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Full text of "Reports of cases decided in the Supreme court of the state of North Dakota"

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REPORTS OF CASES 



DECIDED IN THE 



SUPREME COURT 



STATE OF NORTH DAKOTA, 



FROM JUNE 1st. 1892 
TO MARCH 3d. 1894, 



Rules of Practice in the Supreme and District Courts 



EDITED BY 



JOHN M. COCHRANE, Reporter. 



:LrOI.U7UCB 3 



Okand Forks. N. D.: 
herald, state printers and binders 

1804. 



En|fred according to Act of Congress, in the year A. D., eighteen hundred and ninety-four. 

By JOHN M. COCHRANE, 

In the office of the Librarian of Congress, at Washington, D. C. 



(yd^ r<:y^ii,./d^ ////r 



OFFICERS OF THE COURT DURING THE PERIOD OF 
THESE REPORTS. 



Hon. J. M. Bartholomew of Bismarck, Chief Justice. 
Hon. Alfred Wallin of Fargo, and 

Hon. Guy C. H. Corliss of Grand Forks, Judges. 



R. D. HosKiNS, Bismarck, Clerk. 

John M. Cochrane, Grand Forks, Reporter. 



CONSTITUTION OF NORTH DAKOTA. 



Sec. ioi. When a judgment or decree is reversed or confirmed by the Supreme 
Court, every point fairly arising upon the record of the case shall be considered and 
decided, and the reasons therefor shall be concisely stated in writing, signed by the 
judges concurring, filed in the office of the Clerk of the Supreme Court and preserved 
with a record of the case. Any judge dissenting therefrom, may give the reasons of 
his dissent in writing over his signature. 

Sec. I02. It shall be the duty of the court to prepare a syllabus of the points 
adjudicated in each case, which shall be concurred in by a majority of the judges 
thereof, and it shall be prefixed to the published reports of the case. 



CASES REPORTED IN THIS VOLUME. 



A 

PAGE 

Aitchinson, McMillan v 1 83 

Akin, Bratthwaite v. 365 

Anderson, Ilaveron v 540 

B 

Baker, Edwards & McCuIUkH Lum- 
ber Co. V 170 

Barnes, State v. 131 

Barnes, -State v. _ 319 

Bartlett, Washburn Mill Co., v 138 

Bennett v. N. P. R. R. Co. 91 

Boucher, State v , 389 

Boutsson V. Fisher _ 493 

Boyum, Globe Investment Co., v. . . 538 

Bowdle, Power v 107 

Braithwaite v. Akin 365 

Branstetter v. Morgan 290 

Brewer, Fargo & S. W. R. R. Cu. v. 34 

c 

Canham v. Piano Mfg. Co. 229 

City of Fargo, Ludlow v 485 

Clark & Smart, Northern Dak. Elev. 

Co. V 26 

Clark V. Sullivan and Voss 280 

Cleary, Hutchinson v. 270 

Coler V. Dwight School Township. . 249 

Colonial & U. S. Mtg. Co. v. Stevens 265 

Comasky v. Nor. Pac. R. R. Co... 276 

Corrigan, Reeves & Co. V 415 

Curric, State v. 310 

D 

Danner, James River Lum. Co. v.. 470 

DeGroal, Hegar v. 354 

Dietrich, Dunn V 3 

Doty V. First Nat. Bk. of Larimore 9 

Duluth & Dak. Elev. Co., Gould v. 96 

Dunn V. Dietrich 3 

D. S. B. Johnson Land & Mtg. Co., 

Wesselv. 160 

Dwight School Township, Coler v. . 249 

E 

Edwards & McCulloch Lumber Co. 

v. Baker 170 

English v. Goodman 129 

Esterly Machine Co., Fahey v. 220 

F 

Fahey v. Esterly Machine Co 220 

Fargo & S. W. R. R. Co. v. Brewer 34 

First Nat. Bk. of Larimore, Doty v. 9 



PAca 

First Nat. Bk. of Lisbon, Parker v. 87 

Fisher, Bouisson v 493 

Francis & Southard, Miner v 549 

G 

Gauthier v. Rusicka I 

Getchell, State ^jf rel\ 243 

Gilman, Kellogg, Johnson & Co. v. 538 

Gilniore, Goose River Bank v 188 

Globe Investment Co. v. Boyum 538 

Goodman, English v 129 

Goose River Bank v. Gilmore 188 

Gould V. Duluth & Dak. Elev. Co. 96 

Grandin v. LaBar 447 

Granholm v. Sweigle 477 

H 

Halvorson v. Mtg. Bk. & Inv. Co.. 172 

Hanson, Mtg. Bk. & Inv. Co. v 465 

Hanson, Minn. Thresher Mfg. Co. v 81 

Haseleu, Prairie School Tp. v 328 

I lasledahl, State v. 36 

Haveron v. Anderson 540 

Hawthorne, Martin, v. 412 

Hegar v. DeGroat 354 

Hodgins.v. Minneapolis, St. P. & S. 

Ste. M. RJr. Co. 382 

Hutchinson v. Cleary. 270 

J 

James River Lumber Co. v. Danner 470 

Johnson, State v 150 

Jones, Taylor v _ 235 

Judge, State ex rel v 43 

K 

Kellogg, Johnson & Co. v. Gilman. 538 

Kerr, State v. 523 

L 

LaBar, Grandin v 447 

Larabee, Power v. 502 

Lemke, Nat. Bank of N. D. v 154 

Ludlow V. The City of Fargo 485 

M 

Martin v. Hawthorne. 412 

Marcks, State v. 532 

McCann v. Mtg. Bk. & Inv. Co.... 172 

McGahey, State v 293 

McMillan v. Aitchinson 183 

Mehus, Rosholt v 513 

Miller, Statev -. 433 



VI 



CASES REPORTED IN THIS VOLUME. 



FACE 

Minn. Thresher Mfg. Co. v. Hanson 8i 
Minneapolis, St, P. &S. Ste. M. R. 

R..Co. V. Hodgins 382 

Minneapolis, St. P. & S. Ste. M. R. 

R. Co. V. Nester 480 

Miner v. Francis & Southard 549 

Mtg. Bk. & Inv. Co. v. Hanson. _. 465 

Mtg. Bk. & Inv. Co., McCann v... 172 

Mtg. Bk. & Inv. Co., Williamson v. 172 

Mtg. Bk. & Inv. Co., Halvorson v. 172 

Morgan, Branstetter v. 290 

Morrison v. Oium 76 

N 

Nat. Bk. of North Dak. v. Lemke. 154 
Nester, Minneapolis, St. P. & S. Ste. 

M. R. R. Co. V 480 

Nomland, State v. 427 

Nor. Pac. R. R. Co. v. Comaskey. 276 

Nor. Pac. R. R, Co., Bennett v 91 

Nor. Pac. R. R. Co. v. Smith 555 

Nor. Pac. R. R. Co., Smith v 17 

Nor. Dak. Elev. Co., v. Clark & 

Smart 26 

o 

Oium, Morrison v 76 

Oium, Union National Bank v 193 

Olson, Wagner v. 69 

O'Neil V. Tyler 47 

P 

Parker v. First Nat. Bk. of Lisbon. 87 
Peoples Bank of St. Paul v. School 

Dist. No. 52 496 

Piano Mfg. Co. v. Root 165 

Piano Mfg. Co., Canham v 229 

Power v. Larabee 502 

Power v. Bowdle 107 

Prairie School Tp. v. Haseleu 328 

R 

Reeves & Co. v. Corrigan 415 

Roesler & White v. Taylor _ 547 



PACE 

Root, Piano Mfg. Co. v 165 

Rosholt V. Mehus _ 513 

Rusicka, Gauthier v ■ I 

S 

School Dist. No. 52, Peoples Bank 

of St. Paul V. 496 

Smith V. Nor. Pac. R. R. Co 17 

Smith, Nor. Pac. R. R. Co. v 555 

State V. Barnes _ 131 

State V. Barnes 319 

State V. Boucher 389 

State V. Currie 310 

State V. Getchell 243 

State V. Hasledahl 36 

State V. Judge of District Court 43 

State V. Johnson 150 

State V. Kerr 523 

State V. Marcks 532 

S>tate V. Miller 433 

State V. McGahey 293 

State V. Nomland 427 

Stevens, Colonial and U. S. Mtg. 

Co. v 265 

Sullivan, Clark v 280 

Sweigle, Granholm v 476 

t 

Taylor v. Jones 235 

Taylor, Roesler & White v 546 

Tyler, O'Neilv _. 47 

U 

Union Nat. Bk. v. Oium __. 193 

W 

Wagner v. Olson 69 

Washburn Mill Co. v. Bartlett 138 

Wessel v. D. S. B. Johnson Land & 

Mtg. Co 160 

Williamson v. Mtg. Bk. & Inv. Co. 172 

Y 

Yorke v. Yorke 343 



SUPREME COURT RULES. 



Rule I. 
Clerk's office, where.] Until otherwise directed by a rule of 
court, the Clerk of the Supreme Court shall keep his office at the 
capital of the state. When absent from the capital, the office 
shall be kept open, and the duties of the Clerk shall be performed 
by a deputy. The Clerk shall not practice as an attorney or 

counselor. 

Rule Ik 

Clerk, Duties of.] He shall keep a complete record of the 
proceedings of , the court, and shall perform all the duties pertain- 
ing to his office. " He must not allow any written opinion bf the 
court, or any original record or paper pertaining to his office, to 
be taken therefrom without an order from the court, or one of the 
judges thereof. He shall promptly announce, by letter, any 
decision rendered or order entered in any cause or matter, to one 
of the attorneys of each side, when such attorneys are not in 
attendance upon the court. 

Rule HI. 

Clerk's fees, deposit of.] The appellant, on bringing a 
cause to this court, shall, at or before the filing of the record, 
deposit with the Clerk of said court the sum of eight dollars, to 
apply on his' fees; and in all cases (except habeas corpus) origin- 
ally brought in this court, the plaintiff or petitioner, at or before 
the filing of the first papers in the case, shall deposit with the 
Clerk the same amount for the same purpose. 

Rule IV. 
Notice of appeal, how served.] The notice of appeal shall 
be served in the manner indicated by Section 4 of an act regulat- 
ing appeals, approved February 11, 1 891, and Chapter 23 of the 



Vlll SUPREME COURT RULES. 

Compiled Laws of 1887, and the acts amendatory thereto; and if 
not served ninety days before the first day of the next succeeding 
term of the Supreme Court, the cause shall not then be tried. 

Rule V. 
Writs of error, allowed when, how.] Writs of error in 
criminal causes shall be allowed in all cases from the final deci- 
sions of the District Courts to the Supreme Court. The party seek- 
ing the writ must apply to the Chief Justice of to one of the 
Judges of the Supreme Court, by petition, verified by affidavit, 
setting forth clearly anc> succinctly the chief matters of error 
complained of. All superfluities and unnecessary recitals must 
be excluded from the petition. Immediately after the issuing of 
the writ of error, a citation to the adverse party to be and appear 
at the Supreme Court, on a day and hour to be therein designated, 
shall be issued by the Clerk of this court, and by him delivered 
or sent by mail to the plaintiff in error or his attorneys, who shall 
cause the same to be served on such adverse party or his attorney 
at least ten days before such designated day. 

Rule VI. 
Citation, w^hen returnable.] When a sufficient time inter- 
venes, the citation provided for in the preceding rule shall be 
made returnable on the first day of the next succeeding term; 
otherwise it shall be made returnable on some day during such 
term; and writs of error in criminal cases may issue and citations 
be made returnable on any day during term time. 

Rule VII. 
Writ of error, when filed.] When a writ of error is 
allowed and issued, it shall be the duty of the plaintiff in error 
forthwith to file with the Clerk of this court the petition in error, 
and a failure to do so shall be cause for the dismissal of the writ; 
and such petitions shall be filed by the Clerk as of the day when 
the writ was allowed. 



SUPREME COURT RULES. Ik 

Rule VIII. 
Appeal how transmitted.] When an appeal is taken, either 
from a judgment or an order, (except in cases where by special 
order of the District Court copies are sent to the Supreme Court in 
lieu of the originals,) the Clerk .shall transmit the original 
judgment roll or order and papers used upon the motion as 
required by Section 5 of an act of 1891 regulating appeals. 
Whether the original or copies are transmitted, the judge's certifi- 
cate or a copy thereof as prescribed by Rule 12 must be appended 
to the record in all cases. The original notice of appeal and 
undertaking must be transmitted to the Supreme Court. Where 
original papers are sent up, the certificate ot the Clerk of the 
District Court must conform substantially to the requirements of 
said Section 5. Where copies of the record on appeal are trans- 
mitted to this court, it shall be the duty of the Clerk of the 
District Court, without unnecessary delay, and within the periods 
limited by law, to make out a full and perfect transcript and copy 
of the judgment roll; or if the appeal is from an order, or any part 
thereof, a complete copy of such order, and of the papers 
upon which said order was granted, and the certificate of 
the judge, as prescribed by Rule 12 of these rules; or where 
a writ of error is sued out in criminal causes, a complete copy 
of the record and of all bills of exception, together with an 
assignment of errors, and prayer for reversal, and embracing the 
certificate of the Judge of the District Court provided in the Code 
of Criminal Procedure, Compiled Laws, Section 7510, and to 
certify the same under his hand and seal of the court, and trans- 
mit the same to the Clerk of this court, which certificate shall be 
substantially in the following form: 

[Form of Clerk's Certificate when the appeal is from a iiidgrnent in Civil Cases.] 

'^^l^.Z r^™. '!^^°^"' i - J— n.s...cx. 

I, A. B., Clerk of the District Court within and for the said County of , 

in the Judicial District of the State of North Dakota, do hereby certify 

that the above and foregoing papers are the original notice of appeal, with proof of 
service thereof, and the undertaking given thereon, and also the original judgment roll 
aad certificate of the Judge thereto appended (or full, true and complete copies of said 



X SUPREME COURT RULES. 

judgment roll and certificate, as the case may be) in the above entitled action, wherein 

is plaintiff and is defendant, as 

the same now remain of record in said court, and the same are transmitted to the 
Supreme Court pursuant to such appeal. 

In witness whereof, I have hereunto set my hand and affixed the seal of said court 
this day of , A. D. 189.. 

[SEAL.] 

Clerk. 

[Form of Clerk's Certificate when the appeal is from an order.] 

I, A. B., Clerk of the District Court within and for said County of , 

in the _ .Judicial District of the State of North Dakota, do hereby certify 

that the above and foregoing is the original notice of appeal, with proof of service 
thereof, and the original undertaking given thereon, also the original order from which 
an appeal is taken, with all the papers used by each party on the application for such 
order, with the certificate of the Judge attached thereto (or full, true and complete 
copies of such order, papers and certificate, as the case may be) in the above entitled 

action, wherein __ is plaintiff and ._ 

is defendant, as the same now remain of record in said court, and the same are trans- 
mitted to the Supreme Court pursuant to said appeal. 

In witness whereof, I have hereunto set my hand and affixed the seal of said court 
this day of , A. D. 189.. 

[seal. ] ._ _ 

Clerk. 



[Form of Clerk's Certificate in Criminal Case.] 

j-ss. Judicial District. 



STATE OF NORTH DAKOTA, 
County of 

I, A. B., Clerk of the District Court in and for the County of in 

the » Judicial District- of the Stale of North Dakota, in obedience to 

the annexed writ of error, do hereby certify and return that the above and foregoing 
is a true, full and complete copy and transcript of the record in this case, to-wit: the 
indictment, the minutes of the plea (or demurrer,) the minutes of the trial, the charges 
given and the charges refused, with all the endorsements thereon, and the judgment, 
all bills of exception, together with an assignment of errors and .prayer for reversal, 
and also of the original certificate of the Judge in the above entitled case, wherein the 

State of North Dakota is plaintiff and is defendant, as the same 

now remains of record in the said court, and the same are transmitted to the Supreme 
Court pursuant to said writ of error. 

In witness whereof, I have hereunto set my hand and affixed the seal of said 
court this day of , A. D. 189.. 

[SEAL.] 

Clerk. 

Rule IX. 
Respondent may require return to be filed, when.] The 
appellant shall caj^se the proper return to be made and filed with 



SUPREME COURT RULES. XI 

the Clerk of this Court within sixty days after the appeal is per- 
fected. If he fails to do so, the respondent may, by notice in 
writing, require such return to be filed within twenty days after 
the service of such notice, and if the return is not filed^ in pursu- 
ance of such notice, the appellant shall be deemed to have aban- 
doned the appeal, and on an affidavit proving when the appeal was 
perfected and the service of such notice, and a certificate of the 
Clerk of this court that no return has been filed, the respondent 
may apply to any Judge of this court for an order dismissing 
the appeal for want of prosecution, with costs, and the court 
below may thereupon proceed as though there had been no appeal; 
Prozndedy Tievertlteless, that this Rule shall have no application to 
cases where the respondent has elected to cause the record to be 
transmitted to the Supreme Court as regulated by the priviso 
contained in Section 5 of the act of February 11, 1891, regulating 
appeals. 

Rule X. 
Criminal causes to be placed first on the calender.] All 
criminal causes shall be placed first on the calender in the order 
of the date of the filing of the petition, and shall have precedence 
of all other business, and shall be tried at the term at which the 
transcript is filed, unless continued or otherwise disposed of; and 
shall, if practicable, be decided at the same term, and the presence 
of the defendant in the Supreme Court shall in no case be neces 
sary, unless specially ordered by the court. 

