Laws," in contradistinction from the annual " Special Laws." Special Laws are referred to in full. D J G E S T MINNESOTA EEPOETS. ABANDONMENT. (See CONTKACT, II.) (Sop Easement, III.) abatement; 1. Persons upon whom, by operation of law, title has been cast pendente lite must he made parties and the complaint cannot proceed without them. Steele v. Taylor et al., I.Minn. 279. 2. Waiver of plea. The right to plead in abatement is waived by pleading to the merits. Gerrish et al. i>. Pratt et al., 6 Minn. u3. 3. An assignment by plaintiff pending the action does not abate or att'ect the ac- tion. Sec. 37 Camp. St. '535. Whita^re ». Culver, 9 Minn. 295 See Civile Action; Pi.eading. ABSTRACT OF TITLE. 1, Contents of conveyances not stated. Wlien a purchaser takes title on the strengtli' of an abstract of title whicli fails to state the contents of the conveyances, it is such negligence as not to cxcu.se lihii from notice of tlie existence of any incum- bi'ance which is referred to in any of tlie conveyances in his chain of title. Daugha- day V. Paine et a!. 6 Minn. 443. ACCORD AND SATISFACTION. 1. Requisites. Defendant pleaded an accord and satisfaction, and to .support it showed that, with plaintiff's consent lie sold property on which the latter had a lien, to C, with the understanding between all parties that C. should pay to plaintiff sufBcient of the purchase price to pay de- fendant's debt to plaintiff, that C. promis- ed to make such payment to plaintiff, but failed. Held, insufficient to sustain the plea— should have shown that plaintiff by reason of the ai-rangement discharged the defendant. Wrmlihxrn r. Winsloio, 16 Minn. 33. ACCOUNT STATED. 1. Tlie object of declaring on au ac- count stated, is to save the necessity of proving the correctness of the items com- 2 ACKNOAVLEDCIEMENT— AGENCY. posing the same; the effect of the account stated being to establisli prima facie the ac- curacy of the items without further proof, and the party seeking to impeach the ac- count Is therefoi-e bound to show affirma- tively any mistake or error complained of. Warner V. Myrick, 16 Minn. 91. ACKNOWLEDGEMENT. (See Deeds, II.) (See Limitation of Actions, IV.) ADMISSIONS. (See Evidence, I.) (See Paktnekship, VI.) ADULTERY UNDER PROMISE OF MARRIAGE. (See Criminal Law, 137.) ADMIRALTY. 1. The admiralty jurisdiction of the United States extends to all rivers or waters navigable in fact from the sea by vessels of ten or more tons burden. Reyn- olds V. Steamboat Favorite, 10 Minn. 242; Morin v. Steamboat F. Sigel, 10 lb. 350. AGENCY. [Scope Note. — This title is desigfned to be complete with the exception of such matter as will be found under the title Evidence. See Evidence 8S et seq.'] I. Public Agents. II. Private Agents. 1. AgenVs autlun-ity. 2. Authority, how executed. 3. AgenVs liability to third persons. 4. Principal, liability of to third persons. G. Ratification. 6. Liability of third person toprin,- cipal. I. Public Agents. 1. Tn absence of intent not liable per- sonally though they exceed their author- ity. When public agents, in good faith, contract with parties having full knowl- edge of the extent of their authoiity or equal means of knowledge with themselves, they do not become liable, individually, unless the intent to incur a personal re- sponsibility is clearly expressed, although through ignorance of law they exceed their authority. Sanborn v. JVeal et al., 4 Minn. 126. 2. Liability of public ag'ents. Gener- ally, where one assumes to act as the agent of another, and fails to bind his principal, he is himself liable; but public officers, acting within the scope of their general powers, are an exception to this rule — and Trustees of school districts are public offi- cers within the exception. Ih. II. Private Agents. 1. Agent's Authority. 3. Implied authority. An agent has an implied authority to bind his principal in all matters fairly within the scope of his agency, even though, in that particular case, his power is denied by the terms of his appointment, if this restriction is not known to the jierson dealing with him. Selden, Withers & Co. v' Bank of Commerce, 3 Minn. 166. 4. The fact that' the making of a prom- issory note and subsequent payment thereof by a person as the agent of another was acquiesced in by said person, will raise no implication of an authority in said agentto bind the principal by aninstrument in the nature of a mortgage. Humphreys et al. V. Havens et al., 12 Minn. 298. AGENCY. 5. An authority in an agent to do a certain act, cannot be implied from tlie fact that another act of an entirely diffei'ent character had been performed by the as- sumed agent, to which the principal has assented. lb. 6. When the belief of the authority of an agent arises only from previous action on his part as an agent, the persons so treating with him must on their own re- sponsibility, ascertain the nature and ex- tent of his previous employments. 2 b. 7. Where plaintiff seeks to chai'ge de- fendant with service performed by his agent, a receipt of such agent in full for all services will not bind plaintifl', without showing an authority from plaintiff to i-e- ceive the payment; nor would voluntaiy statements of such agent bind plaintift' as to the value of the services. Cooper v. Stin- son, 5 Minn. 201. ;?. Authority, How Executed. §. Where there are more than one. An authority conferred upon several agents must be executed by them all, and any act done by a less number will be void as against the principal— contra in case of public agents. Rollins et al. ■». Phelps et cU., 5 Minn. 463. 9. In Tvhat name to he executed. A sale to "J. W. Sencerbox, agent for J. G. Sencerbox," is" a sale to J. W. Sencerbox. Where an agent or attorney contracts on behalf of his principal he must do so in the name of the latter or he is not bound. Sencerbox v. Mc Grade, 6 Minn. 484. 3. Agents Liability to Third Persons. . 10. When agenc; appears in the hody of the instrument. A promissory note stated that the makers — who signed the same as Individuals without any additions — promise "as Trustees ^^ of a school dis- trict. Held, that the intention to bind themselves as trustees only appeared as clear as though they had signed in that capacity. Sanborn v. Neal et al., 4 Minn. 126. 11. Addition of "descriptio person- arum" to sig:niitnre. The addition of the words "'Trustees of School District No. 5," to the signatures of the makers of a promissory note will not relieve them from personal liability. To relieve them from all liability, except as trustees ; it must appear in, or from the instrument itself, that they executed the same in their capa- city as trustees. See Sanborn v. Neal et at., 4 Minn. 126. Fowler et al. v. Atkinson, 6 Minn. 578. 12. A contract signed "Temple & Beau- pre,agents Steamer Flora," holds the signers prima facie personally ; the rule being that when words that may be either descriptive of the person, or indicative of the charac- ter in which a person acts, are affixed to the name of a contracting party, prima facie they are descriptive of the person only, but the fact that they were not intended by the parties as descriptive of the person, but were understood as determining the char- acter in which the party contracted, may be shown by extrinsic evidence, but the burden of proof rests upon the party seek- ing to change the prima facie character of the contract, and when a party seeks to change the prima facie character of the contract on the ground of a)gency in mak- ing the contract, the fact of his agency must be clearly established, for if he acted as agent without authority he is personally liable. Pratt v. Beaupre, 13 Minn. 187. 13. Wliere whole nnmber of agents do not execute the contract. A contract to which "J. R., J. G. R., J. C, and G. H.," as "agents authorized by the log owners " are parties of the second part, signed by said parties, with their individual names, with the addition of "agent," to each name, except G.H.,whodoesnotsign, ison Its face, aeon- tract with the persons individually, and not the log owners — because : First, it is not dis- closed who the log owners are ; Second, it appears that four persons were the consti- tuted agents of the log owners, and only three of them joined in the contract. Rol- lins et al. V. PJidps et al., 5 Minn. 463. 14. Principal is not bound. When a private agent so executes his authority as ACIENCY. not to bind liis principal, lie will be him- self liiible. n>. 15. When agent assumes liability. A party, when contracting with parties who lire willinjr, iind do, place themselves in the position of principals though claiming to be agents, is not obliged to follow up oveiy channel of information to discover .i principal. lb. 26. When an a;^ent acts within liis instrnctions, an action will not lie against him unless it will lie against his principal. Strong v. (Jolter, 13 Minn. 82. 17. When liable for money liid and received. When an agent has collected for his principal, money which belongs to a strangei', he is liable for money had and received, so long as he has not paid it over to his principal. Spencer et al. v. Levering a al., 8 Minn. 461. 18. When neither ag'ency nor respon- sibility of principal is proved. When a defendant claims that he acted as agent, for a responsible principal, whom he named, but his agency nor ,i'esponsibilty of his principal is not shown, it does not require an express promise to make him liable. Spencer v. Tozer, 15 Minn. 146. 19. Ag'ent the Keal Principal. One who, without authoritj', executes an in- strument in the name of another whose name he puts to it, and adds his name only as an agent for that other, cannot be sued upon it, unless it be shown that he was the ?-«aZ ijrincipal. Sheffield et. al. v. Ladue, 16 Mimi. 388. 20. Subsequent Ratification by Prin- cipal. When defendant, without author- ity, executed a note to plaintiffs in name of A., which the latter subsequently rati- lied, in an action against defendant on the note. Hdcl, that as the validity of a rati- fication does not, in general, depend on its being communicated, defendant's failure to notify plaintiflsj of the ratification, does not make him liable without showing facts imposing a duty on him to give such notice, and damage resulting from his neglect. lb. 21. before plaintiff is damaged. De- fendant was authorized by A. to exchange a pair of horses liclonging to the latter, and did exchange them with plaintiffs for a pair of plaintitt''s and for the difference in the estimated valne gave plaintifl's the following note: Ninety days after date, for value received, we promise io pay to the order of (plain- tiffs) two hundred doUai-s, * * * Faribault, April 3, 1868. A., per (de- fendant.) Defendant M'as not authorized to give a note, but plaintiffs supposed ho was. Held, defendant was not liable on the note. Plaintiffs' remedy was by an action, in the nature of an action on the case against defendant for falsely assuming antliority to act as agent, but if A. af- terward, with knowledge of the facts, rat- ified the acts of defendant, then such ac- tion could not be maintained against him, except where suit was commenced, or inju- ry had resulted to plaintiffs from defend- ant's acts before ratification, or where the effect of making the ratification relate back, would be to put the plaintiffs in a worse position than they would otherwise have been in consequence of such unautlioi'ized act. lb. 22. Liability how determined. In de- termining upon the liability of a defend- ant for work and labor, where he claims that he acted for a responsible principal, whom he disclosed, the question is, to whom was the credit given. Spencer v. Tozer, 1.5 Minn. 146. 4. Principal, Liability of to Third Persons. 23. Generally. Declarations of an agent will be binding on his principal, when, 1st. He was authorized to make them. 2d. If though made without authority, they were brought home to the principal, who assented to or acquiesced in them, or re- mained silent when it was his duty to speak, whereby third parties were mislead, so that when an agent held property of his principals, as his own, the lattei- could re- cover it from bona fide purchasers where none of the aforesaid circumstances exist- ed, the mere possession of the agent not AGENCY. aft'ectiiiK the principal by \vay of estoi)pel. Oreeneiis. Bockendorf, d al. 13 Minn. 70. 24. Officer of the United States. F, United States Indian Agent, acting witliin liis antiioi-ity, took defendant's promissory notes, payable to the order of liiniself, " United States Indian Agent, or liis snc- oessor in office, for tlie use of the Winne- bago tribe of Indians." Held, his official clniracter being l. Judgments, assignment nf. Jf. Notes, assignment of. II. Assignments for Benefit of Cred- itors. 1. Generally. i. Construction of. ■J. Assignor, rights of. 4. Assignee. ■5. Assignment by partner. ■• 6. What will vitiate. 7. Who way ns.iail. ASSIGNMENTS. (See Paktnership, 18, 19.) (See Evidence, U,") ct seq.) (Sec Mech.^nic Lien.) I. Assignments in Genaral. 1. GeiieraUj/. 1. What estate necessarily passes. The provision of statute allowing the .assignee of a chose in action to bring suit in liis own name, does not necessarily determine that the Uf/al estate passes by the .assignment, the only object was to permit the real party in interest to sue. MucDo/uild et al. v. K/iee- land et al, 5 Minn. 352. 2. Assignment of void contract, with assignor's interest in subject matter, good as to the latter. An "assignment" pre- tended to convey a certain contract in writing (describing it) "together witli all tlie interest of the said company in tlie bonds mentioned in the contract or agree- ment, and the bonds mentioned therein," and certain otlier bonds not mentioned in tlie contract. Held, that though the " con- tract" had become void, still its assignment would not render nugatory that part of the assignment conveying the debt itself in apt and sufficient terms, and though the as- signee took no title to the bonds by virtue of the contract assigned, still tlie interest of the assignor in the bonds passed, lb. . 3. What is assignable. It seems, that whatevel' rights of action or of property, survive to an executor, or administrator, are assignable. Tattle i). Howe, et al., 14 Minn. 145. 2. Assignee, rights of. 4. If a debtor pays to the assignor without notice of the assignment, the lat- ter will be held as a trustee for the as- signee ; and even a judgment obtained against the debtor as garnishee, before pay- ment, will not defeat the rights of the as- signee, at least where the facts proved in an action brought to set aside the judgment disclose superior equities In the assignee. MaoDonald et. al. o. Knedand et. ai., 5 Minn. 353. 2 .1. An absolute assignment of a chose in action carries all the assignor's interest, i and a subsequent attaching creditor or as- signee can acquire no interest therein. lb. 6. P. C. & Co., had contracted with the M. & C. V. R. R. Co., by which the R. R. Company was to deposit with P. C. & Co , fort}'-three R. R. bonds, and receive from the Arm a certain contract. The firm of P. C. & Co., was dissolved by death of C, whereupon it was agreed, that, R. M. S. Pease should execute the contract in place of the firm, and the same be guaranteed by the surviving members, two of which were east. While the original contract was sent east for the signature of the guar- rantors, R. M. S. Pease gave the R. R. Co. another contract of same terms signed by himself and two others, the only surviving members present, which was to be surren- dered on the return of the other contract signed by all the guarrantors. The R. R. Co. failed to surrender the contract first received on the return and delivery to them of the other, but, assigned it to the plain- tiffs. Seld, the plaintiffs took nothing by the assignment "of the contract," the R.. R. Co., having no interest to convey. lb. 3. Judgments, assignment of. 7. An assignee of a judgment takes subject to all equities existing at the time, between the judgment debtor and the as- signor, whether he has notice of them or not. Brisbin et al. v. JSTewhall et al., 5 Minn. 273. 8. Right of set off attaches to judg- ment in hands of assignee. I. obtained judgment for costs against M. & Co., in the Supreme Court, the case being retried when M. & Co. obtained judgment on the merits against I., when I. assigned his judgment for cost to H. Eeld, H. took the assignment with notice of the judgment in favor of M. & Co., it being matter of rec- ord in same action and held it subject to the equitable right of Myers & Co., to have it set off against their judgment. Irvine et al. 0. Myers, 6 Minn. 562. lu ASSIGNMENTS. J^. Notes, assignment of. 9. An assignment of a promissory note after due, on which the assignor had a right of action against certain hankers by reason of the negligent discliarge of an en- dorser for want of due notice of non-pay- ment, does not it would seem, carry with it said right of action. Borup et al. v. Ninin- ger, 5 Minn. 523. 10. Assignment of note already con- Terted carries right to sue for the con- version. S. had placed a promissory note he owned in the hands of an agent, and in selling his interest in the same to plaintiff, gave the latter an order on his agent for the same, at time of the sale the note had been converted by defendant. Held, tlie sale to plaintiff carried the right to sue de- fendant for conversion of the note, dis- tingiiishing tliis from Borup et al. v. Nin- inger, 5 Minn. 274. Ninitiger v. Banning, 7 Minn. 274. II. Assignments for Benefit of Creditors. 1. Generally. 11. What is ? The Minneapolis & Ce- dar Valley R. R., by resolution " delivered into the possession of Sibley" certain bonds " for the protection of the creditors of the company, so far as they can be applied to that object." Said Sibley was authorized to pay them out to the creditors at the rate of 96 cents on the dollar, and draw on the company for the balance due any creditors who, after receiving a pro rata share, were not wholly paid. If there remained in Sib- ley's hands at a certain time any bonds they were to be returned to the company. Pay- ment of certain debts was otherwise pro- vided for. Hdd, this resolution did not constitute an assignment for the benefit of creditors — and had it been so intended it was void. But Sibley was thereby consti- tuted the agent of the company for speci- fied purposes, and he held the bonds as such agent, and his possession was the posses- sion of the company. Banning v. SiUey, 3 Minn. 389. 12. Fraudulent intent not necessary to constitute legal invalidity. The inva- lidity of an assignment for the benefit of creditors as a matter of law, by reason of something appearing on the face thereof, is not inconsistent with an honest intention on the part of the assignor. Mower et al. V. liatiford et al., 6 Minn. 535. 2. Construction of. 13. It is a general rule in the construe- - tion of assignments containing general words of transfer, as "all the debtor's property,'" that subsequent words of des- cription, or reference to a schedule setting forth the property particularly, will oper- ate to limit the general clause of ti'ansfer, and nothing will pass not specified or set forth. Ouerin v. Hunt et al., 6 Minn. 375. 3. Assignor, Riglds of. 14. May pay and become subrogated to rights of a mortgage on the assigned property. A debtor assigned all his prop- erty for the beuelit of creditors, among which was a piece of land which he had mortgaged to secure a debt: after the as- signment, and to avoid a suit on the part of the mortgagee, he paid the mortgage debt. Held, he became subrogated to the rights of the mortgagee, and could enforce the mortgage against the assignee — no fraud being shown in his purchase. Baker V. Terrell et al., 8 Minn. 195. 15. Resulting trust. An assignor for the benefit of creditors, who has a result- ing trust in the property, has such an in- terest therein as entitles him to defend it when attached for his debts. Richards et al., V. White, 7 Minn. 345. 16. What interest he takes. Belle Plain Company and defendant being ten- ants in common of a certain mill, and par- ties to a contract for the running of the same, certain disputes between them were referred to arbitrators, but before the de- ASSIGNMENTS. 11 termination of tlic same, the former as- signed its interest in tlie mills for the ben- etit of creditors. Held, the assignee took the property free from any lien by virtue of the award at the time of assignment — • and the assignee was not bound to com- plete the erection of other mills under the contract between the assignors and defend- ant, nor continue to run the mill with de- fendant as partner, and might have the copartnership in running the mills wound up. Moody V. Ratliburn, 7 Minn. 89. 5. Assignment by partner. 17. Without assent of copartner, may be ratified by tlie latter. An assignment of all the partnership property by one partner, without the assent of his copart- ner, for the benefit of creditors, though void at the time, may be ratified by the non-assenting partner, but not so as to af- fect rights of others which have vested prior to the ratification. Stein et al. v. La Dow et al., 13 Minn. 412. 6. W/iat will vitiate. 18. Power to sell on "reasonable credit." A trust deed for the benefit of creditors authorizing the trustee to "sell either at public or private sale, forthwith for cash or on reasonable credit, as trustee may think proper," conflicts with Sec. 1, Chap. 64, R. S., p. 269, and is void. Green- leaf V. Edes, 2 Minn. 270. 19. Intent to defraud, when implied. The intent of the debtor to hinder or de- lay his creditors must always be implied when such is the necessary effect of any provision in the instrument of assignment, or of the exercise of any power which the instrument confers. lb. 20. Part void, the whole void. If a provision in a trust deed for the benefit of creditors, authorizing the trustee to sell on credit, be void, it destroys the whole deed, and the rest cannot stand on the rule " Tit res magis valeat quam per eat," for the stat- ute makes every conveyance made to hin- der, delay or defraud creditors void as against them. lb. 21. Resulting trust to assignor with- out paying: all creditors. An Insolvent debtor sold, assigned, etc., by Bill of Sale to one of his creditors, all his property " not exempt by law from execution," the creditor executing with the debtor, at the same time, and as a part of the same trans- action, a written agreement binding the creditor to "dispose of the goods in the ordinary course of business," and to hold "to the order of the debtor" any "sur- plus that might remain '' after paying the creditor's claim with interest. Seld, the two instruments must be construed to- gether, and, 1st, That they constitute, not simply a transfer of property to satisfy a debt, nor a mortgage or pledge to secure a claim, but a general assignment for the benefit of creditors. 2d, As it provided for a resulting trust to the assignor with- out paying all the creditore, it is of itself evidence of an intent to hinder, delay and defi'aud creditors, and void as to them, un- der Sec. 1, Chap. 51, Statutes Comp. 3d, This eft'ect would be giveii to it solely by the clause empowering the assignee to dis- pose of the property in the ordinary course of business. 4th, Whether it would be void under the 1st Sec. of Stat. Frauds, Comp. St., (4.58th page), doubted. Truitt Bros. & Co. V. Caldwell, 3 Minn. 364. 22. Provision that the assignee shall and do, as soon as convenient, sell, etc. An assignment for the benefit of creditors providing that the assignee "sJiMl and do, as soon as convenient, sell and dispose of,'''' .etc., is not void on its face as tending to hinder, delay or defraud creditors — ^it be- ing in substance a stipulation that he shall do so as soon as he reasonably can do so — which the law would allow him withou.t any words to that efl'ect. Mc Clung v. Berg- fild, 4 Minn. 148. 23. Intent to prevent a forced sale. An intent tachment under sec. 130, ch. 66, G. S., as amended by sec. 1, Laws 1867, p. 110, w^hich states "that the defendant, as deponent verily believes, is about to assign, secrete, or dispose of his property, with intent to delay or defraud his creditors," is insuffi- cient. The statement must be positive. The words " as deponent verily believes " introduced by the amendment applies only to the departure from the State with intent to defraud, etc. Murphy v. Purely, 13 Minn. 422. 14. An affidavit for an attachment alleging that "the deponent further says, that he verily believes that the said defend- ant F. has assigned, secreted or disposed of his property with intent to delay and de- fraud his creditors." Rdd, insufficient, it must be averi-ed without qualification, fol- ATTACHMENTS. 15 lowing. Murpliy v. Pardy, 13 Minn. 422. Ely V. Titus, 14 Minn. 125. 15. I'wo grounds In the alternative. An affidavit for iin attaciinient under cli. 76, Laws 1867, p. 110. states as tiie ground tiiereof tliat tlie "defendant has tissigned, secreted or liisposed of, or Is about to assign, secrete or di&pose of liis propertj' «itli in- tent to delay or defraud his creditors." Held, states two separate grotnids of at- tachment in the alternative, and therefore bad. Guile v. McManny, 14 Minn. 520. VI. WHEisr IT WILL Issue. 16. Issue in .an action. An attach- ment in the District Court differs from the same writ in a Justices' Court in this, that in the former the proceeding is in an ac- tion but can issue only on bond tiled — in the latter court, it is the commencementof the action and issues without bond (undei' the Corap. St.) Davidson v. Owens, et al. 5 Minn. 69. 17. All actions for recovery of money. Sec. 142 and 144 Corap. St., p. 550, allows an attachment to issue in all actions for the recovery of money, whether sounding in tort or contract, or for liquidated or un- liquidated damages — in this respect differ- ing from the writ in a justices' court. lb. 18. It is sufficient for the purposes of an attachment under Comp. St., p. 550, sec. 142, 144 that the claim be for the "recovery of money" following — Davidson v. Owen, 5 Minn. 69. Morrison et al. u. Lowjoy et al., 6 Minn. 183. 19. Fraudulent representations as af- fecting subsequent dealings. P. in May, 1864, to obtain credit with S. falsely rep- resented that he was out of debt; S., on the strength of such, and other representa- tions credited P. with goods which were afterwards paid for. In September, 1864, S. without further communication credited P. with other goods. Held, P.'s false rep- resentation in May as to his pecuniary ability was kept alive and carried along, as it were, so that the wrong impressions created could be treated as operating upon and inducing the credit in September. The course of dealing having its origin in fraud and deceit, the party should be held re- sponsible for tlie natural consequences of his wrong as business is ordinarily con- ducted, and the sale in September was on false representations within the meaning of the statute authorizing attachment when debt was fraudulently contracted. Comp. St., p. 551, sec. 144.. Lewis et at. v. Pratt, 11 Minn. 57. 20. Fraud or fraudulent intent when necessary. Under sec. 144, chap. 60, Comp. St., it is not necessary that, except In the case of a foreign corporation or non-resi- dent, either fraud or fraudulent intent on the part of the debtor must exist in all cases before an attacliment can issue. But to authorize its issue under the sub div. al- lowing it when for any other good and sufficient reason he (affiant) will be in danger of losing liis debt unless it be grant- ed, the affidavit must state facts from which the officer can, in the exercise of a sound discretion, come to that conclusion. Kei- glier et al. v. McGormiek, 11 Minn. 545. 21 . I'resuniption as to time of its issue. Where the statute allowed a writ of attach- ment to issue " at the time of issuing a summons, or at any time afterwards," and the record is silent as to when it issued. ' Held, it will be presumed that the attach- ment was issued at a proper time. Blake V. Sherman, 12 Minn. 420. 22. For a statement of facts which will sustain a writ of attachment under the statute see. lb. 23. Pendency of action at time of is- suing not necessary— it may issue with tlie summons. It is not necessary under our statute that an action be pending at the time an attachment issues. It may issue at the time of the summons or afterwards, whereas the action is not commenced until the summons is served, or at least delivered to the officer with the intent tliat it be serv- ed, sec. 128, oh. 66, G. S. In an action in a court of superior jurisdiction it will be presumed the summons issued at or before the issuing of the attachment— pnroa facie. Blackmanv. Wheaton, 13 Minn. 326. 16 ATTORNEYS. VII. How Executed. 24. On personal property. Under sec. 40, sub div. 2, Coiup. St. 551, which proVidus that " personal pi-opeity capable of manual delivery to the Sheriff, must be attached by taking it into his custody." Held, the statute must be strictly construed, and an attachment of Minnesota State E,. R. bonds must be made by the officer talcing them Into his actual possession, they being personal property capable of manual delivery. Oaldwell v. Sibley, 3 Minn. 400. . VIII. DissoLUTiojf OF Attach- ment. 25. Of property in hands of assignee. An attachment against property in the hands of an assignee for the benefit of creditors, on ground of fraudulent assign- ment, will be dissolved when it appears the attachment criJditors ajjpeared and re- ceived benefits linder the same. FnUowing Lemay v. Bibeau, 2 Minn. 291. liiehards et al. i). White, 7 Minn. 345. ATTORNEYS. I. Generally. II. Attorney's Power. III. Attorney's Lien. IV. Attorney's Liability. V. Stipulation betw^een Attor- neys. VI. Substitution of Attorneys. I. Generally. 1. Tlte recognition of signatures of at- torneys does not extend beyond theii- pro- fessional acts done in performance of their duties as attorneys at law. Masierson et al. V. Leclaire, 4 Minn. 103. II. Attorney's Power. 2. Power to admit service of original process on client. An attorney at law cannot, without special authority, admit service of an original process by which the court obtains jurisdiction for the first time of the party— the relation of attorney and client does not arise until after service of process, lb. 3. Power to bind client nntil linal no- tice of substitution. One M. appeared for defendant in the Justice's and District Court, and was so recorded. In the latter court C. was associated with him, and took charge of the case In the Supreme Court on appeal. No written notice of substitu- tion of C. as attorney in place of M. was given to respondent. In the District Court after having been once in Supreme Court, where C. had acted and been recognized, respondent moved to dismiss the appeal, which was done, with the consent of M., who was present. Held, appellant was' bound by M.'s action, he being attorney of record. The statute is imperative. Sec. 14 Comp. St. 007. McFarland v. Butler, 11 Minn. 72. 4. Presumption as to authority. It is not to be ijresumed that an attorney acts without authority. Gemmell v. Bice et al., 13 Minn. 400. 5. By admission to bind client. The admission of attorneys of record bind their client in all matters relating to the pro- gress and trial of the cause, and are gen- erally conclusive, and unless a clear mis- take is shown tiiey are not relieved against, and if the opposite party has been Induced to alter his condition it is doubtful whether they can be relieved against. In case of mistake, it must have been one against which ordinary care and attention would not have guarded against. Rogers v. Green- wood, 14 Minn. 333. III.' Attorney's Lien. 6. Merger in judgment. When a party recovers judgment, and assigns it to his attorney, the attorney's lien is merged in his more general title by assignment. Hodd V. Broit, I Minn. 274. 7. Requisites of notice of lien. A no- tice of attorney's lien served on the ad- verse party must specify the amount of the ATTORNEYS— BAILMENT . 17 lien. Porhush v. Leonard et al., 8 Mian. 303. S. No lien in absence of a§r>'eenient for compensation. Where there has been a special agreement for compensation be- tween attorney and client, the statute gives a lien after notice for the amount of the agreed compensation, but in the absence of agreement the attorney has no lien, for the "costs" referred to in the statute consist only of the amount allowed as indemnity for employing an attorney — Comp. St. Chap. 62, Sec. 1 and 9 — all other expense being taxable as "disbursements" and '•charges,"— but by 8. L. 1860, p. 244, these "costs" were abolished, thus taliing away all lien of an attorney for "costs." Sec. 10, Sub. 4, Chap. 82, Comp. St. lb.- 9. Lien in tlie action essential. Under Sec. 16, Chap. 82, Comp. Statutes, where an attorney is given a lien upon money in the hands of an adverse party, or upon a judgment, it must be for services rendered in the particular action in which judgment is rendered or money found in the hands of the other paity. lb. IV. Attorney's Liabilitv. 10. For autliorizing levy on property of a stranger. Where an attorney in an execution directs the sheriff to make a levy and sale of personal property in the pos- session of the defendant or his agent un- der circumstances which create a prima facie presumption of ownership in the de- fendant, but which really belongs to a third person, who has omitted to make and serve upon the sheriff the affidavit re- quired by Sec. 1, Ch. 24, Law 1865, the attorney is not liable for the taking and conversion of the property. Wilson, Ch. J., dissents. Barry v. McOrade et al., 14 Minn. 163. V. Stipulation between Attor- neys. 11. Wiien set aside. A written stieu- lation between the attorneys of record will not be set aside when no fraud or collusion 3 appears, and even wlien fraud and col- lusion is alleged it is extremely doubtful whether such relief could be granted with- out showing the insolvency of the attor- ney. Bing/tam v. Board of Sapereisors of Winona County, 6 Minn. 130. VI. Substitution of Attorneys. 12. After judgment. After more than a year had expired from the entry of judg- ment, the judgment creditoi- employed a new attorney to conduct a garnishee pro- ceeding, without any regular change of attorneys on the record. Hdd, he could do so under Sec. 10, Chap. 83, Comp. St. Hinckley et al, v. St. Anthony Falls Water Power Co., 9 Minn. 55. ATTEMPT TO EXTORT PROP- ERTY, ETC. (See Criminal Law, 26.) AWARD. (See Arbitration.) BAILMENT. I. Generally. II. Pledge oe Pawn. III. Bailment by Hieing. 1. Locatio custodio, or hiring of custody. S. Locatio rei, or hiring of a thing. IV. Mandatum. V. Commodatum or Loan. (See Common Carrier.) I. Generally. 1. Compensation to bailee not requi- sit«. All bailments, whether with or with- out compensation to the bailee, are con- tracts founded on a sufficient consideration. To support the contract it is not necessary 18 BAILMENT. the bailee should derive some benefit from it— the latter fact determining only the character of the bailment, consequently the bailee's degree of liability. McCauley ji. Davidson et al, 10 Minn. 418. II. Pledge or Pawn. 2. Pledgor's interest siil)ject to execu- tion sale. The pledgor of personal prop- erty has an interest in the pledge equal to its value after discharging the sum for which it is pledged, and we cannot see why that interest is not subject to levy and sale upon execution, if the pledgee is will- ing to surrender the possession. If the pledge be a promissory note, and be sur- rendered to the officer under a levy, it is no defense for the maker that the pledgee need not have surrendered the possession. Mower v. Sticknei/, 5 Minn. 397. S. Pledgee cannot transfer the pledge without the debt. S. contracted to " as- sume and pay" O.'s promissory note, pay- able to the order of C, then held by F. as collateral security for a debt of C.'s, having been transferred by delivery, with- out endorsement. S. promised F. to pay it also; afterwards F. transferred O.'s note to plaintiff, but did not assign the debt which it was held to secure. Held, F. held the note in pawn and could transfer no interest or title to the same, separate and distinct from the debt due from C, and plaintiff took no title, the same having been transferred after due, and without endorsement from O^, and possession was no evidence of ownership. Van Eman b. Stwnchfield et al., 13 Minn. 75. 4. The lien or special property which the pawnee has in the pawn, is by reason of his ownership of the debt for which he holds it as security. He cannot separate the lien from the debt so that the chose in action may be owned by one man and the lien held by another. The lien is not a distinct and independent right of property, capable of being transferred or assigned. 26. 5. Pledgee may sue on a promissory note pledged, on default of pledgor. When a promissory note, payable to order, is pledged after the same is due, to secure a debt of the pledgor, the pledgee, on de- fault of the pledgor, may without demand sue the maker thereof in his own name, under Sec. 26, 'Oh. 66, G. S. White v. Phelps, 14 Minn. 27. 6. Liability of pledgee of promissory note. It seems that the pledgee of nego- tiable paper as collateral security is bound to ordinary diligence in preserving the legal validity of the pledge, and answer- able for a loss through a corresponding degree of negligence to the extent of such loss, and this even though demand and notice be necessary. Lamberton et al., i). Windom et al, 13 Minn. 233. 7. Fraudulent pledgor may redeem. Though property is transferred as a pledge, in fraud of creditors, it is redeemable by the party so transferring or those claiming under him. Jones v. Eahilhj, 16 Minn. 320. III. Bailment by Hiring. 1. Locatio ciistodio, Hiring of custody. 8. A warehouseman acquires no lien on goods for charges advanced by him, in the absence of authority from the owner, unless by special custom, which must be pleaded. Bass & Co. v. Tipton, 1 Minn. 408. $. Locatio rei. Hiring of a thing. 9. Among the engagements of a party taking a thing to hire are to use it well, to take care of it, to return it, and to pay the price of hire, and if not expressed the law implies them, and a breach of any of them is a breach of the contract between the letter to hire and the hirei', for which the party injured is entitled to recover siich damages as are the natural and prpximate consequences of the breach, provided by reasonable endeavoj's and expense he could uoj prevent such damage. Graves et al., v. Moses et al., 13 Minn. 335. 10. Duties and liabilities of livery- ATTORNEYS— BILLS OF EXCHANGE. 19 man and hirer where the latter's neg- lect, etc., makes the liorse sick. Where A. lets to hire a horse to B., anrl the same is made siclc by the misconduct or neglect of B., A. is required to use all reasonable exertions to cure him and prevent his death. The expense to which he is put, the trouble and attention he is obliged to bestow for this purpose, are occasioned by the breach of B.'s engagement, and are natural and proximate damages resulting from it, for which he is entitled to recover, as well as the value of the horse in case his death is caused by such bad usage or want of care on the part of B. lb. IV. Mandatum. 11. Contract to transport goods with- out compensation. Defendant contracted with plaintiff to transport, without com- pensation, plaintiff's goods to a certain place and there deliver them in good or- der and condition, as addressed — (unavoid- able damages of Are, navigation and col- lision only excepted). Reld,^ the accept- ance of the goods by defendant — though without a compensation — was a sufficient consideration to support this contract, and imposed upon him the obligations of a mandatory — i. e., bound him to slight dili- gence and made him responsible for gross negligence. McOauley v. Davidson et cU., 10 Minn. 418. V. COMMODATUM OR LoAN. 12. What is a contract of loan. An agreement by which B. "has this day lent to W. 259 ewe sheep, etc., in consideration of which letting said W. covenants with said B. to keep said sheep three years for the increase therefrom, and deliver annu- ally, etc., to said B. 950 pounds wool, and at expiration of said three years said W. shall return, etc., to said B. as many sheep as were lent to him. * * * w. to pay all taxes assessed on the sheep, and if any die or become lost or sold, or if W. un- faithfully performs his agreement, or fails to take proper care of or shear said sheep, or neglects to pay taxes, B. may take im- mediate possession of the sheep in W.'s possession without working forfeiture to damages sustained by reason of loss, etc. Said B. to be restored in all respects to same position he would be in if this agree- ment had been fully performed," is a bail- ment and not a contract of sale. WiUiams V. McGrade, 13 Minn. 174. BANK BILLS. (Sec Evidence, 94 et seq. ) ' BANKS. (See Pleadings, 31.) 1. Power to contract, and how exer- cised. Sec. 9 of the Banking Law of this State (Comp. Statutes, 854,) which provides that "contracts made by the bank or banking association established under the provisions of this act, and all notes and bills issued and put in circulation as money, shall be signed by the President and cash- ier thereof." Held, that the bank could contract, within the limits of its charter, without the signature of the officers men- tioned; although, in such case, proof of the authority of the person purporting to act as agent for the bank lies on the party dealing with such agent; whereas, if the contract be signed by the President and cashier, that is enough to bind the bank, for they are constituted agents of the bank by the statute, and nothing but proof of their signature is necessary. JDana et al., V. The Bank of St. Paul, 4 Minn. 385. BENEFIT OF CLERGY. (See Criminal Law, 40.) BILLS OF EXCHANGE. (See Notes and Bills.) 20 BILLS OF LADING— BOXA FIDE PURCHASER. BILLS OF LADING. 1. When 11 bill of lading consigns property to M. ungualifieclly, lie is pre- sumptively the owner of the same. Mc- GanUy ». Davidson et al., 13 Minn. 102. BOARD OF EDUCATION OF THE CITY OF ST. ANTHONY. 1. Has power to complete payment of pui-chase money for land annexed by op- eration of law. Plaintiff' gave bond for deed to School Dist. No. 3, which thereupon occupied and built thereon a school house. The legislature by act afterwards included this property within the limits of the dis- trict, composed of the city of St. Anthony. The law declared the title to all such prop- ei'ty within the limits pf the city to be in the Board of Education, and made It the duty of the board to manage and control all the houses, lands and appurtenances within the limits, etc. Defendant took deed from plaintiflF, promising to pay him In installments. Plaintiff alleges non-pay- ment, and asks payment or cancellation of deed. Held, defendant by operation of law took the equitable title to the land formerly held by School Dist. JSo. 3, and under the power to manage and control had the power to pay or contract to pay the purchase money due on the premises — it being the performance of an original agreement, and not a contract to purchase, which the law restrained defendants- from doing. (An act incorporating Board of Education of Oity of St. Anthony, ap- proved Feb. 28, 1860.) Connor v. Board of Education of City of St. Anthony, 10 Minn. 439. 2. Bonds of the Board, what a suffi- cient execution thereof. An act that pro- vided that "the Board of Education shall issue their bond or bonds, executed in their name of office, binding themselves and their successor? in office, etc., * * * vsrhioh bonds shall be attested by the clerk of said school district." The obligatory portion of the bonds is in the name of the "Board of Education of the town of Minneapolis, and their successors in office," — the con- cluding or ensealing clause runs: " In wit- ness wliereof, the President, Inspectors, and Secretary of said Board of Education, have hereunto set their hands and seals the fourth day of," etc., to which is signed the names of one person as "President," four as "Inspectors," and one as "Secretary." Held, more accurate to have used the cor- porate style of the defendant in the en- sealing clause, but nothing in the language used makes it inconsistent with the body of the bond — it names no individuals but only certain officers by their titles, and is binding as bond of defendant. Under the act there being no "clerk" of the disti-ict, the Secretary performs his duty. The an- nexation of a separate scroll or seal to each name does not vitiate the bond, nor render the signers personally liable, it be- ing unnecessary. Wiley et al., v. Board of Education of the Town, of Minneapolis, 11 Minn. 373. (See St. Anthony, City of. ) BOARD OF CANVASSERS. (See Elections.) BONA FIDE PURCHASER. (See Mechanic's Lien, 4; Partner- ship, 29.) 1. To constitute a bona flde purchaser for a valuable consideration, there must be paid money or its equivalent, (not the can- cellation of an indebtedness, ) in entire ig- norance of the existence of other claims and equities. This ignorance must exist at time of payment, not at time of making contract simply. Minor v. WiUoughby, 3 Mmu. 225. 2. One who takes, without the pay- ment of any consideration, from a fraudu- lent vendee, is not a bona fide purchaser as BOATS AND VESSELS. 31 against the creditoi's of the original ven- dor. Hieks V. Stone et al., 13 Min n. 434. 3. Vendee's wife; B.'s wife loaned to B. money, her separate property, upon an agreement that B. might invest the same | in land, or otherwise, and be the owner of j such land or other purchase in his own name, but, when requested, B. was to ac- count to his wife for said loan, and trans- fer to her the property purchased there- with. With a portion of this money B. purchased three land warrants, the assign- ments on which were forged, though un- Ivuown to B. Afterwards B. bought land of A., for which he paid in part with the land warrants, representing, innocently, that he was the owner of them, and A. believing such representations to be true. Aftervyards B., at the request of his wife, conveyed to her this land, to apply on said loan, at an agreed valuation. Afterwards A. discovered the invalidity of the assign- ments on the land warrants, and that he had acquired no title thereto. Held, B.'s wife was not a purchaser for value, within the rule that the equitable lien of the ven- dor for unpaid purchase money will not be enforced against a bona fide purchaser, for value, without notice. Duke v. Balme et al, 16 Minn. 306. BOATS AND VESSELS. 1. To what contracts the statute ap- plies. The provisions of Chap. 86, K. S., relating to the liability of boats " used in navigating the waters of this territory," &c., does not apply to contracts made with- out the limits of the State — and the remedy in such cases is against the owner or offi- cers. Steamboat Beville v. Landreth, 2 Minn. 179. 2. Under Chap. 86, Comp. Statutes, en- titled " boats and vessels," causes of action arising wholly without the State are not entitled to the benefits of this" act, and if parties seek the coui-ts of this State as the forum to enforce their rights in such cases, they must adopt the common law remedies. Ii~Dme V. SteaTnboaf Hamburg, 3 Minn. 192. 3. Under Chap. 86, Comp. Stat, con- cerning boats and vessels, causes of action arising upon contracts made and brolicn within the State; and contracts made with- in, and broken without the State; and con- tracts made without to be performed with- in the State, are entitled to the benefits of this chapter; and the same principle gov- erns causes of action mentioned In the statute not arising out of contracts. lb. 4. An action lies against a boat " by name," under Comp. Stat. p. 647, tor caus- ing the death of a person; and the action may be brought under Comp. Stat. 610, by the administrator for the benefit of the widow and next of kin — lie being a "per- sonal representative " within the meaning of the statute — it is not necessary that the deceased should have commenced the ac- tion — the word ''maintain" in the Statute is not so restricted in signification. Bou- tiller, administrator v. The Steamboat Mil- waukee, 8 Minn. 97. 5. Who may proceed ag'ainst a boat. Under Chap. 76, Comp. Stat., all persons, whether original creditor or assignee of the claim having a demand against a boat may proceed thereunder. Seynoldsv. Steamboat Favorite. 10 Minn. 242. 6. Title how transferred. A bill of sale or some written instrument is not nec- essary to pass the title of a boat. McMa- hon o. Davidson, impleaded ,and the redress of private wrong-s, and in it, is merged all aclions that formerly existed either at law or in equity. Under this title will be found, under a sys- tem of arrangement heretofore blocked out by the Messrs, Abbotts of New York, every action whatever so far as it has received illustration by the adjudica- tion of the court of last resort in this State, with ref- erence to, ist, Its Reqjjisites : 2d, When it Lies; 3d, "When it Does Not Lie, and 4th, The Defense. For the evidence admissable in any ac- tion the title Evidence must be examined. Under the title Pleading will be found all those cases showing where a complaint or answer iu any particular action was sufficient or insufficient, hence that title will throw great light on the subject matter of this one, and should be examined with it.] I. What it is. II. Actions on Contract. I. Generally. ?. Defenses. III. Actions for Money Paid, etc. 1. When it lies, .?. When it does not lie. IV. V. Action for Use and Occupation. 1. When it does not lie. VT, Actions for Work, Labor and Services. Actions for Goods Sold. 1. Requisites of. CIVIL ACTION. 27 1. Hequidles of. S. Wkcn it lies. 0. W lien il does not lie. VII. Actions ox Bills and JCotes. 1. When it does not lie. J. Bequisites of. 5. Defenses. VIU. Actions on Xon-negotiable Instruments fok the Pay- ment OF Money. 1. Arbitration bond. J. Bonds given in mat. a. Requisites of. b. Wlien it does iiol lie. 0. Undeiiakings. IX. Action fob Unliquidated Dam- ages FOR Breach of Contrct. 1. Covenants. a. Requisites of. b. When it lies. u. Defenses. 2. Employment. 3. Indemnify. 4. Scdes of real property. a. Wlien it lies. b. Defenses. 5<, Quantum Mefruit. a. When it lies. b. When it does not lie. 6. Warranty. a. Requisites of. b. When it lies. X. Action for Deceit. 1. Requisites of. 5. When it lies. XI. Actions for^ Negligence. 1. Requisites of. S. When it lies. 3. When it does not lie. If. Defense. XII. Actions for Injuiribs to Per- sonal Property. Generally. Requisites of. Wlien it ties. When it does not lie. Defenses. XIII. Actions for Claim and Deliv- ery of Personal Property. 1. Requisites of. , 2. When it lies. S. Wlien it does not lie. Jf. Defenses. XIV. Actions fob Injuries to the Person. 1. Assault and Battery. a. Oenerally. li. Defenses. ■J. False Imprisonment. b. When it does not lie. c. Defense. 3. Libel. XV. Actions for Injuries to Keal Property. 1. Trespass. a. Requisites of. 6. When it lies, c. Defense. 2. Nuisamx. u,. Requisites of. b. When it does not lie. XVI. Actions for the Eecovery of THE Possession of Real Prop- erty. 1. Generally. 2. Requisites of. 3. When it lies. Jf. When it does not lie. 5. Defenses. 6. Second trial by Statute. XVII. Actions Given by Statute. 1, Action by personal representor tim of person MUed by wrongful act of defendant 28 CIVIL ACTION. 2. Action against one of two or more joint associates on an obligation of all. 3. Action to determine adverse claims arising from an ob- ligation. If. Action to determine adverse claims to land entered in trust for occupants. 5. Action by officer in aid of an. execution. XVIII. Action for Equitable Keltef. 1. Specific performance. S. Action to enforce trusts. 3. Cancellation of deeds, mort- gages, notes, bonds for deed, nssigninent, foreclosure pro- ceedings, and removal of clouds from title, a. Cancelling deeds and mortgages, h. Cancelling notes. c. Cancelling honds for deed. d. Cancelling fraudulent as- signment. e. Cancelling foreclosure f. Removing clouds fromtitle. XIX. Action to Determine Adverse Claims to Real Property. 1. Generally. S. Requisites of. 3. When it lies. 4- Defenses. XX. Actions for Forcible Entry and Detainer. XXI. Actions fob Contribution. XXII. Demand, Tender, etc., before S0IT. 1. Demand. S. Tender. XXIII. Parties to Actions. i. Generally. Z. Fariiea plaintiff. a. Real party in interests b. In particular actions. Parties defendant. a. Generally. b. In particular actions. c. Misjoinder of defendants. Substitution of parties. Defect of parties. See Evidence, XI. Pleadings, B., VII., d. B., VIII., o. Limitation of Actions. Partnership, IX. Justices of the Peace. I. What it is. 1. Definition. The act of 1853 totally abolishes the Court of Chancery as a dis- tinct institution, and vests all its powers in the Law Courts, making all remedies at- tainable by one form of proceeding de- nominated a civil action. Gates v. Smith, 2 Minn. 32. II. Actions on Contract. 2. Where securities have been taken and proved insufflcient— creditor need not pursue them. Under act of March 8, 1860, p. 216, when a party takes any of the securities mentioned In that act, he must first exhaust them before he can bring suit on the original debt. But where a creditor takes an assignment of a partner's interest as security for an individual debt and is satisfied that after the payment of partner- ship debts nothing will remain to apply on his claim, he may at once bring suit on the original debt, but he takes on himself the burden of proving that the interest assign- ed was worthless if the defendant sets up the facts in defense: following Moss v. Pettingill, 3 Minn, 217. Schalck et ai. v. Harmon, 6 Minn. 265. 3. On breach of a continuing; execu- tory contract the injured party may bring an action at once, or hold himself in read- iness to perform or bring an action from CIVIL ACTION. 29 time to time, or at expiration of contnict, t'oi- (liiniii. Ames & George, 12 Minu. 4.^1. b When it does not lie. 119. Ho specUl dainag:c$. One mem- ber of a community has no remedy indi- vidually for an injury which afiects the community alike, he having sustained no special injury. Oonklin v. The Count}/ Com- misaionera of Fillmore Co., 13 Minn. 454. 120. Removal of nuisniice, injuries occasioned by. If no damages have oc- curred or must necessarily occur to the plaintiflf's premises by reason of the erec- tion of the dam (nuisance) no action can be maintained for the removal of the dam. lb. (See Wateecouese.) XVI. Actions for thb Recovery OF THE Possession of Real Prop- ERTy. (Ejectment.) (See Pleading, B. VII. d. 13.) 1. OeneraUy. 121. An action of ejectment is not an action for the purpose of testing the valid- ity of an assessment or tax sale. Baker v. KeUey, 11 Minn. 480. 2. Reqiiiaites. 122. Notice to quit. Whei-e defend- ant claims adversely to plaintiff in eject- ment no notice to quit is necessary. Kor as between vendor and vendee though the latter enter into possession under a contract to purchase with the consent of the former. McLaine -o. White, 5 Minn. 178. 3. When it lies. 123. A complaint alleges a good cause of action, by stating the fee in the plain- tiff', and tliat the defendant unlawfully and unju.stly holds possession, alleging entry after plaintiff acquii-ed the fee. In such a case demand and refusal is not necessary. lb. /^. When it does not lie, 124. Mortgagee in lawful possession. Ejectment does not lie against a mortgagee in possession of mortgaged premises, law- fully acquired after condition broken. Pace V Chadderdon, 4 Minn. 499. 125. Defendant's equities. In eject- ment under the code, an equitable title in defendant to prevail over plaintiff's legal title must be so strong, clear and decisive as to entitle the former to a conveyance on a bill for that purpose. McLaine v. White 5 Minn. 178. 126. Verbal promise to convey witli- out consideration. When a defendant originally enters upon land as a trespasser, and makes improvements on the same, with full knowledge of law and fact, and with- out any inducements or promises on the part of any one claiming title, or having a show of right to deal with the locus in quo, but obtains from a former owner a verbal promise to convey without consideration, and the former owner afterwards becomes possessed of the title, and conveys to plain- titt' who verbally agrees to carry out the promise to the defendant. Held, the de- fendant could not protect his possession by setting up the verbal promise of plaintiff, nor on the ground that he bought with no- tice of defendant's agreement with the for- mer owner, both being void. Towlerton v. Davidson, 7 Minu. 408. 127. Lien for pnrcliase money at guar- dian's sale. In ejectment against the pur- chaser at a guardian's sale, if the sale is found to be void, the lien created in favor of the purchaser for his purchase money, taxes and interest, by " an act to protect purchasers of real estate at guardian's sale etc., approved March 3, 1864," by directing a re-sale, etc., is no bar to a recovery of the CIVIL ACTION. 45 IKii-w.'t'tiioii ill this iictioii — iiltlionpli tliat lien, (if constitutional,) may still attach to the land. Montoner v. Purdy, et al , 11 Minn.. 38-1. 6. Second trial by Statute. 12§. Second trial may be reviewed for error. Sec. 7, p. 595, Comp. Stat., which declares that tlie second judgment in eject- ment shall be the final determination of the rights of the parties, only cuts ofl" the common law right that the defeated party liiid to contest the right of possession un- til arrested by a court of chancery — ^like all other judgments, it may be reviewed for errors committed on the trial. Baze v. Ar- per, 6 Minn. 3-20. 139. Payment of costs, effect of. The receiving of costs due the plaintiflT, by his attorney, or tlieir payment to the clerk, who gave the plaintiff's attorney credit for them, even if they were paid for the avow- ed purpose of obtaining a second trial un- der Sec. 5, Chap. 75; G. S., as amended 1867, will not estop the plaintiff from re- sisting such application for a new trial. Whitaker v. MeClung, et al., 14 Minu. 170. 13©. Who entitled thereto. In an ac- tion for the recovery of real property, the plaintiff is not entitled to a second trial as a matter of right on paying costs under Sec. 5, Chap. 64, Comp. Stat. 505. Howes v. OiUeU. 10 Minn. 397. 131. Conditions precedent to a re-tri- al. Under Sec. 5, Chap 75, G. S., as amended by an act appiov(.'d March 7th, 1867, (Session Laws, 1867, p. 117,) either party in an action for the recovery of real property, has a right to a second trial of the action upon complying with the terras of the law, by paying the costs and dama- ges recovered by the judgment and sers'lng upon tlie adverse party, within six months after receiving written notice of the judg- ment, a demand for such second ti'ial, and these conditions are precedent to the right to a second trial. Davidson v. Lamprey, 16 Minn. 445. 132. Costs and damages, liow paid. The payment of costs and damages recov- ei-ed in an action for the recovery of real property and demand of a second trial therein provided for by S. K 1867, p. 117, is not complied with by paying such costs and damages to the clerk of the court, in the absence of a rule or order of court re- quiring or authorizing such payment into court, nor is such payment, without such' order, a payment into court. Davidson ii. Lamprey, 16 Minn. 445. 133. Payment -of costs etc., to clerk insufficient, wlien ? A statement or recital by the clerk in his record of the satisfac- tion of a judgment for damages and costs in an action for the recoveiy of real prop- erty, to the effect, that, the plaintiff this day paid into court the amount of the judgment for costs etc., does not on a mo- tion or rule, in said action, to cancel such i-ecord, show a payment into court, .and up- on an order in said action to show cause why such satisfaction should not be cancelled and the plaintiff's demand for a second trial be set aside, based upon a credible and uncontradicted affidavit deny- ing the truth of the facts stated in the sat- isfaction of the judgment, and showing substantially that the payment into court was not such, but a mere payment to the clerk, without any authority from the court, and that no portion of the judgment had ever been paid to the defendant, the relief sought by the defendant should have been granted. Davidson i). Lamprey, 16 Minn. 445. 134. Notice of re-trlal may be set aside. The service of a notice of a de- mand for a second trial in an iictiou for the recovery of real projDerty, under the Stat- ute, is a proceeding in the action, and if the notice is invalid it may be set aside by the court upon motion or rule to show cause. Davidson v. Lamprey, 16 Minn. 445. XVII. Actions Given by Statute. (See Pleadings, B. Vll, d. 14.) 1. Action by Personal Representatives of person killed by the wrongful or neg- ligent act of defendant. (See Evidence, 198.) 46 CIVIL ACTIOjV. 135. What is a wrougrfnl act or omis- sion. Any act or omission In violation of tlie obligations which common carriers as- sume towards passengers would be a "wrongful act or omission" within the meaning of Sec. 3, Cliap. OS, Comp. Stat, which allows an action in favor of the per- sonal representative of a person killed by the wrongful act, etc., of another for dam- ages. The term wrongful is not used in the sense of malicious. • McLean, adminis- tratrix, V. Burbank, et al., 12 Minn. 530. 2. Actions against one of tico or more joint associates on an obligation of all. (See Evidence, 197.) 136. Requisites. To hold one ot two or more joint associates (done liable for the ^'■obligations of all,'''' under Sec. 38, p. 536, Comp. Stat., there must absolutely appear an existing indebtedness, that two or more persons, of which defendant was one, were associated in business, and that they tran- sacted tiiat business under a common name. Gooperv. Breckenridge, 11 Minn. 341. 3. Actions to determine adverse daims aris- ing from an obligation. 137. Promissory note. Comp. Statutes, covers tlie fendant who holds the note which the latter claims is tlie former claiming there is it a considerable balance, to settle this adverse claim. 8 Minn. 124. Sec. 35, p. 629 case of a de- of the plaintiflf over-paid, and still due upon An action lies Miller 1}. Bouse If. Action to determine conflicting claims to land entered in trust for occupants. 138. Defense. In an action between adverse claimants to a conveyance from corporate autliorities who have entered a town site in trust for occupaints under Chap. 33, Comp. Stat., defendant cannot rest on a deiiial of plaintiff's right, but must set up title in himself. Gastner v. Gunther, a Mini). 119, following Gathnart V. Peck, et nl. 11 Minn. 4.">. 5. Action by officers in aid of execution. (See Sheriff, IV.) 139. Wliere tlie title to property tak- en by an officer is in issue. Where the title to property taken by an officer is di- rectly in issue, the judgment, being essen- tial to the execution, must be proved by him who claims under it; while an execu- tion alone protects the officer against the judgment debtor, yet where he is asserting a quasi title by virtue of the levj' as against a stranger the judgment is essential to the perfection of that title, and if put in issue must be proved. Mowe^' v. Stickney, 5 Minn. 406. 140. Where an officer holds a promis- sory note by virtue of a levy on an execu- tion issued on a judgment in favor of W. F. & Co., and brings suit under the Statute to collect the note, (Comp. Stat. 552, Sec. 156,) and the maker denies the existence of the judgment and execution under which the officer claim.s, the judgment must be proved as well as the execution, and the execution will not prove the judgment, though regular on its face. lb. XVIII. Actions for Eoj/itable Relief. (See Pleading, B. VII, d. 15.) 1. Specific Performance. (See Equity, II.) 141. Defense. H. being empowered by S. to sell, &c., any premises in which S. "had or may have an interest," execut- ed as attorney of S. a bond for a deed of the land in question to plaintiff. Held, S. could show he had no interest in the prop- erty at tiie date of the execution of the instrument, and such* defense would not be affected by an allegation in the answer that at the time of making the bond he (S.) with others, " claimed the land," under an act of congress on the ground that such claim will be presumed to be legal, when the answer also shows other facts which made that claim unfounded; nor by the ClYIL ACTION. 47 tiict that he acknovvledofes a siii-veyiiig and phvtthig with a denial of possession which the act m;ide necessary to give him any rights; nor the fact that he afterwards proved his claim before the proper judge who thereupon conveyed to him; nor hy any deeds of the property executed by S. subsequent to the making of |the bond; nor by any deeds to parties other than the plaintiff. Carson et al. u. Sinitli et al., 12 Minn. 546. S. Actions to enforce irtmln. 142. When it lies. Complaint showed that W. O'K had fi-audulently disposed of personal property belonging to plalntift", that lie has converted the proceeds into land, placed the title to the same in the name of his wife — the other defendant, and that said W. O'K. is insolvent and plaintift' has no remedy at law. Held, entitled to have the wife declared his trustee to the amount for which his personal property sold and that the land be sold to pay that amount and costs. Eamsden v. O^Keefe, 9 Minn. 74. 143. Defense. Plaintiff complains against the corporate authorities of Le Suer and K. Peck and D. Peck, that the town entered certain land under chap. 33 Comp. St., in trust for the occupants, and convey- ed a certain portion, to which plaintiff was entitled to defendants K. P. and D. P. pray- ing cancellation of that deed and convey- ance from town to plaintiff. The town did not answer. Held, K. P. and D. P. could not defend on ground that plaintiff had not paid or tendered to the town a just propor- tion of the expense of entering as required by statute. The town having placed it out of its power to convey, and made a resort to the courts necessary, a payment or ten- der was not a condition precedent to bring- ing suit. Oathcart v. Peek et al, 11 Minn. 45. S. OanceUation of Deeds, Mortgages, Notes, Bonds for Deed, Assignments, Foreclos- ure Proceedings, and Semoval of Clouds from Title. a. CaneMing Deeds and Mortgages. (SeeEQuiTr, VI.) 144. AVhen it will lie. Plaintiff' al- leging title in fee simple, asks to have a certain deed purporting to be executed by him to one H. (defendant, who has convey- ed thereunder to other defendants, Hart & Co., who are in possession) cancelled, on the ground that tlie same was forged. Held, that althougli plaintiff was not in possession he could maintain the action for this equitable relief, but when an action is brought under sec. 1, p. 59.5, Comp. St., the plaintiff must be in possession. But the statute does not cut oft" or in any manner interfere with the remedies furnished by equity. Hamilton et al. c. Batlin et al., 8 Minn. 403. 145. Mistake in the piece of land con- veyed — error in description. Complaint showed tliat plaintift' occupied and culti- vated a piece of laud bounded on the east by a lake, and on the west by a fence, which stalled from n stake resembling a monument stake, on the shore of said lake, thence running north on a line fourteen rods west of the house in which plaintiff lived; that defendant represented to plain- tiff that said piece of land contained 11 acres, and that she was the owner thereof, and that it included the strip between said house and fence, that it liad been thereto- fore surveyed, and the aforesaid stake was the corner stake of her said tract, and that said fence indicated the true boundary on that side, and that another stake on the shore of said lake was the north-east cor- ner; that the same being desirable build- ing premises, plaintift' purchased the ti-act for that pui-pose, paying defendant $3,000 therefor, and taking deed. Complaint then sets forth desci-iption in the deed, and avers that said description does not cori-e- spond with the boundaries of the tract as represented by defendant, but the westerly line, instead of being as indicated by the fence, actually runs tlirough said house, and that the desirable portion of the piece is thereby lost, and asks for recession of 48 CIVIL ACTION. the contract of sale. Hdd, there being no allegation that defendant at time of con- veyance had not, and has not still, a good title to the premises not included in the deed, nor that said representation as to sur- vey and lines was untrue in fact, nor any defect of title to any portion conveyed, or incumbrance thereon, it simply alleging that defendant repi-esented and plaintiff fully believed that tlie deed covered the land in question, and nothing showing that defendant vvas not honestly mistaken, there is no fraud, but a simple mistake in the identity of the subject of tlie conveyance, and it comes within the rule of caveat emp- tor, and is not such an innocent misrepresen- tation as, though no ground for a personal action for fraud, will some time authorize the recession of the contract — plaintiff showed want of diligence, being in posses- sion. Brooks V. Hamilton, 15 Minn. 26. 146. Wife's mort^ag'e. It would seem that if a wife signs a mortgage in ignor- ance of its contents, without any attempt to conceal it from her, or to mislead her regarding its object and purpose, or any fraudulent practices, she cannot be re- lieved therefrom. Lawver v. Slingerlarid, 11 Minn. 447. 6. Cancelling Notes. 147. Proiiiissory note fully paid, but outstanding:. In the absence of statute, a court of equity will not interfere where a note has been fully paid and is past due, to have it delivered up for cancellation — a complete remedy at law existing by way of defense. Miller v. Mouse, 8 Minn. 124. c. Cancelling Bonds for Deed. 14§. After default. A complaint which sets up the execution by plaintiff's grantor of a bond for a deed to defendant, con- ditioned on the payment of four promis- sory notes, the acknowledgment and record of the bond, non-payment of two of the notes a long time due, though demanded, tender of performance of conditions pre- cedent, and offer to bring notes into court to be cancelled, and praying the bond may be cancelled, states a good cause of action. Dahl et al., v. Pross, 6 Minn. 89. 149. A complaint which states that plaintiff' gave a bond for a deed and pos- session of premises to one of the defend- ants, wlio assigned tlie same to the other / defendant, conditioned that certain pay- 1 ments should be made by the defendants, that tlie last of such payments, though long due, remains unpaid, though plain- tiff lias been ready and willing to execute a deed on completion of such payments, and now brings the deed into court to be delivered in case of payment, and praying a decree that defendants pay by a day cer- tain, or be barred of all interest or estate in the premises, sets forth a good cause of ^ action. Yosa v. De Frusdenrich et al., 6 Minn. 95. 150. Defense. Complaint prayed that ; by reason of non-payment, etc., a certain > bond for a deed be cancelled, imless de- ; fendants, by a certain day, completed pay- ments, etc. The answer admitted the facts / in complaint, and set up great depreciation in value of the land, stringency in money market, impossibility of raising money in a short time, that in one year the property would sell to better advantage, and in three years defendant would be able to redeem under a sale, that property is ample secur- ity for all principal and interest that can accrue in four years, and asking a decree of sale in nine months, with power to re- deem in three years. Held, no defense to the relief sought. lb. d. Cancelling Fraudulent Assignment. 151. By judgment creditor. Plaintiff's judgment against defendant was docketed at 10.20 o'clock a. m. on the 6th July. On same day an assignment by defendant of all his property, for benefit of his credit- ors, was left for record at 8.20 o'clock a. M., in proper office, but was not in fact filed or entered on the reception book in said office until about 12 o'clock said day. Plaintiff levied on some of the real estate included in the assignment, but finding that the assignment was a cloud on the title, and if a sale was had the land levied CIVIL ACTION. 49 oil would not sell for enough to satisfy the judgment, asked to have the assignment cancelled as to his judgment, alleging it was made with Intent to hinder, delay and defraud him. Hdd, plaintiff entitled to the relief demanded, without having an execution returned nulla bona, for if he had with linowledge of these facts gone on and sold, he could not then have asked to have the sale set aside, cloud removed, and re-sale ordered; and as defendant had no other property not covered by the as- signment, the relief was necessary. Ban^ ning et al., v. Armstrmig, 7 Minn. 40. 152. Plaintiff in danger of losing his debt. When plaintiff sought to set aside certain conveyances as fraudulent, and to induce the court to relieve him, charged that one of the defendants had fraudu- l lently disposed of the rest of his property, and plaintiff was in danger of losing his debt unless relief was granted, etc., and defendant joined issue. Seld, a material issue, which defendant had a right to have tried, for without such an averment it would not appear but what plaintiff could satisfy his claim out of other property of defendant's, and if he could he was not in- jured by the alleged fraudulent convey- ance. Johnson et at, v. Piper, 4 Minn. 192. e. Cancelling Foreclosure Proceedings. 153. The complaint sought (dmong other things) to have declared null and void a certain mortgage foreclosure and sheriff's certificate under which certain of the defendants (M. and McL.) claimed the premises in question, on the ground that they did not own the mortgage at time of foreclosure. On demurrer — Hdd, it ap- peals from the complaint that the facts upon which defendants M. and McL. rely constitute no claim whatever, and the com- plaint does not state facts sufficient to con- stitute a cause of action, as against them. BoUes V. Carli et al., 12 Minn. 113. /. Bemomng OUmds from Title. 154. Plaintiff's possession. In an ac- tion to remove a cloud from plaintiff's title. where it appears that tt^e plaintiff is owner in fee, it is not necessary that plaintiff be in possession of the same. Donnelley v. Simonton et al., 7 Minn. 167. 155. Instrnnient void on its face. An action to remove a -'cloud on plaintiff's title," it seems would not lie when the in- struments under which title must be claimed by the adverse party are void upon their face ; but a complaint alleging that "the city of St. Paul is, by its duly authorized officers and agents, about to give a tax deed of said premises, and that the period of redemption is about expir- ing," — such tax deed being by law prima facie evidence of title — states a good cause of action. Weller v. City of 8t. Paul, 5 Minn. 95; Morrison v. City of St. Paul, 5 Minn. 108. 156. Personal representative, vben not entitled to bring this action. A per- sonal representative who has not taken possession of the real estate of his de- ceased, nor obtained a license from the Probate Court to sell, has no right to maintain an action to remove a cloud from the title of the same, consisting of an out- standing contract of sale unperformed by- defendants. Query, if he could maintain the action after a license obtained to sell the property, see Sec. 13, G. S., p. 391. Paine v. The First Division St. Paid and Pacific B. M. Go. et al.. 14 Minn. 65. XIX. Actions to Determine Ad- verse Claims to Real Estate. 1. Generally. 157. Lien not determinable. A lien upon land is not an estate or interest in it, and is not a proper subject of adjudication in an action to determine adverse claims to real estate, under Sec. 1, Ch. 75, G. S. Braekett v. CKlmore, 15 Minn. 245. 158. Plaintiff must be in possession. Under Sec. 1, Chap. 74, R. S., p. 388, the only facts necessary to constitute a cause of action are the actual possession of the 50 OIVIL ACTION. land by iDlaiiitift' i^ person, or by tenant, and some claim by defendant, adverse to him, of all estate or interest in the land — because possession Is primn facie evidence of title. Steele v. Fish, 2 Minn. 153. 159. In an action under Sec. 1, Comp. Stat. 595, to settle adverse claims to real estate, the plaintiff must be in pos- session, the object being to enable one in possession to bring an action to determine any adverse claim before he is disturbed, thus giving him the same advantage one out of possession has under tlie action of ejectment ; hence, if plaintiff's possession is put in issue, it mnst be proved. MeigJien el al., v. Strong, 6 Minn. 177. 160. In an action under Sec. 1, Ch. 75, G. S., to determine adverse claims to real property, actual possession of plain- tiff is essential to maintain it. Murphy v. Hinds, 15 Minn. 182. 161. An action under Chap. 75, Comp. St., to determine adverse claims to real estate, can be brought only by one in possession thereof, whicli possession mnst be proved — if defendant holds adversely, ejectment is the proper remedy. Eastman et ai., V. Lamprey, 12 Minn. 153. 162. Laud must be Ta«ant, or plain- tiffl in possession. In an action under Sec. 1, Ch. 75, G. S., as amended in 1867, proof that the land is "vacant and unoc- cupied," or that plaintiff is in actual pos- session, as the case may be, is necessary to maintain the action. Gonklin ®. Hinds, 16 Minn. 457. 163. Title in fee immaterial. When, in an action to determine adverse claims to real estate, under the statute, plaintift''s title in fee is alleged in the complaint and denied in the ansvifer, the issue thus formed is immaterial and need not be tried. Wil- der V. City of St. Paul, 12 Minn. 192. 164. Bights of plaintiff against third persons immaterial. Possession of the plaintiff (by himself or tenant), and an adverse claim by the defendant, are the only facts which are required to constitute a cause of action under Sec. 1 and 3, Chap. 75, Gen. St. It is to determine the defend- ant's claim. Plaintiff must prove his pos- session — bnrden is then on defendant to prove his adverse claim. The right or title of a third party cannot be properly liti- gated; if the defendant's claim is unjust, it should not be supported, whatever may be the rights of the plaintiff as against third parties. Possession, in this action, is good against strangers or wrong doers. Wilder v. Oily of St. Paul, 12 Minn. 192. 3. When it lies. 165. By corporate authorities to set- tle right of easement. When land has been dedicated at common law for a land- ing, the authorities of the village, as rep- resentatives of the public, cannot bring suit against one who claims to own the fee to quit the title, when no act hostile to the public use of the land has been com- mitted, for the fee is not in the public, and the ownership of the fee by another is not inconsistent with the public easement; but when defendant denies the existence of the easement, and threatens an invasion of the public rights at a time and under circum- stances that may be unfavorable to their defense, the courts will interfere. Tlte Village of Mankato v. Willard et al., 13 Minn. 13. 4. Defense. 166. Defendant in possession. Plain- tiff claimed uninterrupted possession since 1854, survey platting and record of plat, and entry on his occupancy, under U. 8. laws — then sets up defendant's adverse claim. The answer alleges that in 1855 plaintiff abandoned the premises, and in 1856 defendant and others caused the lands to be entered, and since that time have had uninterrupted possession. Held, suflBcient defense. Weisberger v. Tenny, 8 Minn. 456. XX. Actions for Forcible Entry AND Detainer. (See Forcible Entry and Detainer.) (See Pleadings, B. VII. d. 15.) 167. Will not lie. An action for forci- ble entry and detainer will not lie by a CIVIL ACTION. 51 moi'tgagee after sale, against the mortgag- or in possession, when the latter is in no default in paying interest, nor the time of redemption expired. Eeyward v. Judd, 4 Minn. 483. XXI. Action for Contribution. 168. Defense. When E. held claim against J. and S. for which they were jointly liable, and J. iiaid the whole, and brings action against S. for his proportion, it was error for the court to refuse to let S. show that J. paid more than was due. Snow et al., V. Johnson, 1 Minn. 39. XXII. Demand and Tender, Etc. (See CONTKACT, X. a.) 1. Demand. 169. Where sheriff seizes goods in Iiands of a stranger. Where a debtor is in possession of goods belonging to an- other, and exercising acts of ownership over the same, and his creditor seizes them on execution, the owner must first make demand on the sheriff before bringing an action for their recovery — unless the latter had notice of the real ownership before seizing them. Atwatek, J., dissents. Vosp & Co. V. Stickney, 8 Minn. 75. 170. Method of demanding exempt property. When exempt property may be levied upon, and thus a demand become necessaiy to entitle the debtor to bring ac- tion for a wrongful holding, it is the better way to specify in tenns that he demands the property on the grounds that he claims it as exempt. Lynd n. Picket etal., 7 Minn. 104. 171. Demanding exempt property. When, to enable a party to bring an action for goods levied upon, it is necessary to make a demand, such demand must be made in a reasonable time, and need not be made at time of levy. lb. 172. When defendant came lawfully into possession. When a person comes lawfully into the possession of personal property, an action cannot be maintained against him to recover possession thereof, until the property shall have been demand- ed of him, and he shall have refused to give it up. Stratton v. AUen & Chase, 7 Minn. 502. 173. Conversion by defendant. When one receives from another money to loan in the name of and for the use of that other, if he loans It in his own name and for his own benefit, he thereby converts it and becomes liable without demand. Far- rand V. Hurlbut, 7 Minn. 477. 174. When a justice receives costs not due. When plaintiff had advanced costs which he was not legally bound to do, but there being nothing illegal or wrong in recovering them on part of de- fendant (a justice of the peace), the pre- sumption is that he received them for the use of those legally entitled thereto, and in the absence of fraud, wronger mistake, and nothing appearing which amounts to an abuse of the trust, or inconsistent with the understanding or agreement of the parties, the defendant is not liable without demand. Ford t>. BrowneU, 13 Minn. 184. 175. Unnecessary. For evidence which was held suflicient to render unnecessary any demand in an action for damages for the wrongful — ^though innocent — -taking of personal property, see Glague v. Hodgson, 16 Minn. 329. S. Under. (See Contract, X. b.) 176. Tender of deed. In this country the purchaser of land need not prepare and tender a deed, in the absence of stipu- lation. St. Paul Divison No. 1 Sons of T. ». Brown et. al., 9 Minn. 157. 177. Who may make. Plaintiff (cor- poration) appointed H., T. and B. its agents "to obtain from" (defendants) a "reconveyance" of the premises in ques- tion "by a tender of the money due" (de- fendants), "according to the conditions of" a certain bond, and to receive a title of the property in trust for the plaintiff. Held, the act being ministerial, either one was authorized to make the tender. Sons of Temperance v. Brown et al., 11 Minn. .356. 53 CIVIL ACTION. 17§. When defendant has disabled himself for performance. Wlien defend- iint has placed it out of liis power to con- vey according to Ills agreement, plaintiff is not I'equired to tender tlie balance of the purchase money, or make demand for a conveyance, before lie can sue to recover back purchase money paid. Bennett v. Phelps et al., 12 Minn. 336. 179. Tender under a bond for a deed is sufficient without a demand for deed. When a person's bond requires him to con- vey on payment of a certain amount of money, a tender of the money is sufficient; no demand of a deed is necessary. Sons of Temperance v. Brown et al., 11 Minn. 356. 180. "When may be coupled with de- mand. Generally, a tender, to be suffi- cient, must be without condition or- quali- fication, but where it is the duty of a cred- itor on tender of payment to do a particu- lar act, the offer to pay may be coupled with a demand upon the creditor to perform such act; e. g. where, by statute, it is the duty of the creditor to give a release, on tender of payment a release may be de- manded, for it is the performance of a duty imposed by law. Balme v. Wam- baugh et al., 16 Minn. 116. 181. A tender to bar subsequent dam- ages and costs must be kept good. lb. 182. Tender of U. S. legal tender notes good. A tender of United States legal tender notes in payment and dis- charge of ii contract executed subsequent to the passage of the legal tender act of Congress (1862 and 1863), not specially payable in coin, but payable generally in dollars, is good. Breen v. Dewey, 16 Minn. 136. XXIII. Parties to Actions. 1. Oeneratly. 183. Married women. Under sec. 30, E.. S. (1851) as amended, p. 8 of amendments, a niaiTied woman, in an action concerning her separate estate, may or may not join her husband. If she does not join her hus- band, she must have a next friend. Wolfe and mfe v. Banning et al., 3 Minn. 202. 184. Under sec. 30, K. S. (1851) p. 333 as amended on p. 8 of amendments, a married woman can appear without either husband or next friend only when the ac- tion is between herself and husband. Jb. 185. When a married woman sues for her separate property the [husband is not a necessary party plaintiff or defend- ant. Comp. St. 535, sec. 30. See Furlong V. Griffin, 3 Minn. 204. Nininger v. Com- missioners of Carver County, 10 Minn. 133. 186. Ob.jection to plaintiff's capacity to sue must be taken by demurrer or answer. Plaintiff being a married woman, an objection to her legal capacity to sue not having been taken by answer or de- murrer, is waived. Ta/pley v. Tapley, et al., 10 Minn. 448. 2. Parties Plaintiff, a. Real party in interest. 187. An assignee cannot sue on the following writing in his own name either at common law or under tlie statutes, 1852. "I do agree to cut, etc., on, etc., on or be- fore, etc., to be delivered to Elliott Adams or bearer. Dated Feb. 18, 1850. W. Woodbury." Spencer v. Woodbury, 1 Minn. 105. 188. An assignee of a bankrupt need not produce record proof of his acceptance of his appointment in writing to enable him to sue as such assignee, nor of the pub- lication of notice of such appointment in some St. Paul newspaper, — no order of the District Court to that effect appearing — nor of the recording of sucli appointment in the Registry of Deed for a given county, when it does not appear that the bankrupt owned land in such county. Rogers v. Stevenson, 16 Minn. 68. 189. An assignee of a chose in ac- tion may sue on it in his own name. Bus- sell V. Minnesota Outfit, 1 Minn. 162. 190. Sec. 29 R. S., p. 333, permits an assignee of a chose in action for the benefit of others to sue without joining the cestuis CIVIL ACTION. m que trust. St. Anthon;/ Mill Co. v. Van- dall, 1 Minn. 251. 191. An assignment of a chose in action by A. to B. to pay a debt, and any balance, after paying debt, to be returned to A. vests the bill in B. bo he can bring an ac- tion alone against the raaljer and the non- joinder of A. is not a good defense to an action by B. against the principal. Oast- nerv. Sumner, 2 Minn. 44. 192. One who holds for the joint nse and benefit of another. An averment, that one holds property in his own name for the "joint use and benefit" of himself and another, is such an allegation of inter- est or property in such other, as to malfe him a necessary party plaintiflFin an action to reox)ver such property. Hawks and imfe V. Banning et. al., 3 Minn. 67. 193. The indorsee of a non-negotiable note must bring suit in his own name under our statutes as the real party in in- terest, but must plead the facts constitut- ing the transfer to himself as they exist. Hdfer v. Alden et al, 3 Minn. 332. 194. Real party in interest. An ac- tion can only be sustained by the real party in interest, and although the defend- ant admits that he owes the demand to some one, he has a perfect right to insist that no one but the true owner of it shall recover a judgment against him, and this is necessary to protect himself against a further suit by the true owner. Eohrer v. TurrUl, 4 Minn. 407. 195. Executor. Plaintiff in his will bequeathed certain specific personal prop- erty to his daughter, then ordered his executors to sell the balance of his personal estate, and then makes specific devises of real estate to his sons, and finally orders all the balance of his property to be divided between his two sons. During progress of foreclosure suit plaintiff' died, and on mor tion, his executor was substituted as plain- tiif under sec. 37, p. 535, Comp. St. On appeal it being objected that by terms of the will the last clause made his sons the real parties in interest and they should have been substituted instead of the exec- utor. Ifeld, construing the whole will together it clearly appears that the execu- tor was vested with the title to all personal estate for purpose of sale, though the pro- ceeds were to be distributed among the sons, and the executor was properly sub- stituted on motion. Latidia v. Old et al. 9 Minn. 90. 196. Assignee of guaranty. Where certain land warrants are sold together with a guaranty of their genuineness, and after they have been entered, but before they are finally accepted by the govern- ment, the party who owns them at date of entry assigns his interest in the warrants and guaranty, he, the second assignee, is the real party in interest, and when the commissioner refuses to accept them on ground of invalidity, etc., a cause of action on the guaranty accrues to him directly. The warrant is not cancelled until accept- ed, and title remains in locator or his assigns until that time. Johnson et al.v. GilJUlan, 8 Minn. 395. 197. The principal shipped goods, by an agent, which defendant lost. It being detei-mined that plaintiff was and is the owner of the goods, the fact that his brother had charge of them, and contracted for their transportation without disclosing the name of the owner, does not deprive the owner of his right of .iction against the carrier for the loss of the goods — it can only be brought by the real party in in- terest who is the plaintifi'— the contract of the agent enures to the principal. Ames «. ITie First Bits. St. Paid & P. B. R. Co., 12 Minn. 413. 198. The State of Minnesota has legal capacity to sue. State v. Grant, 10 Minn. 39. 6. In particula/r actions. 199. Several judgment creditors may join in one action against their common debtor and his grantees to remove impedi- ments to their remedy created by the fraud of their debtor in conveying his property to said several grantees, although the latter taken by separate conveyances, and no 54 CIVIL ACTION. joint fraud in any one transaction is charg- ed against them all. North & Oarll v. Brad/way et at, 9 Minn. 183. 200. Creditor's action. The action known as creditor's bill must be brought by a. judgment creditor; but a bill for the administration of assets, to inforce the ex- ecution of trusts, and to reach property fraudulentlj"' disposed of, etc., may be filed by simple contract creditors and on behalf of complainant and all others standing in a similar relation, who may come in under it. Qoncelier v. Foret et al., 4 Minn. 13. 201. An assignment by a debtor to a trustee for the benefit of his creditors — the latter having accepted — vests the trustee with the title of tlie property to be held for the uses created, and when the trustee errs, or acts in bad faith in the administra- tion of the trust, equity will interfere and afford relief to "any person interested in the execution of an express trust," and all • persons interested need not join — see. 26, Comp. St. 384 — though if it were necessary that all should join it would be sufllcient for a sole plaintiff to aver that he " sues on behalf of himself and the several other creditors " of the debtor, without naming them in the title of the action. lb. 202. In an action by a creditor to reacli trust property in the hands of ad- ministrators or trustees who have control of it, and whose duty it is to protect it, the othei- creditors or cestui que trusts need not be joined as parties. Although a court of e- gage. Ross v. Worthington, 11 Minn. 438. 44. Sec. 52, Chap. 35, p. 403-4, Comp. St., providing that "all convey- ances of real estate heretofore made within the limits of this State, properly sealed and acknowledged, with one subscribing wit- ness thereto, shall be legal and valid to all intents and purposes," is valid as far as con- cerns a party who takes, with knowledge of the equities against his grantor (mort>- gagor), on account of a mortgage so de- fective, lb. 45. Allowance of an appeal after riglit lias been lo.st. The Legislature has no power to allow an appeal in an action when the right to the same has been lost by lapse of time. Chap. 73, p. 112, Laws 1868, which extends the time in which an appeal may be taken from six months to one j'ear, is retrospective but cannot be ap- plied to actions in which the right to ap- peal had been lost at time of its passage. Beaupre v. Hoerr, 13 Minn. 366. G. RicjM of every person to a certain remedy in the laws. 40. Imposing conditions to brin? ac- tion to set aside assessment, etc. Sec. 26, Chap. 8, Laws of 1854, p. 87, "Charter, City of St. Paul," which required as a con- dition precedent to instituting any i^roceed- ing to set aside any assessment, special tax, elc, or deed executed, etc., the paying, or tendering, or depositing with the Treasurer the amount of all State, county and cit}' taxes tliat remain unpaid, together with interest, etc., is unconstitutional, being in conflict with Sec. 8, Art. 1, Const. Wdler V. City of St. Paul, 5 Minn. 95. 47. Suspending right of persons in rebellion from suing in our courts. The act of the Legislature passed February 14, 1862, entitled "an act suspending the privi- lege of all persons aiding the rebellion against the United States, of prosecuting and defending actions and judicial pro- ceedings in this State," as afiects citizens of this and sister States, is unconstitutional and void. Const., Art. 1, Sec. 8. Davis v. Pierse et al., 7 Minn. 13 ; MeParland v. Butler, 8 Minn. 116; Jackson v. Butler, ib. 7. Exemption of individuals from general laws. 48. An act of the Legislature (S. L. 1864, p. 370,) required the board of county commissioners of Rice county to "audit, adjust and fix" the claim of S. against School District No. 10, and that the amount of such claim as audited, etc., should be entered on the records, etc., and the board should vote a tax upon the tax- able property of the School District to pay it, etc. Seld, if S. has a valid claim, he could collect it under the general laws, and this special act granting a privilege and indulgence to one man, by way of ex- emption from the effect and operation of 68 CONSTITUTIONAL LAW. such general law, leaving iiU other per- sons under its operation, is an excess of legislative power, and void. Sanborn v. Commissioners of Rice Cov.nty, 9 Minn. 273. S. Town bounty bonds, laws legalizing. 49. When a town had authority to pay bounties to soldiers, hut no power to issue bonds for such purpose. Held, the Legis- lature has power to legalize and make valid such obligations after the same have been issued. Act of 1805. Kunkle v. The Town of Franklin, in Wright Co., 13 Minn. 127. Comer v. Polaom, 13 Minn. 219. 9. County lines, laws changing. 50. 8ec. 1, Art. 11, of the ConstitUT tion, which provides that all laws chang- ing county lines, etc., in organized counties, or for removing county seats, before tak- ett'ect shall be submitted to the electors of the county or counties at a general elec- tion, "and be adopted by a majority of such electors," means a majority of the electors voting, and not an absolute major- ity of those qualified to vote. Berry, J., dissenting. Taylor i>. Taylor et al., 10 Minn. 107. 10. County seats, law changittg. 51. Special act must be passed. The general act of 1858, providing for the re- moval of county seats, (Comp. Statutes, p. Ill,) if on the petition of at least half the number of voters the people shall at the next general election vote for such change, conflicts with Sec. 1, Art. 11, Const, of the State, which provides that "all laws re- moving county seats shall, before taking effect, be submitted, etc., to the electors, etc., and be adopted by a majority;" under which a special act must be passed, to take effect upon its adoption bj' the electors of the county at the next general election. Atwater, J., dissenting. Boos v. Swen- son, 6 Minn. 428. 52. What is a constitutional major- ity. Under Sec. 1, Art XI., Constitution of the State, which provides that " all laws * * * for removing county seats shall, be- fore taking effect, be submitted to the elect- ors of the county * * * to be affected thei'eby, at tlie next general election after the passage thereof, and be adopted by a majority of such electors," it is not compe- tent for the Legislature to enact that a law removing a county seat "shall take effect and be in force after its submission to the electors of said county at the next general election after the passage thereof, and its adoption by a majority of such electors voting tliereon." A constitutional major- ity requires that it be a majority of the electors voting at the general election, not on this particular question — reconciling Taylor v. Taylor et al., 10 Minn. 107. Bay- ard V. Klinge, 16 Minn. 249. 53. ^Under a county seat removal law. Chap. 95, Special Laws, 1867, requir- ing its submission at the "next general elec- tion after the passage thereof, and its adop- tion by a majority of such electors voting thereon," the fact that at such election there were cast upon said question 1457 legal votes for, and 1074 legal votes against the adop- tion of said special act, does not amount to an adoption of said special law, for the Constitution requires that it shall be adop- ted by a majority of the electors voting at such general election. Ih. 11. Exemption laws. 54. Seasonable amount exempt from any debt or liability. Sec. 100, p. 571, Comp. St., which provides that "nothing in this act (statute of exemption) shall be so construed as to exempt any property in this State from execution or attachment for clerks', laborers' or mechanics' wages," conflicts with Sec. 12, Art. 1, Const, of the State, which exempts a reasonable amount of property from "seizure or sale for the payment of any debt or liability." Tuttle V. Strout, 7 Minn. 465. IS. Limitation statutes. 55. Owner in possession not bound to commence suit to protect that possession. The Legislature cannot require a person who is in the possession and uninterrupted enjoyment of his property, to commence CONSTITUTIONAL LAW. 69 an action for the purpose of vindicating his rights or silencing adverse claims there- to. Balcer v. Kelley, 11 Minn. 480. 56. Cannot deny a remedy. The Leg- islature has not the power to deny a reme- dy, or cutoff an existing right of action; hut subject to this limitation its power to enlarge or lessen the time — at least before the statute has barred a right of action — or to establish a limitation, cannot be ques- tioned. Gook et al., v. Kendall et al., 13 Minn. 324. 57. One year limitation valid. The limitation for bringing an action to test the validity of a tax deed prescribed by Sec. 4, Chap. 5, Law 1864, of ont year from the time of recording the same, does not in- fringe upon the Constitution, and is valid. HiU v. Lund, 13 Minn. 451. 13. Taking private property for ptMic use. 5S. Franchiseij may be taken. It seems that, in a proper case, the State may, in the exercise of the power of eminent domain, condemn a franchise equally with any other property, making compensation therefor. McRuberts v. Washburn et al., 10 Minn. 23. 59. Cannot authorize railroads to build track on land dedicated to public for a public street. When the dedication of land was made for the purpose of the same being used for public streets or landing, and for no other burden — as a railroad track — the authorization by the Legislature of such use — railroad purposes — ^would be an interference with the reserved rights of the plaintiff, and an attempt to authorize the taking of private property for public uses without compensation. Sehurmeier v. Tlie St. Paul and Pacific JR. R. Co., 10 Minn. 83. 60. Destruction of building to stay conflagration. The destruction of a build- ing to prevent the spreading of a confla- gration is not, it seems, the taking of pri- vate property for public use, vcithin the Constitution — if it be, a city is not liable in the absence of statute. McDonald v. Tlie City ofBedmng^ 13 Minn. 38. 61. Compensation must be first paid or secured. The charter of the defendant. Sec. 3 and 13. Laws 18,57, Extra Session, which provides that private property may be taken by the defendant, for its use, without payment first made or secured, is in conflict with the Constitution of the United States, V. Amendment, which pro- vides that private property shall not be taken for public use without just compen- sation, under which the same was enacted by the Territorial Legislature. Gray v. The First Division of tlie St. Paul and P. R. B. Co., 13 Minn. 315. 62. Compensation mast be determined, etc., under the statute— not by suit. The Legislature, under our Constitution, have not the power to take private property for public use without making provision for a just compensation therefor, to be first paid or secured to the owner, and when compensation is provided for, it must be ascertained and obtained in accordance with the course prescribed bj' the statute — not by action. Teick v. Board of Commis- sioners of Carver County, 11 Minn. 292. 63. Compensation, mode of determin- ing discretionary with the Legislature. When the State Constitution declares "pri- vate property shall not be taken for public use without just compensation therefor, first paid or secured," but contains uo ex- press px-ovision as to the mode in which the compensation shall be determined, it is to be presumed that the framers of the Con- stitution intended to leave that subject to the discretion of the Legislature, to be reg- ulated in such manner, as might be pre- scribed by law ; but that discretion is not an unlimited one. Langford v. Tlie County Commissioners of Ramsey County, 16 Minn. 375. 64. The mode of exex-cising the right of eminent domain, whether by the State itself, or its delegates, rests in the discre- tion of the Legislature, in so far as the Legislature is not restrained by the Consti- tution. Wilkin et al., v. Tlie First Division St. P. and P. R. R. Co., 16 Minn. 271. 65. Compensation, how det«rmined. 70 CONSTITUTIONAL LAW. When private property is tal^en for public use, in ordinary cases, and the Constitu- tion prescribes no particular mode in which the compensation therefor shall be ascer- tained, the owner of the property has a right to require an impartial tribunal to be provided for the determination of that compensation, and in such cases the Gov- ernment is bound to provide such tribunal, before which both parties may meet and discuss their claims on equal terms. Lang- ford. V. T/ie County Oommissioners of Ram- sey Co., 16 Minn. 375. 66. State road, law authorizing, void. A law authorizing the taking of piivate property for the purposes of a State road, appointing, without the consent of the persons whose lands are taken, three com- missioners with power to determine the compensation due to land owners, requir- ing no notice of the proceedings before the commissioners, nor making any provision for the appearance of the land owners at any stage of the proceedings for any pur- pose, is unconstitutional and void, as not providing any just and equitable mode of determining the compensation due for property taken. lb. 14- Taxation. 67. City street assessment is taxa- tion. The assessment of the expense of grading a street in the city of St. Paul upon lots fronting upon such street, under Sec. 5, Chap. 7, of the city charter, is an exercise of the taxing powers, and not of eminent domain. McGomh v. Bell, 2 Minn. 306. 68. Indian reservation not witliin tax- ing jurisdiction. The taxing power of the State does not extend to persons trad- ing with Indians and located upon Indian reservations within tlie State. Such power is in conflict with Art. 1, Sec. 8, sub div. 3, of the Constitution of the United States, which confers upon Congress power to reg- ulate commerce with Indian tribes. Fos- ter V. Board of Oommissioners, Blue Marth Go., 7 Minn. 140. 69. It would seem that the United States cannot colonize within the limits of an organized Territory or State, a body of savages or any other people not citizens of the United States, without the consent or against the will of the local sovereignty— in any event when the Territory or State- in such a case — quietly allows the same to be done, its validity cannot be questioned by an attempt to extend the assessment of taxes over a reservation thus given them. FLA.NDRAU. lb. 70. Legalization of taxes for paying town bounty bonds. It was competent for the Legislature to legalize the levy and collection of a tax for paying'bounties of- fered by towns to volunteers in the United States service, as per Chap. 8, Ex. Sess. 1868, or to ratify and legalize such tax when levied without authority. Wilson ». Buckman, 13 Minn. 411. 71. Percentage of gross receipts of railroads may be taken in lieu of taxes. The Legislature had power to exempt the Minn, and Pacific R. E.. Co. from the pay- ment of all taxes on the payment of three per centum of its gross earnings each year into the ti-easury of the State, (Sec. 18, act May 27, 1857, organizing said corporation.) Such exemption in its charter became a contract between the Territory and corpo- ration, the consideration of which was the building of its road and three per cent, of its gross earnings, and the power of the Territorial Legislature to bind itself is rec- ognized in the organic act. Sec. 6, and to bind the State also. Nor does such ex- emption conflict with Sec. 6, organic act of the Territory, which provided that the lands or other property of non-residents should not be taxed higher than the lands or other property of residents — such pro- vision being designed to protect non-resi- dents in fact, (which the corporation was not, ) from being taxed higher than actual residents in fact. Nor was this exemp- tion personal, but passed to the State un- der the foreclosure proceedings as a right appendant to the land, and from it to the St. Paul and Pacific R. R. Co., and thence to the First Division of the St. Paul and CONSTITUTIONAL LAW. 71 Pacilic E. R. Co., so far as related to land taken by tlie latter company from the for- mer. Nor were the dlfierent acts of the Legislature, or agreements between the last two corporations, such a sale or convey- ance, within Sec. 18 of the original char- ter of the Minn, and Pacific R. R. Co., as to render such lands taxable. The First Bii). St. Paul and Pacific R. B. Co. v. Parcher et al., 14 Minn. 297. 72. Expense in opening road cannot be assessed upon property deemed bene- llted, in proportion to benefits— property must have a cash valuation. An act (March 7, 1861,) authorizing the laying out of a road, (Fort Street, in Ramsey countj-,) providing that the damages and expenses of the improvement should be apportioned and assessed upon the real estate deemed benefited by the commissioners in propor- tion to the benefits resulting thereto from the improvements, conflicts with Sec. 1, Art. 9, State Constitution, which provides that "all property on which taxes are to be levied shall have a cash valuation," said clause applying to all species of taxes raised within the State, including city as- sessments. Stinson v. Smith, 8 Minn. 366. 73. Property must be assessed at its true value in money. Sec. 30, Chap. 1, Laws 1860, authorizing the auditor to add to the value as returned by the assessor, of all personal property — fifty per cent. — when there ha= been a neglect or refusal to list, is void, it being in conflict with Sec. 1 and 3, Ait. 9, Const., requiring all prop- erty liable to taxation to have a cash valu- ation and be taxed "according to its true value in iBoney." If penalties for non- listing can be imposed, it cannot be em- braced in the value of personal propei-ty which is the basis of taxation. McGor- mick et al. v. Fitch, 14 Minn. 252. 74. Gash valuation and uniformity. Query, whether since the adoption of the Constitution a tax upon property, of any kind, can be levied or otherwise assessed than upon all the property in the district, and according to the cash value of such property. Nash v. The City of St. Paul, 8 Minn. 172. 75. Equality in taxation necessary. Under Sec. 1, Art. 9, State Const., a tax cannot be imposed exclusively on any sub- division of the State, to pay an indebted- ness or claim which is not peculiarly the debt of such subdivision, or to raise money for any purpose noi peculiarly for the benefit of such subdivision. Sanborn v. Commissioners of Rice County, 9 Minn. 273. 7<8. The general rule laid down for the levying of taxes by Art. 9, Sec. 1, State Constitution, which provides that " all taxes to be raised in this State shall be as nearly equal as may be," etc., re- quires that equality shall he aimed at in every law imposing a tax, but the course to be pursued and the means to be used in pursuanceof this rule, are necessarily left in the discretion of the Legislature, and the in- fraction of the rule must be palpable to authorize the courts to interfere. A sub- stantial compliance is all that can be re- quired — but they must in no case run counter to or disregard it. lb. 77. Substantial equality only required. The towns of Amador and Tayloi"s Falls were classed together, for the purpose of the draft, as "Sub Dist. No. 109,"— the former town having only four men liable to serve. To meet a draft, the town of Taylor's Falls voted and issued bonds for the purchase of substitutes to fill the quota of "Sub Dist. No. 109." mid, the inci- dental benefit which such a course con- ferred uijon the town of Amador does not render void the bonds, perfect equality of taxation not being required. If the taxes imposed are distributed on just principles, applicable alike to all for ^^■hose benefit the appropriation is made or intended, substantial equalit}- is attained, and no constitutional right invaded. Comer v. FoU som, 13 Minn. 219. 15. Corporations, legislative control over. 78. Power to amend or repeal char- ters. The power of the Legislature to amend and repeal a charter when it has 73 CONSTITUTIONAL LAW— CONTRACTS. the power reserved to do so In the charter itself, is too well settled to admit of a doubt. Perrin v. Oliver, 1 Minn. 206. 79. Officers can be appointed witliin cities for specific purposes. The Leofisla- tiire has undoubted power in this State to appoint officers within a city for a specific purpose, such as laying out a street, and assessing damages and benefits arising to the property taken for that purpose; and the acts of sunh officers are the acts of the city, as if appointed under the provisions of the city charter. Daly v. Oity of Saint Paul, 7 Minn. 390. 80. Power to appoint to vacancies in elective olHces. A-rt. 11, Sec. 4, Const., pi'oviding that provision shall be made for the election of * * county * * officers is satisfied if provision is made for such elec- tion at stated periods, leaving the Legisla- ture power to till vacancies by appoint- ment, until a next general election, or for the balance of an unexpired term. State ex rd.Loring V. Benedict, auditor, et al., 15 Minn. 198. §1. Imposing' police regulations on railroads. Under the police power of the State the Legislature has the right to im- pose upon existing railroad corporations the duty of fencing their roads, making cattle guards, regulating the speed of their cars, the use of signals, etc., and if it can deprive itself of this power in any in- stance, it certainly can only be done by express grant, and not bj"^ implication. Winmia and St. P. B. B. Co. u. Waldron et al., 11 Minn. 515. As to creation of corporations by special act, see The St. Paul and Pacific R. E. Co. ; The First Div. St. Paul and Pacific E. E. Co. 16. Bights and liberty of the citizen. §2. An oi'dinance of the city of Saint Paul, establishing a fire department, pro- vided that if in the absence of sufficient excuse, any person refuses at a fire to obey any order or direction given by a person duly authorized to order or direct, any " member of the common council, or any fire warden, may arrest and detain such person until the fire is extinguished." Held, the clause aforesaid is repugnant to the Constitution of the State, Art. 1, Sec. 4 and 7, and void. Judson v. Beardon, IG Minn. 431. CONTEMPT. 1. A failure to plead is no contempt of court, except where the object of the bill is to compel an answer. Perrin ». Oliver, 1 Minn. 202. 2. The reading and presentation of an affidavit for change of venue on ground of prejudice in the judge, drawn in the words of the statute and not setting forth the facts on which the same is based, is not per se a contempt of court. Ex parte Curtis, 3 Minn. 274. 3. When it does not appear that the defendant had the power to perform the act required by the order, he cannot be punished as for contempt. Begister v. State of Minnesota ex rel., 8 Minn. 214. CONTRIBUTION. (See Principal and Surety, V.) CONTRACT TO CONVEY LAND. (See Equity, II., J.) CONTRACTS. I. GrENEKALLY. II. Abandonment of Contract. III. Becision of Contract. IV. Entirety op Contract. V. Conditions Precedent. VI. Construction of Contracts. a. Bales of Construction, h. Particular Contracts. CONTRACTS. 73 VII. Consideration op Contracts. It. What a sufficient Consideration. b. Wliat an insufficient Consider- ation. V. Rights of a Stranger to the Consideration. VIII. Pekpormance. a. Place and Time of Perform- ance. b. Excuse for non-peoformance. IX. Payment. a. By Commercial Paper. b. Appropriation of Payments. X. Demand .\.nd Tender. a. Demand, h. Tender. XI. Void Contracts. u. For Illegality. b. For Uncertainty. XII. Waiver op Bkbach. (See Civil Action, II.; Custom; Plead- ings, B., VII., c, ditto, 16; Equity, III., IV., ditto, 26; Evidence, 9S,etseq.; In- terest, 3 ; Damages, V. I. Generally. 1. Essentials. To constitute a contract or agreement there must be a "clear acces- sion on both sides to one and the same set of terms." Lan^ v. McLaughlin, et al., 14 Minn. 72. II. Abandonment of Contract. 2. When work has been done under a special contract, which has not been aban- doned or rescinded by either party, but re- mains in full force, the action must be brought upon it, and the plaintiff cannot recover on a quantum meruit; but when plaintiff labored for defendant under special contract, and charges in his com- plaint that he was discharged from his em- ployment by the defendant without cause. Held, he was at liberty to regard the con- tract as abandoned by the defendant, and to proceed to recover the value of his sei- vices as though no special contract had ex- isted. He need not first demand work, the discharge throwing on the employer the burden of justifying it. MacKubin v. Clark- son, 5 Minn. 247. III. Recision of Contract. 3. After performance. After a party has gone on and performed a special con- tract and accepted partial performance from the other, he cannot then rescind the contract and sue on a quantum meruit, but must bring an action on the breach of con- tract for damages. Bond c. Gorbett, 2 Minn. 252. 4. Fraudulent contract. When a par- ty enters into a contract which is a fraud upon him, he may on discovery of the fraud rescind the contract and recover what he has paid, or the valiie of what he has per- formed under it — ^whether the contract be by parol or in writing — and this though the subject matter of the contract may be an Interest in lands. Brown v. Manning, 3 Minn. 35. 5. When a fraudulent sale and war- ranty of personal property has been made, the vendee may rescind the contract, re- turn the property, and recover back the price paid' therefor; or he may affirm the contract and recover damages for the fraud. Marshv. Webber, 16 Minn. 418. IV. Entirety of Contract. 6. N. Y. rule approved. The rule of the New York courts, that, where a party un- dei'takes to perform a given contract and before its completion, wilfully or without cause abandons its performance, he shall recover nothing — approved. Mason & Craig V. J. T. Heyward, 3 Minn. 182. (See Wil- liamsv. Anderson, 9 Minn. 50.) 7. Example. A contract by which plaintiffs "agreed to cut from their own materials and furnish to M. all t/ie cut stone required for a building, « * and that M. in consideration thereof promised to pay the plaintiffs what the same should reas- onably be worth, "payment to be made 74 CONTRACTS. fi'om time to time as the worlv under said contract progressed," is an entire contract. Milner ei al. v. Norris etal., 13 Minn. 455. V. Conditions Precedent. S. The parties to a contract having agreed upon an inspector by whom the grade of anj' wheat was to be fixed, which the purchaser considered inferior to No. 1. unless he decided to receive it as No. 1, at his option, the latter cannot claim any deduction from the value of wheat by reason of its inferior quality, when he has omitted to call the inspector to pass upon it. Brackett v. Edgerton, 14 Minn. 174. 9. Under a contract by which defend- ant was to transport wheat for the plaintiff — the latter to deliver the same upon reas- onable notice of the defendant's readiness to receive it — it is not necessary for the plaintiff to offer to deliver to defendant the wheat in the first instance to malce defend- ant liable for a bi'each. OowUy v. David- son, 13 Minn. 92. VI. Construction of Contract. a. Rules of construction. 10. Court construes. The existence of a contract is for the jury to determine; its ponstruotion for the court. Dodge v. Rogers 9 Minn. 223. 1 1. when on inspection only. Where the contract contains no terms of art, or other unusual language employed out of its ordinary signification, requiring expla- nation by extrinsic evidence, the court must construe the same on inspection onlj'. Van Mman v. Stanchjleld et al., 8 Minn. 518. 12. In construing a contract, such a construction will be given as is not incon- sistent with, and mai/ be distinctly derived from a fair and rational interpretation of the woi'ds actually used. 'Sanborn v. Nedl et al., 4 Minn. 126. 13. TVIiole contract to be considered. Every contract is to be construed with i-ef- erence to its object and the whole of its terms; accordingly the whole context must be considered in endeavoring to col- lect the intention of the parties, even though the immediate object of inquiry be the meaning of an isolated clause. Rose V. Roberts, 9 Minn. 119. 14. In construing a contract the court in this case referred to its language, the circumstances attending its execution, and the conduct of the parties. Hall v. Smith, 16 Minn. 58. 15. Keal intention prevails over liter- al sense. Where the literal Interpretation of an instrument involves any absurdity, contradiction, injustice, or extreme hard- ship, the courts may deviate a little from the received sense and literal meaning of the words, and interpret the instrument in accordance with what may appear to have been the intention and meaning of its framers, and the real intention, when ac- curately ascertained, must in all cases pre- vail over the literal sense of the terms. Taylor v. Taylor et al, 10 Minn. 107. 16. Evidence of circnmstances under which contract was made, allowable when. The construction of a written instrument is matter of pure law when the meaning and intention of its framers is to be collect- ed from the instrument itself; but not so when, by extrinsic facts it is made doubt- ful or uncertain what was intended, or what the meaning of the instrument is. Such doubt may be removed by extrinsic evidence of the circumstances under which the instrument was framed. Sonndly et al. V. Simonton et al., 13 Minn. 301. 17. Contract prohibited is a penalty. To determine wliether or not a contract prohibited by a penalty is void, the whole statute must be examined to find out whether or not the malcers of it meant that a contract in contravention of it should be void or not. Soloman v. Dreshler, 4 Minn. 278. IS. Wheat contract and order on warehousemen. A contract for the sale of wheat in the hands of warehousemen ac- companied by order on thelatter drawn by the Vendor in favor of the vendee, are to be read together as a part of the contract CONTEACTS. 75 between the pai'ties. Brackett a. Edgerton, 14 Minn. 174. b. PartiniUar contracts. 19. Land, contract to leave right to arbitrator. "I. and B. agree that (certain land) may be bid off for them by M. in trust for them, eacli furnishing half the funds, the same to be conveyed agreeably to the determination of five disinterested citizens, the award of whom, or a majori- ty of whom, shall be bii"iiiig on each claimant." 3eld, the citizens were not to divide the land between I. and B. according to share of purchase money furnished by each — the parties claiming the whole of the land, and agreed thus to settle the dispute. Irviiie !). Marshall & Barton, 7 Minn. 280. 20. Logrs. A contract in these words, ''I etc. for etc., do hereby sell, assign, transfer and set over, and convey to said John Toung all the logs belonging to and owned by me in the Mississippi River and along the shores thereof and also in booms above the Falls of St. Anthony," etc., with- out any punctuation marks, conveys logs above the Falls of St. Anthony only. Van Eman v. Stanchfield et al., 8 Minn. 518. 21. D. and R. contracted as follows, "R. contracts for all material to put up a house, paying part in lots and pianos when possible, using his own judgment as if for himself — for which D. allows R. to make a selection of the best piano in a lot enumerated below, and keep for himself, R." Held, the contract conferred on R. the right simply to select an instrument in the first instance, but did not pass the title, a performance of the contract on his part a condition precedent. Dodge v. Rogers, 9 Minn. 223. 22. A stipulation provided that "unless the said Rebecca F. Black shall within the time above mentioned, and on or before March 6th, 1865, apply, etc." Held, appli- cation could be made on March 6th. Bar- ker V. Keith, 11 Minn. 65. 23. The word " until,'" in the absence of anything qualifying its meaning, might perhaps be regarded as exclusive in its sig- nification, but its import may be ambigu- ous, in which case its meaning will be de- termined from the whole text or instrument in which it is used. lb. 24. Mail contract. W. had contract- ed with the United States to cany the mails over a given j-oute two years from July 1, 1866, under the regulations of the P. O. Department. Defendant contracted with W^ to take said mail contract oft' 'W.'s hands and save him harmless therefrom, W. agreeing to pay defendant at rate of sev- en hundred and ninety dollars per year, payable quarterly, " as the same is paid by the Post Office Department,'''' subject to de- ductions made by the department for fines, etc., or any increase or reduction, in the service to afl'ect the pay in proportion. Afterward plaintiff" contracted to take de- fendant's contract off" his hands for a given time, and hold him harmless under the same regulations, etc., for which defend- ant agreed to pay plaintiff" "at the rate of seven hundred and eighty dollars a year, thac is five hundred and twenty doUare for the. whole time above stated, payable quar- terly, as the same is paid by the P. O. De- partment to W., and by him paid to de- fendant, and defendant agrees in case the same is not paid within thirty days to draw an order on said W. for the same, or the amount which shall be unpaid." ffeld,Ws contract with defendant bound him to pay defendant at the rate of seven hundred and ninety dollars a year, as the Department pays him, namely, quai-terly, during the term, and does not limit his liability to a mere faithful accounting to defendant for moneys paid to him by the Department. So also as to defendant's contract with plain- tiff the payment was due quarterly, the stipulation as to the draft on W. being wholly independant of the agreement, and plaintiff was to cany the mails not ab- solutely as set forth in contract, but under the instruction of the Department. Oone- han V. Crosby, 15 Minn. 13. 25. Where A. sold to B. and C. jointly — C. being an intajit— personal chattels, and the vendees execute their notes and mort- 76 CONTRACTS. gage on the property solil, with other per- sonal property, to the vendor for part of the purchase money, it is one transaction. Gugley v. Uushmart, 16 Minn. 307. VII. Consideration. a. What a sufficient consideration, 26. Forbearance to use legal means by one party to secure himself at reqnest of another, and consequent loss is sufficient loss to support a contract. Brewster v. LeitJi, 1 Minn. 56. 27. Keleasing attachment lien. B. re- ceives property of C. and A. as assignee toi- the benetit of the creditors, and promises tlie creditors to pay tlieir claims if they will I'elease the property from their attach- ment lien. Held, such promises of B. was on good consideration and binding. lb. 28. Payment before debt was due. B. held claim of $300 against A., Avhich was due March, 1S67. In Januarj', 1867, B. re- ceived $100 from A., in full of such claim, from compassion for A.'s misfortune in having been burned out. Held, such pay- ment and receipt constituted a good defense to an action for the remaining $200. Son- nenbwrg v. Reidel, 16 Minn. 83. 29. Giving larger note for a smaller. Where the maker of a note for $1,007.88, Including interest, took up the same by giv- ing his note for $1,120. Held, the excess of the second liote over the former was a sufficient consideration to make the tran- saction a, payment of the tirstnote — even in the absence of express agreement. Horigh V. McNitt, 6 Minn. 513. 6. What an insufficient consideration. 30. An agreement between the makei- and payee of a promissory note made ^'when the note became due and payabU,^'' that it should be paid at a particular i)lace, is witli- out consideration and void. Colters. Green- hagen, 3 Minn. 126. 31. T., (mortgagee,) holding certificate of sale of certain land, agreed with plain- tiflF, (mortgagor,) to sell, release and quit claim to plaintift' for a certain sum. Plain- tiff contracted with defendant C, to pay T. the necessary amount, and took from T. the deed as security, also a deed from plain- tiff, all of which was done with T.'s knowl- edge. Plaintiff' nevei- promised to pay T. the agreed price, nor did any consideration from him move to T. C. instead of furn- ishing the money, gave T. his notes wltli a mortgage back to T. to secux'e it. Hdd, T.'s promise to pla,intift' was nudum pactum, and he miglit with full knowledge of the agree- ment between plaintiff' and C, convey di- rectly to C. and take a mortgage back, and on default might foreclose and sell the ; mortgaged premises, and C.'s mortgage be- I ing given for the purchase money, takes precedence to C.'s agreement with plaintiff. BoUes V. Garli et al., 12 Minn. 113. 32. B., occupant of land in the half- breed reservation, sold a piece to defend- ants before getting a patent. When the land was authorized to be entered with half-breed scrip, B. desired to have it en- dorsed on scrip belonging to M. Defend- ant objecting (since M. would thereby take the title,) it was agreed thatM. should take the title and then convey to defendant — M. executing a bond to convey in accord- ance therewith, which was void for uncer- tainty. Held, tlie withdrawal of defend- ant's objections constituted no considera- tion, nor did the deed from B. to defend- ant, and the contract of M. to convey, could not be enforced. Sharpe v. Rogers, 12 Minn. 174. 33. Defendants signed the following contract: '"The capital stock of the New York and Minnesota Gold Mining Com- pany is one million doUai'S, divided etc. • * * And we, the undersigned, do for value received, hereby mutually agree to purchase and take of the original proprie- tors the number of shares set against our names, at the rate of fifty tliousand dol- lars for three thousand shares, and that we will pay to the Treasurer of said Company the sum so affixed in such installments, and at such times as shall be ordered by the Trustees of the Company. And the CONTRxA-CTS, 77 condition of tliis subscription is that two thousand shares of the capital stock shall be paid to the Trustees, to be held by them for the benefit of and subject to the direct- ion of the company." Held, void for want of consideration, the defendants receiving no benefit nor the plaintiff sustaining any injury, the payment of shares to trustees was placing them in the hands of its own servants, no benefit to defendant or injury to plaintift's, and the fact that other per- sons signed the agreement is no considera- tion when it does not appear whellier they signed before or after defendants or on the inducement or consideration that defend- ant would sign. If the payment of shares was to constitute defendant stockliolder in corporation, it does not appear. New York and Mimteaota Gold Mining Co. i>. Martin et aZ., 13 Minn. 417. e. Rights of a stranger to the consideration. 34. Privity of contract. Wlien a pri- vity of contract exists, a person for whose benefit a promise is made, with the assent of tne party from whom tlie consideration moves, may maintain an action for the breach of the contract. VanEman o. Stanch- field, et al., 10 Minn. 255. 35. O. made his promissorj' note to the order of C, wlio. for value transferred it to r. AVhile in hands of latter defend- ants contracted with O. for purchase of cer- tain property, and agreed to assume and take up O.'s note held by F., with interest, when due, and on same daj' gave F. a writ- ing whicli recited that "whereas, etc." they had contracted with O. to purchase said property, " and have agreed to assume and pay a certain note given to C. by O., now held by F., etc., and we have agreed to pay the said note to F. on, etc."' F. signed the former agreement (between O. and defend- ants) as witness, botli agreements being ex- ecuted same day, and in F.'s presence. JBeld, the two agreements were one trans- action, and the language of the latter showed a promise to F. to pay him the note and that the sale by O. was the considera- tion of both the agreements, and that F. being a party to the contract — though a stranger to the consideration, can maintain an action thereon, and his assignee also. lb. 36. Want of privity of contract. B., on a valuable consideration, moving from A., promised the latter to pay his debt to plaintiff. Held, plaintiff could maintain an action against B. on that promise. Wil- son, Ch. J., dissenting. Sanders et al., v. Olason ct al., 13 Minn. 379. VIII. Performance. a. Place and time of performance. 37. No place desigrnated. When de- fendant agreed to pay for a horse by break- ing twenty-five acres of land for jjlaintiff within a given time, no place designated. Held, if plaintiff did not designate the place, defendant should have requested him to do so; if plaintiff' selected a reasonable place defendant should have performed at that place; if plaintiff refused to appoint a reasonable place, or selected one manifest- ly without the meaning of the contract, defendant could have pleaded either of such facts in discharge of his obligation, but failing to make any effort to perform with- in the time, the contract became a money demand for which he was liable to plain- tiff, with interest from time of default, by way of damages. Morejj •e. Enlce, 5 Minii. 392. 38. No time or place appointed. Where the promisor is to pay in work and labor or specific articles, and no time or place for performance is designated, the promisee must first make a demand, and the promisor must refuse before he is in default; when the time of performance is designated but ?io place, the promisor must perform within tlie time, without de- mand, at some reasonable place within the probable intention of the parties. So, he must perform without demand where both time and place are stipulated. lb. 78 CONTRACTS. 39. Time of performance. A contract to drive logs from one point to another, where no thne of performance is specified, must be performed in a reasonable time under all the circumstances of the case. Whalon el al. v. AldricJi, 8 Minn. 346. b. Excuse for non-performance. 40. Subsequent statute making' it il- legal. A contract not to pursue a mort- gage security until the note had been lirst prosecuted, is not binding after an act which require the mortgage to be first exhausted before proceeding to obtain a personal judgment. Catlin v. Fletclier, 9 Minn. 85. 41. Performance prevented by act of the other party. When the performance of a condition is prevented, or rendered impos- sible by the party for whose benefit it was to be performed, the condition is deemed in law performed or its performance waiv- ed or non-performance excused. Dodge v. Rogers, 9 Minn. 22.^^. 42. Ab.solute contract must be per- formed. If a party enteis into an absolute contract, withoutqualification or exception, he must abide by the contract, and either do the actor pay the damages; the per- formance is not excused by an inevitable accident or other contingency, although not foreseen bj', or within the control of the party. Oowleyv. Davidson, 13 Minn. 92. 43. When the contract was to trans- port wheat to, and deliver it at Milwaukee at a specified time, or deliver other Ko. 1 wheat in its stead at that time and place, although ii river constituting a portion of the route of transportation was unnaviga- ble, it did not render the conti-act impossi- ble of performance so as to constitute an excuse for non-performance, lb. IX. Payment. (See Sheriff, 7.) a. By commercial paper. 44. Taking third person's note, etc. When a creditor takes the note or security of a person other than tlie debtor it is not prima facie evidence' that it is taken in payment of an antecedent debt. There must be an express agreement to take such note in payment, and the burden of proof is on the debtor. Devlin et al. v. Charnblin et al, 6 Minn. 468. 45. Question of fact for jury. On a contemporaneous sale of goods, when the vendor receives commercial paper upon which the vendee is liable (as vendee's draft) the law raises no presumption that it was received in payment, but the question is solely one of fact for the jury. lb. b. Appropriation of payments. 46. Lawful and unlawful demand. If a person have two claims against a debtor, one of which is lawful and the other un- lawful, and the debtor makes a payment without appropriating it, the law will ap- ply it to the lawful demand. Solomon v. DresMer, 4 Minn. 278. 47. Secured and unsecured debts. When a debtor makes a general payment, and his indebtedness is in part secured, the law, in the absence of any specific appro- priation by the parties, will apply the pay- ment first to the liquidation of the unse- cured indebtedness. Lash v. Edgerton et. al, 13 Minn. 210. X. Demand, Tender, Etc. rt. Demand. (See Civil Action, XXII, 1.) 4§. When unnecessary. After a party has incapacitated himself from performing his contract, a demand or tender is an idle ceremony, whicli the law does not require. Smith V. Jordan et al, 13 Minn. 264. 49. On Sunday. A demand of per- formance of contract on Sunday is illegal and a nullity, and tlie partj' by his subse- quent conduct cannot waive his right to urge the objection. Brackitt v. Edgerton, 14 Minn. 174. b. Tender. (See Civil Action, XXII, 2.) CONTKACTS. 79 50. When unnecessary. A party hav- ing repudiated his contract, is not entitled to a tender by the other party to malie him liable. OiUv. Newell et al., 13 Minn. 462. 51. When insufficient. A iendei' of a creditor's over due promissory note is not good. Barker v. Walbridge, 14 Minn. 469. XI. Void Contracts. a. For Illegality. (See U. S. Land, 11, 20.) 52. Ko person, natural or artificial, can enforce a contract that is void, illegal, or contrary to the policy of the law. Boch- ester Insurance Co. v. Martin, 13 Mian. 59. 53. A wager upon the result of a horse jace is Illegal and invalid, as against good morals, and sound public policy. Wilkin- son V. Tousley, 16 Minn. 299. 54. Election Contract. A note pay- able when H. H. Sibley is elected Repre- sentative to Congress from Minnesota Ter- ritoiy, is void as being agsvinst public poli- cy and no action lies. Cooper v. Brewster, 1 Minn. 95. 55. A meeting of occupants of public land to promote measures for securing their right to the land so occupied at a coming land sale, is opposed to the public policy and laws of U. S., and their acts are ille- gal and void. Brishois v. Sibley et al., 1 Minn. 230. 56. Saleof liquors without license. A violation of the liquor license statute of 1855 is an act contra bones mores, and a courtof justice should not lend its aid to help a party to enforce a contract thus tainted, i. e. sale of liquors under that statute without a license is void. Solomon v. Dres/Uer, 4 Minn. 278. 57. Act prohibited by penalty. When a statute inflicts a penalty for doing an act, though tlfe act is not prohibited in terms (e. g. sale of liquor without license,) yet it is thereby rendered unlawful, because the infliction of a penalty implies a pro- hibition, lb. 58. Contract by pre-eraptor — consid- eration paid on void contract not recover- able. Defendant being a settler on unsur- veyed government land under the Town- site act, having contracted in writing with plaintiff that the title when pei-f ected should pass to plaintiflF, afterwards induced plain- tiff' to surrender and cancel this written contract, and in lien tliereof undertook and promised with plaintiff' that after he had pre-empted the land (which he could not do had any contract for the sale of his inter- est existed,) he would re-execute the orig- inal agreement. Held, this latter agree- ment was void as against public policy; it being in conflict with the requirements of Sec. 13, act of Congress Sept. 14th, 1841; nor can any consideration paid on such a contract be recovered. The Saint Peter Co. V. Bunker, 5 Minn. 192. 59. Pre-eniptor's agreeuient. An agreement with a pre-emptor under act of Congress, 1841, by whicli the parties were to occupy the laud when pre-empted as a town site, etc., is utterly void and so taint- ed with immorality as to render it incapa- ble of becoming the foundation of any rights — let alone equities. Eoans v. Folsom 5 Minn. 422. 60. agreement for mortgage. A contract by which A. lends money to S. to pre-empt land of the United States, and by which S. is to give back after such pre- emption, a mortgage on the same to se- cure the re-payment of his money so ad- vanced, is void as contrary to the act of Congress, Sept. 24, 1841 — and such mort- gage cannot be enforced. McGue v. Smith 9 Minn. 252. (See MOBTGAGES, 44.) 61. No agreement between parties prior to i)re-emption whereby any part of the land to be pre-empted by either, was to be shared with the other, could be enforced. Warren v. VanBrunt et al., 12 Minn. 70. 62. Sunday contracts. A note made on Sunday in this State is absolutely void, and if the date is pleaded, the courts will take judicial notice of its being Sunday — without its being specially alleged— follow- 80 COPYRIGHT— CORPORATIONS. ing Bi'imhall v. VanCampen, 8 Minn. 13. Finney v. Oallendar, 8 Minn. 41. 63. The sale of a liorse consummated on the Sabbath is void, and an action on the warranty in such sale will not lie. Finley v. Quirk, 9 Minn. 194. 64. Contract to do an unlawful act. The threshing of g:rain witiv a threshing machine, the tumbling rod of which was not boxed, as required by ch. 60, p. 99. Laws, 1868, was an unlawful act, and is not such a consideration as will support a promise to pay for such threshing, and no recovery can be had therefor. Gilfillan ch. J., dissents. JngersoU v. Bandail, 14 Minn. 400. b. For uncertainty, 65. Property and person. An instru- ment by which the parties signing " bind themselves, etc.. to execute and deliver to each and every lot owner, wlio may have title thereto from Joseph Briasson and wife, or from either of tliem in any por- tions of lot known as four (4), section 29, 'town 111, north of range 10 v^est, State of Minnesota, a good and sufficient deed, etc." neld. void for uncertainty as to tlie prop- erty intended and the pei'son to whom it was to be conveyed. Sharpe v. Rogers, 10 Minn. 207. XII. Waiver of Breach. 66. Kequisites of. To constitute a waiver of a claim for a breach of warran- ty or contract, tlie acts or circumstances re- lied on to constitute the waiver must have been performed or have transpired after the party against whom the waiver, is urg- ed, linew or sliould have Icnown the facts constituting the breach of warranty or contract. Dodge v. Tfie Minnesota Plastic Slate Roofing Co , 14 Minn. 49. Ramsey county, with the incumbrances and liens upon said lands, prepared at great cost and expense and labor and skill of the plaintiff and others," are works in which the owner has an exclusive property in them as against all the world so long as they remain in manuscript and are not published— and this at common law. SemMe— that all right to such protection ceases after publication, unless secured by act of Congress. Banker v. Caldwell, 3 Minn. 94. CORPUS DELICTI. (See Criminai, Law, 98.) I. IL III. IV. (See COPYRIGHT. 1. "A certain set of abstract books, and books of indexes, containing complete ab- stracts of title to all the lands situated in CORPORATIONS. Generally. Power. Acceptance of Charter. Stockholders. CONSTITDTIONAL LaW, V., 1.5; Pleading, 32, 97, 98.) St. Anthony Falls Water Power Co. School Districts. St. Anthony, City of. Board op Education of the City of St. Anthony. Counties. Meeker County. First Div. St. Paul & Pacific R. R. Transit R. R. Co. Minnesota & Northwestern R.R. Co. Minneapolis & Cedar Valley R.R. Co. St. Paul, City op. Railroads. Municipal Corporations. Regents of the University of Min- nesota. Banks. ^> Towns. I. Generally. 1. Grant to run a ferry does not create a corporation. An act of the legislature CORPORATIONS. 81 granting to M. the right to maintain and run a ferry does not thereby constitute him a corporation within Sec. 1 and 2, Art. 10, State Constitution — it's a simple gri'-it of a franchise. McBobertsv. Washburn tt al., 10 Minn. 23. 2. Power-s regriilated by chatter. A corporation, being tlie creatui'e if law, and having such powers only as ;iro con- ferred on it by the statute creating it, or under whicii it Is organized, cannot legally exercise any power not thus conferred. Eocliester Insurance Co. v. Martin, l.i Minn. 59. 3. Presumption in favor of thn valid- ity of an exercise of power. Although a corporation is not permitted to transact business not authorized by its charter, yet it should clearly appear that the aci or con- tract was not within its power, before a court would declare such to be its character. Dana et al. v. Tlie Bank of St. Paul, 4 Minn. 385. II. PoWElt. 4. Cannot expend in excess of a fund to wliicli it is confined. A corporation which is confined in its expenditures to a particular fund, may not create a debt or borrow money beyond such fund without express authority. Regents of the University of Minn. v. Hart etal., 7 Minn. 61. 5. It can negotiate its bonds directly to creditors. The object for which a cor- poration was authorized by tlie legislature to issue bonds, was the payment of its then existing indebtedness. JSdd, the corpora- tion was not compelled to negotiate the bonds and thus raise money to meet the Indebtedness — it might turn the bon^is over to the creditor directly. Wiley v. Hoard of Education of Town of Minneapolis, 11 Minn. 371. III. Acceptance of Charter. 6. What amounts to an acceptance. Certain members of the " Sons of Temper- ance,"' without the authority of their "di- vision," obtained from the Legislature a 11 charter for their division by wliich the division was created a corporation under the name of "St. Paul Division Ko. 1, Sons of Temperance," with power to take, receive and hold property, of suing and being sued, etc. The division never form- al!}' accepted the chartei', but afterwards on resolution they effected a loan of one B. and conveyed certain real estate to him as security, which conveyance was executed by B. T. & B. " as trustees of St. P. Div- ision No. 1, S. of T. of the county, etc.," and toolv from B. a bond for a deed in the same name, tlekl, these acts were corjior- ate acta! and amounted to an acceptance of their charter. Suns of Temperance o. Brown et al., 11 Minn. 356. Bekey, J., IV. Stockholdehs. (See Debtor and Creditor, 5.) 7. Stockholder, liability of. A com- plaint against a corporation and certain stockholders therein, alleged the recovery of a judgment against the corporation in behalf of plaintiff on breach of contract for $283.15, the issuance of execution there- on, its return unsatisfied, and that the same was unpaid ; further, that said stock- holders were such from the making of said contract to the commencement of this action, holding each not less than ten shares of fifty dollars a share, and prayed judgment. Edd, sufficient statement of a cause of action against the stockholders, and it is not obnoxious to the objection that the contract between the corporation and plaintiff was a joint contract of the cor- poration and stockholders under Sec. 3, Art. 10, Constitution of the State or Sec. 10, Chap. 34, G. S., by virtue of which the plaintiff's cause of action is merged in the judgment, for those provisions do not con- template one action only in which the lia- bility both of the corporation and the stockholders shall be determined. Dodge V. Minn. Plastic Slate Roofing Co., 16 Minn. 368. 82 COUNTY ATTOKNEY— COUNTIES. , COUNTY ATTORNEY. 1. It is the duty of the County Attorney under Sec. 181, Chap. 8, G. S., to appear in all suits in which his county is a party, whether pending within or without the same, without further compensation tlian his salary. The County CorrCrs Hennepin Co.v. RoMnson, 16 Minn. 381. COUNTIES. I. Power Gbnerally. II. Power of County Commissioners ■AND Supervisors. III. Liability for Illegal Taxes Collected and Opening Roads. IV. Liability to true owner of Orders. V. Register of Deeds. VI. TUEASDHER AND HIS DEPUTY. VII. Proceedings on Appeal from THE COM-MISSIONERS TO DIS- TRICT Court. (See County Attorney.) I. Power Generally. 1. Cannot purchase land on execution sale. A county under Sec. 251, Comp. St., p. 109, connot purcliase land at a sale on an execution issued on ajudgment in its own favor — there being no express nor implied power granted for that purpose. WiUi-ama V. Lash, 8 Minn. 496. 2. Negotiable paper of county void as such, but good as evidence of indebtedness. Counties in this Stale have no authority under the general law (1865) to malje bonds or negotiable paper of any kind, the consideration of which cannot be inquired into in the hands of any person. Such bonds or negotiable paper, although inoperative as such, may be evidence of an indebtedness. Sec. 13, p. 59, R. S., and Sec. 95, p. Ill, R. S. OoodnoiD V. Commissioners of Ramsey Co.., 11 Minn. 31. 3. Power generally. Counties, lilre towns and scliool districts, are mere qitasi corporations invested with corporate pow- ers sub modo, and for a few specified pur- poses only, but deficient in many of the powers incident to the general character of corporations. lb. II. Power of Countty Commission- ers AND Supervisors. 4. No power to purchase real estate at execution sale. County Commissioners of Ramsey county could not purchase real estate at an execution sale on a judgment in their favor. Following Williams v Lasli, 8 Minn. 496. Shelley et al., v. Lash, 14 Minn. 498. 3. Stranger bou&d to take notice of their powers. A person dealing with county commissioners is bound to talce notice of the statute under which they act, and is presumed to know the extent of their power. Goodnow i>. Commissioners of Ramsey Co., 11 Minn. 31. 6. Power to set oif portions of organ- ized townships. County Commissioners have no power to set off a portion of an organized township containing more tlian thirty-six sections, on the petition of a large number of town residents and voters, tlie same not having been submitted to a vote of the electors of the town Sec. 104, Ch. 8, Gr. S. Nor was such a petition the one contemplated by Sec. 2, Ch. 10, G. S., which includes a petition by the township as a corporate act, and not by individuals. The Town of MantorviUe v. Mantor, Assessor etc. 14 Minn. 437. 7. Power to reduce township in area. County Commissioners undel- the laws in force in 1866, had no power to reduce a township in area on petition without sub- mitting tile question to a vote of the elect- ors of the town as required by the proviso in Sec. 23, Chap. 14, laws of 1860. Such proviso is not repealed by Chap. 67, laws 1862, p. 137, said chapter being an amend- ment of Sec, 1, Chap. 14, laws 1860. The^ Supervisors of the town of Maple Orove «. the Board of Com. of Wright Co., 12 Minn. 403. COUNTIES. 83 S. Power to issue bonds to bnlld court house and jail. Under Sec. 13, p. 153 Comp. St., county commissioners have power to create a debt by the Issuing of bonds for the purpose of erecting a court house and jail. Chaska Go. v. Board of Su- pervisors of Carver County, 6 Minn. 204. 9. Can't issue bonds, with interest coupons attached, as " orders." County Commissioners under an act authorizing thorn to issue orders to the persons named, for the amounts severally named, for the amounts severally due them, subject to the same rules as other county orders issued by said County Commissioners, act of legisla- ture approved May 23, 1857, Ex. Sess. 301, have no authority to issue bonds payable at a future day with interest coupons at- tached. Goodnow V. Gommissioners oj Ram- sey Go., 11 Minn. 31. III. Liability for Illegal Taxes Collected, and Opening Roads. 10. A county having directed the levy and collection of illegal taxes and received the proceeds thereof, is liable in an action to recover it. Foster v. Board of Gounty Gommissioners, Blue Earth Go., 7 Minn. 140. 11. When illegal taxes have been col- lected, and the county commissioners have settled with the collector and charged him with the amount, the commissioners there- by receive it to the use of the owner. Board of County Gommissioners, Dakotah County, 1). Parker, 7 Minn. 267. 12. Not liable to pay orders issued to pay for expense in opening: a road before the acts authorizing their issue liad been performed. The act of March 20, 185S, authorizing commissioners to lay out and construct the Cannon Falls and St. Paul Eoad, providing that the counties through which it ran should pay for its location and construction, the proportion that the length of said road in each county bore to the whole length of tlie road ; that the commis- sioners should file with the county com- missioners of each county a written state- ment of the cost of construction of said road in said county, designating its appor- tionment, and allowing them to draw or- ders on the several county treasurers for the amount of their apportionment of the expenses. On 24th June, 1858, the road commissioners had tiled with the defend- ants the statement of expenses and amount to be paid by Washington County, and previous to that time had drawn orders against that full sum. The commissioners afterwards collected a tax to meet this de- mand. After the drawing of the orders, and before the filing the statement, the original act was amended by repealing the clause authorizing the drawing of orders, and providing that each county should pay for the road within its limits. Held, that at date of drawing the orders the liability of the county had not attached — the filing of the statement being a condition precedent, and the authority to draw orders being talcen away by the amendment before the statement was filed, the county was not liable to pay the orders — ^but was liable only for such expenses as were incurred within its boundaries — which expenses are not pretended to be covered by these or- ders. Nor does this amendment take away any vested lights, for the persons doing the labor knew not at the time of its per- formance on which county the commis- sioners would draw the orders, did not do it on the credit of any particular county, nor does the fact that the tax was collected make any difference in their liability. Thome v. Board of Co:tnty Commissioners, Washington Gounty, 7 Minn. 150. 13. Not liable nntil road is located, opened, and statement of expenses filed by commissioners. Under Special Laws, 1858, p. 135, for -'locating and opening" a road between given termini, the counties through which it passed were not liable for the cost thereof until the commission- ers had filed a statement of expenses show- ing the amount to be paid by each county, and that statement could not be made until the work for the performance of which the 84 COUNTIES. commissioners were appointed had been completed. lb. IV. Liability on Orders paid to OTHEU THAN THE TrUE OwNER. 14. Innocent payment. Payment by a county treasurer of county orders to the bearer, where the same are payable to a person named or bearer, made in good faith, In ignorance of defects in bearer's title, exonei-ates the county from liability thereon to another person, the true owner, and this where payment is made after the orders are dislionored. The owner in such case should bring notice home to the treas- urer of the loss of the orders— publication of the loss in a newspaper, or notice to the county auditor, is insnflScient. Sweet v. The County Oornmissioners, Career County, IE- Minn. 106. V. Registeij of Deeds. (See Mandamus, 7.) 15. Custodian of books, etc., of the Supervisors. The Hegister of Deeds is the proper permanent custodian of all "the books, records and accounts of the Board of Supervisors," but he may be compelled, by mandamus, to deliver them over to the Board of Supervisors when they need them in the performance of tiieir duties. Board of Superoiaors, Ramsey Co., V. Heenan, 2 Minn. 341. 16. Entitled to extra compensation for keeping "reception book." Under Sec. 4, Art, 2, Cliap. 8, II. S. 1851, as amended by Sec. 3, Cliap. 2, G. L, 18.57, p. 8, which provides that every llegister of Deeds shall "procure, open, and keep the Reception Books provided for in the above section, sit tlie expense of )iis proper county," the county is liable to pay for sucli additional labor, and the same is not provided for in the fee bill allowed such officers. Hough V. The Board of Commissioners of Ramsey County, 9 Minn. 23. 17. but not if tlie colnmn " where situated" is left blank. A Kegister of Deeds, under Sec. 22, p. 156-7, and Sec. 35, p. 159, Comp. St., is not entitled to com- pensation for keeping " reception books " where h(' has made no entries in the column " where .situated." Mapes v. Board of Com- missioner of OlmMead Co., 11 Minn. 367. VI. Treasurer and Deputy Treasurer. IS. Fees for making sale of land for delinqiiciit taxes. A County Treasurer making- sale of land for delinquent taxes in 18.59, wasentitled, under Sec. 5, Art. 16. p. 198, Comn. St., to twenty-five cents for each certificate of sale executed by him foi- the use and benefit of the county, and three per centum on tlie amount for which the lands wfre exposed for sale. Bingham v. TheBoaid of Supervisors of Winona Co., 8 Minn. 441. 19. What is a waiver of Deputy's bond. Where a Treasurer who appoints a deputy, recognizes him as such, and deliv- ers to hini the list of delinquent personal taxes for collection, it amounts to a waiver of the official bond, where none lias been taken. McCormick et al. v. Mtch, 14 Minn. 252. 20. Deputy's bond may be waived. The requiring of a bond fioni a deputy treasurer is solely for the security of the Treasurer, and may be dispensed with by him. lb. VII. Proceedings on Appeal from Commissioners to District Court. 21. No new claim can be set np in District I'ourt. The county commission- ers allowed a claim of the sheriff for per diem services of $24.00. The county attor- ney appealed, under Sec. 81, 82, Chap. 8, G. S., to tlie District Court. Under Sec. 82, requiring pleadings to be made up in said couit, the sheritt' prepared a com- plaint, in which he claimed $48.00, as mile- age for traveling 480 miles, at 10 cents per mile. Held, the proceedings were prop- COURTS. 85 erty dismissed by the court, on the ground that the cause of action set up hi the com- plaint was not the subject matter adjudi- cated upon by the commissioners — the jurisdiction in such case being purely ap- pellate, to permit a review of the acting of the commissioners — and the respondent was entitled to costs under said action when he prevails. Thomas v. Commuaion- ers of Scott County, 15 Minn. 324. COURTS. I. Generally. II. The Supeeme Cocrt. III. The District Courts. IV. Concurrent Jurisdiction with U. S. Courts. (See U. S. Land, 2.) (See Boats and Vessels.) I. Generally. 1. A court cannot sit as a court of law and chancery at the same time. Hartshorn V. Green's Administrators, 1 Minn. 92. 2. Sabstitnte parties. The Supreme and District Courts have power, on mo- tion, to substitute as party to an action any one to whom the subject matter of the ac- tion has been transferred since its com- mencement. Keough v. McNitt, 7 Minn. 29. 3. Control over suitors. Courts have no power to compela paity to enter judg- ment or do any other affirmative act in the progress of the cause, which relates merely to the conduct of the same. Where the duty is clear, and the other party is intei'- ested in its performance, the court ma}' alwaj-s command it to be done under pen- alty (if it is the plaintiff) of being turned out of court; and (if it is the defendant) of allowing the plaintiff' to proceed to judgment— as where the prevailing party refuses to enter up judgment, so the other party can review it within time allowed bv law: considering Duels. Hawke, 2 Minn. 50, and Furlong ». Griffin and FuUeiton, 3 Minn. 207. Sherrerd v. Frazer et al., 6 Minn. 572. II. The Supreme Court. 4. Art. 1, Chap. 60, K. S., gives the Supreme Court appellate jurisdiction only, except in cases specified. Ames v. Boland, 1 Minn. 366. 5. Sec. 222, R. S. (1851), p. 564, pro- viding that the Supreme Court shall " con- sider and decide the questions of law, and shall render judgment, and award such sentence, or make such order thereon as the law and justice shall require," is not peremptory. State v. Bilanskey, 3 Minn. 246. 6. Habeas corpus. The statute (Comp. St., Chap. 73, Sec. 36,) conferring juris- diction on any judge of the Supreme Court to allow writs of luibeas corpus, is not in conflict with the Constitution, and the taking of recognizances in the course of proceedings on snsli writs is within their jurisdiction. State v. Qrant, 10 Minn. 39. 7. The Constitution (Art. 6, Sec. 2,) de- signed this court as one of review for the correction of errors committed by inferior tribunals; and is not to exercise original jurisdiction except where it is conferred by law; it will not, therefore, entertain ques- tions which have not received the actual decision of the tribunal from which they come, unless it is quite evident that sub- stantial error has been committed, and ad- equate relief cannot be had below. Bab- eock et al. v. Sanborn et al, 3 Minn. 141. III. The District Courts. (See New Trial, 1.) 8. The District Courts of the State take the place and receive the causes of the late District Courts of the Territory. Irvine v. Marshall & Barton, 3 Minn. 73. 9. Control over suitors, etc. Flan- drau, .1., says the District Court has full 86 COURTS. power over its attorneys, suitors and rec- ords, and may compel the performance of any act or duty which the party or attor- ney should perform in the progress of a suitor proceeding; but it does not follow that it can enforce the entry of a judg- ment other or different from the one he is entitled to. Bevel v. Hawke, 2 Minn. 50. 10. Power on certiorari to Justice Court. Sec. 11, Art. 14, of the organic act of the Territory, regulating proceed- ings on certiorari from justice's court, does not confer on the District Court authority to disregard all formal requirements in the proceedings before a justice, and settle finally the rights of the parties as the very right of the matter may appear. 8t. Mar- tin v. Desnoyer, 1 Minn. 41. H. Jurisdiction— general. The Dis- trict Courts of the State liave original jurisdiction in every case where the Con- stitution itself does not clearly confer it on some other court. This jurisdiction ex- tends to all causes which the Legislature may, in its discretion, authorize other courts to take cognizance of, for the dis- cretion may never be exercised, or not to the full extent, and some court must in the meantime possess it. The authority pos- sessed by the Legislature to confer on other courts a portion of the juiisdictiou vested by the Constitution in the District Courts, does not imply the right to deprive the latter of such jurisdiction, but simply to authorize other courts to exercise it, concurrently witli the District Courts. Agin v. Heyward, 6 Minn. 110. 12. Amount involved. Tlie District Courts, under the Constitution, are courts of general jurisdiction, and possess all the judicial power not conferred on other courts. They have original jurisdiction in case involving less than $100, concurrently with courts of Justices of the Peace, lb. Vi. The District Court lias jurisdic- tion in actions where the amount in con- troversy is less than one hundred dollars — following Agin v. Heyward, G Minn. 110. Dressy V. Oierman, 7 Minn. 398; Thayer v. Gole, 10 Minn. 31,5. 14. The District Courts of this State are courts of general jurisdiction, and may entertain all cases, jurisdiction over which is not conferred u]!)on some other court by the Constitution or some other statute of the State — approving Agin v. Heyward, 6 Minn. 110; Southern Minn. R. B. Co. i>. Stoddard, 6 Minn. 150. 15. Claims against counties. Under Sec. 7 and 8 of the G. L. 1860, p. 132, the District Court has jurisdiction in all ac- tions relating to claims against the county. Bingham v. Board of Supermsors, Winona County, 6 Minn. 136. 16. Setting off judgments. The Dis- trict Court possesses full power — in the absence of statutory provisions — to adjust adverse claims between suitors, by setting off judgments recovered between the same parties. Temple and Beaupre v. Scott, 3 Minn. 419. 17. The District Courts have power to set aside the report of a referee, and grant a new trial. Thayer v. Barney, 12 Minn. 503. 18. In an action to compel the just ad- ministration of assets, the District Court has jurisdiction where the complaint shows that the plaintiff's claim and those for whom he sues as similarly situated, amount in the aggregate to exceed $100, although the plaintiff's claim is less than $100. Goncelier v. Foret et al., 4 Minn. 18. 19. Striking out excess in judgment. Under Sec. 133, p. 516, Comp. Stat., the District Cou't has ample power to strike out any excess in a judgment brought from the Justice's Court, and reduce the same to what it should have been. Walker v. MeBonald, 5 Minn. 455. IV. , Concurrent JuRiSDicTiox with United States Courts. 20. Generally. A grant of jurisdic- tion generally to the United States Courts is not sufficient to vest an exclusive juris- diction, as In Sec. 2, Art. 3, Constitution of U. S., which provides that the judicial power of the United States shall extend to COSTS— 00 VENA NTS. 87 all cases of admiralty or maritime juris- diction. Though Congress under this sec- tion might make the jurisdiction exclusive of the State courts until such action is taken, the latter retain a concurrent cog- nizance in this and all cases where previous to the Constitution, they had jurisdiction over the subject matter. ' Reynolds v. Steam- boat Favorite, 10 Minn. 242 ; Morin v. Steam- hozt F. Sigel, 10 Minn. 250. 21. Jurisdiction in steamboat cases. The District Courts of this State have jur- isdiction in cases coming under Chap. 76 of the Comp. St., concurrently with the United States District Courts — ^the judiciary act of 1789, which confers on the latter courts "exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, etc., saving to suitors in all cases the right of a common law remedy when the common lawis competent to give it," leaving the concurrent power, in this class of cases, where it stood at common law, and the remedy provided by Chap. 76 is in all essentials a " common law remedy " within the meaning of the statute, lb. COSTS. (See Justice of the Peace, IV. E.) (See New TBI AL, IV.) (See Peactice, II. 14.) COUNTY COMMISSIONERS. (See Mandamus, 9.) (See Counties, II.) COUNTY SUPERVISORS. (See Counties, II.) COUNTY TREASURER. (See Counties, V.) COtJNTERCLAIM. (See Pleading, B. VIII. e.) ' COURT COMMISSIONER. 1. A Court Commissioner has the pow- er of a Judge at chambers and has no ju- risdiction to entertain a motion or set aside a summons. Pulver v. Grooves, 3 Minn. 359. 2. A Court Commissioner has the pow- er of a Judge at OliaMbers not of the court in vacation. Chamber duties are confined to such preliminary and intermediate mat- ters, as the granting of orders to show cause, extending time to plead; letting to bail; granting injunctions, and many other matters of a similar nature, wliich are usu- ally ex parte, go of course on a prima facie hearing, and may be allowed by the Judge of a Court, when out of term, and when acting as Judge inerdy, and not as the Court. He cannot try an issue of law. Qere v. Weed and Avery, 3 Minn. 352. COVENANTS. (See Civil Action, IX. 1.) 1. Independent. Where one party "in consideration of the benefits and profits arising from the erection of a steam saw mill on the premises, hereby conveyed by this title bond," agreed- to convey to the other party certain lots "so soon as the building for said mill shall be commenced and a portion of the machinery on the ground," — such covenants are independent. Hone V. Woodruff, 1 Minn. 421. 2. A covenant to " stand seized," can only be supported when based upon a con- sideration of blood and marriage. Hope v. Stone et al., 10 Minn. 141. 3. A covenant of non-claim in a quit claim deed relates only to the estate, right or interest actually conveyed by the deed, and does not preclude the covenantor from setting up in his own favor and against the covenantee any after acquired estate or interest. lb. 88 CRIMINAL LAW. 4. Breach of covenant of warranty. To constitute a breach of a covenant of warranty and for quiet enjoyment, it seems tliere must have been an eviction under a paramount title existing at the time of the conveyance. Burke et al. v. Bmeridge 15 Minn. 205. 5. Breach of covenants of seizin and right to convey is prima facie established by proof that subsequent to the conveyance in question a stranger took possession of the premises claiming to be the owner thereof in fee simple, and was the owner thereof, and has since retained possession adversely to plaintift", and not under any title derived from plaintiff. lb. 6. Nominal damag'es only recoverable when. When A. having no title, covenants that he is seized and has good right to convey, and also warrants the title, and he afterwards acquires good title, the grantee can recover only nominal damages for the breach of covenant of seizure, for by the warranty A's after acquired title recurs to him, and he thereby obtains all the brolien covenant was designed to accomplish, lb. 7. It seems that, when a deed of con- veyance is executed, the purchaser is re- mitted for his relief, as to defects in the property purchased, to the covenants in his deed, unless there has been fraud on part of vendor. Faribault v. Saier et al., 13 Minn. 223. CRIMINAL LAW. [Scope Note.— This title is designed to embrace all the decisions on criminal law and practice not re- lating^ to the criminal jurisdiction and practice of Jus- tices of the Peace, for which see that title.] I. Generally. II. Indictments. i. Formal parts. 5. Person injured. 3. Misnomer. Jf. Place. 0. Time. 6. Certainty. 7. Technical words. 8. Joinder of offenses. 9. Demurrer. 10. Amendment. 11. Setting aside indictments. 12. Waiver of defects. IS. Indictments inparticular cases. a. Attempting to extort proper- ty, etc. b. Assault with intent to do great bodily . harm, being armed with a dangerous weapon. c. Rape. d. Murder. e. Larceny. f. Uttering counterfeit bills. g. Polygamy. h. Taking illegal fees, i. Official neglect. III. Defenses. a. Benefit of Clergy. b. Justification. c. Self-defense. d. Intoxication. e. Provocation. f. Insanity. IV. The Trial. a. Place of trial, h. Change of venue. c. The Grand Jury. d. The Petit Jury. 1. Drawing the Jury. S. Summoning Jurors. 3. Summoning special venire. Jf. Calling the Jury. 5. Challenging Jurors. 6. Swearing the Jury. 7. Triers. e. Argument of counsel. f. Charging Jury. g. Province of Jury, h. Retirement of Jury, i. Verdict. j. NoUe Prosequi. V. Evidence. 1. Presumptions. 2. Depositions. CRIMINAL LAW. 89 S. ConfesHions. 4. GorpuK Delieti. 5. Evidmce of diameter. 6. Weight of evidence. 7. Eddenee in particular cases. S. Witnesses. VI. Pkacticb on Review. 1. Methods of Review. S. Questions that can be raised. 3. Amending the record. 'If. Principles of determination. 5. Judgment Roll. 6. Immaterial errors. 7. Material errors. S. New trials. va. The Execution. VIII. Particular Offenses. 1. Petit treason. 2. Mxtortion. 3. Conspiracy. Jf. Forgery. 5. Offenses against chastity, mor- ality, and decency. a. Adultery under promise of marriage. b. Polygamy. c. Fornication. 6. Offenses against life and person, a. Murder. i. Manslaughter in second de- gree. t. Murder in second degree. d. Assault with intent to mur- der m maim. e. Assault with intent to conv- mit rape. f. Assault with intent to do great bodily liarm, being armed with a, dangerous weapon. g. Libel. 7. Offenses against property, u,. Larceny. h. Willful and malicious hill- ing etc. of horses, etc. 12 I. Generally. 1. Cominon law superseded by the statutes. There are no offenses pnnish- able by our laws that are not made offences by statute. When the statute defines an offense we cannot go beyond, except to de- tennhie the meaning of common law terms, —if the statute provides simply for the punishment of a crime without defining it, we must adopt the common law definition — but nothing can be added to a taking i away from the statutory definition. -Be«- son V. State, 5 Minn. 19. 2. Common law simply modiHed by the statute. Onr statutes, as to crimes, were intended merely as a. modification, and not as an entire repeal, or abrogation of the common law. Beery, J., dissents. State V. Pulle et al., 12 Minn. 164. II. Indictments. 1. Formal Parts. 3. Statutory forms sufficient. Where a form is given by statute for indictments, and declared to be sufficient for any pur- pose, nothing short of its leading to ab- surd results, or conflicthig with some con- stitutional provision, would justify a court in disregarding it. Bilansky v. State of Minnesota, 3 Minn. 427. 8ta,te v. Ryan, 13 Minn. 370. 4. Division of statutory forms. The forms provided by statute divide an indicts ment into two parts; first the accusation, second the specification of the crime charg- ed. (Chap. 105, p. 755, Comp. Stat.) In the first part defendant is charged with committing a certain crime, naming it, as murder ; and in the specification the crime is particularly described. The State v. Erto, 8 Minn. 220. 5. Specification. Where an Indictment charges a crime which is described into several classes, it is sufficient if the specifi- cation show a crime within any one of those classes. lb. 6. Conclusion. Kape is a crime at com- mon law, and the indictment therefor need 90 CRIMIISrAL LAW. not concluded contra formam staftiU. 0'- OonneU v. State, G Minn. 279. 7. Caption. An indictment for an of- fense committed In the organized county of j St. liOiiis, to whicli tlie nnorganized conn- j ties of Lake, Carlton, and Itasca, are at- ' tached foi' judicial purposes, was entitled in the counties of St. Louis, Lake, Carlton and Itasca. Ildd, correctly entitled and found under Ch. 112, Laws of 1867, p. 156. States. Stokely, 16 Minn. 283. S. Person injured. 8. In case of a " private injury." Sec. 73, Chap. 119, E, S. 1851^ as follows : "Where the ott'ense involves the commis- sion of an attempt to commit a private in- jury, and is described with suflScient cer- tainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material." Held, the term " jirivate inju- ry is limitef] and applicable only to inju- ries to ^^ private property" in contradistinc- tion with "Injuries to the person." State of Minnesota o. Boylson, 3 Minn. 438. 3. Misnomer. 9. Tariance of a letter in a foreign word. When a name appears to be a for- eign one, a variance of a letter which, ac- cording to the pronunciation of that lan- guage does not vary the sound, is not a misnomer. State of Minnesota v. Timmes, 4 Minn. 325. j^. Place. 10. Naming county is sufficient. An indictment which charges a crime to have been committed in the county, is sufficient without specifying the particular place In the county. O'ConneU v. State, 6 Minn 279. 11. "Tlien and tliere" witliout showing county. An indictment charged that "then and there (defendant) did extorsively de- mand etc.," without showing the county, except the county in which the indictment was brought. Held, tliere in the connec- tion here used is not equivalent to the ex- pression " in the county aforesaid," and does not certainly show the county in which the crime was committed. Slate ii. Brown, 12 Minn. 490. 13. When offense is coiuwitted on di- viding line of county. Indictment wa> found in county of C, venue in the mar- gin was the county of C, but it charged the oftense to have been committed "in the county of S., in the State of Minnesota, within one hundred rods of the dividing line between the said county of S. and county of C," etc. Meld, sufficient under Sec. 20, Ch. 108, G. S., for under this stat- ute the indictment may charge that the of- fense was committed in the county in which the indictment was found, or in an adjoin- ing county, within one hundred rods of the dividing line between them. State v. Rvb- inson, 14 Minn. 447. 5. Time. 13. Sufficient avenueut of death. The indictment charged that defendant "killed" the deceased on a given day. Held, it shows ex vi termini that he died on that daj', and sufficient allegation of the time. State v. Ryan, 13 Minn. 370. 6. Certainty. 14. General rule. The general rule as to certainty required in an indictment is that when the definition of an offense, whether by a rule of the common law or by statute, includes generic terms (in this case "bank bills" and "gold coin,") it is not sufficient that the indictment should charge the offense in the same generic terms as in the definition, but it must state the species — it must descend to particulars (in this case state the number, amount, denom- ination, bank, etc.) To this rule there is one exception, viz : when it is impossible for the grand juiy to state the particulars with legal certainty, and they make that Impossibility appear in the indictment. State ». Hinckley, 4 Minn. 345. 7. Technical words. 15. Statement of necessary facts suf- flcient. An indictment which states the CRIMIXAI- I -AW Ul /.(.7.. .■.iii.-rnilliliu Mil oMrlis.'. uilliMllI rll.-ll;;- iii^ llic iM'iiiii' ill li'i'iii.-: ;i.-. Ii;n iiiu riiiiiiiiil- li'd the I'l'iiiii' (iT '• Inriviiyi" clc. is -iilli- cieiit tinclei' Sec. 60, Oomi). Stai. p. 1m, Che law from the facts detei-miiies the iinliire of the ciiine. So, an omission to term it a " ci-iine" 01' to '■ aconse ■ tlie party in ex- press words, cannot oliange the legal ert'ect of tlie facts pleaded. lb. 10. " Presents " instead of " accnses." Comp. Stat. p. 700, Sec. 76, sub div. and Sec. 77, are complied witli by an indictment which "presents" insteiid of "accuses,'' the defendant with "feloniously stealing, taking and carrying away'' \\ithout in terms charging the "crime of larceny." Ih. S. Joinder of offimxe. 17. " Miikinij etc.. a connterfeit " and " nttering- and publishing " the same, constitutes tno distinct offenses, and can not be joined. An indictment which cliarges the defendant, in the first count with "making, forging, and counterfeit- ing" a promissory note under Sec. 1, p. CIO G. S., and in the second count with "utter- ing and publishing" the same, vuider Sec, 2, ib. chai-ges two offenses and is demurra- ble under Sec. 3, p. 0.51, G. S., it not being one of those cases where it is allowed by statute to charge more than one offense. — Sec. 6, p. 640, G. S. State v. Wood, 13 Minn. 121. 18. An indictment charged that defend- ant having in his possession as Justice ,of the Peace, sixty dollars and twenty cents, received by him in satisfaction of a judg- ment recovered before him by one IC, he did "wilfully, coxTuptly and frjiudulently withhold it " from said K. ; that K. having called on him, and made inquiry of him about tlie said jiidgm^it,\ia "wilfully and corj'uptly, and with intent to injure and defraud tlie said K.," withheld from him tlie knowledge that the judgment had been satisfied, and neglected to pay over to him the amount received in satisfaction of the judgment, and then aud there " wilfully and corruptly advised said K. to sell said judgment, and afterwards paid, of the y,-.i rc'.-..i,,-.l. I ■ .1. .\. K. rilly-'ii- ilrilbiV.-. unci 'liil lli'-ii Miiil then, williilly :iiiart of the grand jury to give a more particular de- scription, sncli an averment not being tra- versable. State i: Taniif, 16 Minn. 109. 37. An allegation in an indictment " that a more particular description of the articles (stolen) is unknown to the grand jury," is not traversable. Ih. 38. Larceny from the person. The indictment cliarged- " larceny*" by feloni- ously stealing, taking, etc.. a pair of borses worth three Imndred dollars "from the person and possession of the said O. P., being from a stable occupied by lihii at," etc. It being objected on demurrer that the taking from "the person," as charged, was inconsistent with taking from the sta- ble, shown in the same part. Ildd, not in- consistent j the specitication shows larceny from the person. State v. Eno, 8 Minn. 320. 39. " 1)1(1 feloniously steal •'' property of value of thirty dollars. An indict- ment charging that the defendant "did feloniously steal," etc., property of the value of thirty dollars, is sufficient, inas- much as the statute defines "feloniously" to mean "criminally," thereby extending it to misdemeanors as well as felonies. State v. Ilor/ard, 12 Minn. 293. /. Uttering counterfeit Mils. 40. Must .sliow that the bills were is- sued by biink duly iiutliorized. Undei- Sec. G, Comp.- Statutes, p. 717, an indict- ment charged the uttering or ptissing, etc., of two counterfeit bills, etc., knowing them, etc., with the intent, etc. Held, in- safflcientiii notchargingtliattlie bills, etc., was issued or purported to be issued by a bank duly authorized by law to issue such bills or noles. ;.miI wiis iis true Ol- ijeiillilie — I lie lug into llie tiUtiiil.oi'y crime. Bennon v. State, iii-,-e,|, Ol- iiilei-e.l, I' eli'iiieiil- eiMer- ilelinilloii ol' the 'i Minn. 19. r/. Polygamy. 41. Indictment must neg-afive the ex- ceptions in Sec. 3, C. S., p. 728. The exceptions contained in Sec. 3, Comp. St., p. 728, to which the statutory ci'ime of polygamy does not extend, aie to be con- sidered as mad(! in the same clause as the one whicli creates the otfense, (Sec. 2, ib.,) and consequently are to be negatived in an indictment. But where the indictment did not allege that the first wife of the de- fendant "has not been continually remain- ing beyonil sea" (which is one of the ex- ceptions), the omission was cured by alleg- . ing "that the said (defendant) knew at the time of the second marriage, and ever since, that his first and lawful wife, Elea- nor Clierry, was still living," since the woi'ds "the party marrying again, not knowing the other to be living within that time," apply to both, where the wife "re- mained beyond sea," and \siiere she has " voluntarily withdrawn from the other." State V. ,/ohnson, 12 Minn. 476. 42. Seed not allege the second mar- riage in another State was unlawfnl. In ui indictment for poh^gamy under Sec. 3, Comp. St., p. 728, it is not necessary to al- lege that the second mari'iage "was unlaw- ful in the State of Wisconsin, where it took place." If the second marriage took place! in AVisconsin, the parties cannot be pun- ished for it in this State. But under our statute the "continuing to co-habit with such second husband or wife," while the first one is living, by the party marrying again, «ith knowledge that the first wife is living, is polygamy. Ib. h. l\tkinf/ illegal fees. 43. Allegation that Judge of Probate took illegal fees by " color of office " in- sufficient, witltOTit sliowing amount of fees due, collected, and by color of wiiat office. In drawing indictments, while our CRIMINAL LAW. 95 statute dispenses witli mere formality or teclinioallty, it requires certainty in every material allegation or charge. An indict- ment against a Judge of Probate foi- claiming and receiving fees in excess of those allowed by law, chai-ged that he took the fees by "color of office," — by color of what office is not stated; although it is al- leged that he was .Tudge of Probate of Nicollet County, it is not alleged that he took the fees as such officer, or in a case or proceeding pending before him, or for any duties performed by him as such officer — this is a fiital defect. It does not show what fees were due, if any, or what amount he collected, which the authorities seem to require. State v. Brown, 13 Minn. 4fl0. i. Official neglect. 44. To charge an offense for neglect- ing to do an official act, the indictment must show that the duty of doing it is im- posed on the officer. State v. Goon, 14 Minn. 456. III. Defenses, a. Benefit of clercjy. 45. The plea of benefit of clergy never had any practical operation in the United States, and had it, in the absence of statute ory provisions, been claimed as a common law right in any State, it would have been denied. State v. Anne Bitansky, 3 Minn. 246. 4. Justification. 46. That the act was committed dur- ing an affray, no excuse. The fact that the defendant may have been engaged in the commission of an aftray cannot in it- self be a justification or excuse for any of- fense he may have committed. State v. Dineen, 10 Minn. 407. 47. So, as to act committed during: a riot. The fact that at time defendant committed the assault with intent to do great bodily harm, he was engaged in a riot, is no defense to either crime — both ai-e felonies, and cannot be merged one in the other. lb. 48. The proclamation or order of a State officer cannot make legal the killing of an Indian. Stoie t. Gut, IS Minn. 341. c. Self defense. 49. Must bo an apparent necessity for the act. It is not enough that a jiarty be- lieved himself in danger, unless the facts and circumstances were such that the jury can saj' he had reasonable grounds for his belief — there must be an apparent necessity to ward off by force some bodily harm. State V. Shippey, 10 Minn. 223. 50. Not enongh that defendant be- lieved it necessary. The mere fact that defendant believed it necessary for him to act in self defense, would not entitle him to acquittal — he must have had I'easonable grounds for such belief, lb. d. Intoxication. 51. Insanity from intoxication or other fvise, whicli leaves the person so that " h« docs not know what he is do- ing:," good defense. On an indictment for an '• assault with intent to do great bod- ily harm," being armed with a dangerous •weapon, it Is error for the court to charge that "if defendant did not know what he was doing from being in a state of insensi- bility, the jury cannot convict, hut otherwise if from excitement or madness the immedi- ate consequence of indulgence in strong drink." If the defendant was so drunk as ' ^not toknow what Iw was doing,^'' he had no in- tent which must in fact exist. The intention being element of tlie crime, insanity of anj' kind, or from any cause, which renders the party incapable of forming any intention, and which is not voluntarily induced with a view to the commission of a crime w^hile in that state, may be given in evidence to show that he is not guilty of the specific crime charged. Intoxication might exist with an intent to commit the oftense — it was for the jury to say. State ». Oarvey, 11 Minn. 154. 52. If an int«nt exists, intoxication is CRIMINAL LAW. no defense. Wliere it appears that tlie de- fendant intentionally killed or jiarticipaled in the killing of deceased as a matter of revenge, the grade of the ci'ime is not less- ened by his Intoxication at the time. State V. Gut, 13 Minn. 341. e. Provocation. 53. Civil trespass and tlirowing: a stick but not hitting witli it, no provoca- tion to excuse a murder. The provocation given by the deceased trespassing on de- fendant's land and throwing at liim a. stick — not hitting him — is not sucli as the law will recognize as sufficient to reduce the killing below murder. State ii. Shippey, 10 Minn. 223. , 54. Evidence to be considered in de* teruiining sufflcieucy of provocation. To determine on the sufficiency of the provo- cation to mitigate the killing from murder to manslaughter, the instrument or weapon with which the homicide was effected must be taken into consideration. For if it was effected with a deadly weapon, the provo- cation must be great indeed to lower the gi'ade of crime from murder, if with a weapon or other means not likely to pro- duce death, a lesser degree of provocation will be sufficient, lb. 55. When a homicide is committed in a heat of passion, upon sudden provocation, to determine the sufficiency of the provoca- tion it is proper to take into consideration the character of the weapon used, and if it was a deadly weapon, the provocation must have been great indeed to lower the grade of crime from murder to nnin- slaughter, within Sec. 12, Ohap. 94, G. S. Following State ». Shippey, 10 Minn. 229. State i>. Hoyt, 13 Minn. 133. 56. Killing of defendant's friend no provocation. The fact that deceased had killed a friend of the defendant is not by the law such a provocation as will reduce the crime of murder to manslaughter. Whether a different rule would obtain had the defendant been present when his friend was killed, and under the excitement of the moment taken the life of the slayer — query ? State v. Out, 13 Minn. 341. 57. Wliatis a sufflcicnt provocation. It is the province of the court to define what will constitute provocation within Sec. 12, Chap. 94, G. S., by, in substance, in- forming the jury that it must be something, the natural tendency of which would be to disturb and obscure the reason to an extent which might render the average of men of fair .iverage mind and disposition liable to act rashly or without due deliberation or reflection, and from passion rather than judgment, and something which the juiy are satisfied did so disturb and obscure the reason of the defendant in the case be- fore them, so that the homicide was the re- sult of the provocation. It is for the jury under instructions of this general nature, to determine whether the provocation proved in the particular case on trial is sufficient. State V. Soyt, 13 Minn. 132. f. Insanity. 5§. Burden of proof on party set- ting it up. It is not error for court to charge that "the plea of insanity is one for the defendant to establish; that the sanity of mankind being the rule, the burd- en of proof is on the defendant to show that ah exception exists in his case, and that if the defendant is acquitted on that ground, it must (under our statutes) l)e so stated in, the verdict. R. S., Sec. 259, p. 570. Bonfantiv. State, 3 Minn. 132. 59. Insanity is a defense and must be made out from the evidence, to the sat- isfaction of the court as in any other case. State V. Brown, 13 Minn. 335; State v. Gut, 13 Minn. 341. 60. Negative definition of insanity. A party indicted is not entitled to an acquittal on ground of insanity, if at the time of the alleged offense he had capacity sufficient to enable him to distinguisli between right and wi'ong, and understood the nature and con.sequence of his act and had mental power sufficient to apply that knowledge CRIMINAL LAW. 07 to his own caisc. State v. Shippey, 10 Minn. 223. 61. A defendant is not entitled to an acquittal on tiie ground of insanity, if at the time of the alleged oftense he had ca- pacity sufficient to enable him to disting- uish between right and wrong as to the particular acts charged, and understood the nature and consequences of his acts, and liad mental power sufficient to apply that liuowledge to his own case (following State V. Shippey, 10 Minn. 223), and whether tiie defendant at time of inflicting the blows upon the bodj' of deceased, knew that the natural or necessary consequences of his acts were to produce the death of the de- ceased, may be talcen into consideration by the jury in determining whether he knew and understood the nature and conse- quences »f his acts. State v. Out, 13 Minn. 341. 62. Insane delusion on other matters no excuse. If the defendant lias an insane delusion upon any one subject, but com- mits crime in some other matter not con- nected with that particular delusion, he is equally as guilty as if he had no insane delusion and was perfectly sane. lb. IV. The Tkial. a. Place of Trial. 63. Offense committed in one county may be tried in another attaclied for jn- dicial purposes. When counties are at- tached together for judicial purposes, they together constitute a trial district, and a person charged with the commission of a crime in any one of them, may be legally tried in any other, and the law of 1867, Chap. 112, changing the place of trial from one to the other, is not as to crimes com- mitted before its passage, in conflict with Sec. 6, Art.l, Const, of State, which secures a defendant a trial by a jury of the "county or district where the crime is committed." lb. 64. The act allowing an offense com- mitted within one hundred rods of a county line and prosecuted in either 13 county, is valid. The following provision of statute to wit: "Offenses committed on the boundai-y lines of two countiep, or within one hundred rods of the dividing line between them, may be alleged in the indictment to have been committed in either of them, and may be prosecuted and l^unished in either county, Sec. 20, Chap. 108, G.S., is not in conflict with Sec. 6, Art. 1, of the Constitution. Staie v. Robinson, 14 Minn. 447. ft. Change of Venue. 65. The crime was committed in Brown county and was being tried in Redwood county, both of which were in the same trial district. On motion of defendant the venue was changed to Nicollet county, which is out of the trial district, but joins Brown, but does not join Redwood county. Seld, Brown and Redwood being a single trial district, the change to Nicollet, which adjoins Brown, though not Redwood, was allowed by the spirit and meaning of the law which authorizes the court, when it appears that a fair and impartial trial can not be had in the county .where the offense was committed, to direct the person accus- ed to be tried in some adjoining county. State V. Gat, 13 Minn. 341. 66. Venue may be changed on applica- tion of State to another judicial district. Under G. S. Chap. 113, the place of trial of an indictment found in any county of a given judicial district, may be changed on the application of the State to an adjoining county in another judicial district, when- ever it appears to the satisfaction of the court that the State could not have a fair and impartial trial in said county, and Art. 1, Sec. 6, is not thereby infringed, which provides for the trial of an accused by an impartial jury of the county or district where the crime is committed. State v. Miller et al., 15 Minn. 344. 67. Counter affidavits admissible. On an application for a change of venue in a criminal case, the court is not confined to the afladavits of the defendant applying, but may receive counter afl3davits. The 98 CRIMINAL LAW. apijllcatioti is adtlressed to the sound dis- cretion of tlie court, and at common law counter affidavits are receivable, and Sec. 1, Chap. 113, G. S., is not restrictive but in affirmance thereof. State v. Stokely, 16 Minn. 282, c. Tlie Grand Jury. 68. Excuse from service from over age. , The excuse from service of a grand juror for over age does not depend on the consent of the defendant. State v. Brown, 12 Minn. 53S. 69. Challenge for statutory causes only. A challenge to the panel of a grand jury can be allowed only for one or more of the causes mentioned in Sec. 14, p. 637,0-. S., whether the regular panel or a special venire. State w. Gut, 13 Minn. 341. 70. Admission of grand jnror after jury are sworn. It seems that, where a sufficient number of grand jurors upon the regular panel appear, and are sworn and charged, the admission of others of the regular panel appearing afterwards, is a matter addressed to the discretion of the court, and in such cases when they are ad- mitted, or where additional jurors are sum- moned after the organization of the grand jury, to supply any deficiency which may occur, the charge should be repeated in view of the oath prescribed by statute. State V. Proiseth, 16 Minn. 313. d. Petit Jury. 1. Drawing the Jury. 71. Wliat a sufficient shovping that they were drawn at an annual meeting of commissioners, and suiHcient certificate tliereof. When on a challenge to the panel of the petit juiy, it is objected that the panel was not drawn at an "annual meet- ing of the commissioners in January, 1807, and the list was not attested by the " clerk of the board," a "list of persons selected for petit jurors by the county commission- ers in January, 1867," witli the certificate and signature of the chairman, attested bj"- the county auditor, as follows: "I certify that tlie above named persons were duly selected for petit jurors for the year 18G7, by the board, of county commissioners of Nicollet county, at a regular meeting of said board held in January, 1867." Held, sufficient showing that the selection was at an annual meeting in January — presump- tion being in favor of their regularity. Courts will take judicial notice that the aud- itor of the county is ex-ojjicio clerk of the board of county commissioners. State v. Gut, 13 Minn. 341. 72. What sufficient filing of the list drawn. When the statute required the list of petit jurors to be drawn at the annual meeting of the county commissioners in January, and " forthwith "' filed with the clerk of the coux-t, a list so drawn filed in September following, is a sufficient com- pliance, and no ground of challenge, it not being a material departure from the forms prescribed in drawing jurors, to be ground of challenge within the statute. lb. 73. Certificate of drawing may be contradicted by the clerk. Where the panel of a petit jury is challenged on the ground that according to the certificate on the list, the drawing was by the clerk, sheritfand justice of the peace, instead of by the clerk, in the presence of these officers. Held, competent for the clerk to testify that the drawing was regular, and certifi- cate erroneous — and thus contradict the record. lb. S. Svmmoning Jurors. t4t. What a sufficient return on the venire. The return of a sherifi" on a venire showed that he served the summons upon the within named " parties," instead of the jurors within named. Held, an immaterial verbal error, and the jurors being in attend- ance perhaps immaterial how they were summoned, lb. 75. What a sufficient returning to the clerk. The return by the sheriff of a venire to the clerk of the court the day he- fore the session of the court, and not " at the opening thereof," is an immaterial error. lb. CKIMINAL LAW. 99 S, Summoning Special Venire. 76. Attendance of every regular juror not necessary before calling talesman. The court is not required to secure the at- tendiuice of every juror on the regular panel, before summoning talesmen,;or call- ing those summoned on a special venire. State V. Brown, 12 Minn. 538. T7. A special venire issued under Sec. 17, Chap. 64, G. S., need not specify the names of the persons to be summoned. State V. Stokely, 16 Minn. '2S'2. 4. Gallinc/ the Jury. 78. Clerk may recall names of those who did not answer the llrst call. The clerk having called the names of all jurors summoned by the special venire, without completing a jury, was ordered by the court to replace in the box, and re-call the names of those who failed to answer. Held, though not in accordance with the ordinarj^ practice, still it not being contrary to the statute, or in any view prejudicial to the defendant, cannot be considered a ground for reversing the judgment. State v. Brown, 12 Minn. 538. 79. Failure to call name of juror not in attendance, no error. The omission to place in the box, or call the name of a jui-or not in attendance at the court, could not possibly prejudice the defendant, and is therefore not an error fatal to the judg- ment, lb. 5. GhaUengiTU/ Jurors. §0. Challenge too late after verdict. In the absence of fraud or collusion in the selection of a jury, an objection to the array or to a single juror is too late after verdict — unless it is shown that the i^aity objecting is prejudiced by the Irregularity. State V. Moloney, 1 Minn. 350. 81. Withdrawal of challenge no bar to another challenge. The State challeng- ed a juror, and then withdrew the chal- lenge afterwards, and before jury were sworn, challenged again the same person .for actual bias, and on triers examination h(! was (fxoluded. Bdd, no error; the right of challenge was not waived by the withdrawal of the first challenge, especially as it was afterwards found to be well founded. State v. Dumphey, 4 Minn. 438. 82. What insufficient ground for chal- lenge. That one of the jurors in a criminal case was a clergyman, who had preached the funeral sermon of the deceased, was in- sufficient to disqualify him as a juror; he having on his voire dire declared himself impartial, and the fact had no tendency t» show bias. State v. Stokely, 16 Minn. 282. 6. Swearing the Jury. 83. Tlie Statute oath must be follow- eti. Where the statute has prescribed the form of the oath for the jury, in a capital case, it is error to disregard it and substitute another. Maker v. State of Minnesota, 3 Minn. 444. 84. Swearing jurors separately. The practice in swearing each juror separately is correct, being sanctioned by statute Comp. St. 773, Sec. 14-16. State v. Brown, 12 Minn. .=)38. 7. Triers. 85. Ti-iers need not be re-sworn on the submission to them of each challenge in a case— Comp. St. 775, Sec. 80. lb. e. Argument of Counsel. 86. Commenting on defendants. In a criminal prosecution defendant testified in his own behalf as to one part of the case — the circumstances under which a confess- ion was obtained from him — but declined to answer any questions on the merits. Held, counsel for the State, under Sec. 7, Chap. 73, G. S., as amended Chap. 70, laws 1868, was not restrained from resorting to any argument or evidence to impeach the witness, since his testimony was in opposi- tion to the evidence given by other witness- es. Had he remained silent, as the party he could not be prejudiced thereby, but his veracity as a witness may be attacked, whether as to what he did say or refused or 100 CRIMINAL LAW. neglected to say. Beery and McMilla.n, J. J., concur on the ground that by testify- ing the defendant lost the benefit of the statute. State v. Staley, 14 Minn. 105. /. Clmrgin,. Dineen, 10 Minn. 407. 7. Evidence in particular cases. 119. Competent evidence of county in which offense was committed. An alle- gation in an indictment that the offense was committed in a certain county is sus- tained by proof of its having been commit- ted on a vessel which passed through that county on a voyage, during which the act took place under Sec. 89, Comp. Stat., p. 7G1. State of Minnesota v. Timmens, 4 Minn. 325. 120. Murder — threats of deceased to kill co-defendant. The offer of the de- fendant's counsel to prove that the deceased threatened to kill one Tripp, (who was im- pleaded with defendant for murder. ) was properly ruled out, , unless he had further offered to show that Tripp knew of such threat; and even then doubted whether such fact could avail the defendant. State o. Bumphey, 4 Minn. 438. 121. Wounds not mentioned in indict- ment. On the trial of an indictment for murder, it is competent to prove wounds not mentioned in the Indictment, wounds which might have been mortal — it being sufficient if the proof agree with the alle- gation in its substance and generic charac- ter. State V. Hoyt, 13 Minn. 182. 122. attempts to wound witness af- ter killing deceased. On the trial of an indictment against H. for the murder of S., the wife of S. had testified in belialf of the State, that defendant came to her house on the morning of and after the homicide, and said to her that he had killed Mr. S., and was going to kill her. Held, improper for her to further testify that "he then raised his axe to strike me, and kept strik- ing at me, and threw me down on the floor, etc.," — ^it having no tendency to prove the charge contained in the indictment, and its natural eS'eet was to prejudice the juiy. lb. 1 23. Identity in case of murder. To identify the defendant as the person who struck the fatal blow, it was competent to ask "how was the size and general appear- ance of defendant compared with him you saw going towards the blacksmitti's shop." State V. Stolcely, 16 Minn. 282. 124. Identity— hearsay. That the de- ceased, on the evening of his death, iden- tified the defendant as the person who struck the fatal blow, was incompetent on the ground of hearsay. lb. 125. Assuming facts not in proof in examining witness. Where an expert called by the State, who attended the de- ceased after he had been stabbed, and who testifl-cd as to his condition, cliaracter of the wound, and the cause of death, he was asked on cross-examination, " suppose a person received a wound and went about In the rain and cold, would not such im- prudence increase the hemorrhage and in- flammation ?" Hdd, it assumed a fact not in proof, and if otherwise, an affirmative answer would have no tendency to show that the stabbing was not in itself an act eminently dangerous to life, but that the fatal consequences were hastened and per- haps aggravated by the exposure — hence properly excluded. lb. 126. Polygamy— ertdenee of marri- age in fact. In prosecutions for polyga- 104 CRIMINAL LAW. my, where a marriage in fact, whether it be the lirst or second, is essential to prove tlie crime; indirect or circumstantial eridence, as of co-habitation, repute, conduct of the parties, birtli of children, or admissions is not admissible, in the absence of statute. McMillan, J. thinks it is admissible in cor- roboration of the direct and positive evi- dence. State V. Johnson, 12 Minn. 476. 127. Larceny— defendant's admissions as to ownersliip of property. In a pros- ecution for petit larceny, it is competent to show defendant's admissions, made some months after the property came hito his possession, that from the proof of identity then given him, he thought the property was the property of the alleged owner. State V. Hogard, 12 Minn. 293. 12S. Secondary evidence of stolen bills, where the State is unable to produce them on the trial, is admissible, though such Ina- bility is the result of negligence — it being the best that can then be produced. State v. Taunt, 16 Minn. 109. 8. Witnesses. 129. Competency of co-defendants. The common law rule that co-defendants in a criminal prosecution cannot be per- mitted to testify for, nor compelled to tes- tify against each other, is not abolished, but affirmed by the amendments to the Re- vised Statutes, Sec. 93, p. 20. Not ei-ror to exclude such witnesses. Baker v. TheUnit- ed States,! Mhin. 209. 130. Co-defendants in crimfnal pros- ecution cannot be allowed to testsfy in be- half of each otiier — following United States V. Baker, 1 Minn. 207. State v. Diimphey, 4 Minn. 438. 131. Husband and wife canuot testify against each otlier in adultery. Sec. 53, Comp. Statute, p. 681, allowing husband or wife to testify against each other in a "crim- inal action or proceeding for a crime com- mitted by one against the other," does not authorize a wife to testify against her hus- band in a prosecution for adultery; nor does Sec. 1, Comp. Stat. p. 728, which pro- vides that " no prosecution for adultery shall be commenced except on complaint of the husband or wife," for the Legisla- ture intended by this that If the parties im- mediatelj' interested did not feel sufticient- ly injured by it to institute proceedings against the offender, the public would not notice it. State v. Armstrong, 4 Minn. 385. 132. Witness's opinion as to defendant's intent. When it did not appear that the prosecuting witness had any belter opportu- nity for judging of defendant's intention to commit the "assault with intent to do great -bodily harm, etc.," than the jury, it was not competent for him to testify wheth- er "he believed at the time the shot was fired, G. Intended to shoot him." State ». Oarvey, 11 Minn. 154. 133. Contradicting witness. A wit- ness's attention having been first called to certain statements, which it is claimed he made, it is competent to call other witness- es to contradict him as to such statement, but not to show any further conversation. State D. Staley, 14 Minn. 105. VI. Practice on Review. 1. Methods of Review. 134. Keport of Judge. It is compe- tent for the Supreme Court to review a criminal case brought up on a report of the judge as well as on writ of error. Query? Can an appeal be taken from a judgment in a criminal case. Bonfanti v. State, 2 Minn. 124. 135. Application to Supreme Court in lirst instiince. Under Sec. C. p. 777 and 778 Comp. Stat., the defendant in a crimi- nal action, If convicted, may apply to the Supreme Court in the first instance, any time within a year, for a new trial, and authorizes the court to grant the request, if on the whole, it appears justice has not been done. State v. Heenan, 8 Minn. 44. 136. Appeal or writ of error. At common law it seems to have been a mat- ter of doubt whether either party was enti- tled to an appeal or writ of error in a crim- inal case. State v. MeOrorty, 2 Minn. 225. 137. No review in behalf of tlie peo- CRIMINAL LAW. 105 pie. Neitlier an iippeal nov ii writ of er- ror can be brought to this court in a crimi- nal case in belialf of tiie people. lb. 3. Quedions that can, be raised. 138. Ko objection being taken to the indictment by demurrer or motion, none can be entertained in the Supreme Court, except as to jurisdiction and that tlie facts stated do not constitute a public offense. State V. Oarvey, 11 Minn. 154. 1SJ9. Error must be shown affirmative- ly. Upon a writ of error in a criminal ac- tion, it is not necessary that the record should show aflSrmatively the defendant's request to be sworn and examined in order to sustain the proceedings against an alle- gation of eiTor, on the ground that he was sworn as a witness without iiis request — defendant must show affirmatively that he was sworn without his request. State V. Lessing, 16 Minn. Ih. 3. Amending the record. 140. A record failed to show that the jury were each sworn ns prescribed by law — that when they retired they were In charge of a sworn officer — that tliey were permitted to separate before verdict with consent of defendant, or that they being polled at request of the defendant, each as- sented to their verdict— that it was then en- tered, read to the jury, and by them again assented to. Held, that the court could amend the record in this repeal after term, where there exists no doubt about what the truth is. Anne Bilanskey v. State of Min- nesota, 3 Minn. 427. 4. Principles of determination. 141. Efflciency of evidence to sustain verdict. Defendant being found guilty, and there being evidence which tended to identify him as the person who struck the fatal blow. Held, it would be usurping the province of the jury to say that the evidence was manifestly insufficient to satisfy them, beyond a reasonable doubt, that the defend- ant was the man. State «. Stolcdy, "16 Minn. 382. 14 142. Conviction wJien set aside. Where all the evidence is contained in the return, and there is a total absence of evidence of the commission of the act charged against the defendant as an offense, the conviction must be set aside. City of St. Paul v. Marvin, 16 Minn. 103. 5. Judgment MoU. 143. Minutes of tlie trial. By ch. 118, Sec. 1, Sub. 4, G. S., the minutes of the trial constitute a part of the judgment roll in a criminal case, and if error appears therein, the defendant is perhaps entitled to the benefit of it. State v. Lessing, 16 Minn. 75. 6. Immaterial errms and omissions. 144. Improper remark of counsel. A remark of counsel improperly made, which does not appear to have been sanctioned by the court, is not a ground of exceirtion. State V. Brown, 12 Minn. 538. 145. Errors tliat vfork no prejudice. It seems that an informality or error in practice merely, which cannot prejudice either party, is not the subject of an excep- tion, or ground for reveising a judgment or writ of error, lb. 146. No error, not a violation of some positive rule of law, or which may not possibly piejudice the defendant, can be a ground for reversal on appeal. State v. liyan, 13 Minn. 370. 147. The charge of a court on an ab- stract proposition, that cannot possibly have prejudiced the defendant, is no ground for reversing the judgment. State v. Gut, 13 Minn. 341. 148. Failure of record to show cer- tain acts. The fact that the record does not show that the officer attending the jury on their retirement was sworn, or that the de- fendant was present in court after his ar- raignment until he was called for sentence, when the same shows that he was arraigned and pleaded to the indictment, is no ground of en-or— presumption being in favor of the regularity of the proceedings in a court 106 CRIMINAL LAW of general jiinsdictioii. Slate u. Ryan, 13 Minn. 370. 7. Material error. 149. The admission of evidence to sustain insufficient and uncertain alleg'a- tions in an indictment is erroneous, and will be fatal to a verdict. State v. Ilinek- ley, 4 Minn. 345. S. Neio trial. 150. At common law, not allowed. At common law a defeiidant convicted for felony, could not for any cause have a new trial, the sole remedy being to apply for a pardon, if for any cause the conviction was improper. In misdemeanors it was not so. This rule does not prevail in this countiy. State v. Miller, 10 Minn. 313. 151. Verdict unsustained by the evi- dence. When the evidence is manifestly insufficient to warrant tlie finding of the defendant guilty, he is in all oases enti- tled to a new trial. lb. VII. The Execution. 152. The time of the execution of a person convicted of murder, is not an es- sential part of the judgement. It is for the judge before whom the conviction is had, to designate the time — not less than one, nor more than six months — during whicli the convict shall be kept in solitary confinement, and at the expiration of that time it is the duty of the Governor to issue his warrant of execution. If for any rea- son his warrant is not issued immediately on the expiration of the time fixed by the court for solitary confinement of the de- fendant, he may afterwards issue it, and cause the legal execution of the convict. State V. Gut, 13 Minn. 341. VIII. Particular Offenses. 1. Petit treason. 153. At common law. Petit treason, at common law, by the statute of 25 Ed. III., Chap. 2, was reduced to three heads: 1st. Wlien a servant killed his master. 2d. When a wife killed her husband. 3d. When an ecclesiastical person, secular or regular, killed his superior, to whom he owed faith and obedience. State of Minne- sota V. Anne BUanski/, 3 Minn. 246. S. Extortion. 154. Extortion is made a misdemeanor by our statute, and is therefore punishable. State V. Broicn, 12 Minn. 490. 3. Conspiracy. 155. Common law oifense exists. The common law crime of conspiracy iff not abolished by our statutes. Berry J., dis- sents. State «. PuUe et al., 12 Minn. 164. 156. The gist of the crime of conspir- acy at common law, is the unlawful con- federation, and it is not necessary to prove an oveit act in pursuance of it. [b. Jf. Forgery. 157. The maker of a promissoiy note does not commit the crime ot forgery by obtaining possession of the note and en- dorsing on it ''Received the sum of forty- six dollars, Louisville, 21st January, i860." State r. Monnier, 8 Minn. 212. 158. Stamp. To support an indict- ment for uttering and publishing a forged promissory note, it is not necessary that there should be a I'evenue stamp upon such note. State v. Mott, 16 Minn. 473. ■5. Offenses against eliastity, morality and a. AdvMery under promise of marriage. 159. Essentials of the offense. Under Sec. 6, Comp. Stat., p. 729, creating the offense of adultery under promise of mar- riage, a conviction cannot be had without cori'oborating the testimony of the woman seduced, on every material point, viz. : 1st. The promise to marry. 2d. The seduction under such promise. 3d. Previous chaste character of the person seduced. This CRIMINAL LxVW. 107 covrobonitiiij;- proof need not be sufficient of itself to establish tlie facts, but of such circuuistunces as usually form tlic concom- itants of the main fact sought to be proved. (As to evidence which was held proper as corroborating the testimony of tlie seduced woman, see this case.) State of Minnesota V. Timmes, 4 Minn. 325. 160. -Under an Indictment for "adul- tery under promise of marriage," (under Sec. 6, Comp. St, p. 72fl,) the jury may convict if they find the defendant " liad carnal intercourse with the woman com- plaining at the time and place charged in the indictment, under a promise to marry, although she may have had carnal connec- tion with the defendant previously, or any other man, provided she had reformed and was chaste at the time of the commission of the offense. lb. b. Polygamy. 161. No conviction on admission of defendant only. In criminal prosecutions for bigamy or adultery, when the offense depends upon the defendant being a mar- ried man or woman, the marriage must be proven in fact, and a conviction cannot be had upon the admission of the defendant. State V. Armstrong, 4 Minn. 335. 162. First marriage in fact must be proved. In prosecution for polygamy, a first marriage in fact, must be proved, and this may be done by an eye witness to a marriage. A marriage in fact being nec- essary, the question of marriage or no marriage is to be determined by the lex loci contractus, and it seems necessaiy that the first marriage was valid by the law of its place of celebration — following State V. Armstrong, i Minn. 344. State v. John- son, 12 Minn. 476. c. Fornication. 163. What is. Under the Comp. Stat- utes, carnal and illicit connection of a married man with an unmarried woman, is not adultery, but fornication. State v. Armstrong, 4 Minn. S-So. 6'. Offeii.iiis ar/aind life and person. a. Murder. 164. Wilful killing of liusband by wife, is murder. Sec. 14, li. S. (1851), p. 523, ^v'hich abolished the distinction be- tween "murder" and "petit treason," making the last offense punishable as mur- der in the second degree, attempts to abol- ish a distinction which did not exist, and then makes a distinction by changing the punishment of the latter offense— suppos- ing it to exist. Hence, a wife who wil- fully kills her husband, (petit treason at common law,) is liable to the punishment imposed by our statute for murder — viz., capital punishment. State of Minnesota v. Anne Bilansky, 3 Minn. 246. 163. All wilful killing, murder. Sec. 14, E. S., p. 523, (1851,) destroying the distinction between murder and petit trea- son, was of no effect. Sec. 12, organic act of Territory of Minnesota, kept in force the laws of the Territory of Wisconsin, that were in force at date of admission of State of Wisconsin, May 29, 1848. Under those laws no distinction existed — all wil- ful killing was murder, and punished by hanging, lb. 166. The designed killing of an- other, without provocation, and not in sudden combat, is none the less murder because the perpetrator of the crime is in a state of passion. State i). Shippey, 10 Minn. 223. 167. Killing an enemy after lie lias laid down his arms. It is legal to kill an alien enemj' in the heat and exercise of war, but to kill such an enemy after he has laid down his arms, and when confined in prison, is murder. State v. Out, 13 Minn. 341. 165. When killing is murder. If an intention to kill is formed and executed " in tlie heat of passion, upou sudden prov- ocation, or in sudden combat," the case falls within Sec. 12, Chap. 94, G. S., where it speaks of a killing "intentionally, but without premeditation.'' If the intention 108 CRIMINAL LAW. to kill is formed before the " heiit of pas- sion, upon sudden provocation, or in sud- den combat," or, though formed in the heat of passion, is executed after sufficient cooling time, or after tlie heat of passion has subsided, the case then comes within the meaning of a killing with a premedi- tated design to effect the death of the per- son killed. State v. Hoyt, 13 Minn. 133. b. Manslaughter in second degree. 169. When character of weapon com- p'etent evidence. When a homicide is com- mitted in heat of passion, in sudden com- bat, the character of the weapon used is not to be taken into consideration in refer- ence to a provocation, nor in case of such sudden combat is it necessary that there should have been any legal provocation to render the homicide manslaughter, (under Sec. 12, Chap. 94, G. S.) The question of provocation can hardly be said to arise in case of homicide in sudden combat. But the character of the weapon may properly be considered in ease of homicide in sud- den combat, for the purpose of determin- ing whether the party killing entered upon the combat with a xiremeditated design to kill, and such intention might be inferred from his preparing himself with a deadly weapon previous to the combat, and for the purpose of the combat, when his ad- versary was in possession of no deadly weapon, or other means of inflicting great bodily harm upon him. Ih. 170. What not nianslanghter in sec- ond degree. Sec. 13, j). 598, Gen. St., which declares that " whoever unnecessar- ily kills another, cxcei)t by accident or misfortune, and except in cases mentioned in Sub. 2, Sec. 5, this chapter, either while resisting an attempt by such other person to commit any felony, or to do any other unlawful act, or after such attempt has failed, shall be guilty of manslaugliter in the second degi-ee," has no application to a case where the killing was inflicted with an axe — a deadly weapon — by inflicting blows on the head and neck, in resisting a civil trespass upon the land or cattle, or both, of defendant, and no pretense that the weapon was used without a design to eft'ect the fatal result which followed its use — viz., death, lb. (,-. Murder in second degree, 171. An intentional doing of the act sufficient to constitute the offense. When defendant was charged with murder in the firtt degree, and convicted of murder in the second degree, it is no ground for re- versing the judgment that the court re- fused to charge the jury that "the mere act of killing is no evidence of premedi- tated design," the same (if abstractly cor- rect) doing no injury, since an "inten- tional" doing of the acts being sufficient to support the crime of murder in the sec- ond degree. State v. Brown, 12 Minn. 538. 172. What is. Deceased was stabbed in the belly, by an underhand blow with a knife. Meld, this would justify, in this case, a verdict of murder in the second degree, unless done in self-defense, or heat of passion, on sudden provocation, or in sudden combat; and the prosecution was not bound to prove affirmatively that, no such circumstances of justification or ex- tenuation existed. State v. Stokely, 16 Minn. 282. 173. Wliat sufficient. To warrant a conviction for murdei' in the second de- gree, it is sufficient to prove that the kill- ing was unla^vful, perpetrated by an act eminently dangerous to one or more per- sons, evincing a depraved mind, regardless of the life of such person or persons — it is not necessary to ])i'ove the absence of any design to ett'ect deatli. lb. d. Assault vnth intent to murder or maim. 174. Common law definition of murder not applicable. In a pi-osecution under Sec. 32, R. S., p. 495, concerning assaults with intent to murder, maim, etc., that part of the charge to the jury which gave them the "general common law definition of murder," and instructed them "that to return a verdict of guilty, they must find that if the assault had resulted in death. CRIMINAL LAW. 109 Hie killing would have been niurdei- with- in the general definition." Held, to lie ei- roneous, in that such " general definition " comprehended under our statutes all the degrees of murder and some of manslaugh- ter, and thus found a verdict of guilty without the intent required by the statute, by classing it under some common law of- fense wliich required no intent. Bonfanti V. state, 2 Minn. 129. ITS. Under Sec. 73, Chap. 119, E, S. (ISol), it is not sufficient, on an indictment against B. for assaulting M., to find that the assault was committed on either M. or T. State of Minnesota v. Boylson, 3 Minn. 438. 176. Punishment. On an indictment for an assault with intent to murder. Held, that the jury might convict of the assault only, and the court might fine the accused $200.00, under Sec. 44, Oomp. Stat., p. 776, and Sec. 21, Comp. Stat., p. 784, nor do these provisions conflict with Sec. 206, Comp. St., p. 526, for though to give the District Court jurisdiction in the flrst in- stance, the offense charged must be pun- ished with over three months' imprison- ment, or flne exceeding $100, still, as by express provision of statute, the jury may convict of a lesser offense, included within the one charged, the court may punish such lesser offense though within the jurisdic- tion of a justice of the peace. Boyd v. State of Minnesota, 4 Minn. 321. e. Assault with intent to commit rape. 177. Punishment. A sentence of ten years in the penitentiary for an assault with intent to commit rape is authorized by Sec. 40, p. 706, Comp. St. O^Oonnell ®. State, 6 Miun. 279. f. Assault with intent to do great iodily liarm, being armed with a dangerous weapon. 17S. What is a dangerous weapon. "A large heavy stone," in the hands of a man intending to do great bodily harm, is one likely to produce death or great bod- ily harm, hence is a "dangerous weapon" within the meaning of the statute, Chap. 41, G. L. 1864. State v. Vineen, 10 Minn. 407. 179. It seems that ofi'ensive and dan- gerous weapons are synonymous terms. lb. ISO. What is being armed with a dangerous weapon. A person having and using a stone or rock, may or may not be said to be "armed with a dangerous weap- on " under the statute, according to the size and description thereof, and the man- ner in which it is seized, held and used, and the peculiar circumstances of each case. lb. 181. Materiality of place and time of arming. Under the statute which pro- vides that "if any person, being arnied with a dangerons weapon, shall assault another with intent to do great bodily harm, etc.," the place of arming (i. «., whether at place of the assault or else- I where,) is immaterial, and as tOithe time of being armed, it is only necessary that It precede the assault. Whether to consti- tute an "arming" the weapon should have been taJcen with the intention of using it for offensive purposes, no opinion ex- pressed, lb. 1S2. Criminal intent is sufficient — not felonious. The intent which Is necessary to constitute the offense of assaulting one with intent to do great bodily harm, need not be & felonious intent — It is sufficient if it be a criminal intent. lb. 183. Defense. On an indictment for assaulting with intent to do great bodily harm, under the statute, if the jury found that at the time and place, and in the pres- ence and midst of the disturbance spoken of by witnesses, the defendant on a sud- den, and in the heat of a momentary ex- citement, picked from the ground a stone or I'ock with which he was not previously armed, and struck the blow sworn to, such ■ facts of themselves did not amount to a defense — it was for the jury, in view of those circumstances, to determine whether the criminal intent necessary to constitute the offense was present — of which they are the sole judges. Ih. 110 CRIMINAL LAW— DAMAGES. 1§4. Premeditatioii not essential- "Premeditation," except as implied in the intent to do great bodily harm, is not nec- essarily an element of the offense of as- saulting with intent to do great bodily harm, being armed with a dangerous weapon. State v. Garvey, 11 Minn. 154. g. Libel. 185. It seems tliat libel is punishable as a crime at common law in this State. Berry, J., dissents. State v. Pidle,et al., 12 Minn. 164. 7. Offenses against property, a. Larceny. 186. May convict of lesser degree not charged. On an indictment for larceny "from the person," the defendant may be convicted of larceny in a. lower degree. State 11. Eno, 8 Minn. 220. 187. Evidence of ownersliip of prop- erly. On an indictment for larceny, to prove ownership of the property, it is in- competent to show the finding of a jury on that point in a civil action — the parties iwere not the same. State ii, Hogard, 12 Minn. 293. 188. Recent possession of property as evidence of guilt. Recent possession of stolen property is evidence to go to the jury of the defendant's guilt, and the court cannot properly say, in any given case, that evidence of good character, or open and undisguised possession of stolen prop- erty, is a satisfactory explanation of such recent possession — it is for the jury to de- termine what weight shall be given to all the circumstances. 76. 6. Wilful and malicious killing, etc., of horses, ete. 189. Killing of a dog not an offense. Sec. 39, Chap. 101, R. S., whicli provides that "every person who shall wilfully and maliciously kill, etc., any horses, cattle, or otlier beasts of anotlier, etc., shall be pun- ished, etc.." does not include dogs, the kill- ing of which is not indictable under it. United States v. Gideon, 1 Minn. 297. 190. Animal mnst have been of valne, and so charged. Under Sec. 39, Chap. 101, R. 8., the animal claimed to have been maliciously killed must be charged in the indictment to be of value, and proved as charged. lb. CUSTOM. 1. A custom among vendors of land warrants sold on a guaranty of genuine- ness, etc., to substitute on bi-each of the guaranty, other land warrants in lieu of paying their value in money, is not a valid custom. Johnson et at., v.&ilfillan, 8 Minn. 395. 2. Where defendants, merchants in New York, hired plaintiff to travel and talie orders for and sell their goods, to be paid by a share of the profits on sales, in an action brought to recover such share, defendants cannot show a general custom of merchants in New York and elsewhere to employ traveling solicitors of trade, and reserve to themselves the option of filling or rejecting orders taken by such travelers — any usage to aftect plaintitf, must have distinct reference to pei-sons hiring for a share of the profits of the sale. Dike v. Pool et al., 15 Minn. 315. DAMAGES. Gbnekally. Nominal Damages. Exemplary Damages. Liquidated Damages. Damages on Breach of Con-. TRACT. Damages in Tort. a. Injuries to property, h. Injuries to tlie Person. (See Evidence, 110.) (See Interest, 6, 7, 8, 9.) (See Pleadings, 34.) I. II. III. IV. V. VI. DxVMAGES. 11] I. Generally. 1. Damag'cs not recoverable in excess of amount claimed. The phiiiitiflf in a suit at law is limited in liis recovery to the araoimt claimed by him in his declaration. Elfdt V. Smith, 1 Minn. l2o. 2. Where no rule of law governs the assessment of damage, and the amomit de- ]5ends on computation, the judgment of the jury and not the opinion of the court is to govern, except in cases of partiality, prejudice or mistaken view of the merits of the case. The City of St. Paul v. Kuby, 8 Minn. 151. II. Nominal Damages. 3. On demurrer. Wlien a complaint sets up a contract between the parties and alleges a breach thereof — on demurrer plaintift' is entitled to nominal damages — iit least. Oowley v. Davidson, 10 Minn. 392. III. ExEMPLAitY Damages. 4. In cases of wilful wrongs, exemplary damages may be given. Fox v. Stevens, 13 Minn. 272. 5. Exemplary damages are not recover- able in an action for the conversion of per- sonal property, where there has been no wrongful taking. Jones v. Eahilly, 16 Minn. 320. IV. LiqjJiDATED Damages, Pen- alties, Etc. 6. When the stipulation is to pay a greater sum, oij default of paying a leaser sum, no form of words will change it from a penalty to liquidated damages. Mason et al. V. Callendar et al., 3 Minn. 369. 7. The only cases in whicii courts will carry into effect an agreement to pay a fix- ed and stipulated amount of damages, are those where the nature of the damages pro- vided against are not regulated with cer- tainty by any rule of law, and cannot be readily ascertained by a jury, and the whole contract must be of this character, for if on tlie breach of any one covenant contained in it, the damages are ascertain- able by a jury witli any degree of certain- ty, the stipulation ^\-ill be held a penalty to cover damages on such breach, and cannot be clianged to meet the others when the damages are uncertain. lb. 8. For certain^i-ules laid down obiter, for the detei'uiination of liquidated dama- ges and penalties, see Mason, Craig, et al. v. Callendar et al., 2 Minn. 366. V. Breach of Contract. 9. An entire contract. If A. engages to work for B. for !i year, and he voluntar- ily qnits without B.'s consent, before the year expires, lie can lecover nothing. If he is discharged by B. before the year ex- pires, without cause, lie can recover as damages, the difference between the agreed price and such sura as he has, or which it is shown he might have received for work elsewhere. Williams v. Anderson, Q 'Minn. 50. 10. Continuing, executing contract. On a breach of a continuing executor}^ con- tract the injured party may: First, Bring an action at once; or, Second, hold him- self in readiness to perform, and bring ac- tion from time to time or at expiration of contract, for damages sustained at time of bringing suit. In the first instance the rule of damages would be the profits he would have realized during the continu- ance of the contract, had it been faithfully performed — excluding the expenses of a full performance. In the second instance the rule of damages would be the like prof- its, together with the cost incurred by the party in holding himself in readiness to perforin. Morrison et al. i . Lovejoy, 6 Minn. 319. 11. Goods, contract to pay for. A breach of a contract to isay for goods sold and delivered, carries with it the right to re- cover damages measured by the legal rate of interest, and from the moment of de- fault, and these damages need not be plead- ed. Cooper et al. v. Reaney, 4 Minn. 528. 112 DAMAGES. 12. contract to fiiniish for special purpose. When a ooiiti'iict wus made by- one to furnish another a specified avticle of a pavticular description, to be used for a particular iiurpose, at anotlier place and the Lnvejoy et al. v. Morrison et al., 10 Mum. 136. 15. Title, covenant for, and quiet en- joyment. On breach of covenants of ^evi,- ing and right to convey, tlie damages are destination, purpose and use, is known to 1dm ' the consideration money with interest from who agrees to furnish tlie article, and tlie date of deed, or if the consideration was article furnished is defective, and not ac- cording to the contract, the damage occa- sioned by reason of such defects, as applied to such purpose at the place of its use, are direct and recoverable, and the damage in suoli a case is the difterence between the value of tlie article furnished and that agreed to be furnished at the place of its iise — and not the difterence between its actual value as furnished at that place and the price at which the vendee was to have sold it to some third party. Converse v. Burrows et al., 2 Minn. 235. 13. Lo8:s, contract to deliver at cer- tain time. Where logs have been deliver- ed after the time when they should have been delivered, the measure of damages is the difference between the market value of the logs when they were in fact deliv- ered, and when they should have been de- livered under the contract. Whalon et al. V. Aldrich, 8 Minn. 340. 14. contract to supply a mill. Plain- tift' sued defendant on an alleged breach of contract by which defendant was to fur- nish plaintiff logs for a certain time, and purchase the lumber at an agreed price, said Ottawa to said^Milwaukee, at the rate land, its value at time with interest since, not exceeding the amount named in the deed. Burke et al. ■». Beveridge, 1.5 Minn. 205. 16. Wheat, contract to sell and deliv- er. When A. contracts to sell and deliver wheat to B. at Ottawa, and the latter sends a bai-ge to said place to receive the same, which returns empty by reason of A.'s fail- ure to deliver the wheat., B. cannot recov- er for the expense of sending the barge to O. AS general AMm.a,^e:S, for it cannot be pre- sumed to have resulted from the breach of the contract, it is certainly not the necessary result, and if i-ecoverable as special dama- ges must be alleged. Brackett v. Edgerton, 14 Minn. 174. 17. — -contr.act to receive and trans- port. On a breach of a contract to receive wheat at Ottawa and transport the same to Milwaukee by the 20th day of May, 1864, the rule of damages is the difference be- tween the value of that quality of wheat at Milwaukee on that day, and the price of wheat of same quality, at same time, in Ottawa, with costs of transportation from while plaintift' was to saw the lumber, and to do so was to rent certain mills of other parties. Breach, that the defendant failed to supply the logs, and plaintifl' as a portion of the damages, claimed to estimate the rent actually agreed to be paid by him for the mills to the lessors — under the rule in Mor- rison et al. V. Lovejoy et al., 6 Minn. 319. Held, the rent which plaintiff might esti- mate in arriving at his damages was not what he had contracted to pay to the third parties, for defendant was no way in priv- ity with that contract, but what the rent of the mills was actually worth — and that the rule in 6 Minn. 319 is to be so understood. mentioned in the contract added, together with interest from said 20th of May, 1864. Cowley V. Davidson, 13 Minn. 92. 1§. contract to cut. In an action against defendant for breacli of contract to cut plaintifi^'s wheat at a given time, the court charged that if the jury " found that the defendant made the contract alleged in the co^mplaint, and failed to fulfill it, as al- leged, and that plaintiffs used reasonable dilligence to secure the crop of wheat, and to prevent loss, after defendant's failure, and which defendant had agreed to harvest, defendant would be liable for all damages sustained by plaintiff in consequence of the DAMAGES. 113 defendant's neglect to fulfil, etc., whether such damage was caused by wheat becom- ing ripe and shelling in handling, or whether the same was destroyed by a storm which occurred after defendants had agreed to harvest it, and had reasonable and sufficient time to harvest and secure it, as he had agreed to. Hdd, not to ignore all distinctions between ordinary and extra- ordinai-y storms ; the instruction relates to loss from ordinary storms, not extraordi- nary ones, and to which the parties must have referred in entering into the con- tract. Baldwin et al. v. Blanchard, 1.5 Minn. 489. 19. Warranty, breach of as to horse. Where the complaint alleges a breach of warranty as well as deceit, and the defend- ants did not demur to such joinder of cau- ses of action, the jury, if they believe the horse was falsely represented and warrant- ed to be sound, but was in fact so dis- eased as to malve him worthless, may find for the plaintiff for the value of the horse. Johnson v. WaMower et al., 15 Minn. 472. 20. Promissory note with privilege of extension by paying interest aiinnally. Promissory note, payable in one year in- terest at 4 per cent, per month, " with priv- ilege of two years by paying interest an- nually at 4 per cent, per month." Payee allowed it to run two years, no interest having been paid — the question being what could the payee recover for use of the money after the first year ? Edd, it de- pended solely on the election of defendant by paying the annual interest, whether the contract extended beyond the first year, he having failed to make that election, the contract was broken at end of first year, and plaintiff could not keep it alive by any waiver on his part, for defendant had de- clined to adopt the privilege of extension, by paying interest, and plaintiff could re- cover damages only at rate of statutory in- terest, (7 per cent.) after breach. Follow- ing Talcott V. Martin, 3 Minn. 339. Gha- pinv. Murphy, 5 Minn. 474. 15 VI. Damages in Tort. a. Injuries to property. 21. Trespass recoverable. It seems, that, in trespass damages may be recovered up to day of trial. McMillan J. Dor- inan v. Ames & Giorge, 12 Minn. 451. 22. Claim and delivery. In an action for claim and deliveiy of personal proper- ty, a person cannot recover more damages than he claims, nor assume the value of the property to be ascertained by the assess- ment of damages where no value is found. Eaton V. Caldwell, 3 Miun. 134. 23. In "claim and deliveiy," in the absence of fraud, malice, negligence or oppression on the part of the plaintiff, and there is no circumstance showing the plain- tiff does not honestly believe himself the owner of the property, the measure of the defendant's damage is the value of the property at or about the time it was replev- ied by the plaintiff. BertluM v. Fox et al., 13 Minn. 501. 24. Goods wrongfully taken from an officer by the general owner. When plaintiff had replevied the property from an officer (defendant) who took the same on execution against S., and on the trial defendant recovers judgment on ground that plaintiff's title was based on a sale from S., which was fraudulent as against the execution creditor; the rule of his damages in case the property is not re- turned is not the full value of the proper- ty, for plaintiff is the general owner, sub- ject to defendant's special property by vir- tue of the levy, but the amount of the exe- cution, debts, interest and costs. Bodge v. Chandler, 13 Minn. 114. 25. officer can recover the value of his special interest only. When an officer has taken on an execution property of the judgment debtor, and the same has been retaken by the debtor in separate, proceed- ings, and the officer is found to be entitled to judgment, he can only recover the value of his special interest, which is the execu- tion, with interest and costs, and not the re- 114 DAMAGES. turn of the property, or the \alue thereof, if a return can not be had. Lacrosse & Min- nesota Steam Packet Co., v. Robertson, 13 Minn. 291. 26. One liaving a special property in goods, can only recover as against the gen- eral owner the value of his special interest. Jb. 27. Goods, unlawful taking: and con- version. A party recovering for the val- ue of goods unlawfully taken and convert- ed, is entitled to intei-est on the value of the goods from the time of the taking, and un- der the statute it is to be assessed by the ju- ly. Derby & Day v. Oallup, 5 Minn. 119. 2§. Lo^s, conversion of. Had defend- ants become possessed of plaintiff's logs, Virithout authority fi-oni him, and converted them to their own use, or being lawfully possessed, had they afterwards made any disposition of them contrary to authority, they would have been liable in damages for the conversion, and the measure of such damage would have been the value of the logs. Chase et al., v. Blaidsell, 4 Minn. 90. 29. Conversion of money. Where a defendant has misapplied the proceeds of plaintiff's property which he had lawfully sold — ^he could not be held to greater dam- ages than the amount received with inter- est, unless it was specially alleged and proved that the property was wilfully or negligently sold for less than its value. lb. 30. Conversion of note. In an action for damages for converting a promissoiy note, a judgment for the amount received on the note by defendant, where less than the face of the note and interest due, can- not be to his prejudice. Ninniger v. Ban- ning, 7 Minn. 274. 31. Negligent discharge of an indorser. In an action against defendant — bankers — for negligently discharging an indorser on a promissory note left with them for col- lection by failure to give due notice of non- payment — the measure of damages is pri- ma facie the face of the paper. Defend- ants may mitigate the damages by showing solvency of maker, insolvency of indorser during whole interval from maturity of note to commencement of the action, or that paper was partially or wholly secured, or any fact which will lessen the actual damage. Borvp et al. v. Ninninger, 5 Minn. 523. 32. Negligent loss of note. Where by the negligent act of defendant plaintiffhad lost a promissory note, drawing four per cent, per month interest. Held, he can re- cover the value of the note with accrued interest at the time of the destruction by defendant, and only seeen per cent, (legal rate,) from that time till judgment. San- born et al. V. Webster, 2 Minn. 328.. 33. Nuisance. In an action for dama- ges sustained by reason of a nuisance erect- ed by defendant, (mill dam,) plaintiff can recover only for injuries sustained up to commencement of action — since every con- tinuance of a nuisance is a fresh nuisance and ground for a distinct action — contra it seems, in trespass. Dorman & Ames e. Oeorge, 12 Minn. 451. 34. Exempt property, levy on. "Ex- emplary damages " are allowed in an ac- tion to recover damages for levying upon exempt property, knowing the same to be exempt. Lyon v. Pickett et al., 7 Minn. 184. 33. The fact that defendant knew the property was exempt at the time of the levy, is sufficient of itself to authorize a jury in finding that it was done for the purpose of harrassing and oppressing the plaintiff', and thereupon to base a verdict for peremptoiy or exemplary damages, lb. 36. $150.00 was not thought excessive "exemplary damages" for levying on a pair of horses, knowing they were exempt. lb. 37. Fraud in sale, proper injury. In arriving at the damages sustained from a fraudulent warranty, in sale of certain sheep, it is competent to ask a witness "what was the difference (on the day of sale) between the value of the sheep in the condition they were seen and described by the witnesses, to be at subsequent periods designated, and their value if sound." Marsh v. Webber, 16 Minn. 418. DAMAGES. iin 38. Fraud in sale of personal prop- erty. Where a vendee, who has been de- frauded in the purchase of personal prop- erty, elects to retain the property and brings an action for the recovery of dam- ages for the fraud, he may recover all the damages of which the act complained of was the efficient cause; as in this case, where tliere was a fraudulent warranty against an infectious disease in a flock of sheep, the vendee can recover the whole loss occasioned by the presence of the dis- ease among the tlook purchased, as well as among those which took the infection after tJoe sale, without vendee's fault, as those which had it when the sale was made ; also such consequential damages as .resulted to another flock owned by him at the time of the purchase by reason of the communica- tion of such disease to it from a mingling of the two flocks— the purchaser being ig- norant of the presence of suoli disease in the flock purchased and exercising ordinary care. Marsh v. TFe6 Jo-, 16 Min n. 418. 6. Injuries to person. 39. Assault and battery. In assault and battery the plaintiff is not confined to the recovery of merely nominal damages, but may recover such general damages as he may prove to have resulted from the injury. Andrews v. Stone, 10 Minn. 73. 40. Expelling passenger from B. B. car. In an action against a E. R. Co., for damages for unlawfully expelling plaintiff from its oar, in the absence of malice, in estimating damages sustained by plaintiff, the juiy may take into account not only the loss of time but pain of body, pain of mind, and injury to feeling of plaintift^ and award damages in their discretion as a compensation for the ill-treatment to which plaintiff was subjected in being ejected from the car — such damages being compensatory and such as are alleged in the complaint or implied by law. DuLaurens v. 1st Div. St. P. & P. R. -B., 15 Minn. 49. 41. Malpractice. In determining the question of damages, one is entitled to re- cover for hijuries arising from malpractice of a physician in treating a broken limb, the jury may consider tlie pain, suffering and disability to use the limb, both present and prospective, and these injuries are to be arrived at by a comparison of his condition as affected by the accident, with proper treat- ment of the limb, with it as affected by the accident with its improper treatment — the difference— if any injury resulted— being the eftect of the improper treatment. Cham- berlin v. Porter, 9 Minn. 260. 42. A juiy in estimating damages arising from malpractice of a physician are not confined to the actual amount expend- ed in being cured, because no sum for other damages was proved, for as to some of the elements of damage in such cases the jury are to determine without testimony, there being no rule established by law and the opinion of witnesses not being admissible. lb. 43. Malicious prosecution. The jury are the proper judges as to the amount of damages in case of malicious prosecution, and their verdict will not be disturbedin the absence of passion, prejudice or improper motive. Chapman v. Dodd, 10 Minn. 350. 44. Slander. In slander the assess- ment of damages by a jury is conclusive, unless so exceedingly large as to waiTant the conclusion that they were swayed by preference, partiality, prejudice, passion or corruption. St. Martin v. Denoyer, 1 Minn. 156. 45. Seduction. In an action for dam- ages for seduction of plaintiff's daughter, besides the loss of service and the disbui'se- ment for medical treatment and other necessary expenses, the jury can give such additional damages for wounded feelings, mental suffering, and for the dishonor of the plaintift' and his family as they deem from the evidence a reasonable and just compensation therefor, not exceeding the amount claimed in the complaint. There being no negligence, collusion, passive sufferance or connivance on part of plain- tiff. Fox V. Stevens, 13 Minn. 272. 46. False imprisonment — excessive 116 DAMS AND MILLS. damag'es. In an action for damages for illegal arrest and detention of plaintiff, by the defendant, where there was evidence from which the jury — if they believed it — could fairly infer that defendant's sense of public duty (as an alderman at a fire) was quickened by personal feelings, as well as a reckless indifference to plaiiitift''s feelings and personal rights on the part of defend- ant, which might savor in their opinion of oppression and abuse of gower, and the detention being more than nominal — 2^ hours in the city jail. Held, a verdict for $800.00 damages was not so excessive or outrageous with reference to all the cir- cumstances of the case, as to denionstra te that the juiy were influenced by passion or prejudice. Judson v. Meardon, 10 Minn. 431. DAMS AND MILLS. (See Limitation op Action, 14, 15, 16, 17.) 1. Chap. 31, Gr. S., entitled "Dams and Mills," is constitutional. Miller v. Troost et al., 14 Minn. 365. 2. Petition, when sutQcient. A peti- tion seeking to condemn land for mill dam purposes, under Chap. 129, Comp. St., de- scribed the several iparcels of land which might be injured by the erection of the proposed dam, and stated the respective owners thereof, who are other persons than the petitioners. Held, a sufficient showing that the petitioners are not the " owners " of the land which will be injur- ed within Sec. 1 of the statute, and that the law presumes prima facie want of " con- sent" within the meaning of that section. Faribault et al. v. Hidett et at, 10 Minn. 30. 3. sufflcient description. In a pe- tition under Chap. 129, Comp. St., p. 847, to take land for mill dam purposes, it is sufficient to state facts which bring the case within the provision of the act creating or conferring the jurisdiction (Sec. 1 and 2), and need not sliow affirmatively that the relief applied for will not conflict with any proviso in the act as in Sees. 16 and 25. If tliose facts exist, they may be pleaded in bar. lb. 4. Right to maintain dam, com- mences where. The fact that a lower pro- prietor had erected a dam before taking steps to have commissioners appointed to appraise damages to upper proprietor, does not affect his right to take such proceedings — his right to maintain the dam dates from the service of notice of such proceedings, and the condition of the upper proprietor's power (Sec. 16, Chap. 31 G. S.) at that time. MUlerv. Troost et al., 14 Minn. 365. 5. Water power previously improved. Whenever an owner on a stream has to an 3^ extent made any improvements in his power, with the bona fide intention to turn it to use, he comes within Sec. 16, Chap. 31, Gr. S., as a "water power previously im- proved." lb. 6. Appeal from assessment of commis- sioners. An appeal from an assessment of commissioners, appointed under the miU dam act, brings up for consideration only questions as to the propriety of amount of damages awarded, and the court cannot on such hearing entertain a motion to set aside the order appointing the commissioners. Ihirner et al. v. HoUeran et al., 11 Minn. 253. 7. Abatement of dam, what nece isary. Where defendant has a right to maintain a dam at some height, and the special verdict of the jury finds that the dam actually built is higher than the defendant is enti- tled to maintain it, but does not state how much higher, no judgment for an abate- ment or injunction can be entered thereon, for it can only be abated or injoined to the extentthat it exceeds the authoiized height, which fact is not found. Finch v. Oreen, 16 Minn. 355. 8. Height of dam— measurement. In an action to recover damages occasioned by defendant's dam overflowing plaintiff's land with water, defendant aslced the court to charge the jury that "the attempt to meas- ure the actual height of fall of stream by DEBTOR AND CREDITOR. 117 a lirooess of instrumental levelUngs, is less Siitisfiictory than, and ranst yield to actual, visible facts, because tlie instrumental measurements are liable to accidents and mistakes." Held, tiie Court lightly refused so to charge. Ih. DEBTOR AND CREDITOR. (See Husband and Wife.) (Pkincipal and Surety, 4.) 1. Debtor cannot assail creditor's as- sigrnment. A debtor cannot attack his creditor's assignment on the ground of fraud in a suit against him by the creditoj''s assignee to recover the debt he owes the as- signor (creditor). JRohrer v. TurriU, 4 Minn. 407. 2. Debtor when protected as garn- isliee. A judgment debtor being sum- moned as iigarnishee, and judgment in such proceedings being had against him, paid tlie last judgment in good faith without notice tliat his creditor has before assigned his judgment against him to third parties. Held, that the debtor.was not liable to re- pay the amount to the creditor's assignee — he having had no notice. Dodd v. Brott, 1 Minn. 272. 3. Debtor, when discharged by credit- or's loss of security. Defendant endorsed the negotiable promissory note of a third person to plaintiff as collateral security, for the payment of his own debt. When said note became due, the maker was solv- ent and for a long time thereafter, during which time it might have been collected. While the maker was solvent defendant in- formed plaintiff that the note could be collected, and requested him to collect the same or permit him to collect it, and offer- ed to substitute good and sufficient real estate security for his debt in the premises, but plaintiff refused to sue the note or pei- mit defendant to do so, whereby the note and indebtedness became wholly lost. Reld, good defense to plaintiff's cause of action. Lamberton et al. v. Windom et al., 12 Minn. 232. 4. Creditor's right to remove fraudu- lent obstructions to his ex;ecntion. When a fraudulent obstruction (assignment) is interposed to prevent the sale of property, subject to an execution, a creditor may file his bill to remove the obstruction, as soon as he has obtained a specific lien upon the property by the issuing of his execution. Banning et al. v. Armstrong, 7 Minn. 40. 5. Creditor's remedy against stock- holders of defendant corporation. In a direct proceeding in equity, i)y a creditor against a corporation and its stockholders, invoking a court of chancery to subject the unpaid stock of the corporation to the liqui- dation of its liabilities, the creditor might, perhaps, avail himself of the company's insolvency, refusal to perfonn the acts necessaiy to create a legal liabilitj' on part of the stookliolders, asbycallingforinstall- ments as required by its charter, making no provision for the payment of its debts, total abandonment of the work for which it was created and its dissolution, as a ground for equitable relief. Robertson v. Sibley, 10 Minn. 323. 6. Bights of creditor by purchase of debtor to property fraudulently transfer- red. A simple contract creditor of a debtor who had transferred property in fraud of creditors, does not, by a subsequent pur- chase from such debtor of such p.operty, acquire anj"^ ownership or right of posses- sion of such property. Jorces v. Rahilly, 16 Minn. 320. 7. Beclaiming property transferred in fraud of creditors. Where a debtor trans- fers property in fraud of creditors, bj' an absolute bill of sale, he can neither reclaim it himself, nor confer upon any other per- son — creditor or not — a title to the same. lb. 8. Creditor's lien— bankrupt proceed- ings. A non-proving judgment creditor of a bankrupt, whose judgment was recov- ered and docketed before proceedings in bankruptcy were instituted, and who has not waived or released his lien, is not affect- 118 DECLARATION OP FORMER OWNER— DEEDS. ed by the setting apart of an undivided half of two lots as ahomestead by the banls:- rupt adjudication. Ward v. Huhn et al., 16 Minn. 159. 9. Keceiver— absconding debtor. An absconding judgment debtor owned a mortgage which was lost, the same being unaccompanied by any note or personal liability. Held, no receiver would be ap- pointed at suit of the judgment creditor against the mortgagor and his grantee, sub- sequent to and witli notice of the mortgage, to collect such lost mortgage and apply the same to the satisfaction of the creditor's judgment. Gale v. Battin et al., 16 Minn. 148. DECLARATION OF FORMER OWNER. (See Evidence, III.) DECEIT. (See CfviL AcTiOK, X.) DEDICATION. (See Easements, II., b.) (See Evidence, 103, e««e?.) I. II. III. IV. DEEDS. Genekally. The Execution, Acknowl- edgment, Etc. a. Generally. b. Acknowledgment. c. Delivery. Who may take by Deed. Construction. V. Validity of Deed. VI. Eecoeding Deed. VII. Notice Given by Deed. VIII. Correcting Defective Deed. IX. Impeaching. X. Quit Claim Deed. (See Pleadings, 49.) (See Evidence, 109.) (See Mortgages, II.) (See Covenants.) (See Trusts and Trustees, 15.) I. Generally. 1. Void in part, void in whole. Deeu of land in one entire piece being void in part, for want of authority in the attorney to convey, is void as to the whole. Bice v. Tavemier, 7 Minn. 248. II. The Execution, Acknowledg- ment, Etc. a. Generally. 2. lieqnisites of deed. Eveiy convey- ance of lands must be in writing, under seal, signed by the grantor, and executed in the presence of two witnesses, who shall sign the same as such, and each of these acts is essential to the validity of the con- veyance. Meiglien v. Strong, 6 Minn. 177. 3. Witnesses. Where the statute re- quires tlie execution of an instrument to be in the presence of two witnesses, it is not sufficient that one person should wit- ness the signature of one party, and an- other person witness the execution by the other party — each of the parties must have two witnesses. Chandler v. Kent, 8 Minn. 524. 6. 4. Seal 1o certificate of adcnowledg:- inent. In the absence of statute it is not necessary that an official certificate of ac- Ijnowledgment should be under seal. If the certificate styles the officer taking it one who is authorized by statute to talce the same, it is prima facie evidence of his DEEDS. 119 official character. No seal was required by our act in 1853. Baze v. Arper, 6 Minn. 220. 5. The want of an official seal to the certificate of acknowledgment does not in- validate the aclinowledgment, the statute not requiring it— Comp. St. 398, Sec. 8 — following Baze v. Arper, 6 Minn. 220. Tlwmpson et. al. v. Morgan, Minn. 292. 6. The curative statute of 1866, (Comp. St., p. 406,) refers to acknowledgments tsiken by the clerks of the Supreme, Dis- trict and Probate Courts, and not to Judges of Probate. Baze v. Arper, 6 Minn. 220. c. Delivery. 7. What constitutes. When a party executes and acknowledges a deed, and afterwards, either by acts or words, ex- presses his will that the same is for the use of the grantee, especially where the assent of the grantee appears to the transaction, it shall amount to a delivery, and convey the estate, although the deed remains In the hands of the grantor. The main thing the law looks at, is whether the grantor indicates his will that the instrument should pass into the possession of the grantee, and if that will is manifest, then the convey- ance inures as a valid grant. Stevens v. Hatch et al., 6 Minn. 64. §. B. executed and acknowledged a deed to N. ; advised N. by letter that he had put it in the "safe to guard against acci- dents to" him (B.), would rather not record it until he saw N. at tliat place, when they could see that it was all right, but would if N. said so. N. replied: "It is all right as you wish to do." Held, a good delivery. V). 9. To constitute a delivery of a deed sufficient to pass title to real estate, the same must be delivered by the grantor and accepted by the grantee. Comer «. Bald- win, 16 Minn. 173. 10. For a statement of facts which were held insufficient to constitute a deliv- ery of deed, see lb. III. Who May Take by Deed. 11. Unincorporated association. An unincorporated, voluntary association of individuals, called "The German Land Association," composed of "several hun- dred persons," has no legal capacity to take or hold realjproperty, and a gi-ant to such association eo nomine would pass no title. Oerman Land Association v. ScholUr, 10 Minn. 331. IV. Construction. 12. "Tlie lialf." The conveyance of ^Hhe half" of any particular property con- veys In law the undivided half. Baldwin V. Winslow, 2 Minn. 316. 13. Such construction as will grivc con- veyance effect. If the form of a convey- ance be an inadequate mode of giving tffect to the intention, according to tlie let- ter of the instrument, it is to be construed under an assumption of another character, so as to give it effect — e. g., a covenant to stand seized is sometimes held good as a grant. Hope v. Stone et al., 10 Minn. 141. 14. When the property fronts on a public landing. It would seem that un- less the parties most clearly express their meaning to the eontraiy, a deed of a lot fronting on a public landing, carries the fee not onlj" to the center of the landing, but the middle of the stream, or at least to the water. The Village of Mankato v. Wil- lard et al., 18 Minn. 13. 15. Description. Where a description in a deed of land includes several particu- lars, aU of which are necessary to ascer- tain it, no estate will pass, except such as agrees witli every particular. But if the description is sufficient to ascertain the es- tate, although the estate cannot agree with all the particular's, yet it will pass. Rob- erts B. Grace et al., 16 Minn. 126. V. Validity of Deed. 16. When grantor has no interest. A deed purporting to convey property which has not yet come into the ownership of 120 DEEDgi. grantor, is void, and conveys no title. Bris- bois V. Sibley et al., 1 Minn. 230. 17. Uncertainty of the "cestuis que trust." A grant to T. 8. and H. in trust for an unincorporated, ^voluntary associa- tion of individuals, called the "German Land Association," "composed of several hundred persons," is inoperative, by reason of the uncertainty as to wlio the persons were, associated under that name, and were the Intended heneficiaries within Sub. 5, Sec. 3], Comp. St. 373. Qerinan Land Aasoeiation v. Scholler, 10 Minn. 331. VI. Recording Deed. 18. Title passes without record, when. Sec. 1, Chap. 46, E. S., has the effect, in conveyances of real estate duly executed and delivered, to pass the title without rec- ord, as against all except bona fide pur- chasers for a valuable consideration, and an attaching or judgment creditor is not such a purchaser. Greenleafet al., i). Edes, 2 Minn. 264. 19. When record necessai'y. An "oc- eupanf' on public lands under act of Con- gress of May 33, 1844, has such an interest in land as is contemplated in the recording laws of this State, Comp. Stat, p. 379, Sec. 30, and a conveyance of such an interest ivill not bind subsequent purchasers in good faith and for a valuable considera- tion, whose conveyances are first recorded. Dans 11. Barnes tfc Murphy, 3 Minn. 121. VII. Notice Given by Deed. (See Notice.) 20. A party accepting a deed contain- ing the following clause — "subject to a mortgage execnted by (the grantor) to W.'' — stakes his title with actual notice of the existence of the mortgage, and of the liability of his grantor thereupon — even though said mortgage be defective in point of law, and only constitutes a lien in equi- ty. Moss V. Wortliington, 11 Minn. 438. VIII. Correcting Defective Deed. 21. By subsequent deed. The record showed that the husband was the owner in fee of the premises in November, 1864, that on 5th July he conveyed to his wife (plaintiff) by a deed defective in its de- scription of the land. Afterwards, March 25, 1867, he executed and delivered to plaintiff another deed, releasing all his right, title and interest in the land, and reciting that "this deed is made to correct description, and to confirm in Mary Greve title to land intended to have been de- scribed in and deeded by" the former con- veyance. Held, even supposing the first deed was void by reason of uncertainty, and conveyed nothing, the imperfection was corrected by the last one, so that the two taken together would operate to pass the title, for the imperfection having oc- curred by mistake, could be corrected not only by court of equity but by act of the parties. Ch'eve v. Coffin, 14 Minn. 345. IX. Impeaching. 22. A trustee of occupants of public land under the town site act, having con- veyed to defendant's grantor (the occu- pant), and then having afterwards taken a mortgage on the land to secure his fees and charges, cannot, on ascertaining that the attorney in fact had no authority to mort- gage under his power, then claim that the mortgage and conveyance were one trans- action, and the deed was on condition that the mortgage debt be paid, for having taken with notice of the attorney's power, and no fraud, the delivery of the deed was voluntary and valid. Morris et al. v. Wat- son et al., 15 Minn. 212. 23. The receipt of a consideratiou, admitted in a deed, cannot be contradicted for the purpose of raising a resulting trust for the grantor. McKtisicJc v. The Gommis- sioners of Washington County, 16 Minn. 151. 24. It is not competent, for the pur- pose of destroying the effect and operation DEFINTnoNS-DISTRICT ATTORNEY. 121 of 11 deed, to show that no considenition was paid, whei-e one is acl^iiowledged there- in, except to prove fraud or mistake. lb. X. Quit Claim Deed. 25. Passes what title. Under Sec. 3, Chap. 35, Comp. Stat., p. 397, providing what estate will pass under a deed of quit claim or release in common use. Sdd, that nothing will pass beyond grantor's actual interest at the time of the convey- ance, whatever that may be. Martin c. Brown et at, 4 Miiin. 382. 26. (xrantee takes at his owu risk. When a person relies on a mere quit claim of a party's intei-est In property, he does so at his peril, and must see to it that there is an interest to convey. A release and quit claim presupposes in the grantee an interest in the property prior to the release and quit claim — in other words, that such a deed always conveys less than the whole estate. lb. 27. Passes only lawful estate of grant- or. A quit claim deed passes only the es- tate which the grantor could lawfully con- vey. Gen. St., Chap. 40, Sec. 4. Hope v. Stone, 10 Minn. 141 -, Everest v. Ferns, 16 Minn. 26. DEFINITIONS. 1. When the statutes furnish lucid defi- nitions, they should be adhered to by the courts, and not set aside for the old, tech- nical common law phrases. Bonfanti i>. State, 2 Minn. 131. 2. The word may, in statutes, means must or shaU only in cases where the pub- lic interests or rights of third persons I'e- quire it to be so construed. Lovdl v. Wheat- OH et al., 11 Minn. 92. 3. As to the correct definition of an ex post facto law, see State v. Hyan. 13 Minn. 370. DEMAND. (See Civil Action, XXII.) (See Evidence, 102.) (See EQUrry, 7.) (See Abstracts.) DEMURRER. (See Pleadings.) (See Ckiminal Law, 18.) DELIVERY. (See Deeds, II. c.) DEPOSITIONS. (See Criminal Law, 90.) DEPUTY SHERIFF. (See Sherife, VIII.) DISCHARGE. (See Principal and Surety, IV.) DISMISSAL AND DISCONTINU- ANCE OF ACTIONS. (See Practice, II. 7.) 16 DISTRICT ATTORNEY. 1. The Territorial Law of 1851, pro- viding for the election of district attorneys 122 DISTRICT COURT— EASEMENTS. in each county, organized for judicial )5ur- poses, is not repugnant to tiie State Con- stitution, nor repealed thereby, except in so far as it makes it the duty of said offi- cers to attend to criminal proceedings on behalf of the government ; as to all civil matters in which the county for which they are elected has an interest, their duties re- main as before the adoption of the Consti- tution. The prosecuting attorneys of the districts provided by the Constitution for each district, is the one to attend to the criminal matters on behalf of government. No-urse v. The Board of Supervisors of Hen- nepin County, 3 Minn. 62. DISTRICT COURT. (See COTJHTS, III.) DIVORCE. 1. Contract between husband and trife concerning:. A husband brought suit for divorce, and then entered into a contract with his wife stipulating that if the "said Roxa (defendant) would not appear in said action and interpose her claim for alimo- ny," etc., he would assign certain property to a trustee for her benefit, etc. Held, the contract was against public policy, and void, and could not be enforced as against the husband, though the wife had per- formed. The contract was a fi'aud on the court, and would have prevented a divorce had it been known. Belden v. Munger, 5 Minn. 211. 2. Admissions of parties insufficient. A decree of divorce cannot be made upon the admissions of the facts charged in the complaint; the facts must be established by testimony of witnesses other than the parties — and this though the statute was silent. Tme v. True, 6 Minn. 458. 3. Vacating' decree for fraud. A de- cree of divorce, though granted by a court of competent jurisdiction, may be vacated for fraud. Ih, DURESS. 1. Tlie existence of a mortgrage^ con- taining a power of sale by which defend- ant's land could be sold on refusal to pay a high rate of interest, does not constitute in law such duress as will authorize a re- coveiy of money paid on such interest; for the money was contracted to be paid, was not extortionate. Nutting v. McCutcheon, 6 Minn. 382. 2. Payment of taxes to a collector, on demand, with the assessment roll and war- rant attached in his hand, is not a volun- tary payment. Board of County Commis- sioners of Dakotah County v. Parker, 7 Minn. 267. 3. Where a wife is induced to execute a conveyance of her separate property by the importunity, abusive treatment, and threats of various kinds of her husband, such as an abandonment and to turn her out upon the world to shift for herself, and that it was only on account of such treat- ment, and to keep the peace, she executed the conveyance, such conveyance will be declared void for duress. Tapley v. Tapley etal, 10 Minn. 448. 4. Imprisonment by order of law is not duress; to constitute duress, the arrest, or subsequent detention, must be tortious and unlawful. Taylor v. Blake, 11 Minn. 255. 5. Query. Will a, person, who, being arrested for a just cause, and with lavrful authority, hut for an improper purpose, pays money for his enlargement, be con- sidered as having paid the money by du- ress of imprisonment ? lb. EASEMENTS. I. Geneeallt. II. How Cheated. EASEMENTS. 123 a. By Estoppel. b. By Dedication. 1. Oenerally. S. Dedication at Common Law. 3. Dedication under Statute. Jf. Hewcation of a Dedica- tion. III. Abandonment. ^ I. Generally. 1. Perpetaal easement in land can be created by writing only. A perpetual easement in land is such an interest in laud as conies within the statute, which makes a deed or conveyance in writing necessary to its creation, grant, etc.. Sec. 10, p. 334, Q-. S. The Village of Mankato v. WiUard et al., 13 Minn. 13. II. How Created. a. By Estoppel. 2. Where a grantor conveys land fronting: it on a street. The general rule is, that, where a grantor conveys land abutting or fronting it on a street, in the absence of qualifying circumstances he will be estopped as against his grantee to deny that it is a street — if he be the owner of the so-called street — and if the premises to which the right of way attached are divided, the right of way passes to each portion into whosesoever hands it may come, but only so far as applicable to such por- tion. Dawson v. St. P. Fire & Marine Ins. Co., 15 Minn. 136. 3. Bights of assignee of a part of the dominant estate to an easement created by estoppel. Where A . conveys to B. land bounding it on a strip of land called a street, of which A. is the owner, and B. subsequently conveys a portion of said tract which does not abut upon such strip, to C, and C. has no right of way over the portion retained by B., either by express grant or by necessity, no right of way over said so-called street is appurtenant to the parcel conveyed to C. And if at time of A.'s conveyance to B. the former exhibited a map of the premises conveyed, upon which said street is designated as a street, and B. in purchasing relies upon represen- tation implied from the map that the strip is a street. Query, whether_the simple ex- hibition of the map without any reference to It in the deed would confer a right of way over said strip ? If so, the representa- tion to be implied from the exhibition of the map, and the right of way to be im- plied would be substantially the same as are implied from the call of a deed bounding premises conveyed upon a so-called street, and incident to the fi-ontage on said street, and not attach as a right appendant to said parcel of C. lb. 4. It seems that the implied covenant as to streets designated in the plan is not confined to the street on which the lot fronts. It seems, that, a conveyance of lots according to a map or plan, implies a covenant to the purchasers that the streets or other public places indicated on such plan shall be forever oijen to the use of the public, free from all claims or interference of the proprietoi-s inconsistent with such use, and that this principle is not limited in its application to the single streets on which such lots may be situated, and therefore that a release of the easement by the owners of lots fronting on any particular street does not discharge the land over which the street is laid from the servitude, but that the owners of other lots purchas- ed from the same proprietor have also an interest or easement in the street, though the lots do not front upon it. Wilder ®. City of St. Paul, 12 Minn. 192. b. Dedication. 1. Crenerally, 5. A dedication operates as an estop- pel. A dedication is not a grant or dona- tion. Its effect is not to deprive a party of title to his land, but to estop him, while the dedication continues in force, from as- serting a right of possession inconsistent with the uses and purposes for which it 134 •EASEMENTS. was made. Salmrmeier v. TJm 8t. Paul & Pacific R. B. Co. et id., 10 Minn. 82. 6. Existence of a grantee at the time not essential to a dedication to the public. In dedications to tlie public for public use, it is not necessary that there exist at the time a grantee capable of taking there- under. Tlie manner of dedication, whether in pais or statutory (in tlie absence of statute provision) Is immaterial. City of Winona v. Huff, 11 Minn. 119. 7. Dedication may be made before U. S. patent issues. A party who has pur- chased government land may dedicate the same to public use, although no patent has been issued. Wilder v. City of St. Paid, 12 Minn. 192. 8. Claimant under town site act may estop himself from questioning his au- thority to convey or dedicate. A party cannot give or grant, or conclusively do- nate to public use, land claimed by hira under the "Town Site Law," before his right to a deed from the trustee is estab- lished, but whether his rights are inchoate or consummate, legal or equitable, or whether he has any right of any kind in or to the land, he may by his deed or dedica- tion estop himself from afterwards ques- tioning the validity of his title, or his authority to convey the foe, or donate any Interest or estate to public use at the time of such sale or dedication. T/ie Village of Manhato v. WiUard et al., 13 Minn. 13. 9. Burden of railway, not covered by dedication for purposes of public street. The dedication of land to the public use as a common street or highway, does not con- fer the right to use the same for a railroad. Gray v. The Mrst Division of iJie St. Paul & P. R. R. Go., 13 Minn. 315. Molitor v. The First Division of the St. Paul & P. R. Co., 13 Minn. 285. 10. where the fee remains in the original owner. Where land has been dedicated to the public for use as streets and landing, the fee remaining in the orig- inal owner or his grantees, such streets or landing cannot be subjected to any greater burden or servitude than was intended by such dedication, and the laying of a rail- road track is, manifestly, not such a use as was contemplated by a dedication under a statute " which provided that the land in- tended to be for the streets, etc., shall be held in the coi-porate name thereof, in trust to and for the uses and purposes set forth, and expressed or intended." Schur- meier v. The St. Paul & Pacific R.R. Co., 10 Minn. 82. 11. so, it seems, when the fee passes it is on the condition subsequent that, it be used for the purposes originally con- templated. It seems, that if a dedication of land for streets and landing is made under a law tiiat conveys to the town (or city) the fee in such land, such dedication would be made on the consideration and express con- dition that the land should be used for and as streets and landing only, for the use and benefit of the public generally, and partic- ularly for the use and beneflt of the owners of adjacent lots, and the town (or city) would be bound to Iiold solely for such uses. The original owner gave, and subsequent owners purchased the property fronting on such streets or landings, on the condition and with the understanding, and implied agreement that! the streets and land- ing should forever be kept open for their use, benefit and enjoyment, and it would seem that they had a vested right in such streets and landing so as to prohibit the same from being talfen or injuriously af- ected without compensation — as for R. R. purposes. Bekky, J., expresses no opin- ion, lb. S. Dedication at common law. 12. Requisites of common law dedi- cation'. To constitute a valid common law dedication, there must be an intention to dedicate, and an act of dedication on the part of the owner, and an acceptance on the part of the public. Subject, perhaps, to this qualification, namely, that If the owner of the servient estate intentionally or by gross negligence, leads the public to EASEMENTS. 125 believe he lias dedicated tiie premises to public use, he will be estopped from con- tradicting his representations to the preju- dice of those lohom he may have mislead. Indeed a dedication at common law is an estoppel ill pais. Wilder v. City of St. Paul, 12 Minn. 192. 13. Time necessary to constitute it. To establish a common law dedication, it is not necessary to show un adverse, exclu- sive, and uninterrupted iiossession of the premises for twenty years, with the actual or presumed knowledge of those advei-sely interested. The right of the public does not rest npon a grant by deed, nor upon twenty years possession, but upon the use of the land, with the assent of the owner, for such a length of time, that the public accommodation, and private rights, might be materially affected by an interruption of the enjoyment. The length of time of the enjoyment is a fact for the jury to consider, as tending to prove an actual dedication and acceptance by tlie public. Case v. Favier, 12 Minn. 89. 14. The intent of the alleged dedica- tion tlie important qnestion. Where a common law dedication is claimed the im- portant question is tlie intention of the party claimed to have made the dedication. Tills is a question of fact for the jury to de- tei-mine from all the circumstances. Any thing by which the intent may be estab- lished or disproved, is material. lb. 15. Acceptance by officers of city not necessary. To constitute a dedication at common law of land for a street in a city it is not necessary that an acceptance by the officers of the city be shown, and thougii the acts of individuals are unsatis- factory, they are admissible, and their weight is for the juiy to determine. Wild- er V. City of St. Paul, 12 Minn. 192. 16. At common law no particular time is fixed to make a dedication consummate as to acceptance by user — the true test is ' ' the assent of the owner of the land to the use, and the actual enjoyment of the use for such a length of time that the public accommodation and private rights might be materially affected by an interruption of the enjoyment. Baker et al. o. Tlie City of at. Paul, 8 Minn. 491. 17. What time immaterial. .Where the act of dedication is something more definite than mere acquiescence in the user, as for instance, a distinct declaration of the fact by word or deed, then time is only material as i*egards the acceptance — that once made out the dedication is perfect. lb. 1§. A dedication for a pnblic landing may be made at common law, as well as for any other purpose. The Village of Man- kato e. 'Willardet al., 13 Minn. 13. 19. Dedication at common law oper- ates as estoppel. A. common law dedica- tion does not operate as a grant, but .as an estojjpel in pais of the owner of the ser- vient estate from asserting a right of pos- session inconsistent with the uses and pur- poses for which the dedication was made — following Wilder n. City of St. Paul, 13 Minn. 201. lb. 3. Dedication under the Statutes. 20. Requisites of a statutory dedica- tion. To entitle a plat to record, or con- stitute a statutory dedication under Chap. 26, Comp. St. p. 369, it must be acknowl- edged as required therein — following Ba- ker et al. V. City of St. Paul, 8 Minn. 492. City of Winona v. Huff. 11 Minn. 119. 21. When insufficient. A plat of a town which has a pretended acknowledg- ment signed by the surveyor, two justices and the owners, under a law (Chap. 26, Comp. St. p 369. Sec. 4) which required the same to be entitled to record, to be ac- knowledged by the proprietors and certi- fied to by the surveyor, is not entitled to record, and when tiled does not operate as a dedication -under said statutes of the streets and alleys therein laid out. Baker et al. v. Tlie City of St. Paul, 8 Minn. 491. 22. Wliat sufficient. The town plat which defendant filed for a statutory ded- ication of streets and alleys, showed on its face that block 101, (the disputed premises) was marked "Winona Square," and de- 126 EASEMENTS. fendant's certificate thereto was as follows: "I hereby certify that the above plat of Winona was by me directed to be surveyed, marked out and platted, and dedicated, the streets, alleys, three squares, viz., No. 33 marked Public Square, No. 103 marked "Winona Square, No. 99 marked Wabashaw Square, also two levees for public use and benefit forever." Block 108 in the plat was divided into lots, block 104 was not divided. Held, not certain but under the cir- cumstances the plat would in any event prevail over the certificate, since the sta- tute seemed to constitute it, the operative instrument (Sec. 5, Comp. St. p. 370), still, in view of the rule that if there be a re- pugnant call, which by the other calls in the instruments clearly appears to have been made thi-ough a mistake, that does not make the instrument void, and the en- tire instrument is to be taken and the iden- tity of the premises determined by a reasonable construction, it is evident the intention was to dedicate block 104 as Winona Square. Oitij of Winona v. Htiff, 11 Minn. 119. 23. ^Defendant being a claimant on United States land, platted the same for a town and filed said plat under the statute as a statutory dedication of certain streets, blocks, etc., among which was a public square, marked " Winona Square,"' con- sisting of block 104. Afterwards the proper judge entered said land under the town site act for benefit of occupants, and after the proper notice to occupants and others claiming rights, and this plaintiff or any lierson for him failing to make claim as required, the defendant's son, W. C. H.,. a minor, by defendant who acted for him, made claim to block 104, in due form of law. The judge on 2d Nov., 185.5, deeded block 104 hy iiame to W. C. H., which was duly recorded on 21st Nov., 1855. At this time W. 0. H. was in possession of said block, with notice of said plat and the record thereof as aforesaid. In Feb., 1857, W. C. H. died, leaving defendant sole heir at law. In April, 1857, defendant entered upon, enclosed and since possessed said block claiming title thereto. In March, 1857, plaintiff was incorporated, but never by any formal act accepted such dedication, but in 1858 commenced looking up its title, and never taxed the property, nor has de- fendant ever paid any taxes tiiereon, asses- sed by or through the plaintiff's action. Held, at time of survey and plat defenda.it had right if pre-emption, and tlie platting was legitimate and proper for that pur- pose — following Weisburger v. Tenny, 8 Minn. 459. The claim of the son was not adverse to but under defendant, based partly on defendant's settlement, and on the survey and plat referred to, and such survey and plat being expressly recognized both by the trustee and W. C. H. in the conveyance to the latter, said W. C. H. took the title subject to the dedication charged upon it by defendant. lb. 24. Statutory dedicatioo does not pass the fee. R. laid out certain propei'ty into city lots, streets and landing, and recorded the same under an act (statutes of Wiscon- sin p. 159, Sec. 5,) which provided that "every donation or grant to the public, etc., marked or noted as such on said plat, shall be deemed in law and in equity a sufiicient conveyance to vesi the fee simple of all such parcels as therein expressed, and shall be considered to all intents and purposes, a general warranty against such donors, tlieir heirs, etc., to the said donee or grantee, for his use, for the uses and purposes therein named, expressed and in- tended, and for no other use and purpose whatsoever; and the land intended to be for the streets, alleys, ways, commons or other puolic uses in any town or city, or addi- tion thereto, shall be held in the corporate name thereof in trust to and for the uses and purposes set forth and expressed or in- tended." Hdd, the city (of St. Paul) did not acquire title in fee to land on which the streets and landing was laid out, it acquir- ed only an easement to use the same for the uses and purposes expressed or intended. Schurmeier v. The St. Paul & Paeific B. S. Co. et at., 10 Minn. 82. City of Winona v, Huff, 11 Minn. 119. EASEMENTS— ELECTIONS. II. Revocation of a Dedication. I ELECTIONS. 127 25. Revocation of a statutory dedica- tion. Where ii Sparty makes a statutoiy dodicatioii of streets and alleys, etc., it is exceedingly doubtful whether lie can re- voke it under any circumstances, except in the manner provided by statute, through the courts, and that whether there has been any action taken upon it by the public or not. Baker et al. v. The City of St. Paul, 8 Minn. 491. 26. Revocation of a common law ded- ication. At common law a dedication of land may be revoked at any time before the public have accepted it, after accept- ance it becomes a contract irrevocable, ex- cept by consent of parties or operation of law. Acts of dedication or acceptance may take place in various ways. lb. 27. Where the oj-iginal owners platted the town and filed the plat, but so defect- ively as to constitute no dedication under the statute. Hdd, they could revoke their dedication at any time before the public had accepted it, under the common law rule, for nothing but a compliance with the statute in filing and acknowledging the plat will effect a dedication without an accep- tance, lb. III. Abandonment. 28. It seems, that an abandonment of an easement will not be piesumed from non-user for a lapse of time less than that which would raise the presumption of a grant. Wilder' v. City of St. Paul, 12 Mian. 192. EJECTMENT. (See Civil Action, XVI.) (See Pleadings, B. VII. d. 13.) I. Canvassing Board. II. Ireegularities in Elections. III. Contesting Elections. (See Pleadings, 35.) I. Canvassing Board. 1. A board of canvassers which have met, canvassed the votes, and adjourned sine die, is '■'■functus officio,''' and cannot re- convene and reconsider its action, and sup- ply omissions or correct errors in its pro- ceedings. Olark ■V. Buchanan et al., 3 Minn. 347. 2. The evident policy of our law is, to take from the board of canvassers all power over returns from established pre- cincts, and as far as possible deprive it of the means of doing harm. Sec. 33, Chap. 5, R. S., p. 50. n. 3. The duties of clerk of board of supervisors in receiving and opening elec- tion returns, in canvassing and estimating votes, and in giving certificates of election, are purely ministerial, and no judicial or discretionary powei's are conferred upon him, or the board of canvassers, except, perhaps, so far as to determine whether the returns are spurious or genuine, or polled at established precincts, and in as- certaining from the returns themselves for whom the votes were intended. Sec. 33, Chap. 5, p. 50, R. S. O'FerraU v. Oolby, 2 Minn. 186. 4. An act providing for an election prohibited the canvassing board of the county from refusing "to include any re- turns in their estimates of votes, for any informality in holding any election, or making i-eturns thereof," (Sec. 43, Chap. 15, G. L. 1861.) Held, not competent for the board to pass upon the validity or reg- ularit}'' of the election— that being a judi- cial act — and this would be so independent of statute. See O'Ferrall -o. Colby, 2 Minn. 180. Taylm- v. Taylor et al., 10 Minn. 107. 5. A county auditor may act by deputy 128 ELECTIONS. in the canvass of votes. Crowell u. Lam- bort, 10 Minn. 369. 6. When the certiiicate of election is issued and delivered by the auditor to tlie' person declared to be elected to a county office, in accordance with the official can- vass, regular upon its face, the certificate is conclusive evidence of the right of the person holding it to the office to which it shows him to have been elected, except in a proceeding wliere this right is directly in issue. State ex rel. Biggs b. Churchill, \o Minn. 455. 7. Under the General Statutes, Chap. 1, Sec. 19, 21 and 29, the determination of the canvass bj' the canvassing board is a de- cision and determination of the election of the person whom thej' declare to be elect- ed, lb. 8. The abstract of the canvass of votes as prescribed in Sec, 21, Chap. 1, G. S., is the authentic and official evidence of the canvass by the board, by which the county auditor is to be governed in issuing the certificate of election, lb. II. Irregularities at Elections. 9. The fact that the judges and clerks of an election did not take the prescribed oath, nor any oath, or that there was no list of qualified electors of the election dis- trict transmitted with the election returns to the canvassing board of the county, or that 110 register poll lists were made and posted at the election, oi- that one of the persons who acted as judge of election was a candidate for office at that election, will not make void the election; though if on account of such errors the result was rendered uncertain in any given town, perhaps such returns should be rejected, or if on these gronud the election was at- tacked for fraud, and it appears the errors were caused by a party interested, that, perhaps, would be prima facie evidence of fraud requiring satisfactoiy explanation. Berry, J., dissenting, thinks the absence of poll lists at an election would make void tlie same. 'Taylor v. Taylor et al., 10 Minn. 107. 10. If the votes of citizens are freely and fairly deposited at the time and place designated by law, the intent and design of the election are accomplished. It is the will of the electors tlius expressed that gives the right to the office or determines the question submitted, and the failure of the officers to perform a mere min- isterial duty in relation to the election can not invalidate it if the electors had actual notice, and there was no mistake or sur- prise, lb. III. Contesting Elections, s 11. The statute which authorizes Con- tested election cases to be heard at cham- bers, (Comp. St., p. 150-1,) if not heard at a regular term within thirty days after the election, is merely cumulative, and does not take from the jurisdiction of the court when sitting in terra, to hear and decide the same case, should the judge re- fuse to hear it at chambers. WhaUon v. Bancroft, 4 Minn. 109. 12. fiequisites of appeal. Under tlie election law of March 12, 1861, Sec. 31, required on an appeal from the board of canvassers to District Court, to contest an election, that a notice should be filed with the clerk of court within twenty days from, day of election. Sec. 49 and 52 provide that in case of contested election, the party contesting shall notify the adverse party, in writing, of his intention, '• within twen- ty days after the votes have been can- vassed," etc. Held, these sections are to be construed togetlier, and no appeal can be taken without all the requirements being satisfied— that failure to notify the clerk as required within tlie time, prevented the District Court from acquiring jurisdiction. Baberick v. Magnet; 9 Minn. 232. 13. When a party attacks the validity of an election on the ground of errors in the canvass of the votes, he must in every instance show that there was error, and that it affecled tlie result, or ren.dered it iinrer- EMPLOYMENT -EQUITY. 129 tain. Taylor v. Taylor et ah, 10 Minn. 107. 14. The trial in conrt of a contested election proceeding, is a special proceed- ing, and not a civil action, and oral testi- mony is admissible. Ford v. Wright, 13 Minn. 518. EMPLOYMENT. (See Civil Action, IX. 3.) EMINENT DOMAIN. (See CONSTiTaTiONAL Law, V. 13.) ENTIRETY OF CONTRACTS. (See CONTBACT, IV.) EQUITY. I. GrENEKAI.LY. II. Specific Pebfoemance. a. b. Contract to convey land. c. Parol contract to convey land. 1. What sufficient part performance to take contract out of the statute of f rands. Z. What an insufficient part performance, elc. d. Defenses. III. Eecision of Contract. IV. Reformation of Contracts. V. Correcting Defectively Ex- ecuted Instruments. 17 VI. Cancellation of Instru- ments. VII. Relief against Fhaud and Statute of Frauds. VIII. Relief against Penalties. (See Injunction.) (See Civil Action, XVIII.) (See Deeds, VIII.) (See Merger.) (See Mandamus.) (See Practice, I.) (See Pleading, B. VII. d. 15.) (See PARTNEiisHiP, 26.) (See Husband and Wife, 5, 6.) (See Vendor and Purchaser.) (See Notice.) (See Bona Fide Purchaser.) I. Generally. 1. Fictitious issue. Courts of equity- will not exercise tlieir powers for the en- forcement of right or prevention, in the abstract, and where no actual benefit is to be derived by the party who seelis to exer- cise such right, nor injuiy suflfered by the commission of the wrong complained of. Goodrich v. Moore, 2 Minn. 64. 2. Adequate remedy at law. Where a complaint shows that a mortgage foreclo- sure, which it seelcs to avoid, was effected by parties having no interest in the mort- gage or mortgage debt, equity will not in- terfere, for the defendants are thereby mere wrong doers, and adequate I'elief is afforded at law. Bolles v. Carli et al., 12 Minn. 113. II. Specific Performance. a. GeneraMy. 3. Adequate remedy at law. Courts are unwilling to Interfere to enforce spe- cific performance, when the injured party may be indemnified in damages. McLain V. White, 5 Minn. 178. 4. Extension of time of performance. Where time is not of the essence of the contract, a court of equity may allow the 130 EQUITY. party to make payment after tlie agreed time has elapsed, aud require the deed to be executed. Dald et al. v. Pross, 6 Minn. 89. 5. Contract must be clear atid distinct. To entitle a party to the specitic perfoi'm- ance of an allegi^d contract to convey real property, "the contract must be clearly proved, and its terms should be so specific and distinct as to leave no reasonable doubt of their meaning." Lanz v. McLaughlin et al., 14 Minn. 73. 6. Form of instrument immaterial. Courts of equity decree specitic perform- ance of contracts to convey land which are in their nature unobjectionable as a mat- ter of course, without regard to the form of the instrument — compensation in dam- ages for breach of such contracts not being regarded adequate relief — this in refer- ence to a bond containing no covenants or agreements to convey. St. Paul Division Ifo. 1, Sons of Temperance, v. Brown et al., 9 Minn. 157. 6. Contract to convey land. 7. Payment condition precedent— de? fendant wrongfully in possession must al- ♦ low profits towards payment— waiver of payment of balance due — demand of deed. A. being the owner of certain land, con- tracted to sell the same to B., and surren- dered to the latter the XDOSsession. B. , with A.'s consent, assigned his contract to plain- tiff. By the contract, plaintiff was bound to till in a good and husbandlike manner, keep fences in good repair, and pay taxes, and pay for tlie land by delivering certain share of the crop, or an equivalent in money, to A. each year. After part pay- ment, and before default of plaintiff', de- fendant as assignee of A., with notice, took possession of the land while plaintiff was absent in the army, and has ever since retained possession. Held, to entitle plain- tiff to specific performance, he must pay the balance of the purchase price due, either in kind or money, unless the circum- stances excused him. That defendant, having wrongfully dispossessed plaintiff, the former was chargeable in equity with the rents and profits during his wrongful occupation, and plaintiff was bound to pay only what was found due after deducting such rents and profits, and those being found insufficient, to make up the balance due, the plaintiff might show a waiver on part of defendant of performance of con- ditions precedent, by a refusal on part of defendant to " recognize the claims of said plaintiff to the land," and a declaration by defendant that plaintiff "might assert his rights at law," made to plaintiff when he : notified defendant of his claim on the land, and this especially since the rents and prof- its being unknown to plaintiff, he was un- able to tender or offer to pay any definite sum, and a failure to demand a deed would only go as to costs. Sinit?i v. Gibson, ] 5 Minn. 89. 8. Vendor's assignee in wrongful oc- cupation must account for rents and prof- its. Where A., having contracted with plaintiff to sell land, and surrendered pos- session thereunder, and defendant, as as- signee of A., with notice of plaintiff's contract, enters upon and wrongfully with- holds the possession thereof from plaintitt', the defendant holds the legal title for plaintiff, and will be held to account to the latter for the rents and profits, and in an action for specific performance by plaintiff, such rents and profits will be set oft" against the balance of unpaid purchase money, except the expense in keeping the fences in i-epair and taxes paid, though against knowledge of plaintiff; and the value of this use and occupation will be determined in view of the value thereof to plaintiff" under the restrictions of his contract, and not its value to an absolute owner, lb. 9. Parol agri'eement between husband and wife— not enforceable. Complaint al- leged the purchase of real estate, payment of purchase money by husband, convey- ance to wife in her own name; that such conveyance was made for the sole use and purpose and only intention of providing a suitable home for the wife in case she EQUITY. 131 should survive the husband, all of which she had full knowledoe, and assented at or immediately after the convej'ance ; that it was mutually understood by and between the husband and wife, that in case the hus- band should survive the wife, tlie title to the premises should rest in the husband, and should not descend to her heirs; that it was the intention of said husband and wife to have had prepared and duly exe- cuted the proper instrument, in writing, to effect the purpose aforesaid, but through their inadvertence and neglect, and the sudden and unexpected death of the wife, such instrument was not prepared, nor any will or other instrument executed by the wife, in any way affecting the estate. HM, such agreement would not be specifically performed in equity. Johnson v. John- son et al., 16 Minn. 512. 