Rule XI. 
Order of civil causes on calender.] All civil causes shall 
be placed on the calender by the Clerk in the order of the filing 
of the transcript, and shall (with the criminal causes) be 
numbered consecutively from term to term in one continued 
series; and no civil cause shall be placed on the calendar after the 
day preceding the opening of the court, unless ordered by the 
court. 



xn SUPREME COURT RULES. 

Rule XII. 

Certificate of judge.] In all civil and criminal actions and 
in all special proceedings which are brought into this court, the 
Judge of the District Court shall append to the original judgment 
roll or record, filed in the court below, a certificate, signed by him, 
as follows: In civil actions and special proceedings the certifi- 
cate shall state in substance that the above and foregoing papers 
— naming each separately — are contained in and constitute the 
judgment roll (or other record as the case may be) and the whole 
thereof. The original certificate (or copy thereof) in cases where 
a copy is transmitted) must be embraced in the record sent to 
this court. The certificate required in criminal cases is indicated 
by Rule 8 of these rules. 

Rule XIII. 

Judgment roll, contains what.] The judgment roll men- 
tioned in Rule 8 must only contain the pleadings, the judgment, 
the verdict of the jury, or decision 6i the Judge, the report of the 
referee, if any, the offer of the defendant, if any, the bill of 
exceptions or statement of the case, as settled and certified by the 
court or Judge, and such orders and papers as have been, by 
direction of the court or Judge, incorporated into and made a part 
of the judgment roll; also all orders and papers which necessarily 
involve the mefits and effect the judgment. Bills of exception and 
statements of the case, whether to be used on a motion for new 
trial or on appeal without such motion must, when brought into this 
court, be framed in substantial conformity to the requirements of 
Section 5090, Compiled Laws of 1887, and if such bill or statement 
fails to contain the specifications of errors of law complained of, 
or, where the finding of fact is attacked, fails to specify the 
particulars in which the evidence is claimed to be insufficient, such 
bill or statement will be disregarded. When a bill or statement 
contains superfluous matter, or fails to contain the certificate of 
the trial judge, as specified in Rule 12 hereof, it will be liable to 
be stricken out on motion. The specifications required by statute 
to be embraced in bills of exception and statements are vital parts 



SUPREME COURT RULES. XIU 

thereof; and such specifications shall be either prefixed or 

appended to all bills of exception and statements, and shall be 

settled and allowed by the District Courts as essential parts 

thereof. Attention is directed to Section 5090 of the Compiled 

Laws of 1887. 

Rule XIV. 

Order of papers in judgment roll.] In making up the 
judgment roll or records in all cases to be brought to this court; 
the parties, and the Clerks of the District Courts, must arrange 
the process, pleadings, orders and proceedings in the chronolo- 
gical order provided in Rule 16 for the preparation of an abstract; 
and when a transcript is prepared for this court it must be plainly 
written, carefully paged, and the lines on each page carefully 

numbered. 

Rule XV. 

Assignment of errors.] In civil actions and proceedings the 
appellant shall subjoin to his brief an assignment of errors, which 
need follow no stated form, but must, in a way as specific as the 
case will allow, point out the errors objected to, and only such as 
he expects to rely on and ask this court to examine. Among several 
points in a demurrer, in a motion, in the instructions, or in other 
rulings excepted to, it must designate which is relied on as error, 
and the court will, in its discretion, only regard errors which are 
assigned with the requisite exactness. And in criminal causes 
the counsel for the plaintiff in error may also file a new assign- 
ment of errors in this court, specifically setting forth the errors 
he desires to have reviewed, as in this rule provided. The assign- 
ments of error must not quote or duplicate the specifications of error 
as appendecf or prefixed to bills and statements, but shall refer to 
the page of the abstract where the particular specification of error 
is found and also to the page or pages of the abstract in which the 
matter is found upon which the error is assigned. 

Rule XVI. 
Abstract— NUMBER of copies and service.] In all civil 
causes the appellant shall deliver or mail to the Clerk of this 



XIV SUPREME COURT RULES. 

court, twenty-jfive days before the first day of the term of the 
court at which the cause may be heard, nine printed copies of an 
abridgment or abstract of the record in the cause, setting forth so 
much thereof, only as is necessary to a full understanding of all 
the questions presented to this court for decision. He shall at 
the same time also deliver a copy of the same to the counsel for 
the respondent, and, if there be more than one respondent, to the 
counsel of each. The abstract shall be prepared and printed in 
substantially the following form: 

IN THE SUPREME COURT, 

STATE OF NORTH DAKOTA. 

Term, 189.. 

( Appellant or 
JOHN DOE, Plaintiff and -I Respondent, as 

( case may be. 
vs. 

i Appellant or 
RICHARD ROE, Defendant and -j Respondent, as 

( case may he. 

COMPLAINT. 
The plaintiff in his complaint states his cause of action as 
follows: 

(Set out all the complaint necessary to an understanding of the questions to be 
presented to this court, and no more.- In setting out exhibits, omit all merely formal 
irrelevant parts; as, for example, if the exhibit be a deed or mortgage and no question 
is raised as to the acknowledgement, omit the acknowledgement. When the defen- 
dant has appeared, it is useless to encumber the record with the summons or the return 
of the officer.) 

DExMURRER. 

To which complaint the defendant demurred, setting up the 

following grounds: 

(State only the grounds of the demurrer, omitting all formal parts. If a pleading 
was attacked by motion below and the ruling thereon is one of the questions to be 
reviewed, set out the motion, omitting all formal parts. ) 

And on the of 189. . the same was sub- 
mitted to the court, and the court made the following ruling 
thereon: 



SUPREME COURT RULES. XV 

(Here set out the ruling. In every instance let the abstract be made in the chrono- 
logical order of the events in the case — letting each ruling appear in the proper con- 
nection. If the defendant pleaded over, and thereby waived his right to appeal from 
these ru}ings, no mention of them should be made in the abstract; but it should 
continue. ) 

ANSWER. 

Which complaint the defendant answered, setting up the 

following defenses: 

(Here set out the defenses, omitting all formal parts. If motions or demurrers 
were interposed to the pleading, proceed as directed with reference to the complaint. 
Frame the record so that it will properly present all questions to be reviewed and 
raised before issue is joined. When the transcript shows issue joined, proceed.) 

On the day of '. 189. . said cause was tried 

by a jury (or the court, as the case may be,) and on the trial the 

following proceedings were had. 

(Set out so much of the bill of exceptions, or statement containing exceptions, as is 
necessary to show the rulings of the court to which exceptions were taken during pro- 
gress of the trial; and if the evidence or any part thereof be embraced in the bill of 
exceptions, or statement containing exceptions, epitomize the same by excluding all 
superfluous matter and unnecessary verbiage. Where a review of the verdict or find- 
ings of fact is sought upon the ground that the evidence is insufficient to justify the same, 
the evidence ^hall be reduced to a narrative form, except in those particulars where a 
rescript of the stenographer's report becomes necessary to preserve the sense or present 
the particular points of error. In statements, not less than in bills of exception, all 
superfluous matter, including all evidence not bearing upon specifications, is required 
to be rigorously excluded. A stenographic report of the trial, if settled and allowed, 
does not constitute a bill of exceptions or a statement of a case within- the meaning of 
the law, and will not be so regarded by this court. Questions propounded upon which 
no rulings are made, and objections followed by rulings against the successful party, 
should be eliminated from the record, unless their preservation is necessary to the sense.) 

INSTRUCTIONS. 
At the proper time the plaintiff (or the defendant, as the case 
may be) asked the court to give each of the following instructions 
to the jury: 

(Set out the instructions referred to and, continue:) 

which the court refused as to each instruction, to which several 
rulings the plaintiff (or defendant) at the proper time excepted, 
and thereupon the court gave the following instructions to the 
jury: 

(Set out the instructions.) 



XVI SUPREME COURT RULES. 

I 

To the giving of those numbered (give the numbers, if num- 
bered,) or (if not numbered) to the giving of the following 
portions thereof (setting out the portions,) and to the giving of 
each thereof, plaintiff (or defendant) at the proper time specifi- 
cally excepted. 

VERDICT. 

On the day of 189. . the jury returned the 

following verdict into court: 

(Set out the verdict.) 

(If the cause be tried by the court, instead of the instructions and verdict of the jury, 
set out so much of the finding of fact and conclusions of law» and requests for findings, 
if any, together with the exceptions relating thereto, as may be necessary to present 
the errors complained of.) 

MOTION FOR NEW TRIAL. 

On the day of 189.- the plaintiff (or 

defendant) served notice of intention to move for a new trial, as 
follows: 

(Here insert notice of intention, ommitting all formal parts.) 

On the day of 189. . the plaintiff (or 

defendant) moved for a new trial upon the grounds therein 
specified. 

On the day of 189. . the court made the 

following rulings upon said motion: 

Set out the record of the fruflng to which the plaintiff (or defendant) at the proper 
time excepted.) 

JUDGMENT. 

On the day of 189. . the following judgment 

was entered: 

(Set out the judgment entry (or order) appealed from.) 

On the day of 189. . the plaintiff (or 

defendant) perfected an appeal to the Supreme Court of the State 
of North Dakota by serving upon the defendant (or plaintiff, as 

the case may be) and the Clerk of the District Court of 

county a notice of appeal. 

(If supersedeas bond was filed, state the fact.) 

(This outline is presented for the purpose of indicating the character of the abstract 
or abridgment of the record contemplated by the rule, which like all rules, is to be 



r 



SUPREME COURT RULES. XVll 

substantially complied with. Of course, no formula can be laid down applicable to 
all cases. The rule to be ol|^erved in abstracting a case is: Preseri'e n'try iking 
maUrial to the question to be decided^ and omit ererything else. 

This rule, with some additions, has been borrowed from the rules of the late 
Supreme Court of the Territory, and we have continued it in force as a rule governing 
the preparation of abstracts of the record proper. But in this court we adopt it chiefly 
for still another purpose for which it is well adapted, viz: as a guide and rule to he 
cbserx>ed in framing statements and hills of exception to be settled in the District 
Courts, Bills of exceptions and statements must be framed substantially in accordance 
with the requirements of the statute and this rule of court. When so framed the work 
of abstractinf^ the record for use in this court will be reduced to the minimum, and will 
generally relate only to matters of form.) 

The abstract, when it consists of more than five printed pages, 
must be followed by an index of its contents. In exceptional 
cases where a reference to the record proper is desired the appcl 
lant must, by apt words, refer the court to such parts of the 
record as he desires to have examined. All material parts of the 
record shall be embodied in the abstract or amended abstract, and 
this court will, as a rule, decline to explore the record coming u.p 
from the District Court. 

Rule XVII. 

Respondent's abstract and service of.] If the respondent 
shall deem the abstract of the appellant imperfect or unfair, he 
may within fifteen days after receiving the same deliver to the 
counsel of the adverse party one printed copy, and deliver or mail 
to the Clerk of this Court nine printed copies of such further or 
additional abstracts as he shall deem pecessary to a full under- 
standing of the questions presented to this court for decision. 

Rule XVIII. 
Briefs — service of, etc.] Not less than twenty-five days 
before the first day of the term at which any civil cause may be 
heard, the counsel for the appellant shall serve upon the counsel 
of the adverse party one copy, and shall deliver or mail to the Clerk 
of this court nine copies of his brief; and not less than five days 
before the first day of such term the respondent shall serve upon 
the counsel of the adverse party one copy, and deliver or mail to 
the Clerk of this court nine copies of his brief; which brief shall 



XVIU SUPREME COURJ RULES. 

be printed, and shall contain a statement of the points relied on, 
and authorities to be cited in support of tRe same. 

Rule XIX. 
Printed briefs dispensed with in case of poor defendants 
— WHEN.] Rules i6, 17 and 18 are hereby made applicable as 
well to criminal causes, with the followinpf exceptions and modi- 
fications: When, because of the poverty of the defendant, 
counsel has been assigned to his defense, and such defendant 
makes and files with the Clerk of this Court an affidavit stating in 
substance that he is financially unable to pay the expense thereof, 
the printing of such abstracts and briefs may be dispensed with, 
and only eight copies each of the united abstracts and brief need 
be filed with the Clerk. And in all criminal causes the abstracts 
must be served by the plaintiff in error not less than ten days 
before the return day of the citation; and the amended abstract 
not less than three days before such return day, and the brief of 
the plaintiff in error must be served not less than six days before 
such return day, and the brief of the defendant in error not less 
than one day before such return day. 

Rules XX. 
Service of citation, abstracts, briefs, etc., in criminal 
CASES.] In all cases in which by law the Attorney General is 
required to appear for the state in this court, and in which the 
state is party, respondent or defendant in error, the notice of 
appeal or citation in error, as the case may be, and the abstracts 
and briefs prescribed by law or the rules of this court, shall be 
served upon the Attorney General; and in criminal causes the 
citation, abstracts and briefs shall also be served upon the State's 
Attorney of the proper county. 

Rule XXI. 
Notice of argument in criminal causes.] The manner of 
bringing on the argument in criminal causes, and the hearing 
thereof, are prescribed in Sections 489, 490, 491 and 492 of the Code 



SUPREME COURT RULES. XIX 

of Criminal Procedure. (Compiled Laws, 1887, Sections 7516, 

Rule XXII. 

Form and size of abstract, brief, etc.] JVU cases and 

points and all other papers furnished to the court in calendar 

causes, shall be printed on white paper with a margin on the outer 

edge of the leaf one and a half inches wide. The printed page, 

exclusive of any marginal note or reference, shall be seven inches 

long and three and a half inches wide. The folios, numbering from 

the commencement to the end of the case, shall be printed on the 

outer margin of the page. Small pica, solid, is the smallest letter 

and most compact mode of composition which is allowed. No 

charge for printing the papers mentioned in this rule shall be 

allowed as a disbursement in a cause, unless the requirements of 

this rule shall appear to have been complied with, in all papers 

printed. 

Rule XXIII. 

Number of counsel to argue cause— submission of cause on 
briefs.] Only two counsel shall be permitted to argue for each 
party in a cause, except in capital cases, and the court may limit 
the time to be occupied by counsel for each side, before the argu- 
ment shall commence; and any cause may be submitted on printed 

arguments or briefs. 

Rule XXIV. 

Argument — length of time, etc.] In the argument lof a 
cause, not more than one hour shall be occupied by counsel upon 
each side, exclusive of thc^time necessarily occupied in reading the 
record, unless by the express permission of the court, obtained 
before commencement of the argument. 

Rule XXV. 
Call of calendar — argument of causes, etc.] The court 
on the first day in each term shall commence calling the cases 
for argument in the order in which they stand on the calendar, 
and proceed from day to day during the term in the same order, 
(except as hereinafter provided,) and if the parties or either of 



■■:i^:^-t^ 






XX SUPREME COURT RULES. 

them shall be ready when the case is called, the same shall be 
heard. And if neither party shall be ready to proceed in the 
argument, the case shall go to the foot of the calendar, and be 
continued or dismissed, as the court may direct. 

Ten cases liable to call each day.] Ten cases only shall 
be considered as liable to be called on each day during the term, 
including the one under argument. 

Advanxement of CRIMINAL CAUSES.] Criminal causes may be 
advanced by leave of the court on motion of either party. 

Rule XXVI. 
Abstracts and briefs, how distributed.] The Clerk shall 
distribute the printed abstracts and briefs required by these rules 
to be furnished him, as follows: One copy of each to each of the 
judges when the case is called for hearing; on^ copy of each to 
the Reporter of the Supreme Court, and the remaining copies to 
be by him kept with the papers in the case. In criminal causes, 
when under Rule 20, the printing of briefs and abstracts is dis- 
pensed with, the Clerk shall deliver one copy of each to each of 
the judges, (two of which, upon the determination of the case, will 
be returned to the Clerk, one for the use of the reporter, and the 
remaining copy he shall retain with the papers in the case.) 

Rule XXVII. 
Motions, how noticed.] Motions, except for orders of course, 
shall be brought upon notice; and when not made upon the 
records or files of the court, the notice of motion shall be accom- 
panied by the papers on which the motion is founded, copies of 
which shall be served with the notice of motion. Motions shall 
not be taken up until the day following the service thereof, unless 
the case is sooner reached for hearing. Upon the hearing of a 
motion, or order to show cause, the moving party shall be entitled 
to open and close; Provided, that the papers on both sides shall be 

read in the opening. 

Rule XXVIII. 

Motions.] All motions for continuance and dismissal, and all 



SUPREME COURT RULES. XXI 

motions affecting the place of causes upon the calendar shall be 
noticed for the first day of the term, and will be for hearing 
previous to the calling of causes for argument. 

Rule XXIX. 
Re-hearing petitions.] Whether a decision is handed down 
in term time or in vacation, a petition for re-hearing will be enter- 
tained if five copies of the same be filed with the Clerk within 
twenty days after the decision is filed, and the remittitur will be 
stayed during the twenty days, except in cases where, by special 
order, the court shall direct that the remittitur be sent forth- 
with to the court below. The petition for a re-hearing shall be 
ex parte, and shall not be orally argued. The petition must be 
printed or type written, and shall briefly and distinctly state the 
grounds upon which the re-hearing is requested. It need not be 
served upon opposite counsel. Where a re-hearing is granted in 
term time, the case will not (unless by special order of the court) 
be re-argued at the same term except by consent. When the 
re-hearing is granted in vacation, and less than six days prior to 
the first day of the next regular term, the case shall not, except 
by consent or by special order of the court, be argued at such 
term. Re-arguments of cases shall ordinarily take precedence on 
the calendar of all other matters before the court except motions 

and criminal business. 