10. Contract concerning personal prop- erty—enforceable. T. agreed to assign and deliver to M. a certain note and mort> gage against S., and M. agreed, inter alia. to cancel and deliver to T. certain notes running to M.. made by T. T. performed his part of the contract. Held. T. was en- titled to a specific performance by M. of his contract to cancel and deliver up the notes — though the notes were over due, and M. was the payee. T., independent of M.'s contract, is entitled to such ^relief, on the principle of quia timet. Tuttle v. Moore, 16 Minn. 123. c. Pckrol contract to convey land. 1. WliM sufficient part performance to take it out of the statute of frauds. 11. Improvements. When one has en- tered and made improvements on land under a parol contract of sale, and wholly performed, specific performance will be decreed against the vendor. Seagerv. Burns et al., 4 Minn. 141. 12. Fart payment, entry and improve- ments. It seems that part payment of purchase money, entry into possession by the vendee, and the erection of valuable improvements upon the premises, is a suf- ficient part performance to talve a parol agreement for the sale of land out of the statute "of frauds. Bennett v. Phelps et al., 12 Minn. 326. 13. Entry into possession under con- tract. It seems that delivery of, and en- try into possession of land, in pursuance of, and in direct reference to a parol con- tract, has always been considered an act of part performance, which will talte the case out of the statute of frauds. OiU v. New- ell et al., 13 Minn. 462. 14. Entry, part payment, improve- ments. An entry upon land under a parol contract of purchase, part payment of pur- chase money, and the making of improve- ments thereon by plowing the same, in pursuance of the contract, is such part performance as to take.the contract out of the statute of frauds. lb. 15. Entry, improvements — parol as- signment of contract— waiver of tender —rights of parol assignee. Plaintiff con- tracted in parol with If. as follows: N. was to enter into a written contract with L. for the purchase of land, to be paid in three installments — first one down; plain- tiff was to furnish the money, and "all the rights secured under the contract of purchase to said IST. should instantly inure to the benefit of the plaintiff," and on the consummation of the purchase, and the execution of the deed from L. to N., the latter should immediately convey the prem- ises to plaintiff'. N. and L. entered into the written contract, the former paying the first installment in money supplied by plaintiff; whereupon the latter, with full knowledge and consent of N., entered into possession and commenced plowing the same, receiving from N. the written con- tract between N. and L. Bdd, plaintiff's entiy and improvements was such part performance as entitled him to specific per- formance of the parol contract between him and N., which operated as an assign- ment of the written contract of purchase to plaintiff, and entitled him to a convey- ance, on performance, either through X. 133 EQUITY. or otlierwise — L. making no objection. And the fact that N., prior to the maturity of the second installment, repudiated the parol contract, ottering to return the money advanced for the first payment by plain- tiff, and pay a bonus, had no effect on the rights of the parties. As to tender of second installment by plaintiff since N.'s repudiation, he was entitled to no tender, nor can he object tliat a tender was not made to L. ; and N. refusing to act, the court will decree L. to convey direct to plaintiff. lb. S. WMt an insvfficient part performance to take parol contract out of the statute. 16. Contihiiaiice of former possessiou and improvements. The continued pos- session and improvements of land which the vendee occupied and cultivated at time of contract of sale, is not such part per- formance as will take the agreement out of the statute of frauds. WentwortJi, v. Went- wortlt, 2 Minn. 284. 17. Where continued possession un- der an agreement for the sale of land when the record does not sliow that it was con- tinued under the agreement, is not such part performance as will take the case out of the statute of frauds. 76. 18. Payment of purchase price. Not even paynvint of purchase price, without something more, will constitute such part performance as will take a case out of the statute of frauds; much less, deposit of purchase money. Lanz v. McLaughlin et al., 14 Minn. 72. d. Defenses. 19. Married woman — mutuality. Where a married woman has been put into possession of land under a parol con- tract to convey, has made valuable im- provements thereon, and paid the conside- ration agreed upon, specific -performance will not be refused on the ground of want of mutuality arising from her legal inca- pacity. Seager v. Burns e< aZ., 4 Minn. 141. 20. B. loaned plaintiff money and took a conveyance of certain projierty as securi- ty, giving back to plaintiff his bond for a deed. In an action for specific performance against B., HeJA, it is no defense, and hence immaterial wliether plaintifts ever owned the premises or not, there being no claim that he did not get title, nor found mistake or surprise in the inception of the bond set up. Sons of Temperance v. Brown et al., 11 Minn. 356. III. Recision of Contract. 21. Want of Consent. While an inno- cent misrepresentation by mistake can nev- er be made ^he ground of a pei'sonal action for fraud, it may operate upon the contract itself to such an extent that a court of equity will rescind the contract, but only where the error is of such a nature and chai-acter as to destroy the consent neces- sary to validity of the contract. Brooks v. Hamilton, 15 Minn. 26. 22. Conveyances of land. It seems that in all cases in which conveyances of land have been rescinded at the instance of the grantee, in the absence of fraud, the purchaser was unacquainted with the premises, and had no reasonable opportu- nity of informing himself in regard to their quality, locality or boundaries. lb. IV. Reformation of Contract.' 23. Amending complaint after verdict bars judgment. Complaint sought to re- form a written contract on ground of mis- take in its execution, and for damages when so reformed. A special verdict found the real contract to be as complaint alleged, and on the court's refusing to de- cree a ]-eformation, the plaintift' on motion was allowed to amend the complaint, and again moved for a decree of reforma- tion to make it conform to the amended contract. Held, properly refused — the con- tract as found by the jury was the only basis for a reformation of the contract, and the court could not properly allow an amendment of the verdict, much less grant EQUITY. 133 a decree as solicited. Wiison v. McCormick el al., ]0 Minn. 21G. 24. Contract requiring a seal cannot be reformed by parol. Wlieie a verbal agreement is established to reform a writ- ten contract, the contract when reformed must rest in parol, for a contract cannot rest partly in writing and partly in parol. Hence, if a seal was necessary to the con- tract in the first place, it cannot avail to effect a reformation unless a consideration for the reformed contract is shown, for that contract has no seal to raise a pre- sumption as to consideration. SJmrpe v. Rogers, 12 Minn. 174. 23. Mistaken in spirit, not the letter. Equity looks to the spirit and meaning, and not to the letter; it has power to re- form a contract so as to make it conform in substance and effect to the agreement and intention of the parties, and this though the language used, is such as is agreed upon by the parties. Smith v. Jordan et al., 13 Minn. 264. 26. Deed may be reformed by parol. Where no statutory enactment intervenes, it is competent for a court of equity to rec- tify a deed or written contract upon clear and satisfactory proof, by parol evidence, that it fails, either on account of fraud or mistake of fact, to express the agreement and intention between the parties. lb. 27. Canse of error immaterial. Whether the error in a written contract, is the defendant's intentional or unintention- al misstatements, is immaterial, for a court of equity has power to correct it as well in the former as in the latter lb. V. Correcting Defectively Exe- cuted Instruments. 28. Omission of witness. Where an instrument at time of its execution was in- valid as a mortgage by reason of being at- tested by one witness only, it would un- questionably be in the power of a court of equity, in a proper case, to remedy a defect of that character, not only as against the maker of the instrument, but also against any person who acquired title fi'om the maker with notice. Rosa ». Worthington, 11 Minn. 438. VI. Cancellation of Instru- ments. 29. Bond for deed. Where the plaintiff held the legal title, but a bond for a deed was outstanding, which, though void at law by default of the obligee, was record- ed under provisions of statute, and made notice to purchasers. Held, equity would cancel the same as a cloud on plaintitt''s title. Dahl et al. v. Pross, 6 Minn. 89. VII. Relief against Fraud and Statute of Frauds. 30. Judgment— U. S. Patent. A judg- ment or decree of a court, on a patent issued in virtue of a decision of U. S. land officers, even where the coui-t or officers had acted within the sphere of their jurisdiction, may be impeached in equity for fraud or collu- sion in obtaining it. State is. Batc/ielder, 5 Minn. 223. 31. Compltiinant must act in perfect faith. A court of equity, when called upon to aid a party against the operation of the statute of frauds, and the acts of one who would take an unjust advantage of it, scrutinizes the conduct and acts of the party invoking its aid, and demands of him the utmost good faith and fair deal- ing. Eoans «. Folsom, h Minn. 422. VIII. Relief against Penalties. 32. Parties must be placed in statu quo. Equity will only relieve against penalties when the relief can be granted with safety to the other party, and he can be put in as good position as if the agiee- raent had been performed — where the thing may be done afterwards, or a compensation made for it. Bidwell v. Whitney, 4 Minn. 76. 33. One having made a promissory note, with interest at five per cent, per month after due till paid, executed a 134 ERROR, WRIT OF— ESTOPPEL. mortgage, witli power of sale to secure it, permitted a foreclosure by advertise- ment of the mortgage, the mortgagee biddiug in the property for the full amount of note and interest. Held, the mortgagor could not bring an action for monej' had and received to receive the ex- cess of Interest for which the property was bid in over and above the rate of 7 per cent, per annum, although the excess was in the nature of a penalty which would have been relieved against before the sale, for the mortgagor had waived his rights by laying by until the penalty had been enforced, and equity could not put the mortgagee in as good position as he would have been had there been no breach of the contract. lb. ERROR, WRIT OF. (S^e Practice, II., 15, B. III.) ESTOPPEL.- I. Generally. II. ESTOPPBL BY ReCOKU. III. Estoppel by Deep. a. When it does not exist, h. When it exists. IV. Estoppel in Pais. a. Requisites of. b. Miscellaneous Cases. 1. When it exists. Z. When it does not exist. (See Easements. II., a.) I. Generally. 1. Iiivokcd only to prevcat injustice and wrong. The doctrine of estoppel is only invoked to prevent injustice and wrong, and when the party claiming its protection, would in the eye of the law, be defrauded, and the other party be guilty of a fraud by the allegation or proof of the truth. Rochester Insurance Co. v. Martin, 13 Minn. 59. II. Estoppel by Record. 2. Verdict no estoppel. A former ver- dict does not operate as an estoppel — it must be merged in a judgment. Schur- meier v. Johnson et al., 10 Minn. 319. III. Estoppel by Deed. a. Wlien it does not exist. 'A. Attorney in fact. The covenants in a deed executed by an attorney in fact, do not estop him, only his principal and those in privity with him. Kent v. Cluil- faut, 7 Minn. 487. 4. Plaintiff not estopped by his grant- or's deed to xtrang'ers. Plaintiff's grantor deeded to certain private parties, certain parcels of land in the town of St. Paul, describing the land conveyed as "fronting on" and bounded by "Saint Charles Street." Held, plaintiff is, not estopped from denying as against the city of St. Paid, that his grantor did not dedicate tlie premises above referred to as "Saint Charles Street" to the public use, it no where appearhig that he intended to dedi- cate, or that the public accepted the dedi- cation, or acted on the faitli of it, or that rights, vested on the faitli of such dedica- tion would be prejudiced b)"^ its revocation or denial. Wilder v. City of St. Paul, 12 Minn. 192. b. W lien it exists. 5. Erroneous description in bond for a deed. When A. has entered into an agree- ment to purchase land of B., and taken a bond of the latter, and A. with the consent of B., and with his assistance, agrees upon and determines the limits of the same, and A. enters into possession ; B. is estopped from taking advantages of any clerical ESTOPPEL. 135 ei-roi- in the description of the Ifiiid in said bond in an action by A. to obtain specific performance. Baldwin v. Winslow, 2 Minn. 218. . 6. Recngnition of a defective mortga^^e as a lien, by clause in conveyance. A person may, perhaps, estop himself from questioning tlie validity of a certain mort- jfage (in itself void for want of two wit- nesses) b}'^ any appropriate clause in his deed recognizing it as a subsisting lien, and waiving its defects, but the mere ad- mission of notice tliat such a mortgage ex- isted by a recital of it in a deed through wliich he claimed title would not so oper- ate. Tlwmpson et al. v. Morgan, G Minn. 292. 7. Conveyance under an otficial trust estops trustee from denying the grantee's riglit. Under Act of Congress approved March 3d, 1855, where the trustee has con- veyed to defendant, the presumption is that defendant was the benificiary under the act and entitled to her deed, and the trustee or his assigns in an action to fore- close a mortgage given baclv by 'lefendant to secure the trustee's lien on land for ser- vices, is estopped to deny it. Morris et al. v. Watson etal., 15 Minn. 212, IV. Estoppel in Pais. a. Requisites of. 8. When estoppel in pais exists — may be retracted when. The acts or admis- sions of a party operate against him in the nature of an estoppel, where they have been relied on, and their denial would pre- judice the party in wliose favor the estoppel is introduced; hence, acts or declarations retracted before they have been acted upon, do not raise an estoppel, and an estoppel may exist for one purpose and not for an- other, in favor of one pei'son and not in favor of another, though growing out of tlie same transactions. Wilder v. City of PawZ, 12Minn. 192. 9. Estoppel must be confined to the same transaction. Statements or admis- sions made ,in one transaction will not estop a party from retracting them in an- othei'. Whittacre v. Culver, 6 Minn. 297. 10. An estoppel in pais exists when a party has — 1st, made an admission incon- sistent witli the evidence he proposes to give, or the title or claim he proposes to set up; 2d, and tlie other party lias acted on sucli admission ; and 'id, an injury would result to that other party by allowing such admission to be disproved. Atwater, J., quoting from Benson, J., in Dazell v. Odell, 3 Hill, 219. Oaldwdl v. Auger & Herbert, 4 Minn. 217. 11. A party to be bound by an estop- pel in pais, must have been guilty of con- structive fraud, or gross neglect, in regard to tlie subject matter claimed as an estop- pel. Or, in other words, there must have been an express design that the act or statement should influence the action of another. Combs v. Cooper, 5 Minn. 2.54. 12. To create estoppel in pais a party must have clearlj"^ done or omitted to do, some act, or made or omitted to make some declaration, which has influenced the con- duct of the party claiming the estoppel, and must have been intended to deceive or mislead the party who acted upon It. Oa- liff V. Hillhouse, 3 Minn. 311. 13. It seems that to operate as an es- toppel in pais, or equitable estoppel, it is necessaiy that the act done, or the charac- ter assumed, should be of such a nature that the repudiation of the same by the defendant would work an injury to the party setting it up. TJie Corcnti/ Com'rs of Hennepin Co. v. Robinson, IG Minn. 381. 6. Miscellaneous cases. 1 Wlien tliey exist. 14. Acquiescence in sale of property. The owner of property, who silently per- mits another to dispose of it as his own, when such silence was designed to and does induce the purchaser to think he is dealing with the true owner — shall not afterwards lay claim to the same as his own. Califf ». Hillhouse, 3 Minn. 311. 18(5 ESTOPPEL. . By receiving' a benefit under a f I „ iidulent conveyance, a creditor is estop- ped from avoiding it on the ground of fraud. Lemay v. Sibeau, 2 Minn. 293. 16, Plaintiff liad foreclosed a mort- gage, bidding tlie property in, afterwards dicovering that it was defective, commenced a foreclosure in court, asking to have the first sale set aside as irregular, and a sale under decree of court. Defendant offered, and afterwards under the decision of the court, quit claimed all interest in the prop- erty' that remained in liini by reason of the defective foreclosure, the court dismissing the action of the jjlalntiff. The note being unpaid after crediting up amount of the sale on the foreclosure, plaintiff now asks judgment for balance, and defendant ques- tions the validity of the foreclosure pro- ceedings. Held, he cannot question those proceedings, he having at his own request waived the right to do so by quit claiming all interest. Blake v. McKusiclc, 10 Minn. 251. 17. A. agreed with B. to deliver to the latter at Zancsvilie, Ohio, on or before May 1, 1868, certain machinery, and B. was to pay down $200, and on or before dat^ of delivery deposit with C. $2,100 cash, and $1,100 note, to be delivered by C. to A. on performance. May 19, 18G8, C. wi-ote A. saying, '' B. lias deposited with me $2,100 certified check and $1,100 note, all to be paid over to you vvhen the engine arrives and is set up." On May 20th C. telegraphed A: "B. has made the required deposit; wrote you yesterday." Whereupon A. shipped the machinery. Held, C. was thereby esto^jped from deny- ing that the information he communicated was true, and, as by the contract, A. was entitled, on actual or accepted performance, to receive from C. the deposit. C. cannot show that he received the deposit or any other understanding as between him- self and B.jbut may show that the machin- ery had not been set up when the deposit was demanded. Blandy etal. v. Baguet, 14 Minn. 491. -?. When it does not exist. 18. A. & B. owned jointly city lots; both being ignoi'ant of the true division line. No dispute existed as to where the line should be, but they measured off from what they supposed was the corner of the street the number of feet called for in the deed, and agreed verbally that such should be the line. B. built a fence thei'eon. Soon after C, wishing to purchase B.'s lot, asked A. where the dividing line was, and A. told him the fence was the division line. C. bought the lot of B. It was afterwards discovered that the supposed street corner from which the measurements had been originally taken by A. & B. was six and six-tenths feet too far west, and that the division line was actually that distance further east, thus including in A.'s lot a spring of water which before had been in C.'s The line as originally established had been acquiesced in three years. Held, it does not appear that A. designed to infiu- ence C. in any means as to the purchase, he had.nothing to gain whether C. pur- chased or not, or that C.'s purchase de- pended to any extent on A.'s information, that A.'s statement was an honest, though mistaken statement of fact, and that he was not estopped from claiming title to the tract of land between the former line and the actual line. Combs v. Cooper, 5 Minn. 254. 19. Negotiation of bond, etc., no es- toppel. If A. receives certain bonds from B. for the performance of certain sei-vices, and negotiates or otherwise disposes of them, he is not thereby esto^pcti from deny- ing their being of any value, for to consti- tute an estoppel in pais there must be: 1st, an admission inconsistent with the evidence which he has proposed to give, or the title or a claim which he proposes to set up. 2d, an action by the other party upon such admission. 3d, an injury to him by allow- ing such admission to be disproved. Chaska Co. v. Board of Supervism's of Car- ver County, 6 Minn. 304. ESTOPPEL. 137 20. Estoppel is confliicd to same traus- 1 action. F. transferred to W. as collateral securit.v, a note of Cs which had been due some time, and was wholly paid, stated the fact to C. requesting him to say nothing about the fact of payment for he (F.,) would take It up in a few days. W. notifled C. that he held the note, a?id that all payments should thei'eafter he made to him, C. replying that $450 had been paid on the note, but said nothing about any other payments. About two years after W. settled with F., taking a new note and retaining the same collaterals. W. then notifled C. that he still retained the notes as collateral, C. making no reply. Held, C. was not estopped from pleading full payment on the note, because, 1st, W. was not misled in taking the note originally, he having received the note before any conversation with C. ; 2d, the settlement with F. was a new transaction, and statements of C. could not extend beyond the first transaction as an estoppel. Whita^re v. G idver, QMXan. 297. 21. An averment that a sale was duly made, no estoppel. In an action against a mortgagee for surplus money arising from sale of mortgaged premises the,plaintiiF by alleging in his complaint that the sale was duly made and proper and legal notice given, does not thereby estop himself from claiming that the legal amount due was the sum stated in the complaint, though less than the amount bid, the presumption being that such amount was claimed in the notice of sale, and that the premises sold for more than was claimed — which excess it is sought to recover. Bailey v. Merritt, 7 Minn. 159. 22. , Estoppel conilned to the same state of facts. Where C. notified W. that he held his over-due note In favor of F., as collateral security to a claim against F., and the note had been fully paid at ma- turity, and W. replied that a certain amount had been paid on the same, but not claiming that it was fully paid, and C. afterwards entered into a settlement with F. and under the new arrangement re- 18 tained W.'s note. Held, W.'s statements were made on the facts as they existed at the time they were made, and could not estop him from setting up any ^defense to the note, on a new state of facts different from what he supposed when he made them. Whitacre ii. Cuher, 8 Minn. 133. 23. Wheat receipts. S., a warehouse- man, received of F. certain amount of wheat inferior to No, 2 grade, under an agreement to " safely store and keep the saifZ'vvheat in his warehouse until a return thereof should be demanded by F. or his assigns," and issued to F. wheat receipts of the following form: " No. 711. Account of A. P. Foster. 41-25 bushels No. 2 wheat. 20 sacks. Dyer. J. G. Swaet." Minniska, Sept. 29th, 1866." Foster sold said wheat to plaintiff — trans- ferring the wheat receipts — and an order on S. to deliver the wheat to bearer, plain- tiff knowing nothing about the quality of the wheat, its amount, or the terms of the agreement of storage except as appear- ed from the wheat receipt. Hdd, S. was not estopped from showing against plain- tiff that his agreement was to deliver the wheat in kind — -he having kept it by itself — and not to deliver No. 2 wheat, there be- ing in the written memoranda or wheat receipts upon which the plaintiff could the rely for estopping S. from showing real character of the transaction. The receipts were silent as to the defendant's obligations and plaintiff should have in- formed himself, and cannot complain against S. if the wheat fell below No. 2. Robeson v. Swart, 14 Minn. 371. 24. Presentation of an account. The fact that plaintiff had presented on a former occasion a bill some $300 less than he now claimed for the same sei-vices, is not conclusive as to the real value of the ser- vices, or the amount recoverable — -the same not having been paid or agreed upon as coiTect. AUis v. Day, 14 Minn. 516. 138 EVIDENCE. EVIDENCE. Scope Note.— This title embraces all decisions pertaining to the subject matter thereof, except evi- dence in criminal actions, for which sec title Criminal Law, and a few matters referred to in the cross notes, which are there arranged as beirig more directly re- lated to those subjects. I. Admissions. II. Of What Things Judicial No- tice Will be Taken.' III. Declaeations of Former Own- er TO Impeach Title to Property ;in Hands of Pur- chaser. IV. Presumptions. v. Competent, Kelevant, Mate- rial, AND Hearsay Evi- dence. a.. Generally. b. In particular cases. VI. Burden of Proof. VII. Proof Preliminary to Admis- sion OP Evidence. VIII. Secondary Evidence, and Re- quisites TO THE Admission thereof. IX. Parol Evidence to Contra- dict OR Vary Written In- struments. a. Generally. b. When inadmissible. c. When admissible. X. Evidence Admissible, etc., in Particular Issues. XI. Evidence Admissible, etc., in Particular Actions. XII. Witnesses. a. WIio competent. b. Liability for non-attend- ance. c. Questions tending to crim- inate, etc. d. Witnesses' opinions. e. Impeaching witnesses. f. Testimony on a former trial. (See Criminal Law, 88.) (See SHERIFF', 19.) (See Pleadings, B. VIII. m.) (See Partnership, VII.) (See Railroads.) I. Admissions. (See Partnership, 30, 31.) 1. Admission of one jointly liable will bind himself witlioiit prouf of joint lia- bility. In an action under Sec. 38, p. 536, Comp. St., against one joint associate on an "obligation of all" admissions of the defendant of his interest in said " associa- tion," are competent as against him — the rule that before the admissions of one of several joint parties can be admitted, proof of the joint interest must be first made aliunde, not applying as against the admit- tant, but as against other parties jointly concerned with him. Cooper v. Brecken- ridge, 11 Minn. 341. 2. Deliberate admissions are not tlie lowest degree of evidence. When a vol- untary, direct, plenary and explicit admis- sion of partnership was made by a party to the record, and one sought to be charged as such, an intelligent man, extensively engaged in business, under circumstances that would not only repel a false statement of this character, but would strongly tend to impress silencti as to the fact if true, made on separate occasions, both estab- lished by a different witness and testimony of " unchallenged verity," it is difficult to conceive of an extra judicial verbal ad- mission entitled to greater weight, and is not the lowest class of proof. Tozer et al., V. Mershey, 15 Minn. 257. II. Of What Things Judicial No- tice will be Taken. (See Pleadings, B. II. c.) 3. Clerk's signature to file marks. The court may take judicial notice of the clerk's signature to the file marks on pa- pers, though from another district, l?ut without an order from the court, records EVIDENCE. 139 should never be allowed to leave the files of the clerk's office for any purpose what- ever. Slmrerd v. Frazer et al.. 6 Minn. 572. 4. Laws of other States not judicially noticed. Laws of other States must be proven, like other facts— court cannot take judicial notice of them. BrinihaU v. Van Campen, 8 Minn. 13. 5. Public laws and treaties. Courts will take judicial notice of public laws and treaties, and of the authority conferred by them upon the President of the United States, but not of the fact that authority conferred upon him to do an act affecting but a small number of persons, and those not citizens of the United States, has been executed, such as the selection of lands for Indians, by the President, under a treaty. Dole v. Wilson, 16 Minn. 52.5. 6. Calendar time. Courts will take judicial notice of calendar time— the day of the month being pleaded, the court will take notice that it is on a given day— as Sunday. Finney v. Callendar, 8 Minn. 41. III. Declarations of Former Own- er TO Impeach Title to Prop- erty IN Hands of Pur- chaser. T. Such declarations made subsequent to the sale, not admissible. Declarations of a vendor, made subsequent to the sale, or at the time, and unconnected with the vendee, cannot be received in evidence to affect the vendee's title, or those claiming under him. Burt v. McKinstry et al.. 4 Minn. 204; Derby & Bay v. Gallup, 5 Minn. 119; Zimmerman v. Lamb et al., 7 Minn. 421; Sowlandv. Fuller, 8 Minn. 50; Black- man V. Wheaton, 13 Minn. 326. 8. Declarations of assignor's agent in possession of the property, inadmissible. G. assigned property to S., for benefit of creditors, part of which was in hands of an agent, N. The assignee notified ST. of the assignment, requesting him to hold as his agent. The assignment being assailed for fraud. Held, declarations of N.jmade while he was G.'s agent, {i. «., before the assignment,) were inadmissible to prove that his principaFs assignment, afterwards made, was with a fraudulent intent. So, as to his declarations after the assignment, to show the fraudulent intent of an assign- ment previously made. Scott v. King, 7 Minn. 494. 9. Wliether admissible if vendor is in possession, query? Whether or not the declarations of an alleged fraudulent ven- dor, continuing in possession of the prop- erty sold, made subsequently to the sale, are admissible against the vendee for the purpose of impeaching his title, it is un- necessary here to determine; but in any event where the evidence fails to establish such possession at the time of the declara- tions, they are clearly inadmissible. Shaw V. Bobertson, 12 Minn. 445. 10. Such declarations competent to impeach the vendor when he testifies the other way. When, in an action between a vendee and a creditor of the vendor who assails the sale as fraudulent, tlie vendee calls the vendor to testify concerning mat> ters relevant to the issue of fraud, the creditor may, for the purpose of impeachinff his testimony, show that he had made state- ment out of court conflicting with his tes- timony on the stand. Sicks v. Stone et al., 13 Minn. 434. IV. Presumptions. (See Practice, B. I. /. 5.) (See Justice op the Peace, III. 12 et seq.) (See Office and Officer, 1, 2.) (See Notes and Bills, XII.) 11. Foreign laws presumed to he same as our own. In all cases where the action is upon a foreign contract, and ' nothing is made to appear to the court that the lex lod contractus differs from the lex fori, the court will presume it is the same, and administer the law of the forum. The presumption being, until the contrary is shown, that the law of other States is the same as our own. Cooper et al. v. Beaney, 4 Minn. 528; BrimhaU v. Van Campen, 8 Minn. 13. 140 EVIDENCE. la. Foreign interest presumed to be same as our own. In the absence of proof concerning the foreign rate of interest, it is presumed to he the same as ouv own ; hut if it is different, and a party wishes to take advantage of it, lie must prove it — following Cooper et al. v. Ueaney, 4 Minn. 528. Desnoyer v. McDonald, Gusse . Davidson, impl., etc., 12 Minn. 357. 37. of new matter in answer. Where the reply puts in issue all the material aver- 142 EVIDENCE. merits of new matter in the answer, the burden of proof of such defense is on the defendant. Day et ai. a. Saguet, 14 Minn.' 273. VII. Proof Preliminary to Ad- mission OF Evidence. (See Evidence in Particular Cases; E.ECOEI)S.) 38. Evidence prima facie, irrelevant. To entitle testimony, prima facie iri'ele- vant, to admission, counsel should i)rove other facts showing its relevancy. State of Minnesota v. Anne Bilansky, 3 Minn. 246. 39. Where corporate charter showed certain acts were to be performed before it .should take effect. Where parties of- fered in evidence their incorporating act in a foreign state, and from the act it ap- peared that certain acts were to be per- formed before the act should take effect, viz., filing of a certificate with the Secre- tary of that State, and that thereupon the Secretary shall issue to the corporation an- other certificate, of a prescribed form; "record it in his office," and "said ceitifi- cate, or a certified copy thereof, should be evidence of the fact therein stated." Held, not admissible until it was shown that all the steps required by the act to constitute the corporation, had been taken. Bee?it v. Harris et al., 4 Minn. 504. 40. Proof of agency, before admission of agent's testimony. Where the state- ments of one wiio pretends to act as agent for another are olfered in evidence to bind such other person, it is for the court first to determine whether the agency is suffi- ciently proved by other testimony than that of the pretended agent; and if the court is of the opinion sufficient pi-oof of agency has been made to allow the state- ments, still the fact of agency must be made out to the satisfaction of the jury. Gales D. Manny et al., 14 Minn. 21. 41. Identifying justice's docket. A doolcet of a city justice is sufficiently iden^ tifled and authenticated where the acting city justice testifies that he found it at the office of such city justice; that it is one of the records of that office; that a certain person by whom the entries in tiie docket purport to have been made, was city jus- tice; that he knows the handwriting of such person, and that certain entries are in his handwriting. Gole ». Curtis et al., 16 Minn. 182. VIII. Secondary Evidence, and Reqjjisitbs for the Admission Theheof. 4a. Proof of loss of written instrn- ment. To admit secondary proof of an instrument, it is sufficient to establish a reasonable presumption of its loss, except in cases of suspicion — and it is always dis- cretionary with the judge. Phoenix Insur- ance Co. V. Taylor, 5 Minn. 492. 43. Before a party can show by parol the contents of a written instrument jprima facie in his possession, he must first prove its loss or destruction without his culpabil- ity. City of Winona v. Huff, 11 Minn. 119. 44. Absence of written instrument must be explained. Proof of the contents of a letter cannot be received until the ab- sence of the letter itself has been ex- plained. Ouerin v. Hunt et al., 6 Minn. 375. 45. Witness cannot testify as to con- tents of a letter written by defendant to him or his firm, without first accounting, satisfactorily, for its absence. Lowry et al. «. Harris et al., 12 Minn. 255. 46. Proof of bona ildc search for lost instrument. Very much less diligence is required on the part of a party to find a paper that belongs to his advereaiy, to en- title hini to prove its contents, than will be exacted when he seeks to prove the con- tents of a paper belonging to himself. Desnoyer s. McDonald, Q-eisse & Co., 4 Minn. 515. 47. To entitle a party to show by secondary evidence the contents of a lost instrument, he is required to give some evidence that a bona fide and diligent EVIDENCE. 143 search has been \insuccessfully made for it in the place where it is most likely to be found— the object being to establish a rea- sonable presumption of the loss. Thayer V. Barney, 12 Minn. 502. 48. Non-residence of those who pos- sess an instrument not sufficient excuse. Secondary evidence of the contents of a written instrument is not admissible where it is not shown to be lost or destroyed, but rather that it is in hands of non-resident's defendants, and that no attempt was made by plaintiff" to obtain it, by notice to pro- duce or otherwise, except that one of his witnesses had asked for it, and been un- able to "get hold" of it. Kon-residence of those to whose hands it was last traced, is not sufficient to excuse diligent effort to IDrocure it. Wood v. Otillen, Impl., etc., 13 Minn. 394. 49. Wliat preliminary steps will al- low secondary proof of lost recorded plat. In an action to recover from de- fendant the possession of land which he had dedicated to the public use as a public square under the statute, by filing a plat, etc., the plat on record was partially miss- ing — that portion showing the certificates and acknowledgments necessary to make it a valid statutory dedication — the plaintiff' introduced evidence to show the actual sur- vey and platting, and to identify such plat as the one recorded, and that the plat thus recorded (but then defective by want of certificates, etc.,) was delivered to defend- ant as preliminary to a notice to defendant to produce the original plat, for the pur- pose of laying the ground for the admis- sion of parol testimony of the contents of the record. Held, the proper course. The record indicated the existence of the orig- inal map, which was the next best evidence, and until a proper excuse was shown for its non-production, parol evidence was in- admissible. City of Winona v. Huff, 11 Minn. 119. 50. Where a record of a plat was missing, and its nature indicated that the original was in the possession of defend- ant, it is competent to introduce the "re- ception book" of the Eegister, sliowing the date of reception, grantor, grantee, and that it was delivered to defendant, and thereby to enable plaintiff to introduce next best evidence if defendant failed to respond to a notice to produce. lb. 51. Letters are themselves the hest evidence of tlieir contents. "Where the fact of a sale is in issue, and it appears that the contract which defendant claims was a contract of agency, was made by letters, such letters are, in the first in- stance, the only competent proof, and oi-al evidence is incompetent. Steele et at. v. Etlieridge, 15 Minn. 501. IX. Parol Evidence to Contra- dict OR Vary Written In- struments. a. Generally. 52. The rule that parol evidence is in- admissible to contradict or vary the terms of a valid written instrument, is applied only in suits between the parties to the in- strument and their privies. Van Eman v. Stanchfidd et al., 10 Minn. 255. 6. When inadmissible. 53. Ambigrnity — patent. An agree- ment which acknowledges the receipt of $2,000, and promises to pay the same out of the "proceeds of the sale of a certain lot of ground situate in the city of St. Paul, State of Minnesota, viz., the east half, north-west quarter, section thirty- two, and range twenty-one," contains a patent ambiguity which cannot be ex- plained by parol, and operates only as a receipt for money, which is payable on demand, and constitutes no defense to an action for money had and received. Mc- Nair v. Toler, 5 Minn. 435. 54. Agrreements prior and contempo- raneous to written contract. I'arol pi-oof of the understandings and agreements of the parties, at and prior to the execution of a written contract, to show that the contract was to terminate, in a certain conr- 144 EVIDENCE. tingency, before the period fixed by the contract itself, is inadmissible. Morrison est ai. V. lovejoy et ai., 6 Minu. 3!9. 55. Parol evidence is inadmissible to show a contemporaneous verbal agreement by wliich a party to a written contract had the privilege of revoking the written con- tract by notifying the other party ther-eof. Wemple v. Knopf, Jr., 15 Minn. 440. 56. Bill of sale. Where a bill of sale, with an inventory attached, has not been attaclied, either in respect to tlie consider- ation or tlie bona fide character of the trans- fer, it is incompetent to show "th.it by mutual agreement the inventory was made for the purpose of completing the transfer , of the property to vendee, in consideration of the existing indebtedness, from vendor to liim,' or "liow the inventory came to be made, and what was the consideration for the transfer," or (after showing change of possession) whether, at time of making the instrument and delivering possession, the vendor was largely indebted to the vendee. Cole v. Curtis et /d., 16 Minn. 182. 57. Bill to vary manner of payment. Parol evidence is inadmissible to prove that a bill should be paid in any other manner than indicated in its terms. Sut- ler «. Paine, 8 Minn. 334. • 5S. Bond, to vary its conditions. The original parties to a bond for a deed, on certain conditions therein expressed, can- not show by parol that the bond was given to secure the performance of a parol con- tract diiferent from the one set out in the bond, except on ground of fraud, mistake or surprise in executing it — following Mc- Clane v. White, 5 Minn. 178. RwsseU v. Schurmeir, 9 Minn. 28. 59. Contract, that sig'ner did not ob- serve a certain word. It is incompetent to show that a party to an obligation did not observe the word "assumed" in the same — it being an attempt to vary the terms of a written instrument. Keough v. McNitt, 6 Minn. 513. 60. Conveyance, absolute on its face, that it was conditional. A written in- strument of conveyance, purporting to be absolute on its face, cannot be shown, by parol proof, to be a conditional one, on mere suggestion of counsel on the trial — such facts can only be shown on the ground of fraud, mistake, or surprise, fully and explicitly alleged in the plead- ings. MeLane v. While, 5 Minn. 178. 61. Contract in writing not to be var- ied by parol, when. When a contract be- tween parties is made, by which one party incurs liabilities or obligations to the other, and the terms and conditions of such lia- bilities and obligations are fixed in writing and deliberately signed by the party as- suming them, and the matter is free from fraud or mistake, the writing must control and supersede all allegations of other and different terms founded on any preexistent or contemporaneous understanding. So in equity, except in case of fraud or mistake ; and the rule holds as to bills and promis- sory notes. CilATFiELD, J. BankofHaX- lowdl 13. Baker et aZ., 1 Minn. 266. 62. Deed. Parol evidence is inadmis- sible to show that a deed on a valuable consideration, purporting to pass all the grantor's rights, was not intended to have that ■effect, but simply pass a determinable estate on condition subsequent. McKusick 11. The Commissioners of Washington Co., 16 Minn. 151. 63. Indorsement. A party who in- dorses a note, without any qualification, cannot show by parol that at the time of making the same it was to be without re- course, and no liability attach to him. Kern v. Phul et aJ,., 7 Minu. 426. 64. ^Defendants— payees on a note made by one Randall — indorsed the same to Washington, the plaintiff. Bdd, that the contract of indoi'sement could not be shown by parol to be a contract to assume the liabilities of joint makers. Levering & Morton v. Washington, 3 Minn. 323. 65. Mortgage. Where no fraud or mistake is alleged, parol evidence is not competent to vary a mortgage, by showing any understanding prior to, or contempo- raneous with its execution. Berthold v. Fox et al., 13 Minn. 501. EVIDENCE. 145 68. Promissory notes— to show con- temporaneous agreement. Aotion on promissoiy note. Defense that " at time of the execution and delivery of the note there was a verbal agreement between the plaintiff and defendants that an indorse- ment, of the same date of tlie note, should be made on it, of $,^7».00," admitting the balance to be due. Ileld, an attempt, by parol, to vary terms of a written instru- ment, and inadmissible. E4ually objec- tionable as showing only a partial want of consideration— admitting it to be true— in contradistinction from a partial failure of consideration. Walters v. Armstrong, 5 Minn. 448. 67. to show that It was g:iven as se- curity. The maker of a promissory note — in the absence of fraud, mistalie or sur- prise being claimed in its execution — can- not show by parol that it was given to secure the performance of a contempora- neous verbal agreement. Schurmeier v. Johnson et ah, 1.0 Minn. 319. 68. Power of attorney. Defendant claimed, under a conveyance from plain- tiff's grantor by an attorney in fact, under a power of attorney in evidence. Rdd, plaintiff could not show by parol that the parties to the power had an intention not expressed by it, even to defeat the power by showing its illegality, except on the grounds which would admit such proof in other oases. Gilbert et al. v. Thompson, 14 Minn. 544. 69. Receipt containing' agreement. Though a mere receipt for money may be varied or contradicted by parol, yet where it contains an agreement, condition or stip- ulation between the parties, it is in the na- ture of a contract, and not liable to be so varied. Sencorbox v. MoOrade, 6 Minn. 484. 70. Wheat receipts. It is incompe- tent to show by parol that "wheat re- ceipts" did not call for No. 1 wheat, but simply "merchantable wheat," they them- selves are the best evidence. Oowley v. Davidson, 13 Minn. 92. 19 c. When admissible.- 71. Aclcnowledgment — certificate of. Under Sec. 26, Comp. Stat., p. 400, tlie certificate of aclcnowledgmont to a deed, affixed thereto by an officer empowered to falce acljuowledgments, and regular upon its face, is not conclusive evidence of the matters contained therein, and can be aid- ed or disproved by parol testimony. Dodge V. HoUinshead, G Minn. 25; Annan ■». Fol- som, 6 Minn. 500; Edgerton et al. v. Jones et aX., 10 Minn. 427. 72. Ambiguity, latent — to identify sub- ject matter of contract. Though every description in a bond for a deed may ap- ply to several distinct ]parcels of land, it is. competent to identify the subject by ex- trinsic evidence, to vvhich the instrument relates. Baldwin ». Winslow, 2 Minn. 316. 73, Extrinsic evidence will be resort- ed to, to identify the object of a written contract, when they do not contradict or depart from a rational interpretation of the words of the instrument, lb. 74. The conveyance of ^Hhehaip'' of any particular property, conveys in law the undivided half. It is competent to show by averment which "half of a lot" was meant, when none is specified. lb. 75. Parol evidence is admissible to identify the lumber referred to in a writh- ing. ATrnsv. Tlie First Din. St. Paul and P. B. B. Go., 12 Minn. 412. 76. Bills of parcels, tending to show upon their faces a sale of the property de- scribed, by A. to B., may be shown by parol to have been given B. by way of se- curity or pledge. Jones n. RahiCly, 16 Minn. 320. 77. Bond for a deed. Complaint sought to determine defendant's rights under plaintiff's bond for a deed, on ground of default in payment. The answer alleged that plaintiff purchased the land at request of defendant, with the understanding that defendant should have the title on pay- ment of certain amounts, etc., and that the bond for a deed was given to secure that agreement, and that plaintiff was only a 146 EVIDENCE. mortgagee in equity, and prayed the com- plaint be dismissed. Held, competent to show by parol the true nature of the trans- action, as well where an instrument Is sought to be enforced in a way not con- templated by the parties, as on ground of fraud, mistake or surprise in its execu- tion; but inasmuch as a party must be dwmaged, to enable him to have relief against fraud, and the answer does not show fraud, nor but that plaintiff paid all the land was worth, and that defendant would suffer nothing by cancelling the bond, he was not entitled to a dismissal of the complaint. BeUte v. Morrison et at, 8 Minn. 87. 7§. Consideration of deed. The ex- pressed consideration in a deed may be im- peached by parol. Kurnkr v. Ferguson, 7 Minn. 442. 79. Contract only partly in writing. Where a writing appears to express only some part of an agreement entered into between the parties, it seems it would be admissible to prove the other parts of the agreement on which it is silent. Buggies et al. V. 8wanwioh et al., 6 Minn. 526. §0. Contract refers to verbal agree- ment. Although a written contract cannot be varied by any previous or contempora- neous verbal agreements or understand- ings, yet where the writing directly refers to a verbal agreement, the latter maybe proved, though it adds material terms and conditions to the writing. lb. 81. Contract, fraud, mistake or sur- prise in its execution, or frand in its per- formance. It seems that parol evidence is admissible in equity, on the ground- of fraud, mistake or surprise, in the making and execution of an instrument, to show that a deed absolute on its face was intend- ed only as a mortgage, and also where fraud arises subsequent to the making or execution of the instrument, in an attempt to enforce it in a manner not authorized by the transaction, to the prejudice of the grantor or mortgagor — qualifying the dic- tum in McClane v. White, 5 Minn. 178. Belote V. Morrison et al., 8 Minn. 87. 82. Copartnership articles — verbal contract not covered by them. Where K. took L. in as a partner, and it was agreed between them that the firm thus constitu- ted (L. & Co.) should assume and pay K.'s debts. Tills contract was susceptible of proof, outside of the articles of agreement, (the latter relating simply to the manner of conducting the business, distribution of profits and losses, period of its existence and manner of dissolution, being silent as to the stock employed, or how it was to be obtained or paid for,) on the ground that parol evidence is admissible jn case of writ- ten instruments, to prove collateral and independent facts about which the writing is silent. KeougJi v. McNitt, 6 Minn. 513. 83. Indorsement. When a party in- dorses a note in blanlv, contemporaneous with its making, it is competent to intro- duce extrinsic evidence to show, as between himself, the maker, and payee, his pur- pose and intention in so signing. Pierse i>. Irvine et al., 1 Minn. 373. 84. In an action by the payee against a party who has written his name on the back of a note, pai-ol evidence is admissible to shoviT that it was placed there before de- livery to the payee, and also to show the intention of the parties at the time his name was wi'itten on the note, concerning the character he sustains to the note. Mc- Oomb, Simpson <£ Co. v. Tlwmpson, 2 Minn. 145. 85. When a person puts his name on the back of the note, if there is anything to be found in the writing itself that indi- cates what particular relation the party intends to assume to the note, then parol evidence is not admissible to vary such re- lation, but the party must be tried upon his written contract. The fact of the name being on the back of the note, where an indorsement is usually made, is not as ab- solute in indicating its character as if it had written over it a contract of indorse- ment, and is capable of an explanation as between all parties, before the note leaves the hands of the payee— not so in the hands EVIDENCE. 147 of a bona fide holder. McGomb, Simpson & Go. V. Thompson, 2 Minn. 146. 86. A party who writes his name upon the back of a negotiable promissory note, before its delivery to the payee, and for the purpose of givincr it credit with him, becomes thereby^ a joint maker, and as between parties cognizant of the cir- cumstances, parol evidence may be given to prove such facts— (following McComb, Simpson & Co. ii. Thompson, 2 Minn. 139, and Marienthal, Lehman & Co. v. Taylor & White, 2 Minn. 147)— but such evidence is not admissible to show, that the liability of joint maker thus incurred, was, by a parol iagreement at the time, to be restrict- ed to that of an endorser, and thus entitle him to notice of non-payment, for such evidence would contradict the written con- tract of the parties, whereas in the former case, the parol evidence is to show that the contract of endorsement was never made, the signature having been put in the wrong place, through ignorance, or for the pur- pose of showing his relation to the (orig- inal) other joint maker. Peckham & Spen- cer V. Oillman . Hidden, 13 Minn. 43. 2. The holder of a promissory note ' 'agreed with the maker to deliver up fully satisfied," and did deliver the same up to the latter for a sum less than was due, and now brings this action to recover the bal- ance called for by the note. HM, though the amount paid being less than the amount due, would not be a legal consider- ation for a promise to surrender the note, or extinguish the debt, still the agreement being executed, the fact that there was no legal consideration, proves that it was the intention of the owner of the note to do- nate it, and the balance remaining due on it. A consideration is only necessary to support an agreement or executory contract, but a gift, made perfect by delivery, is an executed contract irrevocable, by the donor. lb. GOVERNOR OF THE STATE. (See Mandamus, 8.) GRAND JURY. (See Criminal Law, 63.) GOODS SOLD. (See Civil Action, IV.) GRANTS. 1. The act of Congress approved June 29th, 1854, granting certain lands to the Territory of Minnesota, to aid in building a railroad, vested a present estate in the Territory. United States w. Minn, and N. W. R. E. Go., 1 Minn. 128. 2. Grants of the United States border- ing on the Mississippi. Grants of land from the United States, boi'dering on riv- ers navigable In fact, carry title in fee to the middle thread of the stream, subject to the easement in the public to use the stream as a public highway. Schurmeier V. Tlie St. Paul and Pacific R. B. Co. et al., 10 Minn. 82. 3. The entries in the field notes of the United States surveys showed that the line -which bounded lot one in section five, on the north, ran east until it intersected the left bank of the Mississippi Elver, at which point a post was set, called a mean- der corner; that the line bounding it on the west ran south until it again intersected the left bank of the river, at which point another "meander" post is set. The Uni- ted States statutes (act concerning the mode of surveying the public lands of the U. S., approved Feb. -11, 1805,) provided that in such cases — where townships are made fractional by a water course — the water course shall be the external boundary on that side of such fractional township. When the sui-vey was made the " meander " line of this lot was not run on the bank of the river proper, but along " the left bank of a small channel or slough separated GUARANTY— GUARDIAN AND WARD. 177 from the river proper by a piece of land called "Island No. 11," which in high wa- ter was submerged, but in low water was high and dry, leaving only pools of water standing in the slough. The plat on iile, in accordance witli v\rhioh the grant by the United States to R. was made, showed no island opposite lot number one. The ques- tion being whether K. took, by his grant, title to the piece of land known as " Island No. 11," or was confined to the meander line as actually run. Held, the "meander line" of the river between the two posts on the north and west boundary, com- mences at the former, and runs "thence up stream''' to the last mentioned post, and it cannot be distinct and separate from tlie river line, and neither party can show that the river is in a different place from that design.ated by the field book and plat. That the meander line actually run was not to fix the river boundary — for the law establishes that — but to ascertain the quan- tity of land included in the fractional township, and tliat R. took title to "Island No. 11." lb. 4. Under the United States Statutes providing for the surveying of lands, where by reason of water courses frac- tional townships are created, the boundary lines must run to the water course, and such water course is designated as the external boundary of the fractional township; and a survey of the banks of the stream (called the "meander line,") is only provided for to ascertain the quantity of land Jin such fractional township. lb. GUARANTY. (See Limitation op Actions, 13.) 1. Where one endorses a note for the purpose of assuming the liability of a guarantor, the act is held to authorize the holder to write over the signature the con- tract of guaranty in full, and that being done, it is a sufficient note or memorandum 23 in writing to talce the case out of the stat- ute. Moore v. FoUom, impl., 14 Minn. 340. GUARDIAN AND WARD. (See ExEcuxoKS and Administra- tors, 4.) 1. Oath. A guardian took the follow- ing oath, viz.: "In conducting the sale of the real estate of the said minors, under the order of the Probate Court, I will in all respects conduct the same according to law, and for the benefit and best interest of the wards." Hdd, a substantial compliance with Sec. 14, p. 415, Comp. St. Montour 11. Pardy et al., 11 Minn. 384. 2. Uaardian's sale, may be attacked by the ward in ejectment. Though a sale may have been authorized and confirmed by a probate court, it may be attacked in an action in the nature of ejectment, brought by the ward or his representatives, against the purchaser or his representa- tives, being the tenant in possession. lb. 3. Foreign guardian, authority in this State. The authority of a guardian con- ferred by the courts of another State, will extend beyond the local jurisdiction of such State, and authorize its exercise with- in the limits of this State. Townsmd v. Kendall, 4 Minn. 412. 4. The courts of this State will rec- ognize the foreign appointment of a guar- dian, as creating that relation in this State, subject, of course, to the laws of this State as to any exercise of power by virtue of such relation, either as to the property or the person of the ward. lb. 5. The "Probate Court of competent jurisdiction," within the meaning of Sub. 1, Sec. 23, p. 416, Comp. St., signifies tJie Probate Court whose jurisdiction it is proper to invoke in the particular case in hand, or in other words, (Sec. 6, Chap. 38, p. 415, Comp. St.,) the Probate Court of the coun- ty in which the guardian was appointed. Montour v. Purdy et al., 11 Minn. 384. 178 HABEAS CORPUS— HIGHWAYS, HABEAS CORPUS. 1. Judges of Probate of the Territory- have no power to issue the writ of habeas corpus. Col. Lee, ex parte, 1 Minn. 69. 2. A court coniinissioner has power to gi-ant a writ of habeas corpus returnable before himself, when the applicant is de- tained in his own county, and also where it appears on the application that the ap- plicant is detained in an adjoining county, and there is no officer in that county au- thorized to grant the writ, or if there be one that is absent, or for any cause is incapable of acting, or has refused to grant the writ, under Comp. St., p. 635, Sec. 26. 8taie v. Mil, 10 Minn. 63. HEIR. (See U. S. Land, 23,) 1. Right of possession of ancestor's real estate. The right of possession of real estate owned by deceased at time of Ills death, is in the lieir, until the^executor or administrator takes possession, or other- wise claims his rigtit of possession, under Sec. 5 and 6, Chap. 52, G. S., these provis- ions conferring a right on the personal representative, which he may perhaps ex- ercise in all cases, but is not bound to exer- cise unless the real estate, or the rents and pi-ofits, may be needed in settlement of the estate. Paine v. The First Division St. Paul and Pacific B. B. Go. et iiL, 14 Minn. 65. HIGHWAYS. (See Counties, III.) (See Pleading, 40, 72.) (See Constitutional Law, V. 13. ) 1. Damages in laying out. It seems that where the Legislature, by special act, authorizes or requires a public road or highway to be made or established, and provides no means of paying for the sanle, or for ascertaining or paying the damages occasioned thereby, or for the property talieu, the reasonable presumption is that it is intended such damages shall be ascer- tained, assessed and paid, and such im- provements made, under the provisions of the general laws appertaining to the sub- ject. Warner v. Commissioners of Henne- pin County, 9 Minn. 139. 2. Requisites to location of a road. An act of the Legislature, approved Marcli 4, 1863, entitled "An act to locate and open a State Road from Yorkville, Cai-ver Coun- ty, to intersect the St. Paul road, south, " etc., provided that on "filing the plat and the field notes of survey of said road in the office of the Register of Deeds of Car- ver County, and a duplicate thereof in the office of the Register of Deeds of Henne- pin County, the location of said road shall be deemed complete." Held, until the map and duplicates were filed in the connties designated, there was no location of the road, and until such location the commis- sioners had no authority to take or con- demn the land over which the road was laid, and thereby divest an owner of his title. Teich v. Board of Oommtissioners of Carver County, 11 Minn. 292. 3. Notice to remove fence on opening- road. The statute provided that where a road was laid out through improved land, the supervisors should give the occupant twenty days' notice to remove the fence, before proceeding to remove it themselves, and in case of appeal to the county com- missioners, the notice should be given after the filing of the decision on appeal — Sec. 22 and 23, Chap. 4, Art. .% Laws of 1860. Held, this provision was to enable the owner or occupant of improved land, over which a road is laid, ample time to remove and build his fences before opening the road, or exposing his crops» Where the land is uninclosed, the rule is inapplicable, and so where the fence is voluntarily re- moved by the owner. If after the road has been opefled, while owned by C, a HIRING— HOMESTEAD. ^ 179 subsequent owner, re-incloses the road with the fence, he is entitled to no protection. And no order to open the road is required by the statute, unless the land over which it was laid was inclosed, and the owner neglected or refused to remove it. Hunter V. Jones, 13 Miftn. 307. HIRING. (See Bailment, III. 1, 2.j HOMESTEAD. (See Mechanic's Lien, 1.) (See Tkust and Trustee, 14.) 1, Lien on homestead. The homestead exemption in Sec. 98, K. S. (1851), p. 363, as amended by Law of 1854, p. 103, is re- sti-ained in its operation by the following Sec. (94), from extending to — 1st, Claims against the homestead by reason of work or labor performed, or materials furnished to increase its value. 2d, Claims on the part of the public for taxes and assessments. 3d, Mortgage liens voluntarily created. And as to these "exceptions" no exemp- tion exists. Olson V. Nelson, 3 Minn. 53. 2. Under Sec. 76 and 77, Comp. St., 566, and Comp. St., p. 560, Sec. 92, the homestead of a judgment debtor was sub- ject to the lien of, but not to a sale on the judgment. Where this homestead right had ceased — i. e., not occupied by debtor, his widow o)' minor children as a residence — it could then be sold on execution. Hence, where the judgment debtor con- veyed the homestead to a third person, the exemption ceased, and the laud became liable, in the hands of that third person, to be sold on execution to satisfy any judg- ment which operated as a lien against it when transferred.. Folsom et al. ii. Oarli, 5 Minn. 333. 3. JQ'o "release or waiver" is neces- sary to render a homestead liable for the class of claims "excepted" from the home- stead exemption in Sec. 93 and 94, E. S., (1851,) p. 363, as amended by Law of 1834, p. 103; and a mortgage lawfully obtained is among tlie " exceptions." Olson v. Nel- son, 3 Minn. 53. 4. The statute secures a homestead against a claim for materials furnished to erect or repair a house situated thereon — (1866). Oogel et al. v. Mielcow et al., 11 Minn. 475. 5. Signature of wife. Sec. 93 and 94, K. S. (1851), p. 363, as amended by the Session Laws of 1854, p. 103, does not make it essential to the validity of a mort- gage on a homestead, that the wife should sign the mortgage with her husband— a mortgage " lawfully obtained " on a home- stead is specially excepted from exemption, hence as to such mortgage there is no ex- emption. Olson v. Nelson, 3 Minn. 53. Em- METT, C. J., dissenting. 6. A mortgage of a homestead by the owner thereof, if a married man, need only be signed by his wife to be valid, un- der Sec. 93, Comp. St., 570. Lawrer v.. SUngerland, 11 Minn. 447. 7. Homestead, liow determined. Un- der the homestead law of 1858, (Comp. St., p. 569, Sec. 92, etc.,) to constitute a home- stead it must be occupied as a residence by the debtor and his family — following Fol- som ?i. Carli, 5 Minn. 333. Tillotson v. Millard et al., 7 Minn. 513. 8, Under Art. 1, Sec. 12, State Con- stitution, which provides that "9, reason- able amount of property shall be exempt from seizure or sale for the payment of any debt or liability," the homestead of a debtor may be determined by measurement of its area, as well as by a cash valuation. Cogel et al. v. Mickow et al., 11 Minn. 475. 9. In order to sustain the claim of the owner of land to hold the same as a homestead exempt from forced sale, under the act of 1860, (G. S., p. 499,) his resi- dence must be or must have been situated thereon. Kresin v. Mau, 15 Minn. 116. 180 HORSES— HUSBAND AND WIPE. 10. Form and shape. Under the home- stead exemption statute, prior to the amend- ment of 1860, (Sec. 92, p. 559, Comp. St.,) a debtor within city limits can select the homestead in any form or shape, provided it is in one compact quantity; and this is so although a portion of the premises so se- selected are occupied not wholly by himself, but partly by others as his tenants. Kelly •0. Baker et al., 10 Minn. 154. II.-; Two tracts of land mutually touching only at a common corner — a mere point — does not constitute one body or tract of land, within the Homestead Exemption Act, so as to allow a residence upon one piece to be treated as a residence upon the other. Kresin n. Mau, 15 Minn. 116. 12. An undivided half of two lots, in an incorporated town, city or village, is not exempt from forced sale upon execu- tion, as a homestead. Ward v. Hukn & Oo. et al., 16 Minn. 159. HORSES. (See Evidence, 126, et seq.) HUSBAND AND WIFE. ;. Liability of Husband fob Wipe's Torts. Liability op Wife fob her t Touts. Power op Husband and Wipe to deal with bach other. Wipe's Control over her Sep- arate Property. Wife's Liability on her Per- sonal Contract. Liability op Wipe's Separate Estate for her Contracts. Wife, as Surety for her Hus- band. VIII. Wipe's Power to ^Dispose of HER Estate. IL III. IV. VI. VII. (See Evidence, 138.) (See Mortgages, VII., c.) (See Trusts and Trustees, 6.) (See Mechanic's Lien.) I. Liability of Husband for Wife's Torts. 1. Husband alone liable for tort of wife committed in his presence. M. and his wife were together, alone, a short dis- tance from where others were beating the plaintiff; the husband, instead of dissent- ing from, seems heartily to have approved of, if not instigated, what the wife said on that occasion; both endeavored to incite the other defendants to further violence, but she is not shown to have said anything until after her husband set the example. Held, the husband alone was liable for the act of his wife, it being presumed she was under his control or acted by his direction, and mere physical superiority of the wife over the husband, arising from recent sick- ness of the husband, was not sufficient to rebut that presumption, although there might be circumstances which would rebut that presumption and make a wife liable for torts committed in the presence of her husband. Brazil u. Moran et al., 8 Minn. 236. II. Liability of Wife for her Torts. 2. When committed in husband's ab- sence—jointly liable with him. It seems a/emecOTsrt is jointly liable with her hus- band for all torts committed by her when not in his company. lb. III. Power of Husband and Wife to deal with each other. 3. Husband may convey land purchas- ed with wife's money directly to her as against subsequent creditors. T. pur- chased land in his own name with money of his wife, which she received from a HUSBAND AND WIPE. 181 formor husband as her separate firopei-ty, and afterwards conveyed the same directly to her by deed duly recorded. 6. after- wards recovered judgment against T., dock- eted tlie same and claimed a lien on the land so conveyed to T.'s wife. Said con- veyance covered the whole of T.'s estate. Held, it not appearing that B. was a credi- tor of T. at the time of the transfer to the wife, or that the transfer was made in con- templation of incurring the indebtedness to B., the circumstances gave rise to no presumption of fraud, actual or constructs ive, and though It conveyed all of T.'s estate, yet it not appearing that it amount- ed to more than a reasonable and suitable provision for her maintainance, the con- veyance was valid. Wilder et al. v. Brooks et al, 10 Minn. 50. 4. Husband cnnnot deliver property to wife in consideration for her supporting tlie family, etc.— will be ordered to bring such property into court, etc. A judgment debtor, the real and beneficial owner of a promissory note, continues such owner al- though he has transferred and delivered the same— without endorsement — to his wife, upon condition that the wife should rctaiij and use the same for his benefit, or the support of himself and his family. If the wife, to place such not» beyond the reach of her husband's judgment creditors,- delivers the same to a third person in ex- change for ^such third person's note, pay- able to her order, and retains the latter in her possession, she and her husband will be ordered to bring such note into court, that its pi-oceeds may be applied in satis- faction of plaintiff's judgment. But the original note delivered to the third party— where the latter is not a party— cannot be reached by the court, and the husband and wife cannot be compelled to produce them. Brown et al. v. Mattliews and wife, 14 Minn. 205. 5. Transfer to the wife on a bona tide antecedent debt, will be upheld in equity against existing creditors. B. borrowed $500 of his wife and gave her certain prom- issory notes as part re-payment. She after- wards purchased land with said notes and other property, afterwards received from her husband (undivided interest in his butcher shop) as full re-payment of the loan of |500. B.'s creditors claim the land belongs to B., on the ground that B. could convey to his wife no title to the notes or butcher shop, with which the land was purchased, consequently B. owning the consideration with which the same was pui-chased, his wife held the title as his • trustee. Held, whether B.'s wife took any title to the notes and shop from her hus- band, even under the change in the com- mon law made by the statute, may be seriously questioned, but if she failed in getting the legal title, she was equitably entitled to the same and the proceeds there- of, and inasmuch as her money went into the land, she had a i-ight to hold it as against B.'s creditors. Teller v. Bisliop et al. 8 Minn. 226. 6. As between the parties, equity will sustain the gift of a promissory note from a husband to his wife. Where a husband gave his wife a promissoiy note directly, without the intervention of trustees. Held, that iit law she obtained no title, notwith- standing Sec. 106, p. 571, Comp. Stat., but where the rights of creditors are not con- cerned, such a transaction will be sustain- ed in equity. Tulles v. Fridley, 9 Minn. 79. IV. Wife's Control ovbr her Separate Property. 7. Wife's separate estate defined— she may deal with it as a feme sole under the statute. At common law, contracts of a feme covert were absolutely void. To this rule equity recognized an exception, viz., allowing them to deal with their separate equitable estates as though sole, and our statutory provisions seem intended to con- fer on our courts of law power to administer "this equitable rule — which is as follows : That a feme covert may dispose of or charge her separate estate in any manner, and for any purpose, not conflicting with the instrument under 182 HUSBAND AND WIFE. which she acquired it — where the convey- ance contains no restrictions, she may deal with it as a feme sole. The "separate estates " including only such rights and in- terests of the wife as would belong to the husband, but for the limitation to her par- ticular use; e. g. rents, and inchoate title by curtesy. But a legal estate — as the rever- sion in lands to the wife, where she owned them at time of marriage, which would de- scend to her heirs, was under such provis- ions as the law provided, and not governed by these equitable rules. Carpenter and Wife V. Leonard, 5 Minn. 155; Carpenter and Wifev. Wilcerschied, 5 Minn. 170. §. Wife may complete payment on school land certificate owned before mar- riage with her separate property. Sec. 106, Comp. Stat. 571, was intended to se- cure to a married woman any property, by her owned before marriage, by whatever means acquired, or acquired after mai- riage by any means except her own per- sonal industry. Where a wife, at the time of her marriage, owned a schQol land cer- tificate on which she had made one pay- ment, she had the right to use any money, which was her separate property, in per- fecting her rights, or protecting her in- terest in and to said school land. Bich «. Bich, 12 Minn. 468. 9. Where wife takes to her sole and separate nse. A married woman takes property during coverture, to her sole and separate use, under Sec. 2 and 3, Chap. 69, G. S., only when the instrument conveying the same to her contains a power of dispo- sition by deed, will or otherwise. Leighton et al. V. Sheldon, 16 Minn. 243. 10. Sec. 2 and 3, Chap. 69, G. S., which relate to the manner in which a mar- ried woman during coverture may acquire property to her sole and separate use, re- late to personal property as well as real. lb. 1 1 . Married woman, under the statnte, has the profits and increase during cover- ture of her personal property free from her husband. A married woman, under Sec. 106, Chap. 61, p. .571, Comp. Stat. which provides, that " Any real or personal estate which may have been acquired by any female before marriage, either by her own personal industry or by inheritance, gift, grant, or devise, or to whicli she may at any time after her marriage, be entitled by inheritance, gift, grant, or devise, and the rents, profits, and income of any such real estate, shall be and continue the real and personal estate of such female after mar- riage, to the same extent as before marriage" * * * secures to the wife, by im- plication, the profits, and increase during coverture of her personal property, as her separate estate free from her husband or his creditors. Williams et al. v. McGrade et al., 13 Minn. 46. 12. Married woman may contract for sale of her land if her husband signs— and be liable in specific performance. A feme covert under Sec. 106. p. 571, Comp. Stat., has power to dispose of her property to the same extent as if she were sole, with husband's consent, and this power extends to the making of a valid,binding and effec- tual contract for the sale of her land, as by a bond for a deed, so that the contractee upon fulfilling upon his part, can enforce specific performance, provided the husband signs it, and Sec. 12, Chap. 35, p. 298, Comp. Stat., •does not require that such a contract should be acknowledged by the wife, since it does not fall within the defi- nition of other the "conveyance" as used in that chapter. Kingslcy v. Gilman et al, 15 Minn. 59. V. Wife's Liability on hek Per- sonal Contracts. 13. Statute does not allow wife to make herself personally liable on her contract. It is clearly established that a married woman cannot, either at law or in equity, bind her person or her property generally by contract, and the only remedy allowed will be against her separate property. Nor did the stat- ute, Comp. Stat. Chap. 61, Sec. 106, remove the general disability to contract imposed HUSBAND AND WIFE. 183 by coverture, nor allow a wife living with her husband to inalre herself personally liable on her contract— following Leonard V. Carpenter, 5 Minn. 156. Pond v. Carpen- ter et al., 12 Minn. 430. VI. Liability of Wife's Sepa- rate Estate on her Contracts. 14. Statutory lien attaches to her separate property, as if she were sole. Sec. 106, Comp. Stat., p. 571, relieves mar- ried women of the disabilities of coverture in regard to the use, enjoyment and dis- posal of their property, acquired as provid- ed ill the statute, whether the estate be legal or equitable, and to the fullest extent with one statutory exception— viz., "She shall not give, grant or sell, any such real or parsonal property during coverture, without her husband's consent, except by order of court."' This enables her to make the property liable for her debts, and a statutory lien will attach to her property whenever it would were she an unmarried woman. Carpenter and Wife ii. Leonard, 5 Minn. 155; Carpenter and Wife v. Wilver- seheid, 5 Minn. 170. 15. Wife's power to charge lier sepa- rate estate, only limited by the instru- ment through which she acquired title. While a married woman, cannot, either at law or equity, bind , herself personally by any contract she may make, yet her sepa- rate estate will, in equity, be held liable for all the debts, charges, incumbrances, and other engagements which she does, ex- pressly or by implication, charge therein, in any manner not inconsistent with the instrument by which she acquired her title to the property. Pond v. Carpenter et al., 12 Mini}. 430. VII. Wife as Surety for her Husband. 16. Wife as surety entitled to all the rights of surety. Married woman may pledge her separate estate to secure the debts of her husband, and become his surety, and she is entitled to the same rights and Immunities as attach to the re- lation, of principal and surety among strangers. Wolfe and Wife v. B aiming & Buelmell, 3 Minn. 202. 17. A wife mortgaging her separate propei-ty for the debts of her husband. Is entitled to all the riglits and remedies of a personal surety, so that she would be dis- charged by a contract between the creditor and her husband (without her assent) by which the latter obtained an extension of time. Agnew v. Merrilt et at, 10 Minn. 3u8. VIII. Wife's Power to Dispose OF HER Estate. 1§. Wife's mortgage invalid unless all the forms of the statute are observed. H. and wife signed and delivered a mortgage on the wife's separate estate. The wife never examined the Instrument, was ignor- ant of its contents, did not know it was a mortgage on her separate estate, although she had actually signed it, received no con- sideration therefor, the notary having failed to examine her as required by statute, or take her acknowledgment in any way, al- though so set forth in his certificate. Held, the right or power of a married woman to convey is created by statute solely, so all the forms or restrictions imposed by statute in order to its enjoyment must be observed and complied with, and in this case no ac- knowledgement having been actually taken, the mortgage was void as to the wife's in- terest in the land. Dodge v. Sollinshead, Minn. 35. 19. Husband's consent necessary to disposition of wife's personal property. A married woman, under Sec. 106, Chap. 61, Comp. Stat., cannot dispose of her sep- arate (personal) property without consent of her husband. Strong v. Colter, 13 Minn. 83. 20. Wife may charge her estate with her husband's consent— where consent ap- pears. Where the statute required that a married woman, to dispdse of her estate. 184 IGNOKANCE OF FACT— INDIAN RESERVATION. must jDi-ocure the consent o,f her husband. Held, she might charge her estate with such consent, and where goods were sold and de- livered to her for her sole use and benefit, and on credit of her separate estate and property, and at her instance and request, and at the instance and request of her.hus- band, and that the defendants (husband and wife) jointly and severally promised to pay for the same, the consent of said husband sufficiently appears to charge the wife's sep- arate estate. The fact that the husband also assumed a joint and several liability for the indebtedness, does not deprive the creditor of his remedy against the wife's separate property. Pond v. Oarpenter et al. 12 Minn. 430. faction of plaintiff's judgment, sold certain other of defendant's property, leaving him insolvent. Held, a mistake of fact which entitled plaintiff to be restored to the posi- tion he occupied before the sale. Lay et al. V. Shaubhut et al, 6 Minn. 273. IGNORANCE OF FACT. 1. Where a party pleads ignorance and it becomes important, the courts will carefully scrutinize the msans of knowledge possessed by him, and consider whether he has been guilty of laches in neglecting to avail him- self of information within his reach. If so, actual ignorance will not protect him from the consequences of his own acts. Scoit v. Mdes, 8 Minn. 377. 2. Payiiig forged draft. Where a forged draft has been paid, the loss must fall on the one who pays the same, where both parties stand on an equal footing as to good faith. Bem?ieimer v. Ma/rahaU & Go., 2 Minn. 83. 3. Sale on execution of property of stranger, tliroug'Ii mistake in description. Where the sheriff attached defendant's real estate, and afterwards sold an equal amount on execution in the same action, and plain- tiff" bid it in and filed satisfaction piece. And it appearing, ^subsequent to the sale, that the description in the notice of sale did not cover the property attached or of the judgment debtor, and the land sold belonged to a stranger, but in the meantime other creditors of defendant, relying on the satis- ILLEGAL CONTRACT. (See Contracts, XI., a.) INDICTMENTS. (See Criminal Law, II.) INDEMNITY BOND. 1 Civil Action, IX., 3.) INDIAN AGENT. (See Trusts and Trustees, 9.) [INDIAN RESERVATION. 1. So much of the Chippewa Indian Eeservation as was excepted from the ces- sion to the United States by the Treaty with the Chippewa Indians, of May 7, 1864, and which was granted to the Chief Hole- in-the-Day, an Indian of unmixed blood, continued to retain its character as an In- dian Reservation, notwithstanding such grant. The United States v. Shanks et al. 15 Minn. 369. INFANCY -INJUNCTION. 185 INFANCY. 1. Infiint may avoid contracts relating to personalty. An infant may avoid a contract relating to personal property, by any act clearly demonstrating a renunci- ation of the contract. Oogley v. Cushman, 16 Minn. 397. 2. even where executed. It seems that an infant can avoid au executed con- tract, relating to personal chattels, during his minority, in the absence of fraud. lb. 3. Voidable only. When an infant ex- ecutes a mortgage on personal property, which mortgage may be beneficial to the infant, said mortgage is voidable only, not void. lb. 4. Must return property received. Where an infant has purchased prop- erty, and given a chattel mortgage as se- curity for the purchase price, he cannot re- scind the mortgage without disaffirming the sale, and, upon such disaffirmance, the ti- tle to the property reverts to the mortga- gee, and he is entitled to the possession. lb. 5, — ^An infant cannot avoid a mortgage and keep the property acquired by virtue thereof. lb. 6. The effect of certain admissions relat- ing to a chattel mortgage and proceedings under it, made upon the trial by a guardi- an ad litem in a suit brought in behalf of an infant, upon the right of the plaintiif to show a disaffirmance of the mortgage, on the ground of the mortgagor's infancy, considered and determined. lb. INJUNCTION. (See Practice, II., 7.) (See Sheriff, VII.) 1. Where it will issue. It is a well set- tled rule, that an injunction ought not to be granted unless the injury is pressing and delay dangerous, or where the injury might be irreparable. Ooodrieli v. Moore, 2 Minn. 63. 24 a. A temporary injunction will not is- sue, unless the act about to be committed is of such a nature that the consequences of its commission would be irrepai-able — and the erection of a railroad trestle work on a street is not such damage to adjoining own- ers, it being a mere tresjjass susceptible of pecuniary compensation. Sehurmier v. The St. Paul & Pacifie B. R. Co., 8 Minn. 113. Whitman v. T/ie Si. Paul & Pacific R. R. Co., 8 Minu. 113. 3. An infringement of a ferry fran- chise will be restrained by injunction on the ground, among others, that otherwise the party would be compelled to institute a multiplicity of suits to obtain redress for repeated acts of trespass. McRoberts v. Washburn et (d.,'V) Minn. 23. 4. Kestraining motion to set aside a foreclosure. No injunction, by means of a distinct action, will be granted to restrain a motion to set aside a foreclosure sale in another action on grounds which constitute a good defense to the motion, and are cog- nizable by the court before whom said ac- tion is pending. Rogers v. Holyoke, 14 Minn. 220. 5. A levy upon and consequent sale of plaintift''s land under an execution against a third party, is not such an irreparable in- jury within the rule of Goodrich ». Moore, 1 Minn. 61, as will authorize the issuing of an injunction. Hart & Oaldwdl v. Marshall, 4 Minn. 294. 6. Mortgage sale. An injunction will not issue to restrain a mortgage sale, on the ground that the mortgagee proposes to sell the property absolutely, without privilege of redemption, under and by virtue of a waiver clause — the relief, if any there be, being at law. Armstrong v. Sanford, 7 Minn. 49. 7. Collection of tax. Plaintiff sought to enjoin the collection of a tax, on the ground that, contrary to the vote of the town, two supervisors had caused to be is- sued certain orders, and the county auditor had extended on the tax roll of the town a tax to pay said orders. Held, plaintiff had an adequate remedy at law by certiorari, 186 INJURIES TO REAL PROPERTY— INTEREST. whioli uudoubtedly lies to such subordinate tribunals, tliat it does not appear that the acts would lead to an irreparable injury, multiplicity of suits, or that the proceed- ings are valid on their face, so as to consti- tute a cloud upon his title for the execution of a deed (which by statute is prima facie evidence of title,) does not appear to be threatened — the fact that it may hereafter be executed will not confer jurisdiction. Scribner v. Allen et al., 12 Minn. 148. 8. ^Nuisance — Parties. Where no pe- culiar and special damage is sustained by a private person in consequence of tlie obstruction of a public highway, which ob- struction is a public nuisance, the remedy is only by indictment, or perhaps by suit in the name of the State, or of some one authorized to act for and vindicate the rights of the public, hence no injunction will be granted at suit of a private person. Dawson v, St. Paul Fire and Marine Ins. Co., 15 Minn, 136. INJURIES TO REAL PROPERTY. (See Civil Action, XV., 1, 2.) (See Evidence, 181.) INJURIES TO PERSONAL PROP- ERTY. (See Civil Action, XII.) INSANITY. (See Chimin AL Law, 53.) INSOLVENT LAW. (See Evidence, 129.) 1. Sec. 24, Chap 79, Comp. St., relating to the discharge of insolvent debtors, and the ground on which the validity of judg- ments discharging them will be destroyed, is not exclusive of other. Ullman ». lAon, 8 Minn. 381. 2. Under the insolvent act, Comp. St., Chap. 79., an omission to make the requisite proof of publication of notice required on first day of hearing, will destroy the valid- ity of the discharge. lb. INTOXICATION. (See Ceiminal Law, 40.) L IL III. IV. V. VI. INTEREST. Generally. On what Interest is Recotee- ABLE. For what Time Interest is E,e- coverable. Rule of Computation. Penalty Clauses. Interest During Time op War. I. Generally. 1. Under the interest law of 1858, a contract to pay more than 7 percent, inter- est per annum must be in writing. AUen e. Jones, 8 Minn. 202. II. On what Interest is Recov- erable. 2. Interest on interest not due. A con- tract to pay interest on interest which is not due, Is inequitable, and.will not be enforced, while on the other hand if the interest is dite, it ma J' be added to the principal, and a contract to pay interest on such new prin- cipal will be enforced. Mason et al. v. Gal- lander et tI., 2 Minn. 365. 3. Keciprocal acconnts. When the pai- INTEREST. 187 ties have reoiprociil aecount.-i, which do not constitute a mutual open account, caiTyiu!!; unlimited credit between them; in an ac- tion by one of them to recover his account, in which the other party sets up his account as a counter claim, and a balance is fonnd for the plaintiff, interest may be allowed from the date of the last Item of the plain- tiff's account. Leyde v. Martin et al., 16 Minn. 38. 4. Breach of contract. On breach of a contract to deliver wheat, the Injured par- ty Is entitled to Interest on his demand from date of breach only, and not from date of contract. Braclcett ■». Edgerton, 14 Minn. 174. III. For what Time Interest is Recoverable. 5. After maturity of claim, interest accrues. Under Chap. 35, E. S., p. 155, the rate of interest continues as agreed up- on by the parties after maturity until paid. BreiDster v. Wakefield, 1 Minn. 354. G. does no accrue. Interest being the creature of contract. Is recoverable strictly as interest, only during the continu- ance of the contract, and as provided by its terms before breach, and not after; what he pays after breach of contract. Is paid as damage, though it may be the legal rat« of interest. Mason, Oraig et al. v. Vallendar, et al. 2 Minn. 365. 7. Damages after maturity. Promis- sory note drawing no interest before due, but, " 5 per cent, per month after due till paid" will entitle the holder to "damages at the rate of 7 per cent, per annum after due till paid" only. Kent v. Brown, 3 Minn. 347. §. A promissory note that draws in- terest at a given rate without stipulation, whether until maturity, or after maturity, draws the given rate until due, and if not then paid, damages may be recovered at rate of seven per cent, per annum for non- payment. Miller v. Bouse, 8 Minn. 124. 9. the same as legal rate of interest. Promissory note stipulated for the pay- ment, of interest " at the rate of six per cent per annum until due, and five per cent, i^er month after due until paid." The statute provided •' any rate of interest agreed upon by the parties to a contract, specifying the same in writing, shall be le- gal and valid." Held, no interest, within the meaning of the statute, accrued after the note became due, and the promise to pay five per cent, per month after due till paid, was without consideration and void, the contract itself having been broken by non-payment, and no promise of further forbearance, etc., on ijart of payee, and it was simply a penalty, or an attempt to liq- uidate, the damages in a case where the law would not allow either — and that instead of recovering five per cent, per month after due as interest, damages only could be re- covered, and their measure is the same as the rate of interest established by law — not by the contract of the parties, either before or after breach — 7 per cent, per annum. Talcott ». Ma/rston, 3 Minn. 329. 10. Under Statute I860., Chap. 56, Sec. 1, providing that all agreements and con- tracts shall bear the same rate of interest after they become due, as before, if the same shall be clearly expressed therein — (not to exceed 13 per cent, per annum) — a bond conditioned to pay the principal in five years from date, with 12 per cent, in- terest per annum, payable semi-annually, will not draw such interest after due, but fall within the settled rule of this State, and entitle the holder to damages by way of interest at 7 per cent. Lash «. Lanibert et al. 15 Minn. 416. IV. Rule of Computation. 11. In computing interest upon con- tracts for the payment of mone}s bearing interest at the maximum rate allowed by statute, the rale has been to compute the interest on the principal debt from its date to time of payment or judgment, and not stoiJ at maturity, and figure compound in- terest. Brewster v. Wakefield, 1 Minn. 356. 188 INTEREST- INTOXICATING LIQUORS. V. Penalty Clauses. 12. Increased rates of interest after due is a penalty, not recoverable. The stipulation of a promissory note bound the maker, ou default of payment of principal and interest on a certain daj', to pay that sum with increased rate of interest upon principal and interest till paid. Held, that tlie greater snm.— increased rate — was a pen- alty, and not liquidated damages. Mason, Oraig, et al. v. Gallendar et al. 2 Minn. 369. 13. Where a promissory note drew in- terest at 3 per cent, per month until due, and 5 per cent, per month after due, till paid. Held, that interest could not be re- covered after due, but damn,ges,s,\iCi that the stipulation for 5 per cent, per month till paid after due was a penalty, and not liqui- dated damages, and under our statute, E. S., p. 155, Chap. 35, Sec. 1 and 2, the true rate of damages was the principal with in- terest at 3 per cent, till default, and damages at rate of 3 per cent, after default till judg- ment. Mason, Oraig, et al. v. Callander et a'., 2 Minn. 369. 14. The damages cannot be stipulated at any certain amount in money contracts. The law fixes the damages in such cases at the legal rate of interest. A stipulation for interest at 5 per cent, per month after maturity is in the nature of a penalty, and will be relieved against in equity. Daniels V. Wa/rd, 4 Minn. 168. vi. i.vterest during tlme of War. 15. Where lender was in the rebellion, and principal not due until after the war. Plaintiff loaned defendant money in Min- nesota before the rebellion, taking bond due Aug. 1, 1865 — after the rebellion,— drawing interest at 12 per cent, per annum, jjayable semi-annually. During rebellion the plaintiff resided in North Carolina, but had an agent in Minnesota, and defendants resided in Minnesota. Held, on such semi- annual payments of interest as fell due, and were not paid during the war, no dam- age by way of interest are recoverable, but the principal not being due u ntil after the war, interest is re eoverable on that for the whole period. £aah «. Lambert et al., 15 Minn. 416. 16. Effect of the rebellion on rate of interest. It seems that the rule that inter- est is not demandible for the period during war, where the citizen was in the enemy's country, or with the enemy, and had no known agent in the country competent to I'eceive payment and give a valid discharge (where the debt was due, and no express contract to pay before the war?) does not apply to a debt due from a, citizen of a State in rebellion in the late war, to a citi- zen of a loyal State, because the debtor cannot take advantage of his treason, but that it would apply to a debt due from such loyal citizen to such disloyal citizen. But where there is an express contract to pay interest until principal is paid, it is recover- able, though prevented by law, unless the use of the money by the debtor has been actually prevented. lb. 17. General rule, qualification thereof. It seems, that those cases where it has been held that interest is not recoverable for the period of war, where the citizen was in the enemy's country, or with the enemy, and had no known agent in the country, com- petent to receive payment and give a valid discharge now where the debts were due before the war, and no express contract be- tween the parties for the payment of inter- est after maturity, lb. INTOXICATING LIQUORS. 1. License. By Chap. 16, G. S., it is made the duty of the board of county commissioners to exercise discretion and discrimination as to the persons to whom licenses to sell intoxicating liquors shall be granted, and such board lias no right to grant such licenses except upon an applica- tion, in each case, by the person desiring JUDGE OF PROBATE AND HIS COURT. 189 a license. And the board is to determine, oil such application, wliether tlie applicant is a tit person to be trusted with the tratlic. The County GoyrCrs, Hennepin Co., v. Bob- inson, 16 Minn. 381. 2. County Commissioners cannot dele- gate their power. In determining upon the sum to be paid for a license, as well as tlie sufficiency of the aijplioant's bond, the board of commissioners must exercise their judgment, and the duty and responsibility thus imposed must be discharged by the board, and by no other person. lb. 3. -The board of county commission- ers cannot confer upon the county attor- ney, either as such, or as a. simple agent, the power to, or impose upon him the duty of issuing licenses or accepting bonds. A county attorney cannot, either as such, or as simple agent, legally be authorized to hear and determine upon an application for a license, nor to fix or receive the price of the same, nor to accept or approve the requisite bond, nor to issue the license it- self; and licenses issued by him in either of those capacities are absolutely void, and the county cannot recover the moneys re- ceived for such void licenses by such attor- ney, in whatever capacity assumed to have been received. lb. JOINDER OF ACTIONS. (See Pleadings, VII.) JOINDER OF OFFENSES. (See Ckiminal Law, 16.) JUDGE OF PROBATE AND HIS COURT. (See Commissioners to Adjust Claims, Etc.) 1. The act of the Territory of Minne- sota creating a Court of Probate, super- seded in its powers and duties the functions of Judges of Probate under the laws of Wiscoftsin. Gol. Lee, ex parte, 1 Minn. 69. 2. Powei'— Iiabeas corpus. Judges of Probate of the Territory have no power to issue the wi-it of habeas corpus. lb. S, Acknowledgments. Judges of Pro- bate had no power to take acknowledg- ments of deeds until the act of March, 6th 1852, (Comp. St., 49."),) making them Courts of Record, when that power was conferred. Base V. Arper, 6 Minn. 220. 4. No jurisdiction over Indians on re- servations. A full-blood Indian, residing at tlie time of his death upon an Indian reservation within Cass County, Minneso- ta, was not a citizen of the United States, nor of the State of Minnesota, nor does the Probate Court of Morrison County, to which Cass County was attached for judi- cial purposes, have jurisdiction over his estate. The United States v. Shanks et al., 1.5 Minn. 369. 5. Appointing commissioners. The Probate Court is not prohibited by Sec. 1, Chap. 44, Comp. St., from appointing com- missioners after letters testamentary or of administration shall be granted, but may appoint them, if not previously appointed, at any time during the progress of the ad- ministration. Wilkinson, Stetson rotice of appeal from Justice's Court was endorsed as follows: "Personal service of the within is hereby admitted this 23d day of December, A. D. 1867. B. & S. attorneys for plaintifT." Meld, sufficient proof of ser- vice—the presumption being that the en- dorsement was there when the notice was filed, at most an amended return would have i-emoved ajiy uncertainty. RihiUy o. Lane et al., 15 Minn. 447. .3. Affidavit for appeal. 50. Mistake in date of jndguient ap- pealed from, not fatal. An affidavit for, nor notice of an appeal from Justice's Court is not fatally defective, because it re- fers to tlie judgment rendered on a date different from the true date. It refers to the judgment rendered in the action — the details including the date are needless. Ih. 51. Need not state reasons allowing good faitli, etc. An affidavit for appeal from Justice's judgment in the words of the statute, that the appeal is made in good faith, and not for the purposes of delay, is sufficient,without stating reasons tending to show that fact. lb. 52. Tenue to tlie affidavit. Where an affidavit for an appeal was said to have no venue. Hdd, as it was entitled in the State of Minnesota, and proper county, it must refer, not to the affidavit, but to the ju- rat, which however being part of the affi- davit, does not require a separate venne. lb. 53. Need not be sworn to before the Justice. The affidavit for an appeal from a Justice's Court, under G. S., Chap. 65, Sec. 104, need not be sworn to before the Justice who tried the case. lb. Jf. Tlie return. 54. ffhat sufficient showing of costs paid, etc. The return of a justice on ap- peal certified that "costs paid and appeal allowed, Dec. 24, 1867." Relet, his fee for the return being included among the costs, it appeared that they were paid so as to give the Justice power under G. S., Cha.p. 65, Sec. 117, to allow the appeal, distinguishing from Griggs «. Larson, 10 Minn. 220. lb. VIII. Certiorari. 55. What Justice's return sliould con- tain. A Justice of the Peace in his return to a writ of certiorari should not confine himself to the complaints and errors set forth in the affidavit of the party aggriev- ed, but should make a full return of all the proceedings, and his rulings at the trial. 198 JUSTICE OF THE PEACE AND HIS COURT. :uid the District Court sliould be guided by what appears on the return, and this though tlie atfidavit dispute it. Gervais v. Powers et (d., 1 Minn. 45. 66. A Justice of the Peace in answer to a certiorari under a statute requiring liim to return "all the testimony and proceed- ings in the case, "(Sec. 127 and 13, Chap. 59, Comp. St.,) did not xertify that his return (lid contain all tlie testimony, but stated at the bottom, '• The above is all the testimo- ny." Held, the presumption was in favor of his having done his duty in the absence of any certificate. If it was necessary, the language used was sufficient. Payson ■». Eoerett, 13 Minn. 216. IX. Criminal Proceedings. 57. Trial by jury of six men against defendant's request, nnconstitutional. A trial of a defendant in a criminal prosecution in a Justice's Court, by a jury of six men, when he requests twelve men, is not such a trial by jury as is guaranteed by the con- stitution; and this is so although he had the right of appeal to the District Court, arid to be there tried by a jury of twelve men, for under Chap. 81, Laws of .1867, such an appeal is allowed only when he enters into a recognizance therein specified, with one or more sufficient sureties. This statute does not secure to him such a trial absolute- ly as required by the constitution. State v. Everett, 14 Minn. 439. 5§. Justice has no power to take mon- ey as security for the appearance of prisoner. Under Sec. 9 and 18, p. 746, Comp. St., a Justice has no authority on an adjournment to accept a sum of money as security for the appearance of api'isoner — hence when he so receives money and re- fuses to return the same on there-appear- ance of the prisoner and execution of the ordinary recognizance, it is not a breach of his official bond — although he is personally liable. Oresaey v. Gierman et al., 7 Minn. 398. S9. Depositions not part of record. Depositions of witnesses tal. In particular cases. TV. Acknowledgements, New Prom- ise and Part Payment. (See Constitutional Lavt, V., 12.) (See Partnership, 17, 25.) LIMITATION OF ACTIONS. ■2(J1 I. Generallv. 1 . Limitation governed by tlie lex fori. The limitation of actions will always be governetl by the lex fori, unless there is some provision tlierein referring sueli lim- itation to other laws. Fletcher o. Spaul- ding, 9 Minn. 64. 2. Law ill force at time of bringing action, governs. A statute of limitations affects only the remedy, and therefore every case must be governed by the law in force when suit is brought. Cook et al. v. Ken- dall et al, 13 Minn. 32J. 3. Statute may run against one joint debtor only. Judgment is recoverable against one or more on a joint contract, al- though the statute of limitations has barred the action against the otliers. 2'oicn «. Washlntrii et al, U Minn. 268. II. Retrospective Action of Lim- itation Statutes. 4. Limitation Statutes may operate retrospectively. Statutes of limitations concern the remedy, and are clearly within the power of the Legislature, and.may ap- ply to existing actions, if a reasonable time is allowed to bring an action. Hol- corribe i}. Tracy, 2 Minn. 246. 5. and will unless it cuts off a party entirely. Where tlie plaintiffs claim had run several years, and an act was passed amending tlie statute of limitations. Held, that the iiew limitation thus established was not in addition to the time already elapsed, but as including such period — un- less such a consti'uction would out oif a party entirely, in which case he was to have a reasonable time to bring his action. Ih. III. When the Statute begins to run. a. GeneraUy. 6. In case of a cause of action which arose abroad, onr own Statute alone gov- erns until it Is shown that a foreign Stat- in ute exists. At common law there was no stated or fixed time as to the bringing of actions, and if a State in which a contract is made, had no statute of limitations, then by the lex loci the action might there l)i' commenced at any time. Hence if it does not appear, from a complaint on a cause of action that occurred in another State, tliat a statute of limitations embracing the particular case, exists in tliat State, then the same is actionable here, unless barred by our own statute, and the complaint not demurrable Uoytet al. i\ McNeil, 13 Minn. 390. 7. For injuries to land held by pre- emptor before patent issues. Action for damages occasioned by the erection of de- fendant's mill-dam, where the land injured was at the time of the commencement of the injury held by plaintiff as preeraptoi-, can under the statute. Sec. 17, Chap. 31, G. S., be brought within two years after the patent issues. Dorman v. Ames & Oeorge, 12 Minn. 451. §. Where party was hob -resident when action accrued. The statute of lim- itations does not begin to run in favor of the party charged until he comes within the jurisdiction. Hoyt et al. v. McNeil, 13 Minn. 390. 9. When cause of action depends on a contingency. It seems that where a promise depends on a contingency, a cause of action does not accrue within statute of limitations until the happening of the controlling event. Johnson et aZ. v. Qilfillan, 8 Minn. 395. 10. Against married women. A mar- ried woman is within the express words of Sec. 17, Chap. 66, G. S., as to limitation of actions, and entitled to avail jherself of it. Burhe et ai. v. Beveridge, 15 Minn. 205. H. Where action accrued in another State. When the cause of action accrued, both plaintiff and defendant were residents of Massachusetts, after which defendant removed to Minnesota, more than six years prieJi: to the commencement of action, plaintiff still being a resident of the former State. Held, action baiTed by statute of 9J)-2 LIMITATION OF ACTIONS. liaiitations, Sec. 6, p. 532, Comp. St.; Sec. 39, Cliap. 72, p. 029, Comp. St., not i-emov- ing the effect of the statute. Fletcher v. Spauldiiig, 9 Minn. 64. 12. Surety bound by payment of inter- est on part of debtor within six years- from maturity of bond, and within six years from bringing suit, though without sure- ties liiiowledg'e. A bond for the payment of money had been due more than six years prior to the commencement of the ac- tion. The " principal dobtoi'" liad paid in- terest on the same before the bond was barred by the statute of limitations, and within six years prior to the commence- ment of the action; this payment of inter- est being made without the procurement, knowledge, or consent of tlie sureties. Held, Under Sec. 6 and 24, Chap. 60, Comp. St., a right of action against tlie sureties survived for six years from the last payment of inter- est made prior to the expiration of six years from the due date of the bond. Distin- guishing this from the effect of a payment by one joint obligor after the debt has be- come barred, as to which no opinion is given. Whitacre v. Rice & Becker, 9 Minn. 13. 13. Abgenee from State. In 1S56, A. sold land to B., taking in part payment an assignment of certain land warrants from B. A. discovered in 1861 tliat the prior as- signments on said warrants were forged, and in 1S63 til at his title to the other warrants was defective on like grounds. In Novem- ber, 1858, B. departed from the State to Europe, his wife, to whom the land liad been conveyed in the mean time, left in August, 1802. That neither B., nor his wife, returned to the State until October, 1868, and during the interval, both were non-residents. Held, this action to enforce an eijuitable lien for the purchase money for which the warrants were taken, was not barred by the statute of limitations, in October, 186S. Duke v. Balme et al., 16 Minn. 306. 14. Effect of general statutes. Jiwlg- ment was recovered in Dec, 1857. Payment made in Aug., 1865. Action commenced Dec, 1869, on said judgment. Held, Chap. 00, Sec.24, Comp. St., wliioli.provides that a payment of principal or interest upon an ex- isting contract * * » if " made after the same becomes due, the limitation sliall commence from the time the last payment was made," which, in the G. S. of 1800, was supplanted by the provision reciuiring a writing signed by the pai'ty to be charged to take a cause of action out of the statute, providing "this section shall not alter the effect of any pay- ment of principal or interest." Sec. 21, Chap. 66, G. S., does not apply to this ac- tion; for the saving clause in Sec. -4, Chap. 121, G. S., which provides that the repeal of said statute "siiall not aflect any right aoci'uing, accrued or established when the said General Stat\ites tooli effect," does not prevent the legislature from changing the limitation law. Brisbin v. Farmer, 16 Minn. 215. 6. Ill particular cases. 15. On a guaranty. Defendants sold to plaintiff's assignor certain.land warrants, guaranteeing tliem to be "in all respects genuine and receivable at the General Land Office." The warrants and guarantee were assigned to plaintiff. The warrants were not presented to the Commissioner for in- spection in the regular course of entry, un- [il sufficient time had elapsed from the as- signment to set the statute of limitations in motion. The question being, w^ien did the cause of action on the guarantee accrue ? Held, it accrued when the warrants were rejected by the Commissioner, and not when assigned, althougli the defect existed tlien. Johnson et al. v. GiljUlan, 8 Minn. 395. l. Lambert, 10 Minn. 369. IV. When Mandamus will not Issue. 6. To compel an unlawful act. A writ of mandamus will not lie to compel an officer to do an act, which, without its com- mands, it would not be' lawful for him to do. C'larh v. Buchanan et al., 2 Minn. 347. 7. Register of deerts. Mandamus lies against Register of Deeds, to compel him to deliver "all the books, records, and accounts of the board of supervisors," to said board, when they need them in the performance of their duties. Board of Su- pervisors, Ramsey Co., v. lleenan, 2 Minn. 341. §. The Governor of the State— rail- road bonds. This court will not compel the Governor of the State, hy peremptory mandamus, to deliver to the railroad com- panies the Minnesota State E,. E.. Bonds contemplated by the 10th Amendment to Art. IX., State Constitution. It is a duty devolving upon him as Chief Executive, and properly pertaining to his office, in the exercise of which he is independent of the judiciary. But where some official act, not necessarily pertaining to the duties of the Chief Executive of the State, which might be performed as well by one officer as an- other, is refused to be done, and directed by law to be done, and a person shows himself entitled to performance, and no other remedy, mandamus will issue to the Governor as well as any other pei'son. Ohamberlain v. Sibley, 4 Minn. 309. 9. Opening a road by county commis- sioners. On direct application to the Su- preme Court to compel the county commis- sioners of Hennepin County to open a road established by the Legislature, it ap- pearing that from the terms of the act the establishment of the road was not com- plete until the filing of the plat and field notes of the sui-vey, and such filing being contested by the defendants' counter affi- davits, the writ of mandamus was refused — because it did not appear, so long as that issue was undetermined, that the defend- ants could give no valid excuse for not performing. Warner v. Commissioners of Hennepin Co., 9 Minn. 139. 10. Right to office. It seems that man- damus does not lie to try and finally deter- mine the title to an office, except perhaps where the law has furnished no other means of doing so. Atherton v. Sherwood, 1.5 Minn. 221. 11. Adequate remedy at law. Man- MANDAMUS. 209 damns will not lie if tiie party lias an ade- quate remedy at law. Baker v. Marshall et al.. 15 Minn. 177. 12. Bridge stock. Mandamus will not lie to compel the issue of bridge stock; the law regards tliem as a subject of pecuni- ary value, and capable of being fully com- pensated for in damages at law. lb. 13. Where two persons claimed to own certain bridge stoclv, which the com- pany had issued to one, in good' faith, un- der color of title, the other could not com- pel the company by mandamus to issue stock to him, for he has a remedy at law, and the cluestion of ownership between the adverse claimants cannot thus be deter- mined. 16. V. The Practice. a. Questions that may and may not lie raised. 14. Eligibility to office will not be in- quired into. Where the relator shows himself to hold the certificate of election, and that he has duly qualifled, he is enti- tled thereupon to the office, and the court will not go behind the certificate and in- quire whether he was eligible to the office before issuing a writ of mandamus. Ath- erton v. Sherwood, 15 Minn. 221. 15. To go behind the certificate of election and determine the correctness of the canvass by the board of canvassers, in- volves the right of the claimant to the of- fice, which cannot be done on mandamus — following Alherton a. Sherwood, 15 Minn. 231. State ex rel. Biggs v. Churddll, 15 Minn. 455. J. Trial of issues of fact. 16. Issue of fact cannot be tried by court or jury. The Supreme Court has authority to issue the writ of mandamus under Sec. 3, Art. 6, Constitution, and Sec. 4, Comp. St., p. 475, although the right to try an issue of fact, or to order the trial of such issue by a jury in such proceedings, is taken away by Chap. 18, p. 71, Laws of 1862, in accordance witli the provision of the Constitution aforesaid, as expounded in Harkins v. Board of Supervisors of Scott Co., 2 Minn. 343. GroweU v. Lambert, 10 Minn. 369.* 17. tried by referee. Proceedings on mandamus are not within the provisions of the Constitution relative to trial by jury, and where no issue of fact was raised, the court appointed a referee to try it. Athcr- ton v. Sherwood, 15 Minn. 221. c. Moving papers. 1§. A peremptory writ of mandamus only issues in the first instance, where the moving papers preclude the possibility of any valid excuse being consistent with the facts therein contained. Harkins v. Super- ■ pervisors of Scott Go., 2 Minn. 343; Harkins «. Seneerbox, 2 Minn. 345. 19. Existence of defendant, corpora- tion, etc., must appear. In an applica- tion for a peremptory writ of mandamus, it is essential to show, if an inferior tribu- nal, corporation or board, that such board exists, and that it is in their power and their duty to do the act required. Clark ■». Buchanan et al., 2 Minn. 347. 20. Requisite of affidavit. The affi- davit on which plaintiff moved for a per- emptory writ of mandamus stated that plaintifi' was elected at such a time to fill a vacancy in office of Register of Deeds, that he gave an official bond, with good and sufficient sureties, and presented it fo supervisors for their action, and that they refused to receive or consider its sufficiency. Rdd, insufficient, in not stating the board knew, or had means of knowing or ascer- taining, the sureties or principal to the bond, or the genuineness of the signatures to, and pecuniary qualification of sureties. Harkins v. Board of Superoisors, Scott Co., 2 Minn. 343. d. Notice of application for tlie writ. 21. Peremptory writ, requires notice. By a rule of the Supreme Court, in all cases of an application for a peremptor)' 210 MASTER AND SERVANT. writ of mandamus, either to the court in banc, or either of the Justices at chambers, notice of application must be served on de- fendant a reasonable time before the hear- ing. Harkins v. Board of Supe: visors, Scott Go., 2 Minn. 342. 22. Order to show cause, proper pro- ceeding. As a general rule, subject to very few exceptions, if the peremptory writ of mandamus is to be applied for in the first instance, it should be upon notice, and if the circumstances call for great dis- patch, there will be few cases in which this cannot be attained under an order to show cause. The Home Ins. Go. v. Scheffer, 12 Minn. 382. MARRIED WOMAN. (See Equity.) (See Specific Performance, 17.) (See Husband and "Wife.) (See Limitation of Actions, 10.) (See Pleadings, 45, 46, 47.'' MASTER AND SERVANT. I. Master's Liability. a. For injuries to servant, caused by mastefs negligence. b. Injuries caused by negligence of servants. c. Injuries sustained by servant, from fellow servant. Who are Servants. XL I. Master's Liability. a. Injuries to servant, caused by master's negligence. 1. No matter if co-servants contribute to the injury. "Where a servant (plaintiff) is injured by the explosion of the boiler of his master's vessel, it is not material how many others (servants) may have been in fault, if the master's acts or negligence were such efficient cause, without any fault on the part of the plaintiff, the master is liable. McMahon v. Davidson, impl., etc., 2 Minn. 357. 6. Injuries caused by negligence, etc., of servants. 2. D. and B. jointly interested as mas- ters, both liable. If D. and R. jointly owned and jointly navigated a boat when she was blown up by the unlawful or neg- ligent act of the engineer, acting in the course of his employment, they are jointly and severally liable, in an action of tort, for injuries resulting to plaintiff. Fay v. Davidson, 13 Minn. 523. 3. In an action for injuries occasioned by the bursting of a boiler from the alleged unskillfulness of the engineer, servant of defendant. Held, if the injury was occa- sioned by the wrongful acts or negligence of any person acting for defendant, such acts and negligence are in law the acts and negligence of defendant. If occasioned by the wrongful acts or negligence of any one who was acting for some other person associated with defendant as partner or otherwise, in an action of tort, such acts and negligence are in law the acts and negligence of defendant and that person, jointly and severally liable. lb. 4. For the wrongful act or negli- gence of an engineer, whereby plaintiff was injured, it is not necessary that de- fendant should be the owner in whole or in part, or that the boat be registered in his name, in accordance with the facts. If the boat was navigated by him or for him, the wrongful acts or negligence of her employes, acting in the course of their employment, would in contemplation of law be his acts or negligence, for which he would be responsible. The arrangement between defendant and another might be such that the other had sole authority to hire, control and discharge such employfes, and to manage the boat, still if this was done /or defendant, he would be liable. lb. MASTER AND SERVANT. 211 5. Not liable for wilful wrong of ser- Taiit. A master is not liable for a wrong wilfully committed by his servants, and not sanctioned or authorized by him ; but this rule does not exempt the master from liability for mischief arising from the neg- ligence and unskillfulness of his servant, who had no purpose but the execution of his master's orders. McMahon v. David- son, impl., etc., 12 Minn. 357. 6. Temporary business connection does not make servants of the servants of an- other corporation. Two corporations had an arrangement by which each took up the mails and passengers at a common ter- minus, and transported them through to tlie end of their routes respectively, thus making their two lines, for purposes of business, one route; each selling tickets for the whole distance over the routes of both, and dividing the receipts between them pro^ortionably. Held, as to their eroployte, they did not constitute one master, so as to relieve from liability one of said corporations for injuries committed by its servants, on the servant of the other. CarroU v. The Miss. Valley B. M. Co., 13 Minn. 30. c. Injuries sustained by servant from a fel- low servant. 7. When master is free from fanlt. A master guilty of no personal negligence or misconduct, is not responsible to his ser- vant for injuries resulting to the latter from the negligence, carelessness or mis- conduct of a fellow servant engaged in the same general business. Foster v. The Miib- nesota Central BaUway Co., 14 Minn. 360. 8. Who are "fellow servants." When the servant injured and the servant caus- ing the injury are employed in separate and distinct departments of a general busi- ness, they are "fellow servants," within the rule which holds the master not liable. lb. 9. in same general business. Plain- tiff, while engaged in the defendant's em- ployment as "section man," in repairing the road, was injured, by the negligence and carelessness of another of defendant's servants, in piling wood upon the "ten- der" of a train he was engaged in run- ning, whereby the wood thrown from the "tender" struck plaintiff. Held, plain- tiff and defendant's other servant were in the employment of the same master, un- der same general control, promoting same general object, and thereby in the same general business, witiiin the rule which exempts the defendant from liability. lb. 10. Fanlt in selecting or retaining servant causing injury, etc. A servant who is injured by the negligence or mis- conduct of a fellow servant, while both are aiding in the common business of the same master, cannot maintain an action for such injury against a master not chargeable with any personal negligence or wrong — as a general rule; but if there is any fault in the selection, or retaining of other ser- vants, or in employing unsafe machinery, the master will be answerable for all in- "jury to his servants in consequence. And it would seem that the master is liable where the injury is caused in part by liis negligence, and without the fault of the party injured. McMalwn v. Davidson, impl. , etc., 12 Minn. S.iT. 11. Where an owner of a vessel em- ployed as engineer of the same, one D., who was not a licensed engineer, and was unskilled, and unqualified to discharge the duties of engineer, and through negli- gence and unskillfulness of said engineer the boiler of the boat exploded, injuring another servant, the master was held liable for the injury. lb. II. Who are Servants. 12. Ferry on line of stage route is servant of the stage company. Where defendants were a stage company, and common carriers of passengers from L. to S., and plaintiff's intestate was a passen- ger, having paid the usual fare between said points, and in crossing a ferry which was on and constituted part of the route taken by defendants in this instance, be- tween these termini, said intestate was 212 MASTER AND SERVANT— MECHANIC'S LIEN. drowned by the uncoupling- of the coach, the defendants not owning the ferry, but paying their ferriage, and the coach in fact passed over the feri-y. The contract between defendant and passenger is for the eiitii-e route from L. to S., no notice to passenger of tlie intervention of any other carrier than defendant, the contract clearly embracing the entire distance between tlie termini, another route existing whicli might have been talcen by defendants, and the ferry thus avoided. Held, under these facts as to passenger, the ferry company are the employes and agents of the de- fendants, and the latter arc responsible for the acts of their employes oi- agents. McLean V. Bwbank, 11 Minn. 27?. 13. Vi'liere D. and R. were interested in running a boat. It appearing from the evidence, that the defendant was interested with R. in running the boat, and that they together received the earnings, it will be presumed — there being no evidence to the contrary — that those employed in manag- ing the boat, were the servants of both, and that K., in employing them, acted by the authority, express or implied, of de- fendant. McMaJton v. Davidson, impl., etc., 12 Minn. 357. 14. Deck hands on boats, not engaged in "same general business," are not fellow servants, though the boats are owned by same persons. Where plaintiff, a deck hand on the steamboat "Albany," had been injured by the explosion of the boiler of the steamboat "John Enmsey," even supposing that the owner of the "Albany" was a joint owner of the " .John Kumsey," and pooled the profits of the "Albany" with the profits of the " .John Bumsey," in such way as to make him' a partner in the aggregate profits with the other joint owner of the "Rumsey," still the rule that the master is not liable to one of lii.? ser- vants for injuries sustained by him through the negligence, etc., of a fellow servant engaged in the same general business, does not apply, for the boats were not engaged in the "same general business," but each boat did a separate business in every re- spect — tliough for tlie joint profit of their owners. Gonnolly v. Davidson ct a?., 1.5 Minn. 519. 1 5. Where tlie relation between the ser- vant injured, and the servant causing the injuiy, is that of superior find subordinate. Query, is the master liable? Foster v. I'ke Minnesota Genti;al Railway Co., 14 Minn. 360. MECHANIC'S LIEN. I. Gknekai,ly. II. Who May Acquiue a Lien. III. Persons and Phoperty Bocnd HY A Lien. I\'. When tpib Lien Attaches. V. Filing the Notice of Lien. VI. The Notice op Lien. VII. Assignment op the Lien. VIII. Fobpeitube of the Lien. IX. Giving Promissory Note, Ef- fect OF. X. Sub-contractok's Rights. XL Repeal of Lien Statutes, Ef- fect OF. (See HrsBAND and Wife, 12.) I. Generally. 1. Where a lien attached to land held under a school land certificate, it cannot be divested by the land subsequently becom- ing a homestead. Tuitle ■». Howe et al., 14 Minn. 145. II. Who May Acquire a Lien. 2. Sub-contractor cannot have lien. Under the law of Aug. 12, 1858,, (Comp. St., p. 696,) which gives a lien to the person performing the labor or furnishing the ma- terials "by virtue of a contract with the owner or agent thereof," a party furnishing the material to the contractor has no lien on the premises. I'he Toledo Novelty Works V. Bernheimer, 8 Minn. 118. 3. An architect has a Hen on a building for his sei'vices in drawing the "plans, MECHANIC'S LIEJS". 213 speciflcations, aucl superintending the building thereof," under See. 1, Chap. 9C, G. S., — Wilson, C. J., cUsaentinrj. Knight V. Norris et dl., 13 Minn. 473. III. Persons and Property Bound BY A Lien. 4. Purchaser in grood faith without no- tice bound. A material man's lien attach- es as against a person who, in good faith and without notice, purchases the premises subsequently to the erection of the build- ing in which the materials are used, and prior to the filing and recording of the ac- count. Ch. 90, G. S. Oorjel et al. v. Mickow et al., 11 Minn. 475. 5. Building bound for worlc on appur- tenances. Under Sec. 1, Comp, St. p. 696, (act of Aug. 13, 18.58,) the lien attaches to a building, though the land on which it stands is not owned by the debtor, and where the work is performed on an appui'- tenance, the principal building and appur- tenance are both subject to the lien — though the labor be wholly on the appurtenance — so that work performed on a building on one side of a street, which is used as ap- purtenant to a hotel on the opposite side the street will authorize the filing a lien on the hotel, and where work was done on each, it is unnecessary to specify the work or value thereof done on each separately, but the value may be stated in the aggre- gate, and a lien be enforced for the amount. Carpenter and wife v. Leonard, 5 Minn. 15.5; Oarpenter and wife v. Wilverschied, 5 Minn. 170. 6. Separate estate of feme covert bound. Where the law gives a lien for im- provements made upon the real estate of an unmarried woman, it gives it equally against the separate estate of a feme covert —the consent of tlie husband to the wife's improvements in this case being shown. Tuttle V. Hoioe et al., 14 Minn. 145. IV. When the Lien Attaches. 7. Work, labor, or material must flrst be on the premises. Work and labor ex- ]Dended upon, or materials furnished for a building, cannot operate as a lien, unless such building or such materials are upon the premises upon which it is sought to make the lien attach. Farmers Bank v. Winsloto, 3 Minn. 86. 8. Under the lien law of 1855, (p. 58, Sec. 9,) which gives mechanics, etc., alien which takes precedence of any other lien "which originated subsequent to the laying of the stock, or to the commencement of such building," the lien of one who per- forms " work, labor, and services, from Aug 1, 1857, up to and until the last o'f Sep- tember, 1857, in the erection and construc- tion of a building," does not take prece- dence of a mortgage lien, recorded on the 4th of Sept., 1857. To give it such prece- dence it must appear that the material, in whole or in part, or the labor was com- menced upon the mortgaged premises before the record of the mortgage. 76. 9. Under the lien law of 1855, (S. L. 1855, p. .58, Sec. 9,) no lien can in any case attach until the " laying of the stock," which means the beginning of the work by placing the material for the structure on or adjacent to the land upon which it is to be erected. Knox et al. v. Starks et al., 4 Minn. 20. 10. from commencement of such fur- nishing. Where plaintiff furnished materi- als for a building, and after the commence- ment of, but before the completion of the delivery thereof, defendants took a mort- gage on tlie building. Held, the fact that some portion of the materials were furnish- ed and used in the building after the execution of the mortgage, is unimportant, since by Sec. 7, Chap. 90, G. S., the same becomes a lien from the commencement of such furnishing, on the filing of the requir- ed account. Milner et al. v. Norris et al., 13 Minn. 455. V. Filing the Notice of Lien. JI. In what office. W. had performed certain work on property, which gave' him a lien, under the law then in force, prior to a mortgage on the same property held by 214 MECHANIC'S LIEN. B. W. failed to comply with the lieu law, and it was repealed. Afterwards a new lien law was passed, giving lien for labor, etc., performed prior to its passage, provid- ed a sworn account of the work, etc., was filed in the office of Register of Deeds, and all liens, the right to whicli accrued under tliis act, should be prosecuted according to its provision, (act Aug. 12, 1858, Comp. St., p. 696.) W. filed the statement under the last act with the Olerk of District Court. Held, filed in the wrong office, as the right to a lien accrued under the act requiring statement to be filed with the Eegister of Deeds, and B.'s mortgage was not affected by it. WilUm v. Bernlieimer, 5 Minn. 288. 12. Time of filing the notice. Where the building was nearly completed, plain- tiff''s plans and specifications wholly com- pleted, the progress of the work was stop- ped for several months without plaintiff^'s fault, and during that suspension he filed his lien on the building. Sdd, the amount of his claim being computed with reference to the cost of the building, exclu- sive of what remained to be done upon it at the time when the lien claim was filed, and no particular price being agreed upon, the plaintiff was justified in tiling his lien when he did, and claiming the val- ue of the services rendered by him up to that time, following the contract as far as he was able. The postponement of the work without his fault cannot effect him. Knight i>. JVbrris et al., 13 Minn. 473. VI. The Notice of Lien. 13. Description mnst sliow tlie qnan- tity of the land. The description of the land, in proceedings to enforce a lien, as "Block No. 11, In town of Cannon City, according to the recorded plat thereof," without stating that it did not exceed forty acres, or that it was a village lot not ex- ceeding one acre, is insufficient. Knoxet al. V. Stark et al., i Minn. 20. 14. Particnlarity of description. A lien claim described the labor performed as " plans, specifications, and superintending of the building." describing and locating the building, and time of the performance of the labor, and price designated. Sdd, sufficiently specific as to the items of la- bor. Knight v. Morris et al., 13 Minn. 473. 15. May describe tlie property by metes and bounds, witlioat consnltin^ owner. Where a lien was given by stat- ute " upon the building, and upon the right, title, and interest of the owner of the building, in and to the land upon which the same is situated, not exceeding in ex- tent an acre ;" on filing the lien the lienor may designate by metes and bounds the acre upon which he claims a lien, without j consulting the owner, and he must desig- nate the particular acre of land. Tuttle v. Howe et al., 14 Minn. 145. VII. ASSIGMNENT OF THE LlEN. 16. Lien may be assigned. A lien may be assigned, though in strict subordination to the right of the original holder — a sale of the property instead of the lien is tortius, and forfeits the lien — except according to the statutes. Goit v. WapUs <& Zerkle, 1 Minn 134. 17. The lieu provided by statute is assignable together with the claim, and the assignee may enforce the same in his own name. Tattle v. Howe et al., 14 Minn. 145. VIII. Forfeiture of the Lien. 1§. Sale of property, forfeiture. A lien is a personal piivilege of the holder, and where he sells the property otherwise than according to the statute, he forfieits his right, and it is wholly gone, and suoli lieu can not longer be set up against the owner of the general title. Coit v. WapUs et al., 1 Minn. 134. IX. Giving Pr6missory Note, Ef- fect of on Lien. 19. The delivery of a note for materials furnished for a building, does not destroy the lien which the person furnishing the MECHANIC'S LIEN— MERGER. 215 materials would have had, had the note not been given, provided the note is held by the person furnishing the materials. Mil- wain V. Sanford, 3 Minn. 147. X. Sub-contractor's Rights. 20. No remedy ag'ainst owner in first place. Under Sec. 1.5, of the lien law of 1855, p. 59, the remedy of a party who fur- nishes material to a contractor to build a house is by action against such contractor, and then by scire facias against the owner, and not against the owner in the first in- stance. Emmet et al. v. Botary Mill Co., 2 Minn. 290. 21. Under the lien law of 1855, p. 59, Sec. 10, a sub-contractor to reach the building, must first get judgment against his employer (contractor), and then sue out a scire facias against the owner. Lewis et al. V. WiSiams et al., 3 Minn. 151. 22. except in certain cases. Under the lien law of Aug. 13, 1858, (Comp. St., p. 696,) no personal action lies against the owner of property in favor of a sub-con- tractor, unless it is shown that the owner owes the contractor at the time plaintiff served notice upon him, or that an amount subsequently became due. The Toledo Nov- elty Works V. Berriheimer, 8 Minn. 118. XI. Repeal of Lien Statutes, Effect of. 23. Destroys all liens not perfected. The repeal of the lien law of 1855 destroy- ed, without reservation, all liens which had not been fully perfected, it being a purely statutory right which does not enter into the contract, and can be taken away any time before it is perfected. Bailey & Gil- man V. Mason & Craig, 4 Minn. 546. 24. Bepealiug a«t, without a saving clause, takes away all liens. T. com- menced labor on the premises, under a law allowing a lien from time of commencing labor on the premises. The owners next gave B. a mortgage on the same property. An act was then passed repealing the form- er lien law, and providing that liens existing at date of its passage '"shall be a lien, etc., and take precedence of any other incum- brance oi-iginatingsubsequent to commence- ment of snch Services, or furnishing of ma- terials," without any saving clause, after passage of this act, another lien law was passed, saving all liens existing under former acts. After all these changes T. filed his lien. Held, the second act containing no saving clause, did away with all liens on the premises except the mortgage ; that the clause above quoted from the second lien act gave existing liens precedence OT'er incumbrances originating subsequent to its passage,a,nA did not reinstate T.'s right to take precedence of B.'s mort- gage, and the saving clause in the last act only reached liens filed under the second act.— See Comp. St., p. 694r-6 and 400. Dura- wdl et al. V. Bidwell, 8 Minn. 34. MEEKER COUNTY. 1. Tlie amount of tax it can levy. The Commissioners of Meeker County could legally levy a tax of four mills on the dol- lar under Sec. 2, Chap. 6, Laws 1861. Pi- per V. Branliam, 14 Minn. 548. MERGER. 1. At law where the superior and in- ferior estates meet in the same person, they always merge; in equity, the question of merger will be governed by the intention of the party at the time, or if by operation of law such estates meet, the circumstances will determine whether there is a merger or not. Wilson — against the land in MORTGAGES. 319 the hands of his grantee. Baker v. Terrell et al., 8 Minn. 195. 10. After conveyance with covenants ag'ainst Incumbi'ances may have mort- g'age cancelled. Plaintiffs (mortgagoisj brought this action to cancel the mortgage, and the sheriff's conveyance on/oreclosure thereof, on the ground tliat it was never executed. After action was commenced, plaintiffs sold the land to S. by warranty deed. S. before the redemption period ex- pired, redeemed the land from the mort- gage out of the purchase money due plain- tiff. Plaintiffs asli for an injunction re- straining tlie sheriff from paying over the said redemption money to tlie mortgagee^ defendants. Held, plaintiffs had nothing to do witli this redemption money — if the mortgage was void, S. would still be liable to them, and have his remedy over against the mortgagee. And an injunction will not be gi-anted against a person not a party to the suit. Plaintiffs have a right, how- ever, to test the validity of the mortgage, although they have conveyed their estate since it was with covenants against incum- brances. Ohamblin and wife «. SUehter et al, 12 Minn. 276. IV. Assignee of Mortgagok. 11. Bight to possession after foreclos- nre. Under the act of March 10, 1860— Session Laws, 1860, p. 375 — an assignee of a moi-tgagor is entitled to remain in pos- session of the mortgaged premises one year after foreclosure, at any event. Freeborn V. PetUbone, 5 Minn. 277. 12. Vendee of pareel— order of liabil- ity. If the owner of mortgaged lands sells portions of them to third parties, re- taining part of them himself, the portion so remaining in the mortgagor is primarily liable for the debt secured by the mort- gage, and the portions sold are liable in the inverse order of their alienation. JoJiv^ son «. Williams et al., i Minn. 260. 13. P. mortgaged to plaintiffs, then mortgaged the same property, together with other, to H., then assigned the first mortgaged propertj- to E. Held, that E. was entitled to insist that H. make the amount due her out of property not cov- ei-ed by the first mortgage so far as she could, and if she redeemed from plaintiffs' mortgage without foreclosing her own, E. was entitled to be subi'Ogated to her rights in her mortgage, on satisfying the amount due by the terms thereof. Whittacre et al. V. Fuller et al., 5 Minn. 508. V. The Mortgagee. a. Generally. 14. Lien for taxes. Taxes paid out by a mortgagee on property covered by the mortgage, became a prior lien in his favor upon the premises for that amount and in- terest, lb. 15. Repairs. A mortgagee will be al- lowed for all necessary repairs on the tene- ments of which he is in possession. Lash V. Lambert et al., 15 Minn. 416. 16. When confined to the mortgage. Where a party takes a mortgage on land to secure a debt or other liability, without a covenant to pay, and takes' no bond or other separate instrument to secure such payment, he is confined to the land men- tioned in the mortgage, and cannot^sue on a verbal promise— under Sec. 6, p. 398, Chap. 35, Comp. St. Van Brunt v. Mis- mer, 8 Minn. 232. 17. Right to enjoin waste— cutting pine trees. A mortgagor, prior to fore- closure, may sell and convey the land sub- ject to the mortgage, and sell and convey anything which, though part of the realty, is capable of being made personalty by severance, subject to the right of the mort- gagee to keep bis security good. And where pine trees were converted into logs, and thus made personal property, the mortgagee had power to prevent their re- moval, or to follow them if removed, had it been necessary to preserve his security. Berthold v. Holman et al., 12 Minn. 235. 18. Bona fide improvements of mort- gagee in possession. Where a mortgagee in possession after foreclosure, and expira- 220 MORTGAGES. tion of the. period of redemption, maizes improvements in good faith, and in belief that he has title, and the mortgagor, with knowledge of the making of the improve- ments, delayed bringing his action to re- cover the premises by reason of a defect in the foreclosure proceedings which might have 'been overloolced by a prudent and cautious man, (omission from the records of the granting clause in the mortgage.) Held, the mortgagor was bound to pay the mortgagee for his improvements. Bacon v. Cotrdl, 13 Minn. 194. Tj. Right to possession and timber. 19. Lawful possession after default. A mortgagee in possession of mortgaged premises, lawfully acquired after condi- tion broken, cannot be dispossessed by an action of ejectment on behalf of the mort- gagor. Faoe V. Ohadderdon, 4 Minn. 499. 2©. IJefoi-e foreclosure. The owner of a mortgage of real estate, before fore- closure, is not entitled to the possession of the land, or the timber growing thereon, or cut thereon, after default in payment of the mortgage. Adanis v. Carriston, 7 Minn. 456. 21. It is settled in this State, that or- dinarily the owner of n mortgage of real estate is not entitled, before foreclosure, to the possession of the lands mortgaged, or of the timber growing or lying thereon. Berthold v. Fox et al., 13 Minn. 501. 22. Logs cut before foreclosure. Where the mortgagor has, prior to fore- closure, severed pine trees standing on the land at the date of the mortgage, and con- verted them into logs, and the mortgagee on foreclosure purchased the mortgaged' premises for the full amount then due on tlie mortgage, he thereby takes tlie land in full satisfaction of his debt, and has no claim to the logs cut before the foreclosure sale. Berthold v. Eobifan et (d., 12 Minn. 235. c. Mortgagee's interest. 23. No conveyable estate prior to en- try and foreclosure after default. A conveyance by a mortgagee, not in posses- sion, after default, and before foreclosure, passes no estate or interest, unless it was intended to operate as an assignment of the mortgage, and transfer of the mortgage debt, and such intention is made to appear. Greiie v. Coffin, 14 Minn. 345 ; Everest v. Ferris, 16 Minu. 26. 24. warranty deed. A mortgagee, out of possession, and before condition broken, conveyed the mortgaged premises by wari-anty deed, his grantee taking un- der the supposition that he was the owner, — a forged deed fi-om the mortgagor to the mortgagee having been phiced on record. Held, the facts show no intention to assign, the mortgage debt, and when sucli inten- tion does not appear, a conveyance of the premises by the mortgagee is wholly inop- erative, since he has no conveyable interest until after foreclosure or entry for condi- tion broken — following Hill v. Edwards, 11 Minn. 22. Qale v. Battin and Wife, 12 Minn. 287. 25. E. mortgaged land to B., to se- cure a debt, by means of a conveyance in fee and defeasance back in shape of a bond for a deed, both of which were duly re- corded. After default, B. executed a wai- ranty deed of the property to plaintiff, who seeks to cancel the bond for a deed, by reason of E.'s default. The complaint alleged no entry after condition broken, nor any transfer to plaintiif of the morf> gage debt. Held, B. being only a moi'tga- gee, and not having foreclosed or entered after condition broken, had no conveyable interest in the mortgaged premises, and plaintiff, by his warranty deed, took noth- ing — there being nothing to show an as- signment of the mortgage or mortgage debt. Hill ei al. v. Edwards, 11 Minn. 22. 26. A warranty deed of mortgaged. premises by a mortgagee out of i^ossession, before foreclosure, which shows no inten- tion to assign the mortgage debt, conveys nothing. lb. Qale v. Battin and Wife, 12 Minn. 287. 27. quit-claim deed. B. held a note made by L., and a mortgage on real estate MORTGAGES. 221 as security. Before defiinlt, B. quit^claiined to B. and G., retaining both the note and mortgage. Held, nothing appearing to show that B. intended to transfer the in- debtedness or assign the mortgage, the quit-claim deed conveyed nothing. John- son V. Leiois et al., 13 Minn. 364. 28. -A quit-claim deed from a raort> gagee, of the mortgaged premises, before default, unaccompanied with the note or mortgage, conveys^nothing. lb. d. Rights of Tnortgagees among themselves. 1. Bights of senior mortgagee against junior incumbrancer. 29. Penalty collected by senior mort- grag'ee. A. mortgaged land to B. on the 3d of November, and on the next day exe- cuted another mortgage to C. The latter mortgage was first recorded. 0. foreclosed his mortgage, and (without objection of the mortgagor) bid in the premises for the principal and penalty (stipulated to be paid), as interest after due at rate of 3)^ per cent, per month. B. seeks in this action to recover the penalty thus collected by C. in excess of the principal sum due, and law- ful damages — on the ground (among oth- ers) that as to this excess C. is not a pur- chaser in good faith. Held, C. jjurchased in good faith, (there being no averment to the contraiy,) and by being allowed to collect the penalty without objection, was entitled to keep it — -following Wliitney v. Bidwell, 4 Minn. 76. Potter v. Marvin et al., 4 Minn. 525. 30. Voluntary payments, by mortga- gor, of penalty. The senior mortgage se- cured a note drawing interest at 5 per cent, per month, after due, until paid. The mortgagor voluntarily paid large sums to the mortgagee, after the note became due, in reduction of the 5 p^r cent, per month interest accruing after maturity of note. A junior mortgagee, who took his lien with notice of the terms of the note se- cured by the first moitgage, seeks to have tlie money so paid applied hi paying the damages which accrued after maturity, at rate of legal interest, (7 per cent, jser an- num,) and the balance in reduction of the principal. Held, having taken with notice, (see "Wliitacre et al. v. Fuller et al, 5 Minn. 508,) and it not appearing that the land was insuflicient to jDay the junior incum- brance, after full discharge of the first, no equities arose to entitle the plaintiii to the relief asked. Query, whetlier plaintiff would be entitled to such relief against payments of thafr cliaracter. where tire land was rendered inadequate to meet all its obligations, by the augmentation of tlie first, in applying payments to the reduc- tion of the interest, as above, where the debtor was under a personal obligation to pay the debt secured by the junior lien, and was solvent, and able to respond after a sale of the land ? Mills et al. v. Kellogg et al., 7 Minn. 469. 31. The mortgagee may apply collat- eral security to meet interest, though not mentioned in the mortgage. F. made his promissory note for |1,000, interest -at 3 per cent, per month, in favor of B., and to secure the same, executed a first mort- gage to E., conditioned on payment of the note making no reference to the interest, and also transferred, as a further security for the note mentioned in the mortgage, a note made by one B. This last note was put into judgment, and, in such shape, held by E. as collateral, on which he col- lected, by execution, $1,300, and after- wards foreclosed this mortgage for the bal- ance due on the principal of F.'s note and interest at 3 per cent. Plaintiff— junior mortgagee— claims that the record of the first mortgage making no reference to in- terest, entitles him to have the $1,200 ap- plied in reduction of the principal alone. Held., as between E. and F., the first mort- gage secured the principal of the $1,000, note and interest thereon, according to the terms thereof, till its maturity, and after- wards at 7 per cent, per annum. That B.'s note having been transferred as secur- ity for the notes mentioned ;in the mortgage, E. might apply the proceeds thereof on such note, whatever that might call for. 222 MORTGAGES. without regard to the mortgage; and nei- ther party having made an application of the $1,200, the law applies the payment — where the indebtedness consists of a prin- cipal and interest — first to satisfy the inter- est. Lash V. Edgerton et al, 13 Minn. 210. 3. Rights of junior incumbrancer against senior mortgagee. 32. Recourse to land sold under senior mortgage— in flrst instance, though he hare other securities. Where the first mortgagee forecloses his mortgage under decree of court, the purchaser at such sale, or his assigns, cannot compel subsequent incumbrancers, who have other securities, to exhaust such securities before resorting to the property purchased by him, for he has the right of the first mortgagee only, that is,, to have the lien of the first mort- gage first satisfied, and subject to such right the junior mortgagee has a right to have his mortgage satisfied out of the same premises ; and under any circumstance would this be so, where the pleadings did not show that the " other securities " were sufficient to satisfy the second mortgage. Rogers v. Holyoke, 14 Minn. 220. 33. Ki^lit to notice of sale. Under the statute (1861) a subsequent incumbran- cer is entitled to no other notice of sale under a prior incumbrance, than the pub- lished notice through the papers. Bennett et al. V. Healey, 6 Minn. 240. 34. Bight to have interest on flrst mortgage after maturity, computed at 7 per cent. The record of a mortgage made no mention of the rate of interest specified in the note which the moi'tgage secured, the note actually being 2)^ per cent, per month. Held, as against subsequent incumbrancers, in tlie absence of ex- press notice, the interest should have been computed at 7 per cent, per annum. Whit- taare et al. ii. ffaller et al., 5 Minn. 508. 35. Senior mortgagee can take only such interest as appears of record. Where the mortgagor had made payments to the first mortgagee as interest, but tlie amount far exceeded the interest due on the note as disclosed by the record of the mortgage. Held, that subsequent incumbrancers wei'e entitled to have the payments applied on the prior mortgage, so as to reduce that lien as it appeared of i-ecord. lb. 36. Right to set aside flrst mortgage sale. W. recovered judgment against D. and C. as principals, and K. and B. as sure- ties, in this State, which was duly docketed Nov. 5, 1858. Execution thereon was re- turned partially satisfied; afterwards, on the 29th June, 1861, an alias execution was issued against certain land of one of the defendants (R.), on which plaintiff (F.) had a mortgage, (which lien was secondary to the judgment) ; the second execution was returned wholly satisfied. Afterwards, without the authority of the judgment creditors, their judgment debt was taken to Wisconsin, and there put in judgment against the defendants, and satisfied (on the 16th August, 1861,) out of lands- he- longing to one of defendants. Plaintift" asks that the sale under the alias execu- tion, of property covered by his mortgage, be set aside, or proceeds transferred to him. Held, even supposing W. had authorized the proceedings in Wisconsin, those were the only acts that could be vacated, for his judgment had been satisfied when that sale took place; not so as to the proceedings in Minnesota. Nor does the plaintiff show facts which authorize equity to so marshal the assets of the judgment debtor as to compel the judgment creditor to satisfy his debt out of property not covered by plaintiff's mortgage, for he does not aver or show that such a course is necessary for the satisfaction of the claims of both par- ties, and he has waited until W. has satis- fied his "claim. Franklin et al. v. Warden et al., 9 Minn. 124. 37. A second mortgagee has the right to move the court upon cause shown to set aside the sale of tlie mortgaged premises under the decree of the" court, in an action of foreclosure by the first mortgagee — the former being a party thereto — for he is en- titled to resort to any excess from the first MORTGAGES. •223 sale to satisfy his lieu, and may in this way protect that interest. Rogers v. Holyoke, 14 Minn. 220. VI. The Mortgagee's Assignee. 38. Payment to mortgagee after as- signment, without actnal ■ notice, extin- guishes the lien. If the mortgagor pays the mortgage (debt) to the mortgagee after it has been assigned, witliout notice of the assignment, the lien is extinguished, and the mortgagee becomes ii trustee of the sum paid, for the benefit of the owner of the debt (assigned). Johnson v. Carpenter, 7 Minn. 176. 39. Assignee takes subject to equities of mortgagor. Where a debt is secured by a negotiable promissory note, and that by a mortgage on real estate, the mortgage is a chose in action as between the mortga- gor and any subsequent assignee, and is fallen subject to the state of accounts be- tween the mortgagor and mortgagee at date of assignment, and to all payments made by the mortgagor to the mortgagee at any time before actual notice. lb. 40. Itecord notice of assignment In- suHicient. A mortgagor may always pay his mortgage debt to the mortgagee, though the mortgage has been assigned, if he pay in good faith, without knowledge of the assignment, and the only way the assignee can fully protect himself against suoli pay- ments is to bring home actual notice to the mortgagor — a simple record of the assign- ment not being sufficient under the statute, Sec. 28, p. 460, Comp. St. lb. 41. Liability for refusing payment. Where a party holding a mortgage as as- signee of the jnortgagee refuses to accept payment and execute a release, the penalty imposed by statute cannot be imposed upon the mortgagee, nor any other than the as- signee, for he is the only one who can com- ply. Galloway v. Litchfield et al., 8 Minn. 188. VII. Validity of Mortgages. a. Generally. 12. The validity or invalidity of a mortgage must be determined by the laws in force at the time of its execution. Olson V. Ndson, 3 Minn. 53. 43. Debt owned by stranger. In the absence of fraud, accident or mistalae in its execution, a mortgage is valid, thougli the debt for which it was given was not owned by the mortgagee. Foster v. Berkey et al., 8 Minn. 351. 44. Witnesses. A mortgage executed in the presence of but one witness is not entitled to record, and ineffectual to pass any interest — following Parret v. Shaub- hut, 5 Minn. 373. Thompson et al. v. Mor- gan, 6 Minn. 292. 45. Solicitor's clause. A stipulation in a mortgage, that in case of foreclosure, the sum of fifty dollars, counsel fees, shall be included in the amount due, is not per se invalid, tliere being at the time of the execution no usury law to circumvent, nor any claim that it was more than the ser- vices were reasonably worth. If the mort- gagor seelis relief from such a stipulation, lie must pursue the same course suggested in the case of a stipulation for greater damages than the law allows for the non- payment of the principal. Oriswold v. Taylor, 8 Minn. ,342. b. Preemplor''s mortgage. (See U. S. Land, II, 11.) (See Contracts, XI. 53.) 46. Mortgage for purchase money borrowed, valid. A. borrowed money of B., with which to pay for a certain piece of United States land, under the preemption law, agreeing to give B. a mortgage on said land after the purchase as security, all of which was done. Hdd, the mortgage was valid under Sec. 13, preemption act of 1841, Sept. 4, in the hands of the mortgagee, ov- erruling McOue V. Smith, 9 Minn., and Woodbury v. Dorman, 15 Minn. McMil- lan, J., dissents. Jones el al. v. Tainter et al., 15 Minn. 512. c. Married woman's mortgage . 47. Husband must sign, though for the purchase money. Under Sec. 105, 334 MOKTGAGES. Comp. St., p. 571, a mortgage on land ex- ecuted by a married woman, without the signature of her husband, as security for the purchase money, is invalid. 8dby v. Stanley, 4 Minu. 65. 48. Sigaing by wife in ignorance of character of tlie instrunient. A mort- gage on a wife's separate property, which she signed without knowing its contents or nature, did not gaclinowledge, is void, and these facts may be shown in contradiction of the certificate of the officer taking the pretended aoknowledgmetit. Arman l\ Fol- som, G Minn. 500. (See HCJSBA.JJD and Wife, 16.) 49. Separate examiaation from Iier husband. Under the statute requiring married women, in executing conveyances, etc., to be examined separate and apart from lier Imsband, and to declare her act to be free and voluntary, a mortgage signed and acknowledged by the wife in the pi-es- ence of lier husband, immediately after she had in another room expressed an un- willingness to sign the same, and had thereupon, in said room, been addressed by her husband in harsh, threatening, and abusive language, is invalid as to the wife, although the notary or mortgagee knew nothing of all those [circumstances, except the husband's presence at the examination of the wife^that presence was coercive. Edgerton et al. v. Jones et al., 10 Minn. ■427. VIII. LiEK OF THE Mortgage. 50. Void foreclosure does not aifect lien. Where a mortgage was illegally foreclosed by advertisement, and the same was set aside at the instance of the mortga- gor, by a court of competent jurisdiction, and the debt remains unpaid, and the mort- gaged property has in no degree been ap- plied to the payment of ' the mortgage debt, the lien of the mortgaged still exists. Folsom et al. i). Lockwood, 6 Minn. 186 51. Removal of building. A. mortga- ged lot 6, with the house thereon, to plain- tiiT, afterwards A. removed the house to lot 7, and then mortgaged both lots to H., who had notice of the facts. Held, A.'s mort- gage still constituted a lien on the building, and after lot 6 was exhausted, A. might re- sort to the building for any unsatisfied bal- ance. Himlin ». Parsons ani wife, 12 Minn. 108. 52. When secondary to judgment. Where a mortgage had been executed on certain premises to secure the payment of a note given to cover accrued illegal interest on a former indebtedness ; and the sum named in the, mortgage being four times greater than said interest, and said mort- gage was not recoi-ded until nine months after its execution and delivery, and nearly three months after the docketing, without notice of defendant's judgment against the mortgagor. Held, the lien of the judgment should be preferred to that of the mort- gage, the plaintiff's equities being no great- er than defendant's, he having taken his mortgage for an antecedent indebtedness, thus not coming within the statute which gave bona fide, purchasers for a valuable consideration, alien prior to a judgment, though the latter was recorded first. Whitt- acre et al. i). Falter et at., 5 Minn. 508. 5^. Lien to secure land warrant fur- nished pre-emptor. A land warrant fur- nished a preemptor with which to purchase his land of the government is purchase money within Sec. 4, Chap. 36, and See. 93. Chap. 61, Comp. St., so as to give prece- dence to the lien of a mortgage executed on said land to secure the repayment of such amount over the wife's dower, or homestead |right. Jones et al. ». Tainter et al. 15 Minn. 512. 54. Lien not affected by probate pro- ceedings. The fact that the mortgagor had died, his estate administered upon, and commissioners appointed to adjust claims, befere foreclosure, and the debt secured by the mortgage was not presented to the com- missioners for allowance, in no way affects the lien of the mortgage, or the right to foreclose, whatever effect it may have upon the liability of the estate to pay the indebt- edness evidenced by the note in a personal action. lb. MORTGAGES, 225 IX. Discharge of Mortgage. 55. An extension of time on a note se- cured by morto;age does not discharge the property from the moits:ij;e lie"i i's ag-aiust subsequent inoumbranoers. Whitlacre et nl. V. Fuller et al., 5 Minn. .50S. 56. Actual payment of the debt. "Where a mortgage is given to secure the payment of money, it is the debt itself that is secured, and not tlie note or other instru- ment by which it may be evidenced. The lien of the mortgage lasts as long as the debt, and nothing but actual payment of the debt, or an express release, vi'ill operate as a discharge of the mortgage. Folsom et al. V. Lockwood, 6 Minn. 186. 57. A tender to one of two joiht mort- gagees, before sale, would be a good pay- ment, and a satisfaction of the mortgage by him would discharge the lien. Practi- cally the same relations would seem to ex- ist between purchasers at a sale, and a par- ty having the right of redemption. Don- nelly/ V. Simonton et al., 7 Minn. 167. 58. Forgiving tlie debt. It seems that any act, even the forgiving a debt by pa- rol, will discharge the mortgage which se- cures it. Johnson v. Carpenter, 7 Minn. 176. 59. Release. Where a mortgagor aliens a portion of the mortgaged premis- es, and the mortgagee releases from the mortgage the parcel retained by the mort- gagor, the security is thereby cancelled to the extent of the value of the land so re- leased, and he will be permitted to collect only the balance of the debt out of the lands in hands of the mortgagor's grantee. Johnson v. Williams et al., 4 Minn. 260. 60. The surrender and delivery of a note does not necessarily operate as a dis- charge of a mortgage which was given to secure it — the mortgage containing no cov- enant to pay. The surrender of the note may be designed only to discharge the per- sonal liability, leaving the specific lien on the property in full force. DomieUy et ai. 'v. Simonton et ai., 13 Minn. 301. 61. intention may be shown by pa- 29 rol. Defendant, holding plaintiff's prom- issory notes secured by mortgages, con- tracted with plaintift', in consideration of the transfer to defendant by plaintifl' of an interest in certain property, "to deliver up the said notes." Held, the notes being given for the purpose of binding the mort- gagor personally for the payment of the debt, while the mortgage binds only the spocitio property (containing no covenant to pay), a delivery up of the note does not necessarily operate as a discharge of the mortgage, and the intention of the parties in that regard not being collectable from the instrument itself, it was competent to show that intent by extrinsic evidence of the circumstances under which the instru- ment was framed, as the value of the prop- erty conveyed at time of the agreement to surrender tlie notes, as compared with the value of the lots covered by the mortga- ges, and with the nominal value of the notes. lb. 62. An insniflcient tender not kept good will not discharge a mortgage lien, as where the maker of a note, payable at a time certain and bank named, tenders to the cashier of the bank the amount due coupled with the condition that the note be delivered to him — and the note itself then being in the possession of the payee, who was absent and that tender not kept good. Balme v. Wambaugh et al., 16 Minn. 116. X. Mortgage by Deposit of Ti- tle Deeds. 63. Does not exist. The deposit of title deeds "to hold as security," for the payment of money does not create any lien on the land, but simply on the deed itself — the English doctrine discarded. Gardner V. McOlure et al., 6 Minn. 250. XI. Tacking. 64. Power to tack does not exist. Under our statutes, the mortgagee cannot tack to his mortgage debt any subsequent mortgage ^debt, bond, or other debt — the 326 MORTGAGES. mortgagor can redeem on payment of the mortgage debt simply. Bacon v. Coitrdl, 13 Minn. 194. XII. The Foreclosure. a. Strict foreclosure. 65. Equity may decree a strict fore- closure. A court of equity has powersto decree a strict foreclosure of a mortgage — the statute not having taken away that power — and the time allowed for redemp- tion in such a case is wholly discretionary with the court, and an appellate court will not interfere with its determination, except in case of manifest abuse. Brew et al. v. Smith, 7 Minn. 301. 66. In "an action commenced under the laws existing at time the General Stat- utes went into effect (Aug., l'-66,) for the foi'eclosure of a mortgage, the court liad power to decree a strict foreclosure, although a sale should in all oases be or- der'ed, unless justice arid equitj' I'equire a strict foreclosure. Bacon v. Cottrell, 13 Minn. 194. b. Dismissed of action to foreclose. 67. Action to cancel illegal foreclos- ure, and for foreclosure under decree. B. foreclosed a mortgage against M. (by means of one who acted for him,) the land being bid in for B., who went into posses- sion and rented the premises — no redemp- tion being made by the mortgagor. After period of redemption expired, B. discover- ed that the party who acted for him had no authority, and by some irregularity in an adjournment, his foi-eclosure was not good. He brings suit to obtain a re-sale under de- cree of court, and have the foreclosure set aside. M. offered to release all his claims, and waive all irregularities, and claims that the subsequent entry of B., and leas- ing, was a ratification of the acts of his agent so as to bind him, and claiming that the property if sold now would not bring as much as it sold for on the foreclosure. Held, complaint was propei-ly dismissed on de- fendant's offer to release all interest and waive all irregularities. Blake v. MeKu- sick, 8 Minn. 338. c. Decree of foreclosure. 6S. May attach a condition to redemp- tion allowance. Where a motgagor or ob- ligee in a bond for a deed are in default, and, in an action to foreclose and terminate their interests, the court allows them a cer- tain time to complete performance, and thus avoid a forfeiture, It may attach a condition that they shall do equity by re- imbursing such sums as the other party may have paid out for taxes to protect his interests 'from forfeiture. Brew et al. v. Smith, 7 Minn. 301. 69. Future conditional decree. Courts will not decree a foreclosure to take effect in the future, in case the mortgagor should redeem from a prior mortgage sale. Potter V. Marvifi et al., 4 Minn. 525. 70. Where a court is applied to to en- force a mortgage, the court in the exercise of its chancery powers, may orderthe mort- gagor to pay the amount due by a certain day, or " be forever foreclosed of all right to redeem." The power of the courts to decree a foreclosure absolute has not been interfered with by the legislature. Hey- ward V. Judd, 4 Minn. 485. d. Setting aside the sale. 71. Until the confirmation of a fore- closure sale, upon the coming in of the re- port of sale, the proceedings are not com- plete, and the sale may be set aside, for cause, by the court. Hogers v. Holyoke, 14 Minn. 220. 72. A mortgage sale under decree of court, under Sec 29, Chap. 81, G. S., can- not be set aside until the coming in of the report of the sale — for without that report the court has no jurisdiction to act, and this error may be taken advantage of in the first instance in the Supreme Court. Trow- bridge V. Forepaugh et al., 14 Minn. 133. MORTGAGES. 227 73. ConArmatioii conclusive iii collat- eral proceedingti. The coiittrmation of the report of a sherifT's sale under a de- cree, has the effect of a judgment, and until vacated by a direct proceeding in the action is conclusive, and cannot be at- tacked collaterally. Hotehkiss v. Cutting, U Minn. 537. e. Assignment. 74. What sufflcient record thereof. A mortgage, which had been recorded, was assigned by deed endorsed upon it, which described it as " the within described mort- gage." Said assignment was duly ac- knoSvledged and recorded in a different place from the original record of the mortgage, without again recording the mortgage. Seld, the assignment was re- corded within the provision of the law which makes it necessary to record an as- signment of a mortgage to entitle the as- signee to foreclose it. Oarli t>. Taylor et al. 15 Minn. 171. /. Foreclosure for installment. 75. Under Sec. 3, p. 644, Comp. Stat., a mortgage given to secure the payment of money due by installments, it is only each installment after the first that is to be deemed a separate mortgage, and it is only for stioh installments that a foreclosure is authorized. SJwrts v. Olieadle, 8 Minn. 67. g. The purclmser. 1. Wlio may puraliase. 76. Administrator of mortgagee. A sale of mortgaged premises cannot be ques- tioned by the mortgagor on the simple ground, that the administrator of tlie de- ceased mortgagee purchased the mortga- ged property in Lis own right. Baldmn v. Allison, 4 Minn. 25. 77. Mortgagee. Under the Statute, Sec. 9, Chap. 75, Comp. St., 643, the mort- gagee at a sale under a power running to himself, may bid in the property, the sale being made by the sheriff in good faitli. Ramsey v. Merria/m, 6 Minn. 168. 78. Administratrix. The purchaser at a mortgage sale by an administratrix of tlie estate which owns the moitgage, can be questioned only \>y the cestui que trust- not by a stranger — following Baldwin v. Allison, 4 Minn. 25. Kent v. Ohalfant, 1 Minn. 487. 79. Where mortgagee bids, officer must sell. On a mortgage forclosure sale by advertisement, where the mortgagee's attorney in the foreclosure sale acts as auc- tioneer in making the sale, and makes the certificate and affidavit of such sale, the mortgagee cannot become the purchaser under the power, to enable him to pur- chase the sale mustjbe made by the officer named in the statute — following Eamsey V. Merriam, 6 Minn. 168. AUen et al. v. Ghatfleld, 8 Minn. 435. . -?. Purchaser''s rights. 80. Legal title rests after redemption expires. On a mortgage sale, under the laws in force in 1862, the legal title to land does not vest in the purchaser until after the expiration of the time of redemption — following Daniels v. Smith, 4 Minn. 172. DonneUy v. Simonton et al., 7 Minn. 167. 81. Junior inenmbraucers not parties to foreclosure. An action by the pur- chaser at a mortgage sale under decree of court, against junior incumbrancers, not parties to the first action of foreclosure, to foreclose their equities is as to the latter a foreclosure de novo. Rogers v. Holyoke, 14 Minn. 220. 82. Where a senior mortgagee fore- closes by action his mortgage, without making- the junior mortgagee a party thereto, the only I'ight which the purchaser and his assigns acquires at the sale, is the right to a prior lien upon the premises to the extent of the money due and unpaid on the first mortgage, in the same manner as though the first mortgagee had assigned the mortgage without foreclosure. lb. 228 MORTGAGES. 83. Right to deed at expiration of re- demption. At time of expiration of mort- gage, the law authorized a redemption within one year from, etc. At time of sale on foreclosure, the redemption was extend- ed to three years, the certificate of the sheriff stated that the mortgagee would be entitled to a conveyance in three years, which certificate the mortgagee received and recorded without objection. Held, mortgagee did not thereby waive his right to a conveyance at the expiration of one year, under the law existing at date of mortgage. Carroll v. Hossiter, 10 Minn. 174. h. Notice of sale. §4. Publication — nuinbei' of weeks. Notice of mortgage sale by advertisement, published for the lirst day on August 3, 1859, and each waek successively up to and including the 14th day of September fol- lowing, was published the six weeks re- quired by statute. Excluding Aug. 3d and including Septertiber 14th, the day of sale, makes forty-two days or six weeks — the notice being in fact published seven times, once more than necessary — Conip. St., p. 030, Sec. 43. Worley et al. v. Naylor et al , 6 Minn. 192. SS.-^ — Notice of foreclosure sale was published seven times, the first publication occurring on the 4th day of January, 1867, and the last on the loth day of February, 1867, the sale taking place on the 23d day of February, 1867, as per notice. Held, a notice of seven weeks where the statute re- quired a notice for "six successive weeks once in each week," did not affect the val- idity of the sale. Atkinson v., Duffy, 16 Minn. 45. 86. Discontinuance and re-publication. After notice of foreclosure of mortgage had been published twice, and it was dis- covered the day of sale came on Sunday, the mortgagee discontinued its publication and commenced the publication of a second notice, wherein the amount claimed to be due, day fixer", ('or sale, nnd date all differed from those particulars in the first notice. Held, that the changes were of sucli a nature that persons would not naturally or reasonably be misled, and a sale I'egularly made under the second notice was valid — especially in the ab- sence of any claim of prejudice on part of plaintiff — considering Dana & Brown v. Farrington, 4 Minn. 433. Banning el al.v. Armstrong, 7 Minn. 40. 87. Change of date of sale. Notice of sale of mortgaged premises for the 23d of May was changed to the 25th of May. It appears mortgagor was ignorant of the change until after the sale on the 25th, and that he attended the place of sale on the 23d, to protect his rights. Held, he was prejudiced by the change of notice, and sale void. Dana & Brown v. Farrington and wife, 4 Minn. 433. 88. Query. Can a notice of sale (mortgage in this case) be changed in a material part (date of sale) after the nodce has been once published, and the publi- cation of the notice, as corrected, he con- tinued immediately, or must the publishing of the corrected notice be delayed until the expiration of the pei-iod (six weeks) of the first notice. lb. * 89. Notice by administrator— signa- ture. A notice of sale of mortgaged premises by an administrator appointed to administer the estate of the deceased mort- gagee, signed " Silas H. Baldwin, admin- istrator of the estate of E.achel A. Bald- win, tlie mortgagee, deceased," is sufficient without setting out the death of the mort- gagee — the administrator not being an " assignee " of the mortgage within Sec. 5, Comp. St., 644. Baldwin ». Allison, 4 Minn. 25. 90. Publication: by what law gov- erned. Notice of foreclosure sale by ad- vertisement is propei'ly published, accord- ing to the law in force at the time when tlie publication is made, notwithstanding the mortgage was executed- prior to the passage of such law. Atkinson «. Duffy, 16 Minn. 45. 91. Wlien published in an adjoining MORTGi^GES. 229 county. Where a mortgage is foreclosed , would not be deemed material, nor if a by an advertisement, under Chap. 75,Comp. | party honestly, through mistake of law or St and thp notice published i.i an ad- j fact, claims more than is actually due, joining county, but no copy served on the I would the sale be disturbed unless the assi-nee of the mortgagor in possession, as other party showed himself prejudiced required in Sec. 32, p. 592, Comp. Stat. Eeld, irregular, and Sec. 19, Chap. 3, Comp. St., does not do away with its necessity, for there is no "conflict" be- tween the provisions. Flandrau, J., dii- senting. Heath i>. Hall, 7 Minn. 315. 92. Amount claimed to be due,— when foreclosed for the last of three notes. W. & F. executed to S. a mortgage on the land in question to secure the pay- ment of three notes. D. purchased the land of "W. & F. and assumed the payment of the notes thus secured. "When the first note became due, S. foreclosed the mort- gage by advertisement for ainount of first note and costs; D. redeemed from this sale under Sec. 11, Comp. St. 645. "When the second note became due S. sued the makers and levied on their property. Held, that D.'s redemption from sale operated to can- cel the mortgage lien as to the first note only, he taking uo title thereby. That S.'s levy on his judgment must be presumed to have been upon sufficient property to sat- isfy it and operated as a discharge of the mortgage on the land as security for the second note. S. afterwards foreclosed by advertisement for the third note, the notice stating tliat the mortgage was given to secure three notes, and that there was due on the last one the actual amount, saying nothing about what had been done with the former two notes. Held, sufficient, and that S. being the purchaser at the last sale, and period of redemption having expired, could maintain forcible entry and detainer against D. and, his tenant. Emmett, C. J., dissents. Daniels v. Smith, 4 Minn. 172. 93. Amount claimed to be due. "Where notice of foreclosure of mortgage by ad- vertisement claimed as due 65 per cent. more than was actually due on the debt. Hdd, the sale was void in consequence; although a mere excess of trifling amount, arising from an error in computation himself thereby. Spencer v. Annn, 4 Minn. 542. 94. In a mortgage foreclosure by advertisement, where by the sti-ict terms of the notes, a greater sum could have been claimed than was demanded, and in no ' aspect of the case was the excess, when compared with the sum actually due, of sufficient magnitude to have influenced purchasers one way or the other. Held, sale should not be disturbed for that rea- son. Ramsey v. Merriam, 6 Minn. 168. 95. at date of notice. The "date of the notice," under Sec. 5, Comp. St., p. 644, which requires that the notice of fore-, closure shall state amount due at date of notice, does not mean exclusively the note appended to the notice stating its date, for. strictly speaking that is only the evidence of the date; it covers also the time of actual issuance of the notice, whether ex- pressed or not. The absence of date would not afteci its validity if amount claimed was correct at the true date. But where date is written on face of notice,that will control, and amount claimed must correspond with the time so stated ; in the absence of date the time of the first publi- cation is its date. lb. 96. Notice of lien for taxes. A notice of mortgage foreclosure by advertisement contained the following clause : ' ' and whereas there is also claimed, as a lien up- on said mortgaged premises, the sum of ninety-one dollars and eighteen cents, ex- pended by said (mortgagee), in payment of taxes upon said premises," etc. Held, sufficiently particular to charge the land for the taxes under Sec. 80, p. 244, Comp. St. Jones V. Cooper, 8 Minn. 97. SerTice of notii,e. An agent is not a "personal representative" within Sec. 32, Chap. 63, Comp. St., requiring service of notice of mortgage sale on them in cer- tain cases. Jones et al. n. Tainter et al., 15 Minn. 513. 230 MORTGAGES. 98. An agent is not a "personal rep- resentative " within tiie meaning of Sec. 5, Chap. 81, G. S., which requires notice of foreclosure' sale (when publication is made out of the county) to he served upon " the mortgagor, his heirs or personal represen- tatives," such term is used in its ordinary meaning of executor or administrator. AU kinson v. Duffy, 16 Minn. 45. i. Sale, by whom made. 99. Change iu administrator. The simple fact that the administrator who commenced proceedings for foreclosing a mortgage was removed, and a special ad- ministrator completed the sale, the order of removal being afterwards reversed — will not affect the validity of the sale. Baldwin v. Allison, 4 Minn. 25. 100. Sheriff of county attached to an- other. The sheriff of a given county is the proper person to make tlie sale of land on foreclosure of mortgage, under power of sale, though said county may be ai- taehed to another county tor judicial pur- poses. Berthold v. Holman et al., 12 Minn. 235. j. He-sale. 101. Excuse for applying: for re-sale. Delay iu applying for a re-sale in mortga- ged premises until after the first sale is completed, is sufficiently excused by aver- ring that, plaintiff '"was an officer in the United States Kavy, and has been for the last year on duty on a foreign cruise, and that until witliin a few daj's he has had no notice of the proceedings had on the afore- said mortgage foreclosure." Johnson v. Williams et al., 4 Minn. 260. 102. Olllcer can sell but once. Where an officer on a mortgage sale has once sold the property, his power to sell is exhausted, and he cannot again re-offer or re-sell the same. Paquin v. Braley, 10 Minn. 379. k. Sale in parcels. 103. Where a mortgage covered two parcels of land, one of SO acres and the other of 320 acres, the latter lying " con- tiguous and in one body," though in differ- ent townships and sections, the question being whether the sale of the latter parcel in one body was valid. Held, the fact of its being in different townships and sec- tions, or that it was acquired from differ- ent owners did not malie distinct farms or parcels within the statute. The object for which a body of land is held by the owner, the manner of its use, convenience attach- ing to its use, are more important than lines of survey in determining whether it is a dis- tinct farm or parcel within the statute. The use of the term "distinct" in the statute (Comp. St. p. 644, Sec. 8), must mean a separation by some natural means, or by intervening space, and not by arbi- trary imaginary lines. Worley et al. v. Naylor et al., 6 Minn. 192. 104. Where the land at date of execu- tion of the mortgage was in one tract, but the owner afterwards sold the same to two different persons — the sheriff on a fore- closure sale may sell the whole in one par- cel — the inere sale not making distinct tracts or lots within the statute. Wilson, C. J., thinks a sale in separate parcels in accord- ance with the mortgagor's conveyances could be enforced in equity, but without such interference the sale in one tract was valid. Paquin v. Braley, 10 Minn. 379. I. Postponement of sals. 105. Under Sec. 7, Comp. St., 644, the postponement of a mortgage sale by adver- tisement may be made at anytime; need not wait until the first named day shall arrive. Bennett v. Brundage, 8 Minn. 432. m. Impeaching sale. 106. A mortgage foreclosure by adver- tisement cannot be impeached on the ground tliat the principal creditor, of wliom the mortgagee had obtained the note by paying the same on his contract of surety, had issued execution which was not returned unsatisfied. Ross v. Worthington, llMinn. 4.SS. MORTGAGES. 331 107. Mortgage covered lands in three counties. Was recorded in two of them only. Eeld, a foreclosure of the mortgage for those lands in the two counties where it was recorded was valid. G-. S. Chap. 81, Sec. 2, Sub. 3. Balme v. Wambaugh et at, 16 Minn. IIG. n. Defense to foreclosure. 10§. It is no defense to a foreclosure of a mortgage by advertisement, (nor probably by action,) that the mortgagor had brought a suit for its cancellation, in which the mortgagee should have aslied a foreclosure as affirmative relief. Mont- gomery V. McEwen, 9 Minn. 103. 0. Surplus proceeds from sule. 109. Second mortg'agee entitled, when. The sheriff held in his hands surplus pro- ceeds arising from the sale of land on first mortgage foreclosure. The mortgagor had executed a second moitgage to A., and af- terwards conveyed to Stewart. It seems, that under Sec. 13, Comp. St. 645, which requires such proceeds to be paid to the "mortgagor, his legal representatives, or assigns," A., a« against the first mortga- gee, had an assignment of the mortgagor's equity of redemption; and as against the mortgagor himself, on the discharge of the first mortgage, his became the first mort- gage, and as assigee of his right to redeem, he had the right to receive the surplus pro- ceeds in preference to Stewart, who took subject to plaintift''s right. Ayer v. Stewart et al., 14 Minn. 97. 110. Owner of equity of redemption entitled. It seems, our statutes do not change the rule, that the mortgagee, upon making a sale under a power contained in the mortgage, holds such surplus (if any) in his hands, as trustee of him to whom the equity of redemption belongs. Mc- Millan, J. lb. 111. Second mortgagee. It seem^, that where there are two mortgages upon the same premises, and the property is con- verted into money by a sale under the first mortgage, the lien of the second mortgage attaches to any surplus proceeds of the sale, after satisfying the first mortgage. McMillan, J. lb. p. Redemption. 112. Period of redemption same as on execution sale. Under the act of May 5, 18,o3. abolishing all distinctions between proceedings at law and in equity, and establishing in lieu thereof the civil action, a sale of real estate made by order or judgment of a court, upon proceedings for the foreclosure or satisfaction of mortga- ges, is governed by the same rule as sales on.execution, so that a mortgagor has the same right to redeem from foreclosure sale by order of court as from execution sale. Stone V. Bassett, 4 Minn. 298. 113. Redemption governed by law in force at date of mortgage— the Legisla- ture has no power to change it. A mort- gage containing power of sale was execu- ted under a "one year's" redemption law. Before the sale the Legislature had extend- ed the period of redemption to three years. Held, that where a valid power had been given, the Legislature could not interfere with its exercise, so as to change the estate to be sold by the mortgagor, without im- pairing the obligation of the contract; consequently, if the mortgagee foreclosed under the power, by advertisement, he could sell the land subject to the one year''s re- demption; but if he went into a court of equity, he would be compelled to sell such an estate as the law in force at that time authorized. Heyward ■«. Jitdd, 4 Minn. 483. 114. Act of March 10, 1S60. Under the act of March 10, 1860, a mortgagor is entitled to three years after the sale, with- in which to redeem the premises — follow- ing Heyward v. Judd, 4 Minn. 483. Whit- tacre et al. v. Fuller et al., 5 Minn. 508. 115. The sale of mortgaged property being made by decree of court, and not under the statute, the time of redemption, and right of possession during that time, is governed by the law in force at date of 32 MORTGAGES— MUNICIPAL CORPORATION. decree, and not by law in force at date of mortgage— following Stone v. Bassett, 4 Minn. 298, and Heyvvard v. Judd, 4 Minn. 483. Turrell v. Morgan, 7 Minn. 368. H6.- The law in force at time of making a mortgage, governs the period of redemption under it, and not the law in force at time of foreclosure. Oarroll ». Rossiter, 10 Minn. 174. . ' IIT. Waiver of redemption — binds as- signee. It seems, that by the 6. L. of i860, p. 276, Sec. 3, which provides that "any person may, in writing, etc., waive his right to redemption, as allowed by this act," a mortgagor may bind himself and his assigns by such waiver. Query, whether creditors and others would be bound? Armstrong ». Sanford, 7 Minn. 49. ll§. Proof of right to redeem. The plaintiff — (assignee of the mortgagee) — tendered the redemption money due on the mortgaged lands, which had been sold on a judgment constituting a prior lien, offer- ing, as proof of right to redeem, an affi- davit of one M., stating that he " saw John M. (the assignor) execute an assign- ment of said mortgage to plaintiff, and she was then the owner and holder there- of." The statute required a "copy of any assignment necessary to establish his claim, verified by the affidavit of himself or a subscribing witness thereto." Held, the facts stated by affiant made him a subscrib- ing witness, within the statute, (Comp. St., Sec. 118, p. 573.) Williams ®. Lash, 8 Minn. 496. 119. A tender of redemption money to tlie oiflcer in cliarge of tlie sheriff's oiHce — though it be the deputy sheriff— is sufficient, within the statute requiring the tender to be made to the officer who made the sale, or purchaser. li. MORTGAGE SALE. (See Mortgages, XII. i.) (See Pleadings, 43, 44.) MOTIONS. (See Pkacticb, II. 17.) MUNICIPAL CORPORATION. I. Generally. II. Power to License. III. Power to Collect its own Taxes. IV. Assessments for City Improve- ments. V. Liability to Contractor. VI. Liability foe Injuries to In- dividuals. ' (See St. Paul, City of.) I. Generally. • 1. Acts of alderman bind the city. Al- though the charter of the city of St. Paul conferred upon aldermen of each ward the duties of street commissioners, and gave the power to repair, etc., streets, etc., still their acts are the acts of the city. Gity of St. Paul V. Louis Seitz, 3 Minn. 297. 2. Interest of a city in the public square. A dedication, within a city, of a "public square," under a statute which provided that "the land intended to be for the streets, etc., and other public uses in any city, etc., shall be held in the corporate name thereof, in trust, to and for the uses and purposes set forth and expressed or intended," conveys to the corporation a legal right to the possession, with an inter- est in the land for the purposes of the trust, that is, the use of the public, that will sustain ejectment on the part of such corporation against a person in adverse oc- cupation claiming title. City of Winona V. Huff, 11 Minn. 119. 3. Liability for building: destroyed to prevent spread of conflagration. In the absence of statute, a city is not liable for the destruction of a building to prevent the spreading of a conflagration ; and this MUNICIPAL CORPORATION. 333 wliether its destruction is ordered bj- ttie officers of the citj' assuming to act in their official capacity, or by the bystanders, of their own motion. McDonald v. The City of Redwing, 13 Minn. 3S. 4. Legislature can impose offlcers on a city. The Legislature has undoubted power, in this State, to appoint offlcers within a city, for a specitic purpose, such as laying out a street and assessing dam- ages and benefits therefor. Officers so ap- pointed, for purposes within the liinits and sphere of municipal government, their acts are the acts of the city, precisely as if they had been done by the municipal au- thorities selected under the charter, so as to make the city liable for the damages to land over which such street is laid out. Daieyv. The City of St. Paul, 7 Minn. 390. 5. Requisites of complaint against a city— by contractor. Where a city was liable to a contractor on a contract, al- though it had not talven the necessary steps to collect the means to pay him, perform- ance of said acts need not be alleged by the contractor, in an action against the city. Ifas?i v. The Gityiof St. Pavl, 8 Minn. 17.2. 6. A municipal corporation does not inherently possess the power to order and contract for grading streets; the power is given by charter; and where the charter requires the contract to be let to the lowest bidder, the fact that it was so let must be alleged in a complaint against the city, by a contractor, and that it was let to the low- est bidder, not to one as the lowest bidder. lb. II. Power to License. 7. Regulations must be within clear intent of the charter. While municipal corporations may adopt such regulations as may be necessary and reasonable, to protect the lives, health, property or mor- als of its citizens, the exercise of this right should be carefully guarded and limited, within the clear intent of the grant of power for such purpose. City of 8t. Paul a. Laidler, 2 Minn. 209. 30 8. What is illegal butclier license. That portion of the ordinance of St. Paul regulating sale of "fresh meat," and pro- hibiting its sale at other places than the market, without a license, and at the mar- ket without the renting of a stall, is not merely in regulation, but also in restraint of trade, and unreasonable, unneeessaix and inequitable, and cannot be sustained on principle or authority. //;. 9. Power to license, generally. Die legislature lias the right to confer upon a city tlie power of regulating any business which may act prejudicially upon the health, morals, or peace of the inhabitants. And whether a particular business requires regulating, and if so, to what extent, rests in the legal discretion of the municipal cor- poration. City of St. Paxil v. Troyer, 3 Minn. 293. 10. Brewer's liability under St. Paul charter. The charter of the city of St. Paul authorized it to "grant license, and regulate all persons dealing in fermented liquors." Under this charter it was provid- ed, by ordinance, that "no person, etc., shall sell, vend, dispose of, traffic, or deal in, or give away fermented liq- uors, etc., in or at any place or house" within the city, without license, and that "any suitable person approved by the common council, on tiling bond and paying license fee, shall be entitled to a li- cense to sell, vend, deal, etc., in fermented liquors, and at any one certain place, house, or room," to be designated in the license. Seld, — 1st. The power to license involved the power to refuse to license, and that both were granted by the charter. 2d. A brew- er who manufactures beer within the city, and supplies his customers by the keg or cask at their several places of business, is not within the terms of the ordinance. Ih. 11. Amount of license. The charter of the City of St. Paul (Sec. 5, Chap. 16 Spec- ial Laws 1865, p. 1 23, ) authorized the city council to "license and regulate," etc., butchers' shops, etc., and provides "that not less than live dollars, nor more than five hundred dollars, shall be required to be 334 MUNICIPAL CORPORATION. paid for any license," etc. The city council has power under this act to impose a li- cense of $200, on butchers' shops. The aUy of at. Paul V. Colter, 12 Minn. 41. III. Power to Collsct its own Taxes. t2. " The Tax Law," and law prescrib- ing duties of County Treasurers, approved March 9, 1860, and the law prescrib- ing dutj' of county auditors, approved March 6, 1860, clearly express the inten- tion of the Legislature to talje from the Treasurer of tlie City of St. Paul the pow- er of collecting city taxes, selling property for non-payment of taxes, and receiving the redemption money — and so of all other cities and towns. Morgan v. Smith, i Minn. 104. 13. Sec. 61 of the tax law, approved March 9, 1860, which apparently recognizes the right of a city to collect its own taxes, was not intended to have that effect. lb. IV. Assessments for City Im- provements. 14. Only substantial errors will viti- ate an assessment for city improvements. Charter of the City of St. Paul (Session Laws, 1854,) provided that " no error or in- formality of the officers entrusted with the same, (assessment of taxes for street im- provements,) not affecting the substantial justice of the tax itself, shall vitiate or in anywise affect the validity of the tax or as- sessessment." Seld, not to prevent parties prejudiced thereby from obtaining the re- dress to which they would otherwise be en- titled — a mere affirmance of an existing rule. WeUer v. City of St. Paul, 5 Minn. 95. 13. Filing of estimates a pre-requisite to improvements. Sec. 6, Chap. 7, Session Laws, 1854, (charter of St. Paul,) provides that the commissioners shall malce an esti- mate of the whole expense of any street improvements, etc., and of the proportion to be assessed each lot, etc., and file such es- . timate with the city comptroller. Sdd, tliese conditions — the making and filing of estimates — are imperative, and an omission vitiates the assessments, and all proceedings under if^-following McComb v. Bell, 2 Minn. 295. 76. 16. Lots fronting "on sucli street" are not lots fronting "on the work done." Cost on expense of " grading, gravelling, plank- ing, or paving streets and alleys to the cen- tre thereof, shall be chargeable to, and payable by the lots fronting on such street oi' alley.'" (Sec. 5, Chap. 6, Session Laws, 1854, p. 30,— charter City of St. Paul.) Under this charter the cost of worlt was assessed upon and charged to the lots fronting on the work done, specifically lot by lot, the work done opposite, or fronting on each specified lot, being assessed upon, and made charge- able to such lot alone. Hdd, the assesment was unathorized and void. WeUer v. City of St. Paul, 5 Minn. 95; Morrison v. City of St. Paul, 5 Minn. 108. 17. To bind property for grading ex- penses, every step required by the cliarter must be taken. In order to make lots fronting upon a street chargeable with the expense of grading it, every act which the charter requires the city officials to do, must be fully performed, or the assesments will be void. MeComb i>. Bell, 2 Minn. 307. 1§. Omission to make estimates, etc., prior to contracting for sidewalks, in ab- sence of prejudice to the owner, does not vitiate the assessment. Charter of St. Paul (Sec. 4, Chap. 7, ) provided that when- ever the street commissioners shall deem it necessary to construct or repair any side- walk, etc., they sliould direct the owner of the lot to do it at his own cost ; on his de- fault, the commissioners " shall cause the same to be done at the expense of the lot adjoining such sidewalk." Sec. 6 provided that whenever they determined to make any such walk, they should " cause to be made an estimate of the whole expense, and portion to be assessed to each lot, and tlien enter into contract for the doing there- of." Under Sec. 10, after the performance of the contract, they were to issue certifi- MUNICIPAL CORPORATION. 235 cates against the lots, "and if the notice to do the work required shall have been given, etc., no Informality or error in the proceedings shall vitiate such assessment (against the lot on default in payment of certificate.) Held, prima facie, in the ab- sence of any prejudice on part of lot own- ei', an omission on part of the commission- ers to make the estimate of the expense and portion chargeable to any given lot, prior to letting tiie contract, does not render the certificates void — distinguishing this from McComb V. Bell, 2 Minn. 295, and Weller V. City of St. Paul, 5 Minn. 95, where such defect rendered them void in case of street grading. DeEoehbrune v. Gity of 8t. Paul, 11 Minn. 313; Qriggs v. Gity of St. Paul, 11 Minn. 308. 19. Authority to contract must be strictly followed. Under the city charter of St. Paul, street commissioners advertis- ed for bids on ". Stokdy, 16 Minn. 282. 40. Special verdict not eoveringr all questions. It is no ground for a new trial that a jury in returning a special verdict do not answer in whole, or in part, a question submitted to them, where it does not appear for what purpose, or in what view, the question was material. Finch v. Green, 16 Minn. 355. 41. Drinliingf liquor. For remarlis on the habitual drinking of liquors during a trial by jurors, and playing at cards late at night, see State v. Parrant, 16 Minn. 178. 42. Query, whether on motion for a new trial, the' affidavits of jurors can be received to show the misconduct of the pre- vailing party. lb. g. Surprise. 43. J^ew trial will not be granted on ground of surprise arising from the impos- sibility of a case being tried on the day set down for its trial, and the party leaving for home on advice of the counsel, and not re- turning until after the cause was called and tried. Desnoyer v. McDonald, Ousae & Co., 4 Minn. 515. 44. Where the priority of record of plaintiff's lien over defendants was in issue, and the defendants in preparing for trial had procured from the Register an ab- stract of the records, whereby it appeared defendants' lien was first recorded, and on the trial plaintifi' was allowed to introduce parol evidence, that the record was er- roneous, and lien of plaintiff was actually recorded first, it is such surprise as will au- thorize a new trial — where defendants have other evidence to sustain their position — the " abstract " sliowing the necessary de- gree of diligence. Sec. 29, p. 158, Comp. St. Sliaw V. Henderson, 7 Minn. 480. h. Neidy discovered evidence. 45. In an action against P., on a con- tract of indemnity executed by his agent B., the defense was, want of authority in B. to malie the contract. The plaintiffs claimed a subsequent ratification, and gave notice — before trial — to defendants P. and B. to produce all correspondence between them. On the trial no correspondence was produced. P. in his testimony denied all knowledge, and B. did not recollect having informedhim. After trial and judgment, for defendant, plaintiffs discovered letters written by P. to B., touching the contract of indemnity, and material to the issue, of wliich they were ignorant before and at the trial, whereupon they moved for a new trial. Held, plaintiffs showed due diligence, and could not be chargeable with negli- gence in failing to elicit the facts contained in the letters by a cross-examination, for by the positive manner in which they testi- fied, the plaintiffs were misled. Plaintifls entitled to a new trial. Humphreys et al. v . Havens et al., 9 Minn. 318. 46. A new trial on the ground of new- ly discovered evidence will viot be granted where it goes only to one of several issues, which were all decided against appellant, and contrary finding on that issue will not alter the result. Sharpe v. Traver, et al. 8 Minn. 273. 47. Where it is apparent that the vol- ume of testimony is largely against the facts alleged in the affidavits used on a mo- tion for a new trial, and that with such ev- NEW TRIAL. 243 idence a new trial would not be likely to change the result ; or there appears on the whole, evidence sufiicient to sustain the ver- dict, a new trial ought not to be granted. Meadv. Oonstans, 5 Minn. 171. 4§. Cumulative or impeaching evidence is never suflBcient to warrant a new trial, even if not Ivuown until after the first trial has ended. State v. Dumphey, 4 Minn. 438. 49. The discovery of evidence since the trial, which is only impeaching, corrobora- tive, or cumulative of what was given on the trial, is no ground for a new trial. Meadv. Oonstans, 5 Minn. 171. 50. A new trial will not be granted on ground of newly discovered evidence, where the same Is cumulative ; and cumula- tive evidence is additional evidence to sup- port the same point, and which is of the same character. Nininger v. Knox et al., 8 Minn. 140. 51. An affidavit on motion for a new trial, on ground of newly discovered evi- dence, which states that deponent is inform- ed and believes a certain individual will tes- tify to the existence of a particular fact, is entirely Insufficient — ^he should show by the witness's own affidavit that he will so testify or excuse the failure to produce it. Keough V. McMtt, 6 Minn. 513. 52. On an application for a new trial, on ground of newly discovered evidence, the "affidavit of the witness himself as to what he will testify to must be produced, or satisfactorily accounted for. Eddy, Fen- Tier (fc Co. t. Caldwell, 7 Minn. 225. 53. A party applying for a new trial, on ground of newly discovered evidence, must make his vigilance apparent, for if it be left even doubtful that he knew of the evidence, or that he might hit for negligence have known and produced it, his applica- tion will be denied. Nininger v. Knox et al., 8 Minn. 140. i. Trial by referee. 54. Delay in flliu^ referee's report. Action was tried and submitted April 20, 1868; on Nov. 19, 1869, the referee made and delivered his report to plaintiff's attorneys, and next day departed from the State, and took up his residence in Washington. On Jan. 31, 1870, the report was filed with clerk of court. Held, the delay in filing the report upon the part of the referee, and his subse- quent absence— under the circumstances a]> pearing in the affidavits used upon the mo- tion — which were conflicting, are not suffic- ient grounds for a new trial. Leyde v. Mar- tin et al., 16 Minn. 38. III. The Motion. 55.^ When after judgment. Motion for a new trial may be made after judgment entered in District Court, for causes speci- fied in Sec. 1, 2, 3, and 6, Sec. 59, p. 564, Comp. St., only. Eaton v. Oaldwell, 3 Minn. 134. (See ^'■errata," in 3 Minn, correcting this case.) 56. On trial by the Court. Under Sec. 33, p. 564, Comp. St., where .the trial was by the Court, a motion for a new trial must be made as early as possible, after no- tice that decision has been rendered and before entry of judgment. Groh «. Bas- sett, 7 Minn. 335. 57. After appeal. The District Court cannot entertain a motion for a new trial after an appeal has been taken — for want of jurisdiction. McArdle v. McArdle, 12 Minn. 122. 5§, Counter atAdaTits. On a motion for a new trial on the ground of newly discovered evidence, counter affidavits are admissible. Finch v. Green, 16 Minn. 355. 59. Time for making, where case tried by jury. It would seem to be necessary, under Sec. 222, Chap. 66, G. S., that where a case has been tried before a jury, the motion for a new trial should be made be- fore entry of judgment. Conklinv. Hinds, 16 Minn. 457. 60. on trial by referee or court. After judgment had been entered on the findings of the court, in an action tried be- fore it without a jury, a motion for a new trial was made and denied. On an appeal from the order denying the motion for a 244 NEW PROMISE— NOTES iVJNl) BILLS. new trial. Held, that the statute being silent, and the District Court liaving adopt- ed no general rule on the subject, It is for the judge before whom such motion is made, to decide upon the circumstances of each case, whether a motion for new trial made after judgment rendered upon the report of referee or decision of a judge, flled in vacation, comes too late; and this Court would not reverse such decision un- less an abuse of discretion were shown, such as the entertaining of a motion for a new trial after the time for appeal from the judgment had expired. If made before such expiration in the absence of ladies, it is discretionary. In this case, having been made at the next general term after the findings were perfected, and before expira- tion of time for appeal, it was in time. Ih. IV. Costs. 61. In all cases where a new trial is or- dered for error committed by the Judge, the costs of the irregular trial should abide the event of the suit, and be recoverable by the party who ultimately succeeds. Walker v. Barrow, 6 Minn. 508. NEW PROMISE. (See Limitation of Actions, IV.) NON SUIT. (See Practice, II., 11, B. J.) 1. II. in. NOTES AND BILLS. Requisites of a Xote. What is a NEaOTiABLB Instru- ment. Maker. IV. Indorseb. V. Indorsement. VI. Title, how Transfbiiablb. VII. ACPEPTANCE. VIII. Pbbsbntmbnt for Payment and Notice of Non-payment. IX. Protest and Notice Thereof. X. Bona Fide Holder, who is. XI. Defenses. XII. Presumptions arising from pos- session, ETC. (See Assignment, I., 4.) (See Civil Action, VII.) (See Evidence, 155.) (See Limitation of Actions, 22.) (See Mechanic's Lien.) (See Pleadings, 5.) (See Regents of the University of Minnesota.) (See School District, 7.) I. Requisites of a Note. 1. Must be a promise to pay money. The following instrument is not a promis- sory note : " Certificate of deposit. Chicago, July 14, 1864. Hyde and B. have deposited in this office five hundred and thirty-five and 75-100 dollars in treasury notes, to the credit of themselves, and 'payable to their order hereon, in United States six percent, interest bearing bonds." — it not being an agreement to pay money, but a contract to deliv^er U. S. bonds of the description specified, to the nominal amount of $o3o.7n, and its endorsement simply assigned the beneficial interest therein. Distinguished from a contract payable in a certain amount of cattle, etc. Ea$ton V. Hyde et al., 13 Minn. 90. II. What is a Negotiable Instku- 2. in iustromeat under seal, though in the form of a promissory note, is not a negotiable instrument in the absence of statute. Heifer v. Alden, Cutter <£ Hull, 3 Minn. 382. 3. A draft or billpayable in "cur- NOTES AND BILLS. 245 rency," is payable in money, and negotia- ble. Butler V. Paine, 8 Minn. 32-I-. 4. A promissory note drawn upon a particnlar fnnd is not a commercial nego- tiable note. Regents nf Unioersity of Minn. i\ Hart et al., 1 Minn. 61. III. Maker. 5. A person who writes his name in blaiilc on the bacli of a note at its incep- tion, before delivery, for the purpose of giving the malcer, or principal, credit with the payee, is liable as an original promissor. Pierse v. Irvine, Stone & McGormick, 1 Minn. 377. 6. Although the character in which one endorses in blank a note contempor- aneous with the making of it, can be ex- plained, yet, prima facie, he is a maker. 76. 7. A. party who signs his nanie on the back of a note before its delivery to the payee, is liable as a maker. Marienthal, Lehman dk Co. v. Taylor et al., 2 Minn. 149. 8. If from parol evidence it can be made to appear that a party who signs his name on the back of a note before delivery to payee, did so sign to give the note credit with the payee, and the payee was influ- enced in receiving it, and parted with his money or property in consequence of such name, the party so signing may be held as original maker of the note. McComi, Simpson & Go. v. Thompson, 2 Minn. 146. 9. Note made by " Trustees of a School District," how executed to exempt tliem from personal liability. The addition of the words, " Trustees of School District No. 0," to the signatures of the makers of a promissory note, will not relieve them from personal liability— to relieve them from all liabillty,except as trustees, It must appear in or from the instrument itself, that they ex- ecuted the same in their capacity as trus- tees. See Sanborn v. Neal etal., 4 Minn. 126. Fowler etal. v. Atkinson, 6 Minn. 578. 10. Malter not entitled to demand and notice as an indorser. A party who signs his name across the back of a note, before same is delivered, in order to give the same credit, and induce the payee to take it, is a joint maker, and not entitled to demand and notice as an indorser. Bobinson v. Bartlett et at, 11 Minn. 410. 11. Cliaracter in which signers nialce a note. The makers of the following note are prima facie personally liable: "$69.00. Nine months after date, for value received, we, the Trustees of ychool District No. 20, County of Olnistead, prom- ise to pay N. W. Bingham, or bearer, the sum of sixtj'-nine dollars, with interest at tiie rate of ten per cent, per annum from date. Walter Stewart, ) Robert Robertson, > Trustees. John Davisou, ) St. Charles, Minn., April 1, 1865." — Bingham v. Stewart, 13 Minn. 106. IV. Indokser. 12. An indorser may pay a judg'ment against himself and malter, and tiike an assignment directly to himself. Under Sec. 36, Comp. St. 535, an Indorsee of a promissory note obtained judgment against the maker and indorser; the latter paid the judgment, and took an assignment to a third person for his benefit. Held, the payment by the indorser did not extinguish the judgment, and thus render it necessary for the indorser to obtain another judg- ment against the maker — that he might have taken the assignment directly to him- self, without'the intervention of a trustee. Folsom et al. v. Oarli. 5 Minn. 333. 13. An indorser may compel holder to first exhaust security. Under act of 1860, March 8, p. 216, an indorser of a secured note may compel the holder to exhaust the security before resorting to him. Swift v. Fletclmr, 6 Minn. 550. V. Indorsement. 14. Liability created by indorsement of non-negotiable note. Indorsement of a non-negotiable promissory note creates the same liability as between the indorser and indorsee as though it w.as negotiable. 246 NOTES AND BILLS. but not as to subsequent holders, unless the indorsement makes it payable to the order of the indorsee, or the indorser expressly promises to pay the note to the holder in consideration of the indorsement. Hdfer V. Alden, Cutler & SuU, 3 Minn. 332. 15. What amounts to contract of in- dorsement. A. drew up a note for B. to sign, in favor of C, and indorsed it before it was signed by B., with the understand- ing and agreement between him and C. that the latter should obtain the signature of B. to said note, and hold the same against A. as an indorser. Tlie signature of B. was so obtained. Held, A. liable as indorser, for by delivering the note to C, with that understanding, made C. his agent to procure the note to be completed. Rog- ers V. Stevenson, 16 Minn. 68. 16. consideration, what sufficient. A. sold goods to B. on the faith of a verbal promise by C, that he would pay for them if B. did not. 0. afterwards indorsed B.'s note to A. for the amount of the debt. Held, sufficient consideration to support C.'s contract of indorsement. lb. 17. Extension of time to a debtor bj"^ taking his note on time, is a sufficient con- sideration to sustain a contract of indorse- ment on the debtor's note so given. lb. 18. It seems that if a note was given upon a good consideration, the same con- sideration would extend to and support a contemporaneons indorsement. lb. 19. An indorsement of a non-nego- tiable note amounts simpl)'^ to an authority to the indorsee to receive the money of the maker, and an undertaking that it will be paid on due presentment, hence involving the ordinary responsibility of an indorser — though it gives the indorsee no right against any antecedent indorsee for want of privity of contract — following Heifer V. Alden, Cutler & Hull, 3 Minn. 332. Hart & Munson v. Eastman <& Gibson, 7 Minn. 74. 20. Effect of indorsement unsigned. Indorsements of payments on the back of a promissory note unsigned, and it not ap- pearing in any way by wliom they were placed there, are not evidence for any pur- pose, and the note can be introduced in evidence without sucli indorsements. Tur- reU 1). Morgan, 7 Minn. 368. 21. Nature and effect of indorsements. Indorsements on the bade of written in- struments are independent writings, in the nature of receipts or written declarations, and can be read in evidence only after proof made that they are signed by the party sought to be charged, or have re- ceived his assent in some binding form. lb. 22. As to force and efifeot as evidence of indorsements on promissory notes, see Turrell v. Morgan^ 7 Minn. 368, as ex- plained by State v. Monnier, 8 Minn. 312. 23. Effect of an indorsement after due. After a promissory note became due, the maker and holder agreed that if the former would ijrocure defendant to indorse it, the latter would extend time of pay- ment ten months. Defendant, at maker's request, but in ignorance of the agreement, wrote his namC/On the back, with date of signature. The holder tliereupon extend- ed time of payment ten months, at expira- tion of which time, note being unpaid, notified defendant thereof. Hdd, defend- ant was not liable as a maimer, on the ground that his signing was a re-issue, for it never ceased to be the property of the holder; nor as an indorser, for being past due, it was in effect payable on demand, and entitled, hence, to reasonable notice of non-payment, but ten months was not such reasonable notice pi-ima facie ; nor as a guarantor, for no note or memorandum in writing, expressing the consideration, was written over his signature, to bind him to pay the debt of another, within Statute of Frauds. Moore ». Folsom, impl., 14 Minn. 340. VI. TiTLB, HOW Transferable. 24. Transferable by delivery. A promissory note, like any other personal property, can be transferred by mere de- livery, 80 as to pass the title, and the right NOTES AND BILLS. 247 ta sue in the name of the holder; where a note is payable to order, and found in the hands of a pei'son not the payee, without the indorsement of the payee, the differ- ence between such holder and one who holds by indorsement, is that the former is not a bona fide holder, and the latter is. Pease, Ohalfant & Co. v. Mush, Pratt & Co., 2 Minn. 111. 25. Delivery not necessary. A party can transfer his interest or title in a prom- issory note otherwise than by indorsement or actual delivery thereof. Nininger v. Banning, 7 Minn. 274. 26. The title to a note will pass with- out indorsement. TvMes V. Fridhy, 9 Minn. 79. VII. Acceptance. 27. By partner. Under Sec. 7, p. 375, Comp. St., which requires an acceptance of a bill of exchange, to be valid, to be in writing, signed -by the acceptor or his law- ful agent, "N.," partner of "N. & M.," cannot bind the firm by accepting a bill of exchange, drawn on the firm, in these words: "Accepted this 25th July, 1859." Heenan v. Nash, 8 Minn. 407. 2S. By partner, in his own name, etc. An acceptance by an individual, in his own name, of a bill drawn on a firm of which he is a member, will not bind the individ- ual — ^he being an entire stranger to the bill. lb. 29. It seems, that where a bill is drawn on several individuals, an accept- ance by any one of them is binding upon him, although the bill may be treated, and should be, as dishonored, if not accepted by all the drawees, because the holder is entitled to the acceptance of all; but in such case a liability accrues against the party accepting, because he is a drawee as much as if the bill had been drawn upon him alone. lb. VIII. Presentment and Notice of Non-Payment. 30. Presentment where place and time are specified, as against maimer. As against the maker of a note or acceptor of a bill payable on a day certain, at a speci- fied place, the holder is not bound to malie a demand at that time and place, to enable him to maintain an action. But if the maker was ready, at that time and place, he may plead it, as he might plead a ten- der, in bar of damages and costs, by bring- ing the money into court. Hence, the payee of a note payable at a particular time and place, does not, as against the maker, hy the terms of the note, bind him- self to have the note at that place at or after its maturity, for delivery to the maker on payment or tender of payment ; nor is a bank, or any of its officers — that being the place of payment — the holder's agent for any purpose, in such a case, ex- cept to receive the amount due on the note or bill, wlien unconditionally paid or ten- dered as payment by the maker or accept- or. Balme v. Wambaiigh et al., 16 Minn. 116. 31. Known insolvency of maimers will not excuse presentment of a promissory note for payment as against an indorser. Hart & Manson v. Eastman & Gibson, 7 Minn. 74. 32. Statements made by an indorser to an indorsee and holder, that the maker of the note had no funds, is no excuse for a failure to present the same for payment in due time. lb. 33. Indorsers of non-neg'otiable prom- issory notes are entitled to notice of non- payment, lb. 34. Presentment of non-neg'otiable note indorsed after due. A non-negoti- able promissory note, indorsed after due, must be presented for payment within a reasonable time, and what that is, is a question of mixed law and fact for the jurj'. lb. 35. Waiver of notice of non-payment. The following indorsement does not con- stitute a waiver of notice of non-payment of a promissory note : " Eastman & John- son, but not to be paid by us in any event 248 NOTES AND BILLS. within one year from date, June 30, 1859." Ih. IX. Protest. 36. By what law governed. Tlie pro- test of a promissory note is governed by tlie law in foi-ce at tlie time it falls due, not when it is made. Levering et al. v. Wash- ington, 3 Minn. 323. 37. Xotice at coiiiiiion law. At com- mon law, notice of protest to indorsers, where they live in the same place, must be pei'sonal, and not deposited in the post- office, lb. 38. Service through mails. Notice of protest was served on Balcer, as indorser, by depositing a copy in the post-oftlce at St. Paul. Baker lived nearer Roseville than St. Paul, and received most of his mail at Roseville, though he had a box in the post-office at St. Paul, and received some of his mail there. Held, the notice of protest was irregularly served, under a stat- ute which requii'ed the notice to be depos- ited in the post-olfice "nearest the reputed place of residence of the party." Sec. 5, G. L. 1856, Ohap. 5. Marshall et al. v. Ba- ker et al, 3 Minn. 320. 39. Parol agreement between parties at making of note, as excuse for want of notice of protest. A parol agreement be- tween the maker, payee and indorsee of a promissory note, made at the time , of the indorsement, that the note should not be paid by the makers until 15 days from date of transfer, and after maturity, is without consideration, and will not excuse demand and notice of protest between indorser and indorsee. Nor the fact that the makers had run away when note was due — for the fact of such absconding should have been brought to the notice of the indorser, and cannot be proved unless pleaded. Michaud V. Lagarde et al., 4 Minn. 43. 40. Beqnisites of notice by mail. A notarial notice of protest, properly folded and addressed, is suflBcient, whether under cover of an " envelope " or not. Kern v. Phul et al., 7 Minn. 426. 41. Sec. 101, p. 135, Comp. St., which makes competent evidence the "instru- ment of protest accompanying any bill of exchange or promissory note which has been protested," etc., applies to past as well as future protests. lb.' 42. notary's record not essential to validity of protest. A notarial protest of a promissory note or bill of exchange is valid, though no record is made by him. Ih. X. Bona Fide Holder, Who Is. 43. Note taken as colLateral security for an existing debt. Sheebuene, J., thinks an indorsee of negotiable paper, as collateral security for an existing debt, would not hold it exempt from the equities between the original pai'ties. Becke • v. Sandusky City Bank, 1 Minn. 319. 44. A note payable to order, passed without indorsement, is not taken in the regular course of business, and is subject to the same disabilities as if it had been taken after due, but the title passes suffi- ciently to maintain a suit in the name of the owner. Pease, Ohalfant & Co. v. Rush, Pratt & Go., 2 Minn. 42. 45. Note taken in payment of pre-ex- isting debt. Where a negotiable note of a third person is, before its raaturitj"^, taken in good faith as a payment (not collateral security) of a pi'ecedent debt, the indorsee is entitled to protection, as a holder for value, against any equities between the antecedent parties. Steeertson v. Heyland et al., 11 Minn. 198. XL Defenses. 46. Equities between original parties do not bind an indorsee. Equities arising between original parties to a promissory note cannot be set up as a defense in an action by the indorsee against the maker. Becker v. Sandusky Bank, 1 Minn. 318. 47. Parol evidence to explain charac- ter in wliich person puts his name on the back of a note. Where a person puts his NOTES AND BILLS. 249 name on the back of a note, if there ia anything to be found in the writing Itself that indicates what particular relation the partj' intends to assume to the note, then parol evidence is inadmissible to vary such relation, but the party must be tried upon his written contract. The fact of the name being on the back of the note where an indorsement Is usually made, is not as ab- solute in indicating its character as if it had written over it a contract of indorse- ment, and is capable of explanation as between all parties, before the note leaves the hands of the payee — not so in hands of bona fide holder. McOomb, Simpson & Co., V. Thompson, 2 Minn. Ii6. 48. Contemporaneous agreement. In an action against defendants upon a prom- issory note, it is a good defense, if properly alleged and proven, that "at the making and delivery of said instrument, it was agreed by and between the plaintiff and the defendants that said instrument should be the promissory note of said school dis- trict, and not the note of the defendants." Bingham v. Stewart at at,., 14 Minn. 214. 49. Improper disposition of mortgage security. . In an action on a promissory note to recover the balance due after the sale of mortgaged premises, as security for the same, it is a good defense to aver that the property was illegally sold, and that had it been legally sold, it would have brought more than enough to satisfy the note. LoweU v. North & Oartt, 4 Minn. 33. 50. Non-delirery, or want of consid- eration. Between the original parties it may always be shown that the note was never delivered, or without consideration. Buggies et at. v. Swanwiek et al., 6 Minn. 526. 51. It seems, that a partial want of consideration cannot be Interposed, as a defense to an action on a promissory note. Walters v. Armstrong, 5 Minn. 448. 52. Partial want, or partial failure of consideration. It seems, that in the ab- sence of statute, a partial want or partial failure of consideration cannot be set up 32 In defense to a promissory note. Whitacre. ». Ouhei; 9 Minn. 295. 53. Note given on settlement. If on a settlement between the maker and payee of a promissory note, the note is given for the balance found due the latter, and there has been found nothing paid on it since, the holder, who takes after maturity, is en- titled to recover, unless it appears there was a mistake in that settlement, lb. 54. Note was given for a policy of in- surance which plaintiif had no power to issue. Where an insurance company is- sued to defendant a policy which, by their charter, tliey had no power to issue, taking defendant's note for the premium. Beld, that fact was a good defense to the note. Rochester Insurance Go. v. Martin, 13 Minn. 59. XII. Presumptions Arising from Possession, etc. 55. Possession presumptive evidence of title. Possession of a promissory note payable to bearer, is presumptive evidence that the holder is the prrfper owner or law- ful possessor of the same, and sufficient to entitle the person producing it to receive payment therefor. Woodbury et al. v. Lar- nea, 5 Minn. 339. 56. Possession of unindorsed note pay- able to order of another. Possession by B. of a note payable to the order of A., without any indorsement, is no evidence of ownership. Van Eman «. Stanahfield et al., 13 Minn. 75. 57. The giving a promissory note is prima facie evidence of an accounting and settlement between the parties, and that the maker was indebted, on such settle- ment, to the amount of the note. This presumption may be explained — and a for- mer indebtedness set up in defense to an action on a note by the payee against the maker. Wakefield v. Spencer. 8 Minn. 876. SS. Where a negotiable note, payable to order, is transferred without indorse- ment, the holder takes it as a mere chose 111 action ; and while he may maintain an 350 NOTICE. action upon it in his own name, he must prove the transfer to himself; and mere possession is not prima facie evidence of the fact — explaining Pease, Chalfant & Co., ». Rush, Pratt et at, 2 Minn. 107. Van Eman v. Stanchfield et al., 10 Minn. 255. 39. Where the facts admitted by the ansvver show the making and delivery of the note to the plaintiffs, they are pre- sumptively the owners and holders of it, and the possession at time of suit by a bank, is the possession of the plaintiff. Hayward et al. v. Gfrant, 13 Minn. 165. NOTICE. ■ (See Mechanics' Lien.) (See Bonds, 2.) (See Sheriff, 8, 9, 10.) (See Deeds, VII.) (See Evidence, 139, 140.) (See Bona Fide Purchaser, 3.) 1. Notice of equitable lien. Wliere a purchaser has notice of the existence of an equitable lien for the purchase money upon the land he buys, he will be bound by it, and econverso .Selby v. Stanley, 4 Minn. 65. 2. The filing of a chattel mortgage, under the law in force in 1857, was con- structive notice of the mortgage to all par- ties — following Lienan v. Moran, 5 Minn. 482. Eddy, Farmer & Co. v. Oaldwell, 7 Minn. 225. 3. Possession of land. A purchaser of land, knowing others are in possession, claiming a prior equity, (although the re- cords disclosed no right in their behalf,) is presumed to purchase with full notice of those others' rights and equities, Minor v. WillougKby & Powers, 3 Minn. 225 ; Seagar V. Bv/rris et al., 4 Minn. 141 ; Morrison et al. V. March, 4 Minn. 422. 4. What an insulAcient possession. A. by contract duly recorded, agreed to sell certain cultivated but unoccupied land to B., who assigned his interest to plaintiff with A.'s consent. Plaintiff went upon the land in Oct., 1863, and repaired the fences, verbally agreeing with A. not to plow till spring, prior to which time he enlisted in the army, and left the State. In May, 1864, A. conveyed to defendant, who had notice of the written contract, but not of the assign ment to plaintiff, nor of what plaintiff had done under it as aforesaid. fleW, as the land was unoccupied, the mere entering thereon by plaintiff in the fall, repairing fences, and agreeing with A. that he need not plow till spring, the defendant being ignorant of any such transactions, is not a possession to affect defendant with constructive notice of his rights. Smith v. Gibsori, 15 Minn. 89. 5. Record notice, — defectively executed instrument no notice. A bond for a deed, not acknowledged and having only one subscribing witneEs,is not entitled to record, and though recorded, cannot operate as no- tice actual or constructive. Minor v. Vil- loughhy & Powers, 3 Minn. 225. 6. Under Sec. 8, p. 398, Comp. St., which prescribes that all conveyances of real estate " shall be executed in the pres- ence of two witnesses, who shall subscribe their names to the same as such," and Sec. 54, p. 404, Comp. St., which requires the same to be recorded to be notice against subsequent purchasers, for a valuable con- sideration. Meld, a record of a mortgage purporting to have but one witness was not notice for any purpose. Parret v. Shaubert, 5 Minn. 823. 7. Where a party desires to purchase or take an incumbrance upon land, his guide as to the title is the record of the county, and it is a well settled rule that the record of a deed is notice only of its con- tents, so far as the record discloses it. If the record contains any instrument which is not authorized to be recorded, either from the nature of its subject matter, or a defect in its execution, it is a mere nuUityf and is not notice for any purpose. 1 b. §. Whenever the instruments forming the purchaser's chain of title disclose an in- cumbrance, he is equally bound by such notice as by the record of the instrument NOTICE. 251 Itself— c. g., whore a deed recited the exist- ence of a mortgage for purchase money not on record — or as by actual notice of the same, as in case of vendor's lien without mortgage. Daughaday ». Paine et al, 6 Minn. 443. 9. Clause in deed recognizing' lien. Plaintiff took by conveyance, duly execut- ed, which contained the following clause : "Subject to a mortgage executed by (grant- or) to W," said mortgage had but one wit- ness, hence void as such. Held, this clause is an express recognition by plaintiff of the existence of the defectively executed instru- ment, and of its nature as a mortgage, and being contained in a deed executed with all the formalities which should have been ob- served in the execution of the mortgage, ia,it would seem, so far as the grantor and plain- tiff are concerned, tantamount to a ratifica- tion or affirmance of the mortgage. Moss V. Worthington, 11 Minn. 438. 10. J., being the owner, conveyed to defendant, taking back a mortgage as se- curity. The mortgage was recorded, but the deed was not recorded. Afterwards defendant conveyed to plaintiff, which deed was recorded, when J. conveyed to Hi Held, the record of fee mortgage and defendant's deed to plaintiffs, no notice to H. Burke et al. v. Beveridge, 15 Minn. 205. 11. Chap. 52, Sec. 1, G. Laws, 1858, making attachment and judgment creditors stand as bona fide purchasers against an un- recorded conveyance, is expressly limited to conveyances thereafter made, and conse- quently cannot have a retroactive effect. Oreerdeaf v. Edes, 2 Minn. 270. 12. Qnit-claim deed and possession as notice. Swan conveyed to Bonham, deed never recorded. Bonham mortgaged to plaintiff, and then conveyed to Baldwin Brown, which mortgage and deed was re- corded in their proper order. Baldwin Brown possessed the premises for two years — Chas. Brown living with him — hav- ing in possession or having destroyed the original deed from Swan, after which time he took a quit-claim deed from Swan of his interest, for a nominal consideration of $1, and then conveyed to Chas. Brown, who claimed to be a bona fide purchaser for val- ue — expressed consideration $1000 ; actual, 1400. Meld, the quit-claim from Swan pre- supposed some interest in the grantee (B. Brown), and more particularly, he (Brown) being in actual possession, and Chas. Brown having lived with his grantor on the prem- ises, prior to the execution of the quit- claim deed, and having examined the rec- ords, and there found plaintiff' 's mortgage, and Bonham's deed to Baldwin Brown, he had such notice, which, if pursued with j reasonable diligence, would have led to knowledge of the unrecorded deed fi-om Swan to Bonham. Martin v. Brown et al., 4 Minn. 282. 13. Defense of want of notice. A de- fense on ground of want of notice never rests on proof alone — it must always be al- leged fully, positively, and precisely, though the fact of notice be not charged. Minor v. WiUoughby & Powers, 3 .Minn. 225. 14. Defective boundaries in deed on record — nonotice. R. and G. both claim a tract of land under a common grantor S. On Feb. 14, 1849, S. conveyed by warranty deed to R. described as follows : " One acre of land in the S. E. ^ of Sec. 32, T. 29, range 22, * * extending from the base of a bench of land north of the town of St. Paul, adjoining on the east by landed by J. T.,and on the west by land deeded by John Randall to Heniy M. Rice, said acre of land so de- scribed being two chains in breadth, and five chains in depth," which deed was duly re- corded March 2, 1849. On August 3, 1849, S. conveyed to G.'s grantor, one acre of land in Sec. 31, town 29, range 22. R.'s deed was intended to locate his acre in Sec. 31, so as to overlap on the west, part of the acre conveyed to G.'s grantor. The land described in R.'s deed as " adjoining on the east by landed by J. T.," had not been deeded to J. T., but he was occupying the same, claiming title, under an underatand- ing with the holder of the legal title that he was entitled thereto, and his boundaries 252 NUISANCE— OFFICIAL NEGLECT. being readily ascertainable, and adjoining li.'s acre on the east, nearly but not quite the whole length thereof. R., prior to his deed, was not in possession of the tract claimed. The west boundary in E,."s deed was wholly untrue. Held, G.'s grantor had no notice, constructive or otherwise, of R.'s title. Roberts v. Grace et al., 10 Minn. 126. 15. acts anterior to possession. R., prior to his purchase of the land in ques- tion had performed certain acts thereon. After R.'s purchase, H. purchased the same land. Held, said acts; of R. performed prior to his purchase was no notice to H. 76. 16. Attornment by tenant in posses- sion. Where there has been no visible change of possession, to indicate there had been a change of title, the attornment to the grantee, of a tenant holding under the grantor, will not supply the want of regis- try notice. 76. 17. Notice, what sufiBcient. It seems that notice, which will put a man on inqui- i-y, is such information as is suflficient to en- able him to conduct an inquiry to a success- ful termination, otherwise the general rule that a title shall not be impeached by un- certainties will prevail. 76. NUISANCE. (See Damages, 31.) (See Civil Action.) 1, While the continuance of a nuis- ance is, in law, a new nuisance, yet where the nuisance was not erected or caused by a party, but simply continued, he should be allowed to abate it on notice, without suit, before being subject to an action. Thomtm v. Smith et al., 11 Minn. 15. 2. Abatement and injunction discre- tionary Tvitli conrts. In actions to recover damages for nuisance, an abatement there- of, and a perpetual injunction against its continuance, under Sec. 25, Chap. 75, G. S., the abatement and injunction do not follow the recovery of damages as a matter of course, but their allowance rests on the sound discretion of the court. Finch v. Green, 16 Minn. 355. OBJECTIONS. (See Pkactick, II., 11, B. g.) OFFENSES AGAINST CHASTI- TY, MORALITY, AND DECENCY. (See Criminal Law, VIII, 5.) OFFENSES AGAINST LIFE AND PERSON. (See CBiMrnTAL Law, VIII, 6,) OFFENSES AGAINST PROPER- TY. (See Criminal Law, VIII, 7.) OFFICE DE FACTO. (See Office and Officer, V.) OFFICIAL NEGLECT. (See Criminal Law, 39.) OFFICE AND OFFICER. 253 OFFICE AND OFFICER. I. Generally. II. Qualifications. III. Who Entitled to an Office. IV. Vacancy. V. Officer de Facto. VI. Compensation. (See Mandamus, 3, 4, 5, 10.) - (See Sheriff.) I. Generally. 1. Presumption as to official character of officer in making contracts,— liability. Where a person known to be a public offi- cer contracts with reference to the public matters oonimitted to his charge, he is pre- sumed to act in his official capacity only, though the contract may not in terms al- lude to the character in which he acts, un- less by unmistakable language he assumes a personal liability, or is guilty of fraud or misrepresentation. Sanborn v. Neal et al., 4 Minn. 126. 2. Whenever a public officer makes a contract fairly within the scope of his au- thority, the presumption of law is that he made it officially, and in his public charac- ter, unless the contrary appears by satis- factory evidence. St. A. D. Baicombe v. Northup et al., 9 Minn. 172. II. QtJALIFICATION. 3. Residence. Under the Territorial Law, six months' residence was necessary to make one eligible to office. The six months must have accrued before the elec- tion, not before the officer qualifies. Terri- tory of Minnesota ex rel. B. F. Pa/rlcer et al., V. Smith 3 Minn. 240. 4. The law of the territory placed the necessary residence of a candidate for of- fice at six months. The provisions of the constitution placed it at four months. At the election of 1857, the people voted for the adoption of the constitution, and for all officers contemplated by it. Held, that a residence of six months was necessary to make any candidate eligible to the office of District Attorney — the constitution not be- coming operative until after the election. Ih. III. Who Entitled to an Office. 5. One holding certitlcate of election, and having qualified, is prima /acie entitled to the office — following Crowell v. Lam- bert, 10 Minn. 369. Atherton v. Sherwood, 15 Minn. 221. IV. Vacancy. 6. Death of officer elect before entry, does not create a vacancy. G. having been elected Register of Deeds at the annual election in Nov., 1868, for the term com- mencing in Jan. 1, 1869, died in Dec, 1868, before qualifying or entering upon the dis- charge of that office. Held, G.'s death did not create a vacancy in the office, that not being in possession of the office he was not aa 'Hncumbent" thereof, within the mean- ing of Sec. 3, Chap. 9, G. S., and as the law stood, E., the then Register, had a right to hold until Jan. 1, 1871, for no successor could be " appointed " under the statutes, and the next election was in Nov., 1870. State ex rel. Loring v. Benedict, Auditor, et (d., 15 Minn. 198. 7. Legislative power to appoint to un- expired term— power to declare a va- cancy? The newly elected Register of Deeds having died before his term of office commenced, and the old Register under the law being entitled to hold over until a suc- cessor was elected and qualified, which could not be for a year thereafter, the Leg- islature passed an act declaring the office vacant, and authorized the Boai-d of Com- missioners to fill the office by appointment for and during the term beginning Jan. 1, 1869, and ending Jan. 1, 1871. If the Legis- lature had no power under Sec. 2, Art. 13, Con., to declare such vacancy, the old regis- ter would hold over and relator would not be entitled, and if the act had gone no farther, an election in 1869 might have been proper; but the act provided for an appointment of a 254 OFFICE AND OFFICER— PART PAYMENT. successor for the unexpired term, which was within the power of the Legislature, Sec. 4, Art. 11, Const., being complied with by the statute providing for general elections of officers, leaving the power of appoint- ment to fill vacancies until the next gener- al election, or for the balance of an unex- pired term, as may be deemed advisable. Ih. V. Officer de Facto. 8. Entitled to salary. A^Board of Su- pervisors of a county are authorized in paying a salary,attached to an office, to the de facto occupant of the same — and the of- ficei- de jure must seek his remedy against the tie /ac/o officer so receiving the salaiy; and doubted whether the Board could pass upon the respective rights of such officers by refusing to pay the salary to the de facto occupant. Parker v. Board of Super- visors, Dakota County, 4 Minn. 59. 9. Who is oiBcer de facto. The acts of an officer de facto are valid as far as they affect the public — and one in possession of an office by color of an election, and hold- ing the certificates of an election, is an offi- cer de facto. lb. 10. Acts of officers de facto are valid as to the public or third persons. McCormick et a. V. Fitch, 14 Minn. 252". 11. An objection that " the judge had no authority to sit on the case, because his term of office had expired," is a question that cannot be determined in a collateral proceeding. He was an officer de facto, and until his right to an office is settled by a direct proceeding for that purpose, it can- not be questioned. State v. Brown, 12 Minn. 538. VI. Compensation. 12. A public officer cannot receive, for performing any official duty, any other compensation or reward than that which is prescribed by law. Warner v. Grace et al., 14 Minn. 487. 13. An officer— chief of police— who performs nothing but his official duty in the arrest and conviction of an incendiary, is not entitled to a reward offered for such arrest and conviction. Day v. Putnam Ins. Go. et al., 16 Minn. 408. OFFICIAL TRUST. (See Trusts and Trustees, II.) ORDERS. (See Practice, II., 18.) ORDINANCE OF 1787. 1. The Ordinance of 1787 does not em- brace the Mississippi River, in providing that "the navigable waters leading into the Mississippi and the St. Lawrence,^ and the carrj'ing places between the same shall be common highways and forever free," etc. Castner et al. v. Steamboat Dr. Franklin, 1 Minn. 73. PAROL EVIDENCE. (See Evidence, IX.) PARTIES TO ACTIONS. (See Civil Action, XVIII.) PART PAYMENT. (See Limitation of Actions, IV.) PART PERFORMANCE— PARTNERSHIP. 255 PART PERFORMANCE. (See Equity, II., c. 1, 2.) PAROL CONTRACT TO CON- VEY LAND. (See Equity, II., c.) PARTNERSHIP. . What Const[tdtbs a Partner- ship. II. KiGHTS OP Partners among Themselves. III. Power of a Partner. IV. Liability of Partnership to Third Persons. V. Partnership Real Estate. VI. Admissions by one Partner. VII. Evidence of Partnership. VIII. Partnership Assets, Lialility of to Creditors of Partners. IX. Actions by and against Part- nerships. (See Assignment, II., 5.) (See Evidence, 157.) (See Pleadings, 99, 100, 101, 102, 103.) I. What Constitutes a Part- nership. 1. Tenants in common of a boat are partners as to its business, and their busi- ness transactions are governed by partner- ship laws. Eussell v. Minn. Outfit, 1 Minn. 162. 2. Signatures to articles not necessary. If C. was a dormant partner, or held him- self out) as a partner in the company, and ratified and approved of the agreement made by the company's agent with plain- tiff, he is liable jointly with the partner- ship, although he did not sign the partner- sliip articles. Wood v. OvMen, impH, 13 Minn. 394. ' 3. Receipt of profits as such. D. and K. were engaged in the business of pur- chasing and selling beef, the former furn- ishing the capital, the latter the labor, skill and care necessary to carry it on, each participating in and receiving a siiare of the profits, as profits. Held, this made them partners as to tliird parties. Wright et al. V. Davidson, 13 Minn. 449; Warnir v. Myrick, 16 Minn., 91. 4. When profits, as snch, are not di- vided — no partnership. D. owned the boat " Chippewa Falls," and K. the " Paim- sey." D. and R. agreed that at the end of the season, if the earnings of either boat, less running expenses, exceeded those of the other, less ]-unning expenses, the ex- cess was to be divided. Hdd, D. did not become the owner of the excess until divis- ion, his claim is not upon the earnings of the "Rumsey," in specie, but a claim against R. personally, the latter being the exclusive owner of the earning of the boat " Rumsey." R. exclusively owning the boat, its earnings, andj manager thereof, and exclusively hiring and controlling the employes, he was sole principal, so that D. would not be liable for the wrongful act or negligence of tlie employes of the '•Rumsey," nor co-partner with R. Fay V. Davidson, 13 Minn. 523. 5. Division of profits constitutes part- nership. Where plaintiff, a deck hand on the steamboat " Albany," had been injured by the explosion of the boiler of the steam- boat " Jolm Rumsey," and plaintiff' intro- duced evidence, in an action against D. & R., tending to show that the latter jointly owned and managed the " Rumsey," and D. introduced evidence to prove that the "Rumsey "was owned and managed by R., and that R. being the owner of said boat and another, and D. several, " Chip- pewa Falls " among otliers, and D. and his brother owning the " Albany," each ex- clusively running his own boats, they liad agreed to divide in certain proportions the earnings of said boats at the close of the 256 PARTNERSHIP. season. The Court charged, " if R. owned the 'John Rumsoy,' and D. the ' Chippewa Falls ' and other boats, and it was agreed between them that eacli should emploj' the men and manage his own boats, and at the end of the season divide the profits, that made them partners in running the boats, and each responsible for the carelessness and negligence of the officers and men of each boat. Held, correct in point of law, the presumption being that the language was used and understood by the jury as an agreement for a divisjon of profits as such, which would vest a present interest or ownership in tliem as they accrued, and before division, and such an agreement constituting them partners as to third per- sons. OonnoUy v. Davidson et al., 15 Minn. 519. 6. If D. is equaUy interested with R. in the earnings and profits of a boat that makes them partners in running the boat — for equality, imparts equality in all re- spects. 1 b. 7. A contract between A. & B. to con- struct and put in operation certain mills, each furnishing materials and money; and that after the mills were completed, B. should operate them on joint account, each furnishing one half the funds and receiv- ing half the profits, but A. guaranteeing that the profits thus coming to B. should equal 10 per cent, per annum on the amount invested by him, exclusive of his labor, does not malie A. & R. partners in the mills themselves, but in the business of running them. Moody v. Bathburn, 7 Minn. 89. 8. A., of the first part, and B. & C. of the second part, entered into an agreement of co-partnership for one year, containing a stipulation that, at the expiration of that time C. might elect to take a specified sum as salary in lieu of one-third the profits, etc. At the expiration of the time C. elected to receive, and did receive the sum specified as salary. Held, he thereby as- sumed the obligations of an employ^ and avoided the obligations of a co-partner — as between themselves; and M.'s action left A. & B. co-partners as before. ?). Madison, 10 Minn. 13. Bidwell etal. II. Rights of Partners among Themselves. 9. Power of partner to assign personal claim. A captain of a boat and part owner, may assign a claim against another part owner — tenant in common, for freight — to a third party, and the debtor and part owner cannot set up his partnership equi- ties as a defense. Bussdl v. Minn. Outfit, 1 Minn. 162. 10. Sharing losses. It seems that, from an agreement to share profits, the law will ordinarily imply an agreement to share losses. Warner v. Myrick, 16 Minn. 91. 11. Partner's claim as salary. A partner employed by the partnership to conduct the business cannot sue the part- nership for his salary — a fair and full ad- justment of the equities between the parties and a determination of the real merits of the plaintiff's claim, would seem to require an investigation of the partnership ac- counts. Woodv. OuUen, impH, etc., 13 Minn. 394. 12. Riglit of partner to an acconnting. Plaintifl' and defendants, T. & B., entered into partnership for manufacturing staves, etc., T. & B. furnished a mill and machin- ery, plaintiff was to contribute |3,000 money, but actually furnished only $2,500. The "articles" provided that at the de- termination of the co-partnership the partners were to make to each other a just, true and final account of the business, and at such determination, saidT.&B should retain the mill, and plaintiff should be paid such sums as he advanced, and then they were to share alike in profits or losses. The business having proved un- successful by reason of the improvident, unskilfuU and inattentive manageinent of T. & B., whereby all plaintiff contributed was lost, and debts contracted against the firm, the plaintiff at the termination of the partnerahip being unable to ascertain from PARTNERSHIP. 357 T. & B., who managed the business, the precise condition of affairs, and disputes having arisen between plaintiff and T. & B., in reference to claims made by the lat- ter, and transactions of the firm, plaintilf prays for an accounting. Seld, plaintiff is entitled to an accounting, plaintiff's failure to contribute the full $3,000 being proper for consideration in . tlie final adjustment, but it no way affects his interest and right to secure such interest; and plaintiff had a lien on the mill, as on all other assets of the concern, until the whole business was ad- justed, and the partners were ready to set- tle among themselves, the stipulation in the articles having reference to a final settle- ment between the parties. Palmer v. Tyler et al., 15 Minn. 106. III. Power of the Partner. 13. Implied authority within general scope of partnership. Each partner has an implied authority to bind the firm in all matters within the general scope of the business in which the partnership is en- gaged; but not in any engagement uncon- nected with and foreign to the partnership, and in such a case affirmative evidence of the consent of other members would be necessary to bind them. Bank of Gom- merce i). Sdden, Withers & Co., 3 Minn. 155. 14. No person to accept his individual check on the firm. Where a partner drew his individual check on his firm in favor of plaintiffs, himself accepted it in name of the firm, without knowledge of the firm or being presented to it; he giving collateral securities, the plaintiffs agreeing to keep the check, on interest being paid by the maker, so long as they did not want money. Held, the partnership could not be held on such acceptance, without plaintiff first showed that they had authorized it or rati- fied it afterwards. 1 b. 15. Cannot guaranty, A partner may assign a note, debt, or judgment against a third pai'ty, within the scope of his business and for the benefit of the firm 33 — but he cannot guaranty/ it in name of the firm. (Opinion.) Selden, Withers & Co. y. Bank of Gommerce, 3 Minn. 166. 16. Where the note of third persons payable to plaintiff, was guaranteed by a single partner in name of the firm. Held, plaintiffs' right to recover against the firm, depended entirely on the fact of the partner's authority, express or implied, or subsequent recognition or adoption of his acts by the firm, and not on plaintiffs' helief at the time the transaction took place. lb. IT. Implied authority within partner- ship business. One co-partner is not necessarily bound by the act of another; there must be an authority, express or im- plied. Co-partners are presumed to have authority to act on behalf of their firm in all matters of partnership business, but even in such a case it is important that the act of one partner, by which it is sought to bind the firm, should appear to be author- ized or recognized by the others, or clearly within the scope of the partnership busi- ness. Irmne et al. v. Myer« & Go., 4 Minn. 229. 18. Ifo power to take claim out of stat- ute of limitations as against his co-part- ner. R. & H., co-partners, were indebted to plaintiffs, after their dissolution, and the statute had commenced to run, H. agreed that " the balance due from the under- signed to [plaintiffs] shall not be barred by the statute of limitations, $2,865.66. (Signed) R. & H., in liquidation. By fi"." HM, whatever effect it might have to H. it could have no effect as to R., the other partner. Whitney et al. v. Beese et al., 11 Minn. 138. 19. Power to make a general assign- ment. Under ordinary circumstances, one partner cannot, without the assent of his co- partner, make a general assignment of the partnership property for the benefit of creditors; yet if an extraordinary emer- gency occurs in the affairs of the partner- ship, and the non-assenting partner can- not be consulted on account of his absence, under circumstances wliich furnish reason- 258 PARTNERSHIP. able ground for inferring that lie intended to confer upon the assigning paitner'au- thority to do any act for the firm which could be done with his concurrence if he were present, such an assignment, if fairly made, will be presumed, prima facie, to be valid. Stein et al. v. LaDue, 13 Minn. 412. 20. One partner has no authority to make a general assignment for the benefit of creditors without the assent of his co- partner, because the creditors were press- ing the firm at a time when the most active partner was out of the State, temporarily absent from his place of business, his re- turn being daily looked for, although that absence was unexpectedly protracted, and it appears that he did return in three or four days after the execution of the assignment. n. IV. Liability of Paetnership to Third Persons. 21. Not bound by act of partner out of scope of ordinary business. The pub- lic may deal with a partner in the full be- lief that he has authority to act for the firm in all things fairly pertaining to the partnership business. But if the partner be, dealt with, with knowledge that the partnership is limited on matters not with- in the range of the partnership business, (as if he receives money from him on his individual debt, knowing it to be partner- ship funds), the firm is not bound unless he show a previous authority, or subsequent assent, on part of remaining partners. And in such case the burden of proof is on the other party, not on the firm. Selden, Withers & Oo. v. Bank of Commerce, 3 Minn. 166. 22. Not liable on guaranty given by partner— prima facie. Where the note of third persons, payable to plaintiffs, was guaranteed by a single partner in name of the firm. Held, the firm was not liable, without plaintiff first showed authority assent or recognition by the other partners, — and this on the supposition that the firm was interested in the note, or the consider- ation on which it was given, lb. 23. Onus of proof where partnership note, etc., is given for individual debt. Where a partnership note is given for pri- vate debt of a partner, or partnership name is used for the accommodation of, or as surety of partner or third person, and it is known by tlis creditor at the time, or implied from the nature of the transac- tion, the onus is on the creditor to show previous authority of partnership, or sub- sequent consent. Bank of Commerce v. Selden, Withers & Co., 3 Minn. 155. 24. Conversion of property by part- ner to partnership use. Where one pai-t-- ner unlawfully takes goods of another on account of the partnership, and converts the same to partnership use, the partner- ship is liable, without showing any express authority from the other co-partners. Van- derburgh et al. V. Bassett, 4 Minn. 242. 25. Liability for act of one where a " board of directors " were to do the business. Plaintiff sought to bind the de- fendants as co-partners, by virtue of a contract of insurance; having shown by their articles of agreement that the busi- ness was to be done by a board of directors — without showing that the organization had been completed — he offered to show that " several members had assumed to act for the rest; had built a boat; certain members had accepted it in the company's name, and given notes in co-partnership name, and agreed to secure the notes by a policy of insurance on the boat, to be taken in name of the company, and assigned, etc. ; and that one Gilbert was acting mas- ter of the boat, with the consent of the de- fendants, and that he effected the insur- ance, assigned it, and the premium is un- paid." The judges were of the following opinions: — Flandrau, J.: There being a partnership between the defendants, the master being one of them, he had the power to effect the insurance in the name of the company, and bind them for the premium, and the evidence should have been admitted. Emmet, C. J. : Plaintiff PARTNERSHIP. 259 having shown that the "Board of Direct- ors " alone had power to make contracts, he is presumed to have been aware of that fact at the time of the contract, and could not bind the company In the way he pro- posed, without showing assent or ratifica- tion. Atwatee, J. : Complaint charged defendant? as an organized company, but he had failed to establish the existence of such company, signing of articles not be- ing sufficient for that purpose — ^the pro- posed evidence was properly ruled out. Pennsylvania Ins. Go. v. Murphy, 5 Minn. 36. 36. Statute of Limitations may run in favor of one partner, and not ag'ainst otiiers. Where A., B. and C, as co-part- ners, contracted with D., and A. and B. removed from the "State, C. remaining. Hdd, D. might maintain an action against A. and B. on their return, although the statute of limitations had barred the action against C. Town ■». Wasliburn et al., 14 Minn. 268. V. Partxership Real Estate. 27. In eqnity it is treated as personal property. Partnership real estate is, in equity, treated as mere personal property, and governed by the rules and doctrines applicable to that species of property. Ar- nold et al. u. Wainwright, 6 Minn. 358. 28. Where land is partnersliip stocit. It depends upon the agreement of the part- ners whether land shall be deemed part of the partnership stock. That agreement may be by parol, or such facts and circum- stances attending its acquisition or use as will raise an implied agreemen tjto that effect. Where this does not appear on the face of the conveyance, the legal estate will be controlled by the terms thereof, but equity will look upon it as partnership assets. 76. 29. Kesulting trust in favor of part- nersliip, on conveyance to partner. The statute of uses and trusts (Comp. St. 383- 3-4) does not cut off- the trust in favor of a partnership where lands are conveyed to individual m^^nbers of a firm otherwise than as pai-tners, on an agreement between them, express or implied — though by parol — that it shall be used as partnership prop- erty, lb. 30. Bights of bona flde purchasers where conveyance vests title in partners as tenants in common. If partnership lands, by the terms of the conveyance, vest the title in the several members as tenants in common, then the trust which exists be- tween the partners cannot be enforced against bona fide purchasers or mortgagees without notice, (Comp. St. p. 382, Sec. 10,) but contra as to purchasers or mortgagees from one partner or his representatives, with notice that the land is partnership property. lb. VT. Admissions by one Partner. 31. Admission by one partner not con- clnsive proof of partnership. Plaintiff's sued defendants jointly, as late partners. One defendant denied the facts set up in the complaint, but alleged certain other facts which admitted a claim against the late partnership. Plaintiff''s reply de- nied the "new matter." The other de- fendant admitted an indebtedness of $40, a:gainst the old partnership. Ko joint con- tract was proved. Held, one partner hav- ing denied the complaint, consequently the partnership, the admission of the other was not conclusive, and no other proof beino- offered, it might be held insufficient by the court. Beatty & Steadman v. Ambs & Witt- man, 11 Minn. 331. 32. Admission insufficient proof of joint contract. Even supposing an ad- mission made by one partner after a dis- solution will bind the Arm, it is not con,- clusive, and the joint contract must be proved aliunde. lb. VII. Evidence of Partnership. 33. Proof by articles of co-partner- ship. PlaintiflF complained against de- fendants as co-partners or corporators, and offered in evidence the articles of a^ree- 260 PARTNEKSHIP— PAYMENT INTO COURT. ment, without proof of signatures under the statute. Ruled out on that ground. He then proved the signatures of all but nine, whom he dismissed, and again offered the articles. Held, plaintiff was entitled to introduce the agreement in the first In- stance, under the statute, (Sec. 80, Comp. St. 685,) and being compelled under the ruling to dismiss as to part, he had a right to treat the company as consisting of those members whom he had been able to make proof against — and defendants could not first compel him to dismiss, and then take advantage of It. Pennsylvania Ins. Co. v. Murphy et al., 5 Minn. 36. 34. In an action against D. as surviv- ing partner of D. & K., butchers, it ap- ■ peared tliat one of plaintift's purchased cattle for D. & K., and the other plaintiff testified that forty-three head were slaugh- tered for them, and another witness testi- fied that D. received part, at least, of the property purchased by plaintiffs. Sdd, the facts being admitted, sufHclent proof that' D. was co-partner with K. In this transaction. Wright et al. v. Davidson, 13 Hinn. 449. 35. Holding themselves out as part- ners in the transaction of business, makes persons liable as partners, to third persons, and is prima facie evidence of partner- ship in an action by the persons so holding themselves out, or those claiming under them. McCarthy v. Naali, 14 Minn. 127. 36. For a statement of evidence which justifies a finding that certain parties were partners in business, see Tozer et aZ. v. Her- shey, 15 Minn. 257. VIII. Partnership Assets, Lia- bility TO Creditors of Indi- vidual Partners. 37. On the dissolution of a partner- ship, the property is first subject to part- nership debts, and then Is distributed among the Individual members — and firm property cannot be diverted in any other channel. Pease, Okalfant & Go. v. Rush et al., 3 Minn. 112. 3§, After an attacliment in iiands of third party. M. was indebted to Derby & Day, and the sheriff attached Day's interest in the co-partnership debt. Held, that fact constituted no defense to an ac- tion on the part of the other partner, Der- by, on behalf of the firm D. & D., for the officer took only Day's Interest after settle- ment of firm debts and an accounting, and the other partner had a right to all the assets, to close up the co-partnership af- fairs. Wilson, C. J., dissents. Day et al. V. McQuillan, 13 Minn. 205. IX. Actions by and against Part- nership. 39. Proof of name immaterial. Plain- tiff's co-partnership being in Issue, they proved the_co-partnershlp without proving the co-partnership name. Held, sufficient, the co-partnership, juot the name, being material. Stickney & Garli v. Smith, Baker & Co., 5 Minn. 486. 40. Joint promise must be proved. In an action against defendants as part- ners, on their joint promise, plaintiff must prove the joint contract, and recover against both defendants, or he cannot re- cover at all. Whitney et al. v. Beese et cd., 11 Minn. 138. PAYMENT INTO COURT. 1. Payment into court, wliat is. To constitute a payment into court, the pay- ment must be made under a rule or order of the court to that effect; the reason be- ing, that a payment under such rule is a judicial admission by the party making it, of the facts Implied by the payment, in favor of his adversary. In the absence of such rule, it Is no such admission. David- son V. Lamprey, 16 Minn. 445. PAYMENT— PLEADING. 261 PAYMENT. (See CONTKACT, IX.) (See Evidence, 153.) (See Equity, 7.) PENALTY. (See Dama&es, 6.) (See Interest, V.) PERSONAL PROPERTY. (See Trusts and Trustees, 18, 19.) PERFORMANCE. (See Contract, VIII. ) PETIT JURY. (See Criminal Law, 64.) PETIT TREASON. (See Criminal Law, 132.) I. General Rules Concerning Pleadings. II. What should be Pleaded. a. Facts only. b. Facts not pleaded useless, e. Matters judicially noticed. III. How Facts should be Plead- ed.. IV. Particular Averments. a. Those lidd sufficient. b. Tlwse held insufficient. V. Verification op Pleadings. VI. Construction of Pleadings. VII. The Complaint. a. Joinder of causes of action. b. Complaint by or against per- sons in special capacities. c. On contract generally. d. In particular actions. 1. Actions on joint contracts. S. Actions for money had,etc. S. Actions for goods sold, etc. 4. Actions for use and occu- pation. 5. Actions for work and la- bor. 6. Actions on negotiable irir- struments. 7. Actions on norir-negotidble instruments for the pay- ment of money. 8. Actions for unliquidated damages for breach of contract. 9. Actions for injuries to personal property. 10. Actions for daim and de- PLACE OF BRINGING THE AC- TION. (See Practice, II, 4.) PLEADING. A. PLEADING BEFORE THE CODE, m EQUITY. B. PLEADING UNDER THE CODE. 11. Actions for injuries to the person. IS. Actions for injuries to real property. 13. Actions to recover the pos- session of real property. 14. Actions given by statute. 15. Actions for equitable re- lief. 16. Actions for forciMe entry and detainer. 262 PLEADING. VIII. The Answer. a. Time to answer. h. Who may answer. c. Joinder of defenses. d. Inconsistent defenses. e. Counter claims. 1. Generally. 2. Effect of counter claims. S. When allowable. 4- In particular cases. f. General denial. g. Qualified denial. h. Denial of knowledge or infor- mation, etc. i. Denial of conclusion of law. j. Allegation of new matter. k. Negative pregnant. I. Wliat must he denied. m. Evidence admissible under dif- ferent denials. n. Denials in particular cases. p. Answer in particular cases. IX. The Reply. X. The Demurrer. a. b. When it lies. 0. When it does not lie. XI. Supplemental Pleading. XII. Depbctite pleading and Rem- edies Against. a. The motion to strike out. 6. Irrelevancy and immaterial- ity. c. Sham pleading. d. Indefiniteness and uncertainty, e. Frivolous pleading, XIII. Waiver of Defects in Form AND Service of Pleading. XIV. Defects Aided bt Verdict. (See Justice of the Peace, IV.) (See Municipal Corporation, 5, 6.) (See Notice, 13.) (See IT. S. Land, 22.) A. PLEADlSr(J BEFORE THE CODE, IN EQUITY. 1. A. bill in chancery may contain not only any issuable fact, but any matter of evidence or collateral fact, the admission of which by the defendant may be material in establishing the general allegations of the bill as a pleading, or in ascertaining the limit or nature of the relief sought. Good- rich V. Rodney et al., 1 Minn. 196. 2. An original and supplemental bill make but one pleading, and so far as they conflict, destroy each other. Such inconsist- ent and conflicting averments are not well pleaded and are not admitted on demurrer. Ghoteau et al. v. Bice et al., 1 Minn. 109. 3. New matter arising after the filing of the original bill cannot be brought in by amendment — only by supplemental bill. Ghoteau et al. v. Rice et al., 1 Minn. 100. 4. The objection that the statements of the supplemental bill are vague and uncer- tain — is to their form and manner, and not good on general demurrer. lb. 5. In chancery special replications are now disused and general replications, deny- ing and putting in issue the matter of the plea, are the only ones allowed. lb. 6. Deeds, writings, and records recited in a pleading in hoc verba are impertinent. Goodrich v. Rodney et cd., 1 Minn. 196. 7. Pertinency of allegations. To as- certain whether an allegation in a bill is pertinent, see whether an issue can be found out of it which will be material in obtain- ing the relief sought. lb. 8. Relevancy of the discovery of facts sought in a bill, is determined by reflecting whether the facts if admitted, etc., would tend to establish the bill. Matters alleged not material to support the bill are import- ant, and if reproachful, scandalous. But to be scandalous it must be impertinent. lb. B. BLEADING UNDER THE CODE. I. General Rules Concerning Pleading. 9. Designation of the coart. It is not error to designate the District Court of the Territory as "United States District Court," because in a qualified sense they are such, PLEADING. 363 being created by the United States. Cha- teau V. Rice, 1 Mlun. 192. lO. Names of the parties. It is bad practice to designate either plaintiff' or de- fendant, in a judicial proceeding, by the initial letters of their names, but 'lemur- rer will not lie for such a defect. Qard^ ner v. McOlure et cU., 6 Minn. 250. It. In entitling a cause, the* full names of the parties should be stated, and the court is unwilling longer to apparently sanction the mere designation of parties by their initials. Knox & West v. Starks, Sears & Matteaon, 4 Minn. 3C. 12. Descriptio persoiiarum. An ac- tion against "P., I. and S., supervisors of the town of Newport," is against the de- fendants as private persons — the addition "supervisors," etc., being descriptio person- arum only. Sblton v. Parker et id., 13 Minn. 383. II. What Should be Pleaded. a. Facts only are to ie pleaded. 13. A complaint set up all the facts in the case, and then went on and averred a special contract with defendant. Seld, that the averment iu relation to the special un- dertaking might be treated as surplusage, and a failure to prove it should not pre- clude a recovery, if the facts proved sus- tain the action. Steamboat War Eagle v. Nutting, 1 Minn. 259. 14. Facts, not evidence. When the in- tention with which a party does an act be- comes material, such intention is the fact wrhich must be pleaded, and not the cir- cumstances tending to establish it, for that would be pleading the evidence. Wilcox db Barber v. Davis, 4 Minn. 197. 15. For equitable relief same facts as before the code. Although all causes of action, both equitable and legal, are to be prosecuted as a cioil action, yet the facts necessary to be pleaded to obtain equitable relief are the same now as before the c'ode — and unless they are set up, nothing but legal relief can be granted. FuUis e. Fridley, 9 Minn. 79. 16. On contract, the portion broken only. In pleading it is only necessary to state the portion of a contract which has been broken, and according to its legal ef- fect. Estes V. Farnham, 11 Minn. 423. 1 7. An exception in the enacting clause of a statute must be negatived in plead- ing; a proviso need not be. Faribault et al. V. Hulett et al., 10 Minn. 30. 1§. Anticipating defense. A complaint may set up facts which anticipate the de- fense of the statute of limitation. Hoyt et al. V. McNeU, 13 Minn. 390. 19. An estoppel in pais need not be pleaded under the code. It is not a fact to be pleaded, but is in the nature of con- clusive evidence of facts already pleaded. Caldwell v. Auger & Herbert, 4 Minn. 317. b. Facts not pleaded, useless. 20. A party .cannot avail himself of a promise of defendant to pay the debt of another which he has not pleaded. Emmet et al. V. Rotary MUl Co., 2 Minn. 290. 21. Jfo proof of facts not pleaded ad- missible. Demand and refusal cannot be proved unless alleged in the pleadings — because they are material facts. McLaine V. White, 5 Minn. 178. 22. No judgment can be entered on facts not pleaded. Where there is a total want of any allegation, in the pleading, of the subject matter as a ground of action or defense, the want of such allegations is not cured by Sec. 86, 87 and 88, Chap. 70, of Revised Statutes, p. 340, so as to allow of a decree to be founded upon the proof without allegation. Loomis u. Toule, 1 1 Minn. 175. 23. If in the examination of wit- nesses facts come out, which, had they been alleged, would furnish ground for relief or defense, such facts must be disre- garded unless they are warranted by the allegations of the pleadings. Finley v. Quirk, 9 Minn. 194. V. Matters judicially noticed. 24. Private statute recognized by a 364 PLEADING. public act. Courts will take judicial no- tice of a private statute which is recog- nized by a public act. Hence the ' act en- titled "an act to reduce the law incorpor- ating the city of St. Paul, In the county of Ramsey, and State of Minnesota, and the several acts amendatory thereof into one act, and to amend the same," approved March 20, 1868, being by its terms a pub- lic act, the court would take judicial no- tice that the city of St. Paul was a corpo- ration, incorporated March 4, 1854, and possessed the authority given by that act and acts amendatory thereof, to levy, as- sess, and collect taxes. Webb v. Sidwdl, 15 Minn. 479. '25. Statutes of another State.not ju- dicially noticed. Courts of our State do not take judicial notice of the statutes of anotiier State, and where a party relies upon the law of a foreign State, such law must be pleaded, and so far as it is relied Oil, its terms must be set forth, that the court may determine whether the effect claimed for the law is legitimate. Soyt et al. V. McMii, 13 Minn. 390. III. How Facts should be Plead- ed. 2S. Facts in pleading' must be alleged directly and positively, and not by way of rehearsal, argument, inference or reason- ing; and if not thus alleged, they are not admitted by a failure to traverse them. MouUon V. Doran et al., 10 Minn. 67. 27. Facts must be alleged directly, and not by way of recital, argument, in- ference or reasoning. Taylor ■». Blake, 11 Minn. 255. IV. Particular Averments. a. Those Iield sufficient. 2§. Attachment under which defend- ant justifies, existence of. Where, in claim and delivery, an answer of an oflfl- cer who justifies the taking under certain attachments, averred that " defendant took said property as the property of H., (whose property it is claimed it was,) under and by virtue of certain writs of attachments, duly allowed and issued out of and under the seal of said court, in certain suits there- in pending, wherein James W. Druser, William W. Hoyt & Co., Norton and Tut- tle, * « * and other parties, creditors of said H., were plaintiffs, and said H. de- fendants." Seld, sufHoient averment of the attachments and order of the court al- lowing the same, especially where the plaintiff did not show that he was misled to his prejudice. Better pleading, how- ever, if the pendency of the action had been alleged more definitely by designat- ing the pi lintiffs in each action. Blaclcman V. Wlieaton, 13 Minn. 326. 29. Bonds, execution of by corpora- tion. A complaint alleged that defendant is a corporation, and that it, by its duly elected and qualified officers, and under their hands and seals, executed the bond sued upon. Meld, these facts, admitted by the demurrer, constitute a suflScient aver- ment of the execution of the bonds by de- fendant. Wilson et al. v. Board of Educor- tion of Town of Minneapolis, 11 Minn. 371. 30. at legal session of their board. Where the execution of a bond was mate- rial, and the complaint charged that the "defendants executed in .due form of law and issued" the bond, etc. Held, it suSi- ciently appeared that the defendants exe- cuted the bond at a legal session of the board. Nininger v. Oommissioners of Oar- ver Count)/, 10 Minn. 133. 31. Bank, incorporation of. For alle- gations, which together amount to a suffi- cient averment of an incorporation of a bank, see Yale v. Edgerton, 14 Minn. 194. 32. Corporate character of defendant. An allegation that " the defendant is a cor- poration or company, established and do- ing business under and by virtue of the laws of the State of Illinois," is a suHicient affirmation of the corporate character of the defendant. Browne et al. v. The Ga- lena D. D. & M. Packet Co., 9 Minn. 239. PLEADING. 266 33. Cause of action, plaintiff's inter- est tliereiu. Where a deed conveyed cer- tain lands therein described speciflcally, and then contained general clauses trans- ferring the right, title and interest of the grantor in and to any lands, chattels, etc., to which she was then or might at any fu- ture period be entitled as heir at law of her deceased father, or certain deceased brothers and sisters, allegations in a com- plaint to set aside such deed for fraud, showing plaintiff's heirship to such de- ceased persons, and the existence of inher- itable property at their death, relates to plaintiff's interest sought to be passed by said general clauses in the deed, and does not affect the general allegation of title in fee to the land speciflcally conveyed, so as to make the complaint insufficient for want of showing sufficient interest in plaintiff to maintain the action. Buckholz et al. v. Orant et al, 15 Minn. 406. 34. Damages. Where the complaint alleged a gross sum in damages, it was suf- ficient to warrant the reception of evidence in regard to the different items of damages of which the aggregate sum is alleged to be composed. Bast v. Leonard et al., 15 Minn. 304. 35. Election, notice of, and holding thereof. Complaint alleged "that said defendant, on, etc., for the purpose of paying said indebtedness, and pui-suant to the provisions of said act, duly called and ordered an election of the legal voters of said town of Minneapolis, for the purpose of voting for or against the issuance of bonds by said defendant in said sums there- for, to be lield at, etc., in said town, upon the 2d day, etc. ; that prior to said last named day, due and public notice of said election was given, according to tlie pro- visions of said act, which notice was duly printed, published, and posted, and con- tained the purpose aforesaid for which said bonds were to be issued, and all the requisite and necessary statements, and was in substance and form, and in all things as required by said act ; that upon said 2d day, etc., said election was duly 34 held, and conducted in obedience and con- formity to said act, and said notice there- of, at which said election a majority of the legal voters present, and voting thereat, voted for the issuance of said bonds," etc. Held, tliese allegations as to the election ordered, and the notice thereof, and the holding the election, are sufficient. They are conclusions of fact, or at least not such purely legal conclusions as to be objection- able in pleading. Wiley et al. d. Soard of Education of Town of Minneapolis, 11 Minn. 371. 36. Execution, that it issued regular- ly. The answer showed that judgment was doclveted "December 1," 1862, and that "on or about 28th ISTovember, 1862," execution issued out. Hdd, it not appear- ing absolutely that execution issued bpfore the docketing of the judgment, the pre- sumption of law is in favor of the regular- ity of the proceeding — it being a court of general jurisdiction — distinguished from Lockwood ». Bigelow, 11 Minn. 113. Dodge 11. Ohandler, 13 Minn. 114. 37. Execution, that it wis returned unsatisfied. In an action to impeach a mortgage foreclosure on ground of judg- ment obtained, etc., an averment that an execution issued on a mortgage "was, in fact and in law, returned wholly unsatis- fied," fully meets the requirements relating to foreclosure by advertisement. Ross v. Worthington, 11 Minn. 438. 38. Fraud. A complaint sufficiently states fraud which charges that at the time of making the contract with plaintiff, de- fendant " well knew he was not the owner of the land, nor in possession of it, but falsely represented himself so to be, with, intent to deceive the plaintifi; and that the plaintiff, relying upon these representa- tions, was induced to enter into the con- tract." Brown v. Manning, 3 Minn. 35. 39. Ferry company and man; that they were, as agents of stage company, negli- gent. Complaint, which alleged that said defendants, and their said agents and ser- vants, who had tlie charge and control of said coach, of their own gross carelessness. 266 PLEADING. negligence and misconduct, * * * drove, and allowed said coach to be driven out of the highway and usual road, and suffered the same, through like gross negligence and want of care, to run into and become submerged in the Mississippi River. Held, sufiicient to include the ferry company and the ferry man, and their acts and omis- sions. McLean, adm'x, v. Burbank et al., 12 Minn. 530. 40. Highway, that certain laud was an. In an action to recover damages for obstruction of a public street, although the complaint failed to show distinctly that the street was a public highway, but contained several allegations as to "First Street," and the establishment of a grade thereon by the proper authorities of the town of Minneapolis, it is to be inferi'ed that " First Street " Is a public thoroughfare or high- way. Farrant v. The First Division St. Paid and Pacific R. R. Co., 13 Minn. 311. 41. Levy of an execntion. In plead- ing a "levy," it is not necessary to set forth the specific acts constituting it — following Tullis V. Brawley, 3 Minn. 277. Bohrer v. TurriU, 4 Minn. 407. 42. In pleading a levy, it is not nec- essary to state the specific acts of the sher- iff constituting the levy in law; it is suffi- cient to allege generally that by virtue of the execution the sheriff "levied" upon the property. First National Bank of Hastings v. Rogers et al., 13 Minn. 407. 43. Mortgage sale, legal and valid. A complaint, in an action against a mort- gagee to recover the amount bid in excess of mortgage debt and costs, which states that " mortgaged premises were sold to the high- est bidder at public auction, agreeably to the provisions of the statute in such case made and provided, and pursuant to the power of sale in said mortgage deed con- tained," is a sufficient averment of a legal and valid sale of the mortgaged premises — if controverted, then the plaintiff will be bound to establish the facts necessary to constitute a valid sale. Bailey v. Merritt, 1 Minn. 159. 44. want of proper notice of. An averment that notice of sale was not pub- lished in a newspaper printed in the county where the mortgaged premises were situ- ated, nor in the nearest paper in one of the adjoining counties, is a sufficient allegation of want of proper notice or sale. Lowell D. North & Carll 4 Minn. 32. 45. Married woman's separate prop- erty. Where a married woman, in a suit concerning her separate property, alleges that "she purchased and received said (property), and is now the lawful owner and holder thereof.'' Held, it sufficiently appears that the purchase was made with her separate property. The fact of pur- chase being alleged, it will be presumed that the purchase was legal and valid. Nininger v. Commissioners of Carver Co., 10 Minn. 133. 46. Complaint by husband and wife alleged that "on, etc., said, etc., was duly assigned, transferred, sold and delivered to the above plaintiff, F. B. K., (wife of the aforesaid R. K.,) and the said, etc., since, etc., and still are the property of the said plaintiff, Frances B. K., in her sole right and possession." Held, equivalent to saying the note is her separate property, and sufficient within Sec. 30, Comp. St. 535, as construed in Wolf d. Banning, 3 Minn. 206. Kennedy v. Williams, 11 Minn. 314. 47. — -A complaint by a married wom- an concerning her separate property al- leged that "the plaintiff purchased said above described premises,'' * * * and "was the owner of the improvements on the said premises, and of the land." ' Held, after judgment it will be presumed that she purchased for herself, and with money that was her separate property. Ric?i, v. Mich, 12 Minn. 468. 4§. Negligence. Negligence is a ques- tion of fact, or mixed law and fact, and in pleading it is only necessary to aver negli- gence generally, not the specific facts con- stituting negligence. McCauly v. Davids son et al., 10 Minn. 418. 49. Non-delivery of deed. For a statement of facts that, after judgment PLEADING. 367 will be held siiffii'ient as setting forth "non- delivery" of a deed, where the ohjectioa is first raised ia the Supreme Court that the complaint does not state facts sufficient to constitute a cause of action, see Smith v. Dennett, 15 Minn. 81. 50. Ownership of property. Com- plaint in action for the "claim and deliv- ery of personal property," alleged that plaintiffs were .possessed of the property taken "aw of their ownproper goods."' Held, sufficient averment of ownership, as it is a familiar allegation in common law plead- ings, understood as alleging possession and ownership in contradistinction for posses- sion without ownership. Stickney & Carli V. Smith, Baker & Co., 5 Minn. 486. 51. of land in fee. A complaint in an action to set aside a deed for fraud, an allegation that plaintiff, at time of the ex- ecution of the deed, was seized in fee simple and was the owner of the premises describ- ed in the deed, is a sufficient allegation of title. Buckholtz et al. v. Grant et at, 15 Minn. 406; same, 16 Minn. 158. 52. of goods. An allegation in a complaint, charging defendant as common carriers with the loss of " certain goods the property of the plaintiff," is a sufficient averment of plaintiff's, interest. Ames v. Tlie First Div. St. Paul & P. B. E. Co., 12 Minn. 412. 53. of promissory note. Complaint on promissory note charged among other things "that before the maturity of the said note, the said M. (payee) for value received, sold, transferred, endorsed and delivered it to the plaintiff." Hdd, suffi- cient allegation of title in plaintiff, and a subsequent averment that "plaintiff is now the owner and holder of said note; that the same has not been paid, nor any part thereof, but that defendant is now justly indebted," etc., were conclusions of law arising from the preceding allegations of the complaint. Prasier v. WiUiams, 15 Minn. 288. 54. of cause of action by strang^er. A defense that " the judgment on which the action is founded is the property of and belonged to a stranger, is sufficiently definite to advise the adverse party of the nature of the defense. Holcombe v. Tracy, 2 Minn. 347. 55. Performance of conditions concur- rent and mutual. In an action to compel specific performance of a contract to con- vey land, an allegation that plaintiff offered to perform on his part and the de- fendant refusea is sufficient — the acts be- ing mutual and concurrent. St. Paul Di- vidon No. 1, Sons of T. v. Brown et al., 9 Minn. 157. 56. Payees of a note, what sufficient showing tliat plaintiffs are. A complaint which contains no direct allegation thattlae plaintiffs are the payees ,in the note, but sets forth the note in terms, and it appears that'the surnames of the plaintiffs are the same as those mentioned in the note, and the complaint alleges deliverj' to plaintiffs, the presumption at law is that they are the payees named in the note. Wilsok, Ch. J., dissenting. Hay ward et al.ii. Or ant, 13 Minn. 165. 57. Promise to pay the debt, etc., of another. Jo. pleading a promise to pay the "debt, default or miscarriage of an- other person," it is not necessary to aver it to be in writing. Unless the ^contrary ap- pears it will be presumed to be in writing — following Wentworth u. Wentworth, 2 Minn. 277. Walsh v. Kattenburgh, 8 Minn. 127. 58. Flatting, a legal. An averment that plaintiff, "on, etc., caused to be duly surveyed, marked and platted according to the statute in such case made and provided, by O., a competent surveyor, certain land, and caused said plat to be recorded in the office of the Register of Deeds," etc., shows a legal platting— especially after judgment. Oathcart v. Peck et al., 11 Minn. 45. 59. Possession on a given day. Com- plaint alleged ownership and possession on 1st September, and afterwards charged that " plaintiff still remaining in possession as aforesaid defendant did," etc., on 1st January. Held, sufficient allegation of possession on 1st January. Oould v. Sub. 368 PLEADING. Bid. No. 3 Eagle Scliool District, 7 Minn. 203. 60. Kecog'nizance, record of. A com- plaint on a recognizance, after alleging the calling of the defendant and his failure to appear, and "whereupon his default was re- corded by said Court, and said recognizance adjudged forfeited." Held, sufficient aver- ment of a record of the default of the de- fendant within the statute. Comp. St., Chap. 103, Sec. 38. State v. Grant, 10 Minn. 39. 61. Bequest, special. "Where a special request is required in good pleading, on demurrer, "although often requested," is sufficient. ITall v. Williams et al., 13 Minn. 260. 62. Surety, extension to debtor. An answer charged that "the pla,intiff (credi- tor) at the I'cquest of the said Woodman (debtor) and without tlie consent of the de- fendant (surety) after tlie maturity of the notes extended the time of payment thei-e- on to said W., for a valuable and binding consideration from said W. Held, suffi- ciently particular to advise the plaintiff of the nature of the defense; it eonsisting of matter particularly within the knowledge of the plaintiff, and the most that could be required in any case would be the length of time the note was extended, and not the amount of consideration. Huey v. Pinney, 5 Minn. 310. 63. Tender. In pleading a tender it is sufficient, if enough is stated to show what the amount tendered was, within the maxim " Id certum est quod certum reddi pote.it." St. PaulDimsionNo.lSonsofT. V. Brown etal, 9 Minn. 1.57. 64. Taxes, levy and assesment of. In an action to enforce liens for taxes uilder act of 1862, Sec. 8, where the authority to tax appears, and where the taxes and the property upon which they are a lien are stated in the complaint with sufficient cer- tainty, the allegation that such taxes were "duly levied and assessed," is sufficient averment of the assessment of such taxes, and under this form of allegation, if issue is taken thereon, proof of all the acts con- stituting tlie assessment of the tax and es- sential to its validity, is admissible. Mc- Millan, ,1., dissents. Webb v. BidweU, 15 Minn. 479. 65. Value of use and occupation. In a complaint for the recovery for the use of premises, an allegation that the value of premises during the occupation of the de- fendant was live dollars a month, and de- mand of judgment for that amount,is equiv- alent to an allegation that they were reas- onably worth that amount, and that plain- tiff has sustained damages to that amount. Armstrong V. Hinds, 8 Minn. 254. h. Those Mid insufficient. 66. Demand of specific articles. In an ac- tion on a covenant to pay m groceries, liquors and jiromsions on demand. An averment that plaintiff demanded, etc., a large sum of money, to wit : tlie sum of $200, and was refused, etc., is not good. The declaration should have averred a' demand of the specific articles. Snow et al. v. Johnson, 1 Minn. 48. 67. Existence of certain facts. An allegation in a complaint that defendant "well knew" such and such things to be true, is merely aii allegation of the knowl- edge of defendant, fl,nd not an allegation that the facts were, as it is alleged, the de- fendant knew them fo be. Taylor v. Blake, 11 Minn. 255. 68. Fraudulent acts. Allegation that given acts — in themselves innocent — " were against the provisions of acts of Congress and in fraud of the plaintiff," is not an alle- gation that defendant acted fraudulently or that such acts were fraudulent. Jfo evi- dence of fraud was admissible under such allegations. KeUey v. Wallace et al., 14 Minn. 236. 69. Negligence. An averment that by reason of gross negligenc^ of said "com- missioners, and of all the defendant's agents in that behalf, in causing to be made an estimate, etc., and in not causing such estimate to be filed with, etc., each and all of the said certificates, at the time of said tender and delivery, were utterly wortli- PLEADING. 269 less, and no lien upon, nor coUectalsle, etc.," is wholly insufficient as cliarging traversable facts. Statement that the cer- tificates are worthless and no lien, is a con- clusion of law. " Gross negligence of de- fendant's agent,"' does not necessarily render the defendant liable. The acts con- stituting the negligence should have been specially alleged, and not left to be infer- red. Q-riggs et al. v. Oity of 8t. Paul, 9 Minn. 246. 70. Plat, that it was irregular. An allegation that a plat mentioned was ir- regular, unlawful and void, and did not lawfully exist, is the allegation of a con- clusion of law, and therefore bad. Gatli- cart V. Feck et al., 11 Minn. 45. 71. Postponement of foreclosure sale, that it was irregular. An averment that a postponement of foreclosure sale was " irregulaiV that the sale did not "take place at the time specified in the notice, and that no postponement of tlie sale was ever duly given," states nothing on which issne can be taken. Bamney v. Merriam, 6 Minn. 168. 72. Koad, opening of. Where it was necessary that plaintiff 's assignors should have opened a given road to enable them to maintain the action, an allegation that * * * "did, and performed work and labor in the location, oonstruotion, opening- out, surveying and planning" thereof, etc., is insufficient, for it may be true and no I'oad opened. Thome v. The Commissioners of Wishington Go., 14 Minn. 233. 73. Plaintiff's title, invalidity of, fronn irregularity in sale. An allegation "that the title of the plaintiff to said lots by virtue of said tax sale, is invalid from an irregularity in the notice of tax sale," is a conclusion of law, and- bad — the facts should have been stated. Webb v. Sidwdl, 15 Minn. 479. 74. Title of plaintiff to land in ques- tion. A complaint alleged that certain land "was sold by 'one B.,' and on, etc., for the consideration, etc., H., (plaintiff) became and was the purchaser thereof, the deed whereof is recorded, etc.," and set forth a pretended claim on title, and pray- ed same to be removed. Held, the mere allegation of a sale by B. without alleging a conveyance from him, is insufficient to show title in the plaintiff. Hill et al. v. Edwards, 11 Minn. 22. 75. Time of an act. Where time was material to plaintiff's cause of action, and presumptively within plaintiff's knowl- edge, an allegation that it was "on or about" a given time, is insufficient — it must be alleged positively. Loekwood «. Bigelow, 11 Minn. 113. 76. Unlawful possession of defendant. Complaint alleged that on, etc., plaintiff' " became and still is seized in fee simple of the title, and became on that day and still is entitled to the possession 'of certain land,' and that on said last mentioned day, the said defendants were, and all the time since have been in the possession and occu- pation thereof, without the consent and against the will of the plaintiff, and that the rights and interests of the plaintiff in and to the land, etc., have been, and still are, wholly denied and ignored by said de- fendants." Held, not a sufficient averment of defendant's unlawful possession. Holmes v. Williams et al., 16 Minn. 164. 77. Value of services. An allegation that " defendant charged twenty-five dol- lars for his commission," is insufficient to admit proof to sustain a claim for that amount. Such an allegation would not be cured by the answer being verified. Far- rington v. Wright, 1 Minn. 245. V. ' Verification of Pleadings. 78. By attorney. Where an attorney verified a complaint on a foreign judgment by swearing that " he believed it to be true, and had in his possession a copy of record," etc., without stating why com- plainant did not sign it. Held, defective, and an unverified ansieer was sufficient. Smith V. MuUiken, 2 Minn. 323. 79. A foreign judgment is such a " written instrument for the payment of moneyonly,'' within statute of 18.56, as will 270 PLEADING. permit an attorney suing on it to verify the complaint by averring fact of possession only. lb. VI. Construction of Pleading. 80. In claim and delivery the affidavit cannot aid the complaint. Ttie affidavit in an action to remove the possession of person- al property forms no pai't of the pleadings, and cannot he referred to or otherwise used to supply deficiencies in the complaint. Loomis V. Youle, 6 Minn. 178. 51. Amended pleading not aided by the original. It is not in accordance with the practice of the court to permit that portion of an original answer not demurred to, to he construed with the amended answer — the defendant must be confined to his amended answer — although the court does not decide that any amendment could not be tacked to what there was left of the original answer. Becker d. Sandusky City Bank, 1 Minn. 316. 52. Plaintiff can take advantage of facts set up in the answer. Where an op- posing party answers and alleges a state of facts that would have entitled his adversary to the relief he seeks, had he established them himself, he may, it seems, take advan- tage of the point thus made for him. Rich- ards & Whiting v. White, 7 Minn. 345, 53. After trial, pleading good in sub- stance, though somewhat defective, sufflc- ient. Where the purpose and the object of the pleading can be reasonably intended,and it contains substantially the necessary aver- ments, and the parties go to trial upon the issue made by them, it will not be ground of error if the court refuse to instruct the jury that the pleading be disregarded, though to some extent uncertain and defect- ive. Barnsbaek v. Reiner 8 Minn. 58. 84. General averments, controlled by facts pleaded. Where a pleader alleges a general result, as he may — e. g., that a mortgage was " duly foreclosed," and also the particular facts by which it is reached, and the facts do not sustain the result as alleged, the facts will control. Pinney v. Fridley, 9 Minn. 84. VII. The Complaint. a. Joinder of causes of action. 85. Claims by sub-contractor against contractor, and for lieu on the building. A complaint by sub-contractors, joined as defendants the original contractors, plain- tiff's employers, and the owners of the building on which work had been perform- ed — praying judgment against principal contractor for amount of debt, and that it be decreed a lien upon the building, and for sale of building to satisfy judgment. Held, several causes of action improperly united. Lewis & Pickering v. WiUiams & Sons, 3 Minn. 151. 86. A cause of action to recover posses- sion of certain real property, and damages for withholding it, cannot be united with a cause of action for damages for withhold- ing certain other property, under G. S., Chap. 66, Sec. 98, Sub. 1 and 5. Holmes ii. Williams et al., 16 Minn. 164. 87. Private and public interests in an action to oust an usurper. Sec. 5, p. 411, R. Stat., (1851) allows priva,te Interest to be joined with the public interest in an action, so that an usurper may be ousted, claim- ant Installed, and recover damages for the usurpation of his rights. Territory of Min- nesota ex rel., B. F. Parker, and E.F.Park- er V. Seagrave Smith, 2 Minn. 240. 88. Uemandof judgment on note given for money loaned, with judgment of fore- closure, as a mortgage, of a deed absolute on its face given to plaintiff as .security, also the surrender by agent of an instru- ment of defeasance held in escrow. It. and M., through the agency of L., borrowed money of plaintiff, giving their promissory note with a quit-claim deed, from L. (abso- lute on its face) to plaintiff as security — plaintiff depositing in escrow with L. a quit- claim deed of the same property, to be held in safe keeping only, unless the note was paid, in which case the deed was to become PLEADING. 