Rule XXX. 

Opinions of court.] The opinion of the court in all cases 
decided by it, whether originating in the Supreme Court, or reach- 
ing it by appeal or writ of error, will be reduced to writing and 
filed with the Clerk either in open court or in vacation. The court 
will also file written opinions upon all motions, collateral ques- 
tions or points of practice when the same are deemed exception- 
ally important. 

Rule XXXI. 

Costs, how taxed.] In all cases originating in this court the 
costs and disbursements will be taxed by the Clerk of this court. 
In other cases the costs and disbursements of both courts — except 



XXn SUPREME COURT RULES. 

the fees of the Clerk of this court, which shall be taxed by him 
without notice — shall be taxed in the District Court after the 
remittitur is sent down, and the amount thereof shall be inserted 
in the judgment of the court below. In civil cases the remittitur 
will not be transmitted until the fees of the Clerk of this court 
shall first have been paid. In all cases where parties are dissatis- 
fied with any bill of costs as taxed by the Clerk of this court the 
matter complained of will be reviewed in formally and readjusted 
by this court at any regular session thereof. 

Rule XXXII. 
Cause may be dismissed — failure to comply with rules.] 
A failure to comply with any of the requirements contained in 
these rules within the times therein provided will, in the discre- 
tion of the court, be cause for dismissal of the appeal, or writ of 
error, or affirmance of the judgment, as the case may demand. 

Rule XXXIII. 
Preparation of briefs.] In the preparation of briefs in 
causes to be argued in this court, counsel for appellant or plaintiff 
in error shall prefix to their brief or argument a concise and true 
statement of the facts in the case, which 'arc material to the points 
of law to be argued, with proper reference to the folios- of the 
abstract which sustain them, which statement may be read, or its 
substance stated orally to the court. No further reading of the 
abstract will be allowed without permission of the court. See 
Rule 1 5 as to assignment of error. 

Rule XXXIV. 
Dismissal of appeal affirms judgment.] The dismissal of 
an appeal is in effect an affirmance of the judgment or order 
appealed from, unless the dismissal be expressly made without 
prejudice to another appeal. 

Rule XXXV. 
Executions.] Executions signed by the Clerk, sealed with the 
seal of this court, attested of the day when the same issued, may 



SUPREME COURT RULES. XXlll 

issue out of this court to enforce any judgment for costs made and 

entered in cases which originate in this court. Such executions 

may issue and be directed to any Marshal of the Supreme Court 

of North Dakota, and may be enforced in any county in the state 

in which a transcript of such judgment for costs is filed and 

docketed. 

Rule XXXVI. 

Writs, how issued and returned.] All writs and process 

issued from and out of this court shall be signed by the Clerk, 

sealed with the seal of the court, attested of the day when the 

same issued, and made returnable at any day in the next term, or 

in the same term when issued in term time; and a Judge may, by 

endorsement thereon, order process to be made returnable on any 

day in vacation, when, in his opinion, the exigency of the case 

requires it. When process is made returnable in vacation, the 

court or Judge directing the same to issue shall state in the order 

allowing the same the time and place when and where the writ 

shall be returnable. 

Rule XXXVII. 

Defective return, how cured.] If the return made by the 

Clerk of the court below is defective, either party may, on an 

affidavit specifying the defect or omission, apply to the Chief 

Justice or one of the Judges of this court for an order that such 

Clerk made a further return and supply the omission or defect 

without delay. 

Rule XXXVIII. 

Attorneys, how admitted.] Applications for admission to 

practice at the bar of this state, when made upon a certificate 

issued by the courts of any other state, may be made at any 

regular or special term of this court. Such application shall be 

upon written motion made by a member of the bar cfi this court 

and filed with the Clerk, and with such motion shall be filed an 

affidavit, or the certificate of an attorney of this court, showing 

that the said applicant is at least twenty-one years of age, of good 

moral character and an inhabitant of this state, and that such 

applicant practiced law regularly in the state where he was 



7i->j?^*V'\ •'^ - 



XXIV SUPREME COURT RULES. 

admitted for at least one year after such admission. All other 
applications shall be made on the first day of a regular term of 
this court, and shall be upon like motion, and with such motion 
shall be filed affidavits, or the certificate of an attorney of this 
court, showing that the applicant possesses the qualifications, and 
has devoted to the study of law the time specified in Section 2 of 
an act approved March 7, 1891. If satisfied with such affidavits, 
the court shall appoint a committee of not less than three mem- 
bers of the bar of this court to examine such applicant touching 
his qualifications to practice as an attorney in the courts of this 
state. All examinations shall be had in open court unless other- 
wise directed, and when the examination is not had in ppen court 
the applicant shall not be admitted to practice except upon the 
unanimous written recommendation of the committee making such 
examination, which recommendation shall be filed with the Clerk 
and attached to and preserved with the motion and affidavits. 
But any party who has been or may be prior to July i, 1891, 
admitted to practice in the District Courts of this State, in accord- 
ance with the law in force at the time of such admission, may 
thereafter be admitted to practice in this court under the rules 
heretofore existing. This rule shall not take effect until July i, 1891. 



OkDERED: That the above and foregoing rules (38 in number) be, and the same 
are, hereby adopted as the Rules of Practice of the Supreme Court of North Dakota. 
Until abrogated or modified, said rules shall govern the practice in this court, and shall 
be considered supplemental to other provisions of law regulating the practice. Except 
Rule XXXVIII, which does not take effect until July i, 1 891, all of said rules shall 
take effect upon and after June 5, 189 1. 

Adopted at Bismarck, May 5th, 1891. 

CLERK'S CERTIFICATE. 

SUPREME COURT, { 

State of North Dakota. j" ^^' 

I, R. D. Hoskins, Clerk of the Supreme Court of North Dakota, do hereby certify 
that the above and foregoing Rules of Practice of the Supreme Court of North Dakota 
are true and correct copies of such rules as adopted by the court at a regular term 
thereof. 

Witness my hand and the seal of this court this 5th day of May, A. D. 1891. 
[L. s.] R. D. Hoskins, 

Clerk. 



DISTRICT COURT RULES. 



Rules I and II providing for examination of applicants for 
admission, are repealed by operation of Chapter 119, Laws 1891. 

Rule III. 
Papers tobeserved — endorsing attorney's residence.] 
On process or papers to be served, the attorney, besides subscrib- 
ing or endorsing his name, shall add thereto or endorse thereon 
his place of residence, and if he shall neglect to do so, papers 
may be served on him through the mail, by directing them accord- 
ing to the best information that can conveniently be obtained 
concerning his residence. This rule shall apply to a party who 
prosecutes or defends in person, whether he be an attorney or not. 

Rule IV. 
Several defenses or causes of action.] In all cases of 
more than one cause of action, defense, counterclaim or reply, the 
same shall not only be separately stated, but plainly numbered, 
and all pleadings not in conformity with this rule may be stricken 
out on motion. 

Rule V. 
FoLioiNG PAPERS.] The attorney or Other officer of the court 
who draws any pleading, affidavit, case, bill of exceptions, or 
report, decree, or judgment exceeding three folios in length, shall 
distinctly number and mark each folio of 100 words in the margin 
thereof, or shall number the pages and lines upon each page, and 
all copies, either for the parties or court, shall be numbered and 
marked so as to conform to the originals, and if not so marked 
and numbered, any such papers may be returned by the party on 
whom the same shall be served, and such service deemed a nullity. 



XXVI DISTRICT COURT RULES. 

Rule VI. 

Motions — notices— what notice shall contain.] Notices 

of motion shall be accompanied with copies of the affidavits and 

other papers on which the motions are made, except papers in 

the action of which copies shall have been served, and papers on 

file at the time of service of the notice, which shall be referred to 

in the notice. When the notice is for irregularity, it shall set 

forth particularly the irregularity complained of; in other cases 

it shall not be necessary to make a specification of points, but it 

shall be sufficient if the notice state generally the grounds of the 

motion. 

Rule VII. 

Motions and orders to show cause — default.] Whenever 
notice of a motion shall be given, or an order to show cause 
served, and no one shall appear to oppose the motion or applica- 
tion, the moving party shall be entitled, on filing proof of service, 
to the relief or order sought, unless the court shall otherwise direct- 
If the moving party shall not appear, or shall decline to proceed, 
the opposite party, on filing like proof of service, shall be 
entitled to an order of dismissal. 

Rule VIII. 

Hearing motions and orders to show cause — order of 

PROOF and argument.] On motion, the moving party, and on 

order to show cause, the party citing, shall have the opening and 

closing of the argument. Before the argument shall open, the 

moving party in the motion or order shall read his papers, or 

state the substance of their contents in support of the application; 

the adverse party shall then read his papers or state the substance 

of their contents, in opposition, and except in motions or orders 

to show cause on discharging of attachments, no evidence shall 

be allowed in rebuttal or avoidance thereof. No oral testimony 

shall be received on the hearing of any motion or order to show 

cause. 

. Rule IX. 

Order to show cause — when granted.] No order to show 



DISTRICT COURT RULES. XXVU 

cause returnable within less than three days from date of personal 
service thereof, or double that time if served by mail, shall be 
granted, unless a special and sufficient reason for requiring such 
shorter notice shall be stated in the papers presented upon appli- 
cation for the order. 

Rule X. 
Motions to strike out.] Motions to strike out of any plead- 
ing matter alleged to be irrelevant or redundant, and motions to 
correct a pleading on the ground of its being so "indefinitfe or 
uncertain that the precise nature of the charge or defense is not 
apparent," must be noticed before demurring or answering the 
pleading. 

Rule XI. 
Extending time to answer — affidavit of merits.] No 
order extending the time to answer a complaint shall be granted 
unless the party applying for such order shall present to the Judge 
to whom the application shall be made, an affidavit of merits or 
an affidavit of the attorney. or counsel retained to defend the 
action, that from a statement of the case made to him by the 
defendant, he verily believes the defendant has a good and sub- 
stantial defense upon the merits to the cause of action set forth in 
the complaint, or to some part thereof, and the affidavit shall state 
whether any, and what extension or extensions of time to answer 
or demur have been granted by stipulation or order, and where 
extension have been had, the date of issue shall be thirty days 
after the service of the complaint. 

Rule XII. 
Affidavit of merits— what it must contain.] In an affidavit 
of merits the affiant shall state that he has fully and fairly stated 
the case, and the facts in the case, to his counsel, and that the 
defendant has a good and substantial defense to the action, on the 
merits, as he is advised by his counsel, after such statement, and 
verily believes true, and shall also give the name and place of 
residence of such counsel. 



XXVUl DISTRICT COURT RULES. 

Rule XIII. 
Enjoining sale on execution or foreclosure.] In cases 
where a sale of real estate upon execution or foreclosure by 
advertisement is sought to be enjoined, the application for an 
injunction shall be heard and determined upon notice to the 
adverse party, either by motion or order to show cause, and no 
injunction in such case shall be allowed ex parte, unless the rights 
of the applicant would otherwise be prejudiced, nor unless a satis- 
factory explanation is furnished, showing why the application was 
not made in time to allow the same to be heard and determined 
on notice before the day of the sale. If such execution be issued or 
mortgage foreclosed by an attorney residing without the territory, 
service of such notice may be made by mail, addressed to him at 
his place of residence, according to the best information thereof 

readily obtainable. 

Rule XIV. 

Time to plead when demurrer overruled.] When a 

a demurrer is overruled with leave to answer or reply, the party 

demurring shall have thirty days aftbr notice of the order, if no 

time be specified therein, to file and serve an answer or reply, as 

the case may be. 

Rule XV. 

Change of venue— application for — affidavits.] A change 
of venue, or place of trial, will not be granted unless the party 
applying therefor uses due diligence to procure the same within a 
reasonable time after issue joined in the action, and the ground 
for the same shall have come to the knowledge of the applicant. 

In addition to what has usually been stated in affidavits con- 
cerning venue, either party may state the nature of the contro- 
versy, and both parties must show how their witnesses are material, 
and either party may also show where the cause of action, or 
defense, or both of them, arose, and these facts will be taken into 
consideration by the court in fixing the place of trial. 

Rule XVI. 
Taking papers from file.] No papers on file in a cause shall 



DISTRICT COURT RULES. XXIX 

be taken from the custody of the Clerk, except by the Judge for 
his own use, or a referee appointed to try the action, or by an 
attorney in the case on an order of the Judge. 

If a referee or an attorney shall take any papers filed in such 
action, the Clerk shall require a receipt therefor, signed by such 
referee or attorney, specifying tach paper so taken. 

Rule XVII. 
Trial by Referee — filing report.] Upon a trial of issues 
by a referee, such referee shall file his report in the Clerk's office, 
upon his fees being paid or tendered by either party. 

Rule XVIII. 

Filling undertakings and affidavits — penalty for not 
doing.] It shall be the duty of the plaintiff's attorney forthwith 
to file with the Clerk of the court, all undertakings given upon 
procuring an order of arrest, injunction or an attachment, with 
the approval thereon, and in case such undertaking shall not be so 
filed, the defendant shall be at liberty to move the court to vacate 
the proceedings for irregularity, as if no undertaking had been 
given, but such attorney may file such undertakings on terms to 
be fixed by the court, at any time. It shall also be the duty of 
the attorney to file at the same time and under the like penalty, the 
affidavits upon which an injunction or attachment has been 
granted, and also the affidavit upon which an order for the service 
of a summons by publication, or an order for a substituted service 
of a summons has been granted, together with an order for such 
service. 

Rule XIX. 

Sheriff to file papers.] The sheriff shall file with the Clerk 
the order or process and original affidavits on which an arrest is 
made, within ten days after the arrest is made. 

Rule XX. 
Neglect of sheriff — order to show cause.] At any time 
after the date when it is the duty of the sheriff or other officer to 



XXX DISTRICT COURT RULES. 

return, deliver or file any process or other paper, by the provisions 
of the Code of Civil Procedure, any party entitled to have such 
act done, may serve on the officer a notice to return, deliver or 
file, such process or other paper, as the case may be, within ten 
days, or show cause at a time to be designated by said notice, why 
an attachment should not issue agtinst him. 

Rule XXI. 

Filing motion papers.] When any order on a motion is 
entered, all the papers used on the motion shall be filed with the 
Clerk, unless otherwise directed by the court, or the same may be 
set aside as irregular. 

Rule XXII. 

Orders — service of.] A copy of any order made upon notice 
must be served with notice of the filing and entry thereof by the 
prevailing upon the adverse party, within ten days after notice of 
the decision upon which the order is based. 

If any time be by such order given for performance of an act it 
shall not commence to run untill such service. 

Rule XXIII. 
Injunctk)ns — ORDER TO SHOW CAUSE.] Whenever an injunction 
shall be granted, or a receiver appointed ex parte, the order grant- 
ing such injunction, or appointing such receiver, shall contain an 
order to show cause, returnable within ten days, why such order 
should not be continued in force. 

Rule XXIV. 
Attorney's stipulation— must be in writing.] No private 
agreement or consent between parties, or their attorneys, in 
respect to the proceedings in a cause, shall be binding, unless the 
same shall have been reduced to the form of an order of consent 
and entered, or unless the evidence thereof shall be in writing, 
subscribed by the party against whom the same shall be alleged, 
or by his attorney or counsel, where one shall have appeared for 
him in the action. 



DISTRICT COURT RULES. XXXI 

Rule XXV. 
' Application for judgment — after publication.] In any 
action for the recovery of money only, when the summons has 
been served by publication, under subdivision 3 of Section 104 of 
the Code of Civil Procedure, no judgment shall be entered unless the 
plaintiff at the time of making the application for judgment, shall 
show by affidavit that an attachment has been issued in the action, 
and levied on property belonging to the defendant, which affi- 
davit shall contain a specific description of such property, and a 
statement of its. value, and shall be attached to and filed with the 
affidavits of publication. 

Rule XXVI. 
Service by other than sheriff — what affidavit must con- 
tain.] If any other person than the sheriff make the service of 
the summons, and of the complaint or notice, if any accompany- 
ing the same, such person shall state in his affidavit of service, his 
age, or that he is more than 18 years of age, and when, and at 
what particular place he served the same, and that he knew the 
person served to be the person named in the summons as the 
defendant therein, and shall also state in his affidavit that he left 
with the defendant such copy, as well as delivered it to him. 

Rule XXVII. 
Continuance — motions for — affidavit.] All motions for con- 
tinuance shall be made within the first three days of the term, 
unless the cause for such continuance shall have arisen or come 
to the knowledge of the party subsequent to that day, and all 
affidavits for continuance on account of the absence of a material 
witness or material evidence shall show to the satisfaction of the 
court, by facts therein stated, that the applicant has a valid cause 
of action or defense in whole or in part, and if in part only he 
shall specify particularly to what part, and shall also show as 
aforesaid that he has used due diligence to prepare for trial, and 
the nature and kind of diligence used, and the name and residence 
of the absent witness or witnesses, and what he expects or 



XXXll DISTRICT COURT RULES. 

believes such witness or witnesses would testify to were he or 
they present and orally examined in court, or the nature of any 
document wanted, and where the same may -be found, and that 
the same facts cannot satisfactorily be shown by other available 
evidence. No counter affidavits shall be received on motions for 
continuance. No continuance shall be granted for the term, 
except upon such terms and costs as the court shall impose, and 
if the terms or costs shall be imposed the same shall be complied 
with or paid within 24 hours after the making of the order, or 
such continuance shall not be had. 

Rule XXVIII. 
Trial- EXAMINING witnesses — argument.] On the trial of 
actions before the court, but one counsel on each side shall 
examine or cross-examine a witness, and one counsel only on each 
side shall sum up to the jury, except with the permission of the 
court. Upon interlocutory questions, the party moving the court 
or objecting to the testimony shall be heard first. The respondent 
may then reply by one counsel, and the mover rejoin by one 
tounsel, confining his remarks to the points first stated and a 
pertinent answer to the respondent. Discussion on the question 
shall then be closed, unless the court request further argument. 

Rule XXIX. 

Verdict— presence of parties not necessary.] It shall not 

be necessary to call either party, or that either party be present 

or represented when the jury return to the bar to deliver their 

verdict. 

Rule XXX. 

Costs — re-taxation — notice of.] Where costs are taxed 

without notice in an action in which an appearance has been made, 

the party taxing shall forthwith serve upon the adverse party a 

copy thereof, in detail, and verified as prescribed by Section 387 of 

the Code of Civil Procedure, together with notice of re-taxation 

thereof, and that any sums deducted therefrom, upon such 

re-taxation, will be applied upon the judgment and execution in 

the action. 



DISTRICT COURT RULES. XXXlll 

Rule XXXI. 
Costs — taxation — motion to correct.] Within thirty days 
after taxation of costs by the clerk, but not afterwards, a motion 
may be noticed to be made before the court in term, or at 
chambers, by either party, to correct such taxation. Upon such 
motion, the court will review only the items objected to before 
the Clerk, and only upon the grounds and proofs submitted to the 
clerk at the time of taxation or re-taxation, as the case may be. 

Rule XXXII. 
Filing pecision — clerk to notify.] Upon the filing of any 
decision by the court or Judge, the Clerk shall forthwith give 
notice of such filing to the attorney of record of the successful 
party. 

Rule XXXIII. 

Entry of judgment— notice of.] Within ten days after 
entry of judgment in an action in which an appearance has been 
made, notice of such entry, together with a general description of 
the nature and amount, of relief and damages thereby granted, 
shall be served by the prevailing upon the adverse party. 

Rule XXXIV. 
Change of attorneys.] An attorney may be changed by 
consent, or upon application of the client, upon cause shown, and 
upon such terms as shall be just, by order of the court or the 
Judge thereof, and not otherwise. 

Rule XXXV. 

Motions — papers used on- to be filed and specified in 

order.] When any order on a motion, made upon notice, or on 

an order to show cause, is entered, all the papers used on the 

hearing of the motion, or order to show cause, shall be specified 

in the order and filed with the Clerk, or the same may be set aside 

as irregular. 

Rule XXXVI. 

Irregularity — waiver of— how waived.] A party upon 



XXXIV DISTRICT COURT RULES. 

whom a paper is served, shall be deemed to have waived any 
objection of irregularity -thereto, unless within forty-eight hours 
after the receipt thereof he return such paper to the party serving 
the same, with a statement of each particular objection to its 
receipt. 

Rule XXXVII. 
Motion costs — when paid.] In all cases where a motion 
shall be granted on payment of costs, or on the performance of 
any condition, or where the order shall require such payment or 
performance, the party whose duty it shall be to comply therewith 
shall have fifteen days for that purpose, unless otherwise directed 
in the order. And all further proceedings upon his part in the 
action shall be stayed until such payment or performance. But 
where costs to be adjusted are to be paid, the parties shall have 
fifteen days to comply with this rule after the costs shall have 
been adjusted by the Clerk, on notice; unless otherwise ordered. 

Rule XXXVIII. 
Calendar- motions to correct — when made.] All motions 
to correct the calendar, or to strike cases therefrom, shall be 
made by the second day of the term, and not thereafter. 

Rule XXXIX. 
Appeals from justice court — motions to dismiss.] Motions 
to dismiss appeals, except for want of jurisdiction, must be made 
by the second day of the term. 

Rule XL. 
Preliminary call of the calendar.] On the opening of the 
court on the first day of every general term thereof, the court 
shall call all actions on the calendar, for the purpose of determin- 
ing which are for trial by jury at such term, and they shall be so 
marked on the calendar. 

Rule XLI. 
General term— morning hour.] At the opening of the court 
on the morning of eaoh day, so much time as shall be necessary, 



DISTRICT COURT RULES. XXXV 

not exceeding one hour, shall be devoted to the hearing of such 
motions as relate to actions on the calendar for trial by jury, and 
to ex parte business. 

Rule XLII. 

D.4Y CALENDAR — HOW CONSTITUTED.] The first fivc jury causes 
shall constitute the day calendar for the first day of each general 
term. 

Prior to the adjournment of court on the first day of the term, 
the Clerk, under direction of the court, shall prepare a list of ten 
causes in the order in which the same shall appear upon the 
general calendar, which list shall constitute the day calendar for 
the second day of the term, and for each subsequent day, until at 
least eight of such causes shall have been disposed of, when a new 
list of ten causes to be made in the same manner, including cases 
undisposed of upon such preceding day calendar, shall be made 
for the succeeding day, and lists in the like manner shall be made, 
until all the causes on the general calendar are disposed of, or the 
term shall be finally adjourned. 

Rule XLIII. 

Cases fixed for a day certain.] No cause shall go to the 
foot of the general calendar, nor be set down for a particular day, 
unless the court, upon application, so orders, and when a cause is 
so set down by order of the court, it shall have precedence of all 
other cases not on trial. 

Rule XLIV. 

Judgment— ENTRY of.] Whenver judgment is entered on a 
promissory note, or other instrument for the payment of money 
only, against all the parties thereto, and the note or other such 
instrument is in the possession or under the control of the party 
entering the judgment, the same shall be filed with the judgment 
roll. 

Rule XLV. 

Witnesses in civil causes -to claim fees -when.] Upon 
their discharge from further attendance under subpoena, witnesses 



XXXVl DISTRICT COURT RULES. 

in civil causes shall report to the Clerk their names, distances 
traveled, number of days' attendance, and the title of the case in 
which they were subpoenaed. 



Note — The foregoing rules were adopted to govern the practice in the District 
Court of the Third Judicial District of the Territory of Dakota, August i, 1883. At 
that time all the territory within the State of North Dakota comprised but one Judicial 
District, (the third.) These rules have never been abolished or superceded, and are 
still in force within the state. 



The following additional rules have been adopted in the First 

Judicial District. 

Rule XLVI. 

Papers filed with clerk when.]* In eveiy action, or pro- 
ceeding, the summons and complaint and all the pleadings in said 
action or proceeding shall be filed in the office of the Clerk of 
court, on, or before the first day of the term at which said action 
or proceeding may be properly tried, or heard; and no action or 
proceeding shall be tried or heard, until the summons and com- 
plaint and other pleadings are so filed, or copies thereof, when the 
parties desiring to proceed have not the custody or control «f the 

originals. 

Rule XLVII. 

Judgment roll — what to contain.] No judgment, upon a 
default, or upon trial by court, or jury, shall be signed by the 
court, or filed, docketed, or recorded by the Clerk, unless all 
papers constituting the judgment roll are presented to the court 
when application for judgment is made and immediately filed with 
the Clerk, after judgment is signed. 



CASES 

ARGUED AND DETERMINED 

IN THE 

SUPREME COURT OF NORTH DAKOTA 



Herman P. Gauthier vs, Felix Rusicka. 

Opinion filed June 4th, 1S92. 

Vacation of Judgment — Failure to File Affidavit of Merits. 

It is error to vacate a Judgment, under § 4939, Comp. Laws, where defend- 
ant fails to make an affidavit of merits, his answer not being verified. 

Appeal from District Court, Walsh County; Templeton, J. 

Action by Herman P. Gauthier against Felix Rusicka to recover 
for services as physician and surgeon. Judgment for plaintiff. 
From an order vacating the judgment, plaintiff appeals. 

Reversed. 

D. W. Yorkeyy {McLaug/din & Morrison yol counsel,) for appellant. 
No brief filed for respondent. 

Corliss, C. J. The appeal is from an order vacating a judg- 
ment. The motion was made on the ground of surprise to defend- 
ant. The cortiplaint was verified. The answer was not verified, 
but was received by plaintiff without objection. The case being 
at issue on the calendar of the District Court in and for the 
County of Walsh, the defendant failed to appear when the cause 
N. D. R. — I. 



2 NORTH DAKOTA REPORTS. 

was reached for trial, and the plaintiff, after proving his case, re- 
covered judgment. Defendant was represented by his attorney 
at the time plaintiff proved his case. Subsequently, on motion of 
defendant, the court vacated this judgment. In this we think the 
court erred. Without considering whether the defendant, by his 
motion papers, made out a case to warrant the court in vacating 
the judgment, under the statute, (§ 4939, Comp. Laws,) it is 
elementary that the moving party must disclose merits, or the 
motion will be denied. He is in default, and the court will relieve 
him only in furtherance of justice. It is not even sufficient that he 
has a legal defense. If it is only technical in its character, — if it is 
unconscionable, repugnant to fair dealing, — the court will not 
grant him any indulgence, i Black, Judg. §§348, 349. The de- 
fendant did not present any affidavit of merits, nor was its place 
supplied by a verified answer. It is true that plaintiff accepted 
the answer without verification. But by this act he did not admit 
that defendant had a meritorious defense. He simply waived his 
right to insist on a verified answer as essential to put in issue the 
allegations of his complaint for the purposes of a trial, so long as 
defendant could stand on his legal rights. The question which 
the court isHo determine on such a motion is whether there are 
merits on behalf of the defendant. The burden is on defendant 
to show this prima faciei and this he must do under oath. The 
answer is not verified. The affidavits used on the motion merely 
recite that an answer has been filed, setting up a certain defense. 
They do not attempt to support that defense under oath. They 
refer to it historically. They merely assert that it has been em- 
bodied in an answer. Whether it actually exists, they in no man- 
ner disclose. It is doubtful whether a verified answer would ob- 
viate the necessity of an affidavit of merits. There is much 
authority in support of the view that it will not, and the reasoning 
on which this doctrine stands is by no means destitute of force. 
See Id. § 347; Freeman Judg. § 108; Jaties v. Rtissell, 3 How. Pr. 
324;' Afi?«/rv V. Hill, II Wis. 146. In Town of Omro v. Ward, 19 
Wis. 232; the court regarded this rule as abrogated by statute in 



DUN V. DIETRICH. ^ 3 

that state, but the court was careful to assert that there must be a 
verified answer in such a case. "It is insisted that the judgment 
should not have been set aside, without an affidavit of merits 
accompanying the motion. Such an affidavit, on taking a default, 
was formerly held to be indispensable, [citing cases,] but proba- 
bly the practice has been changed in this, respect by chapter 211, 
laws of 1861, where the answer itself shows merits and is verified." 
As supporting the rule requiring an affidavit of merits, see i 
Black, Judg. § 347; Freeman Judg. § 108, and cases cited; Parrott 
V. Den, 34 Cal. 80; Bailey v. Taaffe^ 29 Cal. 422; Ice Co, v. ScfUefiken, 
(Minn.) 52 N. W. Rep. 219. The order vacating the judgment is 
reversed. All concur. 
(SZ N. W. Rep. 80.) 



FiNLAY Dun, Trustee vs. Jos. Dietrich et aL 

Opinion filed June i8th, 1892. 

Implied Covenants in Deed, Restrained by Express Covenants. 

The implied covenant against incumbrances raised under g 3249, Comp. 
Laws, by the use of the word "grant'* in a conveyance in fee, is restrained, as 
against the grantor, by an express covenant against incumbrances limited by its 
terms to the heirs, executors, and administrators of the grantor. 

Wife Joining in Deed to Release Homestead not Bound by Implied Covenant. 

A wife who joins her husband in a deed of conveyance for no other purpose 
than to release her homestead right in the property is not bound by the implied 
covenant arising from the use of the word "grant.*' 

Appeal from District Court, Burleigh County; Witwhester, J. 

Action by Finlay Dun, trustee of the North American Land 
Association (limited), against Joseph Dietrich and Nora Dietrich, to 
recover on the covenants in a deed against incumbrances. Judg- 
ment for defendants; plaintiff appeals. 

Affirmed. 

George W, Newton^ for appellant. 



4 / NORTH DAKOTA RE^'ORTS. 

"From the use of the word "grant" in any conveyance, the 
following covenants and none other on the part of the grantor, 
,are implied unless restrained by express terms contained in 
such conveyance, viz: That such estate is, at the time of the 
execution of such conveyance, free from incumbrances done, made 
or suffered by the grantor or any person claiming under him." 

Comp. Laws § 3249. There are no express terms contained in 
the conveyance in question restraining the force of the word 
"grant," as a covenant raised by the provisions^ of the statute. The 
deed then, contains the covenant of both respondents that the 
estate conveyed thereby was free from incumbrances done, made 
or suffered by them, or any person, claiming under them at the 
date of its execution. Funk v. Voneida, 1 1 Serg. & R. 109; Seitzinger 
V. Weaver^ i Rawle 377; Gates v. Cadewell, 7 Mass. 68; Hawk v. 
McCtdloughy 21 111. 220; Rawle on Covenants, 369 and 383. The 
covenant of freedom from incumbrances is proved to have been 
broken by any evidence showing that a third person has a right 
to or an interest in the land granted, to the diminution of the 
value of the land, though consistent with the passing of the fee by 
the deed of conveyance. 2 Grf. Ev. § 42. Every burden on the 
estate or clog on the title is an incumbrance. Seitzinger v. Weaver^ 
I Rawle 377; Prescott v. Truman, 4 Mass. 627; Fritz v. Pusy, 18 N. 
W. Rep. 94. An inchoate right of dower is an incumbrance. 
Stierer v. Ranger y 22 Pick. 447; Jozies v. Gardner, 10 Johns. 267; 
Bigelow V. Htdbardy 97 Mass. 195; Rawle on Covenants 112, 113. So 
taxes levied upon an estate after transfer, upon an assessment 
made before. Hill v. Bacon, no Mass. 388; Richard v. Bent, 59 111. 
38; Longw. Moler, 5 Ohio St. 271; Cochraiie v. Guild, 106 Mass. 29. 

Louis Hanitch and Francis & Barnes, for respondents. 

The force of the statute (§ 3249, Comp. Laws) is destroyed by 
the special covenant against incumbrances contained in the deed, 
and the implied covenant from the use of the word "grant" is re- 
strained by express terms contained in the deed, whereby the said 
Joseph Dietrich, covenants, not for himself, but for his heirs, 



DUN V, DIETRICH. 5 

executor and administrators, that the premises are free from all 
incumbrances. 

An express covenant in a deed takes away all implied cove- 
nants. Vanderkarr V. Vanderkarr, ii Johns. 122; Douglass v. Lewis, 
131 U. S. 75; 9 Sup. Ct. Rep. 634; Bowne v. Wolcott, i N. D. 
497J 48 N. W. Rep. 426. The vendor selling in good faith 
is not responsible for the goodness of his title beyond the extent 
of his covenants in the deed. Patton v. Taylor y 48 U. S., (L. Ed.) 
649; Naofian v. Lee, 17 (L. Ed.) 278. In an action on the covenant^ 
against incumbrances, the burden of proof is upon the plaintiff to 
show that any incumbrance was lawful. Lathrop v. Grosvenor, 76 
Massi 52; Ogden v. Ball, 41 N. W. Rep. 453; Hamilton v. Cutts, 4 
Mass. 352. A covenant against incumbrances is not broken by 
the existence of a recorded tax deed which passes no valid title. 
Tibbetts v. Leeson, i8 N. E. Rep. 679. 