271 operative as plaintiff's deed. Complaint sought the following relief, viz.: judgment against the makers for amount due on the note, and that the premises conveyed by the first deed as security be sold to satisfy the same, also judgment against them to satisfy any balance, and judgment against L. that he surrender up to be cancelled the second deed in his possession. Hdd, several causes of action are not improperly united, under Sec. 11, p. 671, Comp. St. The pray- er for the delivery up and cauoellation of the deed makes no material difference, the makers of the note and mortgagors being properly joined for one purpose, the court will proceed to grant complete relief as against all. Consequently demurrer will not lie for misjoinder of parties defendant — following Lewis ct al. v. "Williams & Son, 3 Minn. 151. Nichols v. RandaU, 5 Minn. 304. 89. Abatement, injunction and dam- ages, nuisance. A party may in one action, under Sec. 25, Chap. 75, G. S., recover damages for a nuisance, an abatement of such nuisance, and a perpetual in- junction against its maintenance or con- tinuance. Winch 11. Green, 16 Minn. 355. 90. Legal and equitable causes of ac- tion. Under Sec. 87, p. 543, Comp. St., cause of action arising out of the same transaction may be joined, though partly legal and partly equitable, or wholly of the nature of one or the other. Montgom- ery V. McEwen, 7 Minn. 351. 91. Demand of purchase money by vendor, and surrender of mortgage in- demnity against an outstanding lien since cancelled. Where A. purchases of B. land on which a mortgage lien rests, and gives his promissory note for balance of purchase money, taking a mortgage from B. on other prpperty to secure himself against the former lien, and fails to pay the note, B., may in one suit, under Sub. div. 1, Sec. 87, p. .543, Comp. St., demand the balance due on the purchase money, and the sur- render to plaintiff of his mortgage, he hav- ing previously relieved the land sold from the mortgage lien resting against it — not a misjoinder of actions, lb. 92. False warranty anil deceit. It seems that a complaint is objectionable whicli is drawn with a view to a recovery, either for a false warranty or deceit, as the evidence might seem to establish the one or the other action, but the remedy is by mo- tion to strike out or make more definite, or when the case is called to trial, motion to compel the plaintiff' to elect on which cause of action lie would proceed — after judg- ment the objection comes too late. Marsh V. Webber, 13 Minn. 109. 93. Recovery of possession, and then of the use thereof. Cause of action for the recovery of premises may be united with a cause of action for the occupation of the same premises, under Sec. 83, Comp. St., Chap. GO. Armstrong v. Hinds, 8 Minn. 254. 94. Claim for loss of child's services, and for suffering in mind and body. In an action brought by a father for injuries to his infant child. Query, whether on proper objection, a claim for loss of service or for money paid physician could be join- ed with claim for compensation for injuries and suffering of body and mind consequent thereon ? The City of St. Paul v. Kuhy, 8 Minn. 154. 95. Promise to plaintiff, and also to another. Complaint may set up, as ground for recovery, as many promises of defendant as he may have made — as where he had promised a third person, and also promised the; plaintiff. Wcdsh v. Eatlen- burgh, 8 Minn. 127. 96. Against A. on account, and B. for his promise to pay the debt. A complaint, setting up a cause of action against A., for goods sold and delivered to him, and also against B. for his promise to A. to pay the latter's debt to jjlaintiffs, improperly joins two causes of action, and is demurrable. Sanders et al. v. Clason et ai., 13 Minn. 379. 97. Claims against trustees as such, and individually or against others. Sub. div. 7, Sec. 87, Comp. St., was repealed by Sec. 4, Chap. 11, Collated Statutes, 1853, 272 PLEADING. (G. L. 1863 ?) so that under the latter act a claim agahist a trustee may be joined with a claim agaiust the same persou in his indi- vidual capacity, or against other persons. Fish 11. Berkey et al., 10 Minn. 199.- 9§. Claim against A. for excavating a hole, and against B. for allowing it to remain open. A complaint against P. and the City of St. Paul jointly, charging tha't F. made an excavation in the public street, without erecting proper guards, wilfully permitting the same to remain open, and that the city suffered it to remain open without proper protection, whereby plaintiff was injured, joins causes of ac- tion which do not affect all the parties to the action, under Sub. 7, Sec. 98, Chap. 66, G-. S., and is demurrable by either de- fendant alone. Trowbridge V. Forepaugh et al., 14 Minn. 13a. 99. In an action to wind up co-part- nership, what may be joined. Plaintiff brought an action against his co-partners T. and B., setting up facts which entitled him to an accounting, and joined as co-de- fendants, M. and Black alleging] that T., knowing the condition of partnership af- fairs, corruptly contrived with M. and Black to evade the payments of his (T.'s) share of losses, and- thereby cheat plaintiff and defendant, B., and secretly made a pre- tended sham sale of certain partnership as- sets, as and for his individual property to defendants M. and Black, who before the sale and delivery, or payment, had notice of the rights of plaintiff and B., as part- ners of T., in and to the same ; yet said M. and Black secretly and fraudulently ab- stracted said property from the possession of the Arm, and now claim the same as their sole property, clear of all claims of plaintiff and defendant B., setting forth the partnership indebtedness and inability of T. and B. to pay their share of losses with- out resorting to these assets, praying for an account of the partnership business, ap- pointment of a receiver to hold the partner- ship property pending suit ; that defend- ants be enjoined from disposing of the same during suit, vacation of sale to M. and Black, and that the assets in their hands be turned over to the receiver, and that plaintiff be adjudged to have a specific lien on a certain mill and machinery, (which by the articles were to revert to T. and B. after settlement of partnershsp af- fairs,) for all moneys advanced by him, less his share of losses, and sale of mill to sat- isfy his claim, etc., with cost of suit. Held, complaint does not recite incongruous caus- es of action, within Sec. 98, Chap. 66, G. S., the object being ningle, viz. : to wind up the co-partnership affairs, and all the defend- ants were properly joined. Palmer v. Ty- ler et al., 15 Minn. 106. b. Complaint by or against persons in spe- cial aa/pacities. 100. Corporation must plead facts showing its existence, when. A corpora- tion created by a statute which requires certain acts to be done before it can be considered in esse, must show (and of course plead) such acts to have been done to establish its existence; but where a cor- poration is declared such by the act of in- corporation, no such averment is necessary; as, acceptance of charter. St. Paul Divis- ion No. 1 Sons of T., 11. Brown et al., 9 Minn. 157. 101. Corporations, actions by or against domestic. At common law, in an action against a corporation by its corpor- ate name, it was not necessary, for the purpose of alleging its existence, to aver the authority or act by or under which it was created. Sec. 94, Chap. 66, G. S., ap- plies only in cases where it was necessary at common law for the pleader to set forth the law upon which he relied in the suit, and in order to obviate the necessity of pleading at length the statute relied on, renders it sufficient, in actions by or against domestic corporations, to refer in the plead- ings to the act or proceedings by which such corporation was created. Dodge v. Tlie Minnesota Plastic Slate Roofing Co., 14 Minn. 49. 102. Partnership, action by or against. PLEADING. Ill an action by or against partners as such, the pleadings must set forth the partner- ship. Foerster v. Kirkpatrick et al., 2 Minn. 210. 103. issue on the allegation of part- nership, material. In an action by one co-partnership against another, the allega- tion of partnership, whether as to plain- tiils or defendants, is material, and its de- nial tenders an issue which the jury must determine. Irvine et al. v. Myers & Co., 4 Minn. 229. 104. An allegation of defendants' partnership is materi.il, and if denied, must be proved— following Irvine v. Myers 6 Co.', 4 Minn. 239. Fetz v. Glarh & Go., 7 Minn. 217. 103. Partnership, wlien immaterial. It is not ground of demurrer that a com- plaint which describes the plaintiffs, in the title of the action, as partners, contains no allegation of partnership in the body there- of, nothing appearing to show that the ex- istence of a partnership was necessary to give validity to the cause of action alleged. The addition of some character to the name of a plaintiff in the title, of the ac- tion, as "executor," "partners," etc., be- ing descriptio personce only, and without something more, surplusage — distinguished from Foerster ». Kirkpatrick, 2 Minn. 210. Jaeger et al. v. Sartman, 13 Minn. 55. 106. In an action by plaintiffs as partners, on a promissory note, not exe- cuted to them as partners, an allegation of partnership is not essential to a cause of action. Hayward et al. v. Grant, 13 Minn. 165. c. On contract generally. 107. Complaint may set up a contract as modified by subsequent agreement. Where a contract has been made, and by a subsequent agreement between the par- ties, the former agreement has been modi- fled and altered, the plaintiflf may declare upon the contract as it stands altered by the subsequent agreement, without notic- 35 ing the terms of the original agreement which have been dispensed with. Bstes v. Farnkam, 11 Minn. 423. lOS. Consideration must be pleaded to an executory agreement. In an action on a contract, the consideration of which is an executory agreement, such agreement must be pleaded, performance averred, and such allegations are material and travers- able. Becker v. Sweetzer, 15 Minn. 427. 109. Conditions, mutual and concur- rent. J. covenanted to convey and sell, by good and suflScient warranty deed, a house and lot to S. and B., provided S. and 8. pay, or cause to be paid to J., $400, in groceries, etc., in manner following, viz., $200 on demand, remainder in April next, and S. and B. to have immediate posses- sion. Held, such covenants are concur- rent, and performance, or an oflfer to per- form, must be averred and proved. Snow et al. V. Johnson, 1 Minn. 49. 110. Damages by way of interest. In an action on breach of a money contract, (as note, etc.,) it is inadmissible under the code to plead damages which accrue in the nature of interest — it would be pleading a conclusion of law. Unly where special damages are claimed, more than the rate allowed by law, must they be pleaded. Talcott t). Ma/rsion, 3 Minn. 339. 111. Special damages. It-special dam- ages are not particularly set up, they can- not be I'ecovered. Brackett v. Edgerton, 14 Minn. 174. 112. Where a complaint for services and money advanced alleged the whole in a sum in gross, ndd, the objection should have been taken by a motion to make more definite, and not by objecting to the evi- dence thereof on the trial. Allis ». Day, 14 Minn. 516. 113. Prayer for judgment. Where the complaint contained a prayer for spe- cific, but not general relief, and it tran- spired that the plaintiff was entitled to re- lief different from that specifically asked, the Supreme Court declined to grant It. Barnes v. Eerlinger, 7 Minn. 82. 274 PLEADING. d. Gomplainti m pamcular actions. 1. Actions on joint contrai t. 114. Joint contract ninst be pleaded and proved. In an action against defend- ants on a joint contract, it must appear on the face of the pleadings that their con- tract was joint, and he pioved on the trial — under a general denial. This at common law, and under the provisions of statute — Sec. 168 and 173, Comp. St., p. 554. Fetz V. Clark & Co., 7 Minn. 217. 2. Actions for money had and received. 115. Against mortgagee for surplus moneys arising from sale. In an action against mortgagee for surplus moneys aris- ing from sale of mortgaged property, it is not necessary to allege that — 1. Defendant took possession of the land. 2. That plain- tiff tendered defendant amount of mort- gage deht. 3. The amount claimed to he due in notice of mortgage sale. ' Bailey v. Merriit, 7 Minn. 159. 3. Actions for goods sold, etc. 116. In an action for goods sold and delivered, the complaint must set up the value of the goods, (from which tlie law implies a promise to pay the amount,) or an express promise to pay on part of de- fendant the amount claimed — the time of sale ought to he stated also. Foerster v. Kirkpatrick et al., 2 Minn. 210. 117. When insnfflcient. A pleading which alleges that a party is indebted to the complainant in a certain sum, for lum- ber sold and delivered to him at his request, without stating when it was sold, or that it was worth the sum charged, or that the person ever promised to pay that sum, states no cause of action — following Foer- ster V. Kirkpatrick, 2 Minn. 210. _Holgate V. Browne, 8 Minn, 243. 4. Actions for use and occupation. 118. When sufficient. Complaint charged that "defendant, on or about. etc., and from that time until, etc., leased, hired and rented of and from the plaintiff, and was actually in the possession, etc., during that time, and was during that time the tenant of the plaintiff, and occupying, etc., and that they were worth and of the value and agreed price of, etc. ; in consid- eration whereof, defendant became liable and promised said plaintifT to pay said sum therefor," etc. Held, complaint declai-es on a lease, but states a cause of action for use and occupation,^ irrespective of any lease, and was susceptible of proof, though no lease was actually made. The pleading was double, but could not be corrected on appeal. Dean v. Leonard, .9 Minn. 190. 5. Actions for work and labor. 119. When sufficient. Complaint al- leging a written contract between plaintiff and defendant, under and by virtue of which plaintiffs performed work and labor, within certain times, and at certain places — naming both, value of the same, amount paid, balance unpaid, and proper demand for judgment — states a good cause of ac- tion. Nash & McQrorty v. Murnan & Orace, 6 Minn. 577. 6. Actions on negotiable instruments. 120. Promissory note of a corpora- tion. Where a complaint on a promissory note of a corporation refers to the charter which shows a corporation competent to make notes, it is unnecessary to allege the circumstances under which it was given, to establish the corporate authority to make it. Want of authority in the particular case is matter of defense. Gebhard v. East- man & Gibson, 7 Minn. 56. 121. Complaint against county com- missioners, to recover on evidence of in- debtedness given, for the laying out and construction of a road, failed to allege that notice, etc., was published "ai least three weeks.'''' The publication being condition precedent to the defendants' power to act. Held, complaint insufficient. Goodnow v. Commissioners of Ramsey Co., 11 Minn. 31. PLEADING. 275 122. On promissory note— statute of limitations. Oomplaiiit on promissory note showed that cause of action was barred by the statute of limitations so far as the note was concerned, but alleged a payment of a given amount, without specifying when it was paid. Ekld, the payment may Jiam been made late enough to save the statute, hence not jdemurrable. Kennedy V. WiUiams, 11 Minn. 314. 123. Complaint on note or bill. A complaint on a note or bill is not demur- rable for want of an allegation that the plaintijQfs were "the ownei's and holders of the bill at the time of the commencement of the action," where it appears that they were the original owners — the presumption is that their ownership continues, nothing appearing to the contrary. Jaeger et al. v. Hartman, 13 Minn. 55. 124. Bond issued by a corporation under legislative authority. In a com- plaint on a bond issued by a copora- tion under an act of the Legislature au- thorizing such issue, it is not necessary to allege a record of the election held under the provisions of said act. Wiley et al. v. Board of Education of Town of Minneapolis, 11 Minn. 371. 125. AjComplaint on bond issued by a board of education, under a special act authorizing it to raise money to pay exist- ing indebtedness by the issuance of nego- tiable bonds, which alleges that the bonds were executed and delivered by defendant, the presumption prima facie is, that they were legally issued. It need not be al- leged that they were talten at par. If the board were limited in their disposal, it was matter of defense. If the fact that they were not issued in accordance with the terms of the act conferring the authority to issue them, can be talcen against an as- signee for value and without notice, it must be talcen by answer, and not demurrer, lb. 7. Actions 07i non-negotiable instruments for the payment of money. 126. Foreign judgrments. A com- plaint on a foreign judgment omitting an averment of jurisdiction in tlie foreign court, is fatally defective. Smith v. Mulli- Icen, 2 Minn. 319. 127. Judgments of sister States are regarded as foreign judgments; and in an action on them, the complaint must show that it was rendered by a court of compe- tent jurisdiction. Sec. 77, p. 339, E.. 8., does not change this rule. Kams v. Kun- kle, 2 Minn. 317. 12§. Replevin bond, by officer from whom property was taken. Plaintiff pos- sessed property as constable, by virtue of attachment issued out of a justice court. Defendant replevied it, and failed to pros- ecute. Plaintiff brings suit on replevin bond. Held, though the attachment alone would protect plaintiff in trespass, if reg- ular and valid on its face, where he brings suit to recover property levied on by him, his right to recover depends on the valid- ity of his process and his liability over; hence he must, in pleading a process of a court of limited or inferior jui'isdiction, allege every fact, to show the court had jurisdiction of subject matter, parties and process. Olark v. Norton, 6 Minn. 413. 129. Official bond of deputy collector. In an action against ]a defendant for breach of his official bond as deputy collector, the complaint must aver the appointment of the defendant as such deputy; the fact that the bond, which recites sucli appointment, is made part of the complaint, will not suf- fice — it must be averred, not recited. Hall v. Williams et al., 13 Minn. 260. 130. Recognizance. In a complaint on a recognizance, it need not appear that the amount of the penalty has not been paid— it is matter of defense. State v. Gh-ant, 10 Minn. 39. 131. A complaint on a recognizance which shows that the defendant failed to appear to answer the indictment when called, shows a breach, witliout alleging that the bail was called with the prin- cipal, lb. S. Actions for unliquidated damages for breach of contract. ' 132. Covenant under seal. A com- plaint which states that plaintift" and de- 276 PLEADING. fendant were partners; that for the sum of $100 plaintiff sold, etc., all his interest, etc., to defendant, and surrendered posses- sion of the property of the firm to defend- ant who covenanted under seal to pay the firm liabilities ; that plaintiff had been compelled to pay a certain debt of the firm — states a good cause of action. Rose v. Roberts, 9 Minn. 119. 133. Stipulation by lessee to insure. In an action by a lessor for damage for breach of a stipulation to insure the build- ing by the lessee — a distinct averment of ownership of the building by the plaintiff at the date of the lease will be presumed to continue, until the contrary is aflirma- tively shown. Rhone v. Gale et al., 12 Minn. 54. 9. Action for injuries to personal property. 134. Where the facts in a complaint show a " wrongful" taking, it is suflicient, although the pleader has not used that word. Buok ». Oolbath, 7 Minn. 310. 135. Complaint alleged, substantially, that on or about October 21, 1868, defend- ant unlawfully took, "or caused to be taken," from plaintifi''s possession, and car- ried away, a buck, the plaintiff's property, of the value of twenty-five dollars; that on or about the 23d day of said October, plaintiff was entitled to the immediate pos- session of the buck, and defendant, being then and there in possession of it, unlaw- fully converted and disposed of it to his own use, thereby depriving plaintiff of the possession, and also of the use of it, to the plaintiff's damage in the sum of seventy- five dollars, and prays for judgment in that sum. Seld, though redundant and unskillful, it sufficiently states a cause of action in the nature of trespass de bonis as- portatis. Clague v. Hodgson, 16 Minn. 329. 136. Complaint alleged plaintiff's own- ership and right of immediate possession of the personal property therein described, its value, defendant's possession of it, a demand thereof by plaintiff of defendant, and defendant's refusal to deliver up ihe same, to plaintiff's damage in tlie sum of $1,000. Held, though not in the best form, it is a sufficient statement of a cause of ac- tion for a conversion of the property. Jones V. Rahilli/, 16 Minn. 320. 137. Complaint charged that plaintiff owned and possessed certain property, (giv- ing date and value,) that defendant on, etc., took and carried away tiie same, and detains it against sureties and pledges, to his damage, etc. Held, states a good cause of action, and unnecessary to aver tliat it was " unjustly detained," if the facts show that it was unjust. Adams v. Corriston, 7 Minn. 456. 138. Complaint alleged that one B. wi'ongf ully and forcibly severed a " barn " from land owned by plaintiff, and located and has ever since "used and occupied" the same, upon land then owned by one E., which B. occupied as a tenant, and which said E. afterwards sold to defendant with notice, etc., and plaintiff has demand- ed said barn of defendant, who refuses, etc. Held, assuming the barn to be person- al property, the taking having been done by B., to show a cause of action against defendant, there must appear an unlawful detention, but the complaint negatives that by alleging that the barn has been "used and occupied" by said B. ever since its re- moval, thus showing that defendant had no control over it. Tozier v. Merriam, 12 Minn. 87. 10. Actions for claim and delivery of per- sonal property. 139. A declaration in replevin, under the statute of Wisconsin, which omits the averment of a wrongful taking, is bad on de- murrer, but cured after verdict. The de- fendant, by pleading to the merits, waives such objection. Coit v. Waples et al., 1 Minn. 134. 140. In an action for the recovery of the possession of personal property, the complaint failed to aver property in the plaintiff, or that he was entitled to the pos- I session. Hdd, that in this action, like the PLEADING. 277 old action of replevin, the complaint must set out title and right to possession In the plaintiff, otherwise fatally defective. Loom- is V. Toule, 1 Minn. 177. 11. Actions for injuries to the person. 141. Assnnlt and battery. In an ac- tion for assault and battery, it is not neces- sarjr to charge in terms that it was " will- ful " or " malicious," to entitle the plaintiff to maintain his action. Andrews v. Stone, 10 Minn. 72. IS. Action for injuries to real property. 142. For damages assessed by com- missioners in laying out a road. Where commissioners have awarded damages to owner of land, talien in laying out a road, a complaint in an action to recover such damages need not allege that the road has been opened and graded — -an averment thac all the acts required of the commis- sioners were performed, setting them out in detail, and that the land was taken, is prima facie sufficient. Any abandonment is matter of defense. Daley v. Gity of St. Paul, 7 Minn. 390. 143. The general allegation of title in fee in the plaintiff, at and previous to the commencement of the action, is suffici- ent to maintain an action for assessed dam- ages to land in laying out a I'oad. lb. 144. Whei'e plalntilT was a foreign ex- ecutrix at time of trespass. 'A com- plaint by an executrix to recover damages for an alleged unlawful entry upon land, and cutting and removing standing timber growing tliereon, and converting the same to defendant's use in 1866, 1867, and 1868, which states that plaintiff's testator resided in Pennsylvania at the time of liis decease; that he died seized of the land in 1858, and leaving a will appointing plaintiff sole ex- ecutrix, whereon letters testamentary were duly issued to her in Pennsylvania, and she was duly appointed, and has since con- tinued, executrix ; that on Dec. 29, 1869, a duly authenticated copy of said letters and her appointment were duly filed in the of- fice of the Probate Court, for the proper county in this State, is demurrable, as not stating facts sufficient to constitute a cause of action; it not appearing that plaintiff had either possession, or right of possession of the premises at time of committing the alleged trestpass. Pott v. Pennington, 16 Minn. 509. 14.5. Injuries committed by a corpo- ration. In a complaiDt against a corpora- tion for damages for iniuries to the plain- tiff's property, it is not necessai-y to state that the act was done by the corporation through its agents. Oould v. Sub. Dist. No, 3, of Eagle Greek School District, 7 Minn. 203. 146. Plaintiff's interest in the prop- erty. Complaint alleged possession in plaintiff of " a portion" of a certain dwell- ing house, and that while in possession as alleged, the defendant " broke, and enter- ed, etc., and took possession of a part of said dwelling house,'' without plaintiff's consent, etc. Beld, that it does not appear that defendant trespassed on property in possession of plaintiff. Ih. 147. V»here a railroad company tres- passed on plaintiff's land. A complaint against a railroad com^Dany for entering upon plaintiff's land, and committing di- vers acts of trespass, in laying down their track, etc., need not show affirmatively that the "defendant has not, since, its entry up- on and appropriation of the land, had the damages assessed and paid him, or that proceedings for the ascertainment of such damages were not commenced ootempora- neously, with or even before tlie entry com- plained of, or that such proceedings are not now pending undetermined, or that de- fendant has ever refused to pay the value of the land taken pursuant to its charter, or that plaintiff has ever demanded such payment. The acts charged (i. e. the build- ing and operating daily of their road on the land) constitute a taking of private property ; the other matters are for the de- fense. Gray 11. The First Dioision of the 8t. Paul& P. B: B. Go., 13 Minn. 315 ; Molitor 278 PLEADING. V. The First Division of the St. Paul & Pa- cific R. R. Co., 13 Minn. 285. IS. Actions to recover the possession of real property. 148. Sufficient. Complaint alleo^ing that plaintiffs are "absolute owners in fee" of tlieland, that defendant is in actual pos- session, that plaintiffs have demanded in writing of defendant that he surrender the possession, that defendant has refused so to do, and wrongfully and unlawfully with- liolds the possession Itvom. the plaintiff, is saflfilcient in ejectment. Wells et al. v. Mas- terson, 9 Minn. 566. 149. Insufficient. In action to recover possession of real estate, the complaintshow- ed title in plaintiff on Dec. 6, 1860, then al- leged a wrongful entry, etc., of defendant on Sept. 17, 1861, without alleging title in plaintiff' at that time. ^eW, insufficient — as title in plaintiff at time of wrongful entry in commencement of action is essential — following McClaiie v. White, 5 Minn. 178. Armstrong v. ITinds,S Minn. 254. 150. In an action to recover]the]posses- sion of real property, the complaint show- ed that when plaintiff became owner of an undivided one-half thereof, defendant was in lawful possession, and did not show that defendants since unlawfully withheld pos- session. Held, insufficient either for the re- covery of the possession, or damages for withholding the same. Holmes v. Williams et al., 16 Minn. 164. 151. In an action for the recovery of possesion of real property, the complaint alleged title in defendant at a certain day; then a mortgage to plaintiff containing "full covenant? and conditions," (describ- ing the condition), default in condition, foreclosure of the mortgage by advertise- ment (setting out particularly each step up to day of sale, and then alleging) tliat on, etc., said mortgage was "duly foreclosed" by 'a "sale at public auction," etc., then showing purchase by plaintiff, and all steps required, such as recording papers, etc., and that time for redemption had expired, and that under and by virtue of said mort- gage and foreclosure thereof, plaintiff is seized in fee simple, and entitled, etc., with demand and refusal. Held, by showing title in defendant at some prior time (un- necessarily as he might have alleged ow- nership in fee in himself,) he must then trace title out of defendant to himself. Having attempted to do that by means of a mortgage, and certain foreclosure proceedings, if they are not perfect, he fails, and a failure to allege that the mort- gage contained a " power of sale," is fatal to the complaint, nor does the averment that tlie mortgage was "duly foreclosed" ] aid the defect. Pinney v. Fridley, 9 Minn. I 34. 14. Actions gioi'n by statute. 152. Action by contractor against city lot owner. Where a statute gave a city contractor two remedies — 1. By ordinary means of levying and collecting a tax. 2. By action against the lot owner. Held, that, in either case, if the payment was re- sisted, the contractor must show step by step that everything has been done w^hich the statute makes essential to the due exe- cution of the power ; and being necessary to prove them, they must be pleaded. Mc- Oorrib v. Bell, 3 Minn. 295. 153. Action to enforce a lien. Com- plaint in an action to enforce a lien should state the facts which authorize the demand sued to be decreed a lien on the specific premises, and then so to declare it in the decree or judgment. Mason & Oraig v. Hey- ward, 5 Minn. 74. 154. Action to assail validity of a tax. The presumption is that the taxes were le- gally assessed, and a complaint which as- sails the validity of a tax must show that the tax is illegal. St. Peter's Church v. The Board of Co. Com. of Scott Co., 12 Minn. 395. 155. Action to enforce lien for taxes. Sec. 8, Act of 1'8C2, providing thait, if the title of any purchase at such tax sale shall be adjudged invalid, "he shall retain a lieu. PLEADING. 279 etc.," embraces only a judgment of a court of competent jurisdiction, but it need not be rendered in a separate action, but a judgment declaring it invalid, and enforc- ing plaintiff's lien may be given in one action. But plaintiff must either prove a judgment of invalidity, or set out facts showing it invalid, and claim judgment ac- cordingly. Webb 11. BidweU, 15 Minn. 479. 156. — -In action, under Sec. 8, Act of 1862, to enfoi-ce the lien for taxes transfer- red to plaintiff by the State, where it re- lates to the taxes of several years, as they are levied annually.the State aoquiresa sep- arate lien for each year, and the plaintiff should set forth definitely each lieu of the State which he claims to have acquired, by stating the natux-e and amount of each year's taxes embraced in the sale, and the particular lot or parcel on which they were assessed; but a defect therein should be remedied by notice to make more definite and certain, and cannot be reached by mo- tion for judgment on the pleadings. lb. 15. Actions for equitable relief. 157. Caucellation of deed executed by a junior. A complaint, praying cancella- tion of a deed, claimed to have been exe- cuted by plaintiiF, during his minoi'ity, un- der duress, etc., of defendant, failed to stale the age of the plaintift' at date of execution of deed, or that he -had attained the age of majority at time of bringing the action. Held, insufficient. Irvine v. Ir- win, 5 Minn. 61. 158. Action to set aside mortgagee on Iioniestead. A complaint under Sec. 93, Comp. St., 570, to set aside a mortgage on the homestead by reason of its not being executed by the wife of the owner — must show affirmatively that the mortgage was not given to secure the purchase money thereof — and thus negative the exception in the statute. McMillan, J. Oarmr i>. Slingerland, 11 Minn. 447. 159. Action to compel couveyance of town site land entered in trust for occu- pant. A complaint which alleged that plain- tiff, " at time of making the survey, etc., and record thereof, was in occupation (of the land), occupying and improving the same as a town site,. etc., and that at date of application to enter (the land), and of the entry and purchase thereof by the corporate authorities, he was the sole and exclusive occupant of the land described in his statement in writing addressed to the town council, occupying and improving the same, for the purpose of erecting and building a town, etc., and that defendants, nor eitlier of them, did not occupy or im- prove said land, nor any part, etc., at time of survey nor at any time," is sufficient to entitle plaintiff to a conveyance from the town which entered said lands under Chap. 33, Comp. St., in trust for occupants. Gatlieart v. Peck et al., 11 Minn. 45. 160. Action to declare a deed a mort- gage. To have an absolute conveyance decreed to be a mortgage in equity, it is only necessary to show the deed was given to secure the payment of mone}^, and it is not necessary to allege damage in such case, or any special value, overruling Belote v. Morrison, 8 Minn. 945. Molten v. Meighen, 15 Minn. 69. 16, Aetion for forcible entry and detainer. 161. In an action under the " Forcible Entry and Detainer Laws" of the Terri- tory, the property must be "particularly" described as the statutes require. Lewis 11. Steele et al., 1 Minn. 90. 162. In an action under the Forcible Eatryand Detainer Law— Rev. Stat. Chap. 87, 1852, the complaint charged that the defendants forcibly entered, and did de- tain certain lands, and demanded restitu- tion of the premises. Held, fatally defect- ive. Fallmans v. Oilmgre, 1 Minn. 179. 163. In a complaint under the forcible entry and detainer act, it is sufficient to allege title and right of possession in the plaintiff, and wrongful withholding of the possession by the defendant. Pinney v. Fridley, 9 Minn. 34. 380 PLEADING. VIII. The Answer. a. Time to answer. 164. After notice of appearance. Under Sec. 51, p. 537, Oomp. Stat., a de- fendant has the same time to answer a complaint after it is served upon him, that he had of unexpired time, when lie served notice of appearance. Swift d. Fletcher, 6 Minn. 550. 165. In divorce suits. Rule 43, of District Court Rules, so far as it allows a defendant in a divorce suit 90 days to ans- wer, after service of summons, is inopera- tive, it being in conflict with the statute whibh requires an answer in thirty days. Fagebank d. Fagebank, 9 Minn. 72. b. Who may answer. 166. Married woman separately— wlien. If a feme covert, joint defendant with her husband, puts in a separate ans- wer without leave, the court will on mo- tion quash it. Wolfe and wife v. Banning & Buckwell, 3 Minn. 252. 167. Oue defendant cannot defend for another who does not answer, it not ap- pearing he has any right to answer for 'him, or interest in sustaining his title. Oathcart ■». Feck et al., U Minn. 45. c. Joinder of Defenses. 168. Under the statute a defendant may set up as many defenses as he may have; the only limit to this right is that such defenses must hot be inconsistent; if true, they may stand together. Booth v. Sherwood et al, 12 Minn. 426. 169. Denial of plaintiif's title, and plea of license. Where a tenant in com- mon sues his co-tenant for conversion of the property held in common, a plea of license by the plaintiff does not admit plaintiff's title, where by a general denial it has been put in issue. lb. 170. Statute of limitation and satis- faction. An answer which sets up as a defense to the same cause of action : 1st, the statute of limitations; 2d, a "full set- tlement and satisfaction of all claims of said plaintiff against said defendant," is not inconsistent, the second defense being a denial rather than an admission of a liability. Conway v. Wharton, 13 Minn. 158. 171. Duplicity, in the sense of plead- ing two or more defenses to the same cause of action, is permitted by the statute, Sec. 81, p. 460, G. S. lb. d. Inconsistent defenses. 172. General denial and justification. Plaintiff charged defendant with taking and converting personal property. De- fendant answered by — 1st, generally and specifically denying every allegation in complaint; 3d, "for a further defense," alleging matter in justification under writ of attachment, etc. Eeld, tlie two defenses were inconsistent with each other — and the one neutralizing the other, as to any de- nial of the gist of the action, in tliis case, taking, etc. ; but the admission of the tak- ing will be allowed to stand. The provis- ion of the code that, "the defendant may set forth by answer as many defenses as he shall have," means defenses that are true, and such as the facts to be proved will sustain. Derby & Day v. Gallup, 5 Minn. 119. 173. A party will not be permitted to plead a justification and a denial of plaintiff's possession — following Derbj"^ & Day V. Gallup, 5 Minn. 119. Zimmerman V. Lamb et al., 7 Minn. 421. 174. The answer denied payment of a note on which plaintiff based his right to recover as surety, and then alleged that the cause of action did not accrue within six years. Held, the pleading was hypotheti- cal, and the latter averment inconsistent with the former. Barnshaak v. Beming, 8 Minn. 58. 175. Remedy for Inconsistency. In- consistency between two defenses may be such as to show that one of them is "sham, PLEADING. 281 that is to say, false, so as to authorize a court to strike it out on motion. Conway v. Wliarton, 13 Minn. 138. 176. Our statute does not authorize a defense to be striclien out for inconsistency — and, in most cases in whicli one defense is inconsistent with another, the better practice would require the court to compel a defendant to elect upon which defense he would stand, rather than to strike out. Although inconsistent, it may be impossible to tell, from an inspection, what is false. Ih. e. Counter claims. 1. Oenerally. 177. Couuter claim admitted requires no proof. In an action for work and labor, the answer set up a special contract, and plaintiff' admitted the existence of the con- tract in the reply. Hdd, to be error for the court to charge the jury that pi'oof of the contract was on defendant, and if not made they should allow plaintiff' value of her services — for the contract was admit- ted by the pleadings, and the action should have been for the breach of contract for damages. Bond v. Oorbett, 2 Minn. 253. 178. Immaterial whether damages are liquidated or unliquidated. Under Sec. 71, p. 541, Oomp. St., defendant may set up by way of counter claim any cause of action arising ex contractu, whether the damages are liquidated or unliquidated. Morrison et al. i). Lovejoy, 6 Minn. 319. 179. Sub. Div. 2, Sec. 71, p. 541, Comp. St., providing what may be set off in " an action arising on obligation," viz.: "any other cause of action arising also on obli- gation " — was intended to apply to all mat- ters arising ex contractu. Folaom v. Carli, 6 Minn. 420. ISO. The fact that a breach of a con- tract may enable the injured party to bring an action in the nature of an action ex delicti, does not preclude the matter from being the subject of a set off, or vice versa. lb. 181. The counter claim contemplated 36 by Sec. 170, p. 554, and Sec. 71, p. 541, Comp. St., must be one upon which an ac- tion can be maintained by the defendant at law or in equity. Swift v. Fletcher, 6 Minn. 550. 182. An allegation in an answer that "the premises described in the complaint were a homestead," does not constitute a counter claim, in the sense that it is admit- ted to be true if not denied in a reply. Englebreclit v. Rickert, 14 Minn. 140. 183. Admitted by not denying. Counter claim or set off, set up in an answer, will be taken as true unless denied by the plain- tiff's reply. And if not denied, not Acces- sary to prove them. Taylor v. Bissell, 1 Minn. 225. ^. Effect of counter claim. 184. Counter claim admits plain- tiff's cause of action. In an action on a special contract, which by its terms required a full performance on part of plaintiff; be- fire anjr liability was cast upon defendant, and plaintiff pleads performance of condi- tions precedent, defendant cannot avail himself of an alleged non-performance on part of plaintiff, and a further defense by way of recoupment or counter claim. The first defense denies any claim in favor of the plaintiff, while the latter admits a claim on part of plaintiff, which it is attempted to avoid by a counter claim. Mason & Oraig V. J. F. Heyward, 3 Minn. 182. 185. — —Under the code a defendant may now not only plead in reduction or bar of plaintiff 's claim, but may establish a claim and recover judgment for damages against the plaintiff. But if he insists on a counter claim, and that the court shall examine into the damages he has sustained from non-performance of plaintiff, rather than only on the non-performance, he will be held to the issue on the counter claim, and will be held to admit the existence of a claim against him in favor of plaintiff. Ih. 186. Plaintiff claimed damages for breach of contract; defendant in defense 282 PLEADING. setup: 1st, iion-performaQce of contract by plaintiff; 2cl, counter claim for damages by reason of non-performance. The reply put the counter claim in issue. Hdd, by pleading a counter claim, defendant ad- mitted a claim on part of plaintiff against him, which he thus attempts to avoid, and thereby tenders an issue upon all the equities existing between him and the plaintiff arising out of tlie contract, and cannot, after an examination of all tliose equities, fall bacli and defeat a recovery against him on the plea of non-perform- ance — following Mason & Craig v. Hey- ward, 3 Minn. 182. Whalon et al. d. Aid- rich, 8 Minn. 346. 187. The rule of pleading a general denial and counter claim as laid down in Mason & Craig v. Heyward, 3 Minn. 186, and Whalon et al. v. Aldrich, 8 Minn. 348 — applied in Kample v. Shaw, 13 Minn. 488. 188. The nature of a counter claim would seem to render necessary the admis- sion by defendant of a claim against him in favor of the plaintiff', arising out of the contract, or the transaction, as tlie case may require, which is the cause of action or the ground of the plaintiff's claim set forth in the complaint. Steele et al. v. Etheridge, 15 Minn. 501. 3. When is counter claim allowed. 189. Defendant cannot counter claim after a general denial. Where plaintiff claims damage by reason of an alleged breach of contract of sale on part of de- fendant, and the latter denies the fact of ■ sale, and claims that the transaction in question constitutes a contract of agency which the plaintiffs have brolsen, to his damage, but that he has performed and is not liable to plaintiffs, and prays judgment for damages by way of counter claim. Held, defendant, by denying all liability towards the plaintiff, and failing to set up any facts showing a liability, could not counter claim against the plaintiff, and had no right to introduce evidence as to the alleged damage sustained by reason of the plaintiff' 's breacli of the alleged con- tract of agency. lb. 190. One joint defendant cannot set up individual claim as counter claim. One of several joint defendants cannot set up an individual — sole claim — as a set off to plaintiff's demand. Laws of 1849, p. 18, Sec. 1, Sub. 6. Cooper V. Brewster, 1 Minn. 06. //.. In particular cases. 191. Illegal interest paid, not good counter claim agrainst the balance of the debt. Where a mortgagor suft'ers the fore- closure of a mortgage, given to secure a note drawing 5 per cent, interest per month after due till paid, by way of penalty, and tlie mortgagee realizes more than enough to satisfy tlie principal and interest at 7 per cent, per annum, the mortgagor can- not recover that excess nor set the same up as a counter claim in an action in favor of the mortgagee for the balance due. Em- METT, C. J., dissents. Gulberison «. Lennon, 4 Minn. 51. 192. Claim for contribntion as co- surety against rent of land. In an action for rent of land, defendant set up by way of counter claim against plaintiff; for con- tribution as co-surety in a bond which de- fendant had been compelled to pay. Whether a proper subject for counter claim under Comp. St., 481, Sec. 23-24. lb. : 541, Sec. 70, 71, ' and 1^— doubted. Schmidt v Coulter, 6 Minn. 492. 193. Claim for use and occupation against a note in hands of one claiming adversely. A claim for use and occupa- tion against a person who claims adversely to the claimant — both parties being total strangers — cannot be set up as a counter claim against a promissory note under Sub. Div. 2, Sec. 71, p. 641, Comp. St.— for no contract, either in fact or by implication of law exists, and claimant can only enforce lys claims by ejectment or trespass. Folsom V. Oarli, 6 Minn. 420. ' 194. Breach of covenant of seizin against mortgage foreclosure. Under Sec. 66 and 67, p. 54, Comp. St., breach of PLEADING. 283 covenant of seizin, to the whole or a. part of the premises conveyed, be set up as a counter claim, in an action to foreclose a mortgage given for the purchase money of the premises sought to be foreclosed. Lowry v. Hard, et al., 7 Minn. 356. 193. Debt due Iiusband no counter claim ag'aiust debt due from wife. Plain- tiff brought an action against a husband and wife to charge the separate estate of the wife on her contract. Held, in such an action a debt due from the plaintiff to the husband constituted no defense or proper counter claim. Oarpenter and wife v. Leon- ard, 5 Minn. 169. 196. Claim against a stranger. R., the mortgagor, conveyed in fee to plain- tiffs. B., the mortgagee, collected rent from tenants before the expiration of re- demption, nut after foreclosui-e, and there- by became liable to plaintiffs. Hdd, B. cannot set up as a counter claim, in an ac- tion for such rent, the fact of having paid certain amount of taxes, whether before or after sale — in eicher event it was only a lien on the land — nor any unpaid balance due on the mortgage debt, for that is a claim against E,., and not the plaintiff. Spencer et al. v. Levering et al., 8 Minn. 461. 197. Loss sustained by dealer for neg- ligence of bank, against dealer's note held by bank. A claim which the dealer at a banli has against the latter, for damages arising from the non-fulfilment of a con- tract to make demand, and gave the notice necessary to fix the liabilitj' of an indor- ser, is a proper subject of set-off (counter claim) against the dealer's note held by the bank. Oomp. St. 541, Sec. 71. BidweU et al. V. Madison, 10 Minn. 13. 19§, Landlord's over due promissory note in forcible entry and detainer. In "forcible entry and detainer" to recover possession for non-payment of rent, the fact that defendant tendered at proper time, and holds plaintiff's over due prom- issory note, is not a counter claim within either subdivision of Sec. 80, Chap. 66, G. S. Barker v. Walbridge, 14 Minn. 469. 199. In an action to recover the pos- session of veal estate, under the forcible entry and detainer act, by a landlord against his tenant, for non-payment of rent, defendant cannot set up in defense ownership of plaintiff's overdue note at time rent became due, as an "equity." un- der Sub. 3, Sec. 79, G. S., Chap. 66; for an "equity," to come within the meaning of this provision, must be one for which an adequate remedy at law cannot be had — the test being whether the facts would have authorized relief in equity un- der the old practice. Ih. f. General denial. 200. A denial of eacli and every alle- gation of the complaint, goes to each and every fact alleged, and puts them all in issue. Fetz v. Clark & Co., 7 Minn. 217. 201. except what tlie court may construe to be admitted. A denial of each and every allegation of the complaint, ex- cept jwhat the court may construe to be admitted in the foregoing part of an an- swer, is bad, as both indefinite and uncer- tain. Starbuck t. DunJdee, 10 Minn. 168. 202. The denial of "each and every material allegation" of the complaint is bad. Montour v. Furdy et al., 11 Minn. 384; Dodge V. Chandler, 13 Minn. 114. 203. What amounts to a general de- nial. Any language in an answer which clearly indicates the allegations which the pleader intends ito controvert, and denies with certainty the substance of such alle- gations, is sufficient. Kingsley v. GUman, impL, etc., 12 Minn. 515. 204. The sufficiency of a general de- nial, where it puts in issue the substance of the allegations to which it is addressed, cannot now be questioned. lb. 205. An answer that " denies each and every statement and averment, and every part of the same. In said complaint con- tained, as therein stated or otherwise, save as hereinafter stated, admitted or quali- fied," is sufficiently definite and certain, as to the portion of the complaint which the pleader intended to controvert, if there is no ambiguity in what is afterwards stated, 384 PLEADING. admitted or qualified in the subsequent portions of tiie answer, and is a denial in form and substance of the allegations con- troverted. Wilson, Ch. J., dissenting, thinks that in this case the general denial covers parts of the complaint which can- not be put in issue by a simple denial, and was therefore properly struck out on mo- tion — to wit, allegations of time, or indebt- edness of a given amount. lb. 206. A general denial followed by special matter inconsistent therewith, is controlled by the latter — following Derby & Day 11. Gallup, 5 Minn. 119. Scott v. King, 1 Minn. 494. g. Qualified denial. 207. Admitting^ facts and denying: in- tention or qualifyingr circumstances. If a complaint alleges a fact which is quali- tied by a particular intention, or by its connection with other facts alleged in the pleading, there is no reason why the sim- ple fact may not be admitted, and the qualifying facts or circumstances be de- nied; nor do we see why, in the case of an allegation embracing a fact and a qualify- ing intention, a general denial of the alle- gation, except as afterwards admitted, fol- lowed with an express admission of the simple fact, is not sufficient to put in issue the intention alleged, and is not sufficiently definite and certain. Mngsley v. Qilman, impl., etc., 12 Minn. 515. 208. Setting up another and different contract. Where the answer denies the contract upon which the action is founded, except as admitted by a contract set up materially and substantially diflferent from, and would not under the pleadings sup- Xjort the contract set Tip in the complaint, the latter is put in issue. Becker v. Sweet- zer, 15 Minn. 427. h. Denial of knowledge or information. 209. What may be so denied. The rule of the New York courts, under the code, "that where a fact alleged in the pleadings ispresumptivelywithin the knowl- edge of the other party, he is not to be al- lowed to deny it by averring want of suffi- cient knowledge or information to form a belief," (but must specifically deny it,) ap- proved. Morton v. Jackson, 2 Minn. 222. 210. Indorsements on note. In an action on a promissory note, the complaint set forth two indorsements. Held, that the allegations of indorsement were material and necessary for plaintiff to prove, to show title, and a denial of information sufficient to form a belief as to the indorse- ments put them in issue. lb. 211. Existence of a judgment. Where a party may not in fact have had knowl- edge or information sufficient to form a belief as to the existence of a judgment, etc., although matter of record, he not be- ing a party to the transaction, and not bound to take notice of judicial proceed- ings, he may deny its existence, or want of knowledge or infoi'mation sufficient to form a belief. Moioer v. Stickney, 5 Minn. 406. 212. Amount of wood the defendant received for transportation. Where de- fendant admits having received a large lot of plaintiff's wood for transportation un- der contract, he cannot deny all knowledge or information sufficient to form a belief as to whether the quantity stated in the complaint is conVct or otherwise. If there were any special reasons why he did not know, he should have stated them — he is presumed to know. Starhuck v. Dunklee, 10 Minn. 168. 213. Value of goods; An avennent in an answer that "the defendant denies any knowledge oi- information thereof, sufficient to form a belief as to the value of all or any of the said goods," forms a good issue on the question of value. Aines V. The First Div. St. Paul and P. B. B. Co., 12 Minn. 412. i. Denial of conclusions of law. 214. Indebtedness. A general denial of indebtedness is not good — it being a de- nial of a conclusion of law. Freeman v. Ourran et al., 1 Minn. 169. 215. Ownership and indebtedness. Al- PLEADING. 285 legations of ownerehip and Indebtedness, unless coupled with the facts from which the ownership or indebtedness can be le- gally inferred — such as an indorsement or other legal transfer, where ownership of a note is alleged — are mere conclusions of law, and need not be denied. Bennett et al. V. Crowell ei cU., 7 Minn. 385. 216. Conclusion of law falls with the facts on which it stands, and is not ad- mitted by not heiug denied. Complaint charged want of consideration and fraud in certain conveyance of defendant — which court found against plaintiff — and further alleged that defendant " now has and con- tinually has had the possession, control and use "of the property, "notwithstand- ing the deeds aforesaid," and plaintiff " is informed and believes he is the real owner of the land." Answer admitted the aver- ments quoted. Held, the averments were conclusions of law based on allegations of want of consideration and fraud, which being found in favor of defendant, said general conclusions fell to the ground, and their admission in the answer could not warrant court in giving plaintiff judgment. Dana et ai. ». Porter et al, 14 Minn. 478. (See Answer in Paeticulab Cases.) j. Allegation of new matter. 217. A defendant who admits the facts alleged, but wishes to avoid their effect, may and should affirmatively set up the special mattei-s on which he relies as an avoidance. See Finley v. Quiric, 9 Minn. 194. Wilson, C. J., in Jfash v. City of St. Paul, 11 Minn. 174. k. Negative pregnant. 21 §. A general denial of the value of goods alleged to have been converted, will not put the value in tissue. McGlung v. Bergfeld, 4 Minn. 148. 219. Where the^ value of property becomes material, and the answer denies that it is of the value charged in the com- plaint, but fails to state how much less, or what it was worth, such a denial is a nega- tive pregnard, and is an admission of the value charged in the complaint. Surt v. McEinstry & Seeley, 4 Minn. 204. 220. Anionnt of property conveyed. The answer charged that a certain assign- ment, under which plaintiff claimed, " con- veyed all the debtor's property not exempt from execution." The reply denied that the assignment "conveyed all the debtor's property not exempt from execution." Held, too broad, as it would be true if the debtor had only a dollar's worth of prop- erty not included in the conveyance, over legal exemptions; and yet it would not change the character of the conveyance. Truitt, Bros. & Go. v. Caldwell, 3 Minn. 364. 221. Talne. Where the question of value is material, a denial that the proper- ty is worth the sum alleged in the com- plaint — specifying it— admits the value as charged — it being a negative pregnant. Where a party would controvert an alle- gation of value, he must allege that the ar- ticle is of no value, or the value as he claimed it to be. Lynd n. Picket et al., 7 Minn. 184. 222. A general denial that use and occupation of premises were worth the sum charged in complaint, is an admission of the value as charged — following Lynd v. Picljet, 7 Minn. 184. Dean v. Leonard, 9 Minn. 190. 223. A denial of "each and every allegation In the plaintiff's complaint men- tioned and set forth," does not put in issue an averment in the complaint that the property in question is of a given value. BecMinv. Eas, 16 Minn. 51. 224. A general denial of each and every allegation in a complaint does not put in issue an averment that property was "sold for $12,000.00," it being a negative pregnant. Pottgeiser v. Dom,, 16 Minn. 204. (See Answer in Particular Cases.) I. What must be denied. 225. Where an intent charged was material. Where the intent with which an act was idone becomes material and is alleged, the answer must deny the intent, and not mei-ely set up facts tending to show 286 PLEADING. such intention did not exist, for that is pleading tlie evidence and will admit the intent. Wilcox & Barber v. Davis, 4 Minn. 197. S26. Where a vendee of land incum- bered with two mortgages procured an as- signment to him of the senior mortgage, with the intent, as alleged in his complaint, of holding the same as an incumbrance ; and to avoid a merger, the junior mortgagee must deny the intent specifically, or it is ad- mitted, and not merely plead circumstances tending to show want of such intent, lb. m. Evidence admissible under different de- nials. aST. General denial of a loan. Where plaintiff claimed recovery of money loaned to defendant, and defendant denied the loan in general terms. Meld, defendant could, under such denial, prove any fact in connection with the transaction claimed to be a loan by plaintiff, to show it was not a loan, without an averment of any special de- fense—though he migVit thus defeat a re- covery. Bond V. Gorbett, 2 Minn. 255. 228. Where plaintiff, to establish his ownership and right to the possession of certain property, had introduced evidence showing that he purchased from a former owner, who had pledged the same to de- fendant, and that he had tendered defend- ant the amount for which it had been pledged, the defendant, under a general denial of such ownership and right to the possession, may show that such tender was insutBoient in amount to discharge his lien as a pledgee. Jones v. RaMUy, 16 Minn. 320. 239. trcneral denial, generally. Un- der a general denial, anything that tends to controvert directly the allegations in the complaint, may be shown — following Bond J). Corbett, 2 Minn. 248. GaldweU v. Brug- german, 4 Mian. 270. 230. Simple denial of the existence of a contract. Wliere an answer simply denies the existence of a fact, (as of a con- tract,) the defendant cannot show that the same is void in point of law, as for in- stance on the ground of usury, gaming, stock jobbing, coverture, fraud, etc. ; such matters are new matter, constituting a " defense,'' within the meaning of the stat- ute, and must be specially pleaded, and thus give the plaintiff notice of the de- fense. Finley v. Quirk, 9 Minn. 194. 23 J. Denial of a sale. A simple de- nial of a "sale" alleged in a complaint, will not permit the defendant to show that it was illegal by reason of having been made on Sunday, because, lat, an issue of fact arises only on a denial of a material allegation in the complaint, and the '' le- gality '' of the sale is not alleged, but is presumed by law from fact of sale — hence not traversable. Such a denial puts in is- sue only the sale in point of fact, and all matter in confession and avoidance show- ing the contract void or voidable in law must be specially pleaded. lb. 232. Under a denial of a contract, another contract inconsistent with new matter alleged, is admissible. Complaint alleged that the price for sawing certain lumber was agreed upon at $17.06 per thousand feet. Answer denied this, and alleged that defendant was to pay what it was reasonably worth. Plaintiff having given in evidence certain conversations tending to prove the allegations in the com- plaint, defendant could show that there was a contract price less than that alleged by plaintiff, as tending to disprove plaintiff's alleged contract, although not set up in the answer. Plummer el al. v. Mold, 14 Minn. 532. n. Denials in particular cases. 233. Denial of notice. The complaint to charge notice on defendants, averred the use, occupation and erection of buildings on the lot in question, from April, 1850. The answer admitted the facts, but denied on information and belief the time at which the use, occupation, etc., commenced. RM, an admission of actual notice of the posses- sion of plaintiff. For where one sets up PLEADING. 287 want of notice, his allegations must be pre- cise and positive, and must deny knowledge of the circumstances charged, from which notice may be reasonably interred. Minor V. WUlouglihy & Powers, 3 Minn. 22.5. 234. Denial of legal, conclusion, •with- out denying the facts. A complaint set forth specifically certain facts from which fraud could be inferred — e. g., that an as- signment was, without consideration, made at a different time from that alleged, etc., the answer denied that he confederated with, etc., to cheat, delay, or defraud the plaintiff. Held, that the denial was too general, that the specific allegations must be specifically denied or considered true. Johnson v. Piper, 4 Minn. 192. 235. Conveyance to plaintiff. A com- plaint set up certain conveyances, under which plaintiff claimed — the answer denied any conveyance to plaintiff'. Held, plain- tiff's title being material, the answer was not demurrable. Sill et oL v. Edwards, 11 Minn. 22. 236. Account stated. If a party de- sires to attacli an account stated, for mis- take or en-or in the same, he should apprise his adversary of hi» intention to do so, by specially pleading the incorrectness upon which he relies. A bare general denial of the allegation, that an account was stated, raises no proper issue upon the correctness of the account. Warner v. Myriclc, 16 Minn. 91. u. Answer in particular actions. 237. . Claim and delivery. A plea of the general issue in action of replevin in the cepit puts in issue only the taking and time and place when material— but not the title. Ooit V. Waples et al., 1 Minn. 134. 238. Actions to determine adverse claims to land entered for town site pur- poses. Under Chap. 38, Comp. St., Sec. 5, a mere denial of the facts stated by the plaintiff does not entitle the defendant to a position in court. He must set out his own title, or the facts upon which it is based, and unless such facts disclose a right superior to the plaintiff, the answer is bad — following Oastner i. Guuther, 6 Minn. 119. Weisherger v. Tenny, 8 Minn. 456. 2.39. Mandamus. On mandamus to compel an incumbent to deliver boolcs and papers to his successor, holding certificate of election, the incumbent may deny the issuance of tlie certificate on information and belief, he not being a party to the pro- ceedings. Atherton v. Sherwood, 15 Minn. 221. 240. Notes and hills : denial of mak- ing, and presentment for payment. F. brings suit on bill of exchange against C. and L., who in their answer admit the « making and acceptance of the bill, but de- ny any knowledge or information sufficient to form a belief as to whether the bill was presented, and payment demanded. Held, that no issue was raised by such denial, as it was unnecessary to aver or prove a pre- sentment, since if defendant had funds at the place, it would have protected him from costs — but not discharge him of the debt. Freeman ii. Curran et al., 1 Minn. 169. 241. Denial of immaterial allegation of partnership. The complaint on a bill of exchange alleged that plaintiff', Phineas Freeman, made the bill of exchange by name of C. P. F. & Co., on defendant. The defendant in his answer averred that he "had no knowledge, etc., to form belief whether the plaintiff was surviving partner of the firm of C. P. F. & Co., or whether Phineas Freeman was a member or not. Held, to be an immaterial denial, since the allegation of partnership was not neces- sary. Such an allegation could only be necessary when the making of the bill was denied by the answer, lb. 242. Denial of legal conclusion of own- ership without a traverse of facts, had. In an action on a bill, the complaint set forth facts from which the law presumed the ownership of the bill to be in him, and then averred the conclusion of law that "he was the lawful owner and holder of the said bill." The answer denied " all knoweldge or information, etc., as to wheth- 288 PLEADING. er the plaintiff is the legal owner and holder of the hill, etc. Rdd, that the allegation of ownership was unnecessary in ternas, and that the facts which raised the presumption being set forth, a traverse of the conclusion of law, and not of the facts, was had. lb. 243. Denying that plaintiff was payee. Complaint alleged the making and delivery by defendants of a promissory note to plaintiff" '•'■whereby they •promised to pay to said plaintiffs or tlieir order,'''' etc. The answer denied that "by the note men- tioned, etc., the defendants, or either of them, ever promised to pay the plaintiffs or their order," etc. Held, that the allega- tion in the complaint wis in substance, that the plaintiffs were the payees therein, and the denial raised a material issue, be- cause if plaintiffs were not payees, other allegations were necessary to warrant a re- cover3^ Bennett et al., «. Oi-owell et al., 7 Minn. 385. 244. Defense by maker and endorser, want of consideration. In an action on a promissory note against the maker and en- dorser jointly. The maker in his answer alleges that the note was given for "a pre- tended book account which did not exist," and consequently was without considera- tion, and adds tliat previous to date of the notes he had purchased several thousand dollars' worth of goods of the payees in the note — but " did not allege that he had paid for the same.'" Held, the denial of indebt- edness to the payees at date of note, (while admitting an existing debt at one time,) was the averment of a conclusion of law, and no defense ; and an allegation of the endorser that the consideration to the maker was " insufficient '' to charge him as endorser, was clearly bad without alleging the facts showing how or wherein it was insufficient. Dunning 394 PLEADING. note was not presented. Plaintiflf demur- red to this agreement as. a defense, for want of consideration. Demurrer sus- tained, and defendant allowed to amend. The amended answer charges that " about two weeks prior to tJw time when said note be- came due and payable,'" said agreement was entered into, and "i?i consideration thereof, and about ten days thereafter, defendant paid the plaintiff $300,"' and a deposit of money, as hefore stated. On motion to strike out this portion of the answer as '* evasive and uncertain," under Sec. 76, R. S., (1851,) as amended. Held, it should he struck out in every respect except as pleading a pay- ment of $300 on the note, instead of $210. Colter V. Greenhagen, 3 Minn. 126. 309. Where an amended pleading is attacked for evasiveness and uncertainty, on a point in which the original pleading had heen determined " uncertain and in- definite,"' the court is not confined to the examination of the amended pleading only, as on demurrer, but may examine hoth pleadings together; and the moving party may produce proof, outside of the pleading itself, to satisfy the court that the allegations are intended to evade a direct averment, which the pleader cannot In conscience make. lb. e. Frivolous pleading. 310. Frivolous pleading defined. A frivolous answer is one which, if true, does not contain any defense to any part of plaintiif 's cause of action, and its insuffi- ciency as a defense must he so glaring that the court can determine it on hare inspec- tion, without argument. Morton v. Jack- son, 2 Minn. 221. 311. Remedy against. Doubted if frivolous answers can be stricken out under Sec. 76, E.. S., p. 339,— but they can be reached by demurrer, and is the better practice. lb. XIII. Waiver of Defects in Form AND Service of Pleading. 312. Objection to form or service must be taken promptly. An attorney must take advantage of all defects in form of pleadings, and service of the same, at once — i. e., within a reasonable time — in New York, twenty-four hours— or they will be considered waived. Smith v. Mulli- ken, 2 Minn. 322. 313. Unverified pleading. Where plaintiff's attorney retains an unverified answer which should have been verified, he waives such defect. lb. 314. The failure to return an unveri- fied pleading, is a waiver of the defect — following Smith v. Mulliken, 2 Minn. 319. Heyward et al. v. Grant, 13 Minn. 165. 315. WJiere an issue of fact is taken on a defense defectively pleaded, evidence to prove such defense should not be exclud- ed on the ground of such defect. Rowland V. Fuller, 8 Minn. 50. XIV. Defects Aided by Verdict. 316. Where a complaint is defective because a particular matter is not stated in express terms, and yet contains general al- legations sufficient to comprehend such matter in fair and reasonable intendment, which allegations are such as to require proof of the particular matter In order to entitle the plaintifl' to recover, the defect will be aided by a verdict in his favor. Hurd V. Simonton, 10 Minn. 423. 317. A complaint in replevin which avers that defendant has become possessed of, and wrongfully ^detains, etc.,. without averring a demand and refusal is aided by verdict in plaintiff's favor — distinguishing this case from Stratton v. Allen & Chase, 7 Minn. 505. lb. PLEDGE OR PAWN. (See Bailment, II.) POWER OF ATTORNEY— PRACTICE. 395 POLYGAMY. (See Criminal Law, 36, 139.) POSSESSION. (See Evidence, 151 et seq.) POWER OF ATTORNEY. 1. A power of attornej'' authorizing the attorney " to grant, hargain, and sell tlie same, or any part or parcel thereof, for such sum or price, and on such terms as to hira shall seem meet, and for me and in my name to make, execute, acl^nowl- edge, and deliver good and sufficient deeds and conveyances for the same, eitlier with or without covenants and warranty," will authorize a sale — 1st. On reasonable credit. 3d. On condition that the vendee should open and Iceep a lumber yard as soon as practicable, in addition to the money con- sideration. 3d. Of an undivided interest. Bmmett, C. J"., dissents. Carson & Eaton V. Smith, 5 Minn. 78. 2. Plaintiff appointed one E.. his attor- ney in fact to sell and convey certain land "'in lots, as surveyed by B. W. Bronson." E.. sold and convej'ed to G. a portion of the land by the "acre," where none of it had been surveyed into lots except about one- third of an acre, which had been surveyed into a " block," which " block " is in con- troversy. Udd, E. was not authorized to sell any portion of the land not surveyed into lots, and could sell that only by the lot, and not by the " acre ;" and the whole transaction being entire, the deed could not be sustained as to a part, and avoided as to the remainder. Plaintifif never having taken from E. any of the purchase money, has never ratified his acts so as to bind himself from disputing its validity. Nor is E. estopped by reason of having bounded another piece of land, in a deed, as lying next to " land deeded by E. his attorney in fact, to G.," — no confirmation of E.'s act. Rice V. Tavernier, 8 Minn. 248. 3. A power to use the principal's money " for the purchase of real estate or loaning," does not authorize the agent to borrow money, or use the credit of the principal. Humphreys et al. v. Havens et al., 12 Minn. 29,8. 4. A power of attorney authorizing S. "for me, and in my name, to purchase all kinds of goods, wares, and merchandise, to execute all kinds of notes ; also for me and in my name to sell goods and barter the same, and receive pay therefor ; to collect, deposit, and draw for and exchange money ; also to buy aad sell real estate, and in my name to receive and execute all necessa- ry contracts anJ .conveyances therefor," * * does not authorize the attoi'ney to sell real estate belonging to liis principal at date of the execution of the power, but only such lands as he should buy under the power. Ch-eve i). Coffin, 14 Minn. 345. 5. The record of a power of attorney so defectively executed as not to entitle it to record is inadmissible as evidence. Lowry et al. V. Hurris et al., 12 Minn. 255. 6. It is the general rule of law, that a power to sell and convey real estate, does not confer the power to mortgage. Morris eial. V. Watson et al., 35 Minn. 212. PRACTICE. Scope Note. — With the exceptions of a few de- cisions, digested under the titles referred to in the cross notes, it is believed everything relating to the Practice in the Supreme and District Court, will be found here. I. PEAGTICE BEFOEE THE CODE IN EQUITY. II. PEAGTICE UNDEE THE COBE. I. The summons. a. Action, how commenced. b. Form and contents. 296 PEACTICE. e. Service Iiow made. d. Service where made. e. Seriiice on parine/rsMp. f. Service by publication. g. Proof of service. U. Exemption from service of army officers, i. Summons in partition. 2. The appearance. 3. Removal of actions to U. S. Courts. 4. Place of bringing the action. 5 . Attachment. a. Generally. b. Contents of tTie writ, e. The officer^ s return. d. Vacation of the writ. 6. Claim and delivery of personal property. 7. Injunctions. a. When it will issue. b. Against whom it will issue. c. Dissolution. 8. Dismissal, or discontinuance. 9. Stay of proceedings. 10. Commission to examine witnesses out ef the State. a. Who may be exa/mined. b. Deposition taken by stipulation. c. Commissioner's return. d. Suppression of the deposition. e. Deposition as evidence. 11. The Trial. a. Notice of trial, b. Continuance. B. Trial by jury. a. Drawing jurors. b. Challenging jurors. c. ' Examination of witnesses. d. Bei'xamination of witnesses. e. Admitting testimony after parties rest. f. Variance. g. Objections. h. Exceptions. i. Striking out evidence on mo- tion. j. Non-suit. k. Argument of counsel. I. Questions of fact, law, and law and fact. m. Bequests to charge the jury. n. Charging the jury. o. Betirement of the jury. p. Polling the jury. q. Verdict. r. Nullities. s. Trial of issue of fact under order of court. C. Trial by the court. a. What is a trial. b. Findings. c. filing decision. d. Order for judgment. D. Trial by reference. a. Generally. b. Referee's power. c. Report. d. Findings. e. Judgment on report. 1 2 . The judgment. a. Arresting judgment. b. What relief can be granted. c. Form and contents. d. Offer of judgment. e. Judgment on default. f. Judgment " non obstante vere- dicto.'" g. Judgment by confession. h. Entry and notice of judgment. 1. The rtotice. Z. Entry, i. Lien of judgment, j. Vacating judgments, k. Opening judgments. I. Correcting judgments, m. Remitting damages, n. Setting off judgments. 0. Satisfaction of judgments, p. Impeaching judgments. 13. The execution. a. What is auiiject to execution. PRACTICE • 297 6. W hen itiasiies. S. Fictitious issues. c. Date and time of docketing. 3. Only objections raised below. d. To whom issued. 4. Only matters acted upon be- e. The levy. low. f. Exempt property. J- Principles of determination. g. Satisfaction of execution. 1. Abstract propositions. n. The sale. Z, Harmless errors. i. The return. 3. Questions of fact. j. Vacating return.', 4. Report of referee and findings k. Setting aside the sale and re-sale. of Judge. I. Redemption. 5. Presumptions. 14. Supplemental proceedings, 6. Defects in Pleadings. 7. Generally. 15. Costs. 9- Relief granted. a. Generally. h. Setting off judgments. b. In district courts. i. Staying proceedings. 1. What may be taxed as costs. j- Remittitur. S. Adjustment. k. Reargument. 3. Costs inpa/rtieidar gases. II. On Appbat.. k- Remedy against error in tax- ation. a. Generaily. c. In supreme court. b. Who can appeal. 1. Generally. c. Time to appeal. 2. W hat is taxable as costs. d. Notice of appeal. e. Effect of appeal. 16. Practice on review. /• Dismissal of appeal. A. IN DISTRICT COURT. 9- Papers on appeal. a. On appeal. h. When an appeal lies. 1. Disamissal of appeal. i. When an appeal does not lie. 2. Dissmissai of the action. j- What is reviewable. 3. Effect of appeal as waiver. k. Principles of determination. 4. Principles of determination. I. Belief granted. S. Trial on appeal. Ill . On Writ of Error. 6. The judgment, b. On certiorari. a. Who must bring. 1. When it lies. b. Time for suing out the writ. Z. Affidavit for the writ. c. Effect of the writ. 3. Service of the writ. d. Papers on writ of error. e. When the writ lies. 4. The return. f. When the writ does not lie. 5. Principles of determination. g. What is reviewable. 6. The Judgment. h. Relief granted. B. IN SUPREME COURT. i. Dismissal of the writ. I. Generally. 17- Motions. a. Methods of reoiew. 18. Orders. b. I^he record. 19. Amendments. e. The paper book. d. The calendar. (See TSsw Trial.) e. What is reviewable. (See Ma NDAMtIS, v.) 1. JHaeretionary matters. 38 (See Prohibition.) 398 PRACTICE. (See Criminal Law, VI.) (See Cektioraki.) (See Railkoads, III.) I. PRACTICE BEFORE THE CODE, IN EQUITY. 1. An interlocutory decree or order is one made pending tlie cause, and before a final hearing on the merits. A final decree is one that disposes of the cause. Ohoteau v. Rice, 1 Minn. 34. 2. It is not error for the Chancellor to hear and allow exceptions to a bill in Chancery, without a reference to a mctster. Ooodrich v. Rodney el al., 1 Minn. 196. II. PRACTICE UNDER THE CODE. I. T/ie summons, a. Action how commenced. 3. Ag'ainst non-resident with property within tliis State. An action may be com- menced against a non-resident who has property within the State, by summons only, as well as by issuing an attachment — following Stone v. Myers et al., 9 Minn. 309. Gleland v. Tavemier, 11 Minn. 194. 6. Form, and contents. 4. Its style. The "summons" com- menced "you are hereby summoned and required in the name of the State of Minne- sota, to answer," etc. Bdd, sufficient under Sec. 14, Art. 6, of State Constitution. Ih. 5. Entitling of summons. Summons described the court as of the " 3d judicial district," the action was brought in the Fourth District. Hdd, not such error as to avoid the summons, those words being sur- plusage, and could in no way mislead or prejudice the defendant. Sanna et al. v. Russell et al., 12 Minn. 80. 6. Summons is not process, within Sec. 14, Art. 6, Constitution of State, hence a summons is not void by reason of not being styled in the State of Minnesota — distinguished from Hinckley v. St. Antho- ny Water Power Co., 9 Minn. 55, and Dor- man V. Bailey, 10 Minn. 383. lb. Lowry et al. V. Harris et al., 12 Minn. 255. 7. Notice as to who will apply on de- fault for judgment. Summons stated that on failure to answer, " application will be made to the court for the relief demanded in the complaint." Held, sufficiently shows that the plaintiff will make such applica- tion, and satisfies the statute and confers jurisdiction. Hbtchldssv. Cutting, 14 Minn. 537. S. Subscription of summons. Sec. 49, Chap. 60, Comp. St. 537, requiring the summons to be " subscribed by the plain- tiff or his attorney," is not complied with by printing the name of the attorney — un- der Sub. 15, Sec. 1, p. 114, Comp. St. Amss V. Schurmeir, 9 Minn. 221. 9. A written signature to a summons signed by the agent of the plaintilf, in his presence, and by his express direction, is valid. HoteKkiss v. Gutting, 14 Minn. 537. 10. Notice of subscriber's office. A summons subscribed by plaintiff required defendant to serve a copy of his answer upon "the subscriber at his office in the city of Rochester, Minn." Held, sufficiently cei'tain, and if regular in other respects, confers jurisdiction. If plaintiff had no office at specified place, advantage could be taken of that fact, in the action, on proper showing, but not collaterally. n. 11. Notice as to service or filing: of complaint. Copy of the complaint was left with defendant on May 10th, 1858. On June 10, following, a summons was served on him, containing a notice that un- less he answered the complaint, etc., a copy of which was therevnth served upon him, etc., the plaintiff would, etc. No copy of complaint accompanied the sum- mons. Held, the action was not properly commenced. TuUis v. Caldwell et al., 3' Minn. 117. PRACTICE. 299 c. Service, how made. 12. Reading: of the summons in pres- ence of the defendants, is no service. Fall- mans V. Oilman, 1 Minn. 182. d. Service, where made. 13. At common law, process can [onl}'^ be served on a defendant, wlietlier a nat- ural person or a body corporate, within the State in whicli the action is commenced. Sullivan v. La Grosse & Minnesota Packet Go., 10 Minn. 386. 14. At common law, the service of pi'ocess on the president or principal officer of a corporation must be within the juris- diction of the sovereignty where the arti- ficial body exists, and a coi-poration can have no legal existence out of the bound- aries of the sovereignty that created it. 11). 15. Personal service of summons, within this State, on a g'eneral agent of a foreign insurance company, temporarily within this State, will give jurisdiction ever the company, under the act relating to the service of mesne process upon for- eign corporations, on p. 494, G. S., said act controlling Sec. 48 and 56, Chap. 66, G. S. Wilson, C. J., dissents. Guernsey v. Arn^- erican Insurance Co., 13 Minn. 378. e. Service on partnership. 16. Service on one partner binds partnership property. Under Sec. 38, Chap. 60, Comp. St., suits may be com- menced against partners by firm name, and service upon one will bind the joint property of the firm — so a garnishee sum- mons may be served upon and service ac- cepted by one of a firm, and bind the firm. Hinckley et al. v. St. Antlwny Falls Water Power Co., 9 Minn. 55. /. Sereice by publication. 17. The affidavit must state facts showing that the defendant, after due dil- igence, cannot be found within the State. The statute allowing sei-vice of summons by publication, "where defendant, after due diligence, cannot be found within Ter- ritory (State), and where tliat fact appears by affidavit,^' etc., is not satisfied by an afli- davit setting forth that defendant " cannot be found, etc., with due diligence," etc. To make the necessary facta appear by affi- davit, a statement of facts and circum- stances must be made, from which the officer can find that the facts exist, and it must appear what has been done towards finding him in the State— following Curtis e. Moore, 3 Minn. 29. Mackubin & Edger- ton v. Smith, 5 Minn. 367. 18. what is such showing. An affi- davit for publication of summons against a foreign corporation alleged that "the defendant is a corporation or company established and doing business under and by virtue of the laws of the State of Illi- nois." Reld, shows.the defendant to be a foreign corporation, within the meaning of Sec. 54, Comp. St.., and not to be found within the State, and summons against them may be published in cases provided by statute. Broome et al. v. The &. D. D. & M. Packet Co., 9 Minn. 239. 19. Service on foreign corporation can only be by publication. Service of summons on a foreign corporation, under Sec. 52, 53 and 54, Comp. St., Chap. 60, can only be made by publication. Sulli- van V. La Crosse & Minn. Steam Packet Co., 10 Minn. 386. 20. Insufficient affidavit. To;author- ize the publication of a summons, under the law in force in August, 1859, (Sec. 54, Comp. St., p. 538,) affidavits stating facts which are not inconsistent with the de- fendant's residence or presence in the State at date of the affidavit, are insuffi- cient—following McKubin & Edgeiton v. Smith, 5 Minn. 317. Harrington v. Loomis et al., 10 Minn. 366. 21. Xaillng copy of summons and complaint. Order for publication of sum- mons was dated on 18th January, and cop- ies of the summons and complaint were 300 PRACTICE. deposited in tiie post-office on the 20th (the 19th being Sunday), and prior to the first legal publication of summons. Bdd, sub- stantial compliance with the order requir- ing copy to be mailed forthwith. Oleland V. Tavernier, 11 Minn. 194. 22. Time of publication. A summons was first published on Sunday, but after- ward inserted on a week day, and regularly published thereafter the requisite time. Held, service good. lb. g. Proof of senice. 23. By admission. The following ad- mission of service — "Due service, by copy, of within order, is hereby admitted, this day of 1866,"— estops the signer from denying the validity of the service. The ^tna Insurance Co. ». Swift et al., 12 Minn. 437. A. Exemption from service of army officers. 24. Can be waived. The exemption from service of process of certain military officers during their period of service, as provided by act of March 2, 1865, etc., is a pei'sonal privilege, and should be taken advantage of by motion to set aside the service ; by answering the privilege is waived, and the court ac(^uires jurisdiction. Williams v. McGrade, 1.3 Minn. 174. i. Surmuons in partition. 25. What is a snfaciont address to all the owners and lien holders who are known, etc. A complaint in partition of real estate, under Chap. 74, G. S., set forth the interest of all the parties joined, cash value of the property, and an allegation that " the above named are the only per- sons having or claiming any interest in or to said premises, or any part thereof." The summons, in the title, gave the names of all the defendants, and was addressed "to the above named defendants," without re- peating them. Beld, sufficient compliance with Sec. 2 of said chapter, which re- quires "the summons to be addressed by name to all the owners and lien holders who are known, and generally to all per- sons unknown, having or claiming an in- terest in the property," — the complaint showing that no others not joined had or claimed any interest therein. Martin and wife V. Parker and wife, 14 Minn. 13. 2. T/ie appearance. 20. An application for an extension of time to answer — pending the decision of a motion to set aside the summons — is a rec- ognition of the jurisdiction of the court over the person, and requires a general appearance. Yah v. Edgerton, 11 Minn. 271. 27. Written admission of service, en- dorsed on the baclc of a summons, is not an appearance in the action— Sec. 27, G. S., p. 458. First National Bank of Hast- ings V. Sogers, impl., etc., 12 Minn. 529. 28. An appearance waives, what. An appearance in court having jurisdiction of subject matter, is a waiver of any irregu- larity in service of process— by which par- ties are brought into court. Chateau v. Bice, 1 Minn. 192. 29. A general appearance is a waiver of defects in the service of summons, or the return of the office!- thereon. Johnson V. Knoblauch et nl., 14 Minn. 16. 30. — —A general appearance in an ac- tion of replevin and plea of property by defendant, is not a waiver of the illegality of the taking an account of the invalidity of the writ. Castle et al. v. Thom,as et al., 16 Minn. 490. 3. Removal of actions to U. S. Courts. 31. A non-resident, when entitled to a removal. A non-resident defendant in an action embraced within Sec. 12 of the U. S. judiciary act of 1789, is entitled to a removal of the action from the State court to the Circuit Court of the United States, upon complying with the requirements of said section; and snoli section is not re- PKAOTICE. 301 pealed or changed by "an act for the re- moval of causes in certain cases from State courts," approved July 27, 1866, nor by the act amending the latter act, ap- proved March 2, 1867. Butterfidd v. The Home Ins. Co., 14 Minn. 410. 4. Place of bringing the action. 32. Requisites of an affidavit on ground of interest, etc., of judge. An affidavit for a, change of venue on the ground that the judge is interested or pre- judiced therein, drawn in the language of the statute simply, is insufficient, — the grounds of belief should be stated. Ex \ parte, &old T. Curtis, 3 Minn. 274. 33. Action may be brought on note anywhere, but on application will be changed to the proper county. Sec. 41, R. S. (1851), p. 334, providing that "the action must be tried in the county in which the parties, or one of them, reside at the commencement of the action, * * subject, however, to the power of the court to change the place of trial, as provided in Section 43," is not mandatory. This action (on a promissory note) may be brought in any county, but "on application of all the defendants answering, the court may change the place of trial to the proper county," as provided in Sec. 43. A de- fendant, if he has no answer, cannot be pi-ejudiced by such a proceeding — if he wishes to defend, the proper practice is to apply for an order changing the place of trial. Mei'rill, Cowles & Co., v. Shaw & Brd. , 5 Minn. 148. 34. On application for change of place of trial, requisites of afQdayit. Under Sec. 44 and 45, Comp. St., p. 537, the veri- fied petition must contain a statement of facts, and general charges of prejudice and antipathy, or erroneous decision on the part of the judge, are insufficient to warrant a change of venue. Burke v. May all et al., 10 Minn. 287. 35. Bight to certain place of trial may be waived. The statute which makes actions against officei-s, for their official acts, triable in the county where the cause of action or some part thereof arose, is a personal privilege, and may be waived by the officer. Such objection cannot be raised for the first time in the Supreme Court. TulUs V. Brawley, 3 Minn. 277. q . Attachment. (See title Attachments.) u,. Generally. 36. Requisite proof. Under the pro- vision of Comp. St., the same proof is not required to issue an attachment in a Justice's Court as in the District Court. Curtis V. Moore, 3 Minn. 29. 37. Immaterial errors. A writ of at- tachment was irregularly issued in an ac- tion in which the summons was published, and afterwards judgment was regularly entered, and the same property levied upon under execution, and sold. Held, the er- ror in the issue of the attachment was im- material. Cleland ®. Tavernier, 11 Minn. 194. 6. Contents of the writ. 38. >'eed not show what officer issued it. It is not necessaiy that it should ap- pear from a warrant of attachment, by what officer it was allowed. Shaiibhut v. Hilton et at, 7 Minn. 506. c. The officer's return. 39. To what property, etc., the re- turn is confined. Plaintiffs sued D. as sur- viving partner of the old firm of D. & D. ; and the officer's return on the writ of at- tachment shows that a debt due from one M. to the old firm of D. & D., was levied upon. Bnt it appears that M. was nevei- indebted to the old firm, but is indebted to the new firm of D. & D., composed of de- fendant and one S. Held, the return of the officer cannot be extended to cover the in- debtedness of M. to the new fii'm, nor the interest of either of the partners therein. Allis V. Bay, 13 Minn. 199. 302 PRACTICE. 40. A return on a writ of attachment issued in an action against tlie defendant as surviving member of the old firm of D. &B. as follows, viz.: "I certify that I have attached * * * all debts and in- debtedness due or owing from said M. to said defendants, or to said D., defendant," will not embrace the interest of said D., defendant, in an indebtedness due from said M. to the new Arm of D. & D., com- posed of defendant and one S. Ih. d. Vacation of the writ. 41. Who may move to vacate. An as- signor for the benefit of creditors may move to dismiss an attachment against the assigned property any time before a return of nulla bona, on the simple ground that it is not against his property. Richards et al. V. White, 7 Minn. 345. 42. Notice of motion, A ten days' no- tice of motion to vacate an attachment, is sufficient whei-e the statute is silent as to the time to be allowed — Sec. 140, p. 469, Or. S. Blalm v. Sherman, 12 Minn. 420, 43, A notice of motion to vacate an attachment at the " next special or adjourn- ed term " of the District (Jourt, for, etc., to be held at, etc., on a specified daj', is suffi- cient, especially where the otlier party ap- peared at tlie hearing. lb. 44. Grounds for vacating'. Writ of attachment cannot be vacated on the ground that the property attached is not subject to attachment — it is a writ improp- erly allowed that will be vacated, the question being as to its validity, if properly issued it cannot be vitiated by anjf irregu- larity of the officer executingit. Davidson V. Omen et at, 5 Minn. 69. 45. former adjudication of the same subject matter, is proper to be set up in an answer, but cannot be passed upon on a motion to vacate a writ of attachment. lb. 6. Claim and delivery of personal prof - erty. 46. Writ, when void ab initio. Plain- tiff, in an action for tlie recovery of per- sonal property, filed an affidavit under Sec. 112 to 116, Chap. 66, G. S., and in- dorsed thereon an order to the clerh of court to issue a writ to the sheriff, etc., as in that statute provided. HM, these proceed- ings having been had, under the amend- ment of 1868, (G. Laws 1868, Chap. 76), which provided the plaintiff might indorse upon the affidavit a requisition to tlie sheriff to talie the property, instead of to the clerk to issue the writ, and providing that the sheriff, upon receipt of such affidavit, so in- dorsed and a specified bond, should talce the property, etc., the writ actually issued was in no sense a process of the Court, but void on its face, and the sheriff in taking the property was a mere trespasser, liable to defendant in damages, or replevin for the property. Castle et al. v. Thomas et al., 16 Minn. 490. 47. Vacation of writ. There is no room for an order to vacate a writ of re- plevin which is void ab initio, and on its face. lb. 7. Injunctions. a. When it will issue. 48. Time. An injunction could issue " on complaint" before the service of sum- mons under Sec. 21, Chap. 57, Comp. St., and would bind the defendant until dis- solved; but if the injunction was served without service of a subpoena (summons) the injunction would, on motion, be dis- solved, but they are not void, and until dissolved, are obligatory. Lash v. McOor- m'ck, 14 Minn. 482. 49. Where the averments in a com- plaint are in form positive, and not on in- formation and belief — although the verifi- cation is in the ordinary form, it satisfies the requirements of the statute in regard to applications for injunctions ; and an affida- vit in which the other party swears to facts on information and belief will not suffice to restrain the issuing of the writ, where the complaint shows a proper case. Mc- Boberts v. Washburn et al., 10 Minn. 33. 50. To restrain motion to set aside PRACTICE. 303 mortgagee sale. Where the purchaser at foreclosure sale uuder decree of court, brings an action to foreclose the equities of junior incumbrancers, who were not made parties to the former action, and a sale in this second action, which the junior mortgagee moves to set aside foi' alleged irregularities, the fact that the sheriff has not made his report of sale, will not au- thorize tiie issue of a temporary injunction restraining the motion to set aside the sale. Rogers v. Holyoke, 14,Minn. 220. 51. Averments on information and be- lief. An injunction will not issue on facts stated on information and belief only. Armstrong v. Sanford, 7 Minn. 49. 6. Against whom it wUl issue. 52. Stranger to the proceedings. In- junction will not issue against one not a party to the proceedings. Oliamblinet al. ». Slichter et al., 12 Minn. 276. c. Dissolution of injunction. 53. Motion therefor. Where a bill has been taken ^ra confesso and an injunction granted, it is better practice to make a mo- tion to dissolve the injunction after the answer is put in, but where the answer was exhibited and injunction not discovered till after the time to pleadj held, an order, granted on a proper showing, dissolving the injunction, was discretionary with the court below. Perrin v. Oliver, 1 Minn. 202. 54. When an answer fully denies and puts in issue the equities of the bill, an in- junction will be dissolved — as a general rule. Moss v. Fettingale, 3 Minn. 217. 55. When the answer fully denies the averments in the complaint, the in- junction will be dissolved— following Moss B. Fettingale, 3 Minn. 217. Armstrong y. Sanford, 7 Minn. 49. 56. When complaint fails to show that plaintiff will suffer injury. The com- plaint having failed to show that plaintiff will suffer any pecuniary damage, or even if suffered, that he has no adequate remedy at law, his preliminary injunction was properly dissolved. Ooodrich v. Moore, 2 Minn. 64. 57. Complaint should not he dismissed on the hearing of a motion to dissolve an injunction, unless complainant assents, lb. 5§. Where the answer sets up new matter by way of counter claim. Where an injunction has been granted on the complaint, it will he dissolved if the answer denies and puts in issue the equities of the complaint — but it toill not be dissolved if the answer presents matter of defense by way of counter claim only, thus admitting the equities of the complaint and endeavoring to avoid them ; and will be continued until the hearing, unless the plaintiff in his re- ply, or by an omission to reply, admits the truth of the new matter. The court ought not to entertain a motion for a temporary injunction where the answer sets up new matter by way of counter claim, until a reply has been served, or the time for so doing has elapsed. lb. 59. Restraining mortgage foreclosure. Action to cancel a mortgage which com- plaint charged had been satisfied ; the an- swer denied satisfaction of the same, but asked no affirmative relief. Pending the suit defendant commenced foreclosure of the mortgage by advertisement, whereupon plaintiff, on petition, stating that such fore- closure, before the determmation of the action, would " materially embarrass and injure your petitioner, and complicate the case and petitioner's jast rights and inter- ests," obtained an Injunction restraining the foreclosure. Seld, injunction should be dissolved, because: 1st, the answer put the plaintiff's equities in issue; 2d, defend- ant was not compelled to ask a foreclosure of the mortgage, by decree of court in the action, since the statute allowed a foreclos- ure either by action or advertisement. He may simply defend the action, and being successful, he may then proceed to fore- close by advertisement, at least, and prob- ably by action, since in such case he might wish to make others parties thereto; 3d, the petition shows no facts from which the court can find that injury will result, much 304 PEACTICE. less such injury as will warrant an injunc- tion, for even if the forelosure cast a cloud on plaintiff's title, a writ of injunction will not issue — following Armstrong v. Sanford, 7 Minn. 53; qualifying Bldwell v. Whit- ney, 4 Minn. 76. Montgomery v. MaEwen, 9 Minn. 103. 60. Rerokin;; order dissolving an in- junction. The District Court has discretion to grant an order vacating a previous order allowing a bill to be taken pro confeaso, and dissolving an injunction. Such an order cannot be reviewed since it is in the discretion of the Court. Perrin v. Oliver, 1 Minn. 202. 8. Dismissal or discontinuance of ac- tion. 61. Plaintiif may dismiss mthout leave of Court, when. In the absence of any provisional remedy or any pleadings on part of the defendant below, the plain- tiff below had the absolute and statutory light to disniiss the action without leave of Court, or the other party. Eev. St. 349, Chap. 70, Sec. 162, Sub. Div. 1. FaUman v. GUman, 1 Minn 182. * 62. Wiiat amounts to dismissal. The following entry in the clerk's register under the title of the action, " This action is dis- missed and discontinued hj' the above named plaintiflEs." Signed, "Henry J. Hoi-n, attorney for plaintiffs " — where no- tice of such dismissal had also been served upon the defendant, operates as a dismissal under Sec. 242, p. 484, G. S., no provisional remedy having been allowed, or counter claim made, and this without the payment of costs, and though signed, not by the clerk, but by the attorney. Blandy el al. ■». Raguet, 14 Minn. 491. 63. -Dismissal for want of prosecution. Plaintiff cannot be compelled to proceed in an action and enter judgment, but if he neglects to prosecute unreaonsably, de- fendant may have an order of dismissal, under Sec. 162, (sub. div.2) Chap. 70, R.S., as amended — see Sec. 10 of amendments. Flandkau, J., thinks the Court can com- pel performance of any act which It is the duty of a party or attorney to perform 'in the progess of a suit, but concurs in this decision, as the order appealed from au- thorized defendants to enter the plaintiff's judment or required the plaintiff to enter a judgment different from the one he was entitled to by law. Deuel v. Hawke, 2 Minn. 50. 64. In replevin, where the sheriff has returned the writ showing that summons had been served, but he had not taken pos- session of the property, heUd, no such issuing of a provisional remedy as to pre- vent plaintiff discontinuing the action on his own motion — under Sec. 242, p. 484, G. S. Blandy etal. ■». Raguet, 14 Minn. 491. 9. Stay of proceedings. 65. For non-payment of costs of prior action for same cause, in wliicli judgement was rendered on, tlie pleadings. On mo- tion for judgment on the pleadings, judg- ment was given for defendant, a second action being brought on same cause of action, Meld, the second action would have been stayed, on motion, until first judgment was paid. Oerrish & Brewster V. Pratt & Bunker, 6 Minn. 53. 10. Commission to examirie witnesses out of the State. a. Who may he examined. 66. Parties to snits may be examined. Testimony of a party to a suit may be taken by commission. Claflin v. Lawler, 1 Minn. 299. 67. Under the statute, Sec. 8, p. 675, and Sec. 25, p. 677-8, Comp. St., a party may be examined as a witness by commis- sion in his own behalf. Sart et al. v. Eastman et al.,1 Minn. 74. 6. Deposition taken by stipulation. 6§. A deposition taken under stipula- tion between the attorneys, which reserved the right " to object to the admissibility of PRACTICE. 305 the interrogatories and the testimony elici- ted thereby, in lilce manner and with the same eBfeot only as if the same were deliv- ered orally in the Court, upon the trial of said action," outs off the right to object that: 1st, the witness examined was a party to the action; 2d, the commissioner has not endorsed, on the deposition, tlie time and place of talcing it; 3d, the commissioner has not dated the certificate appended to the deposition of each witness. Tyson & Co. 11. Kane & Co., 3 Minn. 287. 0. Commissioner's return. 69. When on the "buck of the com- mission." The return of a commissioner is on the "back of a commission." wlien it is on the " second leaf of the same sheet." lb. 70. Where two or more commis- sioners were appointed. Under Rule 12, District Court, where two or more com- missioners are appointed to talie a .'deposi- tion, it must appear from the return. at> tached, that all the commissioners were present,»or that those not attending had notice of the time and place of taking the deposition. Mair v. January et al., 4 Minn, 239. 71. As to whether witness was sworn " before the commissioners." A commis- sion, which in other respects is sufficient, is not fatally defective in omitting to state in express terms, that the witness was sworn before the commissioners, it appear- ing from the certificate that he was actually sworn. As to immaterial variations from Rule 13, of the District Court, see further this case. Cooper «. Stinson, 5 Minn. 201. 72. Mnst be "endorsed upon," not "annexed to," the commission. The certificate of commissioners appointed to take testimony, "annexed to the deposi- tion," is not sufficient under Rule XIII., 1 Minn. 457, which requires the same to be "endorsed upon the commission." Beatty & Stedman v. Ambs & Wittman, 11 Minn. 331. 73. What saSicient, under stipulation waiving requisite forms and notices. 39 Where two stipulations waived " any and all notices and prerequisite forms requir- ed by law or rule of court for the taking of deijositions," and the commissioner took the depositions of two different witnesses, and attached them togetlier. Held, a single certificate and return is sufiicient, if it ap- pears therefrom that the depositions were taken in pursuance of the stipulations, and upon interrogatories and cross interroga- tories to which they arc attached, and that in othei- respects the terras of the stipula- tions were substantially complied with. Bay et al. v. Raguet et al, 14 Minn. 273. d. .Suppression of deposition . 74. When to apply for its suppression. The New York rule that a motion for sup- pression or re-execution of n deposition which has been opened so that its contents, with reasonable diligence, might have been known before the trial, should be made at chambers, and not be entertained by the judge upon the trial — approved. But a deposition filed March 16th, next preceding an April term, is not within the rule. Walker v. Barron, 4 Minn. 253. e. Deposition as evidence. 75. When particular answer inadmis- sible. In a commission to take testimony, where an interrogatory is to be put, if a previous question is answered in a particu- lar way, and that question is not so answer- ed, the interrogatory should not be put, and if put, the answer should not ba admitted. Selden, Withers & Co. v. Bank of Commerce, 3 Minn. 166. 76. Where one of the parties had an attorney present at taking of deposition. A deposition was taken by stipulation, which concluded as follows, viz.: "And we hereby waive the issuing of a commis- sion, and all other formalities, and requi- sitions of the statute in relation to the taking of depositions." It appeared from the commissioner's return, that one "Hen- ry C. Gilbert was present at the taking of said deposition on the part of the plaintiff, 306 PRACTICE. and that no one appeai-ed oii behalf of the defendant." Hdd, the deposition should not have been received in evidence. Em- METT, C. J., dissents. Walker v. Barron, 4 Minn. 253. 77. The withdrawal of clearly iiicora- petent interrogatories vi^ithont objection, is no gronnd foi' excluding the whole de- position. Loiury et nl. ». Harris et al., 12 Minn. 255. 78. The fact that an interrogatory and answer are excluded for any sufficient reason, as a rule, is no ground for exclud- ing the whole deposition. Ih. 79. Parties introducing the deposition may adopt and introduce the etoss inter- rogatories, on default of the other side. Where the chief Interrogatories and their answers in a deposition have been put in evidence, and the other side decline to in- troduce any of the ci-oss interrogatories and answers thereto, the party introducing the deposition may adopt and read them in evidence. Ih. 80. Answers to cross interrogator- ies must be full and fair. When evi- dence of a witness is presented to the Court in the form of a deposition, it must appear that the answers to the cross Interrogatories are fully and fairly given, without the suppression of any fact, material to the case, and that must be determined by ref- erence to the interrogatory, if that is gen- eral the answer may be general — if the answer is as full and minute as the inter- rogatory naturally and fairly interpreted, calls for, it is sufficient. McMahonv. David- son, vmpVd, etc., 12 Minn. 357. 81. Part of answer admissible when the other part objectionable. An objec- tion to an entire answer in a deposition, where a portion thereof is admissible, will not be sustained. Daij et al. v. Raguet et al. 14 Minn. 273. 82. Not admissible if witness can be procured. Where no efforts have been made to procure the attendance of a wit- ness, and it does hot appear that his attend- ance could not have been procured, or that he is without the State, or beyond the ju- risdiction of the court, his deposition is not admissible. State i>. Out, 13 Minn. 341. 83. As evidence, on subsequent trials. Sec. 21, R. S., p. 474, allows depositions used on a trial to be used on any subse- quent trial of same cause, between same parties or their representatives — or on ap- peal. Chateau, Jr., v. Parker, 2 Minn. 118. 1 1 . The trial. A. Generally, a. Notice of trial. 84. Amendment of pleading does not make new notice necessaiy. After a cause is regularly noticed for trial, and placed upon the calendar, an jamendment of the pleadings does not render a new notice of , trial necessary. Steoens v. Curry, 10 Minn . 316. 85. Premature notice. Judgment a:f- flrming an order, appealed from, on the nec- essary undertaliing to stay proceedings, was entered in the Supreme Court on Ifov. 7, 1865, and same day transmitted to the Dis- trict Court. On Oct. 29, notice of trial for the Nov. 9th, was served. Held, prema- ture, and there being no appearance on the other side, the trial on that day was irregu- lar. Starbuck v. Dunklee, 12 Minn. 161. b. Continuance. 86. What should be stated in an affi- davit for continuance. lu an affidavit of continuance, the least that can be required is, that the party should state that he has stated the facts which he expects to prove by an absent witness to liis counsel, and that he is advised by said counsel that he cannot safely proceed to trial without the testitnony of such witness. The better and correct practice is to set forth the facts in the affidavit, that the court may be ad- visee! as to whether the testimony is neces- sary or otherwise. Maekubin v. Clarkson, -5 Minn. 347. 87. Ko continuance on ground of 'ab- PRACTICE, 307 seiice of a witness not subpoenaed, but who had promised to attend. If a party chooses to rely upon the pronyse of a wit- ness to be in attendance, without subpoena- ing him, he does so at his own rislv, and cannot, on that ground, claim a continu- ance if the witness does not Iceep his agree- ment — following Beaulieau v. Parsons, 2 Minn. 37. lb. B. Trial by jury, a. Drawing jm-on. 88. On calling a jury, defendant chal- lenged the regular panel, which challenge was allowed, whereupon the court directed tlie clerk to draw a jury from among jurors who had previously been summoned to serve during the term upon two special ven- ires issued, to supply a deficiency in the regular panel — declining to issue a special venii'e for this particular case. Held, cor- rect practice. Dayton, et (d. v. Warren, 10 Minn. 233. h. Challenging jurors. 89. Decision of court as to actual bias, conclusive. "Where the question of actual bias of a juror challenged is submitted to the court, its decision is conclusive. Morrison et al. V. Lovejoy et al., 6 Minn. 319. 90. Where challenge is admitted- withdrawal. Where a party challenges a juror, and the same is admitted by the other side, he cannot then examine him, for there is nothing left to try, and it is dis- cretionary with the judge to permit the withdrawal of the challenge or not. lb. c. Examination of witnesses. 91. Leading questions distretionary with the court. It is a matter of discretion with a court to permit leading questions to be put to party's own witness, and though this is perhaps a legal discretion which may be reviewed, this court will not Interfere except in a clear case of abuse or prejudice. State 1). Staley, 14 Minn. lOii. 92. Criminating questions. Sec. 72, R. S., (1851,) p. 481, declaring that a wit- ness shall not be required to answer ques- tions " which have a tendency to accuse himself of any crime or misdemeanor, or expose him to any penalty or foi-feiture," is but declarator3' of the law as it then exists ed. Although this privilege appertains solely to the witness, yet it is the duty of the court to inform the witness of his privilege ; and after it appears with sufficient clearness that he designs to avail himself of the priv- ilege, the court has the right thereafter to allow similar questions to be put, and if they are afterwards put \vithout the interference of the court and objected to by opposite cousel, the court may rule tliem out, witliout subinitting them in each case to the decis- ion of the witness. State of Minnesota c. Anne Bilanshy, 3 Minn. 246. 93. It is improper on cross-examina- tion, to assume facts to have been proved, which have not been ; especially when it is for the purpose of getting the opinion of an expert on a mere hypothesis, not to test his skill or accuracy, but to obtain evidence in support of the defense. State v. Stokely, 16 Minn. 282. d. Reexamination of witnesses. 94. It is discretionary with a court to allow a re-examination of a witness iu chief after he has been once dismissed, and not reviewable except in case of abuse. Lynn v. Pickett et al. 7 Minn. 184. e. Admitting testimony after parties rest. 95. Not allowed when due diligence would have rendered it unnecessary, or for impeaching purposes. When defend- ant had partially argued the case to the jury, he applied for permission to recall one of iilaintiif's witnesses to correct his testimony in this, that a consideration on which he had been examined, and previous- ly testified as being in money, was actually an antecedent indebtedness — permission re- fused. Held, no error, as with due dili- 308 PEACTICE. gence that fact could have been discover- ed before, on 'a proper cross-examination, and equally objectionable as tending to im- peach the witness, although the witness himself so stated after leaving the stand, for it must have appeared to the court that the fact could be proved. Baze v. Arper, 6 Minn. 220. 96 Where the pistol with which the offense had been coniinitted, had not been formally introduced. On the trial of an indictment for murder, defendant's counsel on the argument claimed the pistol, with which the oflFense was charged to have been committed, was not in evidence, whereupon the court allowed the State to formally introduce it, it having been ex- amined by the jury before, and treated as in evidence, offering to allow the defend- ant time to introduce and p'ocure any other testimony thereby rendered necessary, at the expense of the State. Held, proper exercise of judicial discretion. State v. Staley, 14 Minn. 105. 97. Where evidence by previous con- sent was so inlrodaced, no rebutting evi- dence allowed— the question being in is- sue by the pleadings. On the trial, plain- tiif rested his case, reserving— with the con- sent of the defendant, and permission of court — the right to examine an absent wit- ness on the question of damages, in case he arrived. Defendant proceeded and rested ; plaintifE then examined his witness as agreed, whei-eupon defendant proposed to Introduce rebutting testimony as to the damages, and court refused permission. Held, no eiTor, since defendant should have offered his evidence before closing, the question of damages being in issue by the pleadings, and the court having notified counsel at the commencement of trial, that neither would be allowed to recall witnesses after having been once examined. Beau- lieau v. Parsons, 2 Minn. 37. 98. Decision of the court not review- able. The admission of testimony after a party has closed his case is discretionary with the court, and not subject to review in the Stipreme Court. Th. I /. Variance. 99. The>word '■'■installment'''' cannot be presitoed to mean " groceries, liquors, and provisions," when the scilicet which is used to explain the averment says the demand was for a "lai-ge sum of money,to wit: the sum of $200." Hence to receive evidence of a demand for groceries under such an aver- ment would be error. Snow et al. v. John- son, 1 Minn. 46. 100. Proof of promissory note under seal. Proof of a promissory note under seal to support a complaint on a nego- tiable promissory note.is a fatal variaiice, it not being negotiable. Ilelfer^v. Alden, Cut- ler & Hall, 3 Minn. 332. 101. In debt on foreign judgment, the declaration varied from the transcript, both as to amount and names of parties, lield, fatal. Laurence v. Willoughbi/, 1 Minn. 87. 102. Complaint for work and labor. There is no variance between a complaint for work and labor, and proof that defend- ant directed plaintiff' to go on and perform the labor until his partner I'eturned, and then if the arrangement was not satisfac- tory to the partner, he might fix it to suit himself. Short ■B. McRea & Register, 4 Minn. 119. 103. Instrument in writing executed by one K. Plaintiff' claimed under an "in- strument in writing executed by one Roth- mund;" on the trial offered in 'evidence an assignment executed by Rothmund and wife. Held, no variance, as the wife's signature (it being an assignment of chat- tels only) was mere surplusage. Caldwell v. Bruggerman, 4 Minn. 270. 104. Complaint charged that R. W. Latham drew and delivered to plaintiffs his check, and that defendants (S. W. & Co.) accepted. Held, that proof tliat S. W. & Co. were makers as well as acceptors, was inadmissible. Bank of Oommeree c. Selden, Withers & Co., 3 Miiyi. 155. 105. When defendant justifies taking under execution against L. In ' 'claim and deliveiy of personal propei'ty," defendant PRACTICE. 309 justified under an execution againstone L., who had fraudulently assigned the proper- ty to plaintiff. Held, defendant could not show in evidence an assignment to another than plaintift', one F., inasmuch as defend- ant's rights depended on L. being the own- er. ilcOlung V. Bergfeld, 4 Minn. 148. 106. " Pay, lay out and expend." As- sault and battery, complaint chai-ged that plaintiff lias been compelled to, and neces- sarily did "pay, lay out, and expend," a large sum of money, etc. Held, evidence that he had "incurred'" indebtedness for medical attendance, not admissible. Ward V. Haws, 5 Minn. 440. lOT. That certain property belonged to W. Defendants, who claimed in their answer, that certain property belonged to Wood, cannot prove that it was jointly owned by Wood and anotlier — variance. Derby et al. v. Gallup, 5 Minn. 119. 108. Wrongful acts of plaintiffs— hus- band and TTife. Wliere the answer set up in justification certain wrongful acts of the "plaintiffs" (husband and wife). Held, evidence of wrongful acts of husband alone not admissible. Jacobs v. Hoover et al., 9 Minn. 204. 109. Total want of consideration for the note. In an action on a promissory note by a holder against the maker, the latter claimed a total want of consideration for the note, in defense. Hdd, that a par- tial want or partial failure of consideration proved on the trial, could not avail under the pleading. Wkitacre v. Oulw; 9 Minn. 29,'5. 110. Slander. In slander, an allega- tion of words ill the second person is not proved by evidence of words spoken in the third person. McC'arty ■». Barrett, 12 Minn. 494. 111. Tariance, when to be urged. Under Sec. 86, R. S. (1851), p. 3,0, a vari- ance must not be alleged simply, but prov- ed to the satisfaction of the court, and should be urged before the case is submit- ted to a jury, and verdict rendered, so that the court may allow the amendment con- templated by the statute. Short v. McRea et al., 4 Minn. 119. 112. Variance, when fatal. It is only when the allegation to which the proof is directed is unproved, not in some particu- lar only, but in its general scope and mean- ing, that a variance become fatal. lb. 113. Malicious prosecution. Com- plaint in malicious prosecution alleged, inter alia, the making of a complaint for larceny by defendant against plaintiff, and an arrest of plaintiff upon a warrant is- sued upon such complaint. ,Hekl, that plaintiff under such an averment could, without a substantial variance, show from the docket of the justice the institution of a prosecution by complainant against plain- tiff' for larceny, and that defendant made another complaint against plaintiff ' in the same proceeding, reciting the original complaint, and alleging that the property was concealed, etc., and that thereupon a search warrant was issued, and returned by the officer with the property and plain- tiff's body, into court, for the two latter steps were in aid of the prosecution for larceny, and part of the proceedings in that prosecution, and for all that appears, plaintiff was arrested and Jheld to answer on the original complaint. The docket showed also that defendant participated in the examination, and any irregularity in issuing the search warrant in aid of an- other prosecution, rather than in an inde- pendent proceeding, if irregular, could not be taken advantage of by the defendant. Gole ■». Curtis et al., 16 Minn. 183. 114. Materiality of, must be proved. A variance between causes of action alleged and proved, will not be deemed material, nor regarded by the Supreme Court, unless the party alleging eri-or prove to the satis- faction of the court below, that he had been misled by it, and shown wherein. Wasltburn v. Winslow, 16 Minn. 33. 115. Immaterial matters. Variance between pleading and proof, concerning immaterial matters, no ground of error. Sonneiiburff o. Reidel, IG Minn. S3. 310 PRACTICE. g. Objections. 116. How to be made. A party ob- jecting to the introduction of evidence must state liis point so delinitely tliat the court may intelligently rule upon it, and the opposite party may, if the case will ad- mit of it, remove the objection by other evidence. Gilbert et al. v. Thompson, 14 Minn. 544. 117. Objections to a writ ol" attach- ment, on the ground that it is void, are not waived by proceeding to trial. Merritt d. City of St. Paul, 11 Minn. 223. 11§. Objection embodied in a request to charge, in time. Where a party ob- jected to certain evidence, but on the wrong ground, and it being admitted, he after- wards, in his request to charge, objected to it on a good ground. Held, the objec- tion was in time, it being made before the case was submitted to the jury. It was discretionary in the court to jjresent the objection at that time. Russell «. Sahur- meir, 9 Minn. 23. 119. Waived by consent to reference. Objections that a cause was not propei'lj' on the calendar, and to a refusal to grant a motion for continuance, are waived by a subsequent consent to a reference. Allis v. Day, 14 Minn. 516. 120. Afterwards introducing the ob- jectionable evidence — waives former ob- jection thereto. A partj^ loses the benefit of an objection to the improper introduc- tion of parol evidence of the contents of a written instrument, by afterwards intro- ducing the instrument himself. Cooper v. Brechenridge, 11 Minn. 341. 121. Simple objection, without stating grounds, inelfectnal. A simple objection to the introduction of evidence, witliout stating any grounds therefor, is ineffectual. Weide et al. v. Davidson et al., 15 Minn. 337; Tozer et al. v. Herslmy, 15 Minn. 257. 122. If evidence is competent for any purpose, or for any of the defendants, a general objection will not, exclude it. Sclidl V. The Second National Bank, Si. Paul, 14 Minn. 43. 123. General objection. The admis- sion of books as evidence of the payment of money, would, upder the Comp. St., p. 6S5, have been error, had they been ob- jected to on that ground ; but as the objec- tion was general, and did not point out to the referee the particular ground on which it was taken, the appellant cannot avail himself of it here. Galiff v. Hillhouse, 3 Minn. 311. 124. An objection that a question is incompetent and irrelevant, does not raise the point that it is too leading and general. Olagiie v. Hodgson, 16 Minn. 329. h. Exceptions. 125. How to be taken— should show what it is proposed to prove. Where a question is aslced which is objected to, and the objection sustained, in taking an excep- tion it should appear what it was proposed to prove, vvhich must be something mate- rial, and the rejection of which as evidence would be prejudicial to the party except- ing. State V. Staley, 14 Minn. 105. 126. Must be to some particular point of law. An exception can only be taken to some particular point of law; a mere general exception to a charge, as "to all of which defendant excepted," amounts to nothing, where a part of the charge is ad- mitted to be cori'ect. Ih. 127. A general exception to an in- struction containing two distinct proposi- tions, raises no question for review — the party must put his finger on the point of which he complains. Baldwin et al. v. Bla7iehard, 15 Minn. 489. 12S. Further participation in suit, no waiver. A party, after making the neces- sary preliminary objections, as by motion to dismiss on ground of irregularity, may, on being overruled, discuss the merits, witliout losing his right to raise the objec- tion in tlie appellate court. Bunday v. Dunbar, 5 Minn. 444. 129. A general exception to a general charge, in these words: " The defendant, by the counsel, duly excepted to the fore- PJiACTKJE. ;3ii going cliai'ges, and to each and every pai't or ijarticular thereof," amounts to nothing, and the case stands as if no snch exception had been talsen. Judson v. Beardon, 16 Minn. 431. 130. Exception by two co-defendants. Whej'e defendants answer jointly and ex- cept jointly and generally to an instruc- tion, and it is correct as to one of them, tilt joint exception cannot be sustained. Oole V. Guriis et al, IG Minn. 182. 131. After an exception duly taken, a party loses no rights by proceeding in the cause. Ourtis i). Moore, 3 Minn. 29. ISa. Waived by afterwards introduc- ing the same testimony. A party waives and defeats his exception founded on the absence or erroneous admission of evidence of a fact against him, if ho afterwards, in his own behalf, prove the same fact, or produce and insist upon proper evidence to prove it. Ooit v. Waples et al., 1 Minn. 134. 133. The benefit of an exception to the erroneous iidmission of evidence, lost by afterwards introducing the same evi- dence. Weide et al. o. Davidson et al., 15 Minn. 327. 134. Evidence must be offered, and ruling of court obtained, ou all points. The defense i-ested on proving a fraudulent sale to plaintiff, or no sale whatever. The judge ruled out evidence of a fraud — the defendant not being in a position to raise that question. Held, defendant was not thereby relieved from offering proof, if any they had, to show that no sale was ever made to plaintiff, and such ruling cannot be assigned as error on the ground that it was so made as to exclude evidence concerning the sale — where no evidence concerning the sale was offered. The evi- dence should be distinctly offered upon all points, and a ruling of the court obtained. Zimmerman v. Lamb et al., 7 Minn. 421. i. Striking out evidence on motion. 133. Where the facts making evidence incompetent were known at time of its admission, a failure to then object was a waiver. Where evidence h;is been admit- ted concerning an agreement between the witness and .plaintiff's deceased assignor, it is too late to object to the same, under the statute, (Gen. Laws, 1861, p. 146, 147, amended in 1862, p. 96, 97,); nor can the same be stricken out on motion, for the facts making the evidence incompetent, at time it was offered, being known, a failure to object at that time amounted to a waiver of the right. Levering et al. u. Lan^ley ei al, 8 Minn. 107. j. Non iuit. ' 136. Where only a cnnjeoture is raised as to a material fact. Where evidence as to the existence of a material fact can only raise a bare conjecture, the case sliould not be submitted to the jury. Locke v. First Div. St. Paul & P. B. R. Co., 15 Minn. 850. 137. No proof of consideration of the contract in issue. An action should be dismissed where no proof is offered of the consideration of a contract which forms the cause of action, when the same is put in issue. Beeker v. Sweetzer, 15 Minn. 437. I3§. Failure of evidence on material point. Complaint charged that defendant had contracted to collect a judgment in fa- vor of plaintiff, and against one F., on shares; "that on or about, etc., defendant acknowledged the receipt of payment of the full amount due plaintiff on said judg- ment," and requested plaintift''s attorneys to satisfy the same of record, and that the same was, upon such request, "satisfied" of record. The answer put these allega- tions in issue. On the trial, plaintiff failed to prove the satisfaction of record, and put in evidence defendant's letter requesting a satisfaction to be entei-ed, and acknowledg- ing full payment to him. On motion to dismiss by defendant's counsel, after plain- tiff rested on ground of no averment of payment in complaint, or that the money had been collected by defendant, plaintiff asked to amend by averring that "defend- ant collected the amount of said judg- 312 PRACTICE. ment." Motion to amend denied. Held, complaint was properly dismissed. The averment of acknowledgment of payment was an averment of mere evidence, not traversable or issuable, and the complaint omitting to allege payment to defendant, and no proof having been offered of the satisfaction of judgment, it was a case of failure of evidence, within Sec. 94, p. 544, Comp. St., and there was no such abuse of discretion as to authorize an appellate court to Interfere. White & Marks v. Ouloer, 10 Minn. 102. k. 'Arguments of counsel. 139. Yerdict given in former suit — waiver of objection. If it is error ( ?) for counsel in his argument to refer to and urge in support of his case the amount of a verdict given on another trial, such error is waived by not taking exception at the time. St. Martin v. Desnoyer, 1 Minn. 156. I. Questions of fact, law. and law and fact. 140. Delivery under an assignment by a failing debtor. Plaintiff's possession under an assignment for the benefit of creditors was in issue; and the evidence as to delivery to plaintiff was conflicting. The court took the determination of this ques- tion from the jury, and directed them to find for the plaintiff. Held, errqneous. Caldwell v. Bruggerman, 4 Minn. 270. 141. Assault, wliether it was justi- fied. In an action against G. for assault and battery on B., and G. justifies by rea- son of an assault by B., it is for the jury to say whether the degree of force used by G. was justifled by the circumstances. Gal- lagher v. State of Minn., 3 Minn. 270. 142. As t<» fraudulent intent of an as- signor. Whether or not an assignment was made in trust for the assignor, with a fraudulent intent on part of assignee, is a question of fact for a jury, under Sec. 198, Chap. 66, G. 8. Blackmanv. Wheaton, 13 Minn. 326. 143. Grant of perpetual easement. Where the evidence shows that it was nec- essaiy or convenient for the alleged dedi- cator to have the alleged street open as a way to his house and place of business, it would be for th^ jury to say whether his permission of its use by the public, under such circumstances, was any evidence of an intention to grant a perpetual easement. Wilder v. City of St. Paul, 12 Minn. 192. 144. Tailing partnership accounts. The taking of partnership accounts should never be submitted to a jury, although Sec. 199, Cliap, 66, G. S., authorizes the court to order the whole issue so to be tried. Tliis authority should only be exercised where the whole issue is such as to make a proper case for a jury trial; it does not change the rule as to what are proper Is- sues for that mode of trial. Berkey v. Judd etal, 14 Minn. 394. 145. Negligence. In actions for injur- ies arising from negligence or unskillful- ness of defendant, the question of negli- gence is a question of fact, or of mixed law and fact, to be left to tlie jury. Cham- berlain V. Porter, 9 Minn. 260. 146. Whether a party acts in good faitii under the advice of counsel in an al- leged malicious prosecution. Is a question of fact for the jury. Cole d. Curtis et al., 16 Minn. l82. 147. When the facts in respect to an arrangement, or accord, have been ascer- tained, their effect is purely a question of law, and is not to be submitted to the jury. Washburn v. Winslow, 16 Minn. 33. 148. What fact evidence tends to prove, where it has any legal effect, is for the jury. Whether evidence tends to prove anything pertinent to the issue, is a question for the court. State v. Taunt, 16 Minn. 109. 149. Probable cause. What facts and ■ circumstances amount to probable cause, is a pure question of law. Whether they ex- ist or not in any particular case, is a pure question of fact. The former is exclu- sively for the court, the latter for the jury. This subject must necessarily be submitted to the jury when the facts are in contro- versy, the court instructing them what the PRACTICE. 313 law is. Cole v. Curtis et al., IG Minn. 182. 150. The referee havingfound thatthe city waf bound to maintain a sidewalk, and tlie question being wlietlier it had erected a safe one — or constructed an unsafe one, and negligently allowed it to remain so. Held, question for the jury to determine on the facts whether the city was negli- gent — no I'ule of law that arbitrarily de- termines it from any given state of facts. So as to negligence of plaintiff. The City of Saint Paul v. Kiiby, 8 Minn. 154. 151. Probable cause fur an imprison- ment. In an action for false imprison- ment, without warrant, defendant justified on ground that he had probable cause to believe plaintiff had committed a felony, from representations made by one who pretended to be an officer of another State, hand-bills, photographs, etc. Held, ques- tion of fact for the jury to determine, whether defendants had reasonable ground to believe that tlie plaintiff had committed such an offense. Cochrane v. Toiler et al., 14 Minn. 385. m. Requests to charge the jury. 152. Bequest must not be too broad; Counsel must, in asking court to charge jury, put his finger on the precise point he wants decided, and take good care that his request is not too large, or his proposition too broad ; and if the decision is against him, he must object to it specifically. Cast- ner v. Steamboat Franklin, 1 Minn. 78. 153. "Where parties believe their evi- dence establishes a state of facts, which to- gether constitute another fact in issue, they should enucleate such facts from the evi- dence, and request the court to chai-ge that if the jury found such a state of facts to be proved, they constitute tbe fact in issue. Cole V. Curtis et al., 16 Minn. 182. 154. Must be wliolly correct. When counsel submit propositions to the court to be charged to juiy the judge is bound to look into them only so far as to see if they contain anything improper for a charge, and if they do, may refuse the whole. Oastaer v. Steamboat Franklin, 1 Minn. 78. 4Q 155. "Where a party embraces seve- ral propositions in a general request to charge, some of which are well stated and some not, the court may decline to charge as requested, and it will not be error. Bond V. Corbett, 2 Minn. 257. 156. Should be submitted to opposite counsel. A request to the court to charge should be submitted to the opposite coun- sel, as it may be assented to, and thus au- thorize the court to give it to the jury without question. Boefd et al. v. Baasen, 8 Minn. 26. 157. An objection to a refusal to chargp, when sufficiently specific. When counsel requested the court to charge seve- ral distinct propositions, separately num- bered — and the court took up each propo- sition separately — denying or qualifying each, an objection on the part of counsel by which he "excepted to said refusals and modifications and to said instructions as given," is sufficiently specific to point out tlie error complained of. Sahurmeier •0. Johnson et al., 10 Minn. 319. 158. Wlien several propositions are combined and are er/oueous. When a court is requested to charge the jury on a number of propositions collectively, and the court refuses to so charge, or so give the charge, and any of the propositions are incorrect, no error lies unless special ex- ceptions are taken at the time — no general exception will do — following Castner v. steamboat Dr. Franklin, 1 Minn. 73. Fos- ter V. Berkey et al., 8 Minn. 351. n. Charging the jury. 159. Court may decline to give in- structions not wholly correct. Wlien counsel submits several propositions to the judge, with the request that he so charge the jury, and those propositions contain several subordinate propositions, principles and abstract rules of law — if the whole lot so submitted contain any error, it ia not er- ror for the judge to refuse to charge them. Castner v. Steamboat Dr. FranMin, 1 Minn. 7a 314 PRACTICE. 160. Time for entertaining requests to charge. District court rule 34, requir- ing " Tlie points on which a party desires the jury to he instructed, must furnish them in writing to the court before he commen- ces his argument to the jury, or the same may be disregarded," is permissive only, and the court may refuse, if not so fur- nished; but if the points are entertained, it is a waiver of the j-ule, and it becomes the duty of tlie court to cliarge upon the ijrop- ositions submitted. Sanborn ii. School D'ist. No. 10, Bice Co., 12 Minn. 17. 161. All the dilferent instructions must be construed together. Where the defense was that defendant acted as agent for a Ivuown, responsible principal, and the verdict was for the plaintiff, it will not be set aside because the court charged the jury that if from the evidence they found that plaintifi' gave the credit and looked to defendant for his pay, they must find for the plaintifi', etc., where they had already been instructed, that it was not sufficient that plaintiff alone, knowing the work to be for tlie principal, should] do it on de- fendant's credit, but that it must have been mutually understood between the parties that he should look to defendant individu- ally. The whole of a charge must be ta- ken together. Spencer v. Tozer, 15 Minn. 146. 162. Province of the judge as to facts in issue— delivery. Sec. 22, Comp. Stat. 5.^9, authorizing a judge in charging a jury to " present the facts of a case," does not authorize him to use such language as the following : " That he knew nothing in the case that went to show that the delivery from Galusha to the plaintiff was not valid, under the circumstances, so far as it was within the business of the court to deter- mine the question.'' Emmett, C J., dis- sents. Caldwell v. Kennison, 4 Minn. 47. 163. A judge should carefully re- frain from stating any opinion he may have farmed as to what facts have been proved or what credit may be due to wit- nesses; but where the jury could not have found differently, it is an error which does no prejudice, and not ground of new trial. Derby & Day v. QaUup, 5 Minn. 119. 164. assuming existence of a dis- puted fact. Where defendant attempted to recover judgment in his own favor, by way of recoupment, in an action for the bal- lance of purchase money, on goods sold him, on ground of breach of warranty and non-delivery of all the goods purchased (and for which the notes were given), and issue is joined on those defenses, it was en-or for the court to assume in its charge that there was a warranty or that goods were of a certain value, and direct the jury to find damage for the difference. Smith 1}. Dukes, 5 Minn. 373. 165. Where the facts are in controver- sy, a charge that "ifj,the jury believe the testimony and evidence produced by the defendants, the facts thereby proved show" such and such a state of fact, takes the question from the jury, and is error. Cole V. Curtis et al., W Minn. 182. 166. Where there is competent evi- dence in the case tending to'show that mon- ey charged to have been stolen, was in whole or in part either treasury or bank notes, it was not an encroachment on the province of the jury for the court to charge that, "if the jury believed the evidence of the witnesses, the prosecution had pro- duced evidence of the description of the money alleged to have been stolen, suffi- cient to sustain a conviction under the in- dictment, if the jury were satisfied be- yond a reasonable doubt that the defend- ant took the said money with the intent to steal it." State v. Taunt, 16 Minn. 109 167. When the law, as applicable to different states of facts, should be given. Where the complaint was drawn in view of recovering for a false warranty or deceit In the sale, as the evidence seemed to justi- fy, the measure of damages not being the same In both cases, the jury should have been Instructed as to the law governing both cases. Marsh v. Webber, 13 Minn. 109. 168. Charge conflned to one issue, not objectionable as ignoring other issues in the cause. Complaint sought to recove r PRACTICE. 315 damages for alleged inal-practioe of de- fendant in tieating a broken limb. On the question of damages, court charged the jury that "they must take into consid- eration all the pain and suffering '" sustain- ed by plaintiff, " which resulted from the injury" in excess of what would have re- sulted had he •' been treated with ordinary surgical skill ; " also such "further dam- ages as the plaintiff may sustain by reason of his future disability to use said limb, and that in estimating the damages, they are to take into consideration the present and future condition of plaintiff compared with what his condition would have been if the limb had been treated with ordinary skill." HM, the charge, confined as it is to the question of damages, does not ig- nore the question of contributory negli- gence, which was in issue in the case, for the defense of contributory negligence was in bar of the action, and must have been decided against tlie defendant, before the question of damages could be considered. Ohamberlain v. Porter, 9 Minn. 260. 169. Defective arrangrement, no error. If the whole charge talien together, con- tain a correct statement of the law, though defective in its arrangement, it is sufficient. Querin v. Hunt et al., 6 Minn 375. 170. Substantial compliance with re- quest, sufficient. Where the court charges substantially in the language of the re- quest, although not in exact words, it i,s a suflScient compliance. Dodge ». Sogers, 9 Minn. 223. 171. If cliarge tends to mislead, par- ty must request more definite in»trnctions. If a charge as given, tended to mislead a jury, the party aggrieved must ask to have it made more specific ; otherwise he will be concluded from raising such point on ap- peal. Hunter v. Jones, 13 Minn. 307. 172. Court not bound to charge, unless requested. An omission to charge on a particular point, in the absence of a re- quest from counsel. Is not error. Ohany- ierlain v. Porter, 9 Minn. 260. 173. Modification should follow the refusal to charge as requested. A. party has a right to insist that Ids legal proposi- tions be submitted to the jury in his own terms; the judge may refuse absolutely, or modify them. In the latter case it should be explicit and follow the refused — other- wise the jury may consider it as an abso- lute refusal. Selden, Witliers & Co. v. Bank of Gommeree, 3 Minn, 166. 174. Modifications need not be stated in same connection. All tlie exceptions or modifications of a legal proposition giv- en to the jury in a charge, need not neces- sarily be stated in the same sentence or con- nection. If the proper modifications and exceptions to the general rule are made, there is no ground for reversal of judg- ment, unless there is something in the charge so obscure or contrary as to mislead or confuse the jury. Oales v. Mowry etal., 14 Minn. 21. 175. Abstract principles of law. The refusal of the judge to charge the jury on abstract propositions of law, having no relation to the case on trial — no error. Derby & Day v. Gallup, 5 Minn. 119. 176. It is not error for a court to re- fuse to charge a proposition of law in it- self correct, but not applicable to the case. Marcotte v. Beaupre, 15 Minn. 152. 177. Instructing jury to consider all the testimony, when none was objected to. Where no exception is taken to the introduction of testimony, it is not error for the court to charge that the jury in es- timating damages are to take into consider- ation all the facts and circumstances of the case. Ohamberlain v. Porter, 9 Minn. 260. 17§. Instructions in particular cases —warranty as to soundness. Where com- plaint was broad enough to cover any un- soundness rendering the fiorse of no value, although glanders was specially alleged to exist, and evidence was introduced tending to show that he was warranted sound and free from disease, it was correct to instruct the jury that if he was not, but had dis- ease which rendered him worthless, they should find for plaintift" for his value. Johnson v. WaUower et al., 15 Minn. 472. 179. counter claim. Where defend- 316 PRACTICE. aut set up a counter claim for livery bill, and the reply admitted its contraction, but averred ignorance as to its amount, and then alleged payment, and the evidence, as to whether anything was due, conflicted. Hdd, error to charge that defendant is en- titled in any event to all the counter claim the jury find from the evidence to be proved, with interest, etc., for the instruc- tion implies that plaintiff had paid nothing upon it. Oonehan v. Groshy, 15 Minn. 13. 180. Bill of exceptions to instructions, what eyldence should it contain. Where a court undertakes to instruct a jury as to the law arising from a given state of facts — nU those facts, as detailed by each wit- ness, must be . set out in a bill excepting to such ruling. Desnoijer v. Hereux, 1 Minn. 17. II. Retirement of the jury. 181. Communication by judge, with tho jury. Where, on the trial, both par- ties consent that the jury may take the minutes of the testimony, and after four hours judge recalls tliem, and reads a depo- sition which was introduced in evidence — it is not error, especially where no specific objection was taken and the evidence was Irrelevant. Ooit v. Waples et at., 1 Minn. 131. 182. A judge can have no communi- cation with the' jury, or give them any, the least, information, except in open court, in presence of, or after due notice to the District Attorney, and the prisoner or his counsel, and this though he visited and had communication with the jury only to in- form them that if they wanted any infor- mation on matters of law, they should come into court and ask for It. It is irreg- ular—fatal. Hoberg v. State, 3 Minn. 263. p. Polling the jury. 183. Not affected by agreement to seal verdict. In a proper case for a sealed ver- dict, the right of the parties to poll the jury is not affected by an agreement that the jury may seal their verdict. Stede et cd. D. Mheridge, 15 Minn. 501. 184. After a verdict is recorded, nei- ther party has a right to poll the jury. lb. q. Verdict. 185. Juror cannot malts up his ver- dict apart from his fellows. A jury that had permission to seal up their verdict, stood ten for defendant, and two for plain- tiff; they sealed a verdict, and were per- mitted to separate. Next morning the two jurors stated "they voted for the verdict under protest," but one of them yielded, and assented to the verdict. Held, irregu- lar, as the one who had yielded had made up his verdict from his own reflections, un- aided by his fellows, or from improper in- fluences, neither of which is the decision contemplated by law — no juror having the right to make up his verdict apart from and unaided by the others. JEina Ins. Co. V. Griibe, 6 Minn. 82. 186. Becmring verdict, in absence of the parties, erroneous. A jury went out to deliberate, Wednesday evening, and couit at once adjourned till Friday morn- ing, without any stipulation as to the dis- position of the verdict, if the jury agreed in the meantime. At half-past eleven, Wednesday night, the jury agreed, came into the court room, where the judge re- ceiyed their verdict in absence of both par- ties, and dischai-ged them. On Friday morning the judge announced theii- ver- dict, without presence Of the juiy. Held, erroneous practice. Kennedy v. Rangld, 6 Minn. 235. 187. Correction of verdict— by court, where intention is obvious. In replevin, a verdict of jury in these words: '"The jury find and return a verdict for the plain- tiffs, and against defendant, and costs of suit," is correct in substance, and the in- tention being obvious, the court will give it effect. The clause, "and costs," is void, for uncertainty, even if the jury had power under the statute to award costs. Ooit v. Waples et al., 1 Minn. 134. PRACTICE. 317 18§. cannot bp made by the clerk. A speciiil verdict found that a notice of foreclosui-e sale originally stated day of sale on the 23d May, 1861, and that the mortgagee had it changed to the 25th of May, 1860, and that "the notice of sale was published for six weeks successively before sale," without stating which notice —the one for the 23d or 25th May. Udd. the verdict could not be amended or cor- rected in any way by the court— it must stand alone. Dana & Broome v. Farring- ton and wife, 4 Minn. 433. 1§9. by jury, of a sealed verdict. A j.ury sealed their verdict, and separated, but on coming into court next morning, stated that they had made a mistake in their figuring— the court, without opening the verdict, directed them to return to their j ury room and correct the mistalce. Held, in absence of prejudice, no error. Ninin- ger «. Knox et al., 8 Minn. 140. 190. When all the issues are not de- termined by a special verdict, it is void. Where sevei-al distinct issues are made by the pleadings, and the jury find a special verdict only on one of the issues, and no general verdict under which the other is- sues can be included, it is wholly insuffi- cient to authorize an eimy of judgment. Armstrong v. Hinds, 9 Minn. 356. • 191. Special verdict must be request- ed. If a party wishes a special verdict, he must request the court to so instruct the jury, under Sec. 35, p. 561, Comp. Statutes. Board County GomnCrs, Dakotah Co., v. Parker, 7 Minn. 267. 