Bartholomew, J. In February, 1883, the defendants, who are 
husband and wife, executed to plaintiff a deed to certain real 
estate in the city of Bismarck. Subsequently, plaintiff purchased 
a claim under a tax deed upon said premises. The tax deed was 
based upon a city tax for a sidewalk abutting the premises, which 
sidewalk was constructed prior to the execution of the deed from 
defendants to plaintiff, and while the defendant, Joseph Dietrich, 
was the. fee owner of the premises. This claim is brought upon 
the covenants against incumbrances in the deed from defendants 
to plaintiff, to recover the amount paid for the claim under the tax 
deed. The case was tried to the court, and defendants prevailed. 
Plaintiff brings the case into this court. Numerous errors are as- 
signed, but they all arise under one of two points: First. Does 
the deed sued upon contain any covenants that will sustain this 
action? Second. Was the claim for the sidewalk tax a valid lien 
against the property at the time of the conveyance? The second 
point becomes material only in case the first is resolved in favor 
of the plaintiff. The conveyance from defendants to plaintiff 
contains in the granting clause the words, "do hereby grant, bar- 
gain, sell, and convey," etc. It also contains the following special 



6 NORTH DAKOTA REPORTS. 

covenant: "And the said Joseph Dietrich, party of the first part, 
for his heirs, executors, and administrators, does covenant with 
the party of the second part, his heirs and assigns, that he is well 
seized in fee of the lands and premises aforesaid, and has good 
right to sell and convey the same in manner and form aforesaid, 
and that the same are free from all incumbrances," etc. It is not 
claimed in this court that either of the defendants is liable upon 
the last covenant quoted, as by its terms it is limited to the heirs, 
executors, and administrators of Joseph Dietrich. See Bowne v. 
Wolcott, I N. D. 497; 48 N. W. Rep. 426. Section 3249, Comp. Laws, 
provides: "From the use of the word 'grant* in any conveyance 
by which an estate of inheritance or fee simple is to be passed, 
the following covenants, ^and nbne other, on the part of the 
grantor, for himself and his heirs, to the grantee, his heirs and 
assigns, are implied, unless restrained by express terms contained 
in such conveyance: First, * * * Second, That such estate 
is at the time of the execution of such conveyance free from in- 
cumbrances done, made or suffered by the grantor, or any person 
claiming under him. Such covenants may be sued upon in the 
same manner as if they had been expressly inserted in the con- 
veyance." It is upon the implied covenant arising from the Use 
of the word "gi*ant" in the deed that plaintiff bases his right to re- 
cover in this court. This right is challenged by respondent on 
the ground that the subsequent express covenant against incum- 
brances found in the deed restrains the implied covenant. A 
number of the states have statutes similar to ours. These statutes 
have for their foundation an act of the colony of Pennsylvania 
passed in 171 5, which act was in turn based iipon the statute of 6 
Anne, c. 35, passed in 1707. These statutes have a common ob- 
ject, and that is to raise certain covenants by the use of the word 
"grant" or "grant, bargain and sell," against the grantor, — and 
sometimes his heirs also, as with us, — and in favor of the grantee, 
his heirs and assigns. Under the rule that covenants should be 
construed most strongly against the covenantor, courts have gen- 
erally given effect to these implied covenants, even in cases where 



DUN V, DIETRICH. 7 

there were limited express covenants, where the two were not in- 
consistent or were independent of each other, limiting the implied 
covenant against incumbrances to the personal act or sufferance 
of the grantor. Gratz v. Ewalt, 2 Bin. 68; Seitzinger v. Weaver ^ i 
Rawle 'iJT^Funk v. Voneida, ii Serg. & R. 109; Shaffer v. Greer, 87 
Pa. St. 370; Finley v. Steele, 23 111. 56; Alexander v. Schreiber, 10 
Mo. 460; Shelton v. Pease, Id. 473. 

This statute has repeatedly met the animadversions of courts 
by reason of its dangerous tendency, because "calculated to en- 
trap the ignorant and unwary into liability which they never in- 
tended to incur," and because "it has a bad effect to annex to 
words and arbitrary meaning far more extensive than their usual 
•import, and which must be unknown to all but professional men." 
In this jurisdiction the use of the word "grant" is universal in 
conveyances of fee-simple estates, and it is almost equally uni- 
versal that the parties to such conveyances guard their respective 
rights by the express covenants inserted. It is seldom, if ever, 
that a grantee receives a conveyance relying upon any covenants 
except such as are expressed, and certainly no grantor delivers a 
conveyance expecting to be held to a liability that he has not 
knowingly incurred. The only effect of the statute with us would 
seem to be to create liabilities not in the mind of both parties — 
probably of neither — at the time of the execution of the convey- 
ance. But the implied covenants do not arise when inconsistent 
with the express covenants, or when it appears from the language 
used by the parties that it was not intended that any such cove- 
nant as that implied by the statute should take effect. Douglass 
v. Lewis, 131 U. S. 75; 9 Sup. Ct. Rep. 634; Finley v. Steele, supra] 
Weems v. McCaiighan, 7 Smedes & M. 427. We held in Bowne v. 
Wolcott, supra, that when the covenant was limited to the heirs, 
executors and administrators of the giantor, and there was no 
charge of fraud or mistake in the deed, we were bound to pre- 
sume that the partiqs intended the covenant to be so limited, and 
that the grantee accepted that covenant because he could get no 
better. Applying the law to this case, plaintiff accepted a deed 



8 NORTH DAKOTA REPORTS. 

with an express covenant against incumbrances limited to the 
heirs, executors and administrators of Joseph Dietrich ; that he ac- 
cepted such deed because Dietrich refused to incur any personal 
liability upon such covenant. It is then morally certain that when 
the deed was delivered Dietrich did not intend to be bound by an 
implied covenant to a liability that he had refused to assume by 
an express covenant, and the plaintiff must have so understood it 
when he accepted the deed. This view is strengthened by the fact 
that, under our statute, the implied covenant applies to the 
grantor, his heirs, executors and administrators. It would be 
most unreasonable to suppose that the parties intended to have 
the representatives bound by one covenant and the grantor by an- 
other in the same deed. It follows from these views that the lia-. 
bility of Joseph Dietrich under the implied covenant is restrained 
by the terms of the express covenant, and that there is no cove- 
nant in the deed upon which Joseph Dietrich can be held in this 
action. The defendant, Nora Dietrich, is not a party to the 
express covenant, but, under the authorities already cited, the 
implied covenant is limited to the personal acts or sufferance of 
the grantor. Nora Dietrich had no interest in the land con- ' 
veyed except her homestead interest. No obligation, legal or 
moral, rested upon her to pay the sidewalk tax, and it was 
not an, incumbrance created or suffered by her. It follows that 
there is no covenant in the deed upon which plaintiff can recover 
in this action, and the judgment of the lower court must be 
affirmed. All concur. 
(S3 N. W. Rep. 8i.) 



doty v, first national bank of larimore. 9 

Edmond S. Poty vs. First National Bank of Larimore. 

opinion filed Aug. 5th, 1892. 

National Banks— Transfer of Stock. 

Section 5139, Rev. St. U. S., providing that the stock of a national bank 
shall be ''transferable on the books of the association in such manner as may be 
prescribed in the by-laws or articles of association,'* was enacted for the benefit 
of the corporation, its shareholders and creditors, only: As to all other parties 
a transfer of such stock, good at common law, is good under the statute. 

Priority of Transferee over Attachment Creditor. 

Under the federal statutes, the rights of a transferee of national bank stock, 
under an unrecorded transfer, good at common law, are superior to the rights 
of a subsequent attaching creditor of the transferrer without notice. 

State Cannot Ree:alate Transfer of National Bank Stock. 

It is not competent for state. legislation to limit or interfere with the transfer- 
able quality of national bank stock, f\& the same is left by the statutes of the 
United States. '^ 

Appeal from District Court, Grand Forks County; Templeton, J. 

Action by Edmund S. Doty against the First National Bank of 
Larimore, to recover damages for the refusal of defendant to 
transfer certain shares of stock on its books. Judgment for de- 
fendant. Plaintiff appeals. 

Aflfirmed. 

Bosard & Van Wormer, for appellants. 

If plaintiff had a right to insist on the transfer, defendant is 
liable in damages for refusing to make the transfer. The damages 
are the value of the stock with interest. Boone on Corp. § 122, 
Note 13. Boftd V. Mt, Hope Iron Co.^ 99 Mass. 505; BanM of America 
V. McNeil, 10 Bush. (Ky.) 54; Sargent v. Franklin Ins, Co,, 8 Pick. 
90; Kortright v. Buffalo Bank, 20 Wend. 91; S. C, 22 Wend. 348; 
Dayton Nat, Bank v. Merchants Nat, Bank, 37 Ohio St. 208; Case 
V. Bank, 100 U. S. 446; Freon v. Carriage Co,, 42 Ohio St. 30; Kim- 
ball V. Union Water Co., 44 Cal. 173; Baltimore City Passenger Ry, 
Co. v. Sewell, 35 Md. 238; S. C, 6 Am. Rep. 402; Baker v. Mar- 
shall, 15 Minn. 177. Lawson's Rights Rem. & Pr., § 466. It is 



10 NORTH DAKOTA REPORTS. 

insisted that the case falls within the provisions of § 2915, Comp. 
Laws. Under such a statute the rights of attaching creditors, 
without notice of a prior unrecorded transfer, are superior to such 
transfer. Cases cited in opinion of court in re. Argus Printing 
Co., I N. D. 434; S. C, 48 N. W. Rep. 347, 350; Cotnvay v. John, 
23 Pac. Rep. 170; Butirick v. Nausha R, R., 62 N. H. 413; S. C, 
13 Am. State Rep. 578. 

Newman & Resser, for respondents. 

The defendant is a creature of the statutes of the United States, 

• and claims immunity under those statues. The state can exercise 
no control over national banks, except in so far. as congress 
may permit. Farmers & Mechanics Nat, Bank v. Deari?ig, 91 U. S. 29. 
National banks are means and instrumentalities adopted by 
congress to promote and faciliate the fiscal operations of the 
government and as such are under the exclusive control of con- 
gress, Bank V. Deering, 91 U. S. 29; Osborne v. Bank, 9 Wheat, 708; 
McCulloch V. Maryland, 4 Wheat, 316. To the point that the 
transferee of stock not recorded, has a superior right to a subse- 
quently attaching creditor. Bank v. Lanier, 11 Wal. 369; Baiik v. 
Eliot Nat, Bank, 7 Fed. Rep. 369; Scott v. Pequannock Nat. Bank, 
15 Fed. Rep. 494; Dickinso?i v. Central Nat Bank, 129 Mass. 179; 

. Boston etc. Assn. v. Cory, 129 Mass. 435; Zi^iy v. Bank, 133 Mass. 515. 

Bartholomew, J. This case was tried by the court, and the 
facts are undisputed. On and prior to November 6th, 1886, one 
C. C. Wolcott was the absolute owner of 220 shares of stock of the 
respondent bank, and held certificates for the same. On the 6th 
and 20th days of November, 1886, said Wolcott in writing assigned 
said certificates to A. J. Bowne, president of respondent bank, 
and delivered the same to him as collateral security for the 
amounts which Wolcott was owing the respondent bank and the 
Hastings National Bank, of Hastings, Mich. These amounts 
aggregated $23,000, and no portion of such indebtedness had been 
paid when the case was tried below. The value of the stock 
assigned was $22,000. The stock was not transferred on the 



DOTY V. FIRST NATIONAL BANK OF LARIMORE. II 

books of the respondent bank, but, so far as shown by said books, 
Wolcott continued to be the absolute owner thereof, until after 
the attachment l\ereafter mentioned was levied. On July 5th, 
1888, an action was commenced by D. B. Doty & Co. against said 
Wolcott and others in the District Court of Grand Forks County. 
The action was aided by attachment, and on July 19th, i888, the 
sheriff of said county duly levied upon said shares of stock by 
serving the proper notice upon the cashier of the respondent bank. 
At the time of such levy the stock stood upon the books of the 
bank in the name of said Wolcott, and neither the plaintiff in the 
attachment action nor the officer making the levy had any know- 
ledge of the assignment to Bowne. The certificates of stock pro- 
vided that the stock should be transferable only on the books of the 
bank upon the surrender of the certificates. Subsequently D. B. 
Doty & Co. recovered judgment in the attachment action, execu- 
tion was issued, and the sheriff of said county, under such execu- 
tion, sold the shares of stock upon which the attachment had 
been laid to Edmund S. Doty, the appellant herein, and executed 
the usual sheriff's certificate of sale therefor. Immediately theVe- 
after appellant presented to the respondent bank a duplicate 
copy of such certificate, together with a written demand that such 
stock be transferred to him upon the books of the bank, and 
stock certificates issued to him therefor. This the bank refused 
to do or to permit to be done; whereupon this action was brought 
to recover from the bank the value of such shares of stock. But 
one question of law is urged for our determination, and it is this: 
Under the facts disclosed, could appellant, under and by virtue of 
said sheriff's sale, acquire any right or title to the shares of stock 
of a national bank superior to the title and rights of Bowne under 
the assignment and delivery? If so, then the respondent bank 
improperly refused to make the transfer, and is liable for the 
value. Sargent v. Insurame Co,, 8 Pick, 90; Bond v. Iron Co., 99 
Mass. 505; Shipley v. Bank, 10 Johns, 484; Freon v. Carriage Co,, 
42 Ohio St. 30. If not, the refusal was justified, and no liability 
attaches. Sections 5003. 5005, Comp. Laws, make property in this 



12 NORTH DAKOTA REPORTS. 

state, incapable of manual delivery, liable to seizure upon attach- 
ment or execution, and specify the means by which it may be so 
seized. Section 5003 reads: "The rights or shares which such defend- 
ant may have in the stock of any association or corporation, together 
with the interest and profits thereon, and all other property in 
this territory of such defendant, shall be liable to be attached and 
levied upon, and sold to satisfy the judgment and execution." 
Section 5004 provides, in effect, that shares in a corporation may be 
attached by a sheriff by leaving with the president, secretary, 
cashier, or managing agent of such corporation a certified copy 
of the warrant of attachment, with a written notice specifying the 
property attached. Section 5005 provides: "Whenever the sheriff 
shall, with a warrant of attachment or execution against the defen- 
dant, apply to such officer, debtor, or individual, for the purpose 
of attaching or levying upon such property, such officer, debtor, 
or individual shall furnish him with a certificate, under his hand, 
designating the number of rights or shares of the defendant in 
the stock of such association or corporation, with any dividend 
or Incumbrance thereon, or the amount and description of the 
property held by such association, corporation, or individual, for 
the benefit of or debt owing to the defendant." The sufficiency 
of the formal steps in this case is not questioned, nor is any claim 
made that shares of corporate stock, when actually owned by a 
defendant in attachment at the time of the levy, are not subject 
to the levy. Section 2915, Comp. Laws, provides: "* * * Whenever 
the capital stock of any corporation is divided into shares, and 
certificates therefor are issued, such shares of stock are personal 
property, and may be transferred by indorsement, by the signa- 
ture of the proprietor, or his attorney or legal representative, and 
delivery of the certificate; but such transfer is not valid, except 
between the parties thereto until the same is so entered upon the 
books of the corporation as to show the names of the parties by 
and to whom transferred, the number or designation of the shares, 
and the date of the transfer." The last sentence in § 2937 reads :^ 



DOTY V, FIRST NATIONAL BANK OF LARIMORE. 1 3 

"Such stock and transfer book must be kept open to the inspec- 
tion of any stockholder, member, or creditor." 

The learned counsel for the appellant contend that our statutes 
constitute a registry law in the fullest sense, and that under the 
law a creditor attaching corporate stock without notice is fully 
protected against any transfer or assignment which does not 
appear, upon the books of the corporation. The decisions of the 
state courts, under statutes more or less similar to our own, are 
by no means uniform, and we do not feel called upon in this case 
to rule upon the question presented, but will assume that our 
law is a registry law. 

But the stock here involved consists of shares in a national 
bank, organized and existing under and by virtue of the laws of 
congress. National banks are fiscal agencies of the government, 
and congress is the sole judge of the necessity for their creation, 
and, having been brought into existence by congress, the state 
can exercise no control over them, nor in any wise effect their 
operation, except in so far as congress may see proper to permit. 
Bank V. Dearing.gi U. S. 29. Section 5136, Rev. St. U. S. gives to a 
national bank power to prescribe, by its board of directors, by- 
laws not inconsistant with law, regulating the manner in which 
its stock shall be transferred; and § 5139 provides that shares of 
stock shall be transferable on the books of the association in such 
manner as may be prescribed in the by-laws or articles of associa- 
tion. It appears from the findings that the certificates of stock 
stated that said stock should be transferable only on the books 
of the bank on surrender of said certificates, and, as such certifi- 
cate issues under the corporate seal, we must assume, nothing to 
the contrary appearing in the record, that such statement was in 
pursuance of a duly adopted by-law. But, giving the statement 
the force of a by-law, still we think the federal authorities would 
sustain thfc assignment to Bowne as against appellant. In Bank v. 
Latnety 1 1 Wall. 369, the owner of national bank stock pledged 

the same with power of attorney to sell and transfer the same on 

• 

the books of the bank, but did not assign nor deliver the 



14 NORTH DAKOTA REPORTS. 

certificates. Subsequently he sold the shares, and assigned and 
delivered the certificates to Lanier and Handy. The certificates 
contained the same statement as to the manner of transfer that is 
found in this case. Two years after their purchase Lanier and 
Handy applied to the bank to have the stock represented by the 
certificates which they held transferred to them. This the bank 
refused to do, on the ground that the stock had already been 
transferred by virtue of a sale under the former power of attor- 
ney. It was held that this refusal was unwarranted; that the 
party who held the certificates was entitled to the stock; and that 
the bank could only transfer the stock upon the surrender of such 
certificates. Upon the authority of Bank v. Lanier, it was held 
in Continental Nat, Bank v. Eliot Nat. Batik, 7 Fed. Rep. 369, that 
an unrecorded transfer of national bank stock will take prece- 
dence of subsequent attachment in behalf of a creditor without 
notice. This case was followed by Scott v. Bank, 15 Fed. Rep. 
494, and Hazard v. Bank, 26 Fed. Rep. 94, in each of which 
the same ruling is made, and the Supreme Court of Massa- 
chusetts in Sibly v. Bank, 133 Mass. 515, construing the 4;iational 
bank act in the light of federal decisions and policy, reached the 
same conclusion. 

We do not think these decisions are weakened in the least by 
an uncertain dictum contained in Jofmston v. Laflin, 103 U. S. 800, 
where it is said that the transfer on the books of the bank re- 
quired by the act of congress "is necessary to protect the seller 
against subsequent liability as a stock holder, and perhaps to 
protect the purchaser against proceedings of the seller's creditors. 
Purchasers and creditors, in the absence of other knowledge, are 
only bound to look to the books of registry of baqk." The ques- 
tion of the rights of the seller's creditors was in no manner In- 
volved in Jolmston v. Lafiin. Following the decisions heretofore 
cited, we hold that the act of congress pertaining to the transfer 
of national bank stock, and the by-laws adopted in pursuance of 
said act, do not constitute a registry law; that such provisions 
were enacted for the benefit of the corporation, its stockholders ' 



DOTY V. FIRST NATIONAL BANK OF LARIMORE. 1 5 

and creditors, and that as to all other persons a transfer of stock, 
good at common law, is good under the federal statutes; and that 
under said statutes the rights of a transferee under an unrecorded 
transfer, good at common law, are superior to the rights of a sub- 
sequent attaching creditor o*f the transferrer without notice. It 
remains, then, only necessary to ascertain what effect, if any, a 
state statute can have in limiting the mode of transfer of such 
stock. 

It was settled by the case of Black v. Zachafiey 3 How. 483; that 
the validity of' an assignnient of corporate stock depended upon 
the law of the state where the corporation was located, and not 
upon the law of the state where the assignment was made. Au- 
thority is hardly necessary upon the proposition that the sov- 
ereignty which creates the corporation must have the exclusive 
right to direct the manner in which the stock of such corporation 
must be transferred, at least when the corporation is located and 
doing business exclusively within the jurisdiction of the creating 
sovereignty. The effect to be given state statutes, so far as they 
may interfere with or limit the transferability of national bank 
stock, is, of course, purely a federal question, and we ought to be 
governed in this matter by the decisions of the United States 
courts. In Co7iti7ie7ital Nat, Bank v. Eliot Nat. Bank, supra, a party 
residing at Boston, Mass., assigned and forwarded certificates of 
stock in Eliot National Bank, located at Boston, to the plaintiff 
bank, located at New York. Subsequently, and before any trans- 
fer was made upon the books of the Eliot National Bank, that 
bank attached the stock as the property of the transferrer. United 
States Circuit Judge Lowell, sitting in Massachusetts, said: "It 
has been very ably urged that, by the law of Massachusetts, the 
attachment would have the preference. This I consider doubt- 
ful; but the decision does not depend upon the law of Massachu- 
setts. It is not important to consider whether the contract was 
consummated in Massachusetts or New York. The negotiability 
or transferable quality of the stock of a national bank depends 
upon the laws of the United States.'* Citing, Dickinson v. Bayik, 



l6 NORTH DAKOTA REPORTS. 

129 Mass. 279. * * ♦ "The time and mode of attaching prop- 
erty and its effect in general are part of the law of the forum; but 
its operation upon unrecorded transfers of shares in national 
banks is regulated by the law which creates the shares, and pro- 
vides for their conveyance and regfstration." Again, in Scott v. 
Batik^ supra, the same question was before the United States Cir- 
cuit Court sitting in New York. The stock involved was stock of 
a national bank located in Connecticut, and it was urged that, un- 
der the decisions of that state, the attachment would have prefer- 
ence, but the court said: "The defendant having been incorpor- 
ated under the national banking act, the rules which regulate the 
transfers of its stock are to be found in the statutes of the United 
States." And, after quoting the statute, the court adds: "The 
construction of the statute, and the question of title as between 
the assignee and the attaching creditor, are not controlled by the 
tenor of the decisions of any one state." These decisions seem 
to be decisive of the point under discussion. In their absence we 
might, perhaps, have reached a different conclusion, under the 
broad language used in National Bank v. Com,, 9 Wall. 353. In 
speaking of the principle that government agencies cannot be sub- 
jected to state legislation, as announced in McCulloch v. Marylayidy 
4 Wheat. 316; and the cases following that decision. Justice Miller, 
speaking for the full bench, said: "The principle we are discussing 
has its limitation, — a limitation growing out of the necessity on 
which the principle is founded. That limitation is that the agen-* 
cies of the federal government are only exempted from state leg- 
islation so far as that legislation may interfere with or impair their 
efficiency in performing their functions by which they are 
designed to serve that government. * * ♦ It is only when 
the state law incapacitates the banks from discharging their 
duties to the government that it becomes unconstitutional." But 
the cases cited from the Federal Circuit Courts were decided long 
after Bank v. Com., and involve the precise point here raised, and 
we deem them conclusive upon us. 

The judgment of the District Court is therefore affirmed. 



SMITH V. NORTHERN PACIFIC RAILROAD CO. 1 7 

Wallin, J., concurs. 

Corliss, C. J., having been of counsel, did not sit in the case or 
take part in the decision? 
(53 N. W. Rep. 77) 



Fred. H. Smith vs. Northern Pacific Railroad Company. 

Opinion filed Aug. 26th, 1892. 

Removal of Causes Amount in ControTcrsy — Allegations of Complaint 

The amount demanded in the complaint, in an action for damages caused by 
negligence, controls in determining whether the matter in dispute exceeds the 
sum or value of $2,000, exclusive of costs and interest, on application to remove 
the cause to the Federal Court on the ground of diverse citizenship, although the 
value of the property destroyed by the negligence is alleged in the complaint to 
be greater than $2,000. 

Notice of Trial— Sufficiency. 

When the notice of trial contains an error in the date of the commencement 
of the term, the month and year being stated correctly, the notice is sufficient, 
as a litigant is bound to know when terms of court are held, and is therefore 
apprised of the mistake in the notice and of the true date intended to be 
specified therein. 

Additional Terms of Court. 

Under chapter 79, g 10, Laws 1891, the same business can^be transacted at 
an additional term of court called by the judge as at the terms fixed by the 
statute. New cases can be noticed for such term and placed on the calendar 
thereof, and tried thereat. 

Sparks from Locomotiye — Presumption of Negligence. 

The presumption of negligence from the setting out of a single fire by an en- 
gine is one of law, and whether such presumption has been fully met and over- 
thrown is in the first instance a question for the court. Evidence examined, 
and h^ld sufficient to overthrow the presumption in this case. 

Question of Negligence for the Jury. 

The mfere fact that the fire was started 118 feet from the track is not suffic- 
ient in itself to warrant submission of the question of negligence to the jury. 

Appeal from District Court, La Moure County; Rose, J. 
Action by Fred. H. Smith against the Northern Pacific Railroad 
N. D. R. — 2. 



1 8 NORTH DAKOTA REPORTS. 

Company, for damages caused by a prairie fire set by one of de- 
fendant's locomotives. Judgment for plaintiff. Defentant appeals. 

Reversed. 

W. F. Ball and/. 5. Watson, {John C, Bullitt, Jr., of counsel,) for 
appellant. 

Section 5097, Comp. Laws of N. D., is identical with § 580, Code of 
Civil Procedure of California. Under this section it has been held 
that if there is an answer, the court may disregard the prayer in the 
complaint and give the plaintiff suitable relief. Imebody v. 
Jacobson, 2 Cal. 283; A^. C, & S. C. Co. v. Kidd, 37 Cal. 301 ; Casmcia 
v. PluBfdx Co., 28 Cal. 628. Until it is in some way shown by the 
record that the sum demanded is not the matter in dispute, that 
sum will govern in all questions of jurisdiction; but when it is 
shown that the sum demanded is not the real matter in dispute, 
the sum shown and not the sum demand, will prevail. Hilton v. 
Dickinson, 108 U. S. 165; Wilson v. Daniel, 3 Dall. 401; Elgin v. 
Marsludl, 106 U. S. 578; Plait v. PImtdx Co,, 37 Fed. Rep. 730; 
Hullscamp v. Teel, 2 Dallas 358; Gordon v. Longist, 16 Pet. 97; Barry 
V. Edmotids, 116 U. S. 550. The presumption of negligence cast 
upon defendant by proof that it set out the fire, is a presumption 
of law and not of fact. In Johnson v. N. P. R, R. Co,, i N. D. 354; 
S. C, 48 N. W. Rep. 227;it is said that proof of the setting out 
of fire creates a disputable presumption of negligence. This de- 
cision established the same rule with respect to imputed negli- 
gence in fire cases as already existed by force of statute in stock- 
killing cases. Section 5501, Comp Laws. This section of statute 
construed in, Volkman v. C, St, P, M, & 0, R, R. Co,, 5 
Dak. 69; S. C, 37 N. W. Rep. 731; Kftapp v. Bank, 5 
Dak. 378; S. C, 40 N. W. Rep. 587; Gay v. R, R,, 5 Dak. 514; S. C, 
41 N. W. Rep. 757; Huber v. C M, & St. P. R, Co,, 6 Dak. 392; 
Pattee v. C M, & St. P. R. R. Co., 5 Dak. 267; S. C; 38 N. W. 
R^P* 435- It is a question for the court to determine when this 
prima facie evidence is overcome. Railroad Co. v. Wamscott, 3 
Bush. 149; Railroad Co. v. Talbot, 78 Ky. 621 ; Railroad v. Packwood, 
7 A. & E. R. R. C, 584; where the rebutting testimony is as broad 



SMITH V. NORTHERN PACIFIC RAILROAD CO. IQ 

as the negligence alleged and in all points refutes it, it is for the 
trial court to pass upon the question and withdraw it from the 
consideration of the jury. R. R. v. Reese y 85 Ala. 497; Telley v. R, 
R., 49 Ark. 535; R. R, v. QuantcLnce, 58 111. 389; R. R, v. Clampit, 63 
111. 95; R, R. V. Campbell, 86 111. 443; R. R. v. GoyeUe, 133 111. 121; 
Railroad v. Gibson, 42 Kan. 34; R. R. v. Brinhnan^ 64 Md. 52; 
Hoffman v. Railroad, 43 Minn. 334; Wise v. Railroad, 85 Mo. 178; 
Railroad v. Westover, 4 Neb. 68; Searles v. Railroad, loi N. Y. 662; 
Cleveland v. Railroad, 42 Vt. 449; Spaulding v. Railroad, 30 Wis. 
no; Contra, Ganda v. Chicago, etc, R, Co,, 30 la. 20; Babcock v. ^. 
^. C£7.. 17 N. W. Rep. 909; S. C, 13 N. W. Rep. 740; 28 N. W. 
Rep. 644. If sparks escape without negligence and inflict dam- 
age, the result must be borne by the party suffering the loss. 
Pelke V. R, R. Co., 5 Dak. 444; WAile v. R. R. Co., (S. D.) 47 N. W. 
Rep. 146; Gram v. R. R. Co., 1 N. D. 252; Johnson v. R. R. Co., 1 
N. D. 354. Accident must be shown to have happened by defend- 
ant's negligence in order that it be held. The Nellie Flagg, 23 
Fed. Rep. 671; Cooley on Torts, 670; Rudolph v. Fuchs, 44 How. 
Pr. i^<^\Houfe v. Fulton, 29 Wis. 296; Fernandez v. R. R. Co., 52 Cal. 
45; Garrett v. Railroad, jj Am. Dec. 423; Gagg v. Vetter, 13 Am. 
Rep. 322; Baulec v. Railroad,, 59 N. Y. 356; Commissioners v. Clark, 
4 Otto 278. The presumption of negligence arising from proof of 
setting out of fire having been overcome by evidence, showing 
that the most approved appliances for preventing the escape of 
sparks were in use, that they were in good order and the engine 
carefully managed and operated by competent servants, the plain- 
tiff cannot recover unless he then proves other acts of negligence 
which caused the fire to escape. Wise v.Joplin, 85 Mo. 178; Rail- 
road Co. V. Pennill, no 111. 437; i Thomp. on Neg. 155, MofUgomery 
V. Muskegon, 50 N. W. Rep. 729. 

Samuel L. Glaspel, for respondent. 

The defendant by not returning the notice of trial and not 
making prompt objection thereto and not being misled thereby, 
waived any defects therein, Waits N. Y. Code, 448, note d; Ins. 



20 NORTH DAKOTA REPORTS. 

Co, V. Kelsey, 13 How. Pr. 535; Silliman v. Clark, 2 How. Pr. 160; 
Bander v. CovUl, 4 Cow. 60. The presumption of negligence on 
one side and the rebutting evidence on the other produces a con- 
flict and therefore an issue for the jury, Babcock v. R. R. Co. 17 N. 
W. Rep. 909; Dunni7ig v. Bond 38 Fed. Rep. 813; Hoorer v.,Ry. 
Co. 16 S! W. Rep. 480; Ry. Co, v. BarOett, 16 S. W. Rep. 638. 
Proof that a cinder was thrown 118 feet from the track, was evi- 
dence for the jury from which they might infer negligence. 
Greenfield w,Ry, Co, 49 N. W. Rep. 95; to same effect, Ry, Co, v. 
McClelland, 4^ III. 355; Doyscfterv, Ry, Co, 45 N. W. Rep. 719; 
Ry, Co, V. Boss, 41 Fed. Rep. 917. 

Corliss, C. J. The plaintiff and respondent has recovered 
judgment for damages occasioned by a prairie fire set out by one 
of defendant's locomotives. Before coming to. the merits we, 
have several questions to dispose of. In due time the defendant 
presented to the District Court of the state its petition for 
removal of the cause to the Federal Circuit Court. The denial of 
this application for removal is assigned as error. The only point 
here involved is whether the matter in dispute in this case at the 
time of filing this petition exceeded, exclusive of interest and 
costs, the sum or value of $2,000. If not, the trial court was right 
in refusing to grant the prayer of the petition. If, on the other 
hand, it did exceed $2,000, the trial court had no jurisdiction, 
after the filing of the petition, to proceed further with the cause, 
and the judgment is void. We are satisfied we must sustain the 
action of the trial court in this behalf. While it is true that it is 
stated in the complaint that the value of the property destroyed 
by the fire was over $2,000, the plaintiff expressly limited his 
demand to that sum. This demand governs in actions of this 
character. Of course it might not control when in excess of the 
alleged value of the property destroyed. But the injured party 
may, if he sees fit, waive his right to recover full damages, and 
in that case the litigation involves only the amount which he 
seeks to recover. • We cite, as sustaining our ruling on this point, 
Fost. Fed. Pr. § 16 and cases cited: Desty, Rem. Causes, p. 246, 



SMITH V, NORTHERN PACIFIC RAILROAD CO. 21 

§ lo; Dill. Rem. Causes, c. 16; De Camp v. Miller, 44 N. J. Law, 
617-620. 

It is next urged that the court erred in proceeding with the 
trial of the case against the objections of the defendant, because, 
it is insisted, the notice of trial was insufficient. The notice 
stated that the issues would be tried at LaMoure, in the County 
of LaMoure, on the ist day of September, 1891. As a matter of 
fact the term did not commence on that day, nor until September 
iSth, 189X. The term fixed by the statute would have commenced 
on the 4th Tuesday of October. Chapter 79, Laws 1891, § 4. But 
a term had been called by the district judge for September 15th, 
and it was at this term that plaintiff moved the cause for trial. 
The objection is devoid of merit. The only object of a notice of 
trial is to give the party on whom it is served a chance to prepare 
for trial. A notice of trial, erroneous as to the day of trial, is 
nevertheless sufficient, if such notice, when read in the light of 
other information which the law gives, truly informs the party as 
to the time and place of trial. The defendant could not have 
failed to understand that the purpose of the plaintiff was to insist 
on a trial of this cause at the next ensuing term to be held in 
LaMoure county. As the time of the holding of such a term was 
fixed by the call of the district judge, the defendant, in common 
with all others interested in the matter, had notice that a term 
would commence September iSth, and not September ist, as 
stated in the notice of trial, and was therefore aware that the date 
in the notice was an error, and was bound to know what the 
correct date was. We are clear that the trial court was right in 
over-ruling the point. S^c hisurafice Co, v. Kelsey, 13 How. Pr. 
535. Where an error in the date of a notice of trial occurs, it can- 
not mislead the opposing party, as the date of the commence- 
ment of the term is a matter of which he is bound to inform 
himself, and a comparison of that date with the date specified in 
the notice of trial will always disclose the error. 

The point is made that at a term called by the district judge 
under the statute no new business can be taken up, and no new 



52 NORTH DAKOTA REPORTS. 

cases placed on the calendar and tried. We think there is noth- 
ing in this point The judge is authorized to call additional 
terms of court. Chapter 79, Laws 1891, § 10. There is nothing 
in the statute to limit the nature of the business to be transacted 
at such terms. They are as much terms of court as those fixed 
by the statute itself. 