192. Special verdict on one issue only, insuflicient. Where there were several is- sues joined in a case, and a jury, sworn to " try the issues joined between the parties," find a special verdict which passed upon but one issue. Held, judgment was erro- neously entered on such verdict. Meiglien V. Strong, 6 Minn. 177. 19S. Special verdict discretionary with the judge. It Is discretionary with the court whether it will direct the jury to find specially upon any particular question of fact or not, under Sec. 218, p. 480, G. S. McLean, admin., v. Burhanh et al., 13 Minn. 530. 194. General verdict in actions for money. Under Sec. 35, p. 561, Comp. St.,. the jury, in an action for money only, may find a general verdict. Board County Gomm'rs, Dakotah Co., v. Parker, 7 Minn. 267. 195. Majority verdict, void. .Tudg- ment rendered on verdict of a pai-t of the jui-y, (majority verdict,) cannot be sus- tained, unless the express consent of both parties is shown. Snow i). Hardy, 3 Minn. 77. 196. Average verdict, void. It is er- ror for a jury to make, up their verdict by agi'eeing to specify each a sum as due to the plaintiff, and divide the aggregate of the sums so specified, by 12, and take the quotient as the result. St. Martin v. Des- noyer, 1 Minn. 156. 197. motion to set aside verdict must be made before judgment. A motion to set aside a verdict cannot be entertained after judgment is entered — for it Is then inerged in the judgment. The motion should be to set aside the judgment, for the reason that the verdict did not author- ize it. Eaton v. Caldwell, 3 Minn. 134. (See note in Eekata, 3 Minn, explaining this case.) 19§. Form of, against part of joint defendants. Where several defendants were joined, and plaintiff notified the jury that two of the defendants, Jenkins and Moody, had been dismissed, a verdict in this fonn was regular — viz., title of cause : "The juiy in the above case return a ver- dict for the plaintiff, in the sum of $1,000. N. B. — O. F. Jenkins and Joseph Moody excepted in the above action." (Signed) O. KOGEES, Foreman. Desnoyer v. McDonald, Geis.ie & Co., 4 Minn. 515. 199. Claim and delivery. In claim and delivery of personal property, the jury may assess the value of property in gross; although the court should, at plain- tiffs request, direct them to assess the value of specific articles, so that if only a part of the articles can be returned, he can 318 PRACTICE. have judgment for the return of such por- tion, and judgment for the value of the residue. Caldwell v. Bruggerman, 4 Minn. 270. 200. Nuisance— special verdict. In an action for the recovery of damages sus- tained by a nuisance, and for the abate- ment thereof, and an injunction against the same, where certain questions are sub- mitted to the jury by the court, with a view of ascertaining whether the equitable relief shall be granted, a failure on the part of the jury to answer in whole or in part one of those questions, was a matter of which the court could complain, but not the subject of exception by the parties, under tlie circumstances of this case. Finch V. Green, 36 Minn. 355. 201. Replevin. The statute of "Wis- consin which provides that the jury shall assess the value of property in replevin, is directory only in such actions as do not in- volve the title, but wrongful taking only. Coit V. Waples ct al., 1 Minn. 134. r. Nidlitiea. 202. What is— relief against. An order of a court commissioner which he had no power to make, (setting aside a summons,) is a nvUity, and application to purge the record of the same, should be made to the District Court, and not to the Supreme Conrt. Pidver v. Grooves, 3 Minn. 359. 203. Case to be made on appeal from trial by jury, only. Sec. 63, Comp. St., p. 565, requiring the preparation of a " case " on appeal, only applies to cases tried by a jury, and not to a trial by the court, where the decision may be filed out of term, as well as in term. Morrison et al. v. March, 4 Minn. 423. 204. Judge cannot amend after settle- ment, on his own motion. Where the judge of the District Court has, on hearing the parties, settled a case and entertained a motion on such case, and then ascertains that the record is not made up according to the facts, he cannot amend of his own mo- tion, but must call in the parties and let them be heard as to the proposed altera- tions. State V. Laliyer, 4 Minn. 379. s. Trials of issues under order of court. 205. Form of the order. Where a court directs certain issues to be tried by a jury, the order therefor provided for in Sec. 109, Chap. 66, G. S., should be a for- mal order, and as the statute is silent as to what such order shall contain, it will be governed by the former rule in equity, and specify the particular issues of fact to be tried. Berkey v. Judd et al., 14 Minn. 394. 206. Consent of parties. In an action for the • recovery of damages for the over- flowing of plaintiiF's land, by means of de- fendant's dam, and for an abatement of said dam, and a perpetual injunction against its maintenance, the issues were tried by a jury, without any formal consent of the parties, or formal order of the court, but without objection, and at the close of the trial, the jury were instructed to return a general verdict on the question of dam- ages, which they did, assessing the same at $50. Held, that undev Sec. 198 and 199, Chap. 66, Or. S., the issues in this case were triable bythe court, '"subject to the right of the parties to consent, or of the court to order that the whole issue, or any spec- ific question of fact involved therein, be tried by a jury, or referred." And though the proceeding was not strictly regular, still there was a substantial consent of the parties to the trial by jury of the issue as to the existence of the nuisance, and quan- tum of damages, and the verdict was a suf- ficient foundation for a money judgment. Finch V. Oreen, 16 Minn. 355. C. Trial by tJie court, a. What is a trial. 207. Assessment of damages by con- sent. After issue joined, and the case was called for tiial in its regular order on the calendar, defendant withdrew his answer PRACTICE. 319 and sulDmittecl to an assessment of damages by the court. Held, that there was such an actual passing upon the question by the court below, as would authorize this court to review it. Kent ». Brown, 3 Minn. 347. J. Findings. iiOS. Keed not find on demurrer, facts admitted by pleadings. On trial of an is- sue of law, raised on demurrer to answer, it is unnecessary for the court to find facts that are admitted in the pleadings — such ■facts must be governed by the pleading itself, and cannot be added to or talien from by any finding of the court. Dick- enson ei. Kinney, 5 Minn. 409. 209. Immaterial issues. Upon a trial by the court, all material issues should be passed upon, but immaterial issues may be disregarded. Lowell o. North & CarU, 4 Minn. 33. 210. Facts and conclusions of law, separately. A Judge trying a cause with- out a jury should render his decision in writing, stating the facts found, and con- •clusions of law separately ; and a judg- ment entered, without a compliance with these statutory regulations, is irregular. (K. S., 1851, p. 356, Sec. 41.)— Ullman v. Bazille, 2 Minn, followed. Baldwin v. Allison, 3 Minn. 83. 211. Omission to And on all issues, remedy. When the court in a trial before it fails to find upon a material (question of fact, a motion for an amendment of such findings, so as to show that such fact eitlier did or did not exist, is the, proper remedy. Gonklin v. Hinds, 16 Minn. 457. 212. Striking out supplemental find- ings of court. The court failed to find on a material issue of fact, and on motion amended its finding in that respect. After- ward defendant moved, on a case made, for a new trial, whereupon plaintiff moved to strike out the supplemental finding afore- said as unauthorized and void. Held, that judgment had been entered before the amendment of the findings, made no differ- ence, as the amendment did not change the conclusion of law, upon which said judgment was entered. Nor was it mate- rial that a case had been previously settled, for the new finding was not made upon new evidence, there being no presumtion that an}' evidence was introduced subse- quently to sustain the new finding, for the court could not receive such evidence, and this motion made, after the allowance of the amendment without objection, and after the argument of a motion for a ne nership property, of which partnership debtor was a member, if he ascertains that the partnership liabilities will consume all of the property, he need not pursue the levy until it is demonstrated that it will not avail him anything, but may abandon it, but thereby taking upon himself the bur- den of showing the propriety and good faith of the act against sureties, and all parties claiming to be prejudiced thereby. Moss v. Pettingale, 3 Minn. 217. /. Exempt property. 339. Exemption laws to be strictly construed. Exemption statutes are in der- ogation of the common law, and must be strictly construed. See Grimes b. Bryne, 2 Minn. 106. Emmett, C. J., dissenting. Temple &Beaupre v. Scott, 3 Minn. 419. 340. The law of August, 1858, op- erated retrospectively. Sec. 8, G. L., of August 12, 1858, granting an exemption from all process, issued from any court in this State, to certain property specified, was intended to Include process issued upon antecedent as well as subsequent demands. It has a retroactive affect. Q-rimes v. Byrne, 2 Minn. 95. 341. What mechanics, miners, etc., referred to by law of August, 18.>8. Sec. 8, Sub. Div. 8, of the law of August 12, 1858, concerning exemptions, was intended to comprehend a class of citizens who earn their livelihood by the use of tools and in- struments, in whole or in part— and the Sub. Div. should be read, " the tools and instruments (implements) of every me- chanic, minor (miner), or other persons, to the exercise of whose trade or business, tools or implements are necessary, used or kept for the purpose of carrying on his business or trade," etc. ; the next clause concerning 334 PRACTICE. stock in trade not exceeding $400.00, ap- plies to same persons, and not to mei'chants. lb. 342. Action for purchase money. D. sold to H. a cook-stove and fixtures, taking H.'s note for the purchase money, which note D. sold and endorsed to T., who re- covered judgment thereon against H. and D. for principal, interest and costs. D. paid tiie judgment and brought an action against H. to recover the amount so paid, in which action he procured to be issued a writ of attachment, by virtue of which one of defendants attached the' stove and fix- tures which were in the possession and use of H. and his family, and were the only stove and furniture owned by him. Hdd, H.'s contract as maker of the note, as well as his original indebtedness, and D.'s con- tract as endorser, were merged in T.'s judgment, hence D.'s suit against H. is not an action for the purchase money of the stove and fixtures, so as to render the same subject to attachment. Harley v. Davis et al., 16 Minn. 487. 343. Exempt property may be levied on. Under Sec. 103, Comp. St., p. 571, an officer holding an execution has the right to levy upon propert}'' exempt from execu- tion, and take the same into his possession. Suoli possession, therefore, is lawful, and can only become wrongful by doing some act unauthorised, or failing to discharge some duty enjoined by statute. After tak- ing possession, the officer lias a reasonable time in which to talce an inventory and ap- praise the property; after which time the debtor may select th^ amount exempt by law. Tullis et al. v. Orthwein, 5 Minn. 377. 344. Exemption may be waived— is personal privilege. The exemption given by statute is a personal right and privilege given to the debtor, which may be waived, and if claimed by him, must be asserted and maintained in legal form, and cannot be claimed for him by another. Hvidand V. Fuller, 8 Minn. 50. g. Satisfaction of execution. 345. Valid levy on sufflcient personal property, prima facie satisfaction. A valid levy upon sufficient personal property of the defendants in an execution is prima facie satisfaction thereof, but the plaintiff may rebut this presumption and show that the execution or judgment is unsatisfied. Ben- nett V. McGradeet al., 15 Minn. 133; First National Bank of Hastings v. Bogersetal., 15 Minn. 381. 346. where benefit of the levy has been lost by defendant's act, no satisfac- tion. On an excution, issued on a judg- ment for money, the sheriff' levied upon personal property of defendant sufficient to satisfy it, leaving it — with consent of all the parties, in hands of the defend- ant; after which defendant appealed from the judgment, filing bond to stay proceed- ings pending appeal, and during pendency of the appeal defendant, without plaintiffs consent, disposed of the property. HeM, the levy was no satisfaction of tlie execu- tion as against defendant or his sureties in the bond, and the plaintiff could pursue his remedy on the bond. Bennett v. Mc- Orade et al., 15 Minn. 133. 347. Plaintiff issued execution on a judgment against defendant, and the sheriff levied upon flour enough to satisfy it. At defendant's request, the sheriff', on his own responsibility, released to defend- ant the flour and took a check on Chicago, drawn by a firm of which defendant was a member. After an appeal bond had been filed, said firm, with consent of defendant and sheriff', procured the custodian of said check to holditwithoutpresentation, after- wards defendant persuaded the sheriff to deliver up the draft, and take a bond of indemnity. In all these matters the plain- tiff took no part. Held, the levy upon the flour was not a satisfaction of the judg- ment, either as to the defendant or his sureties. See Bennett v. McGrade, 15 Minn. 132. First National Bank of Hastings v. Rogers etal., 15 Minn. 881. 34§. If a debtor has not been de- prived of his property by reason of a levy, if it has been returned to him, or released from the levy and delivered up to a person PRACTICE. 335 upon the debtor's request, the presumption that the judgment was satisfied, ceases, lb. 349. Where property levied upon is released from the levy, at the instance and witli the consent of the judgment debtor, and delivered to a firm of which he is a member, the effect is the same as if deliver- ed to the debtor himself. lb. h. The sale. 350. Sale of real property, thoug'h not made in distinct parcels. Where the statutes, R.S. p. 366, Sec. Ill, provided that where a sale upon execution, " is real estate which consists of several known lots or par- cels, they mustbe«oW«6pari'(M2/,"etc., theof- ficer sold distinct lots of land together in vio- lation of the statute. Held, that such error of tlie officer did not violate the sale as tlie statute was directory only. And if the debtor was injured by the sale, his remedy was against the officer. TiUmin et al. v. Jac\son, 1 Minn. 189. 351. Certificate of sale— executio n thereof. The law of 1856 did not require sheriff's certificate of sale to be witnessed, nor executed under sale, nor that the Reg- ister on filing should endorse a certificate thereof, on the bade, or index the same. Bidwellv. Ooleman, 11 Minn. 78. 352. Evidence of sale. The proper evidence of a sale of real estate upon exe- liution, is prescribed by the statute upon that subject, and no note or memorandum other than the certificate of sale is required. Armstrong v. Vroman, 11 Minn. 220. 353. Sale, when to be made. A sher- iff must serve an execution within its life, but may complete the same by sale, after the return day. PettingiU v. Moss, 3 Minn. 223. 354. Passes what interest to the pur- chaser—whole estate. Under Sec. 109 to 121, Comp. St., p. 572-574, the sale of property, real or personal, under an execu- tion, passes the whole estate to the purchas- er, the redemption privilege simply creat- ing a defeasance by which the debtor or others claiming under him, maybe restored to the estate. Dickinson v. Kinney, 5 Minn. 409. 3S5. JN. purchased, on his own execu- tion sale, the debtor's land ; received the usual certificate from the sheriff, then quit- claimed to IC. When the period of i-edemp- tion expired, the sheriff gave a deed to N., instead of K.. the quit-claim previously being recorded, D., a judgment creditor of the purchaser N"., after the execution of sherilf 's deed, levied upon and sold the prop- erty covered by the sheriff' 's deed, as the property of N". claiming that tlie legal es- tate passed to N. by the deed, and not by the certificate. Held, that although under the statute judgment creditors were placed on the same footing with bona fide purchas- ers, still D. took fiothiiTg by his levy and sale, for the original certificate to X. pass- ed all the debtor's interest, except right of redemption, and the quit-claim passed the same to K., which being recorded, left no estate "of record" in N". at date of D.'s levy — the sheriff's deed not being on record. Q,u,ery, if the sherift''s deed had been on re- cord, whether its recitals would not have shown title out of Jf., dnd in K. lb. 356. such as defendant conld con- vey. Purchasers at sheriff's sale on execu- tion, take the estate subject to all claims that exist against the judgment debtor, and take no othei' estate than such as he could convey. Banning et al. v. Edes, 6 Minn. 402. i. Tim return. (See Sheriff.) j. Vacating return. (See Sheriff.) k. Setting aside the sale and re-sale. 357. Court can vacate sale. Semble, that it is not an objectionable exercise of the power of the District Court to set aside a sale on execution from said court, vacate the sheriff's return, and issue an alias execution — where the exigienoies of the case demand it. TiUman et al. v. Jackson, 1 Minn. 185. 336 PRACTICE. 358. Sheriff sold wrong land by mis-y take. B. had an attachment lieu on land prior to A.'s deed. The sheriff intended to sell the land, but through a mistaken de- scription, sold other land on the attachment, and returned the execution satisfied. Held, equity could cancel the sale and order a re- sale, and replace B.'s lien as senior to A.'s deed — the latter having done nothing on the faith of the sheriff's return. Shaubhut V. Hilton et at, 7 Minn. 506. I. Redemption. 359. Effect, as to second incumbrance, of redemption by debtor's grrantee. The grantee of land on which a mortgage lieu rested as a first incumbrance, and which had been sold on an execution, constituting a second incumbrance, may redeem from the sale without paying off the prior lien — and the redemption restores the estate dis- charged of the lien of the execution, but with the mortgage lien intact. He did not take, on the redemption, the rights of the purchasers subject to be defeated only by other redemptions. Warren et al. v. Fish, 7 Minn. 432. 360. Reqnisites to redemption. On redemption, under Sec. 117, R. S., p. 367, where a party furnishes the sheriff with|aU the papers required by statute, it is suffici- ent, he is not obliged to notify any one else of his redemption, and where the sheriff" after a redemption, delivers sheriff's deed to the purchaser, who conveys to a bona fide purchaser without notice of the re- demption, the latter takes no title, although the record shows a clear title in his gran- tor, through the sheriff's deed. The defect of statute in not requiring some evidence of redemption to be recorded, cannot in jure the redemptioner, who has complied with the statute. Warren et al. v. Msli, 7 Minn. 432. 301. In what capacity, redemption money received by officer. A sheriff, in receiving the money paid by an execution debtor for the redemption of land sold on execution, acts in his official capacity, as the officer of the law, with whom a par- ty redeeming may deposit the money, in- stead of paying it to the ])arty entitled to it, and does not act as the agent of the par- ty entitled thereto. Davis v. Seymour, IG Minn. 210. 14. Supplemental proceedings. 362. Creditor, when entitled to an order absolutely. When an execution, issued against the property of a judgment debtor, and directed to the sheriff of the proper county, is returned by said officer unsatisfied in whole or in part, the judg- ment creditor is entitled (under Sec. 122, Chap. 61, Comp. St., p. 574,) to an order requiring the judgment debtor to answer concerning his property, upon that fact alone ; and cannot legally be required to es tablish any other, as a condition upon which said order may be obtained. Kay v. Vischers et al., 9 Minn. 270. 363. When creditor would be left to another execution. It seems that, under Sec. 129, Comp. St., p. 575, unless it ap- peared by the disclosure that the debtor has property in his own hands, which he unjustly refuses to apply on the judgment, or unless he shall have endeavored to keep his property out of the hands of the officer having the execution, the Judge would leave the creditors to reach the property by another execution — for he has a discretion. 16. 15. Costs. 364. By what statute determined. Judgment for costs must rest upon the stat- ute in force at time of rendition of verdict. Ooit V. Waples et al., 1 Minn. 134. 6. In District Court. 1. What may be taxed as costs. 365. Fees of witnesses — where trial is delayed after witness appears. Where witness appears on a particular day, and the cause is set down for a future day, it PRACTICE. 337 depends on the circumstances of length of delay, distance of their homes, etc., wheth- er fees for their attendance in the interven- ing time can be charged or not. Andrews V. Gresay, 2 Minn. 76. 366. when fee allowed defendant. A defendant is entitled to fees as a witness only when he attended solely as a witness for liis co-defendant. Bmry v. McGrade et aZ., 14 Minn. 280. S67. No fee is allowed an attorney or counsel in a cause for attending as witness in such cause. Sec. 36, Chap. 70, G-. S. lb. 368. The statutory costs, where sev- eral defendants unite in the same defense. Where the defendants in whose favor a ver- dict is rendered, in an action of tort, rely upon the same defense, unite in the .same answer, and appear 'by the same attorney, and there is but one trial as to all, under the statute, they are entitled jointly to ten dollars statutory costs, and not severally to that sum. lb. 369. Wliere same parties incur ex- pense in obtaining docnmentary evidence, used in different actions. Where the same persons are defendants in different actions, and incur a joint expense for documentary evidence necessary for their defense in sev- eral actions, and use the same in such ac- tions, they may charge such expense as a disbursement in either action, at their elec- tion, provided such charge is made in one action only. lb. STO. In a proceeding under Sec. 52, Chap. 1, G-. S., to contest the result of the vote upon the removal of a county seat, as the same had been certified and declared by the board of canvassers. Hdd, the pre- vailing party in such contest is not entitled to judgment for disbursements in the Dis- trict Court. Bayard v. Klinge, 16 Minn. 249. S. Adjustment of costs. 371. Requisites of an affidavit for tax- ation. An affidavit to tax costs for witness fees should not only state the number of days of their attendance, but the date of 43 their attendance. Andrews u. Cressy, 2 Minn. 77. 372. -It is not enough in verifying a bill of costs for "expenses in procur- ing transcripts of judgment, etc.," to sim- ply state that they have been " paid and'in- curred" — the party must, in the language of the statute, show that they were "neces- sary.'' So also for witness fee's — ^their neces- sity must appeal'. lb. 3. Costs in particular cases. 373. In an action for injuries to real estate, and for an abatement of a nuisance, the plaintiff may be allowed his disburse- ment and charges (under Sec. 5, Statute of 1850, p. 244) tiiough he recover less than $50 — in the discretion of the court. Turn- er et al. V. Holleran, 8 Minn. 451. 374. In trespass, the plaintiff's title may be drawn in question so as to entitle him to cost on recovery of judgment, as a matter of course, under the statute, for although injury to plaintiff's possession is the gist of the action, yet inasmuch as a party not in actual possession has, by vir- tue of ownership, a constructive possession sufficient to suppoi't this action, an answer whichjputjiis possession in issue, would nec- essarily draw in question his title. Booth V. Sherwood, et al., 12 Minn. 246. 375. In tort against several defend- ants, where there is -a, verdict in favor of some of the defendants, and in favor of plaintiff as to the other defendants, the de- fendants prevailing'are entitled to costs un- der Sec. 2, Chap. G7, G. S. Barry o. Mc- Grade et al., 14 Minn. 286. 376. In an action to determine adverse claim to real property, answer denied that defendant claimed any estate, or interest in, except as the holder of a certificate of purchase thereof, at a sale for delinquent taxes, which were claimed to be a lieu on the land. Held, it being found true, it amounted to a disclaimer, and plaintiff not entitled to costs in District Court. Sec. 2, Chap. 75, G. S. Brackett v. CHlmore, 15 Minn. 245. B38 PEACTICE. 377. On certiorari to justice's court. Sec. 120, p. 315, R. S., regulating action of District Court in cases of certiorari, is silent as to costs, and also as to judgment against sureties, and this must be deter- mined by Sec. 198, p. 325, of R. S., under head of " Miscellaneous Provisions in Criminal Cases." Baker v. United States, 1 Minn. 209. 378. on afHrmance of judgment. Sec. 198, p. 52.5, R. S., under head of " Mis- cellaneous provisions in Criminal Cases," providing for entry of costs, etc., in Dis- trict Court, for both courts where judg- ment is affirmed, applies to cases taken up from justice's court by certiorari as well as by appeal, lb. Jf. Remedy against erroneous taxation. S79. By motion to the judge. If the adjustment of costs by the cleric of a dis- trict court is erroneous, the remedy of a party aggrieved is, by motion in that court in the nature of an appeal from the decision of the clerk, not by an appeal from the judgment of the court. Andrews v. Cressy,- 2 Minn. 74. 380. Discretionary costs, not recovera ble unless awarded. "Where costs are dis- cretionary, they are not recoverable unless specially awarded, but the time 'to make objection to the allowance of costs is at the time of the taxation, before the clerk, and if a party suffers it to be taxed by the clerk, without objection, he cannot object on appeal. Myers & Oo. v. Irvine & Co., 4 Minn. 553. 381. After entry of judgment, remedy must be souglit by correcting tlie judg- ment. The verdict of the jury assessed plaintiff's damages at $1.00. Judgment was rendered for the plaintiff for the amount of the verdict, and for his costs and disbursements. Thereupon the clerk taxed costs and disbursements, defendants excepting. On appeal, the District Court confirmed the clerk's taxation. From the order of confirmation defendant appealed to Supreme Court. Held, the objection that plaintifl' was not entitled to costs, etc., un- der the statute, goes to the judgment, and not the taxation, since the judgment awarded costs, etc., and it was consequent- \y the clerk's duty to tax them ; and the or- der of confi7-m,ation, appealed from, was cor- rect. Appellant should have appealed from the judgment. Piper v. Branham, 14 Minn. 552. c. In Supreme Court. 1. Generally. 382. Prevailing party entitled. A party who succeeds in obtaining a modifi- cation of the judgment below, is the pre- vailing party on writ of error, and is enti- tled to costs in all cases. Sec. 26, p. 624, Comp. Stat. Sanborn v. Webster, 2 Minn. 328. 383. A party who is compelled to re- soi-t to the Supreme Court to correct an er- ror, is entitled to costs, unless the appeal is vexatious, and not in good faith. Allen V. Jones, 8 Minn. 202. 384. Double costs, when allowable. Under the R. S., 416, Sec. 26 (1854), dou- ble costs can only be awarded by the Su- preme Court to party prevailing on a writ of error — not appeal. St. Martin v. Des- noyer, 1 Minn. 156. 383. On appeal from an order setting aside execution sale, etc. Sec. 12, R. S., and Sec. 16 p. 372, (see p. 12, of amend- ments, ) makes a distinction between motions and special proceedings. On an appeal from an order of District Court, setting aside a sale on execution, and issuing an alias execution, the appellant prevailing in the Supreme Court, cannot obtain costs as on a trial of an issue of law. Such mo- tion, from which an appeal was taken, was one of the non-enumerated motions. Till- man et al. v. Jackson, 1 Minn. 190. p. What is taxable as costs, etc. 386. Printing papers not necessary, not taxable. Costs cannot be taxed for printing papers not required by the stat- PRACTICE. 339 utes and the rules, viz. : paper books, and points and antliorities; altliougli counsel are not conflned In their points to a state- ment of the point and the authorities, but will be encouraged in inserting matter necessary to place the case fully and cleai-- ly before the court. But cost for printing an argument of a party (he being an at- torney), besides his counsel's points and authorities, disallowed. Hart et al. v. Marshall, 4 Minn. 552. 3§7. Must be printed. Conip. Stat., p. 578, Sec. 9, providing for printing pa- pers on appeal, permits a party to recover for such papers only when printed. Coop- er V. Stinson, 5 Minn. 522. 1 6. Practice on Review. A. IN DISTRICT COURT. a. On appeal. 1. Dismissal of appeal. 388. Where no costs and fee for jus- tice's return had been paid. Under Sec. 150, Chap. 59, Comp. Stat., the payment of the costs and fee fSv the justice's return are essential conditions to the jurisdiction of the justice, to allow an appeal, and when facts appear from the return, showing no pay- ment, the appeal will be dismissed. Trigg ■0. Larson, 10 Minn. 220. 389. No affidavit of appeal. On ap- peal from the justice court, under Sec. 136 and 139, p. 517, Comp. Stat., the return of the justice should contain the affidavit for an appeal; if it does not appear, the pre- sumption is that it was not filed, and the District Court acciuired no jurisdiction — and such an appeal is properly dismissed unless an amended return is directed. Mc- Farland v. Butler, 11 Minn. 72. 390. Simple errors below, the court having jurisdiction, insufficient. Where a justice has jurisdiction of the subject matter of the prosecution, and the party is legally brought before him upon a prop- er complaint and warrant, so that he ac- quired jurisdiction of his person, it is no ground for dismissing the proceedings and discharging the party, on appeal to the District Court, that errors occurred in the trial before the justice. State v. Tineretal., 13 Minn. 520. 391. Void notice of appeal. When the justice's return, on appeal, cintains papers showing that the notice of appeal served is void, and his transcript states that notice was served and filed, the latter will be controlled by the former, and the appeal dismissed for want of jurisdiction in the justice to allow it. Larrabee et aX. v. Morrison, 15 Minn. 196. S. Dismissal of the action. 392. Party may dismiss before trial. On an appeal from justice's court, the plain- tiff can dismiss the action at any time be- fore trial, the same and as fully as he could before the justice. Fallmans v. Oil- man, 1 Minn. 182. S. Effect of appeal as waiver. 393. Does not waive objections to juris- diction. An appeal from a justice court, on questions of law and fact, does not waive objections to the jurisdiction. Ba- hilly V. Lane et al., 15 Minn. 447. 4- Principles of determination. 394. Defects in pleadings overlooked, when. Courts will overlook defects, both of substance and form, in pleadings in justices' courts, when the parties go to tria in the same, without objection, and a good cause of action is proved; but when no cause of action was stated or proved, a judgment will not be sustained. Holgate v. Brown, 8 Minn. 243. 5. The trial on appeal. 395. Status of parties same as though suit commenced in district court. When an appeal from the judgment of a Justice 340 PRACTICE. of the Peace is taken properly, and a re- turn thereto is made, the whole proceed- ings before the justice become mere lis pen- dens in the District Court. Eev. Stat. 316, Ohap. 69, Sec. 127. Parties are in same relation as at the commencement of the suit before justice. Fallmans v. Qilmore, 1 Minn. 181. 396. Defendant may and shonid set up equitable defenses. On an appeal from the Justice Court to the District Court, tho latter should allow the appellant to set up anjr equitable defense which he may have, but which the justice could not entertain; and if the District Court refuses such per- i mission, the remedy is in the Supreme I Court — and if not there pursued, in tliat action, no second action can be maintained. Fowler et al. v. Atkinson, 6 Minn 503. 397. Same pleadings, unless amended. A case brought into the District Court from a justice, must be tried on same pleadings, unless amended by consent of District Court. Elfelt ». Smith, 1 Minn. 125. 398. Under Art. 13, Sec. 5, act of the Territory concerning appeals from justice's court, the jury cannot tind, according to evidence, without regard to the declaration in the cause. The plaintiff is controlled by his declaration, whether it had been amended or not. Desnoyer «. Hereux, 1 Minn. 17. 399. All the issues and parties brought up. An action was brought in a Justice's Court against H. and F., as co-partners; both were served with process, H. only ap- pearing, and denying the co-partnership, which issue was determined in H.'s favor, and judgment is entered for the plaintiff against F., onlj', for whole of plaintiff's de- mand. Plaintiff appealed to District Court. Held,_ that the judgment of the justice did not dismiss the action as against H., and that the issue of joint liability as co-partners was to be tried in that court, as though the action had oi-jginally been brought in that court, linder Comp. Stat., p. 517, Sec. 139, unless the issues were changed by order of court, under Comp. Stat. 518, Sec. 140. Hooper et al. v. Farwell (6 Go., 3 Minn. 106. 400. Amended retnrn. The transcript of the justice, on appeal, showed that a bond was filed ; a failure to send it up is not ground of dismissal of the appeal, but for an amended return. BahUly v. Lane et al., 15 Minn. 447. G. Tlie judgment. 401. In replevin— modification. On appeal, on questions of law alone, from a justice's judgment for defendant, in replev- in, for the value of the property, instead of its return or its value, the District Court should modify the judgment so it shall read in the alternative instead of reversing- it. Kates v. Tliomas, impVd, etc., 14 Minn. 460. 402. In replevin, part only of the propei'ty in controversy was taken on the writ; the jury in the District Court found plaintiti' entitled to possession, and assess- ed value of the whole property at $156.50 — that taken at 180.50, that not taken at $76.00. Held, the assessment of the value of the whole, and the part taken, was un- warranted, and to be rd§&rded as surplus- age (G. S.,Chap. 66, Sec. 221); and, that judgment on the verdict, that plaintiff re- cover possession of the whole, or in default thereof the sum of $150.50, was erroneous, and must be modified, in conformity to G. S., Chap. 66, Sec. 249, so as to authorize the recovery of that part not obtained, or, in default, its assessed value. HeeUin v. Ess, 16 Minn. 51. 403. A joint judgment against surety and principal, where on appeal from a justice's court, the judgment is affirmed un- der Sec. 134, p. 518, Comp. St., is not in conflict with Art. 1, Sec. 7, Const, of State. Davidson 11. FarreU, 8 Minn. 258. 6. On certiorari. 1. When it lies. 404. Does not lie from decision of Pre- sident of town of St. Paul. Under the PRACTICE. 341 act of 18-11), incoi'iDorating the town of St. Paul, which provides that '^ appeals mny he taken, etc., in the same manner" from the decision of the President as from a Justice of the Peace, a writ of certiorari does not lie. ToioH of St. Paul v. Steamboat Br. Franklin, 1 Minn. 97. 405. To justice's court, in assault. Under the statute in force in lSGO,certiorari lies, in cases of judgment for an assault in ;i Justice's Court to the District Court, in tlie first Instance. Tiernay et al. v. Dodge, Minn. 166. 3. Affidavit for the 'writ. 406. Reqnisites of. An affidavit, under Sec. 124, Comp. St., p. 515, as a ground for obtaining a writ of certiorari to a Jus- tice's Court, which omits to state that the "application is made in good faith, and not for the purpose of delay," is fatally defect- ive as a ground for issuing the writ. Cun- ningham V. La Crosse and 8t. Paul Packet Co., 10 Minn. 299. 407. Where the statute required an affidavit on an application for a writ of cer- tiorari to a Justice's Court to state that the application was made in good faith, and not for the purpose of delay. Held, an affi- davit omitting such averment was sub- stantially defective, and the court had no authority to allow an amendment by in- sorting such allegation. 2 h. 3. Service of the writ. 40§. Must be served within time specified by statute. Sec. 128 Comp. St., p. 516, requiring a writ of certiorari to be served on the Justice within ten days after its allowance is mandator^/, and must be observed. Bunddy v. Dunbar, 5 Minn. 444. 4- The return. 409. Conclusions of justice adverse to tlie verdict, will be disreg'arded, Qn c'er- tiorari from a judgment on a verdict in a Justice's Court, conclusions of fact on the part of the Justice adverse to tlie verdict of the jury, inserted by the justice, are no part of the return, and will be disregard- ed. De Bochehrune v. Souiheimer, 12 Minn. 78. 5. Principles of determination. 410. The return only can be exam- ined. The reviewing court is conliued to tlie return of the Justice on certiorari for the facts, without reference to the affidavit of the party aggrieved. Taylor v. Bissel, 1 Minn. 225. 411. Costs voluntarily paid. At the time the appeal was taken, defendant paid the Justice's costs in full, as well as his fee for the ]-eturu. Held, such payment was wholly voluntary, for the law required payment of the fee only, and not that, un- less demanded by the Justice, hence its taxation cannot be objected to on appeal. Clague v. Hodgson, 16 Minn. 329. 412. Where there is any testimony to sustain the findings on the facts, the judg- ment of the Justice's Court will not be set aside on certiorari. De Bochbrune v. South- eimer, 12 Minn. 78. 6. The judgment. 413. Misconduct of jury. District Court has the right, on writ of certiorari from Justice's Court, to reverse a judgment on the ground of gross misconduct of a jury. Snow v. Hardy, 5 Minn. 77. B. IN SUPREME COURT. I. Genbkally. a. Methods of Review. 414. Reserved case. The Supreme Court cannot consider any reserved case brouglit up by agreement of counsel, on which no judgment or decree of the Court below has been made. Ames v. Boland, 1 Minn. 366. 415. Writ of error or appeal. The effect of Sec. 2, Chap. 81, E. S., is to allow 343 PKACTICE. all final judgments (not penal) in the Dis- trict Courts to be removed to the Supreme Court by writ of error or appeal, but not by both. Moody et al. v. Stevenson, 1 Minn. 403. 416. Error and appeal do not both lie. A party seelving relief in the Supreme Court from a judgment, etc., of the District Court, may do so by appeal or wi'it of error, but having elected to take one, he cannot afterwards talve another, without a discon- tinuance of the one first chosen and a pay- ment of costs. lb. 417. If both taken, last will be dis- missed. Where an appeal and writ of error were both taken in same cause, the writ of error (last taken) was dismissed, with costs to defendant in error. lb. 418. Stipulation cannot give jurisdic- tion. Case was brouglit direct to the Su- preme Court, from report of referee, with- out entry of Judgment and on stipulation of the parties. Held, that stipulation was not one of the means by which this court obtained appellate jurisdiction under the statutes ; and although as an exercise of a discretion, it might entertain a cause so brought before them, there must be no ob- jection as on this motion to dismiss. Rath- burn 11. Moody, 4 Minn. 364. b. TJie record. 419. Consists of what. The record in a case before the Supreme Court, and to which it is confined, consists of the plead- ings, the decision of the Judge, and the judgment. Olafiin v. Lawler, 1 Minn. 299. 430. When the paper book in a cause includes a case used on motion for new trial therein, containing a statement of tlae evidence upon the formei- trial, and settled by stipulation of the parties, and the opin- ion of the Judge on the motion for new trial, neither the case with its evidence nor tiie opinion form any portion of the record. Not being of record, the Supreme Court cannot look into them to see whether the judgment below on the motion was war- ranted by the law and evidence. St. An- thony Mill Go. V. VandaU, 1 Minn. 250. 421. When a "case" is attached to the judgment roll, it is sufficient evidence that it was attached at the request of one of the parties, which is all that is necessary, and will be examined as a part of the record on review. Comp. St., 566, Sec. 75. Teiek v. Board of Commissioners, Garver Co., 11 Minn. 292. 422. An "extract from the evidence and proceedings before the referee, as re- ported to the court," in the absence of an agreement by the parties, and no case hav- ing been settled, was improperly embraced in the return, and was stricken from the record. Robinson v. Bartlett et al., 11 Minn. 410. 423. Cannot be contradicted by affi- davits. When the record shows that the verdict was recorded before the motion to poll the jury was made, aflidavits are not admissable to contradict the record. Steele et al., v. Etheridge, 15 Minn. 501. 424. Affidavits competent to show that papers were improperly included in the record. This court will entertain a motion to purge a record of any matter or paper improperly included in it, and will receive affidavits of any facts dehors the record necessary to obtain a full know- ledge of how the record was made up. Daniels v. Winslow, 2 Minn. 117. 425. Matters improperly of record, will be struck out on motion. SufScient facts having been elicited on the motion to strike out a Bill of Exceptions, to induce the court to believe the counsel (opposite) had not received proper notice of the bill, it was struck out. lb. c. The paper booh. 426. What it should include. Paper books should in all cases contain a state- ment of the case briefly, as well as every material paper which bears upon the ques- tions to be decided. Gerish & Brewster v. Johnson, 5 Minn. 23. 427. Tlie paper book furnished the Supreme Court should not include the evi- dence in the case, but the judgment roll, which includes the decision of the court PRACTICE. 343 below. And this is so as well whether the evidence is mostly depositions or oral. Clnf- lin et al. ». Lawhr et al., 1 Minn. 299. 428. Construction thereof. A state- ment in a paper book that "testimony was introduced on either side for and against all the issues," cannot prevail against a positive statement to the contrary by the court, when, in his charge to the jury, he says, "tliere Is no evidence of any outrage in this case," there being no such evidence in the paper boolc. Day et al., v. Raguet et at, 14 Minn. 273. d. The calendar. 429. Case struck from the calendar, when not filed in time. Where the return was not filed until after the opening of term, and the respondent had noticed the case for argument ten days before the fir.st day of term, and placed it on the calendar for a hearing, the case was struck from the calendar on motion. Reynolds v. Steamboat Favorite, 9 Minn. 148. e. What is reviewable. 1. Discretionary matters. 430. Order granting a new trial. An order of the District Court, granting a n,ew trial, is discretionary, and not subject to review in the Supreme Court. Dafolt v. Gorman, 1 Minn. 307. 431. The allowance of amendments in pleadings at the trial is discretionary, and will not be reviewed, except in cases of abuse. Morrison et al. v. Lovejoy, 6 Minn. .319. 432. Refusal to open judgment ob- tained by default, where the party was in no default, is an error which may be re- viewed in this court— if a default existed, then it is discretionary with the court and cannot be reviewed, except in case of abuse. Swift V. Fletcher, 6 Minn. 550. 433. Orders allowing pleadings to be made more definite. The court may, in its discretion, order a pleading to be made more definite and certain, and unless the disci'etion is abused, the action of the court will not be disturbed. Oathcart v. Peck et al., 11 Minn. 45. 434. Opening judgment. Where a judgment is set aside in order to grant re- lief to the defendant, under Sec. 94, Chap. 60, Comp. St., it is within the discretion of the court, and will only be reviewed in case of abuse of discretion. Barker v. Keith 11 Minn. 65. 435. Applications to open judgment, and be allowed to come in and answer, are addressed to the discretion of the court, and its decision will not be disturbed without manifest abuse. Whitcomb v. Shaffer, 11 Minn. 232. 436. In applications for permission to appear and defend in an action where judgment has been taken by default, under Sec. 51, Chap. 66, G. S., the decision of the court below will not be reviewed, except in case of abuse of discretion. Wasltbiirn et al. V. Sharpe et al., 15 Minn. 63. 43 T. Opening judgment. An order of the District Court, opening and setting aside a judgment entered on default, is the exercise of discretionary power and not reveiwable, except in case of palpable abuse. Woods i>. Woods, 16 Minn. 81. 438. Change of venue. The decision of a court below in disallowing an appli- cation for a change of venue, is not review- able in the Supreme Court,, except in case of abuse of Jts discretion. State v. Stoke- ly, 16 Minn. 282. 439. The admission of irrelevant or immaterial question, whether for the pur- pose of crimiilating or disgracing a wit- ness, is discretionary with the court, and its decision is not reviewable in absence of abuse. McArdle v. McArdle, 12 Minn. 98. ^. Fictitious issues. 440. When subject matter is settled. This court will not entertain a case and re- view a judgment rendered in the District Court, where it appears satisfactorily that the subject matter of the action has been settled by the parties and the judgment satisfied. Bdbcock v. Banning, 3 Minn. 191. 344 PRACTICE. 3. Only objections raised below. 441. No new objections to testimony can be urgred. Where a question is asked generally of a witness, without any grounds, or its object being specially stated, and its admissibility is argued, upon a theory ad- vanced by the party objecting, and ans- wered by the party offering the evidence, and ruled upon by the court in reference to such theory, the party in the Supreme Court is estopped from urging its admissi- bility, on any grounds not presented at the offer. Bondv. Gorbett, 2 Minn. 255. 442. No grounds for the exclusion of testimony not urged in the court below, can be suggested in the Supreme Court. Baldwin et al. v. Blanoliard, 15 Minn. 489. 443. General objection to a cliarg'e. Where it is objected generally that "the court erred in charging the jury upon the first point," etc., without any specifications to indicate what is relied on by the party as erroneous, we do not feel called upon to malce a critical examination of the several instruc- tions referred to, but simply consider such points as are discussed in the argument, and such palpable errors as are apparent on the face of the instructions. Day et al. V. Raguet etal., 14 Minn. 372. 444. Where no objections were raised below. Where a party submits all the issues to a jury without objection, he can not claim in the Supreme Court that some of the issues being equitable in their nature siiould have been passed upon by the court, and assign that as ground of error. Davis et al. v. Smith, 7 Minn. 414. 445. Where evidence has been re- ceived in the court below, without objec- tion, it is too late to raise the question of its admissibility in this court. Dixon v. Merritt, 6 Minn. 160. 446. It is too late to raise, in the Supreme Court, an objection on account of any mere error or informality which does not go to the sufficiency of the complaint, or the jurisdiction of the court; by failing to raise them in the court below, they are waived. Holmes etal. v. Campbell, 12 Minn. 221. 44'?. The Supreme Court can review only such errors in the taxation of costs as were excepted to by the party aggrieved. Barry v. Mc'i-rade et al., 14 Minn. 286. 4. Only matters acted upon below. 44§. Assessment of damages by.clerk of the District Court. Where tlie plaintiif enters up judgment on default in tlie court below, and includes therein an assessment of damages authorized by the formal sig- nature of the judge, without ills actual ex- amination, it is, constructively, the act of the court,(Comp. St., p. 566, Sec. 71), but it is not sucli an actual decision by the judge below asis reqired forthe purposes of re- view directly by this court, liiiless the error complained of, is of sucli a character that the rtcord will not support a judgment at all, or would not be aided by verdict — fol- lowing Karns «. Kunkle, 2 Minn, and Babcock & HoUinshead «. Sanborn & French, 3 Minn. Sawlce et al. v. Banning et al., 3 Minn. 67. 449. Only questions raised below. The Supreme Court will not entertain questions which have not received the actual decision of the tribunal from which they have come, unless it is evident that sub- stantial error has been committed. WasJi^ burn V. Winslow, 16 Minn. 33. 450. Taxation of costs by clerk, with- out application to the court below. Er- ror conimitted by the Clerk of the District Court in taxation of costs, or assessment of damages, whether by miscalculation of the figures or erroneous application of princi- ples of law, must be first corrected by court below, on motion. Emmett, C. J., dissenting, holds that judgment entered by the clerk in accordance with the statute, is in contemplation of \&\Y,'iih.6 judgment of tlie court, hence any error apparent ought to be inquired into in this court. Bibcock et al. V. Sanborn et at. 3 Minn. 141. 451. Appellate jurisdiction, only ex- ercised. This court is designed to exer- PRACTICE. 345 cise appellate jurisdiction only, and will review the errors of courts alone, not those of the officers of courts. Masterson & Hoyt V. Le Olaire, 4 Minn. 163. 452. Court below must first actually pass on the assessment of damages. This court will not entertain a motion to correct an assessment of damages made by the clei'lv of the dLitrict court, until the same has been actually passed upon by the court below. Emmett, C. J., dissents: Daniels ■V. Harris & Smith, 4 Minn. 169; Daniels v. Allen, 4 Minn. 170; Daniels v.] Wain, impl'd, 4 Minn. 171. 453. as to any omission from the record. The objection that the record does not show an order referrinj? the cause to a referee for trial,should be urged in the District Court; it cannot be nrged in the Supreme Court for the first time. Ames v. The Mississippi Boom Oo., 8 Minn. 467. 454. as to taxation of costs. Alleg- ed errors of the clerk of the district court, In the taxation of costs, cannot be reviewed by the Supreme Court — until after they are passed upon by the District Court — follow- ing the rule heretofore laid down. Hard V. Simonton, 10 Minn. 423. 455. Errors of the clerk in assessing' damages, will be reviewed, without any previous application to the District Court. A judgment, though entered by the clerk, without the knowledge of even the judge, is In contemplation of law the judgment of the court, and anj' errors committed by the clerk in assessing damages for the entry of judgment, will be corrected by this court, though application has not been first made to the District Court — overruling Babcock et al. V. Sanborn et al., 3 Minn. 141. Rey- nolds V. La Crosse & Minn. Paolcet Oo., 10 Minn. 178. /. Principles of determination. 1. Abstract propositions. 456. No ground for reversal of judg- ment. An error of the court concerning an abstract proposition, having nothing to 44 do with the matter in hand, is not sufficient ground for reversing a judgment: State V. Sliippey, 10 Minn. 233. S. Harmless errors. 457. Where sufficient evidence was properly admitted. Where there is evi- dence sufficient to sustain the verdict, aside from that to which an erroneous part of a charge refers, and especially where the evidence is of such a nature that it is scarcel}^ possible the objectionable part of a charge could have had any impression on the flnding, a verdict should not be dis- turbed on that ground. Woodberry et al. v. Lamed, 5 Minn. 339. 45§. Where a question was erroneously overruled,but the party afterwards testified to the same thing, and received the full benefit of his question, he cannot complain. Lynd v. Picket et al., 7 Minn. 184. 459. A party cannot complain at the erroneous ruling of the court below, as to the admission of evidence, where the same thing was afterwards established by other means. Lroine t. Marshall & Barton, 7 Minn. 286. 460. The improper admission of cer- tain kinds of evidence is no ground of er- ror, where the same facts were otherwise established. Oily of Winona v. Huff, 11 Minn. 119. 461. Defendant cannot complain that a portion of his answer is stricken out, thotigh impi'operly, where the portions re maining set up the same matter. Cathcart V. Peck et al., 11 Minn. 45. 3. Questions of fact. 462. Verdict is against evidence. Where the case does not show that all the evidence taken on the trial is presented therein, the court cannot say the verdict is unsupported by any evidence. Lynd v. Picket et al., 7 Minn. 184. 463. and the case must show that all the evidence is before the court. Where the case does not purport to contain 346 PRACTICE. all the evidence introduced in the court be- low, an objection that the verdict is unsup- ported by the evidence, cannot prevail in the Supreme Court. Williams et al. v. Mc- Oradeet al., 13 Minn. 46. 464 ^An objection that the verdict is against the weight of evidence, cannot pre- vail where there was conflicting testimony. Davis et al. v. Smith, 7 Minn. 414. 463. The general doctrine tliat a ver- dict of a jury, supported by any evidence in the case, will not be revoked, followed in Maxfield v. Bierbaur, 7 Minn. 511. 466. What is insufficiency of evidence. To constitute an insufHciency of evidence to sustain a verdict, there must be such a want of evidence on some material point in issue, as satisfies tlie court that the jury in their finding were influenced by partiality or prejudice, or misled by some mistaken view of the case — following St. Paul ». Kuby, 8 Minn. 171. Johnson v. Winona & Si. Peter B. B. Co., 11 Minn. 296. 467. Conflicting: evidence. "Where the evidence is conflicting, the verdict of the jury will not be disturbed. State v. Mer- rick, 12 Minn. 136. 46S. All the evidence must be brought up to assail a verdict of a jury, on a ques- tion of fact. Before an objection to a ver- dict, on the ground that it is contrary to the evidence, can be entertained by the Su- preme Court, it must appear that all the evidence given upon the trial in the court below is presented in the paper-book, otherwise it will be presumed that evidence sufficient was given to support the verdict. Dorman v. Ames & Oeorge, 12 Minn. 431. 469. Questions of facts not reviewable. The Supreme Court will not undertake to revise or give judgment as to facts, but will take them as exhibited by the record. Claf- lin V. Lawler, 1 Minn. 298. 470. Assessment of Damages. The Supreme Court will not interfere with the assessment of damages by a jury, unless it be manifest that they were swayed by prej- udice, passion, or corruption. Beaulieau v. Parsons, 2 Minn. 37. 471. Where there is evidence tending to establish the damages found by the ver- dict, such damages will not be reviewed here for the purpose of ascertaining wheth- er they are excessive or not. MeOlung v. Bergfield, 4 Minn. 148. 472. The finding of a jury on a ques- tion of fact, will not be reviewed, where there is any evidence before the jury tend- ing to show that fact. State v. Taunt, 16 Minn. 109. 473. Certain evidence considered, with reference to its sufficiency, to sustain a ver- dict, finding the disaffirmance of a mort- gage by an infant, constdered and deter- mined insufficient. Cqgley v. Cushman, 16 Minn. 397. 474. Evidence as to amount of dam- ages, and ordinary care in management of property, considered and determined. Marsh v. Webber, 16 Minn. 418. 475. For evidence that will sustain a verdict of a jury, awarding damages for land taken by a railroad company, against the objection that it was excessive and the result of prejudice, see The St. Paid & Sioux City B. B. Go. v. Matthews, 16 Minn. 341. 476. Assessment of damages by jury. Where a jury have a discretion in award- ing damages, the assessment will not be re- viewed in the absence of passion, prejudice, or some improper motive. DuZaurana v. First Div. St. P. & P. B. B.Go., 15 Minn. 49. Jf. Beport of referee and findings of court. 477. The report of a referee may be sustained, even if improper evidence was admitted, if, on rejecting that, enough re- mains to support it. Cooper V. Breclcenridge, 11 Minn. 341. 478. Referee's report on facts. If there is testimony in the case, upon which the findings of a referee upon questions of fact may be reasonably sustained, the court will not interfere with it. Oiti/ of Winona V. Huff, 11 Minn. 119. 479. when evidence was partly doc- umentary. The findings of a referee on PRACTICE. 347 questions of fact, where the testimony was all written or printed, stands lilje any other finding of fact, and this court will not ex- amine the testimony for the purpose of de- termining its weight — overruling Martin v. Brown, 4 Minn. 282. Humphrey et al. v. Havens et al., 12 Minn. 298. 480. Will be reviewed without a ♦' case." The Supreme Court^will inquire, on report of a referee or decision of a Judge, whether the conclusions of law are warranted by the findings of fact, without compelling the appellant to make up a " case " — although, if the respondent show- ed the court that the merits of his cause were not fairly presented by the report or decision — i. «., that the judgment, although in his favor, cannot be supported on the findings of fact or vice versa, whereas an inquiry into the whole case would establish it, it will direct a case to be made. Morri- son et al. V. March, 4 Minn. 422. 481. The weight, which a court will give to the decision of a single judge, on a question of fact, depends on the nature of the evidence, whether written and docu- mentary, or oral. In the latter case it is of equal weight with the verdict of a jury, in the former it will be reviewed as any other question. Martin, v. Brown et al., 4 Minn. 282. 5. Presumptions. 483. Sufficiency of evidence to sus- tain a verdict. Where the record fails to show that all the evidence taken below is before the court, it may well presume, if indeed it is not bound to presume, that there was evidence sufficient produced on the trial to sustain the verdict. Eddi/, Fenner & Co., V. Caldwell, 7 Minn. 225. 483 where all evidence not before the court. Where it does not appear from the papers that the evidence presented was all there was offered on the trial, every rea- sonable intendment will be made in favor of the verdict. Barnsback v. Beaney, 8 Minn. 58. 484. In the absence of all the testi- mony in the paper book, the presumption is that there was testimony sufficient to sus- tain the verdict. Cowley v. Davidson, 13 Minn. 92. 485. Amount of damages. Where a referee omitted to find, in terms, the amount of damages which plaintiff sustained, but found facts from which the law implies damage, the damage actually found, and for which judgment was entered, will not be disturbed, unless the party complaining show affirmatively that he has erred in his rule of damages, or misapplied a correct rule. The court will presume the amount of damages found to be correct, unless the contrary is made to appear affirmatively. Caldwell et al. v. Arnold, 8 Minn. 265. 486. Correctness of instructions. If a bill of exceptions does not contain the facts as detailed by each witness, on which the court based its instructions, and those in- structions are abstractly correct, a court of review will presume they were properly given. Desnoyer v. Hereux, 1 Minn. 17. 487. Regularity of the proceedings. Where the ease comes up on a bill of ex- ceptions, it is incumbent on the appellant to show specifically the existence of error, otherwise the. presumption is in favor of the regularity of the proceedings. Blach- man v. Wheaton, 13 Minn. 326. 488. Date of execution. It appeared from the case that an execution issued on or about Nov. 28, and transcrif)t of judg- ment filed on Dec, 1 — and no objection hav- ing been made to the introduction of the execution in evidence, it will be presumed that on being produced it was found dated after the docketing of the judgment. Dodge V. Chandler, 9 Minn. 97. 489. Pleadings and issues. When the paper book fails to show pleadings or an issue in the court belovir, but showed pro- ceedings in the cause, which are the neces- sary consequents of the existence of plead- ings and an issue, the court will presume that pleadings were had and an issue join- ed, so as to sustain the judgment. Davidson V. Farrell, 8 Minn. 358. 490. Where a defendant, by failure to 348 PRACTICE. answer, admitted that (as alleged in the complaint) defendant "caused execution to be issued out of " the Supreme Court, and placed it in the hands of the Sheriff of Scott County, who "levied upon, etc.," cer- tain real estate, situate, etc., and ^^ duly in accordance with tlie provisions of fJie stattite, etc., sold, etc.," it will be presumed that the judgment was docketed in Scott County, when the complaint is assailed in the Su- preme Court, for insufficiency. Holmes et al. V. Oamphell, 12 Minn. 221 . 491. Existence of particular eridence. When a certain instruction would be erro- neous in a given case, and correct under certain circumstances, and a bill of excep- tions fails to show the evidence upon that point, or any allegation that such testimo- ny was not given on the trial, the court will presume the existence of such testimo- ny in the case. Day et al. v. Ragiiet, 14 Minn. 273. 492. Bill of exceptions, or case. Where there is no bill of exceptions or case stated, the Supreme Court will not in- quire whether testimony upon which a judgment was based, was properly receiv- ed or not. Bartnell v. Davidson, 16 Minn. 530. 493. Res adjudicata. When a ques- tion has once been decided in this court, and the cause remanded for a n^vt^ trial, the same question will not be reviewed a second time, on an appeal from tlie judg- ment rendered, on the second trial below; unless a state of facts exists which would justify a re-argument. Ayer v. Stewart, 16 Minn. 89. 494. Specific objections. This court will consider, only, objections to the charge of the court below, which wei'e specifical- ly objected to on the trial. Cole v. Curtis et al, 16 Minn. 182. 495. Where an instruction is correct as a proposition of law, the objection that it is not so specific as it might be, should have been obviated, by a request for fur- ther instructions. Warner v. Myriek, 16 Minn. 91. 490. Presumptions in favor of instruc- tions. Where the instructions arc not all before the court, it cannot be objected that "if, under the charge, the jury found but part of the money described, that fact should have been stated in their verdict; that a general verdict is bad, where the testimony described but a part of the prop- erty charged; that there should have been a finding of /value sufficient to detennine the character of the offense," for the pre- sumption is in favor of the instructions, especially as moi-e specific instructions were not asked. State v. Taunt, 16 Minn. 109. 497. Error must be shown affirmative- ' ly, and where an instruction lays down a correct rule, if the facts in the case were such, that applied to them without qualifi- cation, it would mislead the jury, the party alleging error must show, by case or bill of exceptions, the existence of such facts. Sheffield et al. v. Ladue, 16 Minn. .'i88. 49§. Where the record does not pur- port to give the instructions of the court in full, it will be presumed that the court did, upon stating the facts of the case, in- form the jury that they were the judges of all questions of fact, as prescribed by Sec. 12, Chap. 114, G. S. State v. Taunt, 16 Minn. 109. 499. Where an instruction, given bj' request of counsel, is excepted to, and such instruction is unobjectionable. If the jury were properly instructed upon other questions connected with that involved in the instruction given, the Supreme Court will presume that the jury were properly instructed upon such other question, if there is nothing to show the contrary. Oogley v. Cushman, 16 Minn. 397. 500. Conflicting instructions, if ef- fect uncertain, fatal. Where the court, in its general charge to the jury, gave a correct definition of probable cause, but afterwards, at request of a party, gave a definition not within the rule, but incon- sistent therewith, and the court were una- ble to say by which rule the jury were governed, an exception to the latter in- PRACTICE. 849 sti'uction was sustained. Oolev. Ourtis et al., 16 Minn. 182. 501. Error will not be anticipated by prcsnining', that an erroneous jnd^inent will be entered in future. Where the complaint pi-ayed for damages sustained by a nuisance created by defendant, and for an abatement thereof, and injunction restraining its continuance, and the ver- dict of tiie jury found generally on the damages in favor of plaintiff, and special- ly on certain facts, but not with sufficient fullness to authorize an abatement or in- junction, and before the entry of judg- ment defendant appealed'f rom an order re- fusing to set aside the verdict and denying a new trial. Held, that no judgment hav- ing; been entered in the action, there is no reason to suppose that the court below would, upon the verdict and special find- ings, render judgment for anything more than the damages, concerning which there was no dispute, and the presumption was that, as any other judgment would be im- proper, it will not be granted, hence the motions were properly denied. Finch v. Green, 16 Minn. 355. 502. AH testimony not before the court. Wliere the record does not pur- port to give all the testimony, it cannot be objected: 1st. That the charge of the court assumes a fact which there was no testimony to prove. 2d. That the evidence does not support the verdict. State v. Taunt, 16 Minn. 109. 503. Where it does not ajspear that the settled case contains all the evidence inti'oduced upon the trial, no question can be raised as to its sufBciency to sustain the judgment. Warner v. Myrink, 16 Minn. 91. 504. Motion for non-suit. On an as- signment of error in the Supreme Court, on the ground of a refusal of the court be- low to dismiss the action, at the clo^e of plaintiff's evidence in chief, on the ground th.at the evidence did not make out tlie plaintiff's case, this court will not confine its attention to the testimony in chief, but will look to all the testimony in the case, and if it appears therefrom that there was sufficient evidence in support of plaintiff's case to submit the cause to the jury, the ruling below will be sustained. Cole i), Ourtis et al., 16 Minn. 183. e. Defects in pleadings. 505. Defects must be clear and sub- stantial. An appellate court will not, on appeal, set aside proceedings ou account of the insufficiency of the complaint, unless it is clearly and substantially defective. Pi- per V. Johnson et al., 13 Minn. 60. 506. An objection that a com^Dlaint does not state facts sufficient to constitute a cause of action, made in the Supreme Court, will not reach indefiniteness or uncertainty, O)' any errors not substantial in their na- ture, and necessarily fatal. Holmes et al. v. Cnmphdl, 12 Minn. 231. 507. After judgment, a complaint will be sustained unless it is clearly and radically defective. Rich v. Rich, 12 Minn. 468. 50§. After judgment an objection that a complaint does not state facts enoiigh to constitute a cause of action, will not be allowed if the pleading can be sustained by the most liberal intendment. Phosnix etal. «. Gardner et al., 13 Minn. 430. 509. This court will not presume that a want of an allegation in tlie complaint of part i^erformance, in an action for speci- fic performance, is cured by verdict where the record shows that no proof was made of sucli performance. Wentworthv. Went- worth, 3 Minn. 385. 7. Generally. 510. Views and impressions of the court on matters of fact, cannot be allowed to take the place of the verdict of a jury, except in rtagrant cases. Derby & Day v. OaUup, 5 Minn. 119. 511. Judicial notice of its records. This case was before the court in 1860, and remanded to the District Court for a new trial. On being called for trial in that court, the plaintiff in error objected to its 350 PEACTICE. trial on the ground that no judgment had been entered in this court, and the man- date was improperly issued; hence, the cause was in this court, but offered no proof except such as appeared from the mandate of this court. The court overruled the ob- jection. HM, that the mandate did not show whether a judgment had been entered or not, but the presumption was that it was regularly issued, and as no other proof was offered, the objection was properly overruled ; and this court must act, in re- viewing the decision of the court below, upon what appears in the record brought up, and cannot take judicial notice of its own records — for that would be trying a question of fact. Giddwell v. Bruggerman, 8 Minn. 286. ing the plaintiff a second trial, in an ac- tion for the recovery of specific real prop- erty, under Sec. 5, Oh. 61, Comp. St. 595, is appealable. Howes u. Qilleti, 10 Minn. 397. 577. Receiver, order vacating appoint- ment, of. The right to appeal from an order vacating an order appointing a re- ceiver exists by virtue of the act of March PRACTICE. 357 5, 1833, Sec. 12, which pvovides that all the statutory provisions authorizing appeals in civil actions and appeals in chancery, ex- isting before the passage of this act, which are necessary and applicable, may be ap- plied and used in appealing causes which, under this act, are intended to be confined to and called civil actions, and not by vir- tue of the general statute providing for appeals in civil actions ; or the Act of 1856, allowing an appeal from an order granting or refusing a provisional remedy: hence 15 days time is allowed. Polsom v. Moans et cU., 5 Minn. 418. 578. Order of District Court revers- ing order of conrt commissioner dis- charging prisoner on habeas corpus. A court commissioner, on the return of a writ of habeas corpus before him, ordered the discharge of the prisoner. An appeal being made to the District Court, an order was made setting aside the order of discharge. Held, an appeal lay from the order of the District Court. State v. Sill, 10 Minn. 63. 579. Peremptory mandamus. The granting of the peremptory writ of man- damus is within the exclusive jurisdiction of the (District?) Court, and an order de- nying the same is appealable. Statelex rel.', V. Ohurchill, 15 Minn. 455. i. Wlien an appeal does not lie. 580. 'Denial of au abstract proposi- tion. Where defendant demurred to the complaint, assigning two distinct grounds, and the court sustained the demurrer on one ground, but deciding the other ground insuflicient — the defendant cannot appeal to this court to determine the correctness of the decision on the point held insufficient, as an abstract question of law— where the de- cision was in his favor generally — Chap. 25 Session Law, 1861, p. 136. Tlie Common- wealth Insurance Oo. v. Pierro, 6 Minn. 569. 581. Case,— granting, or refusing leave to file case after the time. An ap- plication for leave to serve a case after the time prescribed, is addressed to the favor of the court, and not based on any right. The granting or refusal of sucli applications are not appealable. Irvine v. Myers & Co., C Minn. 558. 582. Costs on continuance, order for payment of. Where the court granted a continuance on payment of plaintiff's costs for the term, the plaintiff', by the clerk, made the following entry ■- " This cause having come before the District Court at a regular term thereof, held at, etc., on, etc., and having been reached and called from the calendar in its order, defendant moved that said cause be continued until next gen- eral terra ; thereupon the court ordered that the case be continued, defendant paying costs of term to be taxed. Now on motion of S., Esq., attorney for plaintiil', it is or- dered and adjudged by the court, that the plaintiff recover of the defendant D. & R. bis costs, at this term of the court, taxes at $26.40, in said action. G. S. W., Clerk." Sucli an entry is not a judgment, but sim- ply an order for the payment of costs, under Sec. 11, p. 378, and Sec. 19, p. 627, Comp. St., and no appeal lies therefrom. Fay V. Davidson, 13 Minn. 298. 583. Damages in laying out a road, assessment by county commissioners. No appeal lies to the District Court from an assessment of damages, by laying out a road, made by county commissioners, pur- suant to Chap. 68. G, L., 1865. The act al- lows no appeal, either from the assessment , or their decision locating the road, and the Comp. St., Sec. 17, Chap 7, as amended, 1862, G. L., p. 84, gives no appeal iu this case, it not being a "claim" within the meaning of that statute. Koenig v. County of Winona, 10 Minn. 238. 584. Damages caused by mill-dam, order appointing commissioners to assess. Au order appointing commissioners to as- sess damages, to be caused by a contemplat- ed mill-dam, is not appealable. Sub. 6th of Sec. 11, Chap. 71, Comp. St., not giving that right. Tamer et al. v. Holleran et al., 11 Minn. 253. 585. Evidence, order admitting or re- fusing on trial. No appeal lies from an B58 PRACTICE. order or ruliiif? of the courl, admitting or refusing evidence during the trial of a cause. Such rulings can only be reviewed on appeal from the judgment,' or from an order denying a new trial, Hulett ». Mat- teaon, 12 Minn. 349. 586. Injiinclion, qrder granting:, tem- porary. No appeal lies from an order al- lowing a temporary injunction — following HoiTman et al. v. Mann, 11 Minn. 36t. Schur- meier v. The First Div. St. Paul & Pacific E. R. Co., 12 Minn. 351. 587. Iriterlocntory orders. On a bill praying for dissolution of co-partnership, granting of injunction, etc., an order allow- ing defendants to plead a.n agreement which purported to settle dispute, and an order dissolving injunction — such orders are both interlocutory, and not the subjects of an ap- peal under the organic act of the Territo- ry. Choteau v. Bice, 1 Minn. 24. 5§§. Judge, decision of, on trial witli- out jury. No appeal lies from the decision of a Judge on a trial before him, without a jury — must perfect judgment, and appeal from that — following Ames ». Minn. Boom Co., 8 Minn. 470. Von Olahn v. Sommer, 11 Minn. 203. 589. Judge at cliarabers, ex parte or- der of. No appeal lies from an ex parte or- der of a Jiiiige of a District Court at cham- bers, under Sec. 11, Chap. 71, Comp. St., as amended 1861, which provides that an " ap- peal may be taken to the Supreme Court, or brought there from another courf'' Hoff- man et al. 1). Mann, 11 Minn. 364. 590. Judgment, order opening. An order below, opening a judgment, is not an order " involving the merits of the ac- tion," nor does it fall within "summary ap- plications in an action after judgment" in the sense of Sub. Div. 6, Sec. 12, Comp. St., p. 621-2, hence not appealable. West- ervelt v. King et al., 4 Minn. 320. 591. An "order setting aside the judgment, opening the default, and setting aside the verdict, of a jury," under Sec. 94, Comp. St., p. 544, is not appealable— it being discretionary with the Judge— and is not "an order granting a new trial," with- in the meaning of Sec. 11, Comp. St., p. 621. Ml/rick v. Pierce, 5 Minn. 65. 592. setting aside. Motions to set aside judgments, under Sec. 94, Comp. St., p. 544, are addressed to the discretion of the court, and orders thereon, where no abuse of discretion exists, are not appeal- able. Jorgensen v. Boehmer et id., 9 Minn. 181. \ [593 order granting motion for. No appeal lies from an order made in the course of the trial of an action, granting a motion for judgment ; the appeal must be from the judgment, or from tlie order on a motion for a new trial. Lamb v. McOanna, 14 Minn. 513 ; Rogers v. Solyohe, 14 Minn. 514. • 594. opening Judgments. Under Sec. 94, p. 544, Comp. St., where a party had notice of a judgment against him in Jan., and waited till the following June before tailing any steps to be relieved against it; Held, the application was addressed to the discretion of the court, and not appealable, and the delay amounted to neglect — follow- ing Myriclc ». Pierce, 5 Minn. 65. Oroh o. Basaett, 7 Minn. 325. 595. Motion, order refusing to enter- tain. No appeal lies from a refusal of the District Court to entertain a motion. May- all et al. V. Burke et al., 10 Minn. 285. 596. Noii-suit, granting motion for. The court sustained a motion to non-suit, and ordered orally that the action be dis- missed, and defendant recover his costs and disbursements. Plaintiff appealed from such order and judgment, without having a regular judgment entered by the clerk. Held, not appealable; a formal judgment should have been entered, and the appeal taken from the judgment. Hodg- ins et al. v. Heaney, 15 Minn. 185, 597. New trial, granting and allowance of former deposition. An order granting a new trial before a referee was so modified, on motion, as to allow depositions taken and used in the first trial to be used on the second. Hdd, not to be an appealable or- der under the statute, and the granting of it was discretionary. R. S., p. 414, Sec. 11, PRACTICE. 359 as amended 1856, p. 12, Sec. 18, Sub. Div. 3, does not refer to such order. Ohoteau Jr. V. Parker, 2 Mian. 118. 598. order granting. The Revised Statute of Minnesota, Sec. 11, p. 414, 1849, does not autliorize an appeal from an order of a District Court setting aside a judg- ment, or the report of a referee, and award- ing a new trial. The statute denies an ap- peal from any judgment or order, which, in effect, retains the cause for a further liear- ing in court below. Ohoteau et cd. v. Rice et al., 1 Minn. 121. 599. — ■ order dismissing' action, wlien. No appeal lies from an order of the Dis- trict Court, dismissing an action before trial on application of the plaintiff, under 6. S., Chap. 86, Sec. 8, Sub. 5. Jones v. Baldlhj, 16 Minn. 176. 600. order granting, on proceedings to determine compensation for railroad riglit of way. Where, on the trial, in the District Court, of an appeal from the award of commssioners appointed to assess the damages caused by laying out a road, the verdict of the jury was set aside, and a new trial granted; JMd, no appeal lay to the Su- preme Court, under Chap. 86, Sec. 8 G. S., Sub. 6, it not being a, final order in a special proceeding, nor under any statute. MeNa- mara v. Minnesota Qentral B. Go., 12 Minn. 388. 601. Pleadings, order overruling or sustaining'dcmurrer. An order of the Dis- trict Court, overruling or sustaining a de- murrer, is not an appealable order, but a judgment which must be pei'fected before an appeal lies. Owmmings s. Heard, 2 Minn. 34. 602. order refusing permission to amend. An order refusing permission to amend a pleadiug.is not appealable,lt being discretionary with the the court. Decisions on matters of discretion are not review- able, except in cases of manifest abuse or express statute, and tlien only by writ of error or an appeal from the judgment. Fowler et al. v. Atkinson, 5 Minn. 505. 603. order allowing supplemental complaint, and refusing to dismiss garni- shee. An order allowing a supplemental complaint, under Sec. 13, of the garnishee act of 1860, nor an order denj'ing a mo- tion to dismiss a garnisliee, on the ground that the affidavit on whicli the garnishee summons issued, does not state in what capacity the garnishee is sought to be charged ; whether as debtor or possessor of money, property, or effects, are not appeal- able, under Sec. 11, Comp. St., p. 631. Prince o. Hendy, 5 Minn. 347. 604. order striking out portions of an amended answer. No appeal lies from an order strilsing out portions of an amend- ed answer, where the same was ''irrelevant, redundant, not in conformity witli tlie stat- utes, as containing the evidence of facts, and not the allegations of material facts, and as having been in substance previous- ly struck out of defendant's answer, on motion," where no abuse of discretion on the part of the court is sliown, as by strilc- ing out facts constituting meritorious de- fense, and well pleaded; and even where such facts are struolc out, if they are so min- gled with immaterial allegations as to make it difficult, if not impossible, to sepa- rate them and leave an intelligible answer. Brishin et al. v. American Express Co., 15 Minn. 43. 605. order denying motion for judg- ment on the pleadings, for insufficiency of facts, etc. No appeal lies from an order denying a motion for judgment on the pleadings, on the ground that the com- plaint does not state facts sufficient to con- stitute a cause of action, under Sec. 8, Chap. 86, G. S. An order from which an appeal lies under this clause of the statute, must be decisive of the questions involved, or of some strictly legal right of the party appealing — in this case the party was not prejudiced from raising the point at a sub- sequent stage of the proceedings. McMa- hon -0. Davidson, impleaded, etc., 12 Minn. 357. 606, Proceedings supplemental to ex- ecution. In proceedings supplementary to execution, neither an order requiring de- fendant to appear and answer, or an order 360 PRACTICE. directing a referee to take the answer, are appealable orders, under Sec, 11, Chap. 71, Coinp. St., p. 621-3, sub. div. 6. Rondeau V. Beaumette, 4 Minn. 224. j. W/iMt is reviewable. 607. Ne»T trial, order refa.sing:, will be reviewed, thongh judgrment below has been entered, if the ease properly presents it. Under Sec. 7, Comp. St., p. 621, on an appeal from judgment, the Supreme Court will review an order refusing a new trial, where the record contains all that is necessary for that purpose — although judg- ment has been entered below. If the case on which the motion for a new trial was made, is improperly of record motion to strike out would be proper, and not to dis- miss the appeal. Mower et al. v. Sanford et al, 6 Minn. 53). 60§. Exception, failure to take below. When evidence is excluded by the court, and no exception taken, it will be under- stood that the party acquiesces in the de- cision, and waives the evidence — and this, whether the error is assigned on a ease, or bill of exceptions. Roehlet al. v. Baasen, 8 Minn. 26. 609. Objection, failure to take below. An objection to a pleading as defective, must be made at the trial to be heai'd on appeal. Howland v. Fuller, 8 Minn. 50. 6 1 0. Referee's report direct, from the judgment. The report of a referee is sub- ject to review by the Supreme Court, on a direct appeal from the judgment rendered thereon, without the necessity of making an application to the court, out of which the reference issued for its revision or cor- rection through the medium of a new trial or otherwise, under our statutes.. Sec. 54, p. 564, Uomp. St. Cooper v. Breekenridge, 11 Minn. 341. 611. Harmless errors. An appellant can not object to evidence as hearsay, where the same was brought out by himself on cross-examination, though the same is mat- ter in chief. Shelley, et al. v. Lash, 14 Minn. 498. 612. Merits will be reviewed, though the judgment was for costs, instead of the usual form. Defendant entered juderaent for costs simply, when they were entitled to enter a judgment on tlie merits in the usual way. Held, the omission to insert in the judgment that the defendants go with- out daj', or words to that effect, does not affect the substantial rights of the plaintiff — it is a substantial compliance with the law (Sec. 107, Chap. 66, G. S.) and an ap- peal therefrom would authorize the appel- late court to review and adjudicate the merits of the case, as fully as if a formal judgment had been entered in the action. Tlie ^tna Insurance Go., v. Swift et al., 12 Minn. 437. k. Principles of determination. 613. Confined to the record. Ques- tions arising upon rulings of a referee, can not be examined on appeal to this court, unless strictly of record, or are pi-esented by case or bill of exceptions. Bazill v. Ullman, 2 Minn. 134. 614. Pleadings, sufficiency of. When plaintiff enters judgment by default below, an objection by the defendant on appeal that the complaint does not state facts suf- ficient to constitute a cause of action, will not be favored, especially when first made in the Supreme Court; such objection when originally made upon appeal, should be treated with less consideration than a mo- tion in arrest of judgment, and that is not allowed when the facts material were alleged or fairly inferable from what was alleged. Smith v. Dennett, 15 Minn. 81. 615. Judicial notice of transaction in the Supreme Court. The defense being "former suit," pending, it appeared that, March 26, 1866, issues of fact and 'law had been joined in said suit, the latter of which the plaintiff had carried, by appeal, to the Supreme Court, the former remaining undetermined in the District Court, when on said day the plaintiff discontinued the action in the latter court, no mandate or remittitur of the Supreme Court having PRACTICE. 361 been on file to show any determination of the issues In the latter court. The court below found that this discontinuance was prior to the commencement of this action, and decided that said ' ' former suit," was not pending. Hdd, the court will take judicial notice that the issues in said former action had been determined, and were not pending therein, when this action was commenced, and consequently uphold the decision of the court below. IVwrntori. v. Webb et al.. 13 Minn. 498. 616. Pi-esumptions as to correctness of instructions. When it is claimed by appellant,that his evidence had no tendency to prove the state of facts assumed by the instructions of the court, but there was evidence of the other part sufficient tj support the verdict, it can not be objected that the result showed the jury were mis- lead into such a belief; hence, not objec- tionable on that ground. If appellant feared any such misapprehension, he should have i-equested a more specific instruction, and on bill of exceptions which does- not purport to give the charge in full. It is to be presumed that other instructions, suffi- ciently explicit to prevent such misappre- hension, were in fact given. Connolly v. Davidson, et al., 15 Minn. 519. GVi. as to error. On bill of excep- tions, the appellant must show affirmative- ly, the existence of error, before he can be relieved. Day et al. v. Raguet et al., 14 Minn. 273. 618. Appeal from order g'rantirig' or refusing: new trial, examined as res nova. On appeal from an order granting or re- fusing a new trial, the question is present- ed to this court, and should be considered and determined as though the application was made here In the first place — the de- cision of the court below should not have the least influence upon the decision hei-e. Nothing is p'resumed in favor of the de- cision below, except, perhaps, when it is based upon oral testimony taken in open court. Brazil ». Moran et al., 8 Minn. 236. 619. Questions of fact under act of March 3, 1S55, concerning disputes be- 43 tween claimants to land, entered under town site act. In examining questions of fact under the act of March 3, 1855, the appellate court must pass upon all the questions and conclusions of fact as well as law, and make a Jinal disposition of the case, except where facts have been jjassed upon by a jury, when a new trial may be directed. Castner i). Echard, 6 Minn. 149; Oastner d. Lowry, 6 Minn. 149; Oastner v. Otinther, 6 Minn. 119. 620. On motion for new trial, opinion of judge as to sufficiency of the evidence to sustain the verdict, considered. On ap- peal from an order granting a new trial the opinion of the presiding judge upon the sufficiency of the evidence to justify a verdict, is entitled to great weight with the Supreme Court. If upon a careful perusal of the testimony, and upon mature reflec- tion, we feel satisfied that the preponder- ance of the evidence is manifestly and pal- pably in favor of the verdict, the order will be reversed. Hicks v. Stone et al., 13 Minn. 434. 621. Attaclunent, order vacating, where affidavits conflict. An appeal from an order vacating an attachment, will be sustained when the affidavits of both par- ties used on the motion conflict seriously, as to the facts, and nothing shows a mani- fest error in the decision of the court be- low. Blandy -o. Ragiiet, 14 Minn. 343. I. Relief granted. 622. After remittitur, no final judg- ment In this court. When an order of reversal has been made in the Supreme Court, and an order remanding the case to the District Court, at instance of the ap- pellant, it is too late for him to move this court for final judgment, on the ground of the decision having disposed of all the issues — the case is no longer in this court for action. Gerish <& Brewster d. Pratt & Bunker, 8 Minn. 106. 623. After an award of new trial, on snbsec[uent appeal from judgment, the latter was vacated. Where an appeal had 362 PRACTICE. been taken from an order denying a new trial, and a separate appeal from the judg- ment entered, after tiie order refusing a new trial, and the Supreme Court awarded a new trial, the judgment below and all subsequent proceedings were vacated. Minn. Valley B. B. Co. v. Doran, 15 Minn. 240. III. On Writ of Error. a. Who mvst bring. 624. All must join. All parties against whom judgment was rendered, must unite in bringing vyrit of error. Bdbcock <& Hol- linahead v. Sanborn & French, 3 Minn. 141. h. Time for suing out writ. 625. When it begins to run. The time to sue out a writ of error begins to run from the actual decision of the court that tries it, and not the perfecting that de- cision by record, and where a demurrer was overruled with leave to answer, the judgment was conditional, until the expi- ration of the time, after which it was con- summate — following Furlong v. Griffin et al., 3 Minn. 307. Haines v. Paxton, 5 Minn. 442. \ 626. In an action for equitable re- lief, the period in which a writ of error can be sued out, oommenceSjto run from the date of the decree determining the rights of the parties, although a reference is necessary to determine some incidental matters— following Furlong v. Griffin et. al., 3 Minn. 207. Ayer v. Termatt, 8 Minn. 96. c. Effect of the writ. 627. Stays furtlier proceeding's. Un- der Sec. 25, pp. 623-4, Comp. St., the issu- ing a writ of error, filing bond and ser- vice of clerk's certificate on the sherilf holding an execution, stays all further pro- ceedings, but does not annul what has been done, so as to require the officer to return property already levied upon. The North Western Express Co. v. Peter Landes, 6 Minn. 564. d. Papers on writ of error. 628. Wliat papers the writ brings up. A writ of error brings up only the record of the judgment in the court below, and that record — in the absence of a bill of ex- ceptions duly signed — consists only of the pleadings, verdict and judgment, and in case of judgment by default, the process and proceedings thereon, showing whether or not the court had jurisdiction. St. An- tlumy Mill. Oo. v. Vandall, 1 Minn. 350. 629. Bill of Exceptions. The only way to incorporate the evidence, or any part of it, into the record, so as to review on wi'it of error, the question of law aris- ing thereon, is by bill of exceptions, lb. e. When the writ lies. 630. Generally. Under Chap. 81, K. S., actions can be removed from the dis- trict court to the supreme court only by ap- peal or writ of error, and after final judg- ment, the party aggrieved may elect. If the grievance rests in an appealable ordei-, and not in a final judgment, it can only be reviewed by appeal. Ames i>. Boland et al., 1 Minn. 366. 631. Adjustment of costs by district judge. Although the statute has provided no means for reviewing the action of the clerk, in the matter of inserting costs in a judgment, still the party aggrieved may move to correct his acts in court, and the action of the district court in such a case can be reviewed on writ of error. An- drews V. Cresset/, 2 Minn. 74. 632. When judgment was obtained, without service of summons. When a judgment has been obtained against a de- fendant, over whom the court never had jurisdiction, by reason of failure to serve summons, a writ of error lies at his in- stance to reverse such judgment. Sullivan V. Lacrosse and Minnesota Steam Packet Co., 10 Minn. 386. 633. Judgment in default— defects in pleadings. Writ of error lies to this court from judgment on default, but not looked on with favor. When the defect is in the PRACTICE. 363 pleadings, it would seem reasonable that no objection could be made in this court, not demurrable under the old practice, or those specified in Sec. 65, p. 337, R. S. Karns v. Kunlde, 2 Minn. 316. 634. Judgment on default. Writ of error lies to a judgment entered on default — following Karns ». Kunkle, 3 Minn. 313. Kennedy v. William'^, 11 Minn. 314. 635. All final judgments. A party noticing a motion may, if his opponent make default, take his order, but he takes it at his peril, and must see to it, that liis proceedings are regular, and that he takes no more than he is entitled to by the record or practice. If the judgment is final, and not sustained by the record, a writ of error lies. Farrington v. Wright, 1 Minn. 244. 636. The case of Moody v. Perkins, 1 Minn. 401, which decides that all final judgments may be removed to this court by writ of error, is doubtless the proper con- struction of Sec. 2, Ch. 81, R. S. Karns v. Kunkle, 2 Minn. 313. 637. A writ of error will lie to any final judgment, whether in an equitable or legal action. Kent v. Chalfant, 7 Minn. 487. /. When the writ does not lie. 638. Does not lie to an order. Writ of error does not lie, under the statute (Sec. 2, p. 621, Comp. St., and Sec. 22, p. 623, lb. ), to bring up an order, but a judgment, and Is limited to one year after rendition. An order can be reviewed only on appeal. Gerish & Brewster v. Johnson, 5 Minn. 23. 639. An order striking' ont a demur- rer to a reply, cannot be reviewed on writ of error — following Colt v. Waples ct al., 1 Minn. 134. Wakefield v. Speneer, 8 Minn. 376. 640. Court Commissioner. Writ of error will not lie direct from this court to a court commissioner. Relief against his acts must be first sought in the district court. Oere v. Weed ei oH,., 3 Minn. 352. 641. New trial, motion for. The de- cision of the district court, on a motion for a new trial, cannot be reviewed on error. Coit u. V/apleset al., 1 Minn. 134. 642. Order dismissing an action. Writ of error does not lie from an order of the district court, dismissing an action on motion of plaintiff, in behalf of either plaintiff or defendant. Fallmans v. Gil- man, 1 Minn. 182. 643. To review the clerk's assess- ment of damages. An error in assessment of plaintifl''s damages, on default by the clerk, cannot be reviewed in the first in- stance by this court on writ of error. Emmett C. J., dissenting in each case. Milwain i). Sanford, 3 Minn. 175; Wil- lougKby & Powers v. Stanton, Sheldon & Co., 3 Minn. 150; Slaughter v. Nininger, 3 Minn. 150. 644. After an appeal. After an ap- peal from the judgment, no writ of error in the same action can be allowed. Hum- phreys et al. V. Havens et al., 9 Minn. 318. g. What is reviewable. 643. Discretionary matters. Length of time a jury shall be kept out, is a matter for the discretion of the court, and cannot be reviewed on error. Coit v. Waples et al., 1 Minn. 134. 646. The statement in Fowler ». At- kinson, 5 Minn. 505, that an abuse of dis- cretion may be reviewed by writ of error, was inadvertently made. Such error can only be reached by appeal from the judg- ment. Fowler et al. v. Atkinson, 6 Minn. 578. 647. Error of fact, as well as of law, may be considei'ed on a writ of error. Snow V. Hardy, 3 Minn. 77. 648. Referee's report. On a writ of error, this court cannot review the findings of a referee on questions of fact. Brain- ard 11. Hastings, 3 Minn. 45. 649. 5o exception taken below. When a party moved for judgment on the pleadings (defendant), and the motion was denied, but he took no exception to such ruling, the sufficiency of the complaint, as stating a cause of action, cannot be exam- 364 PRACTICE. ined into, in the supreme court, on a writ of error; nor, if he has permitted a. good cause of action to be proved without ob- jection, wlien on proper exceptions it could not have been established, can he reverse the judgment on wilt of error. The City of St. Paul V. Kuby, 8 Minn. 154. 650. Excessiveness of dainagres. On writ of error, the evidence not being- brought up, no question can be entertain- ed as to the excessiveness of damages lb. 651. The admission of testimony ir- relevant, and concerning matters not in issue, without objection at the time, will not be corrected on a writ of error. Du- foU V. Gorman, 1 Minn. 308. 652. A defendant, by not objecting to the competency of evidence oflfoed on the trial of the cause, may allow the plalntiiT to cure many defects, which exist in his pleadings, and a verdict rendered, upon sufHoient evidence so received, will not be disturbed on writ of error, if the complaint alone will sustain the verdict. Daniels v. Winslow, 2 Minn. 117. h. Belief granted. 653. Costs in court below. Defend- ants below, could not, on a writ of error, obtain judgment for costs in the court be- low; that could only be done by motion to that 'court, and if refused, by appeal or mandamus, from this court. Pallmans v. Oilman, 1 Minn. 182. i. Dismissal of tlie writ. .654. When tlie order for judgement had been reversed, writ from snch judg- ment dismissed. A wiit of error brought to review a judgment, entered in accord- ance with an order of the District Court, which order had been declared to be erron- eous by this court, will be dismissed with costs. Hawke v. Deuel, 2 Minn. .58. 655. Writ of error from judgement, after an appeal. Writ of error from a judgment against appellant, entered by the clerk of the court, under order of the court. on motion of appellant, will be dismissed, the court having no power to make the order. Frazer v. Sherrard, 6 Minn. 576. 656. Want of ten days' notice. Where a party fails to notify his adversary of the suing out of a writ of error, within ten days, as required by Rule 33, p. 7, 2 Minn, the writ will be dismissed, unless he shows some reasonable excuse, and ignoi- ance is not such excuse. Baker v. Terrell et al., 8 Minn. 195. 1 7. Motions. 657. The notice, form, and contents. Where application for relief, concerning which the court is always open, and which is exclusively within the jurisdiction of a court, is noticed as before the jvdge of the proper court, it will be held sufficient, in the absence of special circumstances creat- ing an exception. Yah v. Edgerton, 11 Minn. 271. 658. An order to show cause in a matter exclusively within the jurisdiction of a court, cited the defendant "before the Hon. , Judge of the District Court, for Ramsey County, at his chambers, etc." Hdd, the judge's chambers being mention- ed as the place of hearing, does not char- acterize the business as chamber business, for the court may be held there, and In the absence of surprise or injury, it is suffi- cient, lb. 659. Time and place of hearing sliould be indicated. In ordinary motions the judge should be applied to for the ap- pointment of date and place of hearing, unless it is to be made in term time; and although an order to show cause shortens the time, still, the time and place of hear- ing, should be indicated. Marty v. Aid, 5 Minn. 27. 660. in an adjoining district. Where a motion is made in a district ad- joining the district in which the action is pending, under Sec. 4, Chap. 67, laws 1867, it is not necessary to the jurisdiction, that the moving papers show that the place of hearing is not farther from the county PRACTICE. 865 seat of the county in which the action is pending, than is the residence of the judge of the district, in which the action is pend- ing, nor that the motion is made in time. The motion, although addressed to the judge, must be held to mean the court, and its jurisdiction is presumed. Johniton v. Higgins, 15 Minn. 486. 661. Appefirance at the hearing, waives irregularities. Notice of motion was served for 1 o'clock p. m., an order to show cause in the same matter was served, also tlie copy served, placing the time at 10 o'clooU A. M., the original being 10 o'cloclt p. M. Hdd, that the opposite attorney might have returned the notice as irregu- lar, (viewing the two papers as separate applications) as no time had been appoints ed by the judge forbearing, under Sec. 44, Comp. St., 582 — following Smith w. Mulli- ken, 3 Minn. 319 — and had the right to re- gard the order as the only one he was bound to notice ; but he could not 'attend at the time and place, hear all the papers read, and the motion made, and re- main silent, making no objection, nor call- ing the attention of the court to the error — without waiving all irregularity. Whether he could have retained the mo- tion papers, and disregarded the notice by not attending, Query? Marty », Ahl, 5 Minn. 27. 662. Evidence, additional, contrary to stipniation. Where a stipulation has been entered into by attorneys to submit a mo- tion on certain affidavits and other papers, it is error to allow additional papers to be submitted, while the stipulation is in force. Slmw V. Henderson, 7 Minn. 480. 663. supplemental. After a motion has been signed and submitted, it is error for either party, without leave of court, or oppoi-tunity to the other side to be beard thereon, to submit supplemental proof by way of additional affidavits. DionneU et al. V. Warden etcd., 6 Minn. 387. 664. affidavits always competent. On motions, the court only needs to be ad- vised of the facts, upon which the ques- tions arise, and affidavits of parties familiar with them, arc always competent evidence, as well as exemplifications or sworn copies, duly compared. Sherrerd v. Frazer et al., 6 Minn. 572. 665. Relief granted. When a party in his notice of motion served on the oppo- site party, asks for specific relief, and for such other and further relief or order as may be just, the court may alfoi'd any re- lief compatiWe with the facts of the case, presented — provided the opposite party is not surprised, or deprived of being heard in ai'guraent or showing proofs, as to the further relief granted. Landis v. Olds et al., 9 Minn. 90. 666. Second application on same facts. When a motion is once denied, for any cause, technical, or on the merits, the de- feated party must obtain leave from the court before he can renew it upon the same state of facts. Irvine v. Meyers & Co., 6 Minn. 558. 667. The rule laid down in Irvine v. Meyers & Co., G Minn., p. 558, requiring leave to be granted from the court or judge before a motion for same relief, and on same state of facts, can be renewed, is ob- served by obtaining an order to show cause, and accomplishes the same object, namely, to protect the judge from being harrassed with motions for same relief, on same grounds, without his consent. The order to sliow cause implies his consent. Goodrich et al., v. Hopkins et al., 10 Minn. 163. 1 8. Orders. 668. Orders to show cause, form and contents. Orders to show cause why a motion referred to should not be heard at the time and place appointed, and less than eight daj'S, may be made to fix the time and place as well as any other; but the better practice is for the order to contain all the requisites of the notice, and take the place of it altogether, or the moving papers contain all the facts, grounds of motion, papers to be read, etc., sufficient to enable tlie parties to prepare to oppose 366 PEACTICE. it. And tbe judge may fix time iind place of lieai-iiig:, ill one or two orders; and that in making sucli an order, it is the ex- ercise of chamber powers, i.e., as a judge, not as court; whether he signs it as couii or not, and such an order may be made for any part of tiie state. Marty v. AM, 5 Minn. 27. 669. ^time for hearing: discretionary with the Judge. A " case " Was proposed by[the plaintiff, within the time granted by an order of the court, and I'eturned by the other party for irregularities, whereupon the plaintiff obtained an order to show cause why the "case" should not be allow- ed, signed, and new trial granted thereon ; said order was made before the expiration of the time allowed for amendments, and was returnable after that time. Meld, the time for hearing the motion was discretion- ary with tlie Judge, and as the defendant had still opportunity of amendment, the error was not fatal. Phoenix et al. v. Qard- ner et al., 13 Minn. 394. 670. eight days' notice not neces- sary. An order to show cause may pro- vide that less than eight days' notice shall be given isrevious to tlie hearing ; Sec. 17, p. 627, Corap. St., applying only to mo- tions. Ooodrich & Terry v. Hopkins & Busy et al., 10 Minn. 162. 671. subject matter, not signature of Judge, determines whether he acts as a court or at chambers. An order to sliow cause during vatation at the clerk's office, before the Judge, " at a special term," to be held, etc., neither added to the powers of the judge, nor took away from them — he heai'd the motion as in chambers all the same — and this though he signed it as " By the court." Classification of orders must always be made on the subject matter, and not upon the name by which they have been designated by the Judge or attorney. Marty v. A7d, 5 Minn. 27. 672 an order setting aside a stipu- lation of dismissal, and reinstating cause on the calendar, an order of tlie court. An order setting aside a stipulation be- tween the attorney in a cause, whereby the plaintiff has dismissed his action, and paid the clerk's fees, reinstating the case upon the calendar, is one within the exclusive jurisdiction of a court, and an order of this kind, signed by the Jndge of a proper court, although the hearing may have been at chambers, will under our statute, in the absence of special circumstances, creating an exception, be considered an order of the Court. See Yale v. Edgerton, 11 Minn. 271. Rogers v. Greenwood, 14 .Minn. 333. 67S. Order granting partial relief to both parties, binds one, though the other appeals. An order extending time to an- swer, although contained in an order deny- ing defendant's motion to set aside the sum- mons, is binding on plaintiff, notwithstand- ing defendant appeals therefrom — and plaintiff cannot enter judgment by default until the expiration of that term. Yale v. Edgerton 11 Minn. 271. ii674. Service, entry, filing, etc. The service of an order of the court, over- ruling a demurrer, by copy on the attorney of the other party, before the same was filed, is, at most, an irregularity, and the defect was waived, by an admission of ser- vice. Under Sec. 326, Chap. G6, G. S., there is a wide distinction between an or- der and a direction for an order. If an or- der, the clerk, upon its being filed, must immediately pursue its terms ; if a direc- tion for an order, the order must be enter- ed by the clerk, and then followed. The ^tna Insurance Go. v. Swift et al., 12 Minn. 437. ig. Amendments. 675. Amending judgment roll— proof of service of summons. Where judgment on motion has been entered, and on mo- tion to vacate, it appeared that proof of ser- vice of answer was defective, the court had power, under Sec. 94, p. 544, Comp. St., to allow an amendment. DunweU et al. v. War- den etal., 6 Minn. 287. 676. pleading on the trial. After plaintiff had rested his case, defendant moved to dismiss on the ground that no de- PRACTICE. 367 mand or refusal had been alleged or prov- ed. Plaintiff then asked leave to amend his complaint, by inserting an averment of demand, and' introduce testimony to pr«ve the same, all of which the court granted. Held, court had power to permit such amendments at any time during pro- gress of trial, or receive further testimony — following Beaulieau ». Parsons, 2 Minn. 37 ; and Fowler et al. v. Atkinson, 5 Minn/ 505. Galdwell v. Bruggerman. S Minn. 286. 677. Amending prayer for relief. Courts have power to permit a party who prays for pecuniary damages, when from the facts alleged he is only entitled to eq- uitable relief, to amend his complaint so as to pray forand obtain tlie relief to wliicli the facts show him entitled, as where the orig- inal complaint prayed for money judgment, and the amended complaint prayed that land might be conveyed in execution of a trust. Holmes et al. v. Campbell, 12 Minn. 221. 678. Substituting different land. Plaintiff claimed to recover damages to " lots 7 and 8, in block 182," from defend- ant, and was allowed on the trial to amend by inserting in lieu of that description the following, viz.: "lots 9 and 10, in block 181," there being no change in character of the claim, nor any prejudice to the defend- ant. Bau V. The Minnesota Valley R. R. Co. 13 Minn. 442. 679. Conditional amendment. The question of amendments is placed entirely within the discretion of the court, by Sec. 89 and 90, Comp. St., p. 544, except in two cases specified in Sec. 89. Under this pro- vision, the court had power to require that as a condition, of allowing an amended answer, the defendant shall strike out one of two inconsistent defenses, and waive a written reply. Galdwell v. Bruggerman, 8 Minn. 286. 680. Request to amend. A request to " so amend the answer as to invoke the eq- uitable power of the court," is insufficient —the request must show the particulars In which it is desired to amend. Barker v. Walhridge, 14 Minn. 469. 681. o» appeal from justice's court. On appeal from the courts of Justices of the Peace, the District Courts, under Sec. 107, Chap. 65, G. S., as amended. Chap. 93, Laws 1868, have the same power to allow amendments, as though the case had been originally commenced in such courts. Bingham v. Stewart et al., 14 Minn. 214. 682. Amending, as against strangers. Under the lien law of 1855, (Session Laws 1855, p. 57, ) party entitled to a lien on land commenced suit by filing a complaint, without having filed notice of lien, or claiming any lien on the premises, obtained judgment, and after entry of judgment, moved for permission to amend his com- complaint by adding to the prayer for re- lief a request that the judgment be decreed a lien on the premises. Meld, that supposing a complaint was all the notice required by the statute, yet ;it was insufficient in not claiming a lien on the property, and speci- fying whether it was more than "one acre within city limits," or " 40 acres outside of city limits, etc.,'' and the property having been sold, it was too late to create a lien on it in the hands of an innocent purchaser. MoGarty v. Van JStten, 4 Minn. 461. 683. Service of order of amendment. It is not necessary that a party, who is al- lowed to amend his pleading, should first serve on the other party the order allowing an amendment. Holmes et al. v. Campbell, 12 Minn. 221. 684. A writ of replevin, void ab initio, is not amendable, under Sec. 105, Chap. 66, G. S. OasUe et al. v. Thomas et al., 16 Minn. 490. PRE-EMPTION. (See U. S. Land.) PRESUMPTION. (See Evidence, IV.) 368 PRINCIPAL AND SURETY. PRINCIPAL AND AGENT. (See Agency.) PRINCIPAL AND SURETY. I. When the Relation Exists. II. Liability of Sukety. III. SmiETY's Rights and Remedies. IV. Surety, how Discharged. V. Contkibution. (See Civil Action, XXI.) (See Pleadings, 62.) (See Limitation op Actions, 12.) (See Husband and Wipe, VII.) I. When the Relation Exists. 1. S. and B. both .applied to De'W. for a loan of $2,000, both receiving the f uads, it being distinctly agreed, between the three, that B. was to have one-half, while S. was to take the other half and give his individ- ual bond and mortgage for the whole debt, but that B. should pay one-half according to the terms of S.'s bond. B., on good consideration, afterwards promised De'W. and S. to pay one-half the debt. Held, that S. was surety for B. to the amount of one-half the debt ; and although the bond did not show it, that fact might be estab- lished by parol — that fact being collateral to the contract, and no part of it ; and the fact that S. and B. afterwards formed a copartnership and invested this money in partnership property, did not change their relation to De'W., and that S. could, under Sec. 35, Ch. 72, Cemp. St., compel B. to satisfy the debt to De'W., for which he was surety, the same not having been paid by B. MetZTier et al. v. Baldwin et al., 11 Minn. 150. II. Liability of Surety. 2. Surety bound by payment to cred- itor, of interest over legal rate. When a note is to draw interest from maturity at 4 per cent per month, and the maker pays any interest at that i-ate, a surety is bound by such payment. AUen'v. Jones, 8 Minn. 202. III. Surety's Rights and Reme- dies. 3. Surety, on requesting' principal to sue, must offer to .indemnify the latter. Under the code, a surety who has taken the^I steps that entitle hira to restrain the creditor from proceeding against him at law or equity, under the old system, may now avail himself of sucli acts as a defense to a civil action. But no such defense can be sustained unless it includes a request to sue the debtor, accompanied with an indemnity against loss the principal may thereby incur. Suey v. Pinney, 5 Minn. 310. 4. Equity will compel creditor to first sue debtor on being indemnilied. In equity, the relation of principal and surety casts a duty on the principal to ob- tain payment from the principal debtor, and not from the surety, unless the surety is unable to pay the debt, and will always protect the surety from any attempt by either the creditor or principal debtor, to deprive the suretj'^ of his right, and will interfere for good cause shown, and com- pel the creditor to sue the principal debtor before resorting to the surety — on condi- tion, always, that the surety shall indem- nify the creditor against loss from a fruit- less suit against the principal debtor. lb. 5. The request of a suretj'^ that the principal sue the debtor, need not be in vs^riting. lb. 6. Surety may and should sue the debtor to compel a settlement. Under Sec. 35, p. G20, Comp. St., it seems that a surety has the power to sue the principal and debtor to compel the latter to pay the former, and he should exercise that right, and not demand that the principal should do so for him. lb. PKINCIPAL AND SURETY, 369 7. Surety, on appeal bond, may avail himself of any defense the principal debtor may have. On the face of an ap- peal bond, it expressly appeared that R., the judgment debtor, was principal, and the defendants, L. and R., sureties; and the condition of the bond (as per statute) was, that "the appellant Rogers will pay," etc. Held, sureties liable only on default of Rogers, and whatever defense the latter had to the bond as, e. g., existing levy on property sufficient to satisfy the judgment — undisposed of — would inure to the bene- fit of the sureties. First National Bank of Hastings i>. Rogers et al., 13 Minn. 407. S. Surety, on appeal bond, may claim that judgment was satisfied when bond was executed. An appeal bond recited the judgment and appeal, and was condi- tioned on the payment by appellant, etc. In an action against sureties, Held, they are not estopped from claiming that the judgment was satistied at time of execu- tion of the bond — it being a " generality to be done'' within the rule that "if the condition to a bond contain u, generality to be done, the party shall not be estopped to say there was not any such thing, but in all cases where the condition of a bond has reference to a particular thing, the obligor shall be estopped to say there is no such thing," — the fact of judgment and appeal as recited not being disputed. lb. IV. Surety, how Discharged. 9. Belease, hy creditor, of security. If a creditor take a security from the prin- cipal debtor, sufficient to satisfy the debt, he does not hold it solely for his own ben- efit, but for tlie benefit of the surety also, and if he parts with it without communi- cation with the surety, or by his gross neg- ligence it is lost, that will operate, at least to the value of the security, to discharge the surety. Willis v. Davis, 3 Minn. 17. 10. D. brought an action against W. as second, and F. as first indorser, on a promissory note owned by D. It appeared that, after the note became due. P., the first 47 indorser, with knowledge and consent of D.. assigned to one Tates, property more than sufficient to pay the note, for the benefit of D., the holder. Tates accepted the trust and entered upon its discharge. After- wards, with D.'s consent, Yates re-assigned • the trust property to F., who then placed it beyond tlie reach of his creditors. This re-assignment to F. was without the con- sent or knowledge of W., the second en- dorser. Held, to discharge W. from all liability as surety. lb. 11. When a party recovei's judgment against .several defendants sustaining the relation of principal and surety, and levies upon property of the principal debtor suf- ficient to pay the judgment, and then re- leases the lev}', without consent of the otlier defendants, (accommodation endors- ers in this case,) whose liability is second- ary, it will operate as a satisfaction of the judgment against them. Moss v. PettingUe et al., 3 Minn. 217. 12. Any act of creditor, injurious to surety. If a creditor does any act injuri- ous to the surety, or inconsistent with his rights, or if he omits to do any act, when required by the surety, which his duty en- joins him to do, and the omission proves in- jurious to the surety, the latter will be dis- charged. That which "the duty of the creditor enjoins liim to do" refers to the duties which are imposed by law, and grow out of the relation of principal and surety. Hence, the payee of a promissory note is under no duty in law to see that the " note runs but a short time, in accordance with a verbal understanding," for the obligations arising from a written contract cannot be enlarged or lessened by parol. Huey v. Finney, 5 Minn. 310. 13. G., creditor of V., held as secur- ity a mortgage from plaintiff and V., of property owned by them as tenants in common ; also a bill of sale of V.'s stock of goods. Gr., without the knowledge or consent of plaintiff, released to ^. his bill of sale of the stock, which was more than sufficient to pay V.'s debt, and afterwards foreclosed the mortgage given 870 PROHIBITION, WRIT OP. by plaintiff and V., and bid it in for the amount of his claim. Held, plaintiJf was surety, and discharged by the surrender to V. of the bill of sale of the stock, and G.'s subsequent foreclosure of the mortgage as to the plaintiff's interest in the premises was void, and; he took no title; nor did D., his assignee, after filing of no- tice of lis pendens, and plaintiff, may bring this action to set the sale aside, after the sale as well as before. Misener v. Qould et al., 11 Minn. 166. 14. An agreement affecting the rights of a surety, so as to affect his discharge, must be valid and enf orcable at law. AUen V. Jones, 8 Minn. 202. 13. Acceptance of a note, payable at a future day. As between creditor and surety, it seems that the execution by the principal debtor, and the acceptance by the creditor, of a note payable at a future day, for and on account of the debt, would be prima facie a contract to extend the time of payment. Agnew v. Merritt et al., 10 Minn. 308. 16. Existence of sm-etyship being' un- known, an extension of time did not dis- charge tlie surety. The obligation resting on a creditor, not to extend time of pay- ment to the debtor, without surety's con- sent, depends upon a knowledge on the part of the creditor of such relation exist- ing: hence, where A. and wife made a joint note in favor of defendants, and se- cured the same by a mortgage on the wife's separate property, for money borrowed of defendants "for his individual use and benefit," (it not appearing that defendants knew that the money was for A.'s sole use) an extension of time to A. and wife, by defendants, will not release the wife's property from the lien of the mortgage; such notice will not be presumed, and must be proven. lb. V. Contribution. IT. When a surety, after paying the surety debt, obtained judgment against the principal debtor, and a garnishee; lost the judgment against the garnishee, but not against the debtor. Meld, he could not compel contribution from a, co-sure- ty, without showing that he could not col- lect the judgment against the principal debtor. Schmidt v. Coulter, 6 Minn 493. 18. Whether a surety can claim con- tribution against his co-surety, without showing insolvency of the principal, when the co-surety is sued alone, without the joinder of the principal — doubted. lb. PROHIBITION, WRIT OF. 1. Office of the writ. Writs of prolu- bition only arrest proceedings, and are not the proper remedy for redressing illegal acts, performed prior to its being issued. Dayton et al. v. Paine et al., 13 Minn. 493. 2. The office of the writ of prohibi- tion is not to correct errors, or reverse ille- gal proceedings, but to prevent or restrain the usurpations of inferior tribunals or ju- dicial officers, and to compel them to ob- serve the limits of their jurisdiction, lb. 3. restrains judicial proceedings. only. The common law writ of prohibi- tion is usually issued to restrain courts from going beyond their jurisdiction, and is issued to the court and prosecuting party, commanding the former not to entertain, and the latter not to prosecute the action or proceeding. It is seldom granted to restrain the proceedings of other bodies or officers. Whether it were issued to another body or not, it is clear that it is only issued to restrain the exercise oi judicial powers — our statute confirms the use of the writ, but does not change the common law in respect to its use. Home Insurance Go. v. Flint, 13 Minn. 244. 4. Practice. At common law, the writ of prohibition is directed to the Judge and part iesof a suit in an inferior court, command- ing them to cease from the prosecution there- of. Our statute provides that the writ shall be served upon the court and party, or officer PKOHIBITION, WRIT OF. 371 to whom it is directed, etc. Hence, pei'haiis, tins remedy is allowed in this State, for the purpose of arresting the proceedings of an officer who is not acting strictly as a court; but if so, the office of the writ is, never- theless, only to restrain the exercise of ju- dicial powei'S. If the writ run to such an officer, he is required to malie a return thereto, upon which issue is joined ; and if it runs to a court and prosecuting party, a return is made by the court, the party as such not being required or permitted to make return. He may,^but need not, adopt the return of the court, and whether he does or not, the question to be determined is, whether the court is to be restrained. The party is only restrained from moving the court to do the prohibited acts, and therefore, as a matter of course, unless it i« determined that the court shall be restrain- ed, he cannot be. His acts in prosecuting the suit are the only subject of inquiry in such proceeding, for the writ only arrests judicial acts, and what he does, or threat- ens to do, except in moving the court in the prohibited direction, is immaterial. Dayton et aX. 11. Pains et al., 13 Minn. 493. 5. The writ of prohibition will only issue fi-om this court in the first instance as an order to show cause, to which a return may be made, and the return controverted by affi.davits as in other motions. Prignitz V. Fischer, 4 Minn. 366. 6. The mere fact that a motion has been noticed before a court commis- sioner, in a matter over which he has no jurisdiction, will not authorize this court in granting a writ of prohibition— it must appear that he is about to proceed to hear the motion, by setting out some acts or de- clarations showing such an intention. lb. t. The law of March 9, 1867, regulating insurance companies, requires the county attorney "to examine into the financial condition of such company, and if, in his opinion, such company does not possess the amount of capital or assets on hand, accord- ing to the requirements of law, or in other material things is not complying with the law, he shall so certify to the State Treasur- er." Held, the duties thus imposed upon the county attorney are not judicial, and cannot be restrained by writ of prohibition. Some Insurance Co. v. Flint, 13 Minn. 244. PROMISSORY NOTES. (See Notes and Bills.') PROTEST. (See JsloxES and Bills, IX.) PROVOCATION. (See Criminal Law, 48.) PUBLIC PRINTING. 1. , do The Gen. Laws of 1856, p.- 24, Sec. not include the printing of the de- bates, etc., of the constitutional convention of 1857. Goodrich v. Moore, 2 Minn. 65. PUBLICATION OF NOTICE OF SCHOOL MEETING. (See Evidence, 154.) PURCHASER PENDENTE LITE. (See Judicial Sales, 8.) 1. A 'pnrdh&ser pendente lite is bound by the proceedings in the action, though it was prosecuted to judgment in the name of 372 RAILROADS. the assignor, and cannot deny the existence of any of the facts upon which the decree was based. Rogers o. Hohjoke, 14 Minn. 220. QUANTUM MERUIT. (See Evidence, 177.) (See Civil Action, IX, 5.) QUIT-CLAIM DEED. (See Deeds, X.) I. II. III. RAILROADS. Generally. Duties and Liabilities to Own- er OP Cattle, Killed on Its Track. Compensation to be Paid for Eight op Way, and Rules POB Determining the Same. (See Common Carriers.) (See Constitutional Law.) (See Corporations.) I. Generally. 1. Power of Legislature to establish police regulations. Sec. 4, Chap. 19, Laws of 186-3, and Sec. 4, Chap. 10, Laws of 1865, are mere police regulations concerning the Winona & St. P. R. R. Co., and valid as such. Winona & St. P. B. R. Go. v. Wald- ron et al., 11 Minn. 51.5. 2. Construction of charter as to loca- tion of route. Railroad ] charters that do not directly express the contrary, must be taken to allow the exercise of such discre- tion in the location of the route, as is inci- dent to an ordinary practical survey of the same, made with reference to the nature of the country to be passed over, and the ob- stacles to be encountered or avoided. South- ern Minn. JR. E. Co. v. Stoddard, 6 Minn. 150. 3. What is " any other road," where a whistle is to be blown or be.Il rung ? Sec. 24, of the charter of the First Div. of the St. Paul & P. R. R. Co., requiring a bell to be rung, or whistle blown where their road crosses "any other road," relates to highways or public thoroughfares. Locke V. First Div. St. Paul & P. B. R. Go., 15 Minn. 350. II. Duties and Liabilities to Owner of Cattle, Killed ON its Track. 4. Failure to ring bell, etc., at cross- ing, not negligence, as to cattle wrongful- ly on the track. Where plaintiff's cow was killed by defendant's passing train, while standing on a road which crossed the railroad, at which the defendants were bound to ring a bell or blow a whistle, but failed to do either ; still, the cow being wrongfully there, defendants are not liable, unless, after discovering her peril, the de- fendants could have avoided striking her. Ih. 5. Company bound to use resonable care only, as towards animals wrongfully on its track. If domestic animals are on the track of a railroad, by the fault of the v owner, such owner takes all reasonable risk of their being injured. The railroad company however, are not on that account authorized to Injure them wilfully, or care- lessly. Even ill driving off animals tress- passing upon one's land, reasonable care must be used. The company in such case is bound to use reasonable care to avoid in- juring them, and may not carelessly run over them, though they are not bound to presume they are on the track, but finding them on the track, the company should make such efforts as a prudent man would, if he owned both train and cattle, properly regarding both train and cattle. lb. RAILROADS. B73 6. The engineer is under no duty to the owner of cow, wrongfully on track, to look ahead. Where plaintiff's cow, hein^ wrongfully on defendants' track, was kill- ed by a passing train, and the openness of the country rendered it practicable to have avoided the injury, had the engineer been on the lookout, still the engineer was not bound to presume the cow would be there, but might presume the plaintiff would keep her at home where she belonged, and he owed no duty to plaintiff to look ahead to see where his cow was, and while his duty to the passengers would have required him to be watchful against damage to them, still with that obligation and its extent, plain- tiff is not concerned. lb. 7. Absence of fence does not increase the degree of care required of a road, as to cattle wrongfully on its track. A rail- road that has hot fenced its track, nor is required by law to fence it, is not, on that account, as against cattle unlawfully on its track, to be held to greater care than though its track was fenced. lb. §. Presumption as to engineer looking ahead. When plaintiff's cow was killed by defendants' passing train, supposing it was the duty of the engineer, as toward plaintiff, to look out for the cow, the pre- sumption is that he did look out, and saw whatever there was to be seen ; and if the facts show that he could have seen her sixty rods from where she was found dead, it only tends to prove that the engineer must have seen the cow at sixty rods off, during all the time that he was passing over that distance, either on the track or coming towards it, and almost upon it — if she was there, but it is as likely that she did not start towards the track, till the train was so near that collision was inevitable. lb. 9. Owner of cow, wrongfully on track, has the onus of proving carelessnes after the cow was discovered— such killing no proof of negligence. Plaintiff allowed his cow to go at large, at a season of the year when the law, both common and statutory, forbade him to do so, in consequence of which she went upon defendants' trnok, and was killed by defendants' cai's. Held, the burden on plaintiff to show a killing, bv careless management of the train, after those in charge had discovei'ed her peril, that is, an omission on part of defendants to do something to avoid striking her, which they might prudently have done with reference to the safety of the train, ai well as the cow, and which, if done, would have been effectual to prevent the collision, for if not practicable by any prudent ef- fort to avoid striking her, there was no carelessness in omitting it. That the train killed the cow had in this case, she being there through plaintiif 's fault, no tendency to prove any carelessness in defendants. lb. 10. Company ones no duty tpwards owner of cow, wrongfully on its track as to the management and speed of its train, except reasonable care after discovering her. The owner of an animal who has not kept it within his own enclosure, when he might have done so with proper care, can not require a railroad company to reg- ulate the management and speed of the train, with reference to such animals, com- ing upon its track; and the burden of proof is on him to show that the train was carelessly managed, after the peril of the animal was discovered. lb. III. Compensation to be Paid for Right of Way, and Rules for Determining the Same. 11. Owner of land not absolutely en- titled to value of strip taken, in money. In determining the compensation due to a person for land taken by a railroad corpor- ation, the owner is not entitled under all circumstances to compensation in money for the actual value of the land taken. The damages sustained are a unit, and comprise the value of the land and result- ing injuries, and against their aggregate amount is to be recouped the benefits ac- cruing to the owner, although those bene- fits should be the full amount of the ag- 374 RAILROADS. gregate damage he liad sustained. Wil- son, C. J., dissents. Winona and St. P. B. R. Oo; V. Waldron ei al., 11 Minn. 515. 12. Value per acre, of strip taken at time of taliin^, and the eifect upon tlie whole farm to be estimated. In arriving at the compensation which should be paid for the appropriation of land for the pur- pose of a railroad, the payment of the value of the strip taken by the acre, and by itself, is not sutBoient ; to that must be added the effect of tlie appropriation on the whole farm — hence, it is necessary to ascertain the limits of the farm — also the additional expense rendered necessarv for fencing jjurposes, and the value of the strip taken must be at the time of the assessment, not .at the time of occupation by the railroad. Winona and St. Peter P. B. Co., V. Denman et al., 10 Minn. 267. 13. General benefits shared by the owner, in common with the neighboi'liood, not to be considered. In ascertaining the "compensation" or damages to which the owner of land is entitled from a railroad for land taken by them — in the absence of statutory provision — ^general benefits aris- ing from the construction or operation of the railroad, shared by the owner in com- mon with the wiiole country in his vicin- ity, and not peculiar to him or otlier lands not actually crossed by the road, can not be considered, e. g., such benefits as he would receive if the railroad was construct- ed through the country, but not crossing his farm. So, if the farm would sell for as much with the road constructed through it, less the mlue of the* land actually taken, as it would bring if the road ran through the country but not crossing this farm, then the owner has sustained no damages whatever; if it will not sell for as much, the reduction in the market value of the lands not taken is the measure of the owner's damages. Winona and St. P. B. B. Go., V. Waldron et al., 11 Minn. 515. It. Cost of constructing additional fencing to be considered. In the absence of different statutory legislation, where a railroad company passes through improved lands, the cost of constructing additional fencing, rendered necessary by the road is a proper element of damage to the owner of the land taken, in invitum. for the pur- poses of the road. But when the com- pany, whether as a condition or limitation of its right to take land for its road, or as a police i-egulation, is required by statute to construct such fences, the damages for taking the land, should be assessed upon the basis of the construction of such fen- ces by the company, in accordance with the statutory requisition. lb. 15. In determining the "compensa- tion " to which the owner of land taken by a railroad is entitled, it is proper to ask a witness "in what manner the road runs through the land, and in what manner Is the^market value of the farm injured by the road.'" lb. 16. In arriving at the "compensation" to which the owner of land is entitled by reason of the same having been taken for railroad purposes it is competent to show the "market value per acre of the land" at the time it was taken, following Winona and St. Peter E. R. Co., v. Denman, 10 Minn. 3G7. lb. 17. The rule for arriving at the "com- pensation" due the owner of land taken for railroad purposes, as laid down in Winona and St. Peter R. R. Co., v. Wald- ron, 11 Minn. 538, followed and applied in Tlie Minnesota Central B. B. Co., v. MeNa- mara, 13 Minn. SOgf. IS. Owner can not prove damages to a distinct farm, through which the road does not rnn. When on the trial of an appeal from the report of coramissionei-s, the owner Introduces evidence of title and damages to land not embraced in the peti- tion or report, and the testimony shows beyond a reasonable doubt, that the land in the petition and report, and the other land do not constitute together one farm, but two distinct farms, the court should instruct the jury to consider them as two distinct and separate farms. Minn. Valley B. B. Co., v. Doran, 15 Minn. 230. 1 9. What constitutes a distinct farm. RAILROADS. 375 For a statement of facts which were held to show that two pieces of laud owned by the same person, and adjoining, were not one farm, so as to make a railroad com- pany take notice of damages sustained by both such pieces, by reason of the road passing through one of said pieces, where no special notice of a claim for damages to both pieces had been given by the owner, and but one of the pieces had been Includ- ed in the petition for the appointment of eommlsloners, see lb. 20. When the commissioners, and court on appeal, will not be confined to estimat- ing damages to land embraced in the pe- tition. In ijrocedlngs to assess damages to land taken for railroad purposes, neither the commissioners, nor the court, upon an appeal from the commissioners, are neces- sarily restricted to the lands described in the petition; but where the lands described in the petition are but a part of a compact tract of laud, actually used as one farm, and all owned by the same person, under such petition damages may be assessed to the whole tract; (following W. and St. P. B.. E., V. Denman, 10 Minn. 267,) but if the owner has two or more distinct and separate but adjoining farms, through one of which railroad passes, the company need not take notice of damages to those distinct but adjoining farms through which the road does not pass (supposing a liabllty for any such damages,) nor In the absence of specific notice that the owner claimed damages for any alleged injury thereto; but, the company, when it makes application, is bound to take notice of and meet a claim for damages to the whole farm, whether it described the whole farm in the petition by government subdivision or not. lb. 21. On the trial of an appeal from the award of commissioners to assess damages for land taken for a railroad, under Chap. 34, Title 1, G. S., it is error to ask a wit- ness to "state what, if anything, less the property was worth at the time of the award, with the road located over it as ap- pears on the map, than it would be worth with the road running near the jiroperty, but not upon it," because it suggests the wrong rule of damages, — the owner is not entitled to have the value of his land first enhanced by general benefits conferred by the road before the damages occasioned are deducted. Garli v. Tlie Stillwater and St. Paul B. B. Co., TO Minn. 260. 22. Greneral benefits from road. In estimating the damages to land taken by a railroad company, under Chap. 34, Title 1, G. S., the value of the land at the time it Is taken, must be determined irrespective of any general benefits resulting to the land from the construction of the proi:.osed road. lb. 23. On the trial of an appeal from an award of commissioners appointed to assess damages for land taken for a rail- road, under Chap. 34, Title 1, G. S., the jury must not estimate the value of the land taken upon the hypothesis that the railroad Is located near, and not upon, the property, lb. 24. Constitutionality of law authoriz- ing commissioners. An act of the Legis- lature which allows commissioners to be appointed to appraise damages to lands taken by a railroad on an application or notice, In which the lands to be taken are referred to as being in the line of a desig- nated division or part of the company's railroad or branches, without requiring a particular description of the lands, or a statement for what specific uses the same are to be taken, or designation by name of the owner of the land is constitutional. Wilkin et al., v. The First Div. St. Paul and P. B. B. Go., 16 Minn. 271. 25. Application for appointment of commissioners, contents. Sec. 13 of the charter of Minn, and Pacific R. K. Co., (Chap. 1, Ex. Ses. Laws 1857,) provides that on the performance of certain acts, the company may apply for the appoint- ment of commissioners "to make an ap- praisal and award of the value of any and all lands, which are the private property of any person on the line of said railroad, and branches, or any division, or part 376 RAILROADS. thereof, which shall he designated in such application, and which the said company shall have entered upon, possessed, occu- pied, or used, or which it mai/ thereafter enter upon, take possess, occupy, or use for any of the purposes for which, by this act, the said company is authorized to enter upon, etc.," and requires notice of its in- tention so to apply to be given by publica- tion ; and upon affidavit of publication the court or judge shall appoint commissioners " who shall have cognizance of all cases arising on tlie line or route of said rail- road, and branch, or any division or part thereof, ichieh shall be designated by such company, in such application," and then re- quires the commissioners to give notice to the owner. Held, an application and notice thereunder in which the lands to be taljen are referred to as being on the line of a designated division or part of said com- pany's road or branches, is sufficient, it need not particularly describe said lands, nor state for what specilic use the same arc to be taken or held, nor designate the owner's name. lb. 26. Proof of claimant's title. Where the petition of a company, for the appoint- ment of commissioners to assess damages for land taken for a a railroad, described the land to be appropriated for the use of the company with reasonable certainty, and alleged the ownership thereof to be in the claimant, sucli allegation is of ownership in fee, and w^here no issue is taken on such allegation of ownership, the question of title is not in issue, and on the trial of the appeal from the award of the commissioners in the District Court, the title to that portion of tlw land, need not be proved by the claimant. The St. Paul and Sioux Gity R. B. Go., v. Matthews, 16 Minn. 341. 27. Possession, when proof of title. Upon the trial of an appeal from the as- sessment of damages by commissioners, appointed to assess damages to a land own- er for land appropriated by the St. Paul & Sioux City R. B. Co., under its charter, where the owner claims damages not only for the land actually taken, but for injury to the remaining portion of his land by reason of such appropriation ; as to such remaining portion of the land, in such pro- ceeding, the company is in no better posi- tion than a stranger, and proof of actual possession of such remaining portion of land is prima facie evidence of title in fee, as against the company. lb. 28. Title pending appeal — who may appeal— owner's grantee. The title to land taken by a railroad, under Chap. 34, Title 1, Gr. S., does not vest in the railroad company, until the time for an appeal from the award of commissioners lias ex- pired without such appeal, but remains in the original owner; and the grantee in a quit-claim deed from the original owner, executed and delivered after such award, and within the time allowed for an appe.al, takes the title, and, as an incident to such ownership, the right to the damages sus- tained by such property, and may appeal from the award of the commissioners with- in the time allowed bj' statute. Garli v. The Stillwater & St. Paul B. B. Go., 16 Minn. 260. 29. Ownership. The title to land ac- tually taken by the St. Paul and Sioux City R. R. Co., for its road, is, under its char- ter, to be determined by the court at the time of appointing the commissioners to assess damages, and is not a question for the commissioners to determine. The St. Paul & Sioux Gity B. R. Go. v. Matthews, 16 Minn. 341. 30. Judgment on appeal. On the trial of an appeal from the report of commis- sioners to assess damages under the charter of St. Paul and Sioux City R. R. Co., the verdict of the jury did not describe tlie land. Eisld, where an appeal has been taken from the report, the judgment is the only final determination of the rights of the parties — the general appeal supersedes the report of the commissioners — and the judgment, not the verdfct, passes the title ; and if in such case, from the petition and case settled, together with the verdict of the jury, a judgment may be entered RAPE— REDEMPTION. 377 clearly specifying the relief granted, tlie verdict is sufficient, lb. 31. Verdict of jury on appeal. For a state of facts appearing upon tlie record of a trial in the District Court, of an appeal from the report of commissioners appoint- ed to assess damages to land talten for rail- road purposes, which were held sufficient to sustain a verdict of the jury awarding a gross sum in damages, without describ- ing the land or referring to it, see lb. Sii. On appeal, no new questions to be passed upon by jury. An , appeal having been taken from an award of commission- ers for an unqualitied right of way talien by the railroad company, the attorney for the company, upon the trial, offered that it be made part of the decree to be entered in the case, that appellant (plaintiff) should have a perpetual right of way across the land taken by the company for its right of way, and tliat the company should build and perpetually maintain such crossing; and requested the court to charge the jury that such offer might be considered bj' them as affecting the amount of the compensa- tion for the land so talien. Held, the court properly i-efused so to charge, on the ground that the proposition was not within the subject matter of the appeal. Saher- medy v. Stillwater & St. Paul B. B. Go., 16 Minn. 506. RAPE. (See Cmmisal Law, 33.) RECISION OF CONTRACT. (See Contract, III.) (See Equity, III.) 48 RECORDS. (See Evidence, 178, et seq.) RECOGNIZANCE. (See Pleadings, 60.) 1. It Is only necessary, in a recogniz- ance taken by a judge of the Supreme Court, that it was taken in a case in which he might take a recognizance, and is con- ditioned to do some act for the perform- ance of which a recognizance may be taken. State v. Gram, 10 Minn. 39. 2. Where a recognizance failed to show that the accused had an examination be- foi-e the officer taking it, but does show that the defendant waived all objections to his captioujand detention, and asked to be admitted to bail — it is sufficient. lb. 3. A recognizance taken out of court cannot become a record until it is filed in the proper court, and it must be a record before it is a complete obligation. Hence, a complaint on a recognizance which fails to show that it was filed, is insufficient. lb. RECORDING LAWS. (See Notice.) (See Deeds, VI.) 1. The recording laws, Comp. St. 404, Sec. 54, make no distinction between con- veyances passing a title in law, and of an instrument raising an equity. Wilder et ai. V. Brooks et al., 10 Minn. 50. REDEMPTION. (See Mortgage, XII. p. ) 378 REFEKEE— REPLEVIN. REFEREE. (See Pbactice, — Trial hy Referee.) REGISTER OF DEEDS. (See Counties, VI.) REGENTS OF THE UNIVER- SITY OF MINNESOTA. 1. Public corporation — cannot make negotiable note— strangers have notice of their powers— title to lands in the State- liable to be sued. By Chap. 23, Corap. St., p. 350, the Board of Regents of the University of Minnesota are a public cor- poration for the purpose, among others, of erecting a University building. To ac- complish that purpose, they could not malie a negotiable promissory note, in a commercial sense, because they were re- stricted in their expenditures to the interest arising from the "Universit}^ Fund" pro- vided for in Sec. 2 of said act; whereas such paper is payable absolutely. All per- sons dealing with them are chargeable with knowledge of their powers. An ac- tion can be maintained against them on any contract they have power to enter into, but a judgment in such actions would bind only the fund upon the faith of which the credit was given. The title to the lands reserved by Congress for the " use and support of the University," and all prop- erty, real or personal, as well as the funds placed at their disposal, is in the State, and not in the Kegents. Regents of the Univer- sity of Minnesota v. Hart et al., 7 Minn. 61. (See Corporation.) RELEASE. (See Principal and Surety, 9.) REMOVAL OF CAUSES TO U. S. COURTS. (See Practice, II., 3.) 1. Whether a foreign corporation has a right to remove an action from a State court to a United States Court under the act of Congress, Chap. 196, passed at sec- ond session, 39(.h Congress, (14, Stat, at Large, 559,) McMillan, J., denies, and Wilson, C. J., doubts, and Berry, J., ad- mits, {i). Dodger. The Northwestern Union Packet Co., 13 Minn. 458. 2. If a corporation can remove a case from the State courts to the courts of the United States under Chap. 196, Law 2d Session, 39th Congress. (14, Stat, at Large, p. 559,) an affidavit of the Secretary there- of, stating that "it, the defendant, be- lieves," etc., in the absence of all proof of authority from the corporation to make the affidavit, is not a compliance witli the stat- ute, which requires "such citizen (of an- other State) to make and file an affidavit stating that he has reason to, and does be- lieve," per Wilson, C. J. McMillan, and Berry, J. J., dissent, lb. REPLEVIN BOND. (See Civil Action, VIII., 3.) REPLEVIN. (See Justice of the Peace, V.) (See Civil Action, XIII.) (See Practice, II, 6.) (See Pleadings, B., \IL, d., 9.