We now come to the merits of this litigation. Plaintiff Jiad 
judgment below. It is contended by the defendant that although 
there is sufficient evidence to support the finding of the jury that 
sparks from defendant's engine set the fire which destroyed 
plaintiff's property, yet that, on the whole case, there was no 
question of negligence to submit to the jury. There was only one 
fire set out. We have already held that this fact raises a disputa- 
ble presumption of negligence. Johnson v. Railroad Co.^ i N. D, 
354; (48 N. W. Rep. 227.) Whether such a presumption has been 
fully met and overthrown by the defendant's evidence is, we 
think, in the first instance, a question of law. We do not think 
that an inference of negligence naturally arises from the mere 
fact that a single fire has been started by a passing engine. 
That locomotives in operation do emit sparks which set fires is a 
matter of common knowledge. The inference that the fire was 
accidently started is certainly as strong as the inference of negli- 
gence in the origin of the fire. But to prevent a denial of justice 
some of the courts have created an artificial presumption of neg- 
ligence, to the end that the defendant may be compelled to pro- 
duce the witnesses who are familiar with the facts on which the 
issue of negligence depends, that they may be subjected to full 
and searching cross-examination on all the phases of the case,— 
on all the possible grounds of negligence. Some courts have 
refused to go so far. To extend this presumption of negligence 
beyond the reason for its existence would be irrational. It sum- 
mons defendant to show that there was no negligence; and the 
evidence must fully meet every possible ground of negligence 
under the circumstances and the pleadings. But when the whole 
case, independently of this artificial presumption, shows that there 



SMITH V. NORTHERN PACIFIC RAILROAD CO. 23 

was no negligence, the presumption cannot be considered for the 
purpose of making an issue for the jury. It has fully served its 
purpose, and can have no other effect. We therefore establish it 
as the rule in this state that the court must, in the first instance, 
determine the question whether the inference of negligence aris- 
ing from the mere setting out of a single fire has been fully over- 
thrown. We cite the following cases, out of a large number, as 
sustaining our view: Spaulding v. Railroad Co,, 30 Wis. no, 33 
Wis. 582; Volkman v. Railroad Co,, 5 Dak. 69, 37 N. W. Rep. 731; 
Huber v. Railroad Co,, 6 Dak. 392; 43 N. W. Rep. 819; Koontz v. 
Railroad Co,, (Or.) 23 Pac. Rep. 820; Kelsey v. Railroad Co,, (S. 
D.) 45 N. W. Rep. 204; Railroad Co, v. Talbot, 78 Ky. 621; Rail- 
road Co, v. Packwood, 7 Am. & Eng. R. Cas. 584; Railroad Co. v. 
Reese, 85 Ala. 497; 5 South Rep. 283. It remains to be seen 
whether defendant overthrew the presumption of negligence, and, 
if so, whether there were facts in addition to the mere starting 
of the fire tending to show negligence on the part of the defend- 
ant. After a careful review of the evidence we are convinced 
that defendant, by its evidence, did all that was incumbent on 
it, — i. e,, disproved that it was negligent in respect to the condi- 
tion of the engine and the manner of operating it. We will not- 
incumber this opinion with a statement of the evidence. Cases 
of this kind are of little value as precedents, for the facts differ so 
in different cases. The language of the court in Hoffman v Rail- 
road Co,, (Minn.) 45 N. W. Rep. 608; that a jury is not bound to 
accept as conclusive the statements of a witness that an engine 
was in good order and carefully operated, although there is no 
direct evidence to the contrary, must be read in the light of the 
facts of that case. There the testimony as to inspection was not 
satisfactory to the court, not because the connection of the wit- 
ness with the defendant was regarded as affecting their credibility, 
but because the evidence as to inspection left a suspicion that 
proof of an inspection made at a time nearer to the time of the 
setting out of the fire would have disclosed some defect. It is 
apparent that if the testimony of the railroad employes is to be 



24 NORTH DAKOTA REPORTS. 

regarded as insufficient to disprove negligence, because of the 
relation they, sustain to the defendant to the litigation, then in 
every case the question of negligence must be left to the jury, 
although there is nothing to support a finding of negligence, save 
an arbitrary presumption, not founded in reason, and adopted 
merely to compel a full disclosure by the railroad of all the facts 
surrounding the case. 

We think the presumption was fully met, and it only remains to 
be considered whether there was any evidence tending to show 
negligence. After this presumption was overthrown, all that 
seems to be urged as supporting the claim of negligence is the 
fact that the fire started 1 18 feet from the track. But there is no 
evidence that this is an unusual occurrence, or that it is at all 
inconsistent with the exercise of due care. We cannot say that 
the mere fact that a fire was set that distance from the track 
indicates negligence in any respect. The wind was blowing very 
hard, and we cannot say, in the absence of testimony to. that 
effect, that a spark, which, without fault on the part of the 
defendant, might have escaped through the meshes of the wire 
netting, could not have been carried Ii8 feet frohi the track, and 
set a fire, as well as 50 feet, and set a fire. The time consumed in 
the flight of a spark 118 feet through the air must, with a high 
wind blowing, be scarcely appreciable. There is nothing in the 
evidence to show that it would require an unusually large spark % 
to live through such a flight, and start a fire. We have examined 
many cases, but, as each case depends upon its own peculiar facts, 
it would be useless to cite them. We will, however, refer to one 
which is confidently relied on as an authority. It is Greenfield v. 
Railroad Co.y 49 N. W. Rep. 95, — an Iowa case. The opinion is 
not satisfactory in its reasoning. The chief thought running 
through the opinion is that defendant failed to overthrow the 
presumption of negligence, because there migJit have been other 
particulars in which defendant might have been negligent, aside 
from defects in the engine or in its construction, and aside from 
carelessness in operating it. In what such negligence could 



SMITH V, NORTHERN PACIFIC RAILROAD CO. 2$ 

consist, or how it could have been instrumental in causing the fire, 
was not pointed out by the court. We do not approve of holding 
one liable on a conjecture of possible negligence. The better rule 
is th^it the arbitrary presumption is overcome when the defend- 
ant has disproved negligence in those particulars as to which neg- 
ligence might reasonably exist under the circumstances. And of 
course the plaintiff must be limited to the grounds of negligence 
set forth in his complaint. The court in this case justified this 
extreme doctrine by the language of the statute of that state, 
which, by its terms, clearly imports an absolute liability for fire, 
irrespective of negligence; the statute providing that "any corpor- 
ation operating a railroad shall be liable for all damages by fire 
that is set out or caused by the operation of any such railroad." 
Civil Code, Iowa, § 1289. Say the court: "The construction of § 
1289, of the Code requires a holding of absolute liability for such 
fires, or such a rule as this as to presumptions." If that court 
intended to decide that the mere fact that a single fire was set, as 
in that case, 1 16 feet from the track, was enough to carry the case 
to the jury, we must express our disapproval of such a rule. The 
other cases cited to support the claim that the setting of the fire 
118 feet from the track was enough to carry the case to the jury, 
do not warrant any such doctrine. There were other elements 
which controlled these decisions. In Railroad Co. v. McClelland^ 
42 111. 355, where the fire caught 100 feet from the track, the 
court say: "There was no proof that the engine which threw the 
sparks into the plaintiff's meadow was provided with any means 
by which they might have been arrested. Indeed it is shown by 
the testimony of some of the engine drivers, sworn on behalf of 
the defendant, that an engine thus provided will not throw sparks 
100 feet, though the wind might carry them twenty or thirty feet." 
\xiDcyscher\, Railroad Co., (Minn.) 45 N. W. Rep. 719; where the 
fire started eighty-six feet from the track, there was testimony 
that, at the point where the fire was set out, there was found a 
coal cinder so large that it could not have passed -through the 
meshes of the wire netting had it been in proper condition. In 



26 NORTH DAKOTA REPORTS. 

Railroad Co, v. Boss, 41 Fed. Rep. 917; there was no evidence 
whatever showing that the engineer was a competent man, or that 
he operated the engine in a skillful manner. In this case the 
sparks were not only carried 100 feet from the track, but were 
thrown fifty feet into the air above the smoke stack, and there 
was evidence in the case, coming from the lips of the defendant's 
own skilled employe, tending to show that such. a fact indicated 
that the engine was not in good condition. We are of opinion 
that the court should have granted the defendant's motion to 
direct a verdict in its behalf, and the judgment and order are 
therefore reversed, and a new trial ordered. 

Wallin, J., concurs. 

Bartholomew, J., having been of counsel, did not sit on the 
hearing of the above case, nor take any part in the decision. 
(S3 N. W. Rep 173.) 



Northern Dakota Elevator Company vs, Clark & Smart, and 
McDermott, Assignee. 

opinion filed June 20th, 1892. 

Confusion of Goods — Preferances — Rij^ht to Pursue in Hands of Third 
Party. 

Where the property of one is received by another, this, of itself, does not 
entitle the owner to priority of payment out of the general assets of the one 
receiving the property. To recover his property, the owner must be able to 
trace and identify it in some form. When it is mingled indistinguishably with 
the mass of property of the one receiving it, or when, as in the case of money, it 
is paid out by him, the right to pursue it is lost, because identification is impos- 
possible. Mere enrichment of the estate or extinguishment of debts with the 
property received will not make the owner thereof a preferred creditor. 

Appeal from the District Court, Griggs County; Rose, J. 
Action by the Northern Dakota Elevator Company against 
George Clark and others to recover certain money claimed to be 



NORTHERN DAKOTA ELEV. CO. V. CLARK & SMART. 2/ 

in the hands of one of defendants as^ assignee of Clark & Smart. 
Judgment for plaintiff. Defendants appeal. 
Reversed. 

David Bartletty for appellants. 

Owners seeking to follow their property or its proceeds, must 
trace it into defendant's possession, WItelley v. Foy^ 6 Johns. 34; 
Van Allen v. BaTtk, 52 N. Y. i; Ba?ik v. I?is, Co, 104 U. S. 54; 
Kip V. Bank, 10 Johns 63; Bafik v. King, 57 Pa. St. 202; Cook v. 
Tullis, 18 Wall. 332; Schulerw. Ba-nk, 27 Fed. Rep. 424. To impress 
a trust character upon funds which an agent has misapplied it is 
incumbent upon the principal to clearly trace such funds into the 
hands of the party against whom relief is sought. Commercial 
Nat, Bank v. Armstrong, 39 Fed. Rep. 684; Illinois, Trust & Savings 
Bank V. First Nat. Bank, 15 Fed. Rep. 858; Bank of Commerce v. 
Russell, 2 Dill. 215; Storys, Eq. Jur. 1259; Edson v. Angel, 25 N. 
W. Rep. 307; Appeal o£ Hopkins Exr. 9 At. Rep. 867; Cavin v. 
Gleason, u N. E. Rep. 504. 

Edgar W, Camp, for respondent. 

If the property can be traced into the estate of the defaulting 
agent or trustee, this is sufficient. National Bank v. his. Co. 104 
U. S. 54; Van Alen v. Am, Nat, Bank, 52 N. Y. i; People v. City 
Bank of Rochester, 96 N. Y. 32; Peak v. Ellicott, I Pac. Rep. 499. 
The defendants having used respondents money in their business, 
having benefited their estate by such use a trust attaches to that 
estate which came to McDermott under the assignment. Peak v. 
Ellicott, 30 Kan. 156; S. C. i Pac. R. 499; McLeod v. Evans, 28 N. 
W. Rep. 173; S. C. 66 Wis. 406; People v. City Bank of Rochester, 
96 N. Y. 35; Nurse v. Satterlee, 46 N. W. Rep. U02; Farmers etc. 
Bank V. Milling Co, 47 N. W. Rep. 402; Independent Dist, v. King, 45 
N. W. Rep. 908; Davenport Plow Co, v. Lamp, 45 N. W. Rep. 
1049; Importers Bank v. Peters, 25 N. E. Rep. 319. 

Corliss, C J. By this proceeding the plaintiff is seeking to 
follow its money, claimed to be in the hands of the defendant 
McDermott, as assignee of Clark & Smart. It is insisted by the 



28 NORTH DAKOTA REPORTS. 

defendant McDermott that J;his money never reached the posses- 
sion of Clark & Smart, and that, if it did, it had become so mingled 
with their general assets that it could no longer be traced and 
identified, either in its original or in a changed form, at the time 
their property passed to him as their assignee. The facts would 
seem to support both of these contentions. Clark & Smith were 
located at Cooperstown, N. D., engaged in banking business, and 
acted from the opening of the wheat season in 1889 to January 
26th, 1 891, as paying agents for the plaintiff at that place. As 
such agents they cashed wheat tickets or checks issued by the 
plaintiff in buying wheat. The arrangement between plaintiff 
and them was that they were to furnish all currency necessary to 
cash these wheat tickets, and were to reimburse themselves by 
drafts on the plaintiff. Business was carried on under this 
arrangement until January 26th, 1891, when Clark & Smart made 
an assignment . to defendant McDermott for the benefit of their 
creditors. At that time the account between the plaintiff and 
Clark & Smart disclosed a balance of $275.77 in favor of 
plaintiff. There was a contest in the trial court, and also in this 
court, over the question whether the simple relation of debtor and 
creditor existed between the parties, or whether the arrangement 
between them, in connection with their acts thereunder, created a 
special relation of a fiduciary character between them. We will 
assume the latter for the purposes of this case. Still we are 
unable to sustain the judgment of the court, which gave the plain- 
tiff priority of payment out of the general assets in the hands of 
the assignee. On January 19th, 1891, there was a balance in favor 
of the plaintiff of $11 1.60. Between that time and the date of the 
assignment, Janua/y 26th, 1891, Clark & Smart paid out for the 
plaintiff in payment of wheat tickets the sum of $335.83. This 
would have left no funds of the plaintiff on hand, had it not been 
for a draft for $500, drawn on the plaintiff on January 19th. But 
no part of the proceeds of this draft ever came to the possession 
of Clark & Smart. The draft was drawn payable to the order of 
H. P. Smart, and the proceeds thereof went to his individual 



NORTHERN DAKOTA ELEV. CO. 7^ CLARK & SMART. 29 

credit in the Citizens' National Bank of Fargo. It is only on the 
assumption that the proceeds of this draft came to the hands of 
Clark & Smart that it is at all possible to show any money of the 
plaintiff in the control of Clark & Smart at the time of the assign- 
ment, even giving to the plaintiff the benefit of its theory that a 
fiduciary relation, and not that of debtor and creditor, existed; 
for, but for the proceeds of this draft, the balance of account 
would have been against the plaintiff. It is true that Clark & 
Smart are doubtless chargeable with liability for the amount of 
this draft, but the plaintiff, to recover, certainly must follow the 
proceeds of it into the hknds of Clark & Smart in some form. 
But we prefer to put our decision on a broader ground. The 
theory on which alone plaintiff can secure priority of payment 
out of the funds in the hands of the assignee is that the identical 
money can be traced in some form from plaintiff to Clark & 
Smart, and that it was still susceptible of identification at the 
time of the assignment. That this could not be done seems clear ^ 
to us. The proceeds of the draft never went into a separate fund. 
If they can be regarded as having ever been in the hands of Clark 
& Smart, they were immediately turned over to Mr. Smart, and 
used by him individually, and charged up to him individually on 
the firm books. But it is claimed that the proceeds of this draft 
went to enrich the estate of Clark & Smart, and that, therefore, 
the plaintiff is entitled to priority of payment. Authorities are 
cited to sustain this view. Some of them do support it. They 
stand on no principle, and are opposed to a much stronger array 
of decisions. The plaintiff is seeking to recover its property in 
the possession of the defendant McDermott, but it is undisputed 
that it cannot identify any particular portion of the assets in the 
hands of such defendant as being its property. Neither can it 
trace such property into any particular fund. The very most that 
can-be claimed is that the plaintiff's property has gone into the 
general mass of the property owned by the assignors prior to the 
assignment. But after its receipts by them it is no longer possi- 
ble to trace it. It must have been paid out by them, as only $3.96 



30 NORTH DAKOTA REPORTS. 

in cash was found on hand by the assignee. We see no principle 
on which the plaintiff can insist upon priority of payment out of 
the general assets in the hands of the assignee. The rule gov- 
erning this class of cases is very simple; the only difficulty is in 
applying it. If one has not consented to part with his property 
and take the responsibility of another for the payment of an 
equivalent therefor, he may follow his property so long as he can 
trace it. He has not agreed to part with the title. He has 
not agreed to accept in lieu thereof the personal responsibility of 
another. The law will not force him into a relation to which he 
has never assented. He may follow his property, but he must be 
able to identify it in some form. 