^ (See Evidence.) (See Bonds.) , 1. Bona fide purchaser. Replevin in the cepit does not lie against a bona fide pur- chaser of property of one who was in pos- session, though having only a lien instead REPLY— SALE OF PEESONAL PROPERTY. 379 of tho general title. 1 Minn. 134. Ooit V. Waples et al., REPLY. (Sec PleA-Dings, B., IX.) RESULTING TRUST. (See Trusts and Trustees, IV.) REWARD. (See Sheriff, 39.) (See Office and Officer, VI.) SALARY. (See Office and Officer, 8.) SALE OF PERSONAL PROPER- TY. (See Evidence, 183.) 1. Warranty of title. Where a per- son in possession of personal property sells the same as his own, he impliedly warrants tlie title thereto, although the purchaser knew that the seller's title was derived through a chattel mortgage on the prop- erty, executed by a former owner; and if such former owner takes it from him hy virtue of a paramount title, he.has recourse to the sellei'. (In this case a '■^ fair price'" was paid.) Bavis et al. ». Smith, 7 Minn. 414. 2. Executory contract of sale. One F. entered into an agreement with M., by which the former "sells" all the logs cut during the season, (part of the logs were afterwards to be cut,) certain payment to be made down, but nothing showed it was actually made, nor had the logs been scaled so as to determine what amount was due, nor any delivery made. Held, an execu- tory contract of sale, and not a completed sale which passed the title. Martin v. Hurlburt et al., 9 Minn. 142. 3. Delivery of logs. To go upon a raft with the new owner, and mark the logs in each string with an axe, in his pres- ence and with his consent. MM, a suffi- cient delivery. Brewster v. Leith, 1 Minn. 56. 4. Sale by sample. To constitute a sale by sample, it must appear that the parties contracted solely in reference to the sample, or article exhibited, and that both mutually understood that they were deal- ing with the sample with an underetanding that the bulk was like it. Day et al. u. Raguet et al., 14 Minn. 273. 5. The answer set up as ground for recoupment, that certain liquor sold to de- fendant, by plaintiff, the price for which the action was brought, "was and should be (by contract) five per cent, better than a sample of whisky then and there shown to and examined by both parties, and should only be five below proof, and of as good quality in all other respects as said sample." Held, no sale by sample, and judge was correct in so instructing the jury, and refusing requests to charge upon the law of sale by sample, nothing to mis- lead the jury being shown, lb. 6. Warranty of quality. If the repre- sentations of a vendor as to the soundness of sheep were made for the purpose of in- ducing the plain tiif to purcliase, and did induce Mm to purchase, they amount to a warranty. Marsh v. Webber, 18 Minn. 109. 7. Fraud in sale. If a vendor of sheep, knowing them to be infected with a con- tagious distemper, sold them to the vendee, concealing the disease, {suppressio veri,) he was guilty of a fraud which made him re- sponsible for the damage. lb. 8. Deceit in sale. If a vendor of chat- 380 SCHOOL DISTRICTS. tels, at the time of sale and delivery to the vendee, knew the property (sheep) to he unsound — they heing, in fact, unsound — and told the vendee that they were sound, and the vendee did not know that they were unsound, the vendor will he liahle for deceit in tlie sale thereof. Ih. SCHOOL DISTRICTS. J. Generality. II. Power of the District. III. Power op the Trustees. IV. District Rbcords. V. Batipication op Unauthorized Contract. (See Notes and Bills, 9.) I. Generality. 1 . School districts are nnder tite con- trol of tlie Legislature. School districts being quasi corporations, are under the control of the Legislature. They may be changed and divided at the legislative will, and property transferred from one organi- zation to the other. Connor i>. Board of Education of the City of St. Anthony, 10 Minn. 439. 2. Cliang-e of name and mergei', does not aflfect existing creditors. " Sub- Dis- trict ]fo. Z, of the County of Anoka,'''' be- ing indebted to plaintiff, was changed (name) to ^^ Sub-District No. 2, of the Town of Anoka.'''' It was then "merged in Sub District No. 1," of same town, both con stituting the "Sub-District No. i. of the Town of Anoka." This latter corporation was changed (name). to "School District No. 1, of the County of Anoka,"— the de^ fendant. Eeld, the change of names did not affect the existence or character of the corporation, nor the rights of parties dealing with it, and the " merger" of Sub- district No. 2 in Sub-District No. 1, had the effect to preserve the existence of Sub- District No. 1, and incorporate No. 2 into it, together with all its rights and liabili- ties. Bobbins v. School District No. 1, Anoka County, 10 Minn. 340. 3. Merger, what is, and effect of. When the identity or separate existence of two or moi'e school districts is lost and absorbed in a new school district, created by the con- solidation, the latter taking all the proper- ty, real and personal, of tiie former, and territorial limits, and the purposes of the old and new being identical, while the corporation thus formed must be conceded to be a new creature, it is not distinct from tliose out of which it is formed, but must be regarded as a legislative merger of the old corporations into the new, by which the latter acquires all the rights and as- sumes all the liabilities of the former ; and not a dissolution of the old corporations, by which, in absence of statute, its person- ality escheats to the State, and its realty to the grantors or their heirs. Ih. II. Power of the District. 4. Amount it may expend for school- house. A school district, under Sub. Div. 4 and 5, Sec. 64, Comp. St., p, 358, may contract through its trustees (Sec. 70, Sub. Div. 4, p. 330, Comp. St.,) to build a school-house at a cost exceeding $600 (though the tax to be raised in any one year is restricted to that amount), and to postpone the payment of it to a future day, and contract for interest as the considera- tion of forbearance. lb. 5. A school district may (under the statute) determine on any amount they see proper for the erection of a school- house, though they are limited in the amount of tax they may levy in any one year to meet it; nor does the exercise of the authority to thus determine the amount, exhaust the power of the district; it is a general power in the corporation — follow- SCHOOL DISTEICTS. 381 iiig Eobbius v. Sthool District No. 1. Ano- ka County, 10 Minn. 340. Sanborn v. School District No. 10, Rice County, 11 Minn. 17. III. Power of Trustees. 6. No power to mate promissory notes. The trustees of a school district are not authorized, under Comp. St., Sec. 6, p. 358, to malve promissory notes; nor is such authority necessaiy for the purpose of carrying into effect the powers express- ly granted. School District v. Thompson, 5 Minn. 280. 7. Ne^otiablepaper of Trustees, g'iven on an acconnting, is valid as a contract of forbearance and promise to pay. "When tiie trustees of a school district have had an accounting with a party who has per- formed worlv and lalior for them in erect- ing a scliool-house, and given negotiable paper promising to pay the amount due at a future time, with Interest, such paper is valid between the parties as a contract for forbearance, and a promise to pay the amount specified, which will bind said trus- tees and their successors, and upon which suit may be brought against the district; but whether the trustees have power to ex- ecute negotiable paper, as such, we do not decide, and this whether the trustees are in possession of the particular fund out of which debt is payable or not — i.e., whether tax out of which such indebtedness is to be paid has been levied or collected, or not. Bobbins v. School District iVb. 1, Anoka County, 10 Minn. 340. §. No power to employ a teacher with- ont a certificate. The board of trustees of a school district, under Sees. 12 ' and 32, Chap. 36, G. S., liave no power to hire a teaclier before he has obtained- the requi- site certitioate of qualifloation, and a con- tract entered into by them with such teach- er is void. Jenness v. School District No. 1, Washington County, 12 Minn. 448. 9. No power, by promise, to take a debt of the district out of the statute of limitations. The trustees of a school dis- trict, under Sec. 70, Chap. 23, Comp. St., (Sub. Div. 4) have no power to make a promise or acknowledgment which will take a debt out of the statute of limita- tions, when the statute has run against it, at least, without express authority from the district, but that power rests in the dis- trict, and can be exercised by tlie inhabit- ants in meeting assembled. Sanborn v. School District No. 10, Rice County. 12 Minn. 17. 10. No power to mortgage real estate of the district. The trustees of a school district, under the statute, have no power, in the absence of authority from the dis- trict, to mortgage the real estate of the dis- trict; for the title is in the district, under Sub. Div. S, Sec. 64, Chap. 23, Comp. St. lb. IV. District Records. 11. Requisites as to showing previous determination of time and place of hold- ing annnal meeting. The record of an annual meeting of a school district, recited the fact that "pursuant to a notice previ- ously given in writing, agreeably to the provisions of statute, the legal voters of the school district, met," etc., but did not show that the time or place of holding this meeting had been tixed at any previous meeting. Held, the power of an annual or special meeting being the same, the re- cital of notice, as aforesaid, would sustain it as a special meeting, even though the time and place of meeting had not been determined at a previous annual meeting — ■ such previous determination was not nec- essary, under Sec. 57, Comp. St., p. 359. lb. V. Ratification of Unauthor- ized Contract. 12. District may ratify iinanthorized act of trustees. The unauthorized act of the trustees of a school district, can be val- idated by ratification on the part of the district. 1 b. 382 SCHOOL LANDS— SERVITUDES. 13. such ratification cannot be re- yoked. Where the trustees of a school dis- trict had exceeded their .luthority and in- curred an indebtedness for the benefit of the district, but for vvhioli they became personally liable, and the district, with a full knowledge of the facts, ratified the acts of the trustees, by which the indebt- edness was incurred on its behalf, the rights of the parties instantly changed — at least as between the district and trustees — and the former became solely liable, and the action ratif jdng the proceedings of the trustees could not be rescinded — Sub. Div. 6, Sec. 64, Chap. 23, Oomp. St.— not af- fecting vested rights of private parties. lb. SCHOOL LANDS. (See Husband and Wife, 8.) 1. Although the Act of Congress March 3d, 1849, reserving sections 16 and 36 with- in the Territory of Minnesota for school purposes, amounted to a dedication of those lands, still the the subsequent act of Marcli 3d, 1857, providing, that when any of such lands, prior to the survey, have been set- tled as required under the pre-emption law, the settlers may pre-empt the same, and the counties be allowed to talie other lands in lieu of them (said act being pass- ed at the request of the Legislature of the Territory, as per joint resolution Feb., 26 1856) operated to preclude the State from questioning the pre-emptor's title to such lands. State i>. Batchelder, 7 Minn. 121. SEARCH WARRANT. 1. A proceeding under the statute re- lating to search warrants, may perhaps, in some instances, be a substantive criminal proceeding, but is not necessarily so; it may be ancillary to the prosecution for larceny ; the facts nponvvhich the' warrant is issued maybe embraced in a separate com- plaint, and at a subsequent stage of the proceedings. Cole v. Curtis et al., 16 Minn. 182. SECRETARY OF WAR. 1. An Act of Congress, approved Feb- ruary 24, 1864, whicli provides that any person drafted, etc., may "furnish an ac- ceptable substitute, subject to such rules and regulations as may be prescribed by the Secretary of war," confers autliority on the Secretary to make rules concerning the disposition of bounty money, and all sub- ordinates acting under such orders act ofS.- cially, and are entitled to protection as such. Gales v. Thatcher, 11 Minn. 304. SEAL. (See Equity, 24.) (See Deeds, 4, 5.) SEDUCTION. (See Evidence, 217, et seq.) (See Damages, 45.) . SELF DEFENSE. (See Criminal Law, 49.) SERVITUDES. (See Easements.) SHERIFF. 383 SHERIFF. I. Liability. II. Duty in Claim and Dbliveky. III. Custody of Propbkty. IV. Right to Sue in Aid of Process. v. Liability to Suit op Third Per- sons, Claiming Property At- tached. VI. Sheriff's Sale. VII. Sheriff's Ebtukn. VIII. Sheriff's Deputy. IX. Sheriff's Fees. (See Etidbnce, 186.) (See Practice, II., 13.) I. Liability. 1. Misapplication of process. An officer, with a writ of attachment against A., levying upon the property of B., be- comes thereby a wrong-doer. Caldwell et al. V. Arnold, 8 Minn. 265. 2. Taking property on chattel mort- gage. At request of mortgagee, a deputy sherift' tooli from the mortgagor, property described in a chattel mortgage, and de- livered it to the mortgagee; afterwards the sheriff, on being informed by the deputy of what he had done, approved the latter's ac- tion, and took a bond from the mortgagee to lieep the property — both sheriff and deputy thinlting the taking iu the line of official duty. Held, the taking was a pri- vate, not official act, and the sheriff not liable ; nor did his refusal to deliver on de- mand make him liable, for the possession of the property was in the mortgagor. Dorr V. Micldey, 16 Minn. 20. II. Duty in Claim and Delivery. 3. In an action to recover specific prop- erty, the officer should retain the property three days ; but if he delivers the property to the plaintiff before the expiration of that time, and the defendant excepts to the sureties within that time, the error of the officer is thereby waived ; and a revocation of the notice of exception to sureties given after the three days have expired, will not destroy the waiver. Vanderburgh et al. v. Bassett, 4 Minn. 242. III. Cu.sTODY OF Property. 4. A sheriff cannot use property, which he has in his possession under a levy, for his own advantage. He can do nothing but preserve it for the best interest of the debtor and creditor, for whose mutual ben- efit lie holds it. Banker v. Caldwell, 3 Minn. 94. IV. Right to Sue in Aid op Process. 5. Riglit depends on statute. The right of an officer lioldiug an unsatisfied execution to collect debts due the judg- ment debtor, after having duly levied upon the same, and a refusal to pay depends wholly upon the statute. Comp. St , Chap. 61, Sec. 109, p. 572. JRobertson v. BiUey 10 Minn. 323. 6. Has the right of debtor only— not debtor's creditors. Where an officer holding an unsatisfied execution, levies upon a debt claimed to be due the execu- tion debtor, under the statute (Comp. St., Sub. 3, Sec. 148, p. 551), his right to en- force a collection of said debt, is the same only as that of the execution debtor to whom such debt is claimed to be due — even though the execution creditor in a di- rect proceeding against the individual owing the execution debtor, might enforce a payment on grounds not available to the latter, as where the debtor has certain legal claims and the creditor both legal and equitable. Nor can the officer aid his cause of action by setting up (when the execu- tion debtor is a corporation), the insolvency of the company, its refusal to perform the necessaiy acts to create a legal liability, or to make provision for the payment of its debts, or its dissolution. lb. 7. May sue bidder at sale. The sheriff may collect the amount bid by a purchaser on an execution sale, by suit if necessary, both for the sake of securing his own fees, 384 SHERIFF. and that he may have funds wherewith to respond to the judgment creditors. Arm- strong V. Vroman, 11 Minn. 220. 8. Sec. 143, Comp. St., p. 552, allowing the officer to sue for " the debts and cred- its he has attached " — presupposes that he has taken them into his possession. Caldwell v. Sibley, 3 Mum. 406. 9. Payment of note in hands of officer good. If an officer has process in his hands, valid upon its face, and levies upon notes and takes them into his possession, he can maintain an action on tliem under Sec. 151, Comp. St., and collect them, con- sequently a payment to him by the debtor would be a valid discharge of the debt and a recovery by him a bar "to a recovery by anybody else. Bohrer v. Turrill, 4 Minn. 407. V. Liability to Suit of Third Persons claiming Property Attached, etc. 10. Sheriff must first have notice of their claims. Under Sec. 3, Chap. 41, G. L. 1862, p. 98, and at common law, (follow ing Vose ». Stickney, 8 Minn. 75), where personal property is found in the posses- sion of the judgment debtor, who is exer- cising acts of ownership over it with the consent of the owner, and seized by the sheriff on execution, other persons claiming tlie same, cannot maintain an action against the sheriff without notifying him of their claims, or showing that he had notice be- fore the seizure ; but where goods are in transitu directed to tlie execution debtor, and it does not appear whether they had been delivered to the debtor by the vend- ors, or was being shipped to him by them, they are not in the possession of the debtor within the rule requiring notice. Dodge v. Chandler, 9 Minn. 97. 11. Requisites of the affidavit of claim. Where property of a third person is levied upon by a deputy sherifl", the affi- davit of ownership, provided for by Sec. 1, Chap. 24, law 1865, where the afiSant claimed through a contract, need not set forth the contract nor all its details. If it discloses the legal effect of the contract, so far as is necessai-y to distinctly inform the officer that the execution debtor has no rights in the property levied upon, and that whatever rights he may have at any time possessed, have been transferred to the affiant for a valuable consideration, and the general nature of affiant's rights is a conipliance with the statute. WUliams V. Mcgrade, 13 Minn. 174. 12. Service on deputy, wlien grood. Where pi-operty of a third person is levied upon by a deputy sheriff, the affidavit pro- vided for in Sec. 1, Chap. 34, law 1865, may be served upon such deputy. Ih. VI. Sheriff's Sale. 13. Wliere sale is enjoined— duty. Where an injunction is served on a sheriff, restraining the sale of property on an exe- cution in his hands, he should note the re- ceipt of the injunction on the back of the execution, desist from all further proceed- ings, keeping the propertj' ; and if at the end of the 60 daj's from the receipt of the execution by him, no notice of the dissolu- tion of the injunction has reached him, he should then return the execution detailing the facts. If, during the 60 days tlie injunc- tion is dissolved, the sheWff should then ad- vertise the property again under the origin- al levy, and proceed to sell in the ordinary way. He cannot adjourn the sale to a future day,and if the injunction Is removed by that day, then sell in pursuance to the adjournment. Pettingill v. Moss et al., 3 Minn. 223. VII. Sheriff's Return. 14. Prima facie sufficient. A sheriff's return is prima facie evidence of the facts therein stated, and his certilicate would be so received — and the certificate should be a statement of /acte, not conclusions of law, he might form as to What constituted a levy. Castner et al. ». Symonds, 1 Minn. 430. SHERIFF. 385 15. Conclusive as to third parties, when. In case of third pai-ties who have dealt in good faith without laches— public policy would seem to require that a sheriffs return should be conclusive, leaving tlie party to his remedy against the officer— but in other cases we thinlv the return may be disproved. lb. 16. Generally conclusive. As a gener- al rule, the return of a sheriff, so far as it is evidence of formal proceedings, is con- clusive upon parties, privies, and prima facie upon strangers, and is not liable to impeachment, except in direct proceedings, in which the officer is a party. Tullis v. Brawley, 3 Minn. 277. 17. Absolutely conclusiye. On an ap- plication to open a judgment, entered by default, on the ground, among others, that the summons was not served on the day specified in the sheriff's return thereto. Hdd, the sheriff 's return was conclusive in that action. Frasier v. Williams, 15 Minn. 2S8. 18. Officer's return conclusive. A le- gal and sufficient return by an officer, of a precept which he had authority to serve, as between parties and privies, is to be talien as true, and can be controverted by them only in an action against the officer for a false return ; hence affidavits are in- admissible to impeach it. JTuichins i>. Oom- missioners of Oarver-Go., 16 Minn. 13. 19. What a sufficient return— conclu- sive. A return by the sheriff tliat he has " levied upon " property, without the state- ment of the particular facts constituting such levy, is sufficient, and cannot be in- quired into, except in a direct proceeding against the officer or his sureties for a false return — following Tullis ». Brawley, 3 Minn. 277 ; and Rohrer v. Terrill, 4 Minn. 407. Folsom et al. v. Oarli, 5 Minn. 333. 20. Under the R. S., (1851, Sec. 91, p. 368, and Sec. 140, p. 346,) it is not neces- sary that the sheriff should, in his return, state the particular or several acts done by him in making his levy. It is sufficient if he certifies in general terms, that he "lev- led," and from this all necessary proceed- 49 ings will be implied — considering Symonds V. Castner et al., 1 Minn. 427. Tallis v.- Brawley, 3 Minn. 277. 21. Return of the sheriff that he has "levied" upon the '^ books of the said R. Ball," does not show a levy upon the debts and book accounts of said Ball. lb. 22. Return, when sufficient. Return on an execution that the officer " levied 'i on property is sufficient and conclusive. Hutchins v. Commissioners of Carver Co., 16 Minn. 13. 23. Amending' return. Return of an execution sale, on an execution, may be amended, if insufficiently descriptive of the property sold. lb. 24. The return on an execution of a sale thereunder, describing the property as " lying and being in the county of Carver, to wit : lots (8, 4, 5, 6, 7, 8,) three, four, five, six, seven and eight, in blocli (37) twenty-sevtn, in tlie town of Chaslia, ac- cording to the plat thereof, on record in the office of the register of deeds of said county," is sufficient. lb. 25. Vacating' return. An execution sale, sheriff's return, certificate and record thereof, may be vacated by the District Court, when the exigency of the case re- quires it, and in furtherance of justice. lb, 26. Return amendable. If the certifi- cate of execution sale is insufficient, there is no need of vacating the sheriff's return of the sale on the execution, for insuffici- ency in the description of the property, for the I'eturn may be amended. lb. 27. Parol evidence. The sheriff's re- turn on an execution, recited that on the 4th of May, 1867, he levied upon the prop- erty, and that at date of return, 14th of May, 1867, he held the same in his posses- sion. Held, evidence was admissible to show that the officer had ceased to possess the property on the SOth of May, 1867, and the same did not contradict his return, but at most only rebut a presumption of con- tinued possession, from his possession on the 14t7i of May. Mrst NatH Bank of Hastings V. Rogers et al., 15 Minn. 381. 386 SIGNING— SLANDER AND LIBEL. VIII. Sheriff's Deputy. 28. The sheriff, may to secure the sei'- vices of any one as deputy, give to hUn all the fees pertaining to the services he may render. Pioneer Printing Go. v. Sanborn, French c6 Lund, 3 Minn. 413. 29. Kight to a reward. Where a dep- uty sheriff, upon the the request of another person, and upon information furnished him by such person, arrested In his county, without warrant, a person who had com- mitted a felony in another county, for whose arrest and delivery a reward had been offered, and delivered him to such au- thorities, he is not entitled to such reward. The statute made it his duty, if he was sat- isfied the Information was true, to malie the arrest, and for making it he was enti- tled to the same fees only, as though he had made it under a warrant. Warner v. Grace et al., 14 Minn. 487. IX. Sheriff's Fees. 30. A sheriff, under Sec. 10, Chap. 70, Or. S., is not entitled to any per diem allow- ance. Thomas v. Commissioners Scott Co., 15 Minn. 324. SIGNING. 1. Where A. in the presence, and under the direction of B, signs the latter's name to an instrument, the same is valid to the same extent as though done by B. Pott- geiser v. Dorn, IG Minn. 304. SIOUX HALF-BREED SCRIP. 1. The Supreme Court has no authority to review the decision of the U. S. Land officers, in the location of Sioux Half- Breed Scrip, the acts of Congress having authorized the President, and he the Laud officers, to pass upon these questions, and the State by the terms of its admission into the Union being prohibited from interfer- ing with the primary disposal of the soil by the United States. Monette et al. v. Oratt et al., 7 Minn. 234. 2. When B., the occupant of land in- cluded within the half-breed reservation, applied to have the same entered on sciip of M., under act of Congress, approved July, 37, 1854. Held, M. took the title to the land. Hharpe v. Rogers, 12 Minn. 174. 3. The half-breed, to whom Sioux half- breed scrip was issued under the act of Congress of 1854, had nothing in the scrip which he could transfer to another, for un- der that act, " no transfer or conveyance of any of said certificates or scrip shall be val- id." A power of attorney, so far as intend- ed to operate as a transfer, would be of no avail ; the right of the half-breed in the scrip and land would remain the same, it could not be made irrevocable nor create any in- terest in the attorney, and if the latter sells he would be accountable to his principal, precisely as in the case of any power to sell. But a simple power to sell, executed by a half-breed, is good until revoked, and would extehd to land subsequently acquir- ed by means of the scrip, if within the terms of the power. OtiXbert et al. v. TJwmp- son, 14 Minn. 544. SLANDER AND LIBEL. I. Slander. II. Libel. I. Slander. (See Damages 44.) 1. Intention. It was not error for the court to charge the jury, that if by the use of such and such words, the defendant in- tended to charge the plaintiff with stealing, the words were actionable. St. Martin v. Desnoyer, 1 Minn. 156. SLANDER AND LIBEL. 387 2. Words charging a person with hav- ing committed an act, for which, if the charge were true, he would be punished criminally, arc actionable per se. The words "you stole my belt" are actionable pef se. lb. 3. In slander no words are actionable per se, wliioh do not charge an offense pun- ishable by law — as to what words are ac- tionable per se, no opinion expressed. Me- Oarty v. Barrett, 13 Minn. 494. 4. The word "you did rob the town of St. Cloud — you are a public robber " may mean the legal crime of robbery, in which case it cannot be committed on a munici- pal coi'poration — it must be committed on a human being, hence not actionable per se, or it may mean the stealing or feloniously taking of property of another, and in this sense would be applicable to a public body, and actionable per se. But there is a pop- ular sense, such as the acquisition of money or property of the public by fraud or indi- rection, in which sense they are not action- able — the words being ambiguous, they are not actionable per se, the sense in which they were used by defendant, is a question of fact to be determined bj' the jury from all the circumstances of the case. lb. 5. It seems, from words spolien, in them- selves actionable, in the absence of all cir- cumstances qualifying their use, malice in the defendant, would perhaps be implied; but whether actionable or not, per se, if it appears from other circumstances that they were not used by the defendant, or under- stood by the by-standers in an injurious sense, slander will not lie. McOarty ii. Barrett, 12 Minn. 494. 6. It seems jt is for the court to deter- mine whether a given state of facts In any case will constitute slander, but the speak- ing of the words, the intention of the de- fendant in speaking them, and the exist- ence of the facts in each case, are questions to be determined by the jury from all the concomitant circumstances. lb. II. Libel. (See Evidence, 205, et seg.) 7. Pi;ivileged communications. A li- belous article in a newspaper, publislied against a candidate for office, 'does not fall within the class of privileged com- munications, which require express mal- ice. Aldrieh v. Press Printing Oompany, 9 Minn. 133. 8. Malice of corporation aggregrate. A corporation aggregate may be held for libel, even where express malice isnecessary to constitute the offense, as in privileged communications. lb. 9. Malicious intent. When libelous words are actionable in themselves, the malicious intent in publishing them, is an inference of law; but if the circumstances of the publishing were such as to repel that inference, and exempt the defendants from any liability, unless upon proof of actual malice, the plaintiff must furnish that proof. Simmons w. Holster et al., 13 Minn. 249. 10. The publication in a newspaper of a notice of stolen property, containing the following statement, to-wit: " The thief is believed to be William H. Simmons, who delivered the horse to some other parties," is actionable as a libel per se. It imports an indictable offense as effectually as though made in positive language. The charge need not be couched in positive terms. lb. 11. When one person, without authori- ty or color of authority, publishes a libel in the name of another, who has no knowl- edge of its publication until after it is made, the mere silence of the latter, or his neglect to disavow or repudiate the publication, will not render him liable, either civilly or criminally. 1 b. 12. Complaint charged defendant with publishing a libel, as follows, to-wit: '"Sorry to hear it; We learn that the doors of a prominent Democrat in Chat- field have been shut against Father Hemphill, the professed editor of the Derno- craW Thereby intending and meaning this plaintiff, who was then editor of the Chatfield Democrat, a newspaper published in Chatfield aforesaid, and meaning that doors had been shut against this plaintiff. 388 SPECIFIC PERFORMANCE— STATUTES. 'Cause, petit larceny, viz.: talcing a few- spoons at one time, and at another a few children's diapers from the clothes line.' Thereby intending, etc. ' You should not be too hard on him (meaning this plain- tiff). Major, for the lirst offense;' thereby meaning, etc." On it being objected that from this it only appeared that the first three lines, ending with "DemocTOi," before the first inuendo, was published, and that it constituted no libel. Meld, that publication of all in quotation marks sufficiently ap- peared, and that it constituted a libel. Hemphill v. Holley, 4 Minn. 233. SPECIFIC PERFORMANCE. (See Equity, II.J (See Husband and Wife, 12.) STAMPS. 1. A writ of certiorari is not an " orig- inal process," by which a suit is com- menced, within the meaning of the U. S. Bevenue Law of 1862, which requires such writs to be stamped. Pierce v. Huddleston, 10 Minn. 131. 2. Receipts were not required to be stamped until July 13th, 1864, and in the absence of anything showing the contrary, it will be presumed that a receipt, not pro- duced because lost, was properly stamped. Tliayer v. Barney, 12 Minn. 502. 3. In the absence of anything to the contrary, the presumption is that the reve- nue laws have been complied with. Smith i>. Jordan et al., 13 Minn. 264. 4. A. attempted to convey land in 1855, but the description was so defective as to make the deed ineffectual. Afterwards, in 1867, he made another deed to correct the description in the first. HM, the sale was made before the U. S. stamp act was passed, (1855,) and tlie transaction in 1867 did not amount to a "sale," within the meaning of that act, so as to require an ad valorem stamp on the second deed. Orevev. Coffin, 14 Minn. 345. STATUTES. I. Genekallt. II. OONSTRUCTION. III. Repeal. (See Limitation op Actions, II.) (See Mechanic's Lien.) I. Generally. 1. Publication, presumption of. If a publication of an act of the Legislature is necessary before it can operate, the publi- cation in a newspaper, under Sees. 4 and 5, Chap. 3, Comp. St., is all that is neces- sary, and the presumption is that the law was published immediately, in pursuance of these sections. Stine et al. ii. Bennett, 18 Minn. 153. 2. Uetrospective action of statutes. Chap. 24, Laws of 1865, requiring notice of third person's rights to be given an of- ficer attaching or levying on property in certain cases, does not operate retrospect- ively upon attachments or levies made be- fore its passage. Edson v. Newell, 14 Minn. 228. 3. Void for uncertainty. A joint res- olution of the Legislature, which, in at- tempting to correct county boundaries, de- fines impossible boundaries, cannot be fol- lowed, State V. Timm^s, 4 Minn. 325. 4. Mode of proceeding of public officer —directory, when. As a general princi- ple of law, statutes directing the mode of proceeding of public officers, are merely directory, unless there is something in the statute itself which plainly shows a different intent ; but a proviso in au election statute. STATUTES. 389 which declared "that no failure of any clerk to give notice of any election, as aforesaid, shall invalidate any election," does not show an intention to invalidate an election for a disregard of any other prescribed formality or duty by the officers — the maxim, " Expressio unius est exclusio alterius," not applying. Taylor v. Taylor et al., 10 Minn. 107. 5. Appeal statute, retrospective oper- atiou. Act of March 1, 1867, authorized a n appeal from an order granting anew trial. ifeW,it operated retrospectively upon orders made prior thereto — following Converse v. Barrows, 2 Minn. 240. MeNamarav. Min- nesota Central B. Co., 12 Minn. 388. 6. The amendments to E. S., Chap. 5, G. L. of 1856, p. 13, providing for ap- peals from an order granting a new trial extend retrosj)ectively to cases then pending. Converse v. Barrows et al., 2 Minn. 340. II. Construction. 7. Retrospective operation must clear- ly appear. A statute which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions already passed, is not to be deemed retrospective, but prospective only in its operation, un- less the contrary clearly appears to have been the intention of the legislature. Da- vidson V. Gaston, 16 Minn. 230. 8. The intention, to govern. The in- tention of the legislature should always be followed whenever it can be discovered, although the construction seems contrary to the letter of the statute; and on the con- trary, a thing within the letter of the stat- ute is not within .the statute unless within the meaning of the intention of the mak- ers. Statutes in derogation of the common law are not to be extended by equitable construction. Qrimes v. Bryne, 2 Minn. 106. 9. In construing a statute or consti- tutional provision, the great object is to ascertain and interpret so as to carry out the intention of the law giver, and as a primary rule, the language used is to be first considered as being the best evidence of what that intention is, and where the words are clear, explicit, unambiguous, and free from obscurity, courts are bound to expound the language according to the common sense and ordinary meaning of the words. Minn. & Pacific E. R. Co. v. Oovernor of State, 2 Minn. 13. 10. Practical constrnction. The court will hesitate long before it will disturb a statute, under a practical construction of which, ever since its passage, great inter- ests have been affected, rights passed, and j pi-operty involved ; and not then, unless fully convinced that it was in violation of some substantial provision of the funda- mental law. Carson et al. v. Smith, 5 Minn. 78. 11. The opinion of a subsequent leg:- Islature on the meaning of a statute is en- titled to no more weight than that of the same men in a private station. Bingham V. The Board of Supervisors of Winona Co. 8 Minn. 441. 12. It seems that a revised code of laws is to be construed as contemporan- eous acts, parts of one entire system of law, so that in construing any given portion regard may be had to other provisions. McNamara v. Minnesota Central R. Co. 12 Minn. 388. 13. Construction of amendments. When an amendatory act declares that such a statute "be amended so as to read as follows," the portions of the amended section which are merely copied without change, are not to be considered as repealed and again enacted, but to have been the law all along, except where a contrary in- tent appears; and the provisions or changed portions are not to be taken to have been tjie law at any time prior to the passage of the amendment. Kerlinger v. Barnes et al. 14 Minn. 536. III. Repeal. 14. It is not necessary that an actual repealing clause should be used to discon- 390 STATUTES— STATUTE OF FKAUDS. tinue or repeal an existing enactment. Col. Lee ex parte, 1 Minn. 71. 15. The creation of a new court, as in the present case, with new duties and powers, but at same time embracing all the powers and duties of an inferior tribunal, is equivalent to a repeal ; it is a substitu- tion of one for another tribunal. Ih. 16. The mere omission to embody in an amendment of a remedial statute, some of the provisions of the original law which do not conflict with the amendment, and may exist independent of it,, and in entire harmony witli it, will not, as to existing rights, be considered as a repeal of tlie provisions omitted, in the absence of any other circumstances showing an intention to repeal such omitted provisions. Kerlin- ger v. Bar-nes et al., 14 Minn. 526. 17. A new lien law, contained no ex- press repeal of former acts, but provided that, " all acts and parts of acts, inconsist- ent liereunto, are hereby repealed." Held, persons, who under the former acts were entitled to a lien, but under the new act were not so entitled, lost those rights inas- much as otlierwise an inconsistency would arise between the two acts — even suppos- ing tiie two acts could stand in the absence of an express repeal. Tlie Toledo Novelty Works V. Bernlieimer, 8 Minn. 118. 18. An act of the legislature (1857, p. 368-9), granting an exclusive ferry fran- chise to M. within one and a half miles above and below a certain point, provided, in Sec. 7: 1st, that the right does not extend beyond the land now owned by said M., and 3d that the grant shall not interfere with the W. & La C. R. R. chai'ter. In the subsequent year (1858, p. 303), the limits within wliich M. was authorized to exercise his ferriage rights were enlarged and provided that no ferry should be es- tablished within one and a half miles above or below the enlarged limits, and then provided that Sec. 7 of tlie former act is ameuded so as to repeal all acts conflicting with the enlargement of M.'s franchise except as relates to the "W. & La C. R. R. Held, that the former restriction confining M.'s right to land owned by him was repealed by the last act. McRoberta v. Washburn et al. 10 Minn. 23. 19. Effect of a repeal. Where a statute gives a right in its nature not vested, but remaining executory, if it does not become executed before a repeal of the law, it falls with it, and cannot tiierefore he enforced. Bailey &■ Oilman v. Mason & Craig, 4Minn. 546. 20. Tlie repeal of prior laws by the general statutes did not revive rights talvcn away by those laws. Stine et al. v. Bennett, 13 Minn. 153. 21. A saving clause in an act altering a corporation name, providing that all rights in favor of a party who holds a "contract, obligation, or right- or lien,'' against the old corporation shall be pre- served against the new body corporate — will save a right to damages for injuries to property. Oould i>. Sub. Bist. No. 3 of Eagle Creek /School District, 7 Minn. 203. STATUTE LAWS OF ANOTHER STATE. (See Evidence, 183.) STATUTE OF LIMITATIONS. (See Limitation of Actions.) STATUTE OF FRAUDS. (See Limitation of Actions, 38.) (See Equity, II., c. 1, 2.) ' 1. Requisites of written contract. To constitute a written contract a parol ac- ceptance of a written proposition is wholly STATUTE OF FRAUDS. 391 insufficient — the acceptance must be in writing to satisfy the statute of frauds. Lam V. McLaughlin et al. 14 Minn. 72. 2. What not a contract for sale of goods, etc. A contract to "furnish ma- terial for, and prepare, and fit the same for putting up four houses, known as the Fitzgerald patent portable houses," is a contract for worlc and labor, and not a contract of sale, within the statute of frauds, and need not be in writing. Phipps V. MaFarland, 3 Minn. 109. 3. Delivery of goods sold. The deliv- ery required by the statute of frauds (Sec. 7, p. 334, G. S.), to talve a verbal agree- ment for the sale of goods, out of the statute of frauds may be subsequent to such agreement. McOarthy v. Nash, 14 Minn. 137. 4. Subscription, wliat sufficient. A contract for the sale of goods, cliattels, or things, in action (Sec. 3, Chap. 50, Oomp. St.), within the statute of frauds, is sufll- ciently " subsciibed by the party to be chai-ged therewith," if it is subscribed by the party against whom suit is brought. Morinv. Martz d al., 13 Minn. 191; Wem- ple V. Knopf, Jr., 15 Minn. 440. 5. Parol contract concerning land. A parol agreement between A. and B., by which B. was to convey land to A,, when A. should pay to B. what he had paid for it, is within the statute of frauds, and not enforcible without part ijei-formance by A, Weniworth v. Wentworth, 3 Minn. 383. 6. C. and E. held land under a verbal trust in favor of F. E. represented to F. (verbally) that if he would permit C. to convey to him (E.) the share held by C, then, the next day, he (E.) would convey the whole to F. F. consented and the con- veyance was made, whereupon E. refused to convey to F. Held, E's agreement was a parol promise to convey land and void vmder the Statute of Frauds, and could not be relieved against. Evans v. Folsom, 5 Minn. 422. 7. Promise to answer for tlie debt, .de- fault, etc., of another, must be collateral to an original promise. To constitute a promise to answer for the debt, default, or miscarriage of another person witliiu the meaning of the Statute of Frauds, the promise must be a collateral one — there must be in existence an original liability upon which the collateral promise is founded. Tale v. Edgerton, 14 Minn. 194. 8. What is a collateral promise. A verbal promise by G. tliat if F. did not pay his debt he (G.) would, is witiiin the Stat- ute of Frauds, and void. DufoU v. Gor- man, 1 Minn. 309. 9. The relation of landlord and ten- ant existing between W. and Mrs. Mc, the defendant says to the plaintift; (W.) "If you will let mother (Mrs. Mc.) stay, I'll be responsible for tlie rent, and see that it is all i-ight." Held, a collateral undertaking within the Statute of Frauds, and being verbal, was void, even admitting that the consideration passing to Mi's. Mc, wassuf- fHcient to sustain it, and that promise was relied upon by plaintiff. Walker v. Mc- Donald, 5 Minn. 455. 10. It seems that where K. purchases property of C, against which W. has alien, and " in consideration of said sale, and in part payment of the purcliase price, K. undertook and promised said C. to pay W.'s claim against C " — such promise iS void if by parol. — Flandbau, J. Walsh V. Kattenhurgh, 8 Minn. 127. 11. Original promise not within the Statute, if lien is surrendered. A promise to pay the debt, default, or miscarriage of another, upon consideration of the surren- der of property of the tliird person to tiie promisor, on which the promisee has a lien, is not within the Statute of Frauds, but an original promise and good, though not in writing, lb. 12. Y. owned a $1700 claim against v., secured by mortgage, and transferred both claim and mortgage to E. as security for a debt of $300, due the latter by T., afterwards Y. agreed verbally with E. that the latter should release and discharge V. absolutely from the mortgage debt, and after retaining therefrom tlie amount of the debt due from Y. to pay the balance 392 STATUTE OP FRAUDS— ST. ANTHONY, CITY OF. so remaining to Y. In accordance witii wliicli, V. was discharged and mortgage released by E., wlio refuses to pay bal- lance of V.'s debt to plaintiil". Held, as the consideration of defendant's promise is the consent of the plaintiff to the release and discharge, absolutely, of the mortgage and the mortgage debt by the defendant, it is a sufficient consideration, and the promise is an original one, not within the Statute of Frauds. Tale v. Edgerton, 14 Minn. 194. 13. A promise to A. to pay his debt due to B. is not within the Statute of Frauds. Goetz o. Foos, 14 Minn. 265. 14. Plaintiffs, creditors of A. and having an existing lien on A.'s land for security, of prior date to defendant's mort- gage, did, on defendants verbal request, waive said lien, and paid the costs of an existing levy on land, whereby the owner thereof, in pursuance of an agreement by defendant, had withdrawn said execution, in consideration of which, defendant promised (verbally,) plaintift' that he would pay A.'s debt to him. Held, An or- iginal promise not within the Statute of Fi-auds. Sodgins et al., v. Heaney, 15 Minn. 185. 15. When a deed not a contract for Sftle of laud within the Statute. A deed for the conveyance of laud signed and acknowledgf d by the grantor, and passed to the grantee for examination, without any intention to deliver the same, and by him returned to the grantor to have the latter's wife execute the same, is not a con- tract or memorandum of a contract for the conveyance of land within the Statute of Frauds. Comer v. Baldwin, 16 Minn. 173. 16. A. sold goods to B. upon the faith of a verbal promise by C. that he would pay for the goods if B. did not. Held, credit given to B. as principal debtor, C.'s promise was collateral, and within the Statute of Frauds, though not illegal or void. Rogers v. Stevenson, 16 Minn. 68. 17. Statute introduces a new rule of evidence only. An agreement, which was legal and actionable before the Statute of Frauds, is legal, since, notwithstanding the Statute, the latter introducing simply a new rule of evidence, lb. STAY OF PROCEEDING. (See Practice, II. 9.) STEAMBOAT, (See Evidence, 185.) STIPULATION. 1. Where defendants based their de- fense partly on their being a corporation, and that fact thereby bec'sime material. Held, that a stipulation before trial "that all the material allegations of new matter contained in the answer should be consid- ered denied and put in issue, as fully to all intents and purposes, as if the said plain- tiff had regularly made and served a re- ply,'' would put in issue the fact of incor- poration. Becht V. Harris et aX., 4 Minn. 504. STOCKHOLDERS. (See St. Anthony Falls Water Povir- ER Co.). (See Minneapolis and Cedar Val- ley R. R. Co., 3, 3. ST. ANTHONY, CITY OF. 1. Liability to levy tax for the erec- tion of school houses. An act of the leg- islature approved Feb. 38, 1860, entitled " All act for the support and better regu- ST. PAUL, CITY OF. 393 lation of common schools in the city of St. Anthony," creates a Board of Educa- tion, and provider, by Sec. 9, that " when- ever said board shall deem it necessary to purchiise or erect a school house or school houses for said district, or to purchase a site or sites for the same, they shall call a meeting of the legal voters, giving ten days' notice, etc., and said meethig may determine, etc., upon the erection of a school house or houses, and' the purchase of a site, etc., and the amount of money to be raised for the purpose aforesaid, which money so voted shall be certified by the Board to the City Council, and there- upon the City Council shall, etc., proceed to levy such amount of money upon the taxable property of the district." Pro- ceeding under this law, the Board resolved that, " whereas it is deenjed necessary by the Board of, etc., to purchase a site or sites," etc. Hdd, this preamble sufficiently shows the necessity of building, etc., with- in the act, but that the meeting of legal voters must determine upon the number of houses to be erected, and the number of sites to be purchased, and must specify a definite and certain sum of mone}^ for such purpose, and that the action must precede the levying of the tax, and that "two per cent, on the assessment of the city" is not such certain amount, and that without this previous action the City Council cannot be compelled by mandamus to levy such tax. State V. City of St. Anthony, 10 Minn. 433. (See Board op Education op the CiTT op St. Anthony.) ST. ANTHONY FALLS WATER POWER COMPANY. 1. Liability of stockholders. By the charter of the St. Anthony Falls Water Power Company, (Laws, 1856, p. 215,) which provides that -'each of the stock- holders of said company shall be person- ally liable for the debts of said company to an amount equal to the amount of the capital stock held by such stockholder, and no more," a personal liability is created against each stockholder at the time a debt is contracted, and all that may voluntarily become stockholders thereafter. And this liability is a principal one, and not that of surety to the corporation — so that it is not necessary to proceed against the corpora- tion in the first instance. Oebhard v. Eaat- inan & Gibson, 7 Minn. 56. ST. PAUL, CITY OF. Scope Note. — All decisions which relate to muni- cipal corporations generally, will be found under that title. (See Municipal Corporation.) 1. Remedy aj^ainst error of commission- ers. Sec. 2, Chap. 7, Session Law, 1854, p. 29, (Charter, City of St. Paul,) provides that "any person deeming himself ag- grieved by an act of the board of commis- missioners may, at any time, appeal to the common council," etc. HeXd, not exclusive of other remedies — a privilege. Wdler v. City of St. Paul, 5 Minn. 95. a. street commissioners may contract for improvements, before making.and fil- ing estimates therefor. The making and filing of the estimates of street improve- ments, and the proportion to be assessed to each lot, referred to in Sec. 6, Chap. 7, charter of the city of St. Paul, is not a condition precedent to the power of the street commissioners to enter into contract for the performance of such improvements. Nas7i V. The City of St. Paul, 8 Minn. 172. 3. Assessor's compensation for listing the militia. The "one assessor for the city at large, * * ' who shall perform all the duties required by law of assessors of property for the purpose of taxation for State, county, city or other purposes, with- in the city of St. Paul," within Chap. 79, Gr. L. 1865, is the " assessor of the several wards " of the several cities, within Chap. 394 ST. PAUL AND PACIFIC R. R. COMPANY. 51, Laws 1865, so that his duty thereby, among othei' things, was to return a list of all persons liable to be enrolled in the mil- itia, etc., the compensation for which duty was included in his regular compensation as fixed by the city council, under Chap. 79, G. L. 1865. McGlung v. The City of St. Paul, 14 Minn. 420. 4. Bigrht to appeal from city justice in certain cases, where the judgment is less than twenty-five dollars. The char- ter of the city of St. Paul, as amended in 1860, conferred on the city justice jurisdic- tion, among other offenses, in cases of as- saults, and required the same proceedings to be had, where not otherwise directed, as in courts of Justices of the Peace under the general law, provided that in assaults (and certain other case?) "no appeal shall be allowed where the judgment or fine im- posed, exclusive of costs, is less than twen- ty-five dollars," repealing all inconsistent acts. Held, the proviso operated as a re- peal of the general laws allowing appeals in those cases. 2d. In summary proceed- ings of this character, the subject of re- view is under the control of the Legisla- ture, (within the limits of tlie Constitu- tion,) and in the absence of statutory provision therefor, there is no appeal. 3d. The proviso does not conflict with Sec. 2, Art. 6, Constitution of State, for the term "appellate jurisdiction" relates to the na- ture of the jurisdiction, in contradistinc- tion with original jurisdiction — has no ref- erence to the manner in which a cause is brought up from another court; and al- though no appeal lies, yet there being no express prohibition, a certiorari will lie, thus leaving the appellate jurisdiction of this court, "in all oases," unimpaired so far as this case is concerned. 4th. The limitation being general, and operating alike upon all the suitors in that court, the Legislature had power to enact the provi- so. Tiernay v. Dodge, 9 Minn. 166. 5. City contractor— choice of remedies. The amendment of 1857, to city charter of St. Paul, allowing the contractor or the endorsee of the certificate to sue the owner in a civil action, at his option, in lieu of having his claim assessed with other city taxes, is invalid — no action lies under it. McGonib v. BeU, 2 Minn. 307. ' 6. Jurisdiction of city justice. The city justice of St. Paul, being a justice of the peace, the Legislature could not, under the Constitution, confer jurisdiction on him over offenses within Sec. 9, Chap. 100, Q. S., by which keeping a house of ill- fame is made punishable by imprisonment in the State prison; hence an indictment framed under such statute will not be quashed, on the ground that the said jus- tice iiad exclusive original jurisdiction of an offense under such statute. State v. Charles, 16 Minn. 474. 7. The charter of the city of St. Paul, as amended by Sec. 5, Chap. 20, Special Laws, 1870, does not transfer and vest in tiie city exclusive jurisdiction over oft'enses against Sec. 9, Cliap. 100, G. S., by which keeping a house of ill-fame is made pun- ishable by imprisonment in the State pris- on, nor has such statute been superseded within the city limits by the city ordinance on the subject. lb. ST. PAUL AND PACIFIC R. R. COMPANY. 1. Was not created by special act, within Sec. 2, Art. 10, Constitution. Un- der the Five Million Loan Amendment to the Constitution, "The First Mortgage Bonds on the roads, lands, and franchises of the respective companies," provided to be taken as security for the State bonds, covered aM the roads, aU the lands, and all the franchises of the companies, including the right to be a corporation ; and on fore- closure by the Governor, they became vested in the State, and it was competent for tlie State to hold, and it did hold, every- thing thus acquired, without merger or extinguishment, under act of Legislature, Aug. 12, 1858, and March 6, 1860, among SUB-CONTRACTOR— TAXES. 395 wliioh were the roads, lands and franchises of the Minnesota & Pacific R. R. Co.,— (see, also, act March 8, 1861, Sec. 1, 2, 3 and 4.) Act of March 10, 1862, Sec. 1 and 2, transferred to persons therein named all the roads, lands and franchises of the Min- nesota & Pacific E. R. Co., (then owned by the State,) which act was not unconsti- tutional, within Sec. 2, Art. 10, Const., as an attempt to create a corporation by spe- cial act, for it was only a transfer of cor- porate franchises already in existence, to persons enumerated, who, after organiza- tion, became the St. Paul & Pacific R. R. Co., duly invested with the land, roads and franchises formerly owned by the Minne- sota & Pacific R. R. Co. Tlie First Div. St. Paul & Pacijk M. B. Co. v. Parcher et at, 14 Minn. 297. SUB-CONTRACTOR. (See Mechanic's Lien.) SUMMONS. (See Practice, II. 1.) SUPREME COURT. (See Courts, II.) (See Mandamus, 1.) SURPRISE. (See New Tbial, II., g.") SUPPLEMENTAL PROCEED- INGS. (See Pkactice, II, 14.) SURETY. (See Pkincipal and Surety.) TAKING ILLEGAL FEES. (See Criminal Law, 43.) I. II. III. IV. V. VI. VIL VIIL IX. X. XL XII. XIII. XIV. XV. XVL TAXES. Requisites op a Tax. For What Taxes Mat be Lev- ied. What is Taxable. What is not Taxable. Listing Property. Equalization of the Roll. Taxes, When Delinquent. The Delinquent List. The Collection op the Tax. Presumptions. The Sale. a. Time of sale. b. Notice of sale. c. Sale of subdivisions. The Purchase at Tax Sale. Redemption. The Tax Deed. The Lien fob Taxes. Actions to Test the Validity OP Tax Proceedings. (See Constitutional Law, V., 14.) (See Pleadings, 64.) (See Counties, III.) (See Limitation op Actions, 28.) (See Municipal Corporation, III.) (See Meekeb County.) I. REqjjisiTES OF A Tax. 1. To constitute a specific tax, so as to authorize an officer in collecting it, there 396 TAXES. must be a determination by the proper au- thorities of the purposes for which the tax- es sliall be raised for a given period, and tlie rates or aggregate amount to be raised, which act constitutes a levy of tax on the district; but the tax thus levied upon the district must be assessed by the county aud- itor equally on all real and personal prop- erty subject to said taxation, and he must determine the sums to be levied upon each tract or lot of real propertj^, and upon the amount of personal property listed in the name of each person in sueh district, and extend such amount on the tax duplicate. McCormick et al. v. FitcJi, 14 Minn. 252. II. For What Taxes May be Lev- ied. 2. No claim against school district " audited, adjusted, etc." by special com- missioners, can be made the foundation of a tax. No particular locality, as a school district, can be taxed, for the payment of a claim against them, which, by aci, of the Legislature, was "audited, adjusted, and fixed," by the commissioners of the county; for such action on the part of the commis- sioners was the exercise of judicial power, and void ; hence the claim was not legallii established, or valid, in the sense which al- lowed it to be enforced ; and if it was in- tended as a gratuity, the tax to raise it should have been levied on the whole State. Sanborn v. Commissioners of Sice Co., 9 Minn. 273. 3. The "county purposes," within the meaning of Sec. 2, Chap. 6, Laws 1861, p. 47, for which the maximum tax is limited in the counties therein specified, to three mills on the dollar, without a vote of the people, includes only the ordinary expenses of the county. The levy of taxes for the following purposes ai'e authorized in addi- tion to the aforesaid amount : 1. Payment of the county debt, or interest on the same. 2. An expenditure of an amount not ex- ceeding one thousand dollars, for extraor- dinary purposes, including roads and bridges. 3. The poor tax. 4. Tlie school tax. it being not a county, but a school district tax. 5. Interest or principal of county bonds, including war bonds issued as boun- ties. McCormick et al. v. Mich, 14 Minn. 252. III. What is Taxable. 4. National bank shares. State taxa- tion of the "shares" in national banks, au- thorized by the National Banlcing Act, approved June 3, 1864, cannot be eiFected under Sec. 4, Ai't. 9, of State Constitution ; but is authorized by Sec. 3, Art. 9, Consti- tion, which provides that "laws shall be passed taxing * * investments in bonds, joint stocli companies," etc. County Treas- urer V. Webb & Harrison, 11 Minn. nOO. 5. Parsonages. Sub. 1, Sec. 3, Chap. 1, Laws 1850, and Laws 1861, p. 16, which exempts from taxation " all houses used ex- clusively for public worship, the books and furniture therein, and the grounds attached to such building necessary for the proper occupancy, use, and enjoyment of the same, and not {leased or otherwise, used with a view to profit," does not include a parsonage situated on the church lots. St. Peter''s Ghurch v. The Board of Oommissiorir- ers of Scott Go., 13 Minn. 395. 6. Property of non-residents sent to the State, for sale. Under the laws in force in 1861^5 (Sec. 1 and 11, Chap. 1, Laws 1860,) property of non-residents sent to this State for sale, and not merely for the purpose of being stored or forwarded, was liable to taxation. McGormick et cU. v. Fitch, 14 Minn. 253. IV. What is not Taxable. 7. Under the city charter of St. Paul in 1858, the money of residents of another State, loaned in difierent parts of this State, and made payable in St; Paul, was not li- able to assessment for taxes. Gity of St. Paul V. Merritt, 7 Minn. 258. S. It seems that under the tax law in force in 1858, the money of non-residents in this State was exempt from taxation. 15. TAXES. 397 9. National bank shares. In view of the fact that national bank shares must be taxed eo nomine, the tax laws in force in I860 did not authorize their taxation. Gouin- ty Treasimr v. Webb <& Harrison, 11 Minn. 500. V. Listing Property. 10. Personal property, like bank shares, follows the sitns of the owner. The law of 1865, providing that personal property in the nature of bank shares, shall be listed "where situated," without defining the definition of those terms, by implication adopts the ordinary rule that personal property, in the nature of bank shares, follows the situs of the owner. County Treasurer v. Webb & Harrison, 11 Minn. 500. 11. Bank shares must be listed, as such. Under Sec. 41, of the Kational Banking- Act, .approved June 3, 1864, the taxes au- thorized to be imposed upon "shares" in any bank oi'ganized thereunder, under State laws, must be upon the "shares" eo nomine, against the holders thereof, and in no other way; nor does the proviso, which provides that such State tax shall not ex- ceed the State tax imposed upon State banks, require that State banks should ex- ist, or that the tax imposed on them be upon their "shares" eo nomine, in order to justify the taxation of "shares" in Na- tional banks, lb. 12. When the owner refuses, the as- sessor must list. Sec. 27, Chap. 11, G. S.. which authorizes the assessor to list a tax-payer's property for taxation, etc., when he " refuses or neglects " to do so, embraces all cases of refusal, neglect or omission, fraudulent, wilful, intentional or otherwise, by any person, to make a true statement of all the personal property, exempt as well as unexempt, which, by the provisions of Cliap. 11, Gr. S., such person is required to list for taxation, either as owner or holder thereof, or as guardian, parent, husband, trustee, execu- tor, administrator, receiver, accounting of- ficer, parent, agent, or factor. Thompson V. Tinkcom, 15 Minn. 195. 13. The power of the assessor to re- turn property for taxation, not embraced in the tax-payer's statement, is not affected by an omission of the asse.'sor to enter upon his return, in an appropriate column, opposite the name of any person refusing to list his propertj', the words, "refused to list."— Sec. 29, Chap. 11, G. S. lb. 14. When, by mistake or otherwise, tliere has been an omission in the state- ment of property liable to taxation, as listed by the owner, of any portion of the personal property of the tax-payer, the assessor lias power, and is required, to embrace in his return any and all property taxable under tlie law, whether omitted by mistake or otherwise, from the list made by the owner, or whether any list was made or not, under Chap. 11. G. S. lb. 15. Property must be distinctly de- scribed. When the tax-payer neglects or refuses to list his property for taxation, the assessor, under Sees. IS and 19, Chap. 1, Laws 1860, must not only assess the value in dollars and cents, but list — that is to say, describe, so as to show more oi- less defi- nitely, according to its character, to what property the valuation related. A tax thus assessed on a quantity of wheat, under the head of "household goods," etc., is Invalid. Thompson «. Davidson, 15 Minn. 412. 16. What sufficient description of real estate. By the tax law of 1860, the general assessment of real estate was to be made biennially, commencing with 1860, show- ing on the roll " the description of each lot, and the value thereof, as determined by the assessor," designating the town, lot, number, and part thereof, if part is listed, with the number of feet on the principal street on which it abuts. By Sec. 22, the assessor shall make a list of personal prop- erty, annually, and take a list of all real propertj- which has become subject to tax- ation, since the last previous listing, with its value. Plaintiff's ctiurch lots (2) in 1862 had a parsonage thereon, which rested 398 TAXES. partly on both lots, but no church. Prior to 1804, a church had been placed across the north end of both said lots, resting on both. Held, in 1862 the property was tax- able. After the church was placed on the north end, the south end remained taxa- ble, and as such cliange occurred between the biennial listings, an assessment of said south half as the "S. ]4 of 'o's 9 and 10, in bloolj 49, Shalcopee City," was a suf- ficient description, without stating the feet front on the street, etc., as required in biennial assessments. Nor does the descrip- tion in the assessor's biennial return-relate to the countj' auditor. St. Peter's Church B. The Board of County Commissioners of Scott County, 12 Minn. 395. VI. Equalization of the Roll. 17. Failure to eqLiialize, fatal to tax. An omission on the part of County Com- missioners, under tlie tax law of 1856, to equalize and correct the assessment rolls, renders the tax illegal. Board of County Commissioners of Dakota County v. Parker, 7 Minn. 267. VII. Taxes, when Delinquent. 1§. Statute prescribes that neglect to pay takes within 30 days after publication of the notice prescribed, shall be deemed a refusal to pay the same. Special Law, 1859-60, p. 14-15. Held, Taxes not delin- quent until expiration of that time, al- though unpaid. St. Anthony Falls Water Power Co. v. Oreely, 11 Minn. 321. 19. When the statute prescribed that "publication of a given notice shall be deemed equivalent to a personal demand, and neglect to pay such taxes within thirty days after publication of such notice, shall be deemed a refusal to pay the same." (Charter St. Anthony, p. 14-15.) Held, this omission renders necessary either a personal demand of the tax-payer, or the publication of the notice specified. Until this is done, the collector cannot proceed to enforce the tax, and a sale so made would be void. lb. VIII. The Delinquent List. 30. Want of delinquent list, as re- quired by statute, fatal to the sale. The law required a return from the City Clerk to the County Auditor of a list of all lots, etc., upon which any tax may remain due aracZ unpaid. The Clerk returned a list of land on which taxes were " due or unpaid," attaching to said list a certificate that " the foregoing is a list of — all 'land on which taxes remain delinquent and unpaid." Held, the list was the operative instrument, the certificate only its authentication; and the return, not conforming to the statute, IS fatally defective, and gave the auditor no authority to sell. lb. IX. The Collection of the Tax. 21. A "penalty" may be collected by the summary process, authorized for the collection of taxes. Bak^r v. Kelly, 11 Minn. 480. 22. A County Treasurer may collect taxes, by distress or otherwise, on a delin- quent list, as well as on a duplicate. Piper V. Branham, 14 Minn. 548. X. Presumptions. 23. Presumption of regularity of as- sessment. The presumption from the re- turn of assessments for taxes, regular upon its face, and in the hands of the proper officer, is, prima facie, that the tax is valid, and it is incumbent on the plaintiff (tax- payer ? ) to rebut that presumption. Thomp- son V. Tinkcom, 15 Minn. 295. XI. The Sale. a. Time of Sale. ' 24. A sale of lands for delinquent taxes, made after the time designated for TAXES. 399 tho sale in the notice, is void. Prindle v. OampbeU, 9 Mian. 212. b. Notice of Sale. 25. Notice must be griven requisite time before sale. The Charter of the City of Wabashaw (Sp. L. 1858, Chap. 5, Sec. 10,) provides that the City Marshal, on re- ceipt,, of tax list, "shall give one week's notice thereof, in the official paper, or ten days' notice by posting, etc., notices to specify that taxes on personal proper- ty shall be paid within thirty days from first publication or posting of notice, and taxes, etc., on i-eal estate, sliall be paid be- fore the first day of August or first day of December — if not paid first of August, to draw interest, and if not paid first Decem- ber, to be sold, etc., for taxes, interest and costs — th(! publication or posting of notice to be deemed a demand, and a neglect to pay, deemed a refusal to pay." Held, notice of time and place of sale must be given one week or ten days (as the case may be) prior to first day of August, and a notice published for the first time on July 29th, made the subsequent proceedings void, be- cause the sale was for interest from August 1, whereas interest did not accrue until after ten days from the publication, and that did not expire until after August 1 — thus selling for more than was due. 76. 26. otlierwise fatal. Failure to publish the notice of sale of lands for de- linquent taxes, the required length of time before sale, is not such an omission in the tax proceedings as will be corrected by a clause in the tax law, declaring as direc- tory only, all requirements not affecting the substantial justice of the tax law. lb. 27. A notice of tax sale, which em- braces all lands upon which taxes ai-e as- sessed, and is not restricted to those which may be delinquent, and gives no place of sale, is void. lb. 28. Description too uncertain. An advertisement of sale of land for delin- quent taxes, describing the land as "^ of block 4, in Bass out lots," is bad for uncer- tainty. Bid-well V. Oolenum, 11 Minn. 78. 29. A notice of sale of lands for de- linquent taxes contained no further de- scription of certain premises than the fol- lowing: -'Roberts & Kandall's Addition," " Lot 11, Bl'k 20," " Lot 12, Bl'k 20," dated as follows: "Auditor's Ofiice, Ramsey County, Minn., St. Paul, December 8, 1863," nowhere describing said lots or ad- ditions as being in the City of St. Paul or Ramsey County, except as by the date of the notice. Held, the date cannot be re- garded as referring to the premises sold, or aid in their description. The notice is in- sufficient, and purchaser acquired no title. Bidwell V. Webb, 10 Minn. 59. c. Sale of Subdioidons. 30. Sale must be made in subdivisions, as assessed. A block of land "'composed and comprising ten distinct and separate lots, numbered from one to ten inclusive, which piece, parcel or tract of land had been surveyed and platted as aforesaid, and the plat thereof filed for record in the office of the Register of Deeds," etc., was assessed for taxes as one tract, and after- wards sold as one tract, for delinquent taxes. The tax law (Chap. 4, Laws 1862) provided that actions to test the validity, etc., of assessments, must be commenced prior to sale, and actions to test the validity of the sale, within one year from recording of tax deed. PlaintiflT claimed to vacate the sale, because the property was not sold in separate lots. Held, the block having been assessed in one tract, the County Treasurer had no authority to sell in lots; he must sell in the subdivision in which it is assessed, and no point being made as to the assessment, plaintiff cannot have the re- lief asked. Moulion a. Doran et al., 10 Minn. 67. XII. The Purchaser at Tax Sale. 31. Purchaser's lien not determined by an action to determine adverse claims. 400 TAXES. A parties' right to a lien on premises, by reason of money paid on land sold for de- linquent taxes, where tlie sale was illegal, can not he determined in an action to de- tei'niine adverse claims to real estate, under Sec. 1, Chap. 64, Comp. St., it not being an estate or interest within tlie meaning of the statute. Bidwell v. Webb, 10 Minn. 59. 32. Daring redemption period, has only a lien. The purchaser of land at a tax sale, under Sec. 151, Chap. 11, G. S., prior to the expiration of the period of re- demption, has not, as against the owner, an estate or interest in the land, but only a lien upon it. Brackett i>. iHlmore, 15 Minn. 245. XIII. Redemption. 33. Owner must redeem in parcels, as sold. Where property was assessed and sold in one tract, as in a block, the county officers have no power to allow the owner to redeem any subdivision of said block as one lot — not possible to ascertain the sum for which such lot was sold. Moulton v. Doran et ai., 10 Minn. 67.* 34. Redemption money received for purchaser, without deduction of fees by Treasurer, Under Chap. 4, laws of 1862, where lands sold for delinquent taxes are redeemed, the County Treasurer receives the whole sum thus paid, for the use of the purchaser or his assigns, and is not entitled to retain therefrom any portien as fees or percentage. Stuart v. Walker, 10 Minn. 296. XIV. The Tax Deed. 35. When to be made. The statute clearly authorizes the making of the tax deed before the time of redemption ex- pires. Sec. 5 and 9, tax law of 18G2. Baker V. Kelley, 11 Minn. 480. 36. When prima facie evidence. A tax deed under Sec. 139 and 140, p. 186, G.S. is prima facie evidence of title, only when it is shown that the land sold had not been redeemed when the tax deed was executed and delivered. Oreve v. Ooffin, 14 Minn. 345. 37. A tax deed under Sec. 143, p. 187, G. S., is not prima facie evidence of title when the land was charged on the tax du- plicate in any other name than that of the rightful owner, unless it Is shown that the taxes, for which the land was sold, were due and unpaid at the time of the tax sale. lb. XV. The Lien for Taxes. 38. The lien of the State for taxes em- braced in the act of 1862, (C. S., Chap. 9, Sec. 98,) attached to real estate, when the taxes were assessed thereon, that is, Avhen the amount or proportion of tax to which each parcel of real estate was subject, was fixed and determined. Wehh v. Bidwell, 15 Minn. 479. XVI. Actions to Test Validity OF Tax Proceedings. 39. Non-appearance befbre board of equalization, no estoppel. A failure to make objection as required by law, to an assessment of taxes (as by appearing be- fore the board of equalization) can not estop the owner of pi-operty, from ques- tioning its validity at any time, where the assessor had no authority to make the assessment, for in such a case the whole proceeding is void from the beginning. City of St. Paul v. Merritt, 7 Minn. 258. 40. Neglect to redeem or pay taxes, no forfeiture per se, so as to bar this action. A mere neglect to redeem the land or pay the taxes did not work such a forfeiture, as of itself to divest the plain- tiflf's title, and prevent the plaintiff from maintaining an action against the pur- chasei- at the tax sale to test the validity of the proceedings. St. Anthony Falls Water Power Co., v. Qredy, 11 Minn. 321. TENDER— TOWN'S. 401 TENDER. (See Civil Action, XXII., 2.) TENANTS IN COMMON. (See Partnership, 1.) 1. One tenant in common, as a general rule, can not have an action of trespass quare clausum fregit against auotlier, but he may have an action on the case in the nature of waste, for any misfeasance, in- jui'ious to the common jsroperty. Booth v. Sherwood, 12 Minn. 426. 2. As between tenants in common, the possession of one is tlie possession of all; and unless the property has been actually converted or destroyed, an action at law will not lie in favor of one against the other, Strong v. Goiter, 13 Minn. 83. 3. The possession of one tenant in com- mon, is presumed not to be unlawful, or adverse to his co-tenant. Berthold v. Fox et at, 13 Minn. 501. 4. M. owned 23-2oths, and B. 2-25ths of certain land, as tenants in common, which had been sold under a mortgage foreclosure, the certificate of which was held by H., dated May, 1865. M. being in possession, paid to H. a baclc tax and in- terest on purchase money, for 1866-7, and in 1868, paid the sheriff one year's interest, and whole amount of purchase money at mortgage sale, for purpose of redemption, of which H. took 23-25ths only. In 1866, B. had conveyed his legal estate in 2-25ths to H. Held, H. took by purchase at foreclos- ure, and before period of redemption ex- pired, the equitable estate or interest of a mortgagee before foreclosure, and had a right to hold such interest, for his own benefit, unless the subsequent purchase of B.'s legal estate impaired that right by merger. If there was a merger it would be a merger of the purchaser's estate to 51 the extent of 2-25ths in the legal estate convej'ed to H. by B., and would only impair H.'s rights respecting the possession during tVie time to redeem. The accepting back tax, interest, and the 23-25tlis pur- chase moiie.y showed no mei'ger, and M., by such I'ederaption annulled the sale, and took no title by means thereof, and need not have paid the sheriff only 23-25ths and interest. Horton and wife et al., c. Maffitt and wife, U Minn. 289. 5. Liabilities to each other. One own- er of an undivided moiety of real estate in possession of the whole, is not liable to another owner of the other moiety, in an action for use and occupation, where there has been no demand of possession or knowledge of the hitter's title. Holmes v. Williams et al., 16 Minn. 164. 6. Possessionof one,thatof all. In the absence of facts showing an ouster, where a party is in lawful possession of one un- divided moiety of land, he is in lawful possession of the wliole, as and for the other tenant in common. lb. TITLE. 2-) (See Evidence, 186, et. (See Pleadings, 50, et. seg., 73, 74.) TOWNS. 1. Power to pay bounties to soldiers. In the absence of statute, a town has no right to raise or appropriate money, or issue bonds for the payment of bounties to volunteers entering the United States service. Oooer v. The Town of Baytown et al, 12 Minn. 134. 2. Can not indemnify individuals for bounties voluntarily paid. Towns under Sec. 2, Chap. 8, Laws 1862, (extra session) p. 49, which provides that a * town that 403 TOWN SITES— TRESPASS. may make appropriations for bounties to soldiers, is empowered to levy a tax for a sum sufficient to cover tlie appropriation, can not assume tlie payment of money advanced to pay bounties by individuals, and issue bonds for the payment there- of, n. 3. Town scrip issued to pay bounties promising to pay the principal sum vs'ith interest at 12 per cent, annuallj-, are bind- ing both as to principal and interest, under Chap. 20, laws 1869, and judgment on such scrip will carry damages by way of interest after maturity at 7 per cent. Mc- Cutcheon v. Town of Freedom-, 15 Minn. 217. TOWN SITES. (SeeU. S. Land.) TOWN BOUNTY BONDS. (See Constitutional LAvy, V., 8,) TRANSIT R. R. CO. 1. Tlie grant by the State to the Wi- nona and St. Peter R. R. Co., of the fran- chise, etc., of the Transit R. R. Co., did not revive the latter. Under the consti- tution, the State loaned its credit to " The Transit R. R. Co.," taking as security of said company, first mortgage bonds, to- gether with a trust deed of all the prop- erty, rights, franchises, etc., of said com- pany, of every nature and kind whatso- ever, with power of sale in case of def.ault. Afterwards, on default, the State foreclosed he trust deed, and bid in all the rights, properties, etc., enumerated in the trust deed, and took a conveyance. Afterwards the Legislature, by an " Act to facilitate the construction of a railroad from Wino- na westwardly by way of St. Peter," ap- proved March 10, 1862, ^'granted, trans- ferred, and continued," to defendant "all the riglits, benefits, privileges, property, franchises, and interests, of the Transit 1'. R. Co., acquired by the State by virtue of said deed, etc." Held, the State did not re- vive the Transit R. R. Co., and continue and re-grant said franchises, rights, and property in and to it under a new name. Huff V. The Winona and Si. Peter B. B. Co., 11 Minn. 180; Hilbert v. The Winona and 8t. Peter B. B. Co., 11 Minn. 246. TRIAL BY THE COURT. (See Practice, II., 11, C.) TRIAL BY REFERENCE. (See Peactice, II. 11, D.) TRIAL BY JURY. (See Practice, IL 11, B.) TROVER. (See Injuries to Personal Prop- erty. (See Civil Action, XII.) TRESPASS. (See Injuries to Personal Prop- erty.) (See Injuries to Person.) (See Injuries to Real Property.) (See Civil Action, XII., XIV., XV.) (See Damages, VI., a. h.) (See Pleadings, B., VII., d. g., 11, 12.) TRUSTS AND TRUSTEES. 403 TRUSTEES OF SCHOOL DIS- TRICTS. (See School Districts, III.) TRUSTS AND TRUSTEES. I. Trusts how Created. II. Official Trusts. III. Who are Trustees. IV. RESULTiNa Trusts. V. Trustees. VI. Cestuis que Trust. (See Partnership, 29.) (See Deeds, 17.) I. Trusts how Created. 1. Express trusts only by deed— no re- sulting' trust where A. furnishes money to huy U. S. land in name of B. Where A. had improved government land, and was in possession, and allowed B. to enter it at land office in B.'s name, under a parol agreement that B. should convey it to A. when lie paid the purchase monej'', ffeld, immaterial whether A. borrowed the mon- ey from B., and paid for the land with It, or whether B. paid for it with his own money, because, in tlie first case, no trust could i arise in favor of A., under Statute, Sec. 7 and 8, Chap. 44, E. S., nor in the second, because express trusts can be cre- ated only by deed or conveyance — not by parol agreement, under Sec. 11, R. S., p. 203. Wentworthv. Wentworth, 2 Minn. 283. (See Infra, IV, 11.) II. Official Trusts. (See r. S. Land, 111.) 2. Duties of Judge, where the fee is burdened with an easement. Where a Judge enters land under the town site act. for the benefit of occupants and claimants, and the same lias lieen dedicated to tlie public by a statutory dedication on the part of the rightful claimant, the Judge may well convey the fee to the claimant, for the law imposes the easement on the le- gal title. City of Winona v. Huff, 11 Minn. 119. III. Who are Trustees. 3. Subsequently acquired title, when taken in trust. A grantor covenanted to make further assurance when he, liis heirs, etc., "shall hereafter acquire from the United States the fee simple, title, etc." Seld, that when the grantor so acquired title from the United States, he held in trust for the grantee, and the covenantee can compel a specific performance of the covenant of further assurance. Hope i). Stone et ai., 10 Minn. 141. 4. S. being in possession of land, and entitled to receive the patent from the United States, quit-claimed all his interest to A., adding a covenant for further assur- ance, when he acquired title from the United States. S. afterwards obtained the patent conveyed by full covenant warranty deed all his right, title, interest, etc., to H. Held, S., on receiving the patent, held the land in trust for A., and H. took only his interest : i. e., the legal title, subject to the trust in favor of A. 1 h. 5. When joint owner of a judgment collects it. Plaintift" and defendant were owners as tenants in common of a judg- ment, under an assignment wliich author- ized either to collect the same to their joint use. Defendant issued execution, which was levied on real estate, and at the sale thereof purchased the same, receiving in due time a sheriff's deed — no money being paid on the sale. Seld, fraud or bad faith nowhere appearing, nor that the purchase was not necessary to protect the assignee, although defendant took title in himself, still equity presumes defendant acted in pursuance of his trust, and not in violation of it, and defendant holds the title thereto 404 TRUSTS AND TRUSTEES. as trustee of pliiintitt' to the extent of plaintiflT's interest. Holmes et al. v. Camp- bell, 10 Minn. 401. 6. Husband purchases land, with wife's money, in his name. If a luisband receives from his wife money, being lier separate property, on a promise to invest it in her name, but in violation of sncli agreement and of the trust reposed in him, purchases land witli the same in his own name, he will take such lands in trust for his wife, and the courts will decree a conveyance to her. Bich v. Rich, 12 Minn 46S. 7. Husband and wife — resultingr trust. Where a purchase of real estate is made, and the purchase monej' paid hy a hus- band, and the conveyance is taken to the wife for the sole purpose, known and as- sented to by her, of providing a home for her in case she should survive him, with the mutual understanding, between such fius- band and wife, that in case he should sur- vive hei', the title to the premises should vest in him, and should not descend to her heirs; although it was the intention of each to have had the proper instrument in writ- ing to eflect the purpose, prepared and duly executed, no trust, express or implied, is created, or results in favor of the husband under tlie statutes of this State. Johnson V. Johnson et al., 16 Minn. 512. 8. P.Choteau Jr.,sold land to Franchere, taking the lattei's promissory notes for the unpaid purchase money, and giving bond to convey on payment of said notes jjthe ven- dee went into possession, and remained un- til 1863, when he died, leaving two of said notes unpaid, and a wido^V, besides four children by a former wife, who are plain- tiffs in this action. B}' will, he devised all his property, real and personal, to his wife for life, remainder in fee to plaintiffs. The widow died in 1868, leaving three children by a former husband, John S., Amelia, and J. W. In 186G P. Choteau, Jr., died, leav- ing, by will, all his interest in the notes and land to Chas. P. Choteau and Julia Mafflt. In 1867, said Chas. P. Choteau and Julia wrote the word "cancelled" across the two unpaid notes, delivering them to John S. aforesaid, as his agent, for the purpose of relieving said Franchere from any further payments, in consideration of faithful ser- vices done and performed bj'said F. After- wards(1867) said Charles P.O. and Julia ex- ecuted a warranty deed to Mrs. Franchere on the aforesaid consideration. John S. afore- said-has disclaimed all interest, by a war- ranty deed to plaintiffs, but said Amelia and J. W"., defendants, claim to own two- thirds of said land subject to plaintiffs' rights to conveyance, on paying two-thirds of the unpaid purchase money represented by the cancelled notes Held, the claim for purchase money, rejpresented by the notes, was not transferred to Mrs. F. by the deed to her, and defendants are mere naked trustess of the legal title to the lands for plaintiffs. Chemedhn et al. v. Prince et al., 15 Minn. 231. 9. W. and Van B. " squatted" on gov- ernment land, which was unsurveyed, and not open to settlement, agreeing between themselves that they would divide the same according to a certain line established. Both made improvements on the forty in question, through which this line run, but when the land came into market, both claimed the right to enter this quarter— they contested each other's claim, until it was finally determined on appeal to the Secre- tary of the Interior in favor of Van B., to whom a patent issued. Held, Van B. did not talce as trustee for "W. of any interest therein: said agreement being void under the preemption law, and the facts in this case show that Van B. was entitled to the patent, though the decision of the depart- ment was not final for want of judicial power. Warren v. Van Brunt et al., 12 Minn. 70. 10. Indian agent. F. sold defendants certain improvements on Indian lands, in accordance with a treaty which conferred power on the President to sell the same for the benefit of the Indians, taking a note in these terms : " For value leceived we or either of us promise to pay J. E. Fletcher, United States Indian agent, his successor in office, or order, for the use of the Win- TRUSTS AND TRUSTEES, 4(J5 nebago tribe of Indiaiis, on, etc., at etc., etc., the sum, etc., aiul it is agreed that no patent for the lands, on which the improve- ments for the purchase of which this note is given, as provided by the treaty of Feb. 27, ISSn, with the Winnebago Indi- ans, shall be issued until full payment thereof, etc." The treaty conferred power on the President to sell the property for the use of the Indians. Held, J. E. F. was not a trustee of an express trust — the con- tract was made with the United States, F. acting only as agent. St. A. D. Balcomhe v. Northup et al.. 9 Minn. 172. IV. Resulting Trusts. 11. Resulting' trust exists in favor of one wlio furnishes means to anotlier to purcliase government land. The rule laid down in this case by the Su- preme Court of the United States (Irvine v. Marshall & Barton, 2!) How. 558,) viz : that "Sec. 7, Chap. 44, p. 202, R. S., 1851, abol- ishing resulting trusts, (except in certain cases.) where land was purchased in name of one person with money of anotlier, does not apply to land purchased from the Unit- ed States," followed, as a binding authority In this case, but the opinion expressed that there are many reasons why the court wonld not wilinglj^ follow it in other cases, until reaffirmed by another decision. See Wentworth J). "VVentworth, 2 Minn. 277; in conflict with this result, ante I. Irvine v. MarshaU & Barton, 7 Minn. 286. 12. Resulting: trust may be rebutted. The resulting trust which arises in equity, in favor of a person who pays the consider- ation for land, but the conveyance is in the name of another, may be rebutted by cir- cumstances, or oral or written evidence. lb. 13. One furnisliing' means to pay for deed, etc., has no interest. S. being in- debted to the plaintift', purchased land with his own means, taliing conveyance in name of Strout, but occupying the same as home- stead. Held, plaintiff might take the land from Strout, under the statute abol- ishing resulting trusts, and making such conveyances fraudulent prima facie against creditor of the party furnishing the pur- chase money, and S. could not be heard to protect the estate, for he had no interest whatever — it lay between plaintiff and Strout — the fact of S. and family living on the same, and claiming it as a homestead, was no defense in an action by plaintiff to realize his debt against S. out of the prop- erty. Sumner et al. v. Sawtdle et al., S Minn. 309. 14. Under Sec. 5 and 7, Chap. 32, Comp. St., p. 382, a person paying the con- sideration for land which is conveyed to another, has no estate whavever, legal or equitable, and cannot be heard in any court of law or equity, claiming its aid to enforce or protect any pretended rights in the premises of whatever nature tlicj- may be. lb. 15. Occupancy of the land as a home- stead gives no claim. The presumption of fraud, as against existing creditors, which the statute provides shall arise where a person takes a conveyance of lands, which are paid for with the debtor's means, can- not be rebutted by showing that J,he debtoj- and his family occupy the same as a home- stead, and claimed tlie beneficial interest in the land as sui!h, for the debtor can have no possible interest therein, while a homestead must be owned by the debtor. J b. 16. Conveyance or deed necessary to give creditor any resulting trust. It is es- sential to the existence of a resulting trust, in favor of existing creditors of the partj- paying the consideration, under Sec. 8, Chap. 43, G. S., that it arise from some conveyance or deed. Durfeev. Pavitt et at., 14 Minn. 424. 17. Verbal contract gives creditor no claim. H. verbally contracted with A. for the sale of certain property. H. had paid the purchase money, and A. was to convey on request. Held, this state of facts gave rise to no resulting trust in favor of H.'s creditors, under Sec. 7 and 8. Chap. 43, G. S. The only right H. had, was to have the pur- chase money refunded, and liiscreditoi's by 406 TRUSTS AND TRUSTEES. proper steps could have reached tliis inter- est. Ih. 1§. Where H. has paid the purchase money under an oral agreement with A. for the purchase of iand, and for a valuable and adequate consideration, transfers his interest under such contract to P., who afterwards obtained a convej'ance from A. Held, not to vitiate the conveyance to P., in favor of a creditor of H., under Sec. 8, Ch. 43, G. S., actual fraud on part of H., in wliicli P. participated, or of which he had notice, prior to or at time of the convey- ance, was neoessaiy. Durfee v. Pavitt et al. 14 Minn. 424. 19. Statute concerning' resulting trusts relates to personal property. Plaintiff" in an action for claim and deliv- ery of personal pi-operty showed a bill of sale from B. ; defendant claimed the prop- erty as being the property of his debtor, S., the latter testified that he paid the consid- eration, but allowed the plaintiff to take the title as security for n debt he owed I)laintift". A stipulation in tlie case, con- flned defendant's claim to sucli claim as S. liad in the property. Held, under Sec. 7, Comp. St., p. 382, S. liad no interest, and as tlie evidence tending to show absence of fraud, which the statute raises presumpt- ively from such transactions, was conflict- ing, and the jury had found for plaintiff, court could not declare the conveyance void for fraud. Foster v. Berkey et al., 8 Minn. 351. 20. The statute does not relate to per- sonal property. Comp. St., Cliap. 32, re- lating to uses and trusts does not relate to pei'sonal property, and mortgages are per- sonal property witliin tlie meaning of 'the statute, so that wliere A. furinshes B. with money to purchase a mortgage in his name and holds for A.'s use, a resulting trust arises in favor of A. Baker i>. Terrell et al.. 8 Minn. 195. 21. Trust created by trust deed, made fee simple by grantor's quit-claim. Plaintiff had undertaken to convey land to defendants by a deed wliich was void for uncertainty in tlie description, and under which [defendants had entered and erected and used county buildings, and were, by its terms, to hold thereundei-, so long as they occupied it as a seat of justice, with a proviso, that if the county seat should be removed from that town, the land should revert to plaintiff, and with condition precedent that defendants should reimburse plaintiff and others the sums theretofore paid by them towards the erec- tion of said buildings. Afterwards plain- tiff, by a proper description, quit-claimed the same to defendants, together with all ills estate of reversion or remainder there- in. Held, second deed not confirmatory of the first, and a consideration being admit- ted in the quit claim, no trust resulted in favor of plaintiff, and defendants were vested with the fee simple in the land — and this tliough the first conveyance had not been void. McKusink ». Tlie Commis- sionersof Washington Co., 16 Minn. 151. V. Trustees. 22. Liability of trustee. When a party takes title and possession of land subject to an outstanding contract of sale, which gave the contractee possession, under circumstances which tend to show that the contractee had abandoned the contract, such contractee, or his assigns, cannot charge sucli purchaser with anything but the actual profits of the land prior to the time he was actually informed of the con- tractee's claims. Smith v. Gibson, 15 Minn. 89. 23. Eights of Trustees. In an action to set aside certain deeds as fraudulent and declare tlie grantee therein trustee of plaintiff, after judgment but pending stay, the court could not compel the trustee to turn the rents and profits of the land over to the blierift", to be converted into money, and held subject to tlie older of the court; for the ti'ustee being so at the prayer of the complainant, he was entitled to possession of property and rents and profits, except in case of abuse of liis trust or like circum- stances, which was not shown in tliis case. Mower et al. v. Hanford, Minn. ."iS."). UNITED STATES LAND. 407 VI. Cestuis Quk Tuust. 24. Rights, A puroli.ise at a sale by a trustee is midabh, at the option of the cestui que trust, but not as to stranger, if regular in other respects. Baldwin v. Al- lison, 4 Minn. 25. UNITED STATES LAND. I. Genekally. II. PuB-BMPTioN Act. III. Town Site Act. (See Mortgages, VII., 6.) (See Grants.) (See Trusts and Teusteb, 1, 8.) I. Generally. 1. On making: sufficient proof, right of applicant vests, and patent relates back to such time. When proof of occupation and settlement is made to the proper gov- ernment offlcer, the party is entitled eo in- stanti to the benetlts of the act under which he makes his improvements, and if those acts are subsequently recognized by the government issuing to him a patent, no subsequent settler can question the former title, for he had notice of the former set- tlement, and the rights_^of the first settler had become vested. Leech v. Mauch, 3 Minn. 448. 2. When can State Courts review de- cisions of United States land oflcersj United ^tates land officers act judicially in determining whether a party has made the necessary settlement on public lands to entitle him to n patent. Tlieir decision, however, can be reviewed by the State Courts on the grouid of fraud, but the simple suggestion of fraud will not be sufficient; it must further appear that complainant had no notice, and was not heard, and was ignorant of the proceedings in the land office until too late to obtain redress there, and without fault of his own he is placed in such a position that no relief can be obtained elsewhere. Slate v. Batch- elder, 5 Minn. 233. 3. State control over U. S. lands. United States land within the limits of this State are subject to the same control by the State government as any other lands over which its jurisdiction extends, except in those cases provided for by Sec. 3, Art. 3, State Constitution, viz.: State cannot in- terfere with the primary disposal of the soil witliin the same by the U. S., or with any regulations Congress may tlnd neces- sary for securing the title in said soil to honafide purchasers thereof, nor shall any tax be imposed on land of the U. S., nor non-resident proprietors taxed higher than i-esidents. lb. 4. Jfo right can exist in unsurveyed lands. A quit claim deed of uDSurve}'-ed United States lands is inoperative and void ; an occupant on unsurveyed public lands is a trespasser. GoU ». Maxfield, 13 Minn. 235. II. Pre-emption Act. 5. Requisites of a pre-emption. To constitute a valid right of pre-emption under the act of 1S41, the spirit and terms of tlie law require a personal settlement by the claimant upon the land, and the orig- inal settlement must be followed by occu- pancy of tlie land, as the home of tlie set- tler ; the erection of a dwelling house thei-eon, and the cultivation or improve- ment of the land. What constitutes such occupancy or improvements depends upon the facts of each particular case, and no absolute rule can be laid down. In the case of a married man, the settlement may be made originally without the presence of his family, and the time when his family must follow may be different in different cases. The only rule that can be laid down is that the settlement and occupancy must, under all the circumstances be reasonable as to time and manner, and show ahona fide intention to occupy and improve the 408 UNITED STATES LAND. premises. KeUey v. Wallace et al, 14: Minn. 236. 6. A parby olairniiig title by a pre- emption riglit must prove actual residence upon the land and improvements made by him. Brisbois v. Sibley & Roberts, 1 Minn. 230. 7. For a statement of facts which suf- ficiently excuse a preemptor from follovif- ing up his occupancy to land, see Kelley v. Wallace et al, 14 Minn. 236. 8. Assignee of pre-einptor takes sub- ject to approval of the department. Where one enters a piece of U. S. land, and pays the purchase price to the local land officer, such entry is subject to the ap- Ijroval of the Department ; and if after- wards cancelled for want of compliance with the preemption laws (as it may be), and the money returned, the preemptor and his assigns lose all interest in the land, tliough the latter pui'diased in good faith before tlie cancellation — for he took sub- ject to the liability of cancellation. San- dall V. Edert, 7 Minn. 450. 9. All parties who purchase from a preiimptor prior to the consummation of the entry, take subject to the power of the upper office to confirm or cancel^the entry that existed in relation to the original pur- chaser. Oray et al. v. Stockton, S Minn. 529. 10. Pre-emptor may assign his inter- est from time of entry. The prohibition contained in Sec. 12, Act of Congress. Sept. 4, 1841, is intended only to prevent the transfer of the mere right of preemp- tion prior to the time of entry, and the assignment of the certificate of purchase in such a manner as to enable the assignee to secu]-e the patent in his own name. The right to assign the land, or his interest therein, according to the laws of the State, is complete In the preemptor from the time of his purchase and entry (preemption); when the patent issues, it inures to the benefit of his grantee; and the State alone has power to regulate the force and effect of contracts relating co land within its lim- its, between its citizens and those seeking aid of its courts, and is alone competent to prescribe what is evidence of title. Gamp 0. Smith, 2 Minn. 174. 11. Pre-emptor may mortgage to se- cure tlie purchase money. Allen, a pre- emptor on govei'nment land, before prov- ing up and paying for the same, entered into an arrangement with W. for the pur- chase of two land warrants, the price to be secured by his note and a mortgage on the land. When A. made his proofs at the land office, W. was present, and delivered the land warrants immediately thereafter, one of them to the land officer in payment for the land. Thereupon A. executed his note and mortgage on the land, to W. Held, the mortgage void as to W., and all except bona fide purchase's for value — fol- lowing McCue «. Smith, 9 Minn. 252. Ber- ry, J., dissents. See remarks in same case on motion for re-argument, p. 343, when the majority of the court (differently con- stituted) say they would not be bound by this decision in another case, and would ex- amine it as res nova. Woodbury t>. Bar- man, 15 Minn. 338. (See Contracts.) 12. None but the United States can question pre-emptor's illegal contract. The title of a preemptor who has entered into contract concerning the land before pregmptiou, is good against all the world except the United States — no one else can insist on a forfeiture. lb. III. Town Site Act. 13. Bequisite of "Town Site" occu- pancy. The "occupancy" required by the U. S. Town Site Act of 1844, is differ- ent from the "occupancy" required by the act of 1841 (U. S.) for preemption of agricultural lands. The latter has Umita- tions, which the former has not. The re- quisites of the act << 1844 are complied with by settling upon and "occupying as a town site, " — not so with the other. Whether the law in either case has been complied with, is for the U. S. Land Officers to deter- mine, and on appeal from them to their UNITED STATES LAND. 409 superiors— but never for the State courts. Leech v. Ranch, 3 Minu. 44S. 14. To constitute a person a benefi- ciary under the town site act of the United States, there must at least be occupancy either actual or constructive; and where neither exists, no trust arises. Carson et ai. i>. Smith et al., 12 Minn. 546. 15. To reserve laud, as town sites, from preemption, under the existing laws, actual bona fide settlement and occupation of the land as a town site is necessary ; the mere selection by surveying and platting the ground into blocks, lots, streets, etc., will not be sufficient. lb. 16. Claimant's interest vests on ftling sufficient proofs. Occupants on town site having shown, under act of 1844, at time of application they had performed all the conditions necessary to enable them to en- ter the land for their use and benefit, and the tribunal of last i-esort having so ad- judged, it was not in the power of any offi- cer or set of officers to deprive occupants of their rights under such decision, by per- mitting an entry to be made upon other proof, or by another person. The District Judge having made the entry as trustee of the occupants, his successor would hold the title in trust for those interested, under the decision of the tribunal of last resort. Oastner '0. Ounther, 6 Minn. 119; Castner v. Eckard, 6 Minn. 149; Gastner v. Lowry, 6 Minn. 149. 17, — -After the performance of the con- ditions necessary to authorize the entry of lands, under act of 1844, as a town site, and the actual entry and sufficient proof, no other persons can settle upon or occupy any vacant lot or parcel, and thus secure a title, pending the^decision. Oastner ». Gun- ther, 6 Minn. 119; Oastner u. EcJtard, 6 Minn. 149 ; Oastner v. Lowry, 6 Minn. 149. 1§. State courts cannot inquire into sufficiency of proofs before land officers. The sufficiency of proofs, under the Town Site Act of 1844, to justify the decision of the Secretary of the Interior, and the en- try of lands in accordance therewith, can- not be the subject of inquiry in actions be- 52 tween claimants under such entry. Oast- ner i>. Ounther, 6 Minn. 119; Oastner v. Echard, Minn. 149 ; Gastner i>. Lowry, 6 Minn. 149. 19. A uon-resident may have an inter- est in unsnrveyed lands of the TJ. S., witliin this State, under the act of August -I, 1854, LT. S. Statutes, by means of an agent, fairly on the land, and the neces- sary improvements— following Davis & Barnes ». Murphy, 3 Minn. 119, and Leech «> Ranch, 3 Minn. 448. Oarson <& Eaton v. Smith, 5 Minn. 78. 20. Contracts concerning- unsurveyed lands. Under the act of August 4, 1854, the settlement of unsurveyed lands of the United States, for town site purposes, was legalized; hence, contracts relating there- to were legal — following Carson & Eaton V. Smith, 5 Minn. 89. \\ood v. CuUen, impL, etc., 13 Minn. 394. 21. Duplicate, effect of. A party claim- ing under the Toion Site Act of Congress, May 23, 1844, attempting to show that he has entered according to the act, and gov- ernment has parted with its title, nothing is pertinent save an inquiry into whether the proper land officer or department has authorized tlie entry of the same as a town site. And it is for the U. S. officer to de- termine the regularity of the entry, suffi- ciency of proof on part of claimant — not for the State courts — the duplicate is con- clusive. Leech v. Bauch, 3 Minn. 448. 22. Action between claimants to town site land — requisites of pleadings. Un- der the statute of March 3, 1855, concern- ing settlement' of adverse claims under the U. S. Town Site Act, the plaintiflF must set up his title fully, but need only state that defendant claims some interest or estate therein. The def endantjoannot simply deny the plain tifl's title, but must set up his title in detail, and the one having the better title recovers as against the other. Oastner V. Chmther, 6 Mmn. 119 ; Gastner v. Echard, 6 Minn. 149 ; Oastner v. Lowry, 6 Minn. 149. 23. Heirs of occupant— not wife— are entitled to conveyance from the trustee, 410 UNITED STATES PATENT. subject to wife's dower. On March 21, 1856, certain occupants of the present site of Mankato submitted proof of their occu- pation, and applied to have the same en- tered as a town site, under the U. S. act therefor of 1844. A. was one of those occu- pants, and on May 29, 1856, quit-claimed his interest as such occupant to B., who re- mained on tiie same until his death, on May 28, 1857. The town site entry was made, on the aforesaid proofs, March 6, 1858, and patent issued to the proper judge in trust for the aforesaid occupants, their heirs or assigns, June 10, 1858. (See Leech V. Rauch, 3 Minn. 448.) A.'s widow and infant children (plaintiffs) continued to live on the premises until September, 1860, up to which time all said children were minors. The trustee, under Sec. 3 and 4, Chap. 33, Comp. St., p. 386, gave notice to claimants to tile statement of their claim, within thirty days, as required by statute, from date of notice, April, 1858. The re- quired statement was not filed by plain- tiffs as heirs of A. deceased, but their mother, wife of A., filed a statement, claiming to be entitled in ;her own right. Whereupon the trustee conveyed to her in fee, in execution of the trust, and defend- ants are bona fide purchasers under her. Meld, the trustee was bound to convey- under the statute — to the person entitled, and was not bound by the statement of plaintiffs' mother. Her claim being ground- less, she toolt no title. Nor are plaintiffs barred from questioning the validity of such conveyance by a failure to file the statement, under the statute, which de- clares (Sec. 4, ante,) that all persons fail- ing to file statement within the time " shall be forever barred the right of claiming or recovering such land," * * for infants were not intended to be included within such provision, under general principles of law, and defendants took title with con- structive notice that the trustee, under whom they claim, took title in trust for the occupant on March 21, 1856, his heirs or assigns, and they were bound to inquire who such persons were — (Leech v. Rauch, 3 Minn, 449.) Plaintiffs entitled to con- veyance from defendants, subject to w-lfe's dower. Coy et al. v. Coy et al., 15 Minn. 119. UNITED STATES MARSHAL. 1. Power under bankruptcy warrant to seize property in hands of sheriff of State. A United States Marshal is not au- thorized, simply by a warrant in bank- ruptcy issued out of a District Court of the I United States, commanding him to take i possession of all the property and effects of a person against wliom proceedings in bankruptcy have been instituted, and to safely keep the same until the further or- der nf such court, to take from the posses- sion of a sheriff of this State personal property held by such sheriff, by virtue of a levy of final process of execution issued out of a State court, and levied before the commencement of the proceedings in bank- ruptcy. MolUson V. Eaton, 16 Minn. 426. UNITED STATES OFFICERS. (See Agenct, 24.) UNITED STATES PATENT. (See Equity, 30.) (See Grants.) 1. The validity of a United States pat- ent under which defendant claims title to real estate, may be tried in the State courts in the first instance. State v. Batchelder, 5 Minu. 223. 2. In an action brought under Sec. 1, Comp. St., p. 595, to quiet title to real es- tate, the validity of a patent from the United States may he brought in question. lb. UNDERTAKINGS-VACATION OF PLATS. 411 3. In the absence of statute, the rule is, that patents from the State or United States cannot he impeached at law— as in ejectment— unless they are absolutely void on the face of them, or they were issued without authority, or were prohibited by statute— they must be avoided by a regular course of pleading in equity, by which the fraud, irregularity or mistake is directly put in issue, lb. 4. Where W. & P. take a patent from the United States as the assignee of the party originally entitled, and such assign- ment is assailed as fraudulent, they cannot protect themselves on the ground that the patent is conclusive evidence of their rights to the land. Arper v. Baze, 9 Minn. 108. UNDERTAKINGS. (See Civil Action, VIII., IX.) 1. Undertaking an appeal from an order. By the terms of an undertaking on appeal from an order — before entry of judgment — the appellants bound themselves "if said judgment be affirmed, or any part thereof be affirmed," to pay the amount di- rected to be paid by the judgment, or the part of such amount as to which the judg- ment shall be alffirmed. The appellate court directed " that the order appealed from be reversed unless the plaintiff should remit," a certain part of the damages, found by the verdict " in which event the District Court was instructed to permit the plaintiff to enter judgment upon the verdict in ac- cordance with said order." Held, this was not a modification of a judgment, but an order, and not, by the terms of the under- taking, the contingency on which the par- ties to the same agreed to pay, and a refu- sal to pay the judgment finally entered was no breach. Galloway v. Yates et al., 10 Minn. 75. 2. On an appeal from an order deny- ing a motion to set aside a verdict (no judg- ment having been entered) ■\\\ undertalcing by which the parties thereto bind them- selves, in case a judgment (which has no existence) " be affirmed, or any part there- of be affirmed," that they will "pay the amount directed to be paid by the judg- ment, or the part of such amount as to which the judgment shall be affirmed," possesses no force or vitality whatever, lb. 3. An undertaking executed on the issuing of a void attachment, is itself void, and no action can be maintained upon it. Jacohy v. Drew et al., 11 Minn. 408. 4. Obligors in an undertaking on ap- peal are liable as promissors, and do not come within the rule governing the liability of sureties. Rohertmn v. Davidson, H Minn. 554. UTTERING COUNTERFEIT BILLS. (See Ckiminal La.w, 40.) USE AND OCCUPATION. (See Civil Action, V.) VACATION OF PLATS. 1. Chap. 26, Comp. St., p. 371, Sec. 12, et seg., concerning vacation and abandon- ment of towns, plats, etc., refers to lands owned by the parties at time of the record of the plat — not to oases where the plat was filed while the title was in the United States — the latter may be vacated by any act which will let other parties in to claim a settlement. Weisberger v. Tenny, 8 Minn. 456. 412 VENDOK AND PURCHASER. VACANCY. (See Office and Officer, IV.) VALUE. (See Pleadings, 65, 77.) VARIANCE. (See New Trial, II., e.) (See Practice, II., 11., B./.) VENDOR AND PURCHASER. I. Vendor. II. Vendor's Assignee. III. Purchaser. (See Civil Action, IX.) (See Equity, 7, et seq.) I. The Vendor. 1. Tender's equitable lien. An equit- able lien on lands for ttie purchase money exists unless waived by the vendor, or it has passed into the hands of a bona fide pur- chaser, without notice. Sdby v. Stanley, 4 Minn. 65. 2. ^how lost. Whenever the vendor shall talve any security for purchase money upon the land sold, or upon any other land, or by pledge of chatties, or by abso- lute or conditional obligation of a third person, or any other security than the per- sonal obligation or promise of the vendee, such fact shall be deemed conclusive of his intention to abandon his equitable lien unless he retain it by express agree- ment, lb. 3. The vendor by taking any security for the purchase money, other than the personal obligation or promise of the ven- dee, loses his equitable lien for the pur- chase money, unless expressly retained — following Selby i>. Stanley et al., 4 Minn. 65. Daughaday v. Paine et al., 6 Minn. 443. 4. Lien preserved, by want of consid- eration. A. sold land to B., October 30, 1856, taking three land warrants from B. in part payment, relying upon B.'s repre- sentations that he was the owner thereof. The warrants were genuine, but the assign- ments thereof to B, were forged, though both A. and B. were ignorant of that fact, and believed tliat the assignments were genuine, and there was no intent on the part of B. to deceive or defraud A. A. discovered the forgery as to two of the as- signments in 1861, and of the third in 1863. Held, A. acquii-ed no title to the warrants, and as to that, such part of the purchase money, in payment whereof said warrants were so taken, remained in fact unpaid, and A. had an equitable lien therefor on the land. Duke v. Balme et al., 16 Minn. 306. II. Vendor's Assignee. 5. Effect of redemption by, from exe- cution sale, as against junior incumbran- cer. -A. purchased land of B., which had already been sold on a judgment against B., and on which there was a mortgage lien as a second incumbrance. A. re- deemed from the judgment sale, and claimed the rights of a purchaser at the sale, as against the mortgagee, who had failed to redeem. Held, A.'s redemption was the same as though the judgment debt- or (B.) had redeemed, and the land was still subject to the mortgage — following Warren v. Fish, 7 Minn. 433. Rutherford t>. Newman, 8 Minn. 47. 6. Entitled to tender of balance of purchase money. Brown having given a bond for a deed to plaintiifs, conveyed the estate to Bass, with notice. Held, Bass, and not Brown, was the person to whom ten- der of the money should be made, and of whom deed should be demanded. Bt. Paul Division No. 1 Sotis of T. ». Brown et al., 9 Minn. 157. VERDICT— WAIVER. 413 7. Equitable lien for purchase money. F. sold land to M.'s wife, and received in part payment M.'s promissory note, which he transferred to G. Seld, G. had no ven- dor's lien. Gorton v. Massey et at, 12 Minn. 145. III. Purchaser. 8. A grantee of land who pays no new consideration, takes snbject to all claims and equities that could have been urged against his gi'antor. Baze v. Arper, 6 Minn. 220. 9. Where an unrecorded conveyance is good against E., an attaching creditor of the grantor, in the absence of fraud, it is equally good against R.'s grantee, though he took without notice of the deed, because he took only his grantor's title. lb. 10. Bound by record notice of vendor's lien. A purchaser of real estate is bound by noLice of n vendor's equitable lien for the purchase money of the same, disclosed In the instruments forming his chain of title. Daughaday v. Paine et al., 6 Minn. 443. 11. Where a purchaser takes title on the strength of an abstract of title, which fails to state the contents of the convey- ances, it is such negligence as not to excuse him from notice of the existence of any incumbrance which is referred to in any of the conveyances in his chain of title. lb. 12. 'Withholding' purchase money. A purchaser of real estate will not be allowed to retain or withhold any portion of the purchase money, in the absence of fraud and misrepresentation, where there are no covenants of warranty — the presumption being (in the absence of covenants) that he takes the risk upon himself; and where the necessary covenant does exist, and a defect of title, he is presumed to have taken the covenant as an express protec- tion against such defect, and cannot there- fore detain the purchase money, until after the covenant has been broken. Maxfield V. Sierbauer et al., 8 Minn. 413. 13. Recovering purcliase money. Where certain property (cattle) was re- ceived by the vendor of land in part pay- ment, at $70.00 — and by subsequent acts the vendee becomes entitled to recover back the amount he has paid, he may re- cover the sum of $70.00. Bennett d. Phelps etal., 12 Minn. 326. VERDICT. (See New Trial, II., d.) (See Practice, II., 11, B., Pacific B. E. Oo. et al., 10 Minn. 82. 3. riglit to erect dam on liis own land— liable for proximate injuries only. A riparian owner may erect a dam across a stream on his own land, without being li- able for consequences casual, remote and uncertain ; he is only liable for injuries which are the necessary or proximate con- sequences or effects of the dam ; he is not liable consequently for an injury caused by the act of God, though such event, in the absence of the dam, would not have caused the injury; but an ''act of God "means an accident against which ordinary skill and foresight is not expected to provide ; this applied to water-courses would include only floods or extraordinary freshets, and not such rises or high water in a stream as is usual and ordinarj'^, and reasonably an- ticipated at particular periods of the year. Dorman v. Ames & George, 12 Minn. 451. 4. flowing water back on land of an- other. One man lias no right to erect a mill-dam on his own land, so as to throw the water back and overflow the land of another \vithout liis consent, and where any flowage is shown, though without proof of any actual damages, the plaintitt' is entitled to recover nominal damages for the injury, and flowage for a day or an hour is suflici- ent to maintain an action, it being an ob- struction to the free use of property, so as to interfere with its comfortable enjoyment within Sec. 25, p. 541, G. S., as well as the common law. Ih. 5. Bight to flow the water back in its natural stale to his neighbor's line. A riparian owner may keep his dam at such a height as to swell the water in the channel of the stream, in its natural state, up to his neighbor's line. Such '^natural state " of the stream is that in which the stream is under the ordinary operation of the physical laws which affect it ; this may be different, at difl'erent seasons of the year, and yet be or- dinary by the recurrence of the same con- dition about the same season of the year ; it may, ordinarily, be high a portion of the season, and low at another portion, and at another it may be at a medium stage, yet as these are ordinary by reason of their an- nual or frequent recurrence, so tiiat a vari- ation therefrom is an exception, they are the "natural aondition'" of the stream. For all injuries caused by a dam, in such rises or high water in the stream as are usual, ordinary, and reasonably anticipat- ed, at any particular period of the year, the riparian owner is liable. lb. 6. Theoretical or imperceptible inju- ries. Certain injuries, which result from the use of~a water-course, are recognized as ■' damnum absque injuria,'''' e. g.: the in- sensible evaporation and decrease of water by dams, and the occasional increase and decrease' of the velocity of the current, and the quantum of the water. These injuries are designated as theoretical or impercept- ible injuries. Since a water-course cannot be applied to the most valuable uses with- out the aid of a dam, everj' owner has the right to erect such dam, and the question as to the right of action turns upon the na- ture and extent of the injury, and one which is merely theoretical, the law will not notice. lb. WILLFUL KILLING OF HORSES, ETC. 415 WILLFUL AND MALICIOUS KILLING OF HORSES, ETC. (See Ceiminal Law, 189, et seg.) WILLS. 1. A devise iii a will to David Young of " the north half of the real estate, divided from east to west," and to Jacob B. Toung of "the southjhalf of the real estate "is not void for uncertainty — the court will as- certain by extrinsic evidence the meaning, and give effect to the provision when so as- certained. Case et al. n. Toung, 3 Minn. 209. M. Sec. 27, R. S., (1851), p. 338, which provides for any child, or the issue of any child, which ^was unintentionally omitted in testator's will, talilng such share as by law it would be entitled to — does not ex- tend to include one who is mentioned in the will, and who, from its terms, is not to receive any benefit beyond a limited sum. n. 3. The will of P., after making diverse bequests, devises, and legacies, to seven different persons, contained ^the following residuary clause : "all the rest, residue and remainder of my estate, of which I shall die seized and possessed, or to which I may be entitled at my decease, I give and be- queath to my beloved wife, Emily A. L. P., subject to the payment of my debts and charges ; and her rights under this residu- ary provision shall not be effected or changed by the birth of any child of mine, if any shall be born to me before or after my decease. Hdd, under Sec. 23, Chap. 47, G. S., a child born afterwards took nothing, a contrary intention being " ap- parent from the will." Prentisetal, v.Pren- tis et al., 14 Minn. IS. WITNESSES. (See Deeds, 3.) (See Practice, II., 11, B. c. d.) (See Evidence, XII.) (See Criminal Law, 29, et seq.) WORK, LABOR, AND SER- VICES. (See Civil Action, VI.) WRITS OF PROHIBITION. (See Prohibition, Writ of.) A TABLE OF OVERRULED, AFFIRMED, MODIFIED, AND DISCUSSED CASES. 53 (417) A TABLE OF CASES OVERRULED, ETC. Agin T. Heyward. 6 Minn. 110. Jurisdiction, followed in Southern Minn. R. R. Co., «. Stod- dard, 6 Minn. 150. Fowler, et al., v. Atkinson, 6 Minn. 503. Cresset u. Gierman etcU.,1 Minn. 398. Thayer v. Cole, 10 Minn. 315. Ames V. 3Iiss. Boom Co., § Minn. 467. Appeal, followed in Von Glahn v. Sumner, 11 Minn. 203. CONKLiN V. Hinds, (new trial,) 16 Minn. 457. Atherton v. Sherwood, 15 Minn. 221, Mandamus, followed in State ex rel., Biggs v. Churchill, 15 Minn. 455. Babcock et al. r. Sanborn et al„ 3 Minn. 141. Followed tliroughout in Daniels v. Bradley, 4 Minn. 158. Daniels v. Harris et al., 4 Minn. 169. Daniels v. Allen, 4 Minn. 170. Daniels v. Wainwright, 4 Minn. 171. And as to reviewing taxation of costs, oveiTuled in Eetnolds b. Lacrosse & Minn. Pk't Co., 1 Minn. 178. Practice, Washburn v. "WinslOw, 16 Minn. 33. Bailey v. Merritt, 7 Minn. 159. Followed, S. C. in 8 Minn. 84. Baker et al. v. City of St. Paul, § Minn. 492. Dedication, followed in City op Winona b.Huff, 11 Minn. 119. Baker v. Kelly, 11 Minn. 496. Oonstitutional Law, followed in Beauprb v. Hoerr, 13 Minn. 366. Baldwin t. Allison, 4 Minn. 25. Mortgage Sale, followed in Kent v. Chalfant, 7 Minn. 487. Baldwin r. Blanchard 15 Minn. 4S9. Exception, followed in JuDSON V. Rbardon, 16 Minn. 431. Banker t. Brent, 4 Minn. 521. Discussed in Bennett et al. v. Healby, 6 Minn. 240. Banning^ v. Sibley, 3 Minn. 398. Garnishment. Chase «. North et al.,i Minn. 3S1. 420 CASES OVEREULED, ETC. Cole v. Sater, 5 Minn. 468. Barnsback v. Reiner, § Minn. 63. Practice, followed In Warner ». Mykick, IS Minn. 91. Bassett t. Stone, 4 Minn. 29§. Bedemption, followed in GOENER V. SCHROEDER, 8 Minn. 378. Bass et al. v. Upton, 1 Minn. 40§. Approved in Daniels v. Bradley, 4 Minn. 158. Baze v. Arper, 6 Minn. 220. Acknowledgments, followed in Thompson ef al. v. Morgan, 6 Minn. 292. Board of Supervisors of Kamsey Co. v. Heenan, 2 Minn. 330. Constitutional Law, followed in Tdttle ». Strout, 7 Minn. 465. Belote r. Morrison, § Minn. 94. Pleading, overruled in HOLTON v. Meighbn, 15 Minn. 69. Bennett v. McGradc, 13 Minn. 132. Satisfaction of Judgment, followed in First Nat'l Bank of Hastings v. Rogers et al., 15 Minn. 381. Bernlieimer v. Marsliall et al., 2 Minn. 78. Approved in Scott «. Edes, 3 Minn. 377. Birtwell V. WJiitney, 4 Minn. 76. Approved in Cdlbbrtson v. Lennon, 4 Minn. 51. Considered in Bennett et al. v. Healet, 6 Minn. 240. Bailey v. Merritt, 7 Minn. 159. And explained in Montgomery v. McEwen. 9 Minn. 103. Bilanski v. State, 3 Minn. 427. Jtiry, followed in State v. Ryan, 13 Minn. 870. Blackman v. Wlieaton, 13 Minn. 326. Variance, followed in Washburn v. Winslow, 16 Minn. 33. Bond T. Corbett, 2 Minn. 248. Evidence, approved in Caldvtell ®. Brtjggerman, 4 Minn. 270. Bonfanti v. State, 2 Minn. 131. Burden of Proof, followed in State v. Brown, 12 Minn. 538. State v. Gut, 13 Minn. 341. Brimhall t. Tan Campen, 8 Minn. 13. Illegal Contract, followed in Finney v. Callendar, 8 Minn. 41. Finley v. Quirk, 9 Minn. 194. Brown v. Manning', 3 Minn. 35. Covenant, discussed in LoWRY V. HuED et al., 7 Minn. 356. Bruggerraan v. Hoerr et al., 7 Minn. 337. Grantee of Judgment Dehtor, qualified in Ferguson v. Kumler, 11 Minn. 104. Buckholtz et al. v. Grant et al., 15 Minn. 406. Pleading, followed in Buckholtz et al. v. Grant et al, 16 Minn. 158. Burt v. McEinstry, 4 Minn. 204. Evidence, followed in Derby etal. v. Gallup, 5 Minn. 119. Zimmerman v. Lamb et al., 7 Minn. 431. Howl AND v. Fuller, 8 Minn. 50. Assignment, considered in GuERiN V. Hunt et al, 8 Minn. 477. Burwell v. Tullis, 12 Minn. 572. Judgment Lien, followed in Dana et al. v. Porter et al., 14 Minn. 478. CASES OVERRULED, ETC. 421 Davidson v. Gaston, 16 Minn. 230. Lampkey v. Davidson, 16 Minn. 480. Camp v. Smith, 2 Minu. 155. Jurisdiction of U. S. over its Lands, approved in State ». Batcheldek, 5 Minn. 323. Discussed in Kandai/L v. Edebt, 7 Minn. 450. As to Preemption, explained in Gray et al. v. Stockton, 8 Minn. 529. Carli v. Stillwater & St. Paul R. R. Co., 16 Minn. 260. Followed in SCHEBMEBLY V. STILLWATER & ST. Paul R. R. Co., 16 Minn. 506. Carpenter v. Leonard, 5 Minn. 155. Mechanics^ Lien, followed in TUTTLB B. Howe ef at., 14 Minn. 145. Carson et al. v. Smith, 5 Minn. 78. Followed in Cakson et al. v. Smith et al., 12 Minn. 546. Wood v. Ctjllen, impl'd, etc., 13 Minn. 394. {Settlement on U. 8. Lands.) Castner v. Gunther, 6 Minn. 119. Aetion to enforce Official Trust, follow- ed in Cathoart 1}. Peck et al., 11 Minn. 45. V. Steamboat Dr. Frankliu, 1 Minn. 73. Cliarge of Court, followed in Foster v. Bbrkey, 8 Minn. 351. Castner et al. v. Chandler et al., 2 Minn. S6. Jurisdiction, considered in Agin v. Heyward, 6 Minn. 110. Disregarded in Southern Minn. R. R. Co. v. Stod- dard, 6 Minn. 150. Chapman v. Dodd, 10 Minn. 350. Discussed in Cole b. Ctjktis et al., 15 Minn. 182. Chase v. North et al., 4 Minn, 3§1. Garnishment, followed in Cole v. Sater, 5 Minn. 468. Chaska Co. t. The Supervisors of Carver Co., 6 Minn. 204. County Commissioners, followed in NiNiNGER V. Commissioners of Cak- VBR Co., 10 Minn. 133. Colt V. Waples et al., 1 Minn. 134. Practice,, followed in Wakefield v. Spencer, 8 Minn. 376. Colbath V. Buck, 7 Minn. 310. Followed in Colbath v. Buck, 8 Minn. 85. Cole V. Maxfleld, 13 Minn. 235. New IVial, followed in Clagub v. Hodgson, 16 Minn. 329. Coombs V. Cooper, 5 Minn. 254. Estoppel, approved in Wbller v. City of St. Paul, 12 Minn. 192. Coombs et al. v. Thompson, 2 Minn. 139. Evidence, followed in Pbckham v. Gilman et al., 7 Minn. 446. Comer v. Folsom, 13 Minn. 219. Constitutional Law, followed in WmSLOw^ 11. BuCKMAN, 13 Minn. 441. Connor v. The Board of Education et al., 10 Minn. 439. Demurrer, followed in Metzner et al. v. Baldwin et al., 11 Minn. 150. Converse v. Bariows et al.,2 Minn. 240. Retrospective Statutes, followed in MoNamaka v. Minnesota Central R. R. Co., 13 Minn. 388. Cooper et al. v. Reaney, 4 Minn. 528. I Foreif/n Laws, followed in 422 CASES OVERRULED, ETC. Desnoyeb v. McDonald, Giessb & Co., 4 Minn. 515. Beimhall d. Van Campen, 8 Minn. 13. Cressy v. Giermaii, 7 Minn. 407. Jurisdiction, followed in Thayer v. Cole, 10 Minn. 215. Crowell T. Lambert, 10 Minn. 369. Mleetions, followed in Atherton i>. Sherwood, 15 Minn. 221. Cnininin^s v. Heard, 2 Minn. 34. St. Paul Division No. 1, S. of T., v. Brown et al.,d Minn. 151. Cnrtis t. Moore, 3 Minn. 29. Attachment, followed in McKdbin et al. v. Smith, 5 Minn. 367. Morrison et al. o. Love jot et al., 6 Minn. 183. Dalil et al. t. Pross, 6 Minn. §9. Bond for a Detd, followed in Dkbw et al. ii. Smith, 7 Minn. 301. Daley v. City of St. Paul, 7 Minn. 390. Municipal Corporation, followed in STash v. The City of St. Paul, 8 Minn. 172. Dana et al. v. Farrington, 4 Minn. 433. Mortgages, discussed in Banning et al. v. Armstrong, 7 Minn. 46. Davidson v. Owens, 5 Minn. 69. Attachment, followed in Morrison et al. v. Lovejoy et al., 6 Minn. 183. Richards et al. v. White, 7 Minn. 345. Davidson v. Gaston et al., 16 Minn. 230. Judgment Lien, followed in Lamprey v. Davidson et al., 16 Minn. 480. Davis et al. v. Mnrpliy, 3 Minn. 119. Occupant on Public Lands, followed in Carson et al. v. Smith, 5 Minn. 78. Davis V. Pierse, 7 Minn. IS. Constitutional Law, followed in McFarland v. Butler, 8 Minn. 116. Jackson v. Butler, 8 Minn. 117. Dean v. Leonard, 9 Minn. 190. Negative pregnant, followed in Hecklin v. Ess, 16 Minn. 51. Pottgeiser v. Dorn, 16 Minn. 204. Derby et al. v. Gallup, 5 Minn. 119. Pleading, approved in Zimmerman v. Lamb et al., 7 Minn. 421. Scott ■». King, 7 Minn. 494. HowLAND V. Fuller, Evid-ence, 8 Minn. 50. Woodbury v. Dorman, Practice, 15 Minn. 338. Deuel V. Hawke, 2 Minn. 50. Explained in Sherrard v. Frazer et al., 6 Minn, 572. Dodge V. Hollinsltead, 6 Minn. 2S. Acknowledgments, followed in Annan v. Folsom, 6 Minn. 500. Edgbrton et al. v. Jones et al., 10 Minn. 427. Donnelly v. Simonton, 7 Minn. 167. Civil Action, approved in Hamilton et al. v. Batlin, 8 Minn. 403. Eastman v. St. Antliony Falls Water Fovrer Co., 12 Minn. 137. Limitations, considered in Cook et al. v. Kendall et al., 13 Minn. 824. Approved in Thornton v. Webb et 'al., 13 Minn. 498. Farmers' Bank v. Winslow, 3 Minn. §6. CASES OVERRULED, ETC. 433 Lien, followed in Knox et al. v. Stabks et al., 4 Minn. 20. McCaety v. Van Ettbn, 4 Minn. 461. Fetz V. Clark et al., 7 Minn. 217. Followed in ¥^z V. Clark et al., 8 Minn. 86. Whitney et al. ti'. Reese et at, 11 Minn. 138. Discussed in Town v. Washbukn et al., 14 Minn. 268. Foerester v. Kirkpatrlck, 2 Minn. 210. Pleading, discussed in Jaeger ei al. v. Haktman, 13 Minn. 55. Folsom y. Carli, 5 Minn. 333. Levy, followed in Bidwell v. Coleman, 11 Minn. 78. TiLLOTSON V. Millard et al., Home- stead, 7 Minn. 513. Fowler V. Atkinson,^ Minn. 505. Practice, overruled in FowLEK ». Atkinson, 6 Minn. 578. Frazier v. Williams, 15 Minn. 28§. Sheriff^s Eeturn, followed in HuTCHiNs V. Commissioners of Car- ver Co., 16 Minn. 13. Furlong v. Griffln et al., S Minn. 207. Practice, followed in Haines ». Paxton, 5 Minn. 442. Explained in Shekhekd v. Frazek et al, 6 Minn. 573. Followed in Aybe v. Termatt, 8 Minn. 96. ttale T. Battin, et al. 12 Minn. 287. Mortgagee, followed in Everest v. Ferris, 16 Minn. 26. Gallup T. Derby et al., 5 Minn. 119. Practice, followed in Wbller v. City of St. Paul, 5 Minn. 95. Gere v. Weed et al., 3 Minn. 352. Approved in Prignitz !). Fischer, 4 Minn. 366. Goener v. Scliroeder, 8 Minn. 387. Redemption, followed in Carroll v. Kossitee, 10 Minn. 174. Mereiam v. Fridley, Justice of the Peace, etc., 9 Minn. 34. Goodrich t. Moore, 1 Minn. 61. Approved in Hart et al. v. Marshall, 4 Minn. 294. Greenleaf v. Edes, 2 Minn. 264. Approved in Tbuitt et al. v. Caldwell, 3 Minn. 364. FiLLBY et al. V. Register et al., 4 Minn. 391. Bazb v. Abpbr, 6 Minn. 220. Greve t. Coffin, 14 Minn. 345. Mortgagee, followed in Everest m. Fbreis, 16 Minn. 26. Gray t. The First Div. St. Paul & P. E. B. Co., 13 Minn. 315. Followed in MoLiTOR V. The First Div. St. Paul P. & P. R. R. Co., 13 Minn. 385. Griffln v. Fowler, 3 Minn. 207. Practice, overruled in Humphrey et al. v. Havens et al., 9 Minn. 318. Groh V. Bassett, 7 Minn. 323. New Trial, considered in CoNKLiit D. Hinds, 16 Minn. 4.57. Guerin y. Hunt, 8 Minn. 487. Attachment, followed in Merrit v. City of St. Paul, 11 Minn. 223. Hanna et al. r. Bussell, 12 Minn. 80. Practice, followed in 424 CASES OVERRULED, ETC, LowRY et al. v. Harris et al., 12 Mian. 255. Harrington y. Loomis et al. 10 Minn. 366. Judgment, discussed in Gemmell v. Rice et al., 13 Minn. 400. Hawke t. Banning, 3 Minn. 67. Followed in Daniels ». Bradley, 4 Minn. 158. Heifer v. Alden et al., 3 Minn. 332. Notes and Bilis, followed in Hart et al. v. Eastman et al., 7 Minn. 74. Heyward v. Judd, 4 Minn. 483. Constitutional Law, followed in Bbrthold v. Holman et al., 13 Minn. 235. Mortgages, followed in Freeborn ®. Pettlbone, 5 Minn. 277. Drew et al. v. Smith, 7 Minn. 301. TuRRELL V. MuNGER, 7 Minn. 368. GoENBR V. ScHROBDBR, 8 Minn. 878. Carroll v. Rossiter, 10 Minn. 174. Hinckley t. St. Anthony W. P. Co., 9 Minn. 55. Constitutional Law, questioned in Hanna et al. v. Russell et al., 12 Minn. 80. Hill v. Edwards, 11 Minn. 29. Mortgagees, followed in GrRBVE V. Coffin, 14 Minn. 345. GrALB ». Battin et ol., 12 Minn. 287. Ho£fman et al. t. Mann, 11 Minn. 364. Appeal, followed in ScHnRMEiER ». The First Div. St. P. & P. E. R. Co., 12 Minn. 351. Holcombe v. Tracy, 2 Minn. 319. Discussed in Brisbin ». Farmer, 16 Minn. 216. Holgate T. Brown, § Minn. 246. Justice's Pleadings, followed in Mattice v. LiTCHERDiNa, 14 Minn. 142. Hope T. Stone, 10 Minn. 141. Quit-daim Deed, followed in Everest ®. Ferris, 16 Minn. 26. Hortonet al. y. Maiflt et al., 14 'Minn. 296. Sheriff, followed in Davis v. Seymour, 16 Minn. 210. Huff Y. Winona & St. P. R. K. Co., 11 Minn. 180. Followed in HiLBERT «. Winona & St. P. R. R. Co., 11 Minn. 246. Humphreys v. Hezlep, 1 Minn. 239. Appeal, reversed in Davidson v. Owens et al., 5 Minn. 69. IrYine y. Myers & Co., 4 Minn. 229. Pleading, followed in Fetz v. Clark et al., 7 Minn. 217. Y. 6 Minn. 558- Practice, explained in Goodrich et al. ». Hopkins et al., 10 Minn. 162. Johnson y. Lewis, 13 Minn.:.364. Mortgages, followed in Grbve v. Coffin, 14 Minn. 345. Everest «. Ferris, 16 Minn. 20. Jorgenson y. Griffin, 14 Minn. 464. Judgment, followed in HoTCHKiss V. Cutting, 14 Minn. 537. Judd v. Heyward, 4 Minn. 483. Mortgages, followed in Drew et al. v. Smith, 7 Minn. 301. Earns y. Eunkle, 2 Minn. 313. Practice, followed in Kennedy i). Williams, 11 Minn. 314. Knox et al. y. Starks, 4 Minn. 20. Lien, approved in McCarty v. Van Ettbn, 4 Minn. 461. CASES OVERRULED, ETC. 425 Kiinkle v. Town of Franklin, 13 Minn. 127. Gonatitutional Law, followed in CoMEK s. FoLSOM, 13 Miiiii. 219. Wilson v. Buokman, 13 Minn. 441. Leecli y. Ranch, 3 Minn. 448. XJ. S. Lands, approved in Cakson et al. ii. Smith, .5 Minn. 78. State v. Batcheldbb, .5 Minn. 223. Considered in Castnek 13. GrUNTHBR, 6 Minn. 119. Leniay v. Bibean, 2 Minn. 291. Assignments, followed in KiCHARDS et al.v. White, 7 Minn. 345. Leonard t. Carpenter, 5 Minn. 156. Married women, approved in Pond v. Carpenter et al., 12 Minn. 430. Lewis V. Bnck, 7 Minn. 104. Followed in Talbott v. Gere ef al., 8 Minn. 85. Explained in Buck b. Colbath, defense in trespass, 7 Minn. 310. et al. T. Williams et al., 3 Minn. 131. Demurrer, approved in Nichols v. Randall, 5 Minn. 304. Mitchell c. Bank of St. Paul, 7 Minn, 252. Lovejoy et al. v. Morrison et al., 6 Miim. 1§3. Attachment, followed in Zimmerman v. Lamb et al., 7 Minn. 421. Lowell V. North & Carll, 4 Minn. 32. Constitutional Law, followed in Atkinson d. Duffy, 16 Minn. 45. Lynd v. Picket et al., 7 Minn. 194. Pleading, followed in 34 Dean v. Leonard, 9 Minn. 190. Pottgeiser v. Dorn, 16 Minn. 204. Hecklin v. Ess, 16 Minn. 51. Maher v. State, 3 Minn. 444. Criminal Law, followed in State v. Hincklby,,4 Minn. 345. State «. Hoyt, 13 Minn. 132. Marienthal et al. v. Taylor, 2 Minn. 147. Discussed in Lbtering ef al. v. Washington, 3 Minn. 23. Followed in Peckham et al. v. Gilman et at., eoi- dence, 7 Minn. 446. Marston v. Talcott, 3 Minn. 339. Approved in Daniels v. Bradley, 4 Minn. 158. V. Ward, 4 Minn. 168. Martin v. Brown, 4 Minn. 382. Notice, approved in Daughaday v. Paine, et al, 6 Minn. 443. KuMLER V. Pekguson, jn~actice, 7 Minn. 442. HujirHRBY et al. v. Havens et al,., practice, overruled, 13 Minn. 298. Everest b. Ferris 16 Minn. 26, Q:iiit-daim. Mason et al. v. Bailey et al., 4 Minn. 346. Lien, approved in WiLLiM ». Beknhbimee, 5 Minn. 388. V. (^lender et al., 2 Mirin. 330. Followed in Daniels v. Ward, 4 Minii. 168. Talcott v. Marston, interest, over- ruled, 3 Minn. 839. T. Heyward, 3 Minn. 186. Counter claim, followed in SMrrn ». Dukes, 5 Minn. 373. 426 WhalON et al. 346. CASES OVERRULED, ETC. Aldbich, 8 Minn KOEMPLE V. Shaw, 13 Minn. 488. Steele et al. v. Ethebidge, 15 Minn. 501. MeCauley v. Daridson, 10 Minn. 418. Common carrier, followed in McCauley v. Davidson, 13 Minn. 162. McLane v. White, 5' Minn. 178. Pleading, followed in Wells et al. v. Masterson, 6 Minn. 566. Bblotb v. Morrison, parol evidence qualified, 8 Minn. 87. Armstrong v. Hinds, pleading, 8 Minn. 254. McComb V. Bell, 2 Minn. 295. Taxes, considered in Griggs v. City of St. Paul, 11 Minn. 308. McCue V. Smith, 9 Minn. 252. Mortgages, followed in WoODBERRY J). DORMAN, 15 Minn. 338. Overruled in .Jones et al. v. Taisttee et al., 15 Minn. .512. McKubin et al. v. Smith, 5 Minn. 317. Practice, approved in Harrington ». Loomis et al., 10 Minn. 366. Gbmmell b. Rich et al., judgment, 13 Minn. 400. McMahon v. Davidson, 12 Minn. 374. Negligence, followed in Carroll v. The Minn. Valley R. R. Co., 13 Minn. 30. Fay v. Davison, negligence and evi- dence, IS Minn. 523. Meighan t. Strong, 6 Minn. 179. Plmding, followed iu Hamilton et al. v. Battin et al., 8 Minn. 403. Merritt v. Putnam, 7 Minn. 493. Practice, followed in "Whitcomb v. Shaffer, 11 Minn. 233. Minn. Central R. B. Co. v. McNamara, 13 Minn. 509. Oen'tiorari, followed in City of St. Paul ■». Marvin, 16 Minn. 102. State ». Milner, 16 Minn. 55. Warner v. Myrick, 16 Minn. 01, practice. Mqrin r. Martz, 13 Minn. 191. Statute of Frauds, followed in Wempler v. Knopf, Jr., 15 Minn, 440. Morrison et al. v. Lovejoy et al., 6 Minn. 183. Attachment, followed in Gubrin v. Hunt et al., 8 Minn. 477. Considered in Hinckley et al. v. St. Anthony Falls Water Power Co., 9 Minn. 55. Lovejoy et al. v. Morrison et al, dainages, explained, 10 Minn. 136. V. March, 4 Minn. 422. Practice, approved in Irvine v. Meyers et al, 6 Minn. 558. Morton v. Jackson, 2 Minn. 221. Practice, overruled in Conway v. Wharton, 13 Minn. 158. Moss v. Pettingill, 3 Minn. 217. Followed in SCHALcic et al. V. Harmon. 6 Minn. 265. Armstrong v. Sanfoed, injwiction, 7. Minn. 49. Murphy t. Hinds, 15 Minn. 182. Givil action, followed In CASES OVERRULED, ETC. 427 CoNKLiN V. Hinds, 16 Minn. 457. Murphy v. Piirdy, 13 Minn. 423. Attachment, followed in Ely v. Titus, 14 Minn. 125. Mnrray t. Jolmson, 1 Minn. 222. Attachment, foUowecl in MOREISON" et al. V. Love JOY, 6 Minn. 1S3. Myriclf v. Pierce, 5 Minn. 65. Judgment, followed in Mbrritt «. Putnam et al., 7 Minn. 493. O'Farral v. Colby, 2 Minn. 1§0. Elections, followed In Taylor ». Taylor, 10 Minn, 107. Paddock et al. v. St. Oroix Boom Corp., 8 Minn. 277. Appeal, followed in TiEENAY ». Dodge, 9 Minn. 166. Parret v. Sliaubhut, 5 Minn. 323. Attesting witnesses, followed in Thompson et al. v. Morgan, 6 Minn. 292. Meighen et al. r. Strong, 6 Minn. 177. Ross v. Worthington, 11 Minn. 438. Pease et al. v, Rnsli et al., 2 Minn. 107. Promissory note, followed in Foster ti. Bbrkey, et at, 8 Minn. 351. Tullis v. Fridlby, 9 Minn. 79. Van Bman v. Stanchfield, et al., 10 Minn. 255. Pierse v. Irvine et al., 1 Minn. 369. Promissory notes, discussed in Levering et al. v. Washington, 3 Minn. 323. Overruled in Peckham et al. v. Gilman, et al, 7 Minn. 446. T. Smitb, 1 Minn. 82. Attachmsnt, followed in Morrison et al. «. Love-joy et al., 6 Minn. 183. Pioneer Printing: Co. v Sanborn et al., 3 Minn. 413. Followed in Chase ». North et al., 4 Minn. 381. Cole v. Satbe, 5 Minn. 468. Piper V. Johnson, 12 Minn. 60. Judgment, followed in Whitaker 1'. McClung et al., 14 Minn. 170. Lbyde v. Martin et al, 16 Minn. 3S. Prindle v. Campbell, 9 Minn. 212. Followed in MOOREHOUSE i). Bowen, 9 Minn. 314. Pross y. Dahl, 6 Minn. 89. Discussed in Belote v. Morrison et al, 8 Minn. 87. Pulver V. Graves, 3 Minn. 359. Approved in Prignitz v. Fischer, 4 Minn. 366. llamsey v. Merriam, 6 Minn. 168. Mortgages, followed in Allen et al. v. Chatfield, 8 Minn. 435. Randall t. Edert, 7 Minn. 450. XT. S. Land, followed in Gray ef al. v. Stockton, 8 Minn. 529. Kan V. Minn. Valley R. R. Co., 13 Minn. 447. Pmctice,^fo\lo\ved in "Warner v. Myrick, 16 ]JIinn. 91. Reese v. Heylin, 11 Minn. 138. Judgment, discussed in ToWNt). WASHBrRN et al, 14 Minn. 268. Reynolds v. La Crosse & Minn. Pk't Co., lO Minn. 1§5. Practice, followed in Williams v. McGkade, 13 Minn. 174. 428 CASES OVERRULED, ETC Kobbins v. School List. No. 1, Anoka Co., 10 Minn. 340. School District, followed in Sanborn i:. School Dist. ISo. 10, Rice Co., 11 Minn. 17. Kohrer V. Tnrrell, 4 Minn. 410. Pleading, followed in First Nat. Bank Hastings v. Eog- ERS etal., 13 Minn. 407. Rotary Mill Co. v. Eininettet al., 2 Minn. 380. Approved in Lewis etal. v. Williams ei a/., 3Minn. 151. Saint Peter Co. v. Bunker, 5 Minn. 192. Contracts, followed in Bruggerman v. Hoere et al., 7 Minn. 837. Saint Paul v. Kuby, 8 Minn. 171 . Emdence, followed in Johnson i>. Winona & St. Petbu R. R. Co., 11 Minn. 296. Schurmeier v. Johnson, 10 Minn. 319. Exception, followed in JUDSON v. Reardon, 16 Minn. 431. Schurmeier t. The St. Paul & P. R. R. ( o., 10 Minn. 104. Dedication, followed in City of Winona ®. Huff, 11 Minn. 119. Scott T. Ides, 3 Minn. 377. Followed in FiLLEY«< aZ. V. Register, 4Minn. 391. Selby V. Stanley et al., 4 Minn. 65. Equitable lien, approved in Dadghaday v. Paine et al., 6 Minn. 443. Smith V. MuUiken, 2 Minn. 319. Practice, approved in Marty v. Ahl, 5 Minn. 37. Toss V. Db Freudenrich et al., 6 Minn. 95. Hayward etal. v. Grant, 13 Minn. 165. Solomany. Dreschler, 4 Minn. 278. Illegal contract, considered in Brimhall v. Van Campen, 8 Minn. IH Followed in Ingersoll IK Randall, 14 Minn. 400. State V. Armstrong, 4 Minn. 344. Bigamy, followed in State v. Johnson, 13 Minn. 476. State v. Batchelder, 5 Minn. 223. U. 8. Land, approved in State v. Batchelder, 7 Minn. 121. V. Bilansky^ 3 Minn. 427. Indictment, followed in State v. Dumphey, 4 Minn. 438. T. Brown, 12 Minn. 538. Practice, followed in State v. Taunt, 16 Minn. 109. v. Dumphey, 4 Minn. 443. Indictment, followed in State ii. Lbssing, 16 Minn. 75. v. Gut, 13 Minn. 343. Venue, discussed in State v. Miller et al., 15 Minn. 344. V. Hinckley, 4 Minn. 363. Empanneling grand jury, followed in State v. Hoyt, 13 Minn. 138. State v. Taunt, 16 Minn. 109, indict- ment. T. Pulle, 12 Minn. Commonlaw, followed in Blackman ■b. PuLi.B, 13 Minn. 336. T. Ryan, 13 Minn. 370. Practice, followed in State ®. Lessing, 16 Minn. 75. V. Shippey, 10 Minn. 229. Provocation, followed in State v. Hoyt, 13 Minn. 132. v. Staley, 14 Minn. 118. CASES OVERRULED, ETC. 429 Exception, followed in J0DSON V. Rbakdon, 16 Minn. 431. Steele et al. r. Fish, 2 Minn. 133. Giml action, approved in State v. Batciieldbk, 5 Minn. 233, Discussed in Hamilton et al. v. Battin et al., 8 Minn. 403. V. Taylor, 1 Minn. 274. Approved in Hakt et al. v. Marshall, 4 Minn. 394. Stone V. Bassett, 4 Minn. 29§. Mortgages, approved in Heyward v. Judd, 4 Minn. 483. Drew et al. v. Smith, 7 Minn. 301. TuRBELLi). Mdngeh, 7 Minn. 368. Stratton v. Allen et al., 7 Minn. 502. Explained in HnRD V. SiMONTON, (^demand and re- fusal) 10 Minn. 423, ToUowed in LocKwooD V. BiGELOw, 11 Minn. 113, demurrei: Symonds v. Castner et al., 1 Minn. 427. Sheriff's return, considered in TnLLis 1). Brawlbt, 3 Minn. 377. RoHRBR ». TuRRiLL, 4 Minn. 407. Talcott T. Marston, 3 Minn. 339. Pleading, followed in Cooper et 2I. v. Reaney, 4 Minn. 538. Uhapin v. Murphy, (damages) 5 Minn. 474. Temple et al. v. Scott, 3 Minn. 419, Practice, approved in Irvine et al. v. Myers, 6 Minn. 563. Thompson v. .ncComb et al., 2 Minn. 139. Discussed in Levering et al. v. Washington, 3 Minn. 333. Thompson v. Morgan, 6 Minn. 292. Mortgages, witness, and recitals, discus- sed in Ross V. Worthington, 11 Minn. 438. Tiernay r. Dodge, 9 Minn. 160. Certiorari, followed in Faribault et al. v. Hdlett et al., 19 Minn. 30. City of St. Paul v. Marvin, 10 Minn. 102. Tillman et al. y. Jackson, 1 Minn. 113. Appeal, followed in HuTCHiNs «. Commissioners op Car- ver Co., 16 Minn. 13. Truitt Bro's & Co. v. Caldwell, 3 Minn. 364. Followed in Filly et al. v. Register et al. 4 Minn. 391. Tnllis T. Brawley, 3 Minn. 277. Pleading, approved in ROHiiEK V. Tuerill, 4 Minn. 407. T. Orthwein, 5 Minn. 377. • Exempt property, qualified in Lynd v. Picket, et al, 7 Minn. 184. Tnrrell v. Morgan, 7 Minn. 368. Indorsement, explained in State v. Mouniee, 8 Minn. 312. Tuttle V. Stront, 7 Minn. 465. Constitutional Law, followed in State v. Gut, 13 Minn. 341. Ullman v. Bazille, 2 Minn. 134. Practice, approved in Morrison et al. v. March, 4 Minn. 422. United States v. Baker, 1 Minn. 207. Evidence, followed in State v. Dumphey, 4 Minn. 438. Tose T. Stickney, 8 Minn. 75. Notice to 81i£riff, followed in Dodge b. Chandler, 9 Minn. 97. 430 CASES OVERRULED, ETC. Babrt v. McGraue et ai., 14 Minn. 163. Walters v. Armstrong, 3 Minn. 44§. Evidence, followed in BoEDP et al. V. NiNiNGBR, 5 Minn. 523. Warner v. Grace, 14 Minn. 4§7. Rewards, followed in Day v. Putnam Insukanob Co., et al, 16 Minn. 408. Warren etal. v. Fish, 7 Minn. 432. Grantee of judgment debtor, followed in Rdtherpohd v. liTKWMAN, 8 Minn. 47. Weller v. City of St. Paul, 5 Minn. 95. Assessment certificates, discussed in Griggs v. City of St. paul, 11 Minn." 308. Wentworth v. Wentwortli, 2 Minn. 277. Resulting trust, overruled in Ietink v. Marshaix et al., 7 Minn. 286. Wliitalcer v. Rice, Minn. 13. Limitations, discussed in Brisbin v. Farmer, 16 Minn. 215. Whitacre v. Culver, Minn. 297. Approved in Whitacre u. Culver, 8 Minn. 133. Whitney v. Kid well, 4 Minn. 76. Mortgagee, followed in Banker v. Brunt, 4 Minn. 521. Potter v. Marvin et al., 4 Minn. 525, Whittacre r. Fuller et al., 3 Minn. Junior incumbrancer, followed in Johnson v. Carpenter, 7 Minn. 176. Lash v. Edgerton, 13 Minn. 210. Discussed in Mills et al. ». Kellogg, 7 Minn. 469. Wilder t. City of St. Paul, 12 Mien. 201. Dedication, followed in Village of Mankato v. Williaru et al., 13 Minn. 13. Murphy v. Hinds, (^eimi action,) 15 Minn. 182. County Commissioners Hennepin Co. V. Robinson, (estoppel,) 16 Minn. 381. Williams v. Lash, 8 Minn. 496. County Commisioners, followed in Shelley v. Lash, 14 Minn. 498. Winona & St. P. R. R. v. Denuiau, 10 Minn. 267. Compensation, followed in Winona & St. P. B. R. Co. ». Wald- RON et al., 11 Minn. 515. Minn. Valley R. R. Co. v. Doban, 15 Minn. 230. Carli v. Stillwater & St. Paul R. R. Co., 16 Minn. 260. T. Waldron, II Minn. 538. Compensation, followed in Minnesota Central R. R. Co. u. Mc- Xamara, 13 Minn. .508. Explained in Carli v. Stillwater & St. Paul E. R. Co., 16 Minn. 260. Woodbury v. Dorman, 15 Minn. 338. Preemptor^s moi'tgage, overruled in Jones et al. v. Tainter et al. 15 Minn. 512. Ayer v. Stewart, (practice,) 16 Minn. 89. Wood V. Myrlck, 9 Minn. 149. Certiorari, followed in State v. Milner, 16 Minn. 55. Toss T. Frendenrich, 6 Minn. 95. Bond for deed, followed in Drew et al. v. Smith, 7 Minn. 301. Discussed in Belote v. Morrison et al. 8 Minn. 87. TABLE OF CASES. (431) TABLE OF CASES. This table is designed to xsreseiit, in alpliabetioal oi'der, the names of all the cases digested in this volume. The definite article " The,''' where it was pi-etlxed to the name of the party first cited, is omitted. Cases, where the State appears on the relation of an individual, as in Mandamus, are arranged in their natural order, without any transposition of the names of the moving parties. Each case will be found, 1st. With the names of the parties in their natural order and, directly following, a reference to the title and page of this volume, where the same will be found : 2d. With the names of parties reversed, without any such reference, But one reference is made to a page of this work, although a case will frequently be found in several different places on the same page, and sometimes a continued citation from same case will extend to the page following the page referred to. I Altlrich Y. Press Printing Co., 9 Minn. A iEtna Insurance Co. v. Grnbe, 6 Minn. §2, Fire Insurance, 1IJ7. Practice, 316. V. Swift et al., 12 Minn. 437. Practice, 324, 360, 366. Adams v. Corristou, 7 Minn. 456. Constitutional Law, 64. Pleading, 376. Mortgages, 220. Agin T, Heyward,6 Minn. HO. Courts, 86. Agnew V. Merritt et al., 10 Minn. 30§. Husband and wife, 183. Principal and Surety, 370. Ahl et al., Marty v. Alden, Cutler et al., Heifer, v. 55. 