It has been supposed by some courts that the decision in 
Knatchbull v. Hallett, 13 Ch. Div. 696; has greatly modified the 
rule as it existed prior to this decision. In that case a solictor 
sold bonds of his client, and deposited the proceeds in his general 
account with a banker. Against this account he drew checks for 
his own personal purposes, and he also deposited, from time to 
time, his own funds therein. At all times the balance in his favor 
exceeded the amount of the proceeds of the bonds of his client. 
It was held that the client might follow his money into this 
account, and have a charge thereon to the extent of the money 
received from the sale of the bonds. We find in this decision no 
extention of the rule allowing property to be followed and 
recovered. The client's money had gone into a special fund, and, 
as the account had never been reduced below the amount of his 
money therein, it was entirely . proper to hold that the solicitor 
had drawn out his own funds from time to time, and not those of 
the client. The law allows the owner to follow his property not 
only in its original form, but also in any form into which it may 
have been changed, providing identification is possible. A new 
doctrine has sprung up in recent days. It goes upon the theory 
of the enrichment of the estate out of which priority is sought to 
be secured. This would entitle every general creditor to prefer- 
ence, and therefore there would be no preferences as between 



NORTHERN DAKOTA ELEV. CO. V, CLARK & SMART. 3 1 

such creditors and the person whose property, without his con- 
sent, had enriched the estate. Reasoning along this line, we 
would have a preference in favor of general creditors as against 
one who by a tort had caused a liability against his estate without 
enriching it, as in case of an assault and battery, libel, slander, 
seduction or malicious prosecution. But no such preference 
exists; nor can it exist. The Wisconsin decisions sustaining this 
rule have been made by a divided court, in every instance three 
of the judges favoring the rule and two of them dissenting. See 
McLeod V. Evans^ (Wis.) 28 N. W. Rep. 173, 214; Bowers v. Evans^ 
(Wis.) 36 N. W. Rep. 631 ; Francis v. Evans, (Wis.) 33 N. W. Rep. 
93. The case of People v. City Bank of Rochester, 96 N. Y. 32; is 
distinguished in a later case, — Cavin v. Gleason, (N. Y. App.) n 
N. E. Rep. 504, — the court saying of it that it was not claimed in 
that case that the money sought to be followed had not in some 
form gone into the hands of the receiver. In this latter case the 
right to follow money was held to be lost by the payment of that 
money to a third person, it being no longer possible to trace it, 
except in the hands of one who, having taken it in the or^Iinary 
course of business, could not be compelled to refund it. Cer- 
tainly the money cannot be said to be in any form in the hands of 
one who has paid it out. That the New York court of appeals is 
in no manner committed to this new doctrine invoked in this case 
is apparent in its language in the case in 11 N. E. Rep. 504: "The 
trust fund, with the single exception mentioned, was misappro- 
priated by White to the payment of his private debts prior to the 
assignment. It cannot be traced ihto the property in the hands 
of the assignee, for the plain reason that it is shown to have gone 
to the creditors of White in satisfaction of their debts. The court 
below seem to have proceeded upon a supposed equity springing 
from the circumstances that by the application of the fund to the 
payment of White's creditors the assigned estate was relieved /n? 
tanto from debts which otherwise would have been charged upon 
it, and that thereby the remaining creditors, if entitled to distri- 
bution without regard to the petitioner's claim, will be benefited. 



32 NORTH DAKOTA REPORTS. 

We think this is quite too vague an equity for judicial cognizance, 
and we find no case justifying relief upon such a circumstance. 
In a very general sense, all creditors of an insolvent may be sup- 
posed to have contributed to the assets which constituted the 
residuum of his estate." This new rule has sprung from a mis- 
conception of the decision in Knaichbtdl v. Hallett, supra. This 
case merely decides that, if the holder of the money makes an 
investment with it, as by depositing it in a bank, thus establishing 
between him and the bank the relation of creditor and debtor, 
the owner of the money may follow it in this new form, because 
he can trace it. His money is in this particular investment. The 
fact that other money has been placed in the same investment, 
i. e., the same account, cannot affect his rights, and it is an 
entirely rational presumption that, whenever the depositor draws 
for his own use funds from this account, he intends to draw his 
own money, leaving the other funds untouched. But it is impos- 
sible to trace the money when, as in this case, it has been paid 
out by the one who has it in his possession. If the plaintiff's 
money, went into the hands of the 'assignors, it Was paid out 
before the assignment, except as to $3.96; this being all the cash 
found on hand by the assignee. As to this S3.96, it might be that 
the plaintiff's position would be sound if it were able to show that 
any of the last $500 had ever come into the possession of the 
assignors. It may be that, in the view of the established custom 
of remitting by draft collections made at a distance, it is essential 
to the protection of the rights of persons owning papers for- 
warded for collection merely that the cash with which the collect- 
ing bank carries on its business, and with which the money col- 
lected is mingled, should be regarded as a specific fund, and that 
all payments made by the bank thereout should be regarded as 
having been made out of its own cash, and not with the cash col- 
lected. A remittance of the specific money collected is probably 
never made. See, as sustaining this view, Bank v. Weems, (Tex. 
Sup.) 6 S. W. Rep. 802. This is a very important question, and 
we prefer not to decide it without the aid of full argument. Our 



NORTHERN DAKOTA ELEV. CO. V. CLARK & SMART. 33 

views are supported by what we regard as the line of authori- 
ties most consonant with sound principle. Cavin v. Gleasan, (N. 
Y. App.) II N.'E. Rep. 504; Appeal of Hopkin's Ex'r., (Pa. 
Sup.) 9 Atl. Rep. 867; Edson v. Angell, (Mich.) 25 N. W. Rep. 307; 
Bank V. Armstrong, 39 Fed. Rep. 684; Bank v. Dowd, 38 Fed. 
Rep. 172; 2 Story, Eq. Jur. §§ 1258, 1259; 2 Pom. Eq. Jur. §§ 
105 1, 1058; Bank V. Gcetz, (111. Sup.) 27 N. E. Rep 907; Englar v. 
OffuU, 16 Atl. Rep. 497; 70 Md. 78. The decision in Bank v. 
Peters, (N. Y. App.) 25 N. E. Rep. 319; is not in conflict. with the 
case in 1 1 N. E. Rep. 504. It belongs to the class of cases of which 
KnatckbuU v. Hallett, is one, where the money has gone into a 
special fund. The drawers of a draft had deposited it for collec- 
tion with a bank, which forwaKled it to another bank, by which 
latter bank the collection was made, but no remittance was made 
before a receiver in insolvency of the former bank was appointed. 
It was held that the drawer of the draft could recover the money 
from the collecting bank. It was not a case where the money had 
been received by the insolvent bank, and mingled with its general 
funds. The insolvent bank had not received the money at 
all. The solvent bank had received it, and still was indebted 
for it to some one. The court very properly held that 
it was indebted for it to the true owners of the draft, the forward- 
ing bank never having had any title to the draft, but having 
received it merely for collection. 

The judgment of the District Court is reversed. All concur. 

(53 N. W. Rep. 175.) 



34 n6rTH DAKOTA REPORTS. 

Fargo & Southwestern Ry. Co. vs. Brewer. 

Opinion filed Aug. 9th, 1892. 

Railroad Companies— Taxation— Ezetnptidns — "Gross Earnings Law." 

Chapter 99, of the Laws of 1883, known as the **Gross Earnings Law," did 
not exempt from taxation property of a railroad company, not embraced in any 
land grant and not used for railroad purposes. 

Appeal from District Court, Stutsman County; Rose, J. 

Action by the Fargo & Southwestern Railroad Company against 
William E. Brewer, as county treasurer of LaMoure County, to 
restrain certain tax proceedings. A demurrer to the complaint 
was sustained, and plaintiff appeals. 

Affirmed. 

Ball & Watson diXiAJohn C, Bullitt, Jr,, for appellant. 

L, C. Harris, for respondent. 

Corliss, C. J. The object of this litigation was the restraining 
of certain tax proceedings. A demurrer to the complaint was 
sustained, and from the judgment dismissing the action this 
appeal is taken. The land assessed was city property, situated in 
the city of LaMoure. The plaintiff urges that this land was 
exempt from taxation under the provisions of the gross earnings 
act of 1883. This statute provides that, "in lieu of any and all other 
taxes upon any railroad, except railroads " operated by horse 
power, within this territory, or upon the equipments, appurte- 
nances, or appendages thereof, or upon any other property sit- 
uated in this territory belonging to the corporation owning or 
operating such railroads, or upon the capital stock or business 
transactions of such railroad, there shall hereafter be paid into 
the treasury of the territory a percentage of all the gross earnings 
of the corporation owning or operating such railroad, arising 
from the operation of such railroad as shall be situated within 
this territory, as hereinafter stated." The balance of the act fixes 
the percentage to be paid, and relates to matters of detail not 



FARGO & SOUTHWESTERN RY. CO. V, BREWER. 35 

important to the po^nt under consideration. If the real estate 
assessed had been a portion of a land grant to the plaintiff, there 
might have been force in the contention that the law did in fact 
exempt it from taxation. But there is no pretense that the land 
assessed was of that character, nor is it claimed that the land was 
purchased or used for railroad purposes. It consisted of lots in 
the city of LaMoure, and had no connection with the operation 
of plaintiff's road. Despite the broad language of the statute, we 
are of opinion that such property 'was not intended to be 
exempted from taxation. The authorities are unanimous on the 
point. The reasoning on which the cases rest is satisfactory to 
our minds. We will not state the reasons for the doctrine which 
these cases enunciate, but content ourselves with citing them in 
support of our decision that the lands, not being used for railroad 
purposes, were not exempted from taxation by the act referred 
to. Slate V. Commissioners, 23 N. J. Law 510; Cook v. State, 33 N. 
J. Law 474; State v. Flavell, 24 N. J. Law 370; Bank v. State, 104 
U. S. 493; State v. Fuller, 40 N. J. Laws 328; County of Todd v. 
Railroad Co., (Minn.) 36 N. W. Rep. 109; Ford w. Land Co., 43 
Fed. Rep. 181; County of Ramsey v. Railroad Co,, (Minn) 24 N. 
W. Rep, 313. 
The judgment of the District Court is affirmed. All concur. 

Bartholomew and Wallin, J. J., having been of counsel, did 
not sit on the hearing of the above case, nor take any part in the 
decision; Judge Winchester, of the Sixth Judicial District, and 
Judge McConnell, of the Third Judicial District, sitting in their 
places by request. 

(53 N. W. Rep. 177.) 



36 north dakota reports. 

State vs. Hasledahl. 

Opinion filed Nov. 4th, 1892. 

New Information Filed to Cure Defects Without New Preliminary Exam- 
ination. 

Where an information was adjudged defective by the Supreme Court because 
it did not state that the prosecution was in the name and under the authority of 
the state, and the case was reversed, held^ it was not error for the trial court to 
make an order allowing the state's attorney to Ble a new information curing the 
defect, without a new preliminary examination of the accused. 

Presence of Accused not Necessary. * 

The making of such an order is no part of the trial, within the meaning of 
§ 7321, Comp. Laws, providing that the defendant must be personally present 
at the trial when the offense is felony, and it is therefore not necessary that 
defendant should be personally present when such order is made. 

Harmless Error. 

If notice to defendant or his counsel of application for such order was neces- 
sary, the error, if any, in failing to give such notice, was error without preju- 
dice. For such an error there can be no reversal. Section 7588, Comp. Laws. 

Weight and Sufficiency of Evidence. 

Evidence examined, and held sufficient to warrant a conviction. 

Error to District Court, Richland County; Lauder, J. 
Martin O. Hasledahl was convicted of embezzlement and brings 
error. 
Affirmed. 

M, A Hildreth, for plaintiff in error. 

C. A, M. Spencer, Attorney General; 5. H. Snyder, State's 
Attorney, and W, E. Purcell, for the state. 

Corliss, C. J. The plaintiff in error has been twice convicted 
of embezzlement. The conviction on the former trial was reversed 
because of a defect in the information. State v. Hasledahl, 2 N. 
D. 521; 52 N. W. Rep. 315. It failed to show on its face that the 
prosecution was in the name and by the authority of the State of 
North Dakota. After the case was remanded, the District Court 
made and entered and order directing the state's attorney to file 



STATE V. HASLEDAHL. 3J? 

a new information to obviate the technical defect in the (ormer 
one. Such a new information was filed. It was in all respects 
practically the same as the former information, with the exception 
of a statement that it was filed in the name and by the authority 
of the State of North Dakota. It is urged that it was improper 
to allow this information to be filed as the basis of a criminal 
prosecution without a new preliminary examination. That there 
had been such an examination before the defective information 
was filed is undisputed. That this examination was sufficient in 
all respects to warrant the filing of an information for the offense 
charged in the new information filed is uncontroverted. Why it 
should be necessary to re-examine the accused before a committing 
magistrate, in order to correct a technical defect not in the pro- 
ceedings on such examination, but in an information filed there- 
after, it is difficult to understand. The language of the statute 
does not require it, nor does the spirit of the law demand it. The 
main purpose of the provision requiring such an examination 
before the state's attorney shall have power to file an information 
is to protect the citizen against the arbitrary action of that officer. 
The return of an indictment, only after an examination of evi- 
dence by a grand jury, guarantied the citizen, as a rule, against 
prosecutions without probable cause. This guaranty is perpet- 
uated by the requirement that there shall be a preliminary exam- 
ation before a committing magistrate. After such an examination 
has been had, — one sufficient to sustain an information, — it is idle 
to urge that the rights of the accused are in the least prejudiced 
by the filing, without a second preliminary examination, of 
another information to take the place of the former defective 
one, — to amend it wherein it was technically insufficient, — charg- 
ing the same offense charged in the former information, and dif- 
fering therefrom only by supplying a formal part omitted from 
the first information. No authority can be found to uphold such 
a contention. But we are referred to cases wherein it is held that, 
where an indictment is set aside as defective, the case must be 
resubmitted to the same or another grand jury; and in one case it 



38 KORTH DAKOTA REPORTS. 

was held that the same grand jury could not return, without a 
re-examination of the witnesses, a second indictment, the former 
indictment having been quashed by the prosecuting attorney. 
These cases are not in point. In Ex parte Bain, 121 U. S. i; 7. Sup. 
Ct. Rep. 781; the trial court, without the consent of the grand 
jury, amended the body of an indictment by expunging therefrom 
certain words, and it is apparent from the opinion in this case 
that the words were not regarded by the Supreme Court as mere 
surplusage. The words struck out by the trial court were, "The 
comptroller of the currency and." The gist of the charge was 
making a false report with intent to deceive the comptroller of 
the currency and others. The court said: "How can the court 
say that there may not have been more than one of the jurors 
who found this indictment who were satisfied that the false report 
was made to deceive the comptroller, but was not convinced that 
it was made to deceive anybody else?" It is elementary that the 
body of an indictment cannot be amended by the court without 
the consent of the grand jury. Whenever the accused is arraigned 
on such an amended indictment, he can plead that the grand 
jury have found no such indictment against him. The body that 
found the indictment has not amended it. But when an informa- 
tion is amended, as it may be, this objection cannot be urged 
against the amended information. The officer that presented the 
orignal information has amended it by either interpolating into 
the old one the amendment, or by filing a new one containiag 
such amendment. It has always been the rule that an information 
could be amended with leave of court, by the prosecuting 
attorney. 10 Amer. & Eng. Enc. Law, 709, note i; Whart Crim. 
PI. § 87. The decision in StaU v. Ivey, (N. C.) 5 S. E. Rep. 407, 
is confidently relied on by counsel for the plaintiff in error. In 
that case a bill of indictment was sent to the grand jury, and, 
upon examination of witnesses, it was returned a true bill. The 
solicitor of the state Qonsidering that it did not charge the offense 
committed, it was, on his motion, quashed; whereupon another 
bill was sent the grand jury, which was returned a true bill, without 



STATE Z/. ' HASLEDAHL. 39 

any further examination of witnesses. It was held that the 
second indictment must be squashed. It will be noticed that in 
this case the first indictment was quashed. It was utterly anni- 
hilated. Ther^ was nothing to amend. Its destruction carried 
down with it the examination of witnesses before the grand jury. 
Such examination could have no separate existence apart from 
the indictment. No record of such examination is required to be, 
nor is it ever, kept. But the record of a preliminary examina- 
tion is entirely distinct from the information, and can and does 
exist after the information is destroyed. But in the case at bar 
the information was not set aside. A demurrer was interposed to 
it. The demurrer w?is overruled. On writ of error, this court held 
that the demurrer should have been sustained because of the 
omission from the caption of words showing that it was filed in 
the name and under the authority of the state. The conviction 
was reversed. The case then stood as though the trial court had 
sustained the demurrer. That court made an order directing the 
filing of a new information to remedy the defect in the former 
one. This was equivalent to an amendment, and, as an informa- 
tion must be verified, it is perhaps the better practice to make an 
amendment in this manner; otherwise it can be said that the veri- 
fication to the old information does not embrace the new matter 
interpolated into the information by amendment. As the infor- 
mation was not quashed, the preliminary examination was unaf- 
fected. It continued to stand, and it was therefore true that there 
had been a preliminary examination as a foundation for the filing 
of the amended information. The same conclusion is inevitable, 
if we regard the old information as set aside, and consider that an 
entirely new information was iiled. Setting aside an information 
does not touch the preliminary examination. The foundation 
remains. Setting aside or quashing an indictment destroys the 
whole proceeding. There must be a new indictment found by the 
giand jury, and this necessitates a judicial investigation by that 
body. As the law contemplates no record of the examintion, as 
it does of a preliminary examination, the grand jury cannot refer 



4b K6Rttt t)AK6TA REPORTS. 

to such a record in finding the new indictment, but must begin 
the investigation as though no prior indictment had been found; 
It is on this principle that the Ivey case stands. No such princi- 
ple is applicable to the case at bar. The Ivey case is not in point 
for another reason. In that case there was a radical change in 
the indictment, and not, as in the case at bar, a mere amendment 
of the caption. In the Ivey case, had there been a defect in the 
caption only, it is clear, upon authority, that the indictment could 
have been amended in that respect, not only by the grand jury, 
under the order of the court, but by the court without the pres- 
ence, consent or knowledge of the grand jury. McGuire v. State, 
72 Am. Dec. 124; State v. McCarty, 54 Am. Dec. 150; State v. 
Creight, 2 Am. Dec. 656; State v. Jofies, 17 Am. Dec. 483; 10 
Am. & Eng, Enc. Law, p. 536, note 3; i Bish. Crim. Proc. §§ 