133. Slander and Libel, 387. , Wliaion et al. v. Allen et al. v. Cliatfleld, 8 Minn. 435. Landlord and Tenant, 199. , Mortgages, 227. AUen, Daniels, v. Allen V. Jones, 8 Minn. 202. Chattel Mortgage, 26, Intei-est, 186. Practice, 338. Principal and Surety, 368. 370. Alien et al., Scribner y. Allen et al., Stratton r. Allison, Baldwin v. Allis T. Day, 13 Minn. 199. Practice, 301. 434 TABLE OF CASES. — - V. , 14 Minn. 516. Estoppel, 137. Evidence, 160. Pleading, 273. Practice, 310. Ambs et al., Beatty et al. y. Ames r. Boland et al., 1 Minn. 365. Uourts, 85. Jurisdiction, 191. Practice, 341, 362. V. First Div. St. Panl & Pacific R. R. Co., 12 Minn. 412. Evidence, 140, 145, 14S. New Trial, 241. Parties, 53. Pleading, 267, 284. V. Mississippi Boom Co., § Minn. 467. Civil Action, 41. Practice, 330, 345. ■ V. Schurmeier, 9 Minn. 221. Practice, 298. Ames et al., D9rman v. Ames et al., Powers v. American E.\;press Co., Brlsbin et al. v. American Express Co., Cliristianson v. American Insurance Co., Guernsey v. Anderson, Williams r. Andrews v. Cressy, 2 Minn. 67. Practice, 333„338, 362. V. Stone, 10 Minn. 72. Damages, 115. Pleading, 277. Annan v. Folsom, 6 Minn. 500. Evidence, 145. Mortgages, 224. Annon, Spencer v. Armstrong', Banning et al. v. Armstrong y. Hinds, § Minn. 254. Pleading, 268, 271, 278. v. , 9 Minn. 358. Pleading 292. Practice,'!317. v. Lewis, 14 Minn. 406. Civil Action, 34, v. Sanford, 7 Minn. 49. Injunction, 185. Mortgages, 232. Practice, 303. V. Vrooman, 1 1 Minn. 220. Sheriff, 384. Practice, 335. Armstrong, State v. Armstrong, Walters v. Arnold et al. y. Wainwright, 6 Minn, .35S . Partnrship, 259. Arnold, Caldwell v. Arper v. Baze, 9 Minn. 108. Fraudulent Conveyance, 173. U. S. Patent, 411. Arper, Baze y. Atkinson, Fowler v. Atkinson y. Unffy, 16 Minn. 45. Constitutional Law, 64, 65. Mortgages, 328, 230. Atherton v. Sherwood, 15 Minn. 221 . Mandamus, 208, 209. Office and Officer, 253. Pleading, 284. Auger et al,, Caldwell v. Austin et al., Castner y. Ayer v. Stewiirt et al., 14 Minn. 97. Limitations, 203. Mortgages, 231. Y. , 16 Minn. 89. Practice, 352, 348. V. Terraatt, 8 Minn. 96. Practice, 362. B Baasen, Roehl et al. y. Babcock et al. y. Cobb. 11 Minn. 347. TABLE OF CASES. 435 Evidence, 14S. Executors and Ailiiuiiistnitors, 105. • V. Sanborn et al., 3 Minn. 141. Courts, 8.5. Practice, 323, 344, 363. Haberick v. Magner, 9 Minn. 232. Elections, 128. Practice, 353. Kacon v. Cottrell, 13 Minn. 194. Mortgages, 220. 226. Bailley et al., Foster v, IJailey y. Merritt, 7 Minn. 159. Civil Action, 30. Estoppel, 137. Parties, 54. Pleading, 266, 274. Bailey et al. v. Mason & Craig, 4 Minn. 546. Mechanic's Lien, 215. Statutes, 390. Baiter et al. v. Tiie City of St. Panl, 8 Minn. 491. Easements, 125, 127. Baker v. Kelley, 11. Minn. 4§©. Civil Action, 44. Constitutional Law, 62, 69. Limitations, 204. Taxes, 398, 400. • T. Marshall et al., 15 Minn. 177. Mandamus, 309. Baker, Merriam y. Baker v. United States, 1 Minn 209. Criminal Law, 104. Practice, 338. T. Terrell et al., 8 Minn. 195. Assignments, 10. Mortgages 219. Practice, 364. Trusts and Trustess, 406. , Baker et al.. Bank of Hallowell v. Baker let al., Kelley v. Baker et al., Marshall et al. r. Balcombe v. Northrup et al., 9 Minn. 172. Pi'ivate Agents, 5. Trusts and Trustees. 405. Baldwin v. Ailison, 3 Minn. §3. Practice, 319. V. , 4 Minn. 25. Mortgages, 227, 228, 230. Trusts and Trustees, 407. Baldwin et al. r. Blanchard, 15 Minn. 489. Evidence, 149, 150. Damages, 113. New Trial, 239. Practice, 310, 344. Baldwin v. Winslow, 2 Minn. 213. Bonds, 23. Deeds, 119. Estoppel, 135. Evidence, 145. Baldwin, Comer v. Baldwin et al., Metzner et al. v. Balme r. Wambaugh et al., 16 Minn. 116. Civil Action, 52. Mortgages, 225, 331. Bahne et al, Duke v. Bancroft, Whalon v. Bank of Commerce, Selden et al. v. Bank of Commerce r. Seldon et al., 1 Miim. 340. Evidence, 163. v. , 3 Minn. 155. Partnership, 257, 258. Practice, 308. Bank of Hallowell r. Baker ct al,, 1 Minn. 266. Evidence, 144. Bank of St. Panl, Dana et al. y. Bank of St. Paul, Mitchell y. Banker y. Caldwell, 3 Minn. 94. Copyi-ight, 80. Practice, 333. Sheriff, 383. 436 TABLE OF CASES. V. Kront, 4 Miuii. oril. Civil Action, 31. Baniiing v. Sibley, 3 Miiiu. 3S9. Assignments, 10. (rarnislinient, 174. Biumiiig et al. v. Armstrong, 7 Miiui. 10. Civil Action, 49. Debtor and ureditor, 117. Mortgnges, 22.':*. V. Edes, 6 Miiin. 402. Practice, 32,5, 33."). Banning', Babcoclc r. , Hendriclis v. , Xininger y. Banning & Co. Hollinshead r. Banning et al., Hawke et al. v.- , Wolfe et al. v. Barker v. Keith, 11 Minn. 65. Contracts, 75. Practice, 323, 343, 356. Barker v. Kelderhonse, S lUinn. 207. Chattel Mortgage, 26. V. Walbridge, 14 Minn. 469. Contracts, 79. Justice of the Peace, 190. Pleading. 283. Practice, 367. Barnes r. Helton et al., 14 Minn. 357. Justice of the Peace, 192. V. Kerlinger, 7 Miini. 82. Evidence, 151. Pleading, 273. Barnes et al., Kerlinger y. Barney, Tliayer v. Barnsback v. Reiner, 8 Minn. 58. Civil Action, 33. Pleading, 270, 280. Practici', 347. Barrett, McCarty v. Barrow, Walker v. Barry v. McGrade et al., 14 Minn. 163, Attorneys, 17. Civil Actioji, 30. Constitutional Law, 66. V. , 14 Minn. 286. Practice, 337, 344. Bartlett et al., Robinson v. Bartnell v. Davidson, 16 Minn. 530. Practice, 342. Bast T. Leonard, 15 Minn. 304. Evidence, 148, 156. Negligence, 238. Pleading, 265. Bass & Co. v. Upton, 1 Minn. 408. Bailment, 18. Common Currier, 01. Pleading, 291. Bassett, Groh v. Bassett, Stone v. Bassett, Vanderburgh et al. v. Battin et al., Uale v. Battin et al., Hamilton et al. v. Batchelder, State v. Bayley, Dorman v. Bayard & Co., Chophard & Son v. Bayard y. Klinge, 16 Minn. 249. Constitutional Law, 68. Practice, 337. Baze v. Arper, 6 Minn. 220. Civil Action, 45. Deeds, 119. Judge of Probate, ISO. Practice, 308, A^endor and Purchaser, 413. Baze, Arper y. Bazille v. UUman, 2 Minn. 134. Practice, 320. 360. Beatty et al. v. Ambsetal., II Minn. 331. Partnership, 259. Practice, 305. Bealiou v. Parsons, 2 Minn. 37. Evidence, 163. Practice, 308. 346. Beanniette, Bondean y. table' OF CASES. 437 IJeaupre v. Hoerr, 13 Minn. 3«6. Constitutional Law, 67. Bcaupre, Marcotte v. , Pratt y. Becker v. Sandusky City Bank, 1 Minn. 311. ' Notes and Bills, 248. Pleading, 270, 200. V. Sweetzer, 15 Minn. 427. Civil Action, 34. Claim against the U. S., Tu. Pleading, 273, 2S4. Practice, 311. Beebc v. Fridley, Ifi Minn. 51§. Practice, 332. Beclit V. Harris et al., 4 Minn. 504. Evidence, 142. Pleading, 28'^. Statute of Frauds, 393. Beclit, Harris et al. v. Beclitner et. al., Garnisliee, etc., tries v. Belden v. Manger, 5 Minn. 211. Divorce, i22. Bolote V. Morrison et al., 8 Minn. 87. Evidence, 146* Bell, McComb r Benedict, Anditor, etc. State ex rel., etc. v. Bennett v. Brundage, 8 Minn. 432. jVlortgages, 230. — V. Gillette, 3 Minn. 423, (Jivil Action, 40. V. McGrade et al., 15 Minn. 132. Parties, 54. Practice, 334. V. Plieijis et al., 12 Minn. 326. Civil Action, 30, 37, 52. Equity, 131. Vendor and Purchaser, 413. Benuette, Stlne et al. v. Bennett et al. v. Crowell et al., 7 Minn 385. Pleading, 285. V. Healey, 6 Minn. 240. Civil Action, 30. Mortgages, 222. Benson v. State, 5 Minn. 19. tiriminal Law, 89, 94. Benson, State v. Bergfleld, McCiung et al. v. Berkey r. Jndd et al., 12 Minn. 52. Pleading, 293. V. , 14 Minn. 394. Practice, 312, 31 S. Berkey et al., Foster v. Berkey et al.. Fish v. Birnlieimer v. Marshall & Co., 2 Minn. 81. Civil Action, 32. Ignorance of Fact, 184. Pleading, 289. Bernheimer, Toledo Novelty Works v. Bernheimer, Willini v. Berthold, t. Fox et al., 13 Minn. 501. Civil Action, 42. Constitutional Law, 06. Damages, 113. Evidence, 144. Mortgages, 220. Tenants in Common, 401. V. Holman et al., 12 Minn, 235. Civil Action, 41, 42. Constitutional Law, 60. Mortgages, 219, 220, 23,0. Besser, Wardlow v. Beveridge, Burke et al. v. Bidwell V. Coleman, 11 Minn. 78. Evidence, 159. Justice of the Peace, 193. Name, 236. Practice, 333, 335. Taxes, 399. Bid well. Dun well et al. v. Bidwell et al. r. Madison, 10 Minn. 13. 4H8 TABLE OF CASES. Civil Action, 38, 30. Partnership, 256. Pleading, 283. Hid well V. Webb, 10 Minn. 5». Taxes, 399, 400. Bidwell, Webb v. Bidwell V. Whitney, 4 Minn. 76. Civil Action, 31. Equity, 133. Bierbaur et al., Mansfield v. BingUaui v. Board of Supervisors Winona Co., 6 Minn. 13«. Attorneys, 17. Courts, 80. Practice, 355. V. , 8 Minn. 441. Counties, 84 Statutes, 389. V. Stewart et al., 13 Minn. 106. Notes and Bills, 245. V. , 14 Minn. 214. Notes and Bills, 249. Practice, 307. Bilansky v. State, 3 Minn. 427. Criminal Law, 89, 100, 105. Bilansky, State v. Bigelow, Lockwood v. Bishop, Teller v. Bissell, Taylor v. Black v. Brisbin et al., 3 Minn. 361. Garnislimeut, 173, 175. Blacknian v. Wheaton, 13 Minn. 326. Attachments, 15. Civil Action, 41. Common Law, 62. Evidence, 139, 152. Fraudulent Conveyance, 173. New Trial, 240. Pleading, 264. Practice, 313, 347. Blaidsell, Chase v. Blake v. McKnsiek, 8 Minn. 338. V. . 10 Minn. 251. Estoppel, 136. V. Sherman, 12 Minn. 420. Attachments, 13, 14, 15. Practice, 302. Blake, Taylor v. Blanchard, Baldwin et al. v. Blandy et al. v. Rag-net, 14 Minn. 243. Practice, 361. V. , 14 Minn. 491. Estoppel, 130. Pj-aotice, 304. Board of Co. Commissioners of Blue Earth County, Foster v. Board of County Commissionerj of Da- kota County V. Parker, 7 Minn 267. Counties, S3. Duress, 122. Practice, 317. Taxes, 898. Board of Co. Commissioners of Ramsey County, Hough v. Board of Co. Commissioners of Washing- ton County, V. McCoy, 1 Minn. 100. Ju.stice of the Peace, 194. Board of Co. Commissioners Washington County, Thorne v. Board of Supervisors Dakota County, Parker v. Board of Supervisors Hennepin Co., Mc- Dougal v. Board of Education of Minneapolis, Wiley et al, V. Board of Supervisors of Ramsey County V. Heenan, 2 Minn. 334. Counties, 84. Constitutional Law, 63. Mandamus, 308. Board of Supervisors of Scott Co., Cliaska Co. V. TABLE OF CASES. 4;]'J Board of Siii)ervisors of Scott Co., Hiir- kiiis V. Board of Education of St. Anthony, Con- nor v. Board of Supervisors of Winona Co., Bingham v. Boohnier et al., Jorg^cnsen v. Boland et al., Ames v. Bolles V. Carli et al., 12 Minn. 113. Civil Action, 49. Contract, 76. Equity, 129. Bond V. Corbett, 2 Minn. 255. Civil Action, 30, 34. Contract, 73. New Trial, 239. Pleading, 281, 286. Practice, 313, 344. Boyd V. State. 4 Minn. 321. Criminal Law, 109. Bonfanti v. State, 2 Minn. 124. Constitutional Law, 109. Criminal Law, 96, 104. Definitions, 121. Evidence, 141. Booth V. Sherwood et ill., 12 Minn. 426. Pleading, 380. Practice, 337. Tenants in Common, 401. Borup et al. v. Nining-er, 5 Minn. 523. Assignment of notes. 10. Civil Action, 38, 39. Damages, 114. Evidence, 160. Boutiller, Adm'r v. Steamboat Milwan- kee, § Minn. 97. Boats and Vessels, 21. Bown, Kent v. Bowen, Morehonse v. Boylsou, State v. Braekett v. Edgerton, 14 Minn. 174. Contract, 74, 75, 78. Damages, 112. Evidence, 160. Interest, 1H7. Pleading, 273. V. Gilmore, 15 Minn. 245. Civil Action, 49. Practice, 337. Taxes, 400. Bradley v. Gamelle, 7 Minn. 331. Civil Action, 41. Practice, 351. Bradley, Daniels v. Bradway et al., North & Carll v. Brainard v. Hastings, 3 Minn. 4.5. Practice, 320, 303. Branham, Piper r. Brawley, TuUis v. Brayley, Paquin v. Brazil v. Moran et al., § Minn. 236. Husband and Wife, 180. Practice, 361. Breckenridge, Cooper v. Breen v. Dewey, 16 Minn. 136. Civil Action, 52. Constitutional Law, 65. Brent, Banker v. Brewster, Cooper v. Brewster v. Leith, 1 Minn. 56. Contract, 76. Sale of Personal Property, 379. Brewster y. Wakefield, 1 Minn. 354. Interest, 187. Brimhall v. Van Campen, § Minn. 13. Civil Action, 34. Evidence, 139. Brisbin v. Fanner, 16 Minn. 215. Limitations, 202, 205. Evidence, 157. Brisbin et al. v. American Express Co., 15 Minn. 43. Pleading, 292. Practice, 359. v. Newliall et al., 5 Minn. 273. 440 TABLE OF CASES. Assignments, !). Pi-actice. 330. Brisbin et al. Black t. Brisbois y. Sibley et al., 1 Minn. 230. Contracts, 7!). Deeds, 130. U. S. Land, 408. Bronson, Stickney v. Brooks et al., Wilder et al. r. Brooks V. Hamilton, 15 Minn. 26. Civil Action, 48. Ilquity, 132. Fraud, 170. Broome, Holgate v. Broome et al. v. Galena, D. D. & M. ■ Packet Co., 9 Minn. 239. Garnishment, 175. Pleading, 264. Practice, 299. Brott, Dodd v. Brownell, Ford v. Brown y. Hathaway, 10 Minn. 303. Evidence, 153. T. Manning, 3 Minn. 3.5. Fraud, 170. Pleading, 265. Contract,73. Civil Action, 37. Brown et al. y. Matthews and wife, 14 Minn. 205. Husband and Wife, 181. Brown, Martin v. Brown, State v. Brown et al., St. Paul Div. No. 1 S. of T., V. Brugg'erman y. Hoerr et al., 7 Minn. 377. ^^ Fraudulent Conveyance, 172. Bru^german, Caldwell v. Brundage, Bennett y. Bryne, Grimes y. Byrane y. Rogers, 8 Minn. 281. Landloi'd and Tenant. lO'.l. Byrne v. Hinds, 16 Minn. 521. Evidence, 1.57. Bnck V. Colbath, 7 Minn. 310. Civil Action, 40. Pleading, 276. 'Bnchanan, Clark v. Buck y. Lewis et al.. 9 Minn. 314. Parties, 56. Buck, Colbath v. Buck, Lewis y. Buckman, Wilson y. Buckholz et al. v. Grant et al., 15 Minn. 406. Pleading, 265, 267. y. — — , 16 Minn. 158. Pleading, 267. Bnnday y. Dunbar, 5 Minn. 444. Practice, 310, 341. Bunker, St. Peter Co.y. Bnrbank et al., McLean Admr's y. Burke et al. y. Beveridge, 15 Minn. 205. Covenants, 88. Damages, 113. Evidence, 163. Limitations, 201. Notice, 251. Bnrke y. Mayall, lO Minn. 287. Practice, 301. Bnrke et al., Mayall et al. y. Burns et al., Seag'er v. Burpe y. Van Eman, 11 Minn. 327. Civil Action, 33. Practice, 350. Burrows et al.. Converse y. Burke y. McKinstry et al., 4 Minn. 204. Assignments, 12. Evidence, 139. Pleading, 285. Bnrwell y. Tallis et al., 12 Minn. 572. Practice, 325. TABLE OF OASES. 441 Biitterflcid y. The Home liis. Co., 14 Minn. 410. Practice, 301. Bntler y. Paine, 8 Minn. 324. Eviclonce, 144. Notes and Bills, •24.-). Bntler, Jaclcson y. Butler, McFarland v. Balme y. Wambangh et al., 16 Minn. 1 16. Xotes and Bills, 247. C Cady, Uodd y. Caldwell y. Anger. 4 Minn. SIT. Civil Action, 41. Estoppel, 1.35. Pleading, 263. Practice, 333. y. Bruggerman, 4 Minn. 270. Pleading, 286. Practice, 308, 312, 318. y. ; 8 Minn. 286. Evidence, 150. Practice, 350, 351, 352, 361, 367. y. Eenuison, 4 Minn. 47. Practice, 314. y. Sibley, 3 Minn. 406. Attaelmients, 16. Sherifif, 384. , Barker y. , Eaton T. , Eddy, Fenner & Co. , Sibley y. — , Teller y. , Truitt Bros. & Co. y. Caldwell et al. y. Arnold, 8 Minn. 265. Civil Action, 41. Practice, 347. Sheriff, 383. Calendar et al., Finney y. Callender et al., Ma.son et al. y. Califf y. Hillhouse, 3 Minn. 311. 56 Estoppel, Vi~). Practice, 310, 320. Camp y. Smith, 2 Minn. 174. U. S. Land, 408. Campbell, Holme.s et al., y. , Prindle y. Copehart y. Tan Campen, 10 Minn. 158. Former Adjudication, 1G9. Carli y. Jaekman et al., 9 Minn. 240. Practice, 353 y. Stillwater and St. Paul K. R. Co., 10 Minn. 260. Railroad,?, 375, 376. v. Taylor et al., 15 Minn. 171. Mortgages, 227. , Folsom T. Carli et al., BoUes v. Carpenter, Johnson v. et al.. Pond v. and wife v. Leonard, 5 Minn. 155. Husband and wife, 182, 183. Mechanics' Lien, 213. Pleading, 283. T. Wilverschied, 5 Minn. 170. Husband and wife, 182, 183. Carson et al. v. Smith et al., 12 Minn. .546. Civil Action, 47 U. S. Land, 409. et al. y. Smith, 5 Minn. 76. Power of Attorney, 295. Pleading, 319. Statutes, 389. Carroll y. Minn. Valley R. R. Co., 13 Minn. 30. Master and Servant, 211. Negligence, 238. y. , 14 Minn. 57. Mortgages, 232, 328. Negligence, 237. Carlton et al. y. Chotean et al., 1 Minn. 103. 443 TABLE OF CASES. Pleading, 321. Caryer y. Slingerland, 11 Minn. 447. Pleading, 279. Cassidy y. Smith, 13 Minn. 129. Evidence, 158. Castner y. Ecliard, G Minn. 149. Evidence, 164. Pleading, 361. U. S. Land, 409. y. Gunther, 6 Minn. 119. Evidence, 164. Pleading, 361. U. S. Land, 409. Castner y. Lowry, 6 Minn. 149. Evidence, 164. Pleading, 361. _ U. S. Land, 409. Castner et al. y. tliandler et al. 2 Minn. 88. Justice of the Peace, 192. Castner y. Steamboat Dr. Franklin, 1 Minn. 18. Office and Officer, 2.54. Pleading, 313. Water-courses, 414. Castner et aL y. Symonds, 1 Minti. 432. Pleading, 333. Sheriff, 384. Castner y. Sumner, 2 Minn. 44. Pleading. 291. Parties, 53. Castle et aL y. Tliomas et aL 16 Minn. 490. Practice, 300, 302, 367. Case T. Fayier, 12 Minn. 89. Easements, 125. Evidence, 150. Case et aL y. Tonng, 3 Minn. 209. Wills, 415. Catlin T. Fletcher, 9 Minn. 85. Contract, 77. Fraud, 170. Catlicarst y. Fecit et aL, 11 Minn. 45. Civil Actioti, 46, 47. Pleading 267, 269, 279, 280, 293. Practice, 324, 343, 345. Chadderdon, Pace y. Chalfant, Kent y. Chamberlain y. Sibley, 4 Minn. 309. Mandamus, 208. Chamberlain y. Porter, 9 Minn. 260. Civil Action, 39. Damages, 115. Practice, 312, 315. Chaniblin y. Slichter et al. 12 Minn. 276. Mortgages, 219. Parties, 54. Practice; 303. Cliamblin et al., Deylin et al. y.. Chandler y. Kent, S Minn. 524. Deeds, 118. Forcible Entry and D, 169. Lease, 200. , Dodge y. Chandler et aL, Castner et al. y, Chapin y. Murphy, 5 Minn. 474. Damages, 113. Chapman y. Dodd, 10 Minn. 350. Criminal Law, 101. Damages, 115. Evidence, 161. .Tustice of the Peace, 198. Malicious Prosecution, 206. Charles, State y. Chaska Co. y. Board of Superyisors of Carver Co., 6 Minn. 204. Counties, 83. Estoppel, 136. Chase et al. r. Blaidsell, 4 Minn. 90. Civil Action, 30, 31. Damages, 114. Chase y. North & Carll, 4 Minn. 381. Garnishment, 174. Chatfield, Allen y. TABLE OF CASES. 443 Chandler, Shorts y. Cheinedlin et al. y. Prince et al., 15 Minn. 231 Trusts ami Trustees, 404. Chisholni t- (litherall et al., 12 Minn. 575. Practice, 327. Chopard et al., v. Bayard et ai., I Minn. 5.13. Chattel Mortgage, 26. Frautliileiit Oonveyaiice, 142. Choteau v. Rice, 1 Minn. !24. Pleading, 2G3. Practice, 298, 358. Chotean, Jr. y. Parker, 2 Minn. 11 §. Practice, 306, 3.59. Clioteau et al. r* Bice et al., I Minn. 109. Pleading, 262. Practice, 298, 358. , Carlton et al. y. 'Christenson et al. y. American Express Co., 15 Minn. 270. Common Carrier, 58, 59, 60, 61, City of lied Wing, McDonald y. City of St. Anthony, Slate ex, rel. etc. y. City of St. Paul,' Baker y. City of St. Paul y. Colter 12 Minn. 41. Constitutional Law, 63. Municipal Corporation, 234. City of St. Punl, Daley y. of St. Paul, DeBochbrune. of St. Paul, Griggs et al. y. of St. Paul y. Kuby, 8 Minn. 154. Civil Action, 38. Damages, 111. Evidence, 140. Pleading, 271. Practice, 313, 364. y. Laidler, 2 Minn. 209. Evidence, 141. Municipal Corporation, 233, LoyeJl y. — y. Maryln 16 Minn, 102. Certiorari, 24. Criminal Law, 105. .Justice of tlie Peace, 198. y. Merrltt, 7 Minn. 25N. Taxeis, 396, 400. , McClung y. , Morri.son y, , Nasli y. V. Louis Seitz, 3 Minn. 297. Municipal Corporation, 232, 236. y. Troyer, 3 Minn. 293. Municipal Corporations, 333. , Wilder y. City of St. Panl et al., Merritt y. City of Winona y. Hnflf, 11 Minn. 119. Easements, 124, 125. 126. Evidence, 142, l43, 150, 158. Municipal Corporation, 233. Practice, 345, 346. Trusts and Trustees, 403. Claflin y. Layyler, 1 Minn. 299. Pi-actice, 304, 342, 343, 346. Clague y. Hodgson, 16 Minn. .329. Civil Action, 51. Evidence, 148. Justice of the Peace, 193, 195. STew Trial, 339. Pleading, 276. Practice, 310, 341. Clark y, Bachauan et al., 2 Minn. 347. Elections, 127. Mandamus, 208, 209. y. Norton, et al., 6 Minn. 412. Civil Action. 35. Bonds, 22. - Pleading, 275. Clarksou, Mackubin y. Clark & Co., Fitz y. Clason et al., Sanborn et al. y. Cleland y. Tayernier, 11 Minn. 194. Practice, 298, 300, 301. 444 TABLE OF CASES. Clitherall et al., Chislioliii y. Cobb, Babcock et al. y. Cochrane y. Toher et al., 14 Minn. 38.5. Evidence, 160. False Imprisonment, 166. Practice, :il3. Cock y. Tan Etten, 12 Miiin. .522. Civil Action, 30. Coflin, Greye y. Cogel et al. y Mickow et al., H Minn. 475. Homestead, 179. Mechanics' Lien, 213. Comely y Cnshnian, 16 Minn. .397. Contracts, 7G. Evidence, 160. Infancy, 185. Practice, 346, 348. Coit y. Waples et ill., I Minn. 134. Civil Action, 40, 41. Mechanics' Lien, 214. New Ti-ial, 239. Pleading-, 276. Practice, 311, 316, 318, 336, 350. 363. Replevin, 379. Col. Lee, ex parte, 1 Minn. 69. Habeas Corpus, 178. Judge of Probate, ISO. Statutes, 390. Colbath, Buck y. Colby y. O'Ferral et al. y. Coleman, Bidyvell y. Cole, Thayer y. Cole y. Cnrtls et al., 16 Minn. 1§2. Evidence, 141, 142, 144, 162. Malicious Prosecution, 206. Practice, 309, 311, 312, 313, 314, 348, 349. Search Warrant, 382. y. Miixfleld, 13 Minn. 235. Landlord and Tenant, 199. New Trial, 339. U. S. Land, 407. y. Sater, 5 Minn. 46S. Garnishment, 174, 175. Colter, City of St. Paul y. Colter, Strong' y. Colter y. (JrcenUagren. 3 Minn. 126. Contracts, 76. Pleading, 294. Coombs y. Cooper, 5 Minn. 254. E.'^toppel, 135, 136. Comer y. Baldwin, 16 Minn. 172. Deeds, 119. Statute of Frauds, 392. y. Folsoin, 13 Minn. 219. Constitutional Law, 71. Commissioners of Caryer Co., Hutchins y. — — , Niningcr v. -, Teick y. Conimissioucrs of Fillmore Co., Conklin y. Commissioners of Hennepin Co., Warner y. Commissioners of Olmstead Co., Mapes y. " Commissioners of Ramsey Co., (Jood- now y. Commissioners of Bice Co., Sanborn y. CommisNioners of Steele Co., Murphy et al. y. Commissioners of Scott Co., First Nation- al Bank St. Paul y. Commissioners of Scott Co., St. Peter's Chni'ch y. Commissioners of Scott Co., Thomas v. Commissioners of Wright Co., Supervis- ors of Maple Lake y. Commissioners Washington Co., Thorne y. CommouAyealtli Ins. Co. y. Pierro, 6 Minn. 569. Practice, 354, 357. Couehan y. Crosby, 1.5 Minn. 13. Contracts, 75.. Practice, 316. Conldin y County Commissioners of Fill- more Co., 13 Minn. 454. TABLE OV CAa?-.S. 44;") Civil Action, 44. r. Hinds, 16 Miniu 457. Civil Action, 50. P^idnnoe, 153. Xew Trial, 24:!. Pi-actic(N 311). ConnoUey v. Dayidson, 85 Minn. 5119. MMStei' and Servant, 212. !N"egligencP, 237. Partnership, 356. Practice, 361. Connor y. Board of Education of City of St. Anthony, 10 Minn. 439. IJoartl of Eilueation, City of St. An- thony, 20. Pleading, 291. School Districts, 380. Converse y. Barrows et al. 2 Minn. 235. Damages, 112. Practice, 353. Statutes, 389. Conway v. Wliarton, 13 Minn. 158. Pleading, 380, 281, 293. Cooii et al. r. Kendall et. al., 13 Minn. 334, Constitutional Law, 09. Limitations, 201, 303. Coon, State v. Cooper, Combs v. Cooper, Jones v. Cooper V Breckenridge, 11 Minn. 341. Civil Action, 46. Evidence, 138, 14S, 162. Practice, 310, 346, 360. Cooper Y. Brewster, i Minn. 95. Contract, 79. .Justice of the Peace, 1 93. Pleading. 283. Cooper et al. v. Eeaney, 4 Minn. 528. Damages, 111. Evidence, 139, 140. Cooper r. Stinsou, 5 Minu. 201. Private Agents, 3. Pleading, 290. Practice, 305, 320, 339. County Commissioners, Hennepin Co. v. Kobinson, 16 Minn. 3§1. County Attorney, 82. Estoppel, 135. Intoxicating Liquoi', 189. Co. Commissioners, Carver Co., Sneet r. Co. Commis.sioners, Ramsey Co., Langford et al. T. Connty Commissioners, Washington Co., McCormick v. Constans, Mead v. Courtnier v. Seacomb, 8 Minu. 299. Evidence, 153. Corbett, Bond r. Corriston, Adams v. Cottrell, Bacon v. ' Coulter, Schmidt v. Co. Treasurer v. Webb, et al., 11 Minn. 500. Taxes, 396, 397. Cover V. Town of Baytown et al., 12 Minn. 124. Parties, 57. Towns, 401. Cowley V. Davidson, 10 Minn. 392. Damages, 111. v. , 13 Minn. 92. Civil Action, 29. Contract, 74, 78. Damages, 112. New Trial, 240. Evidence, 143. Practice, 347. Coy et al. v. Coy et al., 15 Minn. 119. U. S, Land, 410. Cnmmings v. Heard, 2 Miun. 34. Practice, 359. Cratt et al., Monnette et al. v. Cressey v. Gierman et al., 7 Miun. 398. 446 TABLE OF CASES. J iistice of the Peace, 198. Cressey, Andrews v. Crosby, Conelian y. Crowell V. Lambert, 9 Mimi. 2§3. Judge of Probate, 190. Crojrell v. Lambert, 10 Miim. 389. Elections, 128. Mandamus, 308, 209. Crowell et al., Bennett et al. r. Culbertson r. Lennon, 4 Minn. 31. Civil Action, 34. Pleading, 282. Cnllen, Imp!, etc., "Wood v. Culyer, Whitacre v. , White et al. v. Cunning'liain v. Lacrosse & Minn. Pkt. Co., 10 Minn. 299. Practice, 341. Cnrran et al.. Freeman v. Currey et al, Stevens v. Curtis V. Moore, 3 Minn. 29. Justice of the Peace, 194, 196. Practice, 301, 311. Curtis, ex parte, 3 Minn. 274. Contempt, 72. Curtis, Gold T., ex parte. Curtis et al.. Cole v. Cnshman, Cogrley v. Cutting, Hotchkiss v. D Dahl et al. v. Pross, 6 Minn. 89. Civil Action, 48. Bonds, 23. Equitjs 130, 133. Daley v. City of St. Paul, 7 Minn. 390. Constitutional Law, 67, 72. Municipal Corporation, 233- Pleading, 277. Dana et al. y. Bank of St. Paul, 4 Minn. 383. Banks, 19. Corporations, 81. T. Farrington et al., 4 Minn. 433. Judicial Sales, 190. Moi-tgages, 228. Practice, 317. V. Porter et al., 14 Minn. 478. Pleading, 285. Practice, 326. Daniels v. Allen, 4 Minn. 170. Practice, 345. Daniels v. Bradley, 4 Minn. 138. Pleading, 290, 201. v. Harris et al., 4 Minn. 169. Practice, 345, v. Smith, 4 Minn. 172. Mortgages, 229. V. Willis, 7 Minn. 374. Award, 7. Civil Action, 35. v. Wlnslow, 2 Minn. 117. Practice, 342. 364. V. , 4 Minn. 318. Practice, 326. V. Ward, 4 Minn. 168. Interest, 188. V. Wainwright, 4 Minn, 171. Practice, 345. Daughaday v. Paine et al., 6 Minn. 443. Abstract of Title, 1. Notice, 251. Vendor and Purchaser, 413, 413. Davidson, Bartnell r. , Cowley V. , Thompson, Treasurer, etc., v. , Towlerton v. , Impl., etc., Connolly r. , Fay V. , McMahon v. et al., Lamprey v. , McCauley v. TABLE OF CASES. 447 , Robertson v. — -, Weide et al. v. Davidson y. Farrell, § Minn. 258. Practice, 331, 3i(), 347. V. Gaston, 16 Minn. 230. Practice, 326, 330, 332. Statutes, 389. V. Lamprey, 16 Minn. 445. Civil Action, 45. Pai'tnersiiip, 260. V. Owens et al., 5 Minn. 69. Attaclimeiits, 1.5. Pi'actice, 302, 356. Davis et al., Harley v. Davis, Wilcox et al. v. Davis, Willis v. Davis v. Barnes et at. 3 Minn. 121. Deeds, 120. — - V Pierce et al., 10 Minn. STe. Mei-gei-, 216. • T. , 7 Minn. 13. Constitutional Law, 67. Davis V. Seymour, 16 Minn. 210. Practice, 332, 336. Davis et al. v. Smith, 7 Minn. 414. Practice, 344, 346. Sale of Personal Property, 379. Dawson r. St. Paul Fire & Marine Ins, Co., 15 Minn. 136. Easements, 123. Injunction, 186. Day, Allis v. Day V. Putnam Ins. Co. et al., 16 Minn 40§. Office and Officer, 254. Day et al. v. McQuillan, 13 Minn. 205. Attachments, 18. Partnersliip, 260. T. Ragnet et al., 14 Minn. 273. Civil Action, 28, 33. Evidence. 152. Practice, 305, 306, 343, 344, 348, 301. Sale of Personal Property, 379. Dayton et al. r. Paine et al., 13 Minn. 493. Prohibition, 370, 371. - — V. Warren, 10 Minn. 233. Evidence, 160. Practice, 307. Dean v. Leonard, 9 Minn. 190. Pleading, 274, 285. Dee, State v. De Freudenrich, Toss v. Denman et al., Winona & St. Peter Ji. K. Co. V. Dennett, Smith v. Derby et al. v. Galup et al., 5 Minn, 119. Damages, 114. Evidence, 139, 141, 152, 159, 164. Pleading, 280. Practice, 309, 314, 315, 349, 352. De Rochbrune v. City of St. Fanl, 11 Minn. 313. Municipal Corporations, 235. V. Southeiner, 12 Minn. 78. Practice, 341. Desnoyer v. Hereux, 1 Minn. 17. Justice of the Peace, 194. Practice, 316, 340, 347. T. McDonald et al., 4 Minn. 51.5. Evidence, 140, 142. New Trial, 242. Practice, 317. , St. Martin v. Deuel, Hawke v. T. Hawke, 2 Minn. 50. Courts, 86. , Practice, 304, 356. Devlin et al. v. Chamblin et al., 6 Minn. 468. Contract, 78. Dewey v. Leonard, 14 Minn. 153. 448 TABLE OF CASES. Award, 7. Jfegligonce, 237. Pleading, 291. Dewey, Breen v. Dickenson v. Kimiey, 5 Minn. 409. Practice, 319, 335. Dike V. Pool et al., 1.5 Minn. 315. Custom, 110. New Trial, 241. Dineen, State v. Dixon V. Merritt, 6 Minn. 1©0. New Trial, 241. Practice, 344. Dackendorf et al., Wreene v. Dodd V. Brott, 1 Minn. 274. Attorneys, 16. Debtor and Creditor, 1 1 7. Y. €ady, 1 Minn. 2§9, .Turisdiction, 191. Justice of tlie Peace, 191, 196. Dodd, Cliapinan v. Dodge V. Ciiandler, 9 Minn. 97. Practice, 332. Sheriff, 3S4. V. , 13 Minn. 114. Damages, 113. Evidence, 152. New Trial, 239, 240. Pleading, 265, 283. Practice, 350. V. Hollinsliead, 6 Minn. 25. Evidence, 145. Husband and wife, 1S3. V. Minn. Plastic Slate Roofing Co., 14 Minn. 49. Contracts, 80. Pleading, 272. V. , 16 Minn. 368. Corporations, 81. V. Northwestern Union P'lrt Co., 13 Minn. 45§. Removal of Causes to U. S. Courts, 378. V. Rogers, 9 Minn. 223. Contract, 74, 75, 77. Practice, 315. Dodge, Tierney v. Dole V. Wilson, 16 Minn. 525. Evidence, 139. Donnelly v. Simonton et al., 167. Minn. Civil Action, 49. Mortgages, 225, 227. v. , 13 Minn. 301. Contract, 74. Mortgages, 225. Donovan, Grace v. Doran, Minn. V. R. R. Co. v. Doran, impl'd, etc., Monlton v. Dorman, Ames et al. v. Dorman v. Ames et al., 12 Minn. 451. Civil Action, 44. Damages, 113, 114. Evidence, 159, 160. Limitations, 201. Practice, 340. "Water Course, 414. V. Bayley, 10 Minn. 383. Justice of the Peace, 197. Dorman, Woodbury t. Dorn, Pottgeiser v. Dorr T. Mickley, 16 Minn. 20. Chattel Mortgage, 26. New Trial, 239. Sheriff, 383. Drew et al., Jacoby v- Drew et al. v. Smith, 7 Minn. 301. Bonds, 23. Mortgages, 22G. Dreschler, Solomon t. Diinklee, Starbnck t. Duffy, Atkinson et al. v. Dafolt v. Gorman, 1 Minn. 307. Common Carrier, 61. Practice, 348, 346. TABLE OF CASES. 449 S atute of Fniuds, 391. Dnkc V. Balme et al., 16 Minn. 806. Bona Fide Purchasei', 31. Limitations, 203. Vendor and Purchaser, 412. Dukes, Smith r. Dukes, Sowers et al. t. DuLanrans v. First Dlv, St Paul & P. E. B., 15 Minn. 49. Common Carrier, 59. Damages, 11.5. Practice, :U0. Dumpliey, State v. Dunbar, Sunday v. Dunklee, Starbnck v. Dunning v. Pond, 5 Minn. 302. Civil Action, 35. Pleading, 288, 289. Dunwell et al. v. Warden et al., « Minn. 287. Practice, 365, 366. V. Bidwell, 8 Minn. 34. Constitutional Law, 67. Mechanic's Lien, 215. Dnrfee t. Favitt et al., 14 Minn. 424. Evidence, 140. Fraudulent Conveyance. 171. Trusts and Trustees, 406. E Fames, inipl'd, etc., Weller y. Fastman et al. v. Lamprey, 12 Minn. 153. Civil Action. v. St. Anthony Falls Wat«r Power Co., 12 Minn. 153. Limitations, 203. Parties, 56. Pleading 291. Eastman & Gibson, Gebhard t. Eastman et al., Hart et al. v. Easton v. Hyde et al., 13 Minn. 90. New Trial, 244. V. Caldwell, 3 Minn. 134. Damages, 113. Eaton y. Caldwell, 3 Minn. 134. New Trial, 243. Practice, .317, 322, 339. Eaton, Mattison y. Echard, Castner y. Edert and Wife, Randall v. Edes, Banning: y. , Greenleaf v. , Scott y. Ed^erton, Bracket! v. , Tale V. Edgerton et al. y. Jones et al., 10 Slinn. 427. Evidence, 145. Mortgages, 224. Practice, 353. Edgerton et al., ex'rs, etc.. Lash y. Eddy, Fenner & Co. y. Caldwell, 7 Minn. 225. Chattel Mortgage, 25, 26. New Trial, 243. Notice, 250. Practice, 321. Edmnndson, Myrick y. Edsony. Newell, 14 Minn. 228. Chattel Mortgage, 26. Statutes, 388. Edwards, Hill et al. v. Elfelt y. Smith, 1 Minu. 125. Damages, 111. Evidence, 159. Practice, 340. Ely y. Titus, 14 Minn. 125. Attachments, 15. Emery et al., Lee v. Emmett et al. y. Rotary Mill Co., 2 Minn. 290. 45f) TABLE OP CASES. \ Mechanic's Lien, 215. Pleiiding. 263. Eiiglebrecht t. Rickert, 14 Minn. 140. Pleading, 281. Practice, 320. Enke, Morey v. Entrop V. Williams, 11 Minn. 381. Practice, 331, 355. Ess, Uecklin v. Estate of John Columbus v. Monti, 6 Minn. 56§. Practice, 353. Estes v. Farnham, II Minn. 123, Evidence, 147, 149. Pleading, 203, 273, 289. Etheridge, Steele et al. v. Evans t. Folsom, 5 Minn. 422. Contract, 79. Equity, 133. Statute of Frauds, 391. Evans, Folsoni v. Everest v. Ferris, 16 Minn. 26. Deeds, 121. Mortgages, 218, 320. Everitt, Payjon v. Everitt, State v. Ex parte. Gold T. Curtis, 3 Minn. 274. Contempt, 72. Practice, 301. F Fagebank v. Fagebank, 9 Minn. 72. Pleading, 280. Fagebank, Fagebank v. , Hinds V. Fallmans v. Gilmore, I Minn. 179. Pleading, 279. Practice, 299, 304, 339, 340, 363, 364. Faribault et al. v. Ilulett et al., 10 Minn. 30. Certiorari, 34. Dams and Mills, 116. Pleading, 263. Faribault et al. v. Sater et al., 13 Minn. 223. Civil Action, 38. Covenants, 88. Evidence, 151. Farmers' Bank v. Winslow, 3 Minn. 90. Mechanic's Lien, 213. Farmer, Brisbin v. Farnham, Estes v. Farrand v. Hulbnrt, 7 Minn. 477. Civil Action, 51. Farrant v. First Div. St. Paul & P. R. R. Co., lO Minn. 311. Civil Action, 43. Pleading, 366. Farrell, Davidson v. Farrington and wife, Dana et al. v. Farrington v. Wright, 1 Minn. 244. Pleading, 269. Practice, 363. Farwell & Co., Hooper et al. v, Favier, Case v. Fay V. Davidson, 13 Minn. 523. Evidence, 155, 159. Negligence, 237. Master and Servant, 210. Partnership, 255. Practice, 357. Furgeson v. Eumler et al., 11 Miim. 104. Fraudulent Conveyance, 171, 172. Fnrgeson, Knmler v. Ferris, Everest v. Fitz v. Clark & Co., 7 Minn. 217. Pleading, 273, 374, 283. Practice, 331. Filley et al. v. Register et al., 4 Minn. 391. Evidence, 151. Fraudulent Conveyance, 172. Voluntary Conveyance, 413. TABLE OF CASES. 4r)i Fliicli V. Green, 10 Minn. 355. Evidence, 140, 160. Dams and Mills, 116. New Trial, 242, 24S. Xuisanoe, 252. Pleading, 271. Practice, 318, 349. Finley v. Quirk, » Minn. 193. Contract, SO. Evidence, 1.53, 13S1. Pleading, 263, 286. Finney v. Callendar, § Minn. 41. Contract, SO. Evidence, 139. First Div. St. Paul & P. R. R. Co., Ames v. , Tarrant v. , Du Laurens v. , Loclie V. , Molitor V. First Div. St. Paul & P. R. R. Co. et al., Paine admr's, etc., v. , Parcher Co. Treasurer et al., v. et al., Sehurmeier v. , Willun et al, v. v. Parcher et al., 14 Minn-aST. Constitutional Law, 71, First Div. St. Paul & P. R. R. Co., 139, 395. First National Bank of Hastings v. Rog- ei-s impl., etc., 12 Minn. 529. Practice, 300. V, Rogers et al., 13 Minn. 487. Bonds, 22. Pleading, 260. Principal and Surety, 369. Practice, 330. V. Rogers et al. 15 Minn. 381. Bonds, 32. Civil Action, 35. Practice, 334. Sheriff, 385. First National Bank of St. Paul t. County Coinmissioners, Scott Co., 14 Minn. 77. Bonds, 22. First National Bank, Ingersoll et al. v. Fischer, Prignitz v. Fish, Heinlin v. Fish, Steele v. Fisli, Warren et al. v. Fish V. Iferkey et al., 10 Minn. 199. Parties, 5"). Pleading, 572. Fitch, McCorinick et al. v. Fitz et al. v. Minn. Central Railway Co., 11 Minn. 414. Minn. & Cedar Valley E, R.. Co., 286. Fleckenstein, Griggs v. Fletcher r. Spalding, 9 Minu. 64. Limitatipns, 201. Fletcher, Catlin v. Fletcher, Swift v. Flint, Home Ins. Co. v. Flynn, Minn. Y. R. Co. v. Foerster r. Kirkpatrick et al., 2 Minn. 210. Pleading, 273, 274. Folsom, Annan v. , Comer, Treasurer, etc., y. Folsom impl'd etc.. Moor v. Folsom T. Carli, 6 Minn. 420. Pleading, 281, 282. Folsom V. Evans et al., 5 Minn. 418. Practice, 357. Folsom et al. v. Carli, 3 Minn. 333. Homestead, 179. Notes and Bills, 245. Sheriflf, 385. Folsom et ul. r. Lockwood, 6 Minn. 186. Mortgages, 217, 224, 225. Foos, Goetz v. Ford y. Brownell, 13 Minn. 318. Civil Action, 57. I Forbnsh y. Leonard et al., 8 Minn. 303. 452 TABLE OF CASE8. Attorneys, 17. Ford V. Wrlgrlit, 13 Minn. 518. Elections, 128. Forepaiigh et al., Trowbridge y. Foret et al., Goncelier y. Foster V. Board of Commissioners, Blue Eartli County, 4 Minn. 140. Counties, 83. Foster y. BerJjey et al., § Minn. 351. Cliattel Mortgage, iii. Civil Action, 41. Evidence, 150, 153. Mortgages, 223. Trusts and Trustees, 406. Practice, 313. Foster y. Minn. Central Railway Co., 14 Minn. 360. Master and Servan., 211, 213. Fowler et al. y. Atliinson, 5 Minn. 505. Practice, 359. y. , 6 Minn. 503. Practice, 340. Justice of the Peace, 194. Civil Action, 35. y. , 6 Minn. 57§. Notes and Bills, 245. Practice, 352, 354, 356. Private Agents, 3. Fox y. Stevens, 13 Minn. 272. Damages, 111, 115. Evidence, 163. Fox et al., Berthold y. Franklin et al. y. Warden et al., 9 Minn. 124. Mortgages, 222. Frazer, Slierrard v. Frazer y. Slierrard, 6 Minn, 576. Practice, 364. Frasier y. Williams, 15 Minn. 2S8. Sheriff, 385. Pleading, 267, 288. Freeborn y. Pettibone, 5 Minn. 277. Freeman y. Curranet al., 1 Minn. 169. Pleading, 284, 287, 292, 293. Fridley, Beebe v. , Pinney v. Frolsetli, State v. Fuller, Rowland y. , Whittacre et al. v. Fnllerton, Eipp v. G Gale y. Battin et al., 16 Minn. 14$. Debtor and Creditor, 118. Practice, 332. y. Battin and wife, 12 Minn. 2§7. Mortgages, 220. , Nasli V. Gale et al., Rhone y. Gales y. Thatcher, 11 Minn. 204. Evidence, 166. Secretary of War, 382. Galena D. I>. & Minn. Pkt. Co., Broome et al. v. Gallagher v. State, 3 Minn. 270. Assault and Battery, 8. Practice, 312. Galloway v. Litchfleld.et al., § Minn. 1§8. Mortgages, 223. y. Tates et al., 10 Minn. 75. Undertakings, 411. Gallup, Derby et al. v. Gamelle et al., Bradley y. Gardner et al.. Phoenix et al. y. Gardner y. McClure et al., 6 Minn. 250. Mortgages, 225. Pleading, 263. Garyey, State y. Gasner y. Metropolitan Ins. Co. 13 Minn. 4§3. j Fire Insurance, 167. TABLE OF CASES. 4ry.5 Gaston, Daridson y. Gates V Manny et al., 14 Minn. 21. Evkleiioe, 142, 157. Practice, 315. Y. Snuth, 2 Miiui. 33. Civil Action, 28, 29, 42. Chattel Mortgage, 25. y. Thatcher, II Minn. 204. Civil Action, 31. Grcbhard v. Eastman et al., 7 Minn. 56. Pleailing, 274. St. Antliony Falls W. P. Co., 393. (lieniniell v. Rice et al., 13 Minn. 400. Attorneys, 216. Practice, 328. Gere y. Murray, 6 Minn. 305. Assignments, 12. Fraudulent Conveyance, 171. y. Weed et al., 3 Minn. 352. Court Commissioner, 82. Practice, 363. Gere et al., Talbot y. German Land Association y. Scholler, 10 Minn. 331. Deeds, 119, 120. Gerish et al., v. Johnson, 5 Minn. 23. Practice, 328, 342, 363. y. Pratt et al. 6 Minn. 53. Abatement, 1. Former Adjudication, 169. Practice, 304. y. , 8 Minn. 106. Practice, 361. Gervais y. Powers et al., 1 Minn. 45. Justice of the Peace, 198. Gibson, Smith y. Gideon, United States y. Gierman et al., Cressey y. Gies et al. y. Kottman et al., 12 Minn. 279. Grarnishment, 174. Gilbert et al. y. Thompson, 14 Minn. 544. Evidence, 145. Practice, 310. Sioux Half Breed Scrip, 386. Gill y. Xewell et al., 13 Minn. 462. Agency, 6. Contract, 79. Equity, 131 Gillett. Howes v. Gillett. Bennett v. Gilflllan, Johnson v. GUman, Fallnians y. Gilman et al., Kingsley v. Gilmaii & Co., Pcckham et al. y. Gilinore, Brackett y. Griffin, Jorgensen y. Griswold y. Taylor, 8 Minn. 343. Evidence, 157. Goerner y. Schroeder, 8 Minn. 387. Constitutional Law, 66. Justice of the Peace, 195. Goetz y. Foos, 14 Minn. 265. Statute of Frauds, 392. Goncelier y. Foret et al., 4 Minn. 13. Courts, 86. Parties, 54. Pleading, 392. Goodnow y. Commissioners of Ramsey Co., 11 Minn. 31. Counties, 82, 83. Pleading, 274. Goodrich y. Rodney et al., 1 Minn. 196. Pleading, 263. Practice, 298. y. Moore, 2 Minn. 63. Injunction, 185. Practice, 303. Public Priuting, 371. Equity, 129. Goodrich et al. v, Hopkins et al., 10 Minu. 162. 454 TABLE OF CASES. Garnishment, 174, 175. Practice, ."ies, 366. " Gorton v. Massoy et al., 12 Minn. 145. Fraudulent Conveyance, 171. Vendor and Purcliaser, 413. Gorman, Dufolt v. Gould T. Sab. Dist. >'o. 3 of Eagle Creek School Dist. 7 Minn. 203. Civil Action, 20. Pleading, 367, 277. Parties, 56. V. , § Minn. 427. Landlord and Tenant, 199. Gould et al., Misener y. Grace v. Donovan, 12 Minn. 5§0. Practice, 337. Grace, Vogle r. Grace et al., Roberts v. Grace et al.. Buckholz et al. v. Grace, interpl., etc., Warner v. Grant. Heyward et al. v. Grant, impl., etc., State v. Gray et al. v. Stockton, 8 Minn. 529. Civil Action, 36. U. S. Land, 408. Gray v. First Div. St. Paul & P. R. R. Co., 13 Minn. 315. Constitutional Law, 69. Pleading, 277. Easements, 124. First Div. St. P. & P. K. R. Co., 168. Graves et al. y. Moses et ah, 13 Minn. 335. Bailment, 18, 19. Civil Action, 29, 30. Greely, St. Anthony Falls Water Power Co. T- Greens, Adra'rs, Hartshorn y. Green y. Dockendorf et al., 13 Minn. 70. Agency, 5. Evidence, 140. Greenleaf et al. v. Fdes, 2 Minn. 264. Assignments, 11. Deeds, 130. Kotice, 251. Greenleaf, lUingworth y. Greenhagen, Colter v. Greenwood, Rogers y. Greenwood, Skillman v. Green, Finch y. Greye y. Coflin, 14 Minn. 345. Deeds, 120. Power of Attorney, 295. Mortgages, 220. Stamps, 388. Taxes, 400. Griffin et al.. Furlong y. Griggs y. Fieckinstein, 14 Minn. §1. Civil Action, 39, 40. Evidence, ]55. ISTegligence, 237, 238. Griggs y. City of St. Paul, 9 Minn. 246. Pleading, 269, 290. y , 11 Minn. 308. Municipal Corporations, 235. y. Larson, 10 Minn. 220. Justice of tlie Peace, 195. Grimes y. Bryne, 2 Minn. 97. Constitutional Law, 65. Former Adjudication, 169. Statutes, 389. Practice, 333. Griswold.y. Taylor, 8 Minn. 342. Mortgages, 223. y. Steamboat .Otter, 12 Minn. 465. Boats and Vessels, 22. Groh y. Bassett, 7 Minn. 325. New Trial, 243. Practice, 358. Grooves, Pulver y. Grnbe, .Dtna Ins. Co. y. Gnerin v. Hunt et al,, 16 Minn. 375. Assignments, 10,13. Evidence, 142. TABLE OF CASES. 455 Practice, 315. I V. , § Minn. 477. Assignments, 12. Attachments, 13. i Evidence, 141, 152. [ Guernsey y. Am, Ins. Co.," 18 Minn. 27S. j Practice, 299. Guile V. McManny, 14 Minn. 5aO. \ Attacliments, 15. Guntlier, Castuer v. Gut, State v. H Haines v. Paxton, 5 Minn. 442. Practice, 3fi3. Hall r. Smith, 16 Minn. 5§. Contract, 74. Practice, 321. Hall V. Williams et al., 13 Minn. 260. Pleading, 268, 275. Practice, 355. Hall, Heath t. Hamilton et al. y. Batlin et al., § Minn. 403. Civil Action, 47 Hamilton, Brooks v. Hamlin y. Parsons et al., 12 Minn. 10§. Mortgages, 224. Hanford et al., Mower et al. y. Hanna et al. y. Sussell et al., 12 Minn. §0. Practice, 29.S. Harkins y. Board of Superyisors Scott Co., 2 Minn. 342. Mandamus, 207, 209, 210. y. Sencerbox, 2 Minn. 345. Mandamus, 209. Hardy, Snow v. Harley y. Dayis et al., 6 Minn. 4 §7. Practice, .S.S4. Harmon et al., Schaick y. Harrington y. Loomis et al., 10 Minn. 366. Pi-actice, 299. Harris et .al., IJecht y. , Daniels y, , Lowry et al. v. Hart et al. t. Eastman et al., 7 Minn. 74. Notes and Bills, 246, 248. Practice, 304. V. Marshall, 4 Minn. 29 1. Injunction, 185. Judicial Sales, 191. Practice, 339. Hart, Begents of the Uniyersity v. Hart et al., Marshall v. Hartman, Jaeger et al. y. Hartshorn y. Green, Adm'rs 1 Minn. 85. Courts, 85. Evidence, 157. Hastings, Brainard ,v. Hatch et al., Stevens v. Hathaway et al., Brown y. Havens et al., Hnmphreys et al. v. Hawke et al. v. Banning et al., 3 Minn. 67. Parties, 53. Practice, 344. Hawke y. Deuel, 2 Minn. 5S. Practice, 364. Hawke, Deuel v. Haws, Ward y. Hay ward et. al. y. Grant, 13 Minn. 165. Notes and Bills, 250. Pleading, 267, 273, 288, 294. Healey, Bennett v Heany, Hodgins et al. v. Heard, adm'r, Cummings v. Heath y. Hall, 7 Minn. 315. Mortgages, 329. 456 TABLE OF CASES. Heckliii y. Hess, 16 Minn. 51. Justice of the Peace, 196. Pleading, 285. Practice, 340. Heenan r. Ifash, § Minn. 407. Notes and Bills, 247. Heenan, Prince v. , State V. ■, Supervisors of Banisey Co. v. Heinlin v. Fish, 8 Minn. 70. New Trial, 341. Heifer v. Alden et al., 3 Minn. 332. New Trial, 244. Notes and. Bills, 24G. Parties, 53. Practice, 308. HeHmiller, Shunlc y. Hemphill y. Holley, 4 Minn. ii3S. Slander and Libel, 388. Henderson, Sliaw y. Hendricks v. Banning', 7 Minn. 32. Civil Action, 38. Henk, Lamprey y. Hereux, Desnoyer y. Hersliey impl., etc., Tozer et al. v. Herrick, State y. Heyward y. Jndd, 4 Minn. 483. Civil Action, 51. Constitutional Law, 65. Mortgages, 231, 226. Heyward, Exrs., Agen y. Heyward, Mason et al. v. Heyland et al., Stevenson v. Hicks y. Stone et al., 13 Minn. 434. Bona Fide Purchaser, 21. Evidence, 139, 152, 164. Practice, 361. Hidden, Stewart v. Higgins, Johnson v. Hilbert v. Winona & St. P. K. K. Co., 11 Minn. 246. ■ Transitu. R. Co., 402. Hill et al. y. Edwards, 11 Minn. 22. Mortgages, 217, 220. Pleading, 269, 287. Hill y. Lund, 13 Minn. 431. Constitutional Law, 69. Kill, State ex rel. etc, v. Hillhouse, CalifT v. Hinckley et al. v. St. Anthony Falls W. P. Co., 9 Minn. ,5.5. Attorneys, 17. Garnishment, 174. Practice, 299. Hinckley, State v. Hinds, Armstrong y. , Byrane v, , Conklinv. , Mnrphy y. V. Fagebank, 9 Minn. 68. Attachments, 14. Hoberg v. State, 3 Minn. 226. Evidence, 164. Practice, 316. Hodgins et al. y. Heaney, 13 Minn. 183. Practice, 325, 358. Statute of Frauds, 392. Hodgson, Clague v. Hoerr, Beaupre v. et al., Bruggerman v. Hoffman et al. v. Mann, 11 Minn. 364. Practice, 358. Hogard, State y. Holcombe v. Tracy, 2 Minn. 247. Limitations, 201. Pleading, 267. Holgate V. Broome, 8 Minn. 243. Justice of the Peace, 194. Pleading, 274. Practice, 329. Holleran et al.. Turner et al. v. Holley, Hemphill y. TABLE OP CASES. 457 Hollinshcad, Dodge y. Hollinsliead y. Banning & Co., 4 Minn. 116. Garnishment, 175. y. YoQ Olahn, 4 Minn. 190. Pract.icu, 3.o0. Holmes et al., Bertliold y. Holmes et al. v. Campbell, 10 Minn. 401. Civil Action, 31. Trusts_ancl Trustees, 404. y. , 12 Minn. 224. Jurisdiction, 191. Practice, 344, 348, 349, 367. V. , 13 Minn. 66. Practice, 329, 355, 356. Holmes y. Williams et al., 16 Minn. 164. Civil Action, 33. Pleading, 269, 270, 278. Tenants in Common, 401. Holster et al., Simmons y. Holton V. Parker et al., 13 Minn. 383. Pleading, 263. T. Meighen, 15 Miun. 69. Limitations, 304. Mortgages, 218. Pleading, 279. Holton et al., Barnes y. Holyoke et al., Gilman y. Holyoke, Rogers v. Hone y. Woodruff, 1 Minn. 421, Covenants, 87. Hoover et al., Jacobs et al. v. Home Ins. Co., Butterfleld v. Home Ins. Co. y. Flint, 13 Minn. 244. Prohibition, 370, 371. y. Scheffer, 12 Minn. 382. Mandamus, 308, 210. Hooper et al, y. Farwell & Co., 3 Minn 106. Practice, 340. Hope y. Stone et al., 10 Minn. 141. Covenants, 87. Deeds, 119, 131. Trusts and Trustees, 403. Hopkins et al., Goodrich et al. y. Horton and wife et al. y. Maffit and wile, 14 Minn. 289. Merger, 216. Tenants in Common, 401. Hosclieid, Myerus v. Hotchkiss y. Cutting, 14 Minn. 537. Judicial Sales, 190. Mortgages, 227. Practice, 298, 324, 331. Hough y. Board of Commissioners, Ram- sey Co., 9 Minn. 23. Counties, 84. V. McNitt, 6 Minn. 513. Contracts, 76. Houghton V. Lynch, 13 Minn. 85. Common Carrier, 61. Parties, 54. Hawes y. Gillett, 10 Minn. 397. Civil Action, 45. Practice, 356. Howe et al, Tuttle y. Rowland y. Fuller, 8 Minn, 50. Civil Action, 41. Evidence, 139. Pleading, 294. Practice, 334, 360. Hoyt et al. y. McNeil, 13 Minn. 390. Limitations, 201. Pleading, 363, 264. Hoyt, State y. Hubbard t. Williams, 1 Minn. 54. Garnishment, 173. Hnddleston, Pierce y. Hney y. Pinney, 5 Minn. 310. Civil Action, 35. Pleading, 268, 289. Principal and Surety, 3G8, 369. 4r)S TABLE OF CASP.S. Huff V. Wiiion.1 & St. Peter K. K. Co., J a Minn, 18*. Transit E. R. Co., 402. Hiitf, City of Winona v. Hnlm & Co. et al., Ward y. Hulett V. Mattisou, 12 Minn. 349. Practice, 358. Hnlett et al., Faribault et al. y. Humphreys et al. v. Havens et al., 9 Minn. 31§. Xew Trial, 242. Practice, 3i)3, SiiG, ',WS. Humphreys et al. y. Hayens et al., 12 Minn. 298. Agency, 2, o, 6. Power of Attorney, 295. Practice, 347. y. , 13 Minn. 150. Practice, 328, 353. Hnnt, Gnerin y. Hunter y. Jones, 13 Minn. 307. Highways, 179. Practice, 315. Hurd et al', Loyyry v. Hurd y, Simontou, 10 Minn. 423. Pleading, 294. Practice, 345. Hurlbut, Farrand y. Hurlbut, Martin y Hutchins y. Commissioners of Caryer Co., 16 Minn. 13. Practice, 333, 335. Sheriff, 385. Hyde et ill. Easton y. Uariiishuiciit, 175. Ingersoll y Randall, 14 Miun. 400. Contract, 80. Ill tlie matter of the application of the Senate for the opinion of the Su- preme Court,, 10 Minn. 70. Constitutional Law, 04. Iryine y. Iryine, 5 Minn, 61. Pleaaing-,r279. Iryine v. Marshall et al., -i Minn. 73. Courts, 85. Pi-aotice, 351. Iryine y. M.irshall et al., 7 Minn. 2*6. Practice, 345. Contracts, 75. Trusts and Trustees, 405. Irvine et al, y. Myers & Co., 4 Miun. 229. Pleading. 273. Partnership, 257. Iryine y. Myers & Co. 6 Miun. 55§. Practice, 354, 357, 365. T. — , 6 Minn. 562. Assignment. 9. Practice, 329, 351. y. Steamboat Hambursr, 3 Minn. 192. Boats and Vessels, 21. Irvine, Stone & MeCormick, Plerse v. Iryiue et al., Myers & Co. y. Ives v. Piielps et al., 16 Minn. 451. Practice, 330, 355. J I lUingworth v. Greenleaf, 11 Minn. 235. Evidence, 160. New Trial, 339. Ingersoll v. First National Bauli of St. Paul, lO Minn. 396. Jacobs y. Hooyer et al., 9 Minn. 204. Civil Action, 42. Practice, 309. Jacoby y. Drew et al., II Minn. 408. Undertakings, 411. Jaeger et al. v. Hartlnan, 13 Minn. 55. Pleading, 273, 275. Jackman et al. Carli y. TABLE OF CASES. 459 Jiickson V. Bntler, W Miuii. 167. Coustitutional Liiw, 07. Jackson, Tillman et al. r. , Movton et al. y. January, Mair et al. v. Jonness y. School Dist. ^o. i. Wash. Co., S2 Minn. 448. School Districts, 381. Johnson y. Carpenter, 7 Minn. 1 7«. Evidence, 140. Mortgiiges, 23.S, 33.".. Jolnison T. Higgins, 15 Minn. IS©. Practice, .365, • V. .Johnson et al., 1«» Minn. 512. Equity, 131. Trusts and Trustees, 104. — - V. Knoblanch et al., 14 Minn. 16. Practice, 300. Y» Lewis et al,, 13 Minn. 364. Civil Action, 34 Mortgages, 221. et al. V. Kipcr, 4 Minn. 192. Civil Action, 49. Parties, 55. Fraud, 170. Pleading, 287. T. Wallower et al., 15 Minn. 472. Civil Action, 37. Damages, 113. Evideuce, 153. Fraud, 170. Practice, 315. T. Williams et al., 4 Minn. 260. Mortgages, 218, 219, 230, 225. V. Winona & St. Peter K. E. Co., 11 2$6. Common Carrier, 58. Negligence, 237. Practice, 346. — - et al. J. GilflUan, 8 Minn. 395. Custom, 110. Parties, 53. Limitations, 201, 202. Johnson, Gfarish et al. v. Johnson, Snow et al. v. , Slate V. et al., Johnson y. , Piper v. -, Schurmeier y. Jones, Allen y. Jones, Hunter y. Jones y. Cooper, !* Minn. 334. Mortgages, 22!i. y. Rahilly, 16 Minn. 17«. Bailment, IH. Damages, 111. Debtor and Creditor, 117. Evidence, 145, 156. Pleading, 276, 280. Practice, 359. et al. y. Tainter et al., 15 Minn. 512. Mortgages, 223, 224, 229. — -, Eilgerton et al. y. Jordan et al., Smith y. Jorgonsen y. Boehmer et al., 9 Minn. 1§1 . Practice, 358. — - y. Grillin, 14 Minn. 46§. Evidejice, 154. Practice, 324, 328. Judson y. Reardon, 16 Minn. 431. Arrest, 7, 8. Civil Action, 43. Constitutional Law, 72. Damages, 116. Malice, 206. Practice, 311. Judd et. al., Berkey v. Jndd, Heyward y. K Kane & Co., Tyson & Co. y, Karus y. Eunkle, 2 Minn. 316. Pleading, 27.'>. Pi-aqtice, 363. 460 TABLE OF CASES. Kates T. Thomas iiiipl., etc., 14 Minn. 460. Justice of the Peace, 196. Practice, 340. Kattenburgli, Walsh j. Kay V. Vischers et al., 9 Minn. 270. Practice, 336. Keigher et al. t. McCorniick, II Minn, 345. Attacliments, lo. Keith, Barker y. Kelderhouse, Barker y. Kelley v. Baker et al., lO Minn. 154. Homestead, 180. V. Wallace et al., 14 Minn. 230. Evidence, 141. Pleading, 2G8. U. S. Land, 408. , Baker et al. y. Kellogg et al.. Mills et al. v. Kendall et al.. Cook et al. v. , Townsend y. Kent, Chandler t. Y. Brown, S Minn. 34'?. Interest, 187. Practice, 319. y. Chalfant, 7 Minn. 4§7. Estoppel, 134. Mortgages, 227. Practice, 323, 363. Kennedy v. Banght, Minn. 235. Justice of the Peace, 192, 196. Practice, 316. V. Williams, 11 Minn. 314. Limitations, 304. Pleadings, 266, 275, 291. Practice, 363. Kennison, Caldwell v. Keougli y. McNitt, 6 Minn. 513. Evidence, 144, 146. New Trial, 243. y. , 7 Minn. 29. Courts, 85. Kern v. Tan Pheel et al., 7 Minn. 420. Evidence, 144. STotes and Bills, 248. Kerlinger v, Barnes et al., 14 Minn. 526. Practice, 352. Statutes, 389, 390. Kingr, Scott y. Kin^, Westeryclt y. Kingsley y. Gillman inipl., etc., 12 Minn. 515. Pleading, 283, 284. Practice, 355. V. , 15 Minn. 59. Hu-sband and wife, 182. Kinney, Dickenson t. Kinsella, Assessor, etc.. State, ex rel. y. Kipp T. Fullerton, 4 Minn. 473. Practice, 330. Kirkpatrick et al., Foerster et al. r. Klinge, Bayard y. Kneeland et al., McDonald et al. r. Knight V. Norris et al., 13 Minn. 473. Mechanics' Lien, 213, 214. Knoblauch et al., Johnson v. Knopf, Jr., Wemple y. Knowlton y. McMahon, 13 Minn. 3S6. Kew Trial, 242. Knox et al. y. Stark et al., 4 Minn. 20. Mechanics' Lien, 213, 214. Pleading, 263. , Ninlnger v. Koemple y. Shaw, 13 Minn. 48S. Pleading. 282. Koenig v. County of Winona, lO Minn. 238. Practice, 357. Kresin v. Man, 15 Minn. 110. Homestead, 179, 180. TABLE OF CASES. 461 Knby, City of St. Paul v. Knmler et al., Ferguson v. Eumler y. Ferguson, 7 Minn. 412. Evidence, 146, 150, 152. Knnkle v. Town of Franlilin, Wriglit Co., 13 Minn. 127. Constitutional Law, 68. Kunkle, Karnes y. L Rob- Lacrosse & Minn. Steam Pli't Co. v ertson, 13 Minn. 291. Damages, 114. Laorosee & Minn. Pli't Co. t. Reynolds et al., 12 Minn. 213. Practice, 351. , Reynolds v. Lacrosse & St. Paul Pk't Co, Cunning- ham V. , Sullivan y. La DoTT et al.. Stein et al. y. Ladne, Slieffleld et al. y. Lagarde et al., Mlcliaud r. Laidler, City of St. Paul v. Langley et al., Leyering et al. v. Laliyer, State v. Lamb t. McCanna, 14 Minn. 513. Practice, 358. Lamb et al., Zimmerman v. Lamberton et al. y. Windom et al., 12 Minn. 232. Bailment, 18. Debtor and Creditor, 117. Lambert, Crowell y. Lambert et al., Lash r. Lamprey y. DaTidsou, 16 Minn. 480. Practice, 326, 327. v. Henk, 16 Minn. 40.5. Practice, 353. Lamprey, Davidson v. Lamprey, Eastman et al. v. Landis v. Old et al., 9 Minn. 90. Judicial Sales, 190. Parties, 53. Practice, 365. Landes, Noi-th Western Express Co. y. Landreth, Steamboat Reveille v. Lane et al,, Rahilly y. Langford & Co. v. Commissioners Ramsey Co., 16 Minn. 375. Constitutional Law, 375. Lanz y. McLaughlin et al., 14 Minn. 72. Contracts, 73. Equity, 130, 132. Statute of Frauds, 391. Larned, Woodbury et al. v. Larabee et al. y. Morrison, 15 Minn. 196. Justice of the Peace, 197. Practice, 339. , Morrison v. Larson, Ti'igg y. Lash, Shelley et al. y. , Williams v. Lash y. Edgerton et al., 13 Minn. 210. Contract, 78. Mortgages, 322. V. Lambert et al., 15 Minn. 416. Interest, 187, 1S8. Mortgages, 219. y. McCormick, 14 Minn. 482. Practice, 302. Lawler et al., Claflin et al. \. Lawrer v. Slingerland, 11 Minn. 447. Lawrence v. Winona and St. Petor R. R. Co., 15 Minn. 390. Common Carrier, 60. Evidence, 148. V. Willoughby, 1 Minn. 87. Practice, 308. Lawrer v. Slingerland, 11 Minn. 447. 462 TABLK OF CASES. Civil Aution, 4'^. Lay et al. y. ShaubUiit et al., 6 Minn, 273. Ignorance of Fact, 184. Leclaire, Miistcrsoit et al. v. Lee V. Emery et al., 10 Minn. 1§7. Practice, 321. Lee, ex parte. Leecii V. Kauch, S Minn. 448. U. S. Land, 407, 403. Leighton et al. t. Sheldon 10 Minn. 243. Evidence, 154. Husband and Wife, 182. Leith, Brewster v. Leonards, Carpenter and Wile v. , Dean v. , Dewey v. , Forbu,sh v. et al.. Bast v. Lemay v. Bibean, 2 Minn. 293. AssignmSnts, 12. Fraudulent Conveyance, 293. Estoppel, 136. Lennon, Cnlbertsou v. Lessing, State y. Leverieg et al. t Langley et al., 8 Minn. 107. Evidence, 147. Landlord and Tenant, 199. Practice, 811. y. Washington, 3 Minn. 323. Constitutional Law, 65. Evidence, 144. Notes and Bills, 248. Lewis V. Back, 7 Minn. 104. Civil Action, 42. Practice, 322. v. Steele et al., 1 Minn. 91. Forcible Entry and Detainer, 168. Pleading, 279. et al. V. Pratt, 11 Minn. r>7. Attachment!-, 14, 1."). v. Williams & Sons, 3 Minn. 151. Parties, .'iC, 57. Jleclianics' Lien, 215. Pleading, 270, 292. Lewis Armstrong, Receiver, etc. v. , Buck T. et al., Johnson v. Leyde v. Martin et al., i« Minn. 38. Interest, 187. Xew Trial, 243. Pleading, 290. ■ Practice, 820, 323, 324. Libby et al. y. Town of West St. Paul, 14 Minn. 24§, Certiorari, 24. Lienan y. Moran et al., 3 Minn. 482. Cliattel Mortgage, 25. Lion, UUman y. Litchfield, tfalloway y. Litcherding, Mattice y. Locke y. First Diy. St. P. and P. K. R. Co., 15 Minn. 350. Cattle Running at Large, 24. Evidence, 156. Negligence, 238. Practice, 311. Railroads, 325, 373. Lockwood v. Bigelow, 1 8 Minn. 1 13. Pleading, 290, 292, 269. Practice, 333. , Folsom et al. y. Loouiis et al., Harrington y. Loorais y. Youle, 1 Minn. ITS. Civil Action, 43. Pleading, 263, 269, 270, 277, 291. Loyejoy et al. y. Morrison et al. 10 Minn. 136. Damages, 112. Pleading, 293. , Morrison et al. y. Loyell y. City of St, PanJ, lO Minn. 291. TABLE OF CASES. 4v,:i Municipal Corporation, 23o. y. Wlieaton et al., IJ Minn. 02. Award, 7. Definitions, 121. Lowell Y. Northi& Carll, 4 Minn. 32. Evidence, 140. Mortgages, 218. Notes and Bills, 240. Pleadino-, 26K. Priictice, 319. lowry, Castner v. y. Hiird ct al., '? Minn. 3.585. Civil Action, 3G. Pleading, 283. et al. V. Harris ct al., 12 Minn. 255. Agency, .">. Evidence, 141, 142, 148, lot). New Trial, 240. ' Pleading, 291, 292. Power of Attorney, 295. Practice, 292, 29S, 306. Lufkln et al., Washburne y. Lund T. Rice, 9 Minn. 230. Evidence, 141. , Hill V. Ljnch, Houghton y. Lynd v. Pickett et al.,7 Minn. 184. Civil Action, 39, 40. Damage', 114. New Trial, 240. Pleading, 285. Practice, 307, 345. M McDonald et al. v. Kneeland et al. 5 Minn. S52. ^ Assignments, 9. McKubin y. Ciarkson, 5 Minn. 24T. Contract, 73. Madison, Bidwell et al. y. Maffit et al., Horton et al. y. Mahor y. State, 3 Minn. 444. Criminal Law, 92, 99, 100. Mair v. January et al., 4 Mhm. 239. Practice, 305. Maloney, Steele v. Manning', Brown y. Manny et al., Gates v. Mann, HoflTman et al. v. Mantor, Assesor, etc., State ex rel. y. Mapes y. Board of Comuii.ssioners, Olni- stead Co., 1 1 Minn. 367. Counties, 84. March, Morrison y. Marcotte v. Beaupi-e, 15 Minn. 152. Civil Action, 37. Evidence, 158. Practice, 315. Maroney et al. y. State, is Minn. 218. New Trial, 341. Mar,shall et al. y. Baker et al., 3 Minn. 320. Notes and Bills, 248. Marshall et al. y. Hart, 4 Minn. 430. Former Adjudication, 169. Practice, 327. Marshall et al., Baker y. Marshall et al., Iryine y. Marshall & Co., Burnbeimer y. Marshall, Hart et al. y. Marsh y. Webber, 13 Minn. 109. Sale of Personal Property, 379. New Trial, 239. Pleading, 271. Practice, 314. y. 16 Minn. 41§. Contract, 73. Damages, 114, 115. Practice, 346. Massey et al. Gorton y. Marston, Talcott y. 464 TABLE OF CASES. Marienthall et al. y. Taylor et al., 2 Minn. 149. Notes and Bills, 245. Martin v. Brown et al., 4 Minn. 2S2. Deeds, 121. Notice, 251. Practice, 347. Martin & wife v- Parker & wife, 14 Minn. 13. Practice. 300. Martin v. Hurlbut et al., 9 Minn. 142. Sale of Personal Property, 379. Martin et al., Leyde v. Martin et al., N. Y., and Minn. Gold Min- ing Co. Y. Martin, Rochester Ins. Co. j. Marty y. Alii, 5 Minn. 27. Practice, 356, 364, 365, 366. Martz et al., Morin y. MarYin, City of St. Panl v. et al.. Potter y. Mason & Craig et al. y. Callendar et al., 2 Minn. 369. Damages, 111. Interest, 186, 187, 188. Mason & Craig y. Heyward. 3 Minn. 182. Contract, 73. Pleading, 381. Y. , 5 Minn. 74. Pleading, 278. Practice, 329. Mason & Craig, liailly et al. y. Masterson et al. v. LeClaire, 4 Minn. 163. Attorneys, 16. Practice, 324, 345. Masterson, Wells et al. y. Mattliaus et al.. Brown et al. v. Matthews, St. Panl & Sioux City B. B. Co. Y. Mattice y. Litcherding, 14 Minn. 142. Justice of the Peace, 194. Mattiison, Anlett v. Maxfleld y. Bierbaur, 7 Minn. 511. Practice, 346. V. , § Minn. 413. Civil Action, 36, 37. Vendor and Purctiaser, 413. , Cole et al, y. Mayall et al. y. Burke et al., 10 Minn. 2§5. Practice, 354, 358. , Burke y. Mayerus y. Hoscheid, 11 Minn. 243. ifnother Action Binding, 6. McArdIc Y. McArdle, 12 Minn. 98. New Trial, 243. Pleading, 290, 291. Practice, 343 McCauna et al.. Lamb y. McCarty y. Barrett, 12 Minn. 494. Practice, 309. Slander and Libel, 387. Y. Nash, 11 Minn. 127. Partnership, 269. Statute of Frauds, 391. Y. Yan Etten, 4 Minn. 461. Practice, 367. McCauley y. Uayidson et al., 10 Minn. 418. Bailment, 18, 19. Pleading, 266. Y. , 13 Minn. 162. Bills of Lading, 20. McComb et al. y. Thompson, 2 Minn. 143. Evidence, 146, 147. Notes and Bills, 245, 349. McComb Y. Bell, 2 Minn. 295. Constitutional Law, 70. Municipal Corporation, 234. Pleading, 287. St. Paul, City of, 394. McCormick et al. v. Fitch, 14 Minn. 252. Constitutional Law, 71. Counties, 84. TABLE OF CASKS. 465 Office and Officer, 254. Taxes, 396. McCorinick, Keigher et al. v. , Lash y. et al., Wilson y. McClungr y. Bergfleld, 4 Minn. 14§, Afssignments, 11. Pleading, 28ri. Pi-actice, 309, 34t). ■ y. City of St. Paul, 14 Minn. 420. St. Paul, City of, 394 et al., Wliitaker y. McClnre, Ex'rs, etc., Gardner y. McCoy, Board of Commissioners Hennepin Co. y. McCue y. Smltli, 9 Minn. 252. Civil Action, 29. Contract, 70. McCntcheon v. Town of Freedom, 15 Minn. 217. Towns, 402. , Ifntting V. McDou^al y. Board of Snperyisors Hen- nepin Co., 4 Minn. 1§4. Garnishment, 174. McDonald v. City of Redwing, 13 Minn. 3S. Constitutional Law, 69. Municipal Corporations, 333. , Walker y. McEwen, Montgomery y. et al., Dcsnoyer y. • McFarland y. Bntler, 1 1 Minn. 72. Attoi'neys, 16. Practice, 339. y , 8 Minn. 116. Constitutional Law, 07. , Fbipps y. McGrade et al., Barry y. , Bennett y. McOrade, Seneerbox y. 39 et al., Williams v. McGrorty, State x. McKubin y. Clarkson, 5 Minn. 247. Civil Action, 37. Practicj;, 300. y. Edgerton & Smitb, 5 Minn. '.tdt. Practice, 299. McKinstry et al., Burt y. McKusick y. Commissioners of Washing- ton Co., 16 Minn. 151. Deeds, 120. Evidence, 144. Trusts and Trustees, 406. , Blake y. McLane y. White, 5 Miuii. 178. Civil Action, 44. Equity, 129. Evidence, 144. Pleading, 263. McLanghlin ., et al., Lanz y. McLean y. Burbank, 11 Minn. 277. Common Carrier, 58. Evidence, 155. Master and Servant, 212. y. , 12 Minn. 530. Civil Action, 46. Evidence, 162. Pleading. 266. Practice, 317. McMahon y. Davidson, impl., etc., 12 Minn. 357. Boats and Vessels, 21. Common Carrier, 58. Evidence, 141. Master and Servant, 210, 211, 213. Kegligence, 337. Practice, 306, 339. , Knowlton y. McNamara y. Minn. Cent. B. R. Co., 12 Minn. 388. New Trial, 239. Statutes, 389. Practice, 350, 352. , Minn. Cent. R. R. Co. v. 466 TABLE OF CASES. Mclfab et al., Ex'rs, etc., v. Sterrart, 12 Minn. 407. Evidence, 163. Limitations, 20-1. McNair v. Toler, 5 Minn. 435. Evidence, 143. McNanny, Guile v. McNeil, Hoyt et al. y. McNitt, Keouffh v. McNulty V. Stewart. 12 Minn. 4S4. McQuillan, Day et al. y. McRea et al., Shoi't v. Meltoberts v. Washburn et al., 10 Minn. 23. Constitutional Law, 60, 69. Corporations, 81. Feriy, 166. Injunction,',185. Statutes, 390. Practice, 302. Mead r. Cunstans, 5 Minn. 171. New Trial, 243. Meiglien et al. v. Strong, 6 Minn. 177. Civil Action, 50. Constitutional Law, 66. Deeds, 118. Practice, 317. Meighen, Holton r. Merriam v. Fridley, 9 Minn. 34. .Justice of the Peace, 195. et al., Ramsey y. , Tozier v. Merritt, Bailey v. Merrill, Covyles & Co. r. Shaw & Bros., 5 Minn. 14S. Practice, 301. Merritt y. City of St. Paul, 11 Minn. 223. Attachments, 13. Civil Action, 43. Practice, 310. y. Putnam et al., 7 Minn. 93. Practice, 328. et al., Agnew y. , City of St. Paul v. -, Dixon V. Metropolitan Tns. Co., Gasner y. Metzner et al. y. Baldwin et al., 11 Minn. 130. Pleading 202. Principal and Surety, 368. Michaud r. Lagarde et al., 4 Minn. 43. Notes and Bills, 248. Mickley, Dorr y. Mickow et al., Cogel et al. v. Millard, Tillotson v. Miller y. Rouse, § Minn. 124. Civil Action, 46, 48. Interest, 187. et al., State v. Miller v. Troost et al., 14 Minn. 365. Dams and Mills, 116. Mills et al. y. Kellogg et al., 7 Minn. 469. Mortgages, 221. Milncr et al. y. Norris et al., 13 Minn. 453. Contract, 74. Mechanic's Lien, 213. Milner, State y. Mil wain y. Sanford, 3 Minn. 147. Mechanic's Lien, 215. Practice, 303. Minn. Baptist State Convention, Van Hoe- sen y. Minn. Cent. R. R. Co., Fitz et al. y. , Foster y . y. McNamara, 13 Minn. 50§. Certiorari, 24. 25. Railroads, 374. , McNamara v, Minn. & Northwestern R. R. Co., United States y. TABLE OF CASES. 467 Minn. Ontlit, Russell y. Minn. & Pacific R. R. Co. v. (governor Sibley, 2 Minn. 13. Bonds, 23. Statutes, 389. Minn. Plastic Slate Roofing Co., Dodg'e y. Minn. Yalley R. R. Co., Carroll y. — y. Doran, 15 Minn. 240. Practice, 356, 362. Railroads, 374. Minn. Valley R. Co., Doran v. , Ran V. Minor v. Willoughby et al., 3 Minn. 33.5. Agency, 5. Bona Fide Purchaser, 20. Bonds, 23. Notice, 250, 251. Pleading, 287. Misener, Tan Bount y. Misener r. Gould et al., 11 Minn. 160. Principal and Surety, 370. Miss. Boom Co., Ames y. Mitchell y. Bank of St. Paul, 7 Minn. 253. Parties, 56. Mold, Plummer et al. y. Mollison y. Eaton, 16 Minn. 426. Practice, 333. U. S, Land, 410. Molitor T. First Diy. St. Paul & P. B. B. Co., 13 Miuu. 285. Easements, 124. Pleading, 277. Montelle et al. y. Cratt et al., 7 Minn. 234. Pleading, 290. Sioux Half Breed Scrip, 386. Montgomery y. MeEwen, 9 Miuu. 103, Mortgages 281. Practice, 304. y. , 7 Minn. 351. Pleading, 371. Monti, Estate of Columbus v. Moody V. Rathburn, 7 Minn. §9. Assignments, 11. Partnership, 256. Moody, Rathburn y. Moody et al. v. Stevenson, 1 Minn. 403. Practice, 343. Moore v. Folsom, imp!., etc., 14 Minn. 340. Guarantee, 177. Notes and Bills, 24H. , Curtis v. — -, Goodrich v. , Tnttle y. Moran, Lienau y. et al., Brazil v. Morey v. Enke, 5 Minn. 392. Contract, 77. Morgan y. Smith, 4 Minn. 104. Municipal Corporations, 234. , Thompson et al. t. , Tnrrill y. Morin y. Martz et al., 13 Minn. 191. Statute of Limitations, 391. — T. Steamboat F. Sigel, 10 Minn. 250. Boats and Vessels, 21. Courts, 87. Admiralty, 2. Morris et al. r. Watson et al., 13 Minn. 212. Power of Attorney, 295. Estoppel, 135. Deed, 130. Morrison, Belote y, , Larrabee et al., v. y. City of St. Paul, 5 Minn. 108. Civil Action, 49. Municipal Corporation, 234. et al. T. Loyejoy, 6 Minn. 319. Action on contract, 29. Damages, 111. 468 TABLE OF CASES. Evidence, 144. Pleading, 281. Practice, 307, 343. V. , 6 Minn. 183. Attaclimeuts, 13, 14, 10. Constitutional Liiw, G4. V. Marcli, t Minn. 422. Notice, 250. Practice, 318, 347. impl., etc., St. Antliony Falls W. P. Co. V. et al., Loyejoy et al. v. Morton r. Jackson, 2 Minn. 221. Pleading, 284, 294, 293. Moses et al., Orares et al. v. Moss, Pettingill et al. v. Moss V. Pettin^ill et al., 3 Minn. 217. Practice, 303, 333. Principal and Surety, 369. Mott, State v. Montour y. Purdy et al., 11 Minn. 3S4. Civil Action, 45. Executors and Administrators, 165. | Guardian and Ward, 177. Pleading, 283. Moulton y. Uoran et al., lO Minn. 67. Pleading, 264. Taxes, 399, 400. — — et al., Smith v. Monuier, State v. Mower et al. v. Hanford et al., 6 Minn. 535. Assignments, 10. Evidence, 152. Fraudulent Conveyance, 171. Practice, 360. Trusts and Trustees, 406. Mower v. Stickuey, 5 Minn. 406. Civil Action, 46. Pleading, 284. y. —^-, 5 Minn. 397. Bailment, IS. Practice, 331. Mnliiken, Smitli v. ! Munger, Belden v. i { Mnrnane et al. Xasli et al. v. I Murphy v. Co. Coniuiissioncrs, Steele Co., 14 Minn. 67. Civil Action, 34. y. Hinds, 15 Minn. 1S2. Civil Action, 50. y. Purdy, 13 Minn. 422. Attachments, 14, 15. , Chapiu y. ■, Davis et al. v. et al., Pennsylvania Ins. Co. v. , Murry, Gere v. , Stewart y. Myers and wife. Stone v. Myers & Co., Irvine et al, y. V. Iryine & Co., 4 Minn. 553. Practice, 388. Myrick v. Edinundson, 2 Minn. 259. Laches, 198. y. Pierce, 5 Minn. 65. Practice, 358. , Warner v. , Wood Y. N Nash y. City of St. Paul, 11 Miim. 174. Municipal Corporation, 235. Pleading, 286, 289. V. , 8 Minn. 172. Constitutional Law, 71. Municipal Corporation, 233, 235. St. Paul, City of, 393. y. Gale, 2 Minn. 311. Garnishment, 173. Nash et al. y. Murnane, 6 Minn. 577. Pleading, 574. Nash, Heenan y. TABLE OF CASES. 469 , McCarty v. Naylor et al., Morley et al. y. Neal et al., Sanborn v. ISenell, Olson v. , Edson T. Newball, impl., etc., Gill v. Sfewhall et al., Brisbin y. Newman, Rutherford y. New York & Minn. Gold Mining Co. y. Martin et al., 13 Minn. 417. Contract, 77. Nichols y. Randall, 3 Minn. 304. Pleading, 271. Nenningrer y. Banning, 7 Minn. 274. Assignment of Note, 10. Civil Action, 40. Damages, 114. Notes and Bills, 247. Neninger t. Enox et al., § Minn. 140. Evidence, 1.53, 154. New Trial, 243. Pleading, 317. V. Commissioners of Caryer Co., 10 Minn. 133. Evidence, 154. Pleading, 204, 266, 292. Parties, 52. Ninninger, Bornp & Co. v. Norvis et al., Knight v. Northwestern Union Packet Co., Dodge, adm'r y. Norton, Clark y. North & Carll, Chase v. , Lowell y. Northrnp et al., Balcombe v. Northwestern Express Co. y. Landes, 6 Minn. 364. Practice, 333, 362. North & Carll v. Bradway, 9 Minn. 183. Parties, 54, 56. Nourse y. Board of Supervisors of Henne- pin Co., 3 Minn. 62. District Attorney, 122. Nutting v. MeCiitcIieon, 3 Minn. 382. Civil Action, 32. Dui-ess, 122. Nutting, Steamboat War Eagle v. o O'Connell v. State, 6 Minn. 279. Criminal Law, 90, 93, 109. O'Ferrall v. Colby, 2 Minn. 186. Elections, 127. O'Keefe and Wife, Ramsden y. Orthwein, Tnllis et al. y. Olds, Landes y. Oliyer, Perrin y. Olson y. Nelson, 3 Minn. 53. Homestead, 179. Mortgages, 223. — - y. Newell, 12 Minn. 186. Practice, 322. Owens et al., Davidson v. Ozman v. Reynolds 11 Minn. 439. Limitations, 203. P Pace y. Chadderdon, 4 Minn. 499. Civil Action, 44. Mortgages, 220. Paddock et al. y. St. Croix Boom Corpor- ation, 8 Minn. 277. Practice, 354. Paiue y. First Diy. St. P. R. R. Co., 14 Minn. 63. Civil Action, 49. Heir, 178. Paiue, Butler v. , Daugahday v. Palmer y. Tyler et al., 15 Minn. 106. Partnership, 257. Pleading, 272. 470 TABLE OP CASES. Paquin y. Braley, 10 Minn. 379. Mortgages, 230. Parker y. Board of Supervisors, Dakota Co. 4 Minn. 59. OfBce and Officer, 254. Parker, Board of Commissioners of DakO' ta Co. V. , Clioteau V. Parker et al., Martin et al. v. , Holton V. Parret v. Sliaubliut, 5 Minn. 323. Notice, 250. Parrant, State v. Parsons, Beaulieu t. Parsons et al., Hamlin i . Pavitt et al. Durfee v. Paxton, Haines v. Payson v. Everett 12 Minn. 216. Evidence, 143. Justice of tlie Peace, 192, 195, 198. Payne et al., Dayton et al. t. Pease, Chalfant & Co., Rujh et al. 2 Minn. 42. Notes and Bills, 247, 248. Partnership, 260. Peck et al., Catlicart v. Peckham et al., Gillman & Co., 7 Minn. 446. Evidence, 147. Pennsylvania Ins. Co. v. Murphy et al., 5 Minn. 36. Evidence, 158. Partnership, 359, 260. Pennington, Pott, Executor v. Peoria Fire Ins. Co. v. Wilson, 5 Minn. 53. Fire Insurance, 166. Perrin t. Oliver, 1 Minn. 206. Constitutional Law and Contempt, 72. Ferry, 166. Practice, 303, 304. Pettingill y. Moss, 3 Minn. 223. Judicial Sales, 190. Practice, 335. Sheriff, 384. Pettibone, Freeborn v. Pickett, Lynd y. Pierce r. Huddleston, 10 Minn. 131. Stamps, 388. V. Irvine et al., 1 Minn. 377. Evidence, 146. Notes and Bills, 245. Parties, 54. Pierse v. Smith, 1 Minn. 83. Attachments, 14. Pierce, Myriek et al. v. et al., Davis v. Pierse et al., Wilcox et al. v. Pierro, Conunonivealth Ins. Co. v. Pinuey v. Fridley. 9 Minn. 34. Pleading, 270, 278, 279. , Huly v. Pioneer Printing Co. v. Sanborn et al., 3 Minn. 413. Gai-nishment, 174. Sheriff, 386. Piper V. Johnson et al., 12 Minn. 60. Fraudulent Conveyance, 172. Practice, 323, 349, 356. V. Branham, 14 Minn. 54§. Meeker County, 315. Practice, 338. Trusts and Trustees, 398. , Johnson y. Phipps, McFarland, 3 Minn. 109. Statute of Frauds, 391. Phwnix et al. v. Gardner et al., 13 Minn. 294. Practice, 350, 354, 366. et al. V. Gardner et al., 13 Minn. 430. Evidence, 151. Practice, 349. TABLE OF CASES. 471 Phelps, White v. Phoenix Ins. Co. y. Taylor, 5 Minn. 492. Evidence, 142. Fire Insurance, 1(J7. Phelps et al., Rollins et al. v. Phelps et al., lyes v. , Bennett v. Pliiuiiner et al. v. Mold, 14 Minn. 532. Logs, 206. Pleading, 286. Pond y. Cirpenter et al., 12 Minn. 430. Husband and wife, 18,S, ISJr. , Dunning' v. Pool et al., Dike y. Porter, Cliambei-lain v. Porter et al., Dana et al. v. Pott y. Penington, 16 Minn. 509. Pleading, 277. Potter V. Mirvin, 4 Minn. 525. Mortgages, 221, 226. Pottgeiser v. Dorn, 16 Minn. 204. Evidence, 147. Pleading, 285. Signing, 386. Powers V. Ames et al., 9 Minn. 17§. Pleading, 292. Pratt V. Iteanpre, 13 Minn. 1§7. Private Agents, 3. Pratt et al., Gerish et al. v. , Lewis et al. y. Prentiss et al. v. Prentiss et al., 14 Minn. 1S8. Wills, 415. Press Printing Co., Aldrlch v. Prignitz r. Fischer, 4 Minn. 366. Prohibition, 371. Prince v. Hendy, 5 Minn. 347. Garnishment, 173. Practice, 330, 359. Pi'ince et al., Cliemedlin et al. v. Prindle y. Campbell, 9 Minn. 212. Taxes, 399. Pross, Dahl v. Pulvcr y. Grooves, 3 Minn. 359. Court Commissioner, 87. Practice, 318. Pulle et al., State y. Putnam, Merritt v. Putnam Ins. Co. et al., Day v. Purdy et al., Montour y. Pnrdy, Murphy y. Quirk, Finley v. Q R Baguet, Blandy et al. v. et al.. Day et al. v. Bahilly v. Lane et al., 15 Minn. 447. Justice of the Peace, 194, 197. Practice, 340, 339. , Jones V. Bamsden y. O'Keefe, 9 Minn. 74. Civil Action, 47. Bamsey v. Merriam, 6 Minn. 168. Mortgages, 227, 229. Pleading, 269. Bandall y. Edert, 7 Minn. 450. U. S. Land, 408. , IngersoU v. et al., Nichols Adm'r v. Bathbnrn v. Moody, 4 Minn. 364. Practice, 342. Ban V. Minn. Yalley B. B. Co., Minn. 442. Evidence, 136. JSTegligence, 237. Practice, 357. Civil Action, 43. 13 472 TABLE OF CASES. Rauch, Leech r. Eau^ht, Kennoily v. Reaney, Coaper et al. y. Reardou, Judson v. Reese et al., Whitney et al. v. Reiner, Barnsback r. Regents of the University of Minnesota y. Hart et al., 7 Minn. 61. Corporations, 81. Notes and Bills, 245. Regents of the University of "Minne- sota, 378. Register v. State ex rel., etc., 8 Minn. 214. Contempt, 72. Practice, 35.5. , State y. et al., Filley et al. y. Reynolds v. Steamboat Favorite, 9 Minn. 14§. Practice, 343. y. , 10 Minn. 242. Admiralty, 2. Boats and Vessels, 21. Courts, 87. , V. Lacrosse & Minn. P'kt Co. , lO Minn. Iti. Pleading, 290. Practice, 322, 345. et al., Ozmun v. , Lacrosse & Minn. P'kt Co. y. Rhone y. Gale et al., 12 Minn. 54. Lease, 200. Pleading-, 27G. Rice y. Tayernier, § Minn. 248. Deeds, 118. Power of Attorney, 295. -, Ohoteau et al. t. , Lund y. , Tavernier v. et al., Whltaker y. , Gemmell v. Rich V. Rich, 12 Minn. 408. Husband and wife, 182. Pleading. 266. Practice, 349, 351. Trusts and Trustees, 404. Richards et al.,y. White, 7 Minn. 345. Assignments, 10. Attachments, 16. Pleading, 270. Practice, 302. Rickert, Englebrecht et al. y. Riedel, Sonnedbnrg' y. Robbins v. School Dist. No. 1 Anoka Co., 10 Minn. 340. School districts, 380, 381. Practice, 331. Roberts v. Grace et al., 10 Minn. 126. Deeds, 119. ISTotiee, 252. , Rose V. Robertson y. Vayiilson, 14 Minn. 5.54. Civil Action, 35. Practice, 322, 353. Undertalvings, 411. y. Sibley, lO Minn. 323. Debtoi' and Creditor, 117. Minn. & Cedar Valley R. B, Co., 216. Sheriff, 383. , Shaw y. , Lacrosse & Minn. P'kt Co. v. Robson y. Swart, 14 Minn. 371. Estoppel, 137. Evidence, 147. Robinson y. Bartlett et al., 11 Minn. 410. Notes andi'Bills, 245. Practice, 342. , Co. Commisioners Hennepin Co. y. , State y. Rochester Ins. Co. y. Martin, 13 Minn. 59. Contract, 79. Corporations, 81. TABLE OF CASES. 473 Estoppel, 134. Notes and Bills, 249. Rodney et al., Goodrich v. , Roelil et al. v. Baaseii, S Minn. 26. Evidence, 162. New Trial, 340. Practice, 31.% 360. Rogers v. Greenwood, 14 Minn. 333. Attoniej-s, IG. Practice, 355, 366. V. Holyoke, 14 Minn. 220. Injunction, 185. Mortgages, 223, 223, 226, 227. Practice, 303, 358. Purchaser Pendente Lite, 372. y. Steyenson, 16 Minn. 6§. Evidence, 147, 149. Parties, 52. Notes and Bills, 246. Statute of Frauds, 392. , Byrane y. , Dodge v. , Sharps v. et al., First {Rational Banlt, of Hast* lags V. Rohrer y. Tnrrill, 4 Minn. 407. Debtor and Creditor, 117. Parties, 53. Pleading, 366. Sheriff, 384. Rollins et al. v. Phelps et al., 5 Minn. 463. Agency, 3. Rondean y. Bcaumette, 4 Minn. 224. Practice, 360. Rose T. Roberts, 9 Minn. 119. Contract, 74. Pleading, 276. Ross r. Swenson, 6 Minn. 428. Constitutional Law, 68. V. Worthington, 11 Minn. 43§. Constitutional Law. 67. 66 Deeds, 120. Equity, 133. Moi-tgages, 217, 230. Notice, 251. Pleading, 265. Rossiter, Carroll y. Rotary Mill Co., Emnietl et al. v. Rouse, Miller y. Ruggles et al. r. Swan wick et al., 6 Minn. 926. Civil Action, 3o. Evidence, 146. Notes and Bills, 249. Rush, Pratt et al., Chalfant & Co. y. Russell V. Minn. Outfit, 1 Minn. 162. Parties, 52. Partnership, 255, 256. Practice, 320. V. Schurmeier, 9 Minn. 2§. Evidence, 144. Practice, 310. — et al., Hanna et al. v. Rutherford y. Newman, § Minn. 47. Vendor and Purchaser, 412. Ryan, State y. s St, Anthony Mill Co. y. Yandall, 1 Minn. 250. Parties, 53, 57. Practice, 342, 362. St. Anthony Falls Water Power Co. v. Greeley, 11 Minn. 321. Taxes, 398, 400. y. Morrison, Impl., etc., 12 Minn. 249. Landlord and Tenant. 199, , Eastman et al. v. , Hinckley et al. t. St. A. D. Balcomb y. Northup, et al., 9 Minn. 172. Office and Officer. 253. 474 TABLE OF CASES. St. Croix Boom Co., Paddock et al. v. St. Martin r. Desnoycr, 1 Minn. 41. Courts, 86. Justice of the Peace, 1!)0. V. , I Miim. 156. Daniiiges, 113. New Trial, 241. Practice, 312, 317, 338. Slander and Libel, 386. St. Peter Co. v. Bunker, H Minn. 19a. Contracts, 49. St. Peter's Churcli v. Board of Commis- sioners of Scott Co., 13 Minn. 395. Pleading, 278. Taxes, 396, 39S. St. Panl Div., No. 1, Sons of T. y. Brown etal., 9 Minn, 157. Civil Action, 51. Bquit}-, 130. Pleading, 2G7, 26S, 2'2. Vendor and Purchaser, 412. V. -, 9 Minn. 151. Practice, 355. St. Paul Fire & Marine Ins. Co.,1)avr$on r. St. Panl & Sioux City K, K. Co. y. Mat- tliew.s, 16 Minn. 341. Practice, 346, 354. Railroads, 376. St. Panl & Pacific B. R. Co.,Sclinrmeier y. , Wliitman V. Sanborn y. Commissioners of Bice Co., 9 Minn. 273. Constitutional Law, 63, 64, 68, 71. Taxes, 396. y. Neal et al., 4 Minn. 128. Agency, 2, 3. Contract, 74. Evidence, 147. Office and Officer, 253. Sanborn y. SeUooI Dist. No. 10, Rice Co., 12 Mian. It. Evidence, 155, 157. Limitations, 205. New Trial, 241. Practice, 314. School Districts, 381. Sanborn et ai. y. Webster, 2 Minn. 328. Damages, 114. Practice, 338, 350. , Babcock et al y. , Pioneer Printing Co. y. Sanders et al. y. Clason et al., 13 Minn. 379. Contract, 77. Pleading, 271. Sandusky City Bank, Becker y. Sanford, Aruisti'ong: y. , Milwain y. Sater, Cole y. et al., Faribault y. Sawtelle, Sumner v, Scliaick et al. v. Harmon, 6 Minn. 265. Actions in Contracts, 28. Schmidt y. Coulter, 6 Minn. 492. Pleading, 282. Piincipal and Surety, 370. School Dist. y. Thompson, 5 Minn. 2S0. School Districts, 881. Schelfer, Treasurer etc.. Home Ins. Co. y. Scheli y. Second National Bank, of St. Paul, 14 Minn. 43. Civil Action, 38, 39. Evidence, 141. Practice, 310. Schermeely y. Stillwater and St. P. R. R. Co., 16 Miiin. 506. Railroads, 377. Schroeder, Gonen y. , Treasurer, etc.. Smith y. Sclioller, German Land Association y. School Dist. No. 7, Wrigrht Co. y. Thomp- son, 5 Minn. 280. Civil Action, 34. Justice of the Peace, 195. School Dist. No. 1, Anoka Co., Bobbins, y. TABLE OF CASES. 475 Scliool Dist. No. 10, Uice Co., Sanborn y. School Dist. Ko. 31, Waslihigtoii Co., Jenuess r. Scott y. Edes, 3 Minn. SyY. Assignments, 12, 13. Ignorance of Fact, 181. Scott y. King:, 7 Minn. 494. Evidence, 139, 164 Pleading, 284. Sclinrmeier, Ames y. y. .Toliuson et al., 10 Minn. 319. Estoppel, 134. Evidence, 145. Former Adjudication, 169. Practice, 313. y. St. Panl and Paciflc E. R. Co., 8 Minn. 113. Injunction, 185. y. , 10 Minn. §2. Constitutional Law, 69. Easements, 124, 126. Grants, 176, 177. Water Courses, 414. y. First l»iv. St. P.anl and P. B. R. Co., 12 Minn. 331. Practice, 358. , Rnssell y. et al., Troyer y. Scott, Temple ct al. y. Scribner v. Allen et al. 12 Minn. 148. Injunction, 186. Serger y. Burns et al., 4 Minn. 141. Equity, 131, 132. Notice, 250. Parties, 56. Practice, 325. Seacombe, Conrtenler y. Second National Bank, St. Paul et al., Schell v. Selby y. Stanley, 4 Minn. 65. Mortgages, 224. Notice, 250. Vendor and Piirchaiaer, 112. Selden, Witliers & Co. y. B.nnk of Com- merce, 3 Minn 166. A-gency, 2. Evidence. 141, 103. Partnersliip, 257, 258. Practice, 305, 315. , Bank of Commerce y. Scnecrbox y. McGrade, 6 Minn. 484. Agency. 3. Evidence, 145, 148. , Harkins v. Seymoure Davis y. Sheffer, Wliitcomb v. Shanks et al.. United S'ates ex rel. y. Sharpc y. Rogrers, 10 Minn. 207. Contract, 80. y. , 19 Minn.174. Contract, 76. Equity, 133. Sioux Half Breed Scrip, 386. y. Traver et al., 8 Minn. 273. New Trial, 242. Sharpe et al., Washburne et al. y. Shaubhut y. Hilton et al., 7 Minn. 506. Practice, 301, 331, 336. , Parret y. Shaw y. Henderson, 7 Minn. 480. New Trial, 242. Practice, 365. y. Robertson, 12 Minn. 445. Evidence, 139. , Koempel y. & Bro., Merrill, Cowles & Co. v. ShefHeld et al. y. Ladnc, 13 Minn. 388. Agency, 4. Practice, 348. Sheldon, Lighton et al. y. Shelley et al. y. Lash, 14 Minn. 498. Counties, 82. Evidence, 154, 157. New Trial, 240. Practice, 330, 360. 476 TABLE OF CASES. Sherman, Blake y. Sherrerd v. Frazer et al., « Minn. 572. Coil) ts, 85. Evidence, 139. Practice, 365. Sherwood, State ex rel, etc., v- et al.. Booth v. Shippey, State v. Short V. McRea et al,, 4 Minn. 119. TSTew Trial, 241. Practice, 308, 309. Shorts v. Cheadle, § Minn. 67. Mortgages, 327. Shunk V. Hellmiller, 11 Minn. 164. Justice of the Peace, 196. Sibley, Banning t. et al., Brisbin y. , Caldwell y. , Chamberlain y. Goyernor etc., Minn. & Pacific B. R. Co. y. , Kidder v. , Robertson v. Simmons y. Holster et al., IS Minn. 249. Evidence, 160, 162, 163. New Trial, 240. Slander and Libel, 387. Simmonton et al.. Donnelly et al. t. , Hnrd y. Skillman t. (rreenwood, 15 Minn. 102. Practice, 331, 332. Slaughter v. >'inninger, 3 Minn. 150. Practice, 363. Slichter et al., Cbamberlin et al. y. Slingerland, Lawrer t. Smith, Camp y. et al., Carson et al., y. , Cassidy y. , Daniels et al. v. y. Dennett, 15 Minn. 81. Pleading, 267. Practice, 360. Smith, Davis et al. r. , Drew et al. y. y Dukes, 5 Minn. 373. Practice, 314, 321, 350. , Elfelt et al. y. , Gates V. V. Gibson, 15 Minn. 89. Equity, 130. Notice, 250. Trusts and Trustees, 406. , Hall y. V. Jordan et al., 13 Minn. 204. Contracts, 78. Equity, 133 Pleading, 291. Stamps, 388. et al., McCune y. , McKubin et al. v. , Morgan y. Y, Mouiton et al., 12 Minn. 352. Limitations, 205. T. Mulliken, 2 Minn. 321. Pleading, 269, 275, 290, 292, 294. , Pierse v. y. Sehroeder, 15 Minn. 35. Civil Action, 32. T. Territory of Minn, ex rel., etc., y. , Thornton v. Smith, Baker & Co., Stickney et al. r. Snow y. Hardy, 3 Minn. 77. Practice, 317, 341, 363. et al. v. Johnson, 1 Minn. 4«. Action, 51. Pleading, 273, 208. Practice, 308. Solomon y. Dreshler, 4 Minn. 278. Civil Action, 33. Contract, 74, 78, 79. Sonimer, Van Glahu y. TABLE OF CASES. 477 Soniienbiirg r. Reidel, 16 Minn. S3. Contracts, 76. Practice, 309. Sons of Temperance v. Brown et al., 11 ])Iinn. 356. Civil Action, 51, 52. Corpor.itioiis, 81. Equity, 132- Southern Minn. R. R. Co. r. Stoddard, 6 Minn. 130. Courts, 86. Railroads, 372. Soutlieimer, DeRoclibrune v. Sowers et al. v. Dukes, § Minn. 23. Evidence, 163. Spaulding', Flelclier y. Spencer v. Levering et al., S Minn. 461. Agency, 4. Pleading, 283. Spencer, Wakefield y. y. Anon, 4 Minn. 542. Mortgages 229. V. Tozer, 15 Minn. 146. Agency, 4. Civil Action, 31. Practice, 314. V. Woodbury, 1 Minn. 103. Parties, 52. Stalcy, State v. Stanchfleld et al.. Tan Eman r. Stanley et al., Selby y. Starks et al., Knox et al. v. Starbnck r. Dunklee, 12 Minn. 161. Practice, 306, 353. T. , 10 Minn. 16S. Pleading, 283, 284, 293. Practice, 355. State r. Armstrong, 4 Minn. 335. Criminal Law, 104, 107, 91. Evidence, 158. V. Batchelder, 5 Minn. 223. Equity, 133. U. 8. Land, 407. U. S. Patent, 410, 411. — T. , 7 Minn. 121. School Lands, 382. — , Benson v. — T. Bilansky, 3 Minn. 246. Criminal Law, 95, 106, 107. Courts, 85. Evidence, 142, 163. Practice, 307. — , Bilansky v. — , Bonfanti y. — , Boyd V. — V. Bojlson, 3 Minn. 43§. Criminal Law, 90, 109. — V. Brown, 12 Minn. 538. Criminal Law, 98, 99, 100, 101, 105,108. Office and Officer, 254. — y. , 12 Minn. 490. Criminal Lavsr, 90, 95, 106. — V. Charles, 16 Minn. 474. St. Paul, City of, 394. , ex'r etc., t. City of St. Anthony, lO Minn. 433. St. Anthony, City of, 393. — y. Coon, 14 Minn. 456. Criminal Law, 91, 95. Justice of the Peace, 192. — V. Dee, 14 Minn. 35. Evidence, 103, 164. — v. Dumphey, 4 Minn. 43S. Criminal Law, 93, 99, 102, 103, 104. New Trial, 341, 243. — y. Dinnen, 10 Minn. 407. Criminal Law, 93, 95, 103, 109. — y. Emmett, 14 Minn. 439. Jury, 191. — y. Eiio, § Minn. 220. Criminal Law, 89, 94, 100, 101, 110. — y. Eyerett, 14 Minn. 439. Justice of the Peace, 198. 478 TABLE OF CASES. V. Froiseth, 16 Minn. 296. Criminiil Law, 02. V , 16 Minn. 313. Cfirainal Law, 02, 08. , Gallagher y. V. Garvey, 11 Minn. 154. Criminal Law, 03, 05, 104, 105, 110. V. Griint, 10 Minn. 39. Parties, 53. Courts, 85. Pleading, 275, 26S. Recognizance, 377. V. Gut, 13 Minn. 341. Constituti6nal Law, 03, 05. Criminal Law, 01, 05, 06, 07, 08, 102, 105, 106, 107. Evidence, 140. Practice, 306. V. Heenan, § Minn. 44. Criminal Law, 104. v. Herrick, 11 Minn. 136. Practice, 3-16 V. Hill, 10 Minn. 63. Habeas Corpus, 178. Practice, 357. V, Hinckley, 4 Minn. 345. Criminal Law, 00, 01, 02, 03, 106. , Hoberg' y. y. Hogard, 12 Minn. 293. Criminal Law, 04, 100, 102, 103, 104, 110. y. Hoyt, 13 Minn. 132. « Criminal Law, 06, 92, 103, 108. Evidence, 164. y. Johnson, 12 Minn. 476. Conflict of Laws, 63. Criminal Law, 94, 104, 107. Constitutional Law, 64. Evidence, 164. V. Laliyer, 4 Minn. 39§. Criminal Law, 100, 101, 102. Practice, 318. — V. Lessln?, 16 Minn. 75. Criminal Law, 101, 105. — , Maher y. — y. Malonpy, 1 Minn. 350. Criminal Law, 90. Jury, 191. — , Maroney v. — y. McGrorty, 2 Minn. 225. Criminal Law, 104. Jurisdiction, 101. — V. Miller et al., 15 Minn. 344. Criminal Law, 07. — y. Miller, 10 Minn. 313. Criminal Law, 106. — V. Milner, 16 Minn. 55. Certiorari, 25. — V. Mott, 16 Minn. 472. Criminal Law, 106. — V. Monrnier, 8 Minn. 212. Criminal Law, 106. Notes and Bills, 346. — , O'Connell v. — y. Parrant, 16 Minn. 178. Criminal Law, 100. New Trial, 243. — y. Piille et al., 12 Minn. 164. Criminal Law, 89. 106, 110. — , Register y. — ■ y. Robinson, 14 Minn. 447. Criminal Law, 97. , Ross y. — V. Uyan, 13 Minn. 376. Constitutional Law, 65. Criminal Law, 89, 100, 101, 105, 108. Definitions, 121. y. Shippoy, 10 Minn. 223. Criminal Law, 92, 95, 96, 97, 101, 107. Practice, 345. y. Staley, 14 Minn. 105. Criminal Law, 100, 102, 104. TABLE OF CASES. 479 Evidence, 164. New Ti-ial, 24(1. Praclice, 304, 308, 310. T. Stokley, 16 Minn. 2S2. Criminal Law, 98, 99, 100, 103, lO.o, 108. New Trial, 243. Practice, 307, 343. V. Tannt, 16 Minn. 109. Criminal Law, 94, 104. Practice, 312, 314, 34G, 348, 349. V. Tiinmes, 4 Minn. 325. Ci-iminalLaw, 90, 10.3, 107. Statutes, 388. V. Tiner et al., 13 Minn. 520. Piactice, 330. v. TJllman, 5 Minn. 13. Criminal I-aw, 93. V. Wood, 13 Minn. 121. Criminal Law, 91. ex rel., Loving v. Benedict Andltor et al., 15 Minn. 198. Constitutional Law, 72. Office and Officer, 253. ex rel. v. Bigss & CliurcliUl, 15 Minn. 455. Elections, 128. Manilanius, 209. Practice, 357. Steamboat Favorite, Reynolds v. Dr. Franklin, Town St. Paul v. , Castner et al. y. Hamburg, Irviue & Co. v. r. Sigel, Morln y. Milwaukee BoutlUier adm'r v. Otter, Griswold y. Keville v. Lendrelt, 2 Minn. 179. Boats and Vessels, 21. War Eagli! v. If iitting, 1 Minn. 259. Pleaaing, 263. Steele \. Fisli, 2 Miim. 153. Civil Action, 50. et al. V. Etheridge, 15 Minn. 501. Evidence. 143. New Trial, 240. .Pleading, 282. Practice, iHO, 342. V. Taylor et al., 1 Minn. 279. Abatement, 1. Parties, 55, 50. et al., Lewis v. Stein et al. v. LaDow, 13 Minn. 412. Assignments, 11. Partnership, 258. Steplienson, Moody et al. v. Stewart v. Curry, lO Minn. 316. Practice, 300. Stevens v. Hatch et al., 6 Minn. 64. Deeds, 119. , State y. -- — , Fay y. Stevenson v. 198. Hayland et al., 11 Minn. Notes and Bill|, 248. , Rogers v. Lease, 200. Stewart, Ayer y. et al., Bingham y. y. Hidden, 13 Minn. 43. Gift, 176. y. Murray, 13 Minn. 426. , McUulty y. Stickney y. Broiison, 5 Minn. 215. Evidence, 159. Practice, 329. & Carll y. Smith, Baker & Co., 5 Minn. 486. Civil Action, 39. Partnership. 260. Pleading, 257. , M irris y. — -, Vo.e&Co. y. Stillwater and St. Paul R. R. Co., Carli y. 480 TABLE OF CASES. , Sehemerly y^ Stine et a1. v. Bennet, 13 Minn. 133. Limitiitions, 203. Statutes, 33S, 300. Sitenison r. Smith, § Minn. 366. Constitutional Law, 71, 63. , Cooper V. , Wintermnte v. Stockton, Gray et al. t. Stoddaril, Soutliern Mian. U. R. Co. y. Stokely, State v. Stone V. Bassett, 4 Minn. 29§. Constitutional Law, 65. Forcible Entry and D, 168. Mortgages, 231. V. Myers, 9 Minn. 303. Bonds, 22. Fraudulent Conveyance, 171. Practice, 325, 330. , Andrews y. et al., Hicks y. , Hope V. , Wliitlierill y. Stratton v. Alien & Cliase, 7 Minn. 502. Civil Action, 51. . Pleading, 290. Strong y. Culter, 13 Minn. 32. Husband and wife, 183. Private Agents, 4. Tenants in Common, 401. , Melghen et al. v. Strout, Tuttle y. Stuart y. Kiiisella, 14 Minn. 524. Constitutional Law, 64. y. Walker, 10 Minn. 296. Taxes, 400. Sullivan y. Lacrosse & Minn. P'kt Co., 10 Minn. 3§6. Practice, 299, 362. Sumner et al. y. Savytelle et al., 8 Minn. 309. Trusts and Trustees, 405. Supervisors of the Town of Miiple Grove v. Board of Commissioners, Wright Co., 12 Minn. 403. Counties, 82. Supervisors of Scott Co., Harkins v. , Hennepin Co., Nonrse v. Sub. Hist. No. 3, Eag'Ie Creek School Uist., Gould y. Swanwick et al., Bngrg'les et al. v. Suart, Robson y. Swanson, Roos v. Sweet y. County Commissioners, Carver Co., 16 Minn. 106. Counties, 84. Swift v. Fletcher, 6 Minn. 550. Constitutional Law, 60. Notes and Bills, 245. Pleading, 280, 281. Practice, 348. et al., JEtna Ins. Co. v. Symonds, Castner et al. y. T Tuttle V. Howe, 14 Minn. 145. Mechanic's Lien, 212. Tainter et al., Jones et al.v. Talcolt y. Marston, 3 Minn. 339. Interest, 187. Pleading. 273. Tapley v. Tapley, 10 Minn. 44§. Duress, 122. Parties, 52. Taunt, State v. Tavernier, Cleland y. , Rice y. Taylor v. Bissell, 1 Minn. 225. Evidence, 140. Justice of tlie Peace, 194. Pleading, 281. Practice," 341. TABLE OF CASES. 481 V. Blake, 11 Minn. 225. Duress, 122. ' Pleading, 264, 268, 290. et al., Carii v. , Griswold v. et al., Marienthall et al. v. , Phasnix Ins. Co. v. et al., Steele v. V. Taylor et al., 1© Minn. 107. Constitutional Law, 63, 68. Contract, 74. Elections, 127, 128, 129. Evidence, 151. Statutes, 389. Teick V. Board of Commissioners, Carver Co., 11 Minn. 292. Constitutional Law, 69. Highways, 178. Practice, 342. Teller T. Bishop et al., 8 Minn. 226. Fraudulent Conveyance, 171. Husband and wife, 181 . Temple et al. r. Scott, 3 Minn. 419. Courts, 86. Practice, 333, 329. Termatt, Ayer v, Terrill, Baker v. Territory of Minn., ex rel.. Barker et al. T. Smith, 3 Minn. 240. Office and Officer, 2.53. Pleading, 270. Thatcher, Grates y. Thayer v. Barney 12 Minn. S02. Courts, 86. Evidence, 143, 1.57. New Trial, 240. Stamps, 388. V. Cole, 10 Minn. 215. Courts, 86. Thomas t. Commissioners, Scott Co., 15 Minn. 324. Counties, 85. Sheriff, 386. 61 , impl., etc., Kates y. et al.. Castle et al. y. Thompson, Gilbert et al. v. et al. V. Morgan, 6 Miun. 292. Constitutional Law, 67. Deeds, 119. Estoppel, 135. Mortgages, 223. Thomas v. Dayidson, 1.5 Minn. 412. Taxes, 397. Thompson, School Dist. v. Thompson v. Tinckom, 1.5 Minn. 29.5. Taxes, 397, 398. , McComb et al. v. Thornton y. Smith et al., 11 Minn. 15. Xuisance, 252. y. Turner, 11 Minn. 336. Limitations, 203. y. Webb et al., 13 Minn. 49§. Practice, 361. Limitations, 203. Thorne y. Board County Commissioners, Washing'ton Co., 7 Minn. 150. Counties, 83. y. , 14 Minn. 233. Counties, 84. Pleading, 269. Tiernay et al. y. Dodge, 9 Minn. 166. Certiorari, 24. Practice, 341, 353. St. Paul, City of, 394. Tillman et al. y. Jackson, 1 Minn. 1§5. Judicial Sales, 190, 191. Practice, 335, 338. Tillotson y. Millard et al., 1 Minn. 513. Homestead, 79. Practice, 337. Timmes, State v. Tinckom, Thompson Treasurer et«. y. Tiner et al.. State v. Titus, Ely y. 482 TABLE OF CASES. Toher et al., Cochran v. Toledo Novelty Works v. Berrehanier, 8 Minn. 11§. Mechanics' Lien, 215, 21-2. Statutes, 390. Toler, McNair t. Tonsley, Wilkinson v. Towlertoii v. Dayidson, 7 Mian. 40S. Civil Action, 44. Townsend v. Kendall, 4 Minn. 412. Civil Action, 43. Guardian and Ward, 177. Town of Baytown et al., Carver v. Town of Franklin, Ennkle v Town of Freedoui, McCntcheon v. Town of Mantorville v. Mantor, Assessor, etc., 14 Minn. 437. Counties, 82. Town of St.Panl v. Steamboat, Dr. Frank- lin, 1 Minn. 97. Practice, 341. Town of West St. Panl, libby et al. y. Town of Washburn et al., 14 Minn. 268. Limitations, 201. Partnership, 259. Town V. Washburn et al., 14 Minn. 268. Limitations, 201. Partnership, 209. Tozer et al. v. Hershey, 15 Minn. 257. Evidence, 138, 140. New Trial, 241. Partnership, 260. Practice, 310. Tozier y. Merriam, 12 Minn. 87. Pleading, 276. Tozer, Spencer v. Tracy, Holcomb v. Traver, Sharpe v. Tri^gr r. Larson, 10 Minn. 220. Justice of the Peace, 197. Practice, 339. Troost et al.. Miller et al. y. j Trowbridge y. Forepaugh et al., 14 Minn. 133. Pleading, 272. Mortgages, 226. Troyer y. Schweizer et al., 15 Minn. 241. Garnishment, 176. :, City of St. Panl v. Truitt Bros. & Co. v. Caldwell, 3 Minn. 364. Assignments, 11. Pleading 285. I True y. True, 6 Minn. 458. Divorce, 122. TuUis y. Brawley, 3 Minn. 277. Judicial Sales, 191. Practice, 301, 327. Sheriff, 385. V. Caldwell et al., 3 Minn. 117. Practice, 298. y. Fridley, 9 Minn. 79. Husband and Wife, 181. Notes and Bills, 247. Pleading. 263. y. Orthwein, 5 Minn. 377. Civil Action, 41. Pleading, 289. Practice, 334. , Burwell y. Tnrrell y. Morgan, 7 Minn. 368. Mortgages, 232. STotes and Bills, 246. , Rohrer y. Turner et al. v. Holleran, 8 Minn. 451. Justice of the Peace, 192. Practice, 337. — V. , H Minn. 253. Dams and Mills. 116. Practice, 357. , Thornton v. Tuttle T. Howe et al., 14 Minn. 145. Assignments, 9. Mechanic's Lien, 213, 214. TABLE OF CASES. 488 V. Moore, IC Minn. 123. Equity, 131. y. Strout, 7 Minn. 465. Constitutional Law, 63, 68. Tyler et al.. Palmer v. Tyson & Co. v. Kane & Co.. 3 Minn. 287. Practice, 305. u UUinan, Bazille v. , State V. T. Lion, 8 Minn. 381. Insolvent Law, 168. Practice, 330. Upton, Bass & Co. y. United States, Baker v. V. Gideon, 1 Minn. 297. Criminal Law, 110. y. Minn. & Xorthwestern R. R. Co., 1 Minn. 128. Constitutional Law, 66. Grants, 176. Minn. & Nortliwestern R. R. Co., 216. y. Shanks et al., 15 Minn. 369. Indian Reservation, 184. Judge of Probate, 189. V Van Brnnt et al., Warren y. V. Mismer, 8 Minn. 232. Mortgages, 219. Van Campen, Brimhall y. , Copeliart v. Vanderburgh et al. y. Bassett, 4 Minn. 242. Attachments, 13. Civil Action, SiQ. Partnership, 358. Sheriii; 383. Vandall, St. Anthony Mill Co. y. Van Eman y. Stanclilicld et al., 8 Minn. 518. Contract, 74, 75. y. , 10 Minn. 255. Contract, 77. Evidence, 143. Notes and Bills, 250. V. , 13 Minn. 75. Bailment, 78. Civil Action, 8-1. Notes and Bills, 2Jli. , Burpe v. Van £tten, Cock v. , McCarty t. Van Hasen v. The Minn. Baptist State Convention, 16 Minn. 96. Civil Action, 32. Village of Mankato v. Willard et al., 13 Minn. 13. Civil Action, 50. Deeds, 119. Easements, 125, 123, 124. Visehers et al., Kay v. Vogle V. Grace, 5 Minn. 297. Practice, 319. Van Glahn, HoUinshead y. y. Sumner, 11 Minn. 203. Practice, 319, 358. Van Phul, Waters & Co., Kern v. Vose & Co. y. Stickney, 8 Minn. 75. Civil Action, 51. Practice, 331. Vroman, Armstrong v. w Wainyyright, Arnold y. , Daniels v. Wakefield y. Spencer, 8 Minn. 376. Notes and Bills, 249. Practice, 363. , Brewster et al. y. 484 TABLE OF CASES. Walker v. Barron, 6 Miiiii. 508. Evidence, 149. New Trial, 244. Practice, 305, 306. — - V. McDonald, 5 Minn. 455. Courts, 86. Justice of the Peace, 194. Statute of Frauds, 391. , Stewart v. Wallace et al., Kelley v. Walbridge, Barker v. Waldron et al., Winona & St. Peter R. R. Co. V. Wallower et al., Johnson y. Walsh V. Kattenburg'h, § Minn. 127. Evidence, 141. Pleading, 267. 271. Statute of Frauds, 391. Walters v. Armstrong, 5 Minn. 448. Evidence, 145. Notes and Bills, 249. Wambaugh et al., Balme v. Waples et al., Colt v. Wardlow v. Bisser, 3 Minn. 317. Justice of the Peace, 195. Warner t. Commissioners of Hennepin Co., 9 Minn. 139. Highways, 178. Mandamus, 208. T. Grace et al., 14 Minn. 487. Office and Officer, 254. Sheriff, 386. • — — T. Myrick, 16 Minn. 91. Account Stated, 2. Partnership, 255, 256. Pleading, 287. Practice, 348, 349. Warren et al. y. Fish, 7 Minn. 423. Practice, 336. Warren v. Van Brunt et al., 12 Minn. 70. Contract, 79. Trusts and Trustees, 404. , Dayton et al. y. Ward, Daniels v. Ward y. Hnker & Co. et al., 16 Minn. 159. Debtor and Creditor, 118. Homestead, 180. v. Haws, 5 Minn. 440. Practice, 309. Warden et al., Dunwell y. Washburn et al. y. Sharpe et al., 15 Minn. 63. Practice, 328, 343. y. West, 4 Minn. 466. Bonds, 22. ■ y. Winslow, 16 Minn. 33. Accord and Satisfaction, 1. Practice, 309, 312, 344. , McRoberts y. Washburn et al.. Town y. Washington, Leyering' et al. y. Watson imp!., etc, Morris et al. y. Webb y. Bidwell, 15 Minn. 479. Pleading, 264, 268, 269, 279, 289. Taxes, 400. Webb et al.. County Treasurer y. , Thornton y. Webber, Marsh y. Webster, Sanborn & French y. Weed et al., Gere y. Weide et al. y. Davidson et al., 15 Minn. 327. Evidence, 145. Practice, 310, 311. Weisberger y. Teney, 8 Minn. 456. Civil Action, 50. Pleading, 287. Vacation of Plats, 411. Weller y. City of St. Paul, 5 Minn. 95. Civil Action, 49. Constitutional Law, 67. Municipal Corporation, 234. St. Paul, City of, 393. v. Earnes et al. 15 Minn. 461. TABLE OF CASES. 485 Civil Action, 36. , Bailly v. Wells et al. v. Cliastersoii, 9 Minn. 566. Pleading, 278. TVempler v. Knopf, Jr., 15 Minn. 440. Evidence, 144. Statute of Frauds, 391. Wentworthv. Wentwortli, 2 Minn. 382. Statute of Frauds, 391. Equity, 133. Pleading, 289. Practice, 321, 349. Trusts and Trustees, 403. Werteryelt v. Kin^ et al., 4 Minn. .320, Practice, 358. Wetherill y. Stone et al., 12 Minn. 579. Practice, 325. Whalon et al. v. Aldrich, S Minn. 346. Contract, 77. Damages, 112. Pleading, 282. TVhallon v. Bancroft, 4 Minn. 109. Constitutional Law, 64. Elections, 128. Wharton, Conway v. Wheaton, Blackinan y. et al., Lovell y. WMtacre y. Culyer, 6 Minn. 297. Estoppel, 135, 137. T. , 8 Minn. 133. Estoppel, 137. New Trial, 240. V. , 9 Minn. 295. Abatement, 1. Notes and Bills, 249. Practice, 309. Whittaere et al. y. Fuller et al., 5 Minn. 508. Mortgages, 219, 232, 224, 225, 231. Wliitaere r. McClnng et al., 14 Minn. 170. Civil Action, 45. Landlord and Tenant, 199. T. Bice et al., 9 Minn. 13. Limitations, 202. Whitcomb y. Shaffer, 11 Minn. 232. Practice, 343. White V. Phelps, 14 Minn. 27. Bailment, 18. et al., V. Culyer, lO Minn. 102. Practice, 312. , McLaine y. , Richards & Wliitney v. Whitney, Bid well v. et al. y. Reese et al., 11 Minn. 138. Limitations, 204, 205. Partnership, 200, 257. Whitman v. St, Paul & P. R. B. Co., 8 Minn. 114. Injunction, 185. Wilcox et al. v. Dayis, 4 Minn. 197. Pleading, 263, 286. Wilder et al. v. Brooks et al., 10 Minn. 50. Husband and wife, 181. Recording Laws, 37. Wilder v. City of St. Paul, 12 Minn. 192. Civil Action, 43, 50. Easements, 123, 124, 125, 127. Estoppel, 134, 135. Evidence, 151, 165, 192. Practice, 312. Wiley et al. y. Board of Education, Town of Minneapolis, 11 Minn. 371. Board of Education, City of St. An- thony, 20. Corporations, 81. Pleading, 265, 275. Wilkinson et al. y. Estate of Winne, 15 Minn. 159. Commissioners to adjust Claims, etc., 57. Executors and Administrators, 165. Judge of Probate, 189. Limitations, 204. 486 TABLE OF CASES. Wilkinson v. Toiisly, 16 Minn. 299. Civil Action, 31. Contract, 79. Wilkin et al. v. First Div. St. Paul & P. R. B. Co., 16 Minn. 271. Constitutional Law, 69. Railroads, 375. Willard et al.. Village of Mankato v. Williams v. Anderson, 9 Minn. .50. Civil Action, 36. Damages, 111. Practice, 323. V. Bernlieiraer, 5 Minn. 288. Mechanic's Lien, 214. et al. Hall v. V. Lash, 8 Minn. 496. Counties, 82. Mortgages, 232. Practice, 353. , Entrop y. , Frasier v. et al.. Holmes v. , Hubbard v. et al., Johnson y. , Kennedy et al. y. & Son, lewis et al. y. et al. y. McGrade et al., 13 Minn. 46. Civil Action, 41. Evidence, 153, 154. Husband and Wife, 182. Practice, 332, 33 i, 346. y. , 13 Minn. 1T4. Bailment, 19. Practice, 300, 332. Sheriff, 384. Willis V. Dayis, 3 Minn. 17. Principal and Surety, 369. et al., Daniels y. Willoughby et al., Gervais y. , Lawrence y. et al.. Minor y. — - y. Stanton et al., 3 Minn. 150. Practice, 363. Wilson et al. v. Board of Education, Town of Minneapolis, 11 Minn. 371. Pleading, 264. y. Davis et al., 4 Minn. 197. Merger, 315. V. Buckman, 13 Minn. 441. Constitutional Law, 70. , Dole V. T. McCormick et al., 10 Minn. 216. Equity, 133. , Peoria Fire & Marine Ins. Co. v. Wilyerschied, Carpenter and Wife v. Windom et al., Lamberton et al. r. Winona & St. Peter B. B. Co. y. Deuman et al., 10 Minn. 267. Railroads, 374. V. Waldron et al., 11 Minn. 515. Constitutional Law, 63, 72. New Trial, 239. Railroads, 372, 374. , Hnif V. , Hilbert y. , Johnson et al. y. , Lawrence y. Winona Co., Koenig v. Winne, Estate of, Wilkinson et al. y. Winslow, Baldwin v. , Daniels v. , Farmers' Bank y. y. Minn. & Pacific B. B. Co. et al., 4 Minn. 313. Parties, 54. , Wasliburne v. Wintermute v. Stinsou, 16 Minn. 458. Civil Action, 33. Practice, 354. Wolfe and Wife v. Banning et al., 3 Minn. 202. Husband and Wife, 183. Parties, 52, 55, o6. TABLE OF CASES. 487 Pleading, 280. Pi-.aetice, 355. Wood etc., Cullen impl., etc., 13 Minn. 394. Evidence, 143. Partnerslilp, 25S. Practice, 321. U. S. Land, 409. • V. Myrict, 9 Minn. 149. Certiorai-i, 24. y. , 16 Minn. 494. Executors and Administrators, 165. .Judge of Probate, 190. Limitations, 203. , State V. T. Woods, 16 Minn. 81. Practice, 343. Woodbury v. Dorman, 15 Minn. 338. U. S. Land, 408. T. ,15 Minn. 341. Practice, 352. , Spencer et al. t. ^ — et al. V. Larned, 5 Minn. 339. Agency, 5. Evidence, 148. Notes and Bills, 249. Pi-actice, 345. Woodruff, Hone v. Worley et al. v. Tfaylor et al., 6 Minn. 192. Mortgages, 228, 230. Wortliington, Koss v. Wri^Iit et al. v. Davidson, 13 Minn. 449. Partner,ship, 255, 360. Wright, Ford y. , Farrington y. Wykoff y. Irvine et al., 6 Minn. 496. Brokers, 23. Y Yale V. Edgerton, 11 Minn. 271. Practice, 300,^S64, 366. V. , 14 Minn. 194. Evidence, 140, 164. New Trial, 239. Pleading, 264. Statute of Frauds, 391, 392. Tates et al., Galloway v. Toss V. DeFreudenricli et al., 6 Minn. 95. Civil Action, 48. Pleading, 290. Practice, 322. Toung, Case and Wife y. Yonle, Looinis v. z Zimmerman v. Lamb et al., 7 Minn. 421. Attachments, 13. Evidence, 139. Pleading, 280. Practice, 311. INDEX (489) INDEX. THE FIGURES REFER TO THE PAGES OF THIS VOLUME, EXCEPT THOSE IN PARENTHESES, [ ( ) ] WHICH REFER TO SECTIONS. A Abandonment of Goniract, 73. ABATEMENT, 1. ABSTRACT OF TITLE, 1. Acceptance. See Notes and Bills, 247. of Work, Evidence of, 148. ACCORD AND SATISFACTION, 1. ACCOUNT STATED, 1. ACCOONTING. Eight of Partner to, 256. Parties to Action for, 55. Acknowledgement of Debt, barred, etc., 204. of Deed, 118. by Judge of Probate, 189. Action. When commenced, (23) 15. Adverse Claims to Real Estate. Action to determine. Requisites, 49. Wlien it lies, 50. Defense, 50. Administeatoks. See Executors and Administrators, 165. Bond of, 148. Adjournment in Justice^s Court, 194. ADMIRALTY, 2. Admissions, 138. £y Partner, 259. Client bound hy attorney''s a., (5) 16. Adultery Under Promise of Mar- riage, 106. Affidavit in Attachment, 13. in Garnishment, 173. of Claim hy Stranger, to Property Seized, 384. of Ownership, service of on officer, 39. Age of Slieep, evidence of, 148. AGENCY. Public Agents, 3. Pi-ivate Agents, 2. Evidence of, 148. Liability of Agent for money had and received, 30. Liability of Agent for use and occu- pation, 33. Agent of Minneapolis and C. V. B. B. Co., (11) 10. Alternative Mandamus, 307. Amendments, 366. of Attachment Bond, 13. 492 INDEX. of Indictment, 91. of Sheriff's Return, 385. of criminal record, 105. Answer. Time to answer. 280.,; Who may answer, 280. Joinder of defense, 280. Inconsistent defenses, 280. Counter Claim, 381. General Denial, 2S3. Qualified Denial, 281 Denial of Knowledge, etc., 284 Denial of Conclusion of Law, 284. Allegation of New Matter, 285. jSTegative Pregnant, 285. What must be denied, 285. Evidence under different denials, 286. Denials in particular cases, 286. Answei's in particular actions, 287. ANOTHER ACTION PENDING, 6. Evidence, 147. See (4) 169. Appeal Bonds. Action on, 35. Effect of, 22. Appeal to District Court. Practice on, 339. Appeal to Supreme Court. Generally, 353. Who can appeal, 353. Time to appeal, 353. Notice of appeal, 353. Effect of appeal, 353. Dismissal of appeal, 353. Papers on appeal, 354. When appeal lies, 354. When it does not lie, 257. What is reviewable, 360. Principles of determination, 360. Relief granted, 36. In Justice Court, 196; Certiorari lies in absence of, (6) 24. Appearance. See Practice, 300. By Garnishee, waives what ? 173. Appropriation op Payments, 78. ARBITRATION. The award, 6. Judgment on award, 7. Bond, effect of 22 ; Bond, action on, 35. Arci-iitkct. See Mechanics'' Lien, 212. Argument of Counsel, 99, 312. ARREST. 7 Assault and Battbhy, 8. Action for, 42. Complaint in, 277. Assault with Intent to Murder or Maim, 108. Assault with Intent to Commit Kapb, 109. Assault with Intent to do great Bodily Harm, etc., 108. Indictment for, 92. Assignee. See Assignments, (4 el seq. ) 9. of Bankrupt, requisites to liringing suit, .52. for benefit of creditor, 10. of Guarantee, wlien proper plaintiff, 53. of Pre-empior, takes what ? 408. Sec Mortgages, 219. Assessments for city impnrovements, 234. Assignor for benefit of creditors, rights of, 10; when he can protect assigned property, 10. ASSIGNMENTS. In General, 9. For benefit of creditors, 10. Pendente lite, do not abate action, 1. Cancdling fraudulent assignments, 48. of Mechanics'' Lien, 214. of power of sale in Mortgage, 2l7. of partnership property, by partner, 257. Pre-emptor may assign, when ? 408. Association ov Individuals. Evidence of, 148. ATTACHMENTS. Generally, 13. Requisites of, 18. Wliat is subject to, 13. Who can issue the writ, 13. The affidavit, 13. When it will issue, 15. How executed, 16. Dissolution of, 16. INDEX. 493 Practice on, 301. Sufficient averment of, 264. In Justice's Oourt, 196. Subsequent cr. may terminate unlawful detention by officer, (94) 41. Attempt to Extort Property, etc. Indictment, 92. Attesting Award. See Arbitration, 7. ATTORNEYS. Generally, 16. Attorney's Power, 16. Lien, 16. Liability, 17. Stipulations between, 17. Substitution of, 17. Authentication of Records, 138. Award. See Arbitration, 6. B BAILMENT. Generally, 17. Pledge or Pawn, 18. Bailment bj' liiring, 18. Mandatum, 18. Loan, 18. Liability of master of boat, (204) 54. Transfer of pledge by pledgee, 34. BANKS, 1 9. Sufficient averment of incorporation, 264. Bank Bills. Evidence of worthlessness, 148. Bankruptcy. Proof of assignment, 149. Benefit of Clergy, 95. BILLS OF LADING, 20. Bills and Notes. See Notes and Bills, 244. BOARD OF EDUCATION OF THE CITY OF ST. ANTHO- NY, 20. Board of Education of the Town op Minneapolis. See Board of Education, City of St. Anthony, (3) 20. BOATS AND VESSELS, 21. Jurisdiction of District Gourt, 87. Bona Fide Holder. See Notes and Bills, 348. BONA FIDE PURCHASER, 20. When not li'Me in trespass, 40. When subject to creditor's daim, 172. Bound by Mechanics'' Lien, 213. BONDS. Generally, 22. In Judicial Proceedings, 22. To convey land, 23. - First Mortgage Bonds of B. E. Co.'s, 33. Action in indemnity bond, 36. Amendment of attachment bond, 13. Averment of execution by Corporation, 364. See Undertakings, 411. Cancellation of bonds to concey, 48. Power to executeneed not be under seal, 23. Sond for a deed is not a deed, 33. Bond on Appeal. Surety in, 369. Bounties. See Towns, 401. BROKERS, 23. Burden of Proof, 141. Of cattle killed on R. R,, 373. c Calling Jury, 99. Cancellation of Instruments, 133. For Fraud, Evidence in Action for, 163. Canvassing Board, 127. Cattle. Running at large, 23. Killed on R. R. track, 372. Certiorari, 24. Practice, 340. To Justice of the Peace, 197. Cestuis que Trust. See Trust and Trustees, 407. Character. Evidence of, 103. 494 INDEX. Challenging Jukous, 99. Charging the Juby, 313, 100. Chaktek. Acceptance of, 81. Chattel Mortgage, 25. Enforcement by Sheriflf, 388. CIVIL ACTION. What it is, 28. On Contract, 28. For Money Paid, etc., 30. For Goods Sold, 33. For Use and Occupation, 33. For Worli, Labor, and Services, 33. On Bills and Notes, 34. On Arbitration Bond, 35. On Bonds given in Suits, 35. On Undertakings, 35. On Covenants, 36. On Employment, 36. On Indemnity, 36. On Sales of Real Property, 36. On Quantum Meruit, 37. On Warranty, 37. For Deceit, 38. For Negligence, 38. For Ti'espass de bonis, 39. For Claim and Delivery, 41. For Assault and Battery, 42. For False Imprisonment, 43. For Libel. See Slander and Libel. For Trespass to Land, 43. Foi- Nuisances, 43. For Recovery of Possession of Real Property, 44. By Personal Representation of Person Killed, etc., 45. Against One or More Joint Associate on an Obligation of all, 46. To Determine Adverse Claims, arising from an obligation, 46. To Determine Adverse Claims to Land entered in ti'ust for occupant, 46. By officer in aid of Execution, 46. For Specific Performance, 46. To Enforce Trusts, 47. To cancel Deeds and Mortgages, 47. To cancel Notes, 48. To cancel Bonds for Deed, 48. To cancel Fraudulent Assignments, 48. To cancel Foreclosure Proceedings, 49. To remove clouds from Title, 49. To Detei'mine Adverse Claims to Real Property, 49. For Forcible Entry and Detainer, 50. For Contribution, 51. Demand and Tender before Suit, 51. Parties to Actions, 52. Lies to set aside award, (4) 7. By and against partnership, 260. Against Boats and Vessels hy name, 21. Claim and Delivery of Personal Property. Identity of goods requisite, 41. Right of immediate possession requi- site, 41. Wrongful talving sufficient, 41. When it lies, 41. j When it does not lie, 41. Defenses, 42. Practice in, 302. Complaint in, 276. Duty of Sheriff in, 383. Claim and Delivery Bond. When not brolcen, (4) 22. Action on does not lie, when. 3-5. Issue of execution not necessary to action on, 35. CLAIM AGAINST THE UNITED STATES, 57. Clerk op Codet can not issue attachment, 13. Clouds on Title. Action to remove, 49. Collateral Promise. See Statute of Frauds, 391. COxMMISSIONERS TO ADJUST CLAIMS AGAINST ESTATES 57. Commissioners to Examine Witness out OF State, 304. Deposition by Stipulation, 304. Commissioner's Return, 305. Suppression of Deposition, 305. Deppsition as Evidence, 305. COMMON CARRIERS. . Generally, 58. TNDEA'. 4'.)i"i Of Passengers, iiS. Of Goods, 59. CoMMODATUM. See Bailment. COMMON LAW, 61. Effect of Statutes on, 89. As to Oattlerunning utlarge, (1 ("<««?.) 23. Complaint. See Pleading, 270. .Joinder of Causes, 270. By or against persons in special capac- ities, 273. On Contract, generally, 373. In particular actions, 274. COMPBKSATION. For Land taken for R. R., 373. Competent Evidence. 140. Conclusion of Law. Venial of, iad, 284. Conditions Precedent, 74. Conclusions Mutual and Concurkbnt. Pleadings on, 273. Insufficient averment of performance of, 267. Confessions, 101. Conflict of Law, 62. See U. 8. Marshal, 410. Conflicting Claims to Land Entered IN Trust, etc. Action to Determine, 46. Consideration. SufBoient, 76. Insufficient, 76. Rights of stranger to, 77. Consignee. Liability of goods left hy mistake, 61. Consignor. When Consignee's Agent, (19), 61. Conspiracy, 106. CONSTITUTIONAL LAW, 62. Liberty of the citizen, illegal arrest, (113) 43. Appointing R. R. Commissioners, 375. Legislative Control over School Districts, 380. Legislative Control over R. R., 372. Construction. See Pleading, 270. Of Assignments, 10. Of Deed, 119. Of Contracts, 74, 75. CONTEMPT, 72. Contesting Elections, 128. Continuance of Trial, 806. CONTRACTS. Generally, 73. Abandonment of, 73. Recision of, 73. Entirety of, 73. Conditions precedent, 74. Construction of, 74. Consideration, 76. Performance, 77. Payment, 78. Demand and Tender, 78. Void Contracts, 79. Waiver of Breach, 80. Action on entire, etc., requisites, 36. Latos impairing obligation of, 65. Remedy on breach of continuing, c, 28. Complaint on. 273. Contractor. Liability of city to, 235. Contribution. Action for, 51. See PrinciiJal and Surety, 370. Contributory Negligence. See Negligence, 238. Cooling Time. Shuts off Defense in Assault and Bat- tery, 42. COPYRIGHT, 80. CORPORATIONS. Generally, 80. Power, 81. Acceptance of Charter, 81. Stockholders, 81. Legislative Control over, 71. Parties to action to wind up, 55. Change of name, how liable, 56. Complaint in actions by or against, 272. Sufficient averment of, 264. Corpus Delecti, 102. Correcting Defective Deed, 120. Correcting Defective Iustkuments, 133. Costs. Generally, 336. INDEX. In District Court, 336. In Supreme Court, 338. In Justice's Court, 195. See New Trial, 244. Counter Claim. Generally, 281. Effect of, 381. When allowed, 282. In particular^cases, 282. In tromr for wheat unlawfully taken, (1)6. Against Mortgagee sueing for possession, 42. COUNTIES. Power generally, 82. Power of Commissioners, etc., 82. Liability for illegal taxes, etc., 83. Liability to true owner of orders, 84. Register of Deeds, 84. Treasurer and Deputy, 84. Proceedings on appeal from Commis- sioners, 82. Jurisdiction of District Court over, 86. COUNTY ATTORNEY, 82. County Commissioners. See Counties, 82. Power to grant license, 188. Action against in first instance, 34. County Links. Laws changing, 68. County Orders. Liability of County on, 84. County Seats. Laws changing, 68. County Supervisors. Power of, 82. County Treasurer, 84. COURTS. Generally, 85. Supreme Court, 85. District Court, 85. Concurrent jurisdiction with U. S. Courts, 86, Jurisdiction over XT. 8. Patents, 410. Jurisdiction over II. 8. land cases, 407, 409. COURT COMMISSIONER, 87. May issue writ of Habeas Corpus, 178. COVENANTS, 87. Action on, 36. Complaint on, 275. Creditor. See Debtor and Creditor, 117. Of fraudulent assignor, (31 et seq.) 12. Need not "procure insufficient securities, 38. See Principal and Surety, 368. See Fraudulent Conveyance, 171. Creditor's Action. Who may bring, 54. CRIMINAL LAW. Generally, 89. Indictments. 89. Defenses, 95. The Trial, 97. Evidence, 101. Practice on Review, 104. The Execution, 106. Particular offenses, 106. See ISTew Trial, 238. See Practice in Supreme Court, 341, et seq. Criminal Proceedings. In Justice's Court, 198. criminating Questions, 163. CUSTOM, 110. D DAMAGES. Generally, 111. Kominal damages. 111. Exemplary damages, 111. Liquidated damages. 111. On Breach of Contract, 111. In Tort, 113. On breach of covenant, 88. Bvidence of damage to wheat, 150. Mitigating exemplary damage in assault and battery, (110) 43. Evidence to rebut unclaimed emmplary damage, 40. INDEX. 497 Pleading damages by way of interest, 273. Bemitting, 329. Sufficient averement of, 365. DAMS AND MILLS, 110. Oertiorari lies to review proceedings in, 24. Limitation of action for injuries by, 202, 203. DEBTOR AND CREDITOR, 117. Cancellation of debtor^s fraudulent as- signment, 4S. Several judgment creditors may join, 53. Fayment hy debtor after assignment with- out notice, (4) 9. Dbcbit. Action for, 38. In sale of personal property, 370, DECI.ARA.TIONS. Of former owner of personal property, etc., 139. Of agent, when binding on principal, (23) 4. Dedication. See Easements, 123. Generally, 123. At common law, 124. Under statutes, 12.5. Kevocation of, 127. Proof of 150. DEEDS. Generally, 118. Execution and acknowledgement, 118. Wlio may take by deed, 119. Construction, 119. Validity, 119. Recording, 120. Notice by deed, 120. Correcbing defective deed, 120. Impeaching, 120. Quit claim deed, 121. Action to cancel, 47. Evidence that it was a mortgage, 151, 217. Tender of damage by purchaser not nec- essary, 51. Of mortgagee passes what, 222. 93 Quit claim of imsurmyed U. S. land, 407. Parties to action for cancellation, 5.'). Averement of non-deUvery, 266. Complaint in action to declare a deed a mortgage, 279. See Notice, 250. Defect op Parties, 57. Defects in Pleading. Cured hy verdict, 294. Remedies against, 292. Defenses to Actions, 29. DEFINITIONS, 121. Of '■'■ due process of law.''' G2. " Wrongful,-' (135) 4(!. Offrwud, 170. Degrading Questions, 1C3. Delivery. Of logs, 379. Of deed, 119. Demand, 78. Before suit, 51. Insufficient averment of, 268. Evidence of demand and refusal, 150. For exempt property when necessary, (85) 39. On mortgagee for surplus bid, (19) 30. Demurrer, 290. Generally, 290. When it lies, 291. When it does not lie, 291. To indictinent, 91. Denials. In particular cases, 286. In particular actions, 287. Of knowledge, etc., 284. General, 283. Qualified, 284. Of conclusions of law, 284. What must be denied, 285. Evidence admissable under different denial, 286. Depositions, 101. Desoriptio Pbksonarum, (9 et seq.,) 3. Directory Statutes. See Statutes, 388. Discharge of Mortgage, 225. Discretionary Matters. On review in Supreme Court, 343. 498 INDEX. Dismissal of Appeal. In District Court, 339. Dismissal ok Discontinuance, 304. Of action in District Court, 339. DISTRICT ATTORNEY, 121, District Coukt, 85. Power to recommit award, (7) 7. DIVORCE, 122. Drawing Petit .fDRY, 98. Dower. Wife's dower in town site, 410. "Dub Process of Law." Defined,, 62. DURESS, 122. E EASEMENTS. Generally, 123. How created, 123. Abandonment, 127. Ejectment. See Civil Action, 44. ELECTIONS. Canvassing Board, 127. Irregularities in, 128. Contesting, 128. Averment of regularity, 265. Proof of regularity, 151. Eminent Domain. See Constitutional Law, 69. Employment. Action on, 36. Entirety of Contract, 73. Equality. Necessary in taxation, 71. Equitable Lien. See Vendor and Purchaser, 412, 413. Equitable Relief. Complaint in actions for, 279. See Civil Action, 46. EQUITY. Generally, 129. Specific performance, 139. Recision of contract, 132. Reformation of contract, 132. Correcting defective instruments, 133. Cancellation of instruments, 133. Relief against fraud and statute of frauds, 133. Relief against penalties, 133. Becision of contract, 47. ESTOPPEL. Generally, 134. Of record, 134. By deed, 134. In pais, 135. Easement by estoppel, 123. EVIDENCE. Admissions, 138. Judicial notice, 138. Declarations of former owner, 139. Presumptions, 139. Competent relevant, material and hear- say, 140. Burden of proof, 141. Prelimenary proof, 143. Secondary evidence, 142. Parol evidence, 143. Evidence in particular actions, 160. Evidence in particular issues, 147. "Witnesses, 162. Weight of in particular cases, 102, 103. Possession, evidence of title, 376. Admitting evidence after pa/Hies rest, 307. Striking out evidence on motion, 311. Parol evidence affecting Sheriff ''s return, 385. In criminal eases, 101. Of partnership, 259. Under different denials, 286. AgenPs defective deed ratified, compe- tent, 5. Burden of proof of contributing negli- gence, (73) 38. Burden of proof breach of warranty, (68) 37. Varying indorsement by parol, (80) 39. Exceptions, 310. Execution. What is subject to, 331. When it issues, 332. Date and time of docketing, 332. To whom issued, 383. INDEX. 499 The levy, 332. Exempt property, 333. Satisfaction of execution, 334. The sale, 335. The return. (See Sheriff.) Vacating return. (See Sheriff.) Setting aside sale, etc , 335. Eedemption, 336. Levy on exempt property wrongful, 39. Evidence of execution sale, 151. Fledgor''8 interest subject to, (2) 18. Awrments concerning, 255. Alias when necessary, 35. Action by officer in aid of, 46. In criminal cases, 106. EXECUTOR AND ADMINISTRA- TOR, 165. Limitation of actions against, 203. Tf /{«re proper plaintiff, 53. Wliat they can assign, 8. Exempt Pkopertt, 333. Exemption laws constitutional, 68. Knowingly taken is trespass, 39. Demand for necessary, when, 39. May be levied on, wlien, 39. May be seized for a reasonable time, 41. Method of demanding, 51. Time for demanding, 51. Wifis signature to mortgage on, 26. Exemption op Individuals fkom Gen- eral Laws. See Constitutional Law, 67. Ex post facto Laws, 64. Express Companies. Are common carriers, 59. Limitation of liability, 60, 61. Extortion, 106. F FALSE IMPRISONMENT, 166. Proof of, 160. Action for, 43. FERRY, 166. A'Berment of negligence of, 265. FiCTiTiODS Issues, 343. Filing Chattel MourttAGE, (3 et seq.,) 25. FIRE INSURANCE, 166. Fire Ordinance. When no defense in false imprisonment, 43. FIRST DIV. S. PAUL & P. R R. CO., 167, " First Mortqaoe Bonds " op K. E's. State lien under, 23. Flo WAGE op Lands by Dam. Evidence of, 160. FORCIBLE ENTRY AND DE- TAINER, 168. Action for, 50. Complaint in, 279. Foreclosure. Of bond to convey, time given to perform, 23. Of mortgages, 226. Evidence of, 157. Foreign Judgments. Complaint on, 275. Forgery, 106. Forged Draft. Whose loss, 164. Money paid on not recoverable, 32. FORMER ADJUDICATION, 169. Fornication, 107. FRAUD, ITO. In sale of personal property, 379. Essential to action for deceit, 38. In sale of mill property, 38. Evidence of, 151. Belief against, 133. FRAUDULENT CONVEYANCES, 171. Parties to action to set aside, 56. Evidence of, 151. Fraudulent Acts. Insufficient averment of, 268. Fraudulent Representations. Ground for attachment, 14, 15. Frivolous Pleading, 294. 500 INDEX. G GARNISHMENT. Requisites, 173. Affidavit, 173. What subject to, 173. Garnishee, 174. Summons, 174. Notice to defendant, 174. Remedy when garnishee deserts liabil- ity, 175. Judgment, 175. Satisfaction of judgment, 175. ProtsctioH of garnishee, 117. Gaenishbb. See Garnishment, 174. General Denial, 283. GIFT, 176. Goods. Complaint for goods sold, 274. Proof of delivery in good order, 149. Proof that tliey conformed to contract, 152. GOVEENOE. Mandamus against, 208. Time to sign bills, 63. Grand Jury, 98. GRANTS, 176. Gratuitous Services. j!^o action lies for, 34. GUARDIAN AND WARD, 177. Guardian not liable in false imprison- ment, 43. GUARANTY, 177. Partner's power to, 257. Limitation of action on, 202. Guest. Liability on host's contract, 29. H HABEAS CORPUS, 118. Judge of Probate cannot issue, 189. Recognizance on by Supreme Court, 85. Having and Claiming Title. Evidence of, 153. HEIR, 178. Eatitled to ancestor's interest intown site, 409. Heresay Evidence, 140. HIGHWAYS, 178. Averment that land was, 266. Hiring of a Thing, IS. Engagement of hirer, (10,) 18. HOMESTEAD, 179. Fraudulent conveyance of, 172. See Trusts and Trustees, 405. Horse. Evidence concerning, 152, 153. HUSBAND AND WIFE, 180. Liability, of husband for wife's torts, 180. Liability of wife for her torts, 180. Power to deal witli each other, 180. "Wife's control over her separate prop- ei-ty, 181. Wife's liability on her personal con- tract, 382. Liability of wife's separate estate for her contracts, 183. Wife as surety for husband, 183. Wife's power to dispose of her estate, 183. Married woman as party to an action, 55. Her capacity to sue, 52. Her mortgage binding when, 48. Wife's inortgage, 223. See Trusts and Trustees, 404. I IGNORANCE OF FACT, 184. Illegal Contract, 79. Impeaching Deed, 120. Impeaching Witness, 163. Inconsistent Defenses, 280. indefiniteness and uncertainty. in pleading, 293. Indemnity, Action on, 36. Independent Covenants, 87. INDEX. 501 INDIAN RESERVATION, 184. Not within taxing jurisdiction, 70. Indictments, 89. For polygamy, 62. Indoksembkt. See Notes and Bills, 245. INFANCY, 185. Complaint hy infant, 279. JScidence in auctions by infant, 160. INJUNCTION, 185. See Practice, 302. Injuries to the Person. Action for, 42. Injuries to Personal Property. Action for, 39. Complaint, 576. Injuries to Eeal Estate. Complaint, 277. Evidence of, 1 60. Insanity. As a defense, 96. Insolvency. Proof of, 153. INSOLVENT LAW, 186. INTEREST Generally, 186. On what reoovei'able, 186. For what time recoverable, 187. Rule of (Jomputation, 187. Penalty clauses, 188. During war, 188. Illegal, not recoverable after paj^ment, 31. Voluntary payment of excessive inter- est, not recoverable, 31. INTOXICATING LIQUORS, 188. Intoxication. As defense to crime, 95. Irregularities. In elections, 128. Irrelbtancy OB Immateriality. In pleading, 233. J Joinder of Causes op Action, 270. Joinder op Depensbs, 280. Joinder of Offenses, 91, (61), 19S. Joint Association. Action against one of, 46. Emdence in actions against, 162. Joint Contract. Complaint on, 274. Judgment. See Practice, 321. Arresting judgment, 321. What relief can be granted, 321. Form and contents, 321. Offer of judgment, 322. On default, 322. " Non obstanto veredicto,^' 323. By confession, 323. Entrjf and notice, 323. Lien, 325. Vacating. 327. Opening, 328. Correcting, 329. Remitting damages, 329. Setting off judgments, 329, 86, 351. Satisfaction of judgments, 330. Impeaching judgments, 330. When to be proved by officer, 40. Excess in justice's fees may be struck off, S6. On certiorari, 341. Enforcing entry of judgment, 85. In garnishment, 175. Assignment of judgments, (7 ei seq.), 9. On award, 7. Evidence of existence of judgment, 153. Evidence of docketing, 153. Emdence of filing and loss, 154. Evidence of Satisfaction, 154. Judgment on appeal to District Court, 340. Judgment on appeal from R. R. Commis- sioners, 376. On report of referee, 320. JUDGE OF PBOBATE AND HIS COURT, 188. Judicial Notice, 138. Of attorney''s signature, 16. See Pleading, 263. See Contracts, (62), 79. Of transactions in Supreme Court, (615), 3G0. Judicial Power. 503 INDEX. See Constitutional Law, 64. JUDICIAL SALES, 190. JURISDICTION, 191. Concurrent jurisdiction with U. S. Courts, 86. Of District Court, 80. Of State Courts overboats and vessels, 31. Of City Justice of St. Paul, 394. Jurors. Drawing, 307. Vliallenging, 307. JURY, 191. Trial iy, 64. Retirement of, 100. Province as to facts, 100. Fee, constitutional. 64. JUSTICE OF THE PEACE. Powers and liabilities, 192. Jurisdiction, 192. Justice's doclxet, 192. Transfer of actions to anotiier justice, 193. Pleadings, 194. Defenses, 194. Adjournment, 194. Certif3Mng case up when real estate is in issue, 195. Costs, 195. Replevin, 196. Attachment, 196. Appeal, 196. Certiorari, 197. Criminal proceedings, 198. Justification. For crime, 95. In assault and battery, 42. L LACHES, 198. LANDLORD AND TENANT, 199. Larceny, 110. Indictment for, 93. LEASE, 200. Legislative Power. See Constitutional Law, 64. Levy. Of execution, 332. Sufficient averment of, 266. Libel, 110. See Slander and Libel, 387. License. Power of city to, 23. See Intoxicating Liquors, 188. Lien. See Mechanic's Lien. See Attorney's Lien, 16. Of pledgee, 18. Of purchaser at guardian's sale, 44. Equitable. See Vendor and Purchas- er, 412, 413. On homestead, 179. Of warehouseman, 18. Of mortgage, 224. Of common carrier, 61. For taxes, 400. Not an " adverse claim," 49. Complaint in action to enforce, 378. Limitation of Actions. Generally, 201. Retrospective action of limitation stat- utes, 201. When statute begins to run, 201. Acknowledgements, new promise, part payment, 204. Power of partner to revive claim barred, 357. Statutemay run against one partner only, 259. Wlien action by surety for money paid accrues, 33. See Constitutional Law, 68. See Executors and Administrators, 165. See School Trustees, 381. Liquors. Requisites in action for price of, 33. Liveryman. His duties, (IC), 18. Loan, 19. Locatio kei, 18. LOGS, 205. Proof of contract of sale, 149. M MALICE, 206. INDEX. 503 Bequisite in false imprisonment, 4o. Implied from illegal arrest, (10, 7. MALICIOUS PROSECUTION. 206. Evidence in, 1G2. MANDAMUS. Alternative writ, 307. Peremptory writ, 207. When it will issue, 208. When it will not issue, 208. Practice, 209. Mandatory. Liabilities of, 19. Mandatory Statutes. See Statutes, 388. Mandatum, 19. Manslaughter in the Second DsaBBE, 108. Marriage. Evidence of, 154. Married Women. See Husband and Wife, 180. Her separate property, averment of, 266. Master of Boat. May sue for freight, 54. Liable for lost goods, 54. MASTER AND SERVANT. Master's Liability, 310. Who are servants, 211. Material Evidence, 140. Meander Line. In XT. S. survey, 176. MECHANIC'S LIEN. Generally, 212. Who^may acquire, 212. Persons and property bound, 313. When it attaches, 213. Filing the notice, 214. Assignment of lien, 214. Forfeiture of lien, 214. Effect of giving note, 214. Sub-contractor's rights, 315. Repeal of lien statutes, 315. MEEKER COUNTY, 215. MERGER, 215. Of attomey''s lien, 16. Of sclwol districts, 380. Method of Passing Bills. See Constitutional Law, 63. MILLS AND DAMS, lie. See Water-courses, 414. MINNEAPOLIS & CEDAR VAL- LEY R. R. CO., 216. MINN. & NORTH-WESTERN R. R. CO., 216. Misjoinder of Defendants, 56. Misnomer, 90. Mississippi Biver. A namgahle river, 412. Money Had and received. Action for, 30. Complaint in, 274. Evidence in, 160. Money paid on illegal contract, 79. Against agent, (17), 4. Money Paid. Action for, 30. Money Lent. Action for, 30. MORTGAGES. Generally, 217. When deed is a mortgage, 217. Mortgagor, 218. Assignee of mortgagor, 219. Mortgagee, 219. Mortgagee's assignee, 223. Validity of mortgages, 223. Lien of mortgage, 234. Discharge of mortgage, 225. Mortgage by deposit of title deeds, 325. Tacking, 225. Foreclosure, 226. Preemptor may execute for purchase mon- ey, 408. School trustees no power to mortgage, 381. Bights of mortgagor who has assigned for benefit of creditors, (14), 10. Mortgagor who has conveyed may ask for cancellation of mortgage, 54. Parties to action to foreclose, 56. Action to cancel foreclosure, 49. Action to cancel mortgage, 47. Averment of legal and valid sale, 266. Averment of ivant of notice, 266. 504 INDEX. Complaint in action to set asidejnortgage on homestead, 279. Sale, by whom made, 230. Counter claim against mortgagee, 42. Mortgagee liable in money had and re- ceived, 30. Mortgagee not liable in ejectment, when, 44. Beplevin by mortgagee for severedtimber, 41. Beplevin by mortgagee for timber remov- ed, etc., 42. Motions, 364. MUNICIPAL CORPORATIONS. Generally, 233. Power to license, 233. Power to collect taxes, 234. Assessment for improvements, 234. Lialjility to contractor, 235. Liability for Injury to individual, 235. Not liable for building destroyed to stay conflagration, 69. Legislature can appoint officers, 72. Complaint in action by contractor against, 278. MUBDBK, 107, Indictment for, 93. MuKDBR IN Second Degree, lOS. N NAME, 263. Kegative Pebgnant, 285. NEGLIGENCE. Generally, 237. When actionable, 237. When a bar to an action, 238, 39. Discharge of indorser by banker's negli- gence, 38. Contributory negligence matter of de- fense, 38. Degree of contributory negligence to bar recovery, 38. Cashier of bank liable for his negligence, 38. Falling of defendant's wall, 39. No defense that strangm- contr'ffjuied, 39. Limitation of common carrier'' s liability for, 58. Action for, 38^ Runaway team, (87) 40. Evidence of, 155, 160. Averments of, 266, 268. Of railroads, 372, 373. See Master and Servant. Negotiable Instrument. See Notes and Bills, 344. Complaint on, 27a. NEW TRIAL. Generally, 239. Erroneous examination of witness, 239. Admission or exclusion of evidence, 239. Misdirection or omission of court, 240. Verdict not justilied by the evidence, 241. Variance, 241. Irregularity or misconduct of jury, 241. Surprise, 342. Newly discovered evidence, 242. Trial by referee, 243. The motion, 243. Costs, 244. In criminal cases, 106. New Matter. Allegation of, 285. New Promise, 204. Newly Discovered Evidence. Ground for new trial, 242. Nolle Prosequi, 101. Non-Payment. JDfotice of. See Notes and Bills, 347. Non-Performance. What no excuse (10 et seq.) 29. Non-Suit, 311. NOTES AND BILLS. Requisites, 244. What is a negotiable instrument, 344. Maker, 245. Indorser, 245. Indorsement, 245. Title, how transferable, 246. Acceptance, 247. Presentment and notice of uon pay- ment, 247. Protest, 248. INDEX. 505 Defenses, 218. Presumptions arising from possession, 249. Bona flde holder, who is, 248. Action on, 34. GanceUing notes, 48. Note made on Sunday void, 34. Proof of title to, 157. Effect of note on mechanics^ lien, 214. Wo action lies for balance due. being illegal interest, 34. No action wlien mortgage security is un- exhausted, 34. Want of delivery or consideration as defense, 35. Note must be produced before recovery,^ 34. Assignment of carries what right of ac- tion, (10) 10. Assignment of carries right to sue for conversion, 40. Oan- Trustees of school district make? 34. See School Trustees, 381. NOTICE, 250 By deed, 120. Of mortgage sale, 228. To Sheriff of stranger's claim to prop- erty seized, 384. Of attorney's lien, 16. To purchaser of stolen bonds, 22. To purchaser, 413. To purchaser of man's name, 236. To purchaser of pendente Z*fe) 191. To stranger of County Gommissioners power, 82. To sureties on appeal bond, 22. Express notice of chattel mortgage not required, 26. Defective abstract no excuse for want of 1. By agent, proof of, 154. In garnishment, 174. Notice op Trial, 306. MoTiCE TO Quit. When not iiecessary in ejectmeni, 44. NUISANCE, 232. Action for, 43. 64 Parties to action to abate, 56. Nullities, 318. O Objections, 310. Objection to Contracts. Laws impairing, 65. Officer de facto, 254. OFFICE AND OFFICER, 253. Generally, 253. Qualifications, 253. Who is entitled to an office, 253. Vacancy, 253. Officer de facto, 254. Compensation, 254. Requisites of defense where he takes goods from possession of stranger, 41. Affidavit of ownership by stranger, 89. Officer of the United States. Who must sue on note taken by, (24) 5. Official Bond. Oomplaint on, 275. Official Trusts. (See 'Trusts and Trustees, 403. Gomplaint in action to enforce, 279. Official Neglect. Indictment, 95. Orders, 365. Orders to Show Cause. 365. ORDINANCE OF 1787, 254. Original Promise. See Statute of Frauds, 591. Ownership. Aeermsnt of, 267. Evidenceof, 156. P Parol Evidence, 143. Parties, 52. Generally, 52. Plaintiff, 52. Defendant, 54. On certiorari, plaintiff's, (1) 24. Change of pendente lite, 1. To action on note given to U. S. officer, (24) 5. . :t()6 TXDKX. Tu iiijanctioii for reatraining nuisance, 186. Plaintiff in action for nuimnce, (118) 43. PARTNERSHIP. What constitutes, 355. ' Rights of partners among themselves, 250. Power of a partner, 257. Liability of ]):irtnership to third per- son, 258. Partnership real estate, 239. Admissions by one partner, 259. Evidence o'f partnership, 259. Liability of to creditor of partner, 260. Actions by and against, 260. Interest of partner attachable, 13. Complaint in actions by or against, 272. Evidence of membership, 157. Part Payment, 204. Passenger, Common Carrier of, 58. Power. See Bailment, 18. Payee op Note. Averment that plaintiff was, 267. Payment. Evidence of, in full or in part, 157- Eoidence of, 157. By commercial paper, 78. Appropriation of payments, 78, What is, (28) 76. PAYMENT INTO COURT, 260. Penalties. Relief against, 133. See Interest, 188. Peremptory Mandamus, 207. Performance. Place and Time of, 77. Excuse for non-performance, 78. Personal Property. Action for recovery of possession, 41. Action for injury to, 39. Sec Resulting Trust in, 406. Personal Representation. Of person killed, etc., action by, 45. Evidence in action by, 162. Action by to remove cloud from title, 49. Petit Jury, 98. Petit Treason, 106. Place of Bringing the Action, 301. Place of Trial for Crimes, 97. Plat. Insufficient averment of regularity, 269. Proof if record, 158. Sufficient averment of legal platting, 267. PLEADING. Before tlie code, in equity, 202. Under the code, 262. General rules, 262. What should be pleaded, 363. How facts should be pleaded, 264. Particular averments, 264. . Verilioation of pleadings, 269. Construction of pleadings, 370. Complaint, 270. Answer, 280. Reply,' 289. Demurrer, 290. Supplemental Pleading, 292. Defects In pleading and remedies against, 292. Waiver of defects in form and service of pleading, 294. Defects aided by verdict, 294. Complaint on recognizance, 377. Between town site claimants, 409. /ft forcible entry and d., a failure to deny notice admits it, 168. Complaint by contractor against city, 233. In Justice's Court. 18. Pledge. See Bailment, 18. Police Power. Goer railroads, 72. Polling the Jury, 316. Polygamy, 107. Indictment for, 94. Possession. Averment of on given day, 267. Evidence of, 156. Postponment of Foreclosure Sale. Insufficient averment of irregularity, 269. POWER OF ATTORNEY, 295. PRACTICE, 295. INDEX. 507 Before code, iu equity, 298. UiKler the code, 298. Suiiiiuons, 298. Appeaniuoe, 300. Removal of actions to U. S. Courts, 300. Place of bringing the action, 301. Attachment, 301. Claim and delivery of personal prop- erty, 302. Injunctions, 303. Dismissal or discontinuance, 304. Stay of proceedings, 304. Commission to examine witness out of State, 304. Trial generally, 306. Trial by jury, 307. Trial by the court, 318. Trial by reference, 319. The judgment, 331. The execution, 331. Supplemental proceedings, 336. Costs, 336. Review in District Court, 339. Review in Supreme Court, 341. Motions, 3G4. Orders, 365. Amendments, 366. Dismiisal of action to foreclose, etc., 326. Contesting elections, 138. Summoning jurors on special venire, 191. In Supreme Court, only questions raised below, 85. On appeal from Board of County Com- missioners, 84. Setting aside notice of re-trial in eject- ment, 45. Costs in same, 45. On mandamus, 309. On certiorari to Justice's Court, 86. On appeal from R. B. Commissioners, 373-4-5-6-7. On remew in criminal cases, 104. See jSTew Trial, 243, 244. See Prohibition, Writ of, 370. Pkater. In com/plaint, 273. Pee-emption. See U. S. Lands, 407. See School Land, 382. Contract hy pre-emption illega'', 79. Pre-emptory mortgage, 333, 408. PRELIMINARy PkOOF, 143. Presentment. See Notes and Bills, 347. PRESCMPTION.-i, 139. As to crimes, 101. As to official character, 253. Arising from possession of notes, etc., 249. In favor of justice's judgment, 193, 195. As to lime of issuing attachment, (21), 15 As to time of issuing summons, (23), 15. As to engineer'' s 'performance of duty, 373. As to aiiorney''s authority, (4), 16. Alto publication of a law, 388. In favor of tax proceedings, 398. In favor of corporate act, 81. As to knowledge of sureties on appeal bond, (6) 22. That consignee is owner, 20. PRINCIPAL AND SURETY. When the relation exists, 368. Liability of surety, 368.. Surety's rights and remedies, 368. Surety, how discharged, 369. Contribution, 370. Surety^s defense, 34. Private Agents. See Agency, 3. Probable Cause. Defined. 207. PROHIBITION, WRIT OF, 370. Provocation as Defense, 96. Promise to Pay Debt, etc., of An- other. Sufficient averment of, 367. See Statute of Frauds. PROittissORT Notes. See Notes and Bills. Actio7i to settle adverse claims arising from, 46. Protest. See Notes and Bills, 248. Public Agent. See Agency, 3. PuBLir Officer. 508 INDEX. LiabilUff of TJ. S. officer for moTiey had and received, 31. Public Printing, 371. PURCHASER PENDENTE LITE, 371. Purchaser. See Judicial Sales, 191). At mortgage sales, 227. Q_ Qualification of Officeh, 353. Qualified Denial, 384. Quantum Mekuit. Action on, 37. When special contract exists, (3) 73. Evidence of, 158. Questions of Fact, 313. What is. 78. Questions op Law, 313. FaJ,se imprisonment, 166. Questions of Law and Fact, 313. Fraudulent conveyance, 171. Quit-claim Dbbd, 121. R RAILROADS, 372. Liable for incumbering street, 43. Police power of State, over, 72. Percentage of receipts in lieu of taxes, 70. See Common Carrier of Passengers, 58 et seq. Rape. Indictment for, 93. Ratification. See Agency, 5. By principal of agent's unauthorized act, (20 et seq.) 4. Real Party in Interest. Must be plaintiff, 52. Real Pkopbbty. Of partnership, 257. Action for injuries to, 43. Action for possession of, 44 et seq. Complaint in action to recover posses- sion. 278. Re-argument, 251, Receiver. To absconding debtor, 118. Recision of Contract, 73, 132. On sale of land, (145) 47. RECOGNIZANCE, 377. Complaint on, 275. Averment of, 268. Recommittal. Of an award, 7. RECORDING LAWS, 377. Recording deeds, 120. Evidence of contents of record, 158. See Notice, 250. Redemption. Prom mortgage «ai!e,'231. From -execution sale, 336. From tax sale, 400. By fraudulent pledgo; 18. Referee. Power of court over report, 86. See Trial by Reference, 319. Reformation. Of contract, 133. Regents of the University of Min- nesota, 378. Register of Deeds, 84. May require what certificate as to taxes before recording, etc., (30) 32. Relevant Evidence, 140. Remedies, Laws Regulating, 66. Remittitur, 351. REMOVAL OF CAUSES TO U. S. COURTS, 378, 300. REPLEVIN, 378. In Justice's Soiirt, 196. Parties to action on replevin undertaking, 56. Complaint on replevin bond, 275. See Action for Claim and Delivery, Etc., 41. Repeal of statutes, 389. Repudiation. INDEX. 5011 By principal of agent's acts, (25 et sea.), 5. ItEPLY, 289. Res Adjudicata, (1), 169. Resulting Tkust. See Trusts and Trustees, 403. Retirement of Jury, 310. Re-tkial in Ejectment, 45. Retrospective Statutes. See Statutes, 388. Return of Award. See Arbitration, 7. Riparian Rights. See Water-courses, 414. Requests to Charge Jury, 313. Request. Sufficient averment of special, 208. Review in District Court, 339. Dismissal of appeal, 339. Dismissal of action, 339. Appeal as waiver, 339. Principles of determination, 339. Trial on appeal, 339. Judgment on appeal, 340. Certiorari wlien it lies, 340. Affidavit for certiorari, 341. Source of writ, 341. Return of writ, 341. Principles of determination, 341. Judgment, 341. Review in Supreme Court. Generally, 341. On appeal, 352. On writ of eri'or, 362. Revocation. Of dedication, 127. Of new promise, 205. Reward. Officer not entitled to, 254, 386. Rights and Liberty of the Citizen. See Constitutional Law, 72. Right of Every Person to a Certain Remedy in the Laws. See Constitutional Law, 67. Roads. Averment of opening, 269. Evidence of petition for, 157. LiabUity of county fur opening, 83. Runaway Team. Action for injury occasioned by, 40. s ST. ANTHONY, CITY OF, 392. ST. ANTHONY FALLS WATER POWER CO., 393. ST. PAUL, CITY OF, 393. Ari'est under fire ordinance, (3), 8. ST. PAUL AND PACIFIC R. R. CO., 394. Sampi,e. Sale by, 379. SALE OF PERSONAL PROP- ERTY, 397. Rescinding fraudulent contract of , 73. Evidence of, 158. Sale op Real Property. Action on, 36. Satisfaction op Judgment. In garnishment, 175. See Judgment, 330. SCHOOL DISTRICTS. Generally, 380. Power of the district, 380. Power of ti'ustees, 381. District records, 381. Ratification of unauthorized contract, 381. Evidetice of, 154. Action on note of Trustees, 34. Can Trustees make a note? (47) 34. SCHOOL LANDS, 382. Seals. Use of separate seal by corporation officers, harmless, (2) 20. SEARCH WARRANT, 382. Second Trial in Ejectment, 45. Secondary Evidence, 142. SECRETARY OF WAR, 382. Seizin, Covenant of. When broken, 30. Seduction op Daughter. Ecidence of 162. Self Defense, 95. 510 INDEX. Settlement. Evidence that it was fair, 157. setfing aside indictment, 91. Set off. See Pleading, 281. Attaches to judgment in hands of as- signee (8) 9. Sham Pleading, 293. SHERIFF. Liability, 383. Duty in claim and delivery, 383. Custody of property, 383. Kiglit to sue in aid of process, 383. Liability to suit of third person, etc., 381. Sheriff's sale, 384.. Sheriffs return, 385. Deputy, 386. Fees, 386. JSxeeuting chattel mortgage, 26. Demand on before suit, 51. Action by in aid of process, 46. See Judicial Sales, 190. Sheriff's Sale. Ecidence of, 159. SIGNING, 386. Moidence of signature, 158. SidUX HALF BREED SCRIP, 386. Special Damages. How pleaded, 273. SPBCii'ic Performance, 129. Parties to action for, 56. Action for, 46. SLANDER AND LIBEL, 386. Stage Companies. Liabilities and duties, 58. STAMPS, 388. State of Minnesota. Competent plaintiff, 53. Control over XT. S. land, 407. STATUTES. Generally, 388. Construction of, 389. Eepeal of, 389. Retrospective action as to chattel mort- gage, 25. Effect of repeal of meehanid's lien stat- ute, 215. Actions giceni by, 45. Sratute Laws of Another State. Evidence of, 158. Not judicially noticed, 139. Presumed to be same as our own, (11 et seqj 139. STATUTE OF. FRAUDS, 390. Relief against, 133. No defense to executed contract, 29. Statutes of Limitations. See Limitation of Actions, 200. Stay of Proceedings, 304. In Supreme Court, 351. Steamboat. Evidence of ownership, 159. STIPULATION, 392. See Attorneys, 17. Stockholders. In corporations, 81. See St. Anthony Falls Water Power Co., 393. Stolen Bonds. What notice to purchaser, 22. Street Assessment. Is taxation, 70. Striking out Pleadings, 292. , Strict Fokeclosukb, 226. Substitution op Parties, 57. Suitors. Control of court ovei-, (3, 9), 85. Summons. Action how commenced, 298. Form and contents, 298. Service how made, 299. Service where made, 299. Service on partnersliip, 299. Service by publication, 299. Proof of service,; 300. Exemption from service of army offi- cers, 300. Summons in partition, 300. Sumnmn in garnishment. 174. INDEX. 511 Summoning Petit Jdkors, 98. Sunday. Note made on, void 34, 79. sopplementai, pleading. 292. Supplemental PkocbbdinGS, 336. supueme couiit, 8.0, Taking opinion of, bj' Legislature, 64. Sttbety. See Principal and Surety, 368. Averment of extension of time to debt- or, 368. On appeal bond has notice of levy, (6), 22. SUKPRISE. See New Trial, 242. Swearing Jury, 99. T Tacking, 225. Taking Illegal Fees. Indictment for, 94. Taking Private Puoperty for Pdblic Use. See Constitutional Law, 69. TAXES. Requisites, 395. For what taxes may be levied, 396. What is taliable, 296. What is not taxable, 396. Listing property, 397. Equalization of the roll, 398. When delinquent, 388. Delinquent list, 398. Collection of the tax, 398. Presuinptions, 398. Sale, 398. Purchaser, 399. Redemption, 400. Tax deed, 400. Tax Lien, 400. Actions to test validity of tax proceed- ings, 400. Power of city to colUet tax, 234. Liability of county for illegal taxes col- lected, 83. Money paid for not recomraUe, when, 32. Amount Meeker county could levy, 315. Cash valuation of property, 71. Uniform valuation if property, 71. Laws legalizintj, 70. Ejectment not an action to test validity, etc., 44. See Constitutional Law, 70. Averment of levy and assessment, 268. Complaint in action to assail, 278. Complaint in action to enforce lien, 278. Teacher. See School Districts, 381. Temporary In.tunction, 185. TENANTS IN COMMON, 401. Not liable to co-tenant for money had and received, 31. Tender, 23, 78. Before suit, 51. Of deed not necessary, 51. Of U. 8. legal tender notes, good, 52. Coupled with condition, 52. Averment of, 268. See Vendor and Purchaser, 412. Time of an Act. Insufficient averment of, 209. Title to Land. Evidence of, 1.59. Possession evidence of, 156. TOWNS, 401. Authorizing cattle running at large,(3), 24. TovyN Bounty Bonds. Laws legalizing, 68. Town Site Act. See U. S. Land, 408. TRANSIT R. R. CO., 402. Trespass to Real Property. See Civil Action, 42, 43. Trespass db Bonis. See Civil Action, 39. Trial by the Court, 318. W!tat is a trial, 318. Findings, 319. Filing decision, 319. Order for judgment, 319. Trial by Jury. Waioer of, 64. See Constitutional Law, 64. See P. .actice, 307. Trial by Reference. Geiiei-ally, 319. 512 INDEX. Eeferee's power, 320. The report, 320. Findings, 320. Judgment on report, 320. Trial of Issues of Fact under Order OF Court, (144), 312, 318. Triers, 99. Trover. See Civil Action, 39. TRUSTS AND TRUSTEES. Trusts, how created, 403. Official trusts, 403. Who are trustees, 403. Resulting trusts, 405. Trustees, 406. Cestuis que trust, 407. Action between claimants under official trust, 46. Action to enforce, 47. Resulting trust in assignor, (15) 16. Trustees of School Districts, 381. Liability on notes, (10 et seq.) 3. u Ultra Vires. Xo defect that defendant's act was, (7), 29. United States grants, 176. United States Courts. Concurrent Jurisdiction xoith State courts, 86. UNITED STATES LANDS. Generally, 407. Preemption act, 407. Town site act, 408. See Sioux Half-breed Scrip, 386. See School Land, 382. United States Legal Tender Notes, A good tender, 52. Act constitutional, 65. UNITED STATES MARSHAL, 410. Holding property against State process, (91), 40, (107), 42. United States Officer. Defense in trespass, 40. UNITED STATES PATENT, 410. Uncertainty. See Contracts, 80. See Pleading, 293. In bond for deed, effect of, (7), 23. UNDERTAKINGS, 411. Action on, 35. Unlawful Possession. InsufUcient averment of, 269. Until. Defined, 75. Use and occupation. Action for, 33. Complaint for, 374. Contract express or implied necessary, 33. Uttering Counterfeit Bills. Indictment for, 94. V Vacancy in Office, 253. VACATION OF PLATS, 411. Vacant Land. Bvidenee of, 153. Validity of Deed, 119. Validity of Mortgage, 223. Value. Of Services, insufficient averment of, 269. Evidence of, 159. Use and occupation, averment of, 268. Variance, 308. See New Trial, 241. Verbal Agreements. See Equity, 131. See Statute of Fi-auds, 391. VENDOR AND PURCHASER. Vendor, 412. Vendor's assignee, 412. Purchaser, 413. Defense in action for purchase money, 37. See Civil Action, 36. Venire. Summoning special, 99. Venue. Change in criminal cases, 97. Verification op Pleadings, 269. INDEX. 518 Verdict of Jury, 316. On appeal from R. R. Oommissioners, 377. In criminal cases, 100. VeStud Kights, OG. Void Contract. . For ilUgaliiy, 79. For uncertainty, 80. VOLUNTARY 4i3. CONVEYANCE, Voluntary Pukch.^sbr. Pendente lite, right to become party, 55. w Wagbr. Money bet on illegal wager recoverable, 31. Waiver. By appeal to District Court, 339. Of defects in form and service of plead- ings, 294. By appearance of garnishee, 173. Of trial by jury, 04. Of breach of contract, 80. Of defects in indictment, 92. War. Interest during, 188. WAREHO0SBMAN. His lien, 18. Warranty. Action on, 37. In sale of personal property, 379. 65 As to interest due on note asssigned, (69) 37. Of title, what is a breach? 36. WATER COURSES, 414. Wheat. * I'roof of contract to cut, 149. Wilful and Malicious Killing of Horses, etc., 110. WILLS, 415. Witnesses, 104. Who competent, 162. Liability for unattendance, 163. Criminating- questions, 163. Opinion of witness, 163. Impeaching witness, 163. Testimony on former'trial, 164. To award, 7. Examination of, 307. Re-examination of, 307. Work and Labor. Action for, 33. Complaint for, 274. Writ of Erkok. Who must bring, 362. Time for suing out the writ, 362. Effect of the writ, 362. Papers on writ of error, 362. When writ lies, 362. When writ does not lie, 363. What is reasonable in, 363. Relief granted, 364. Dismissal of the writ, 364. Wrongful Act or Omission. What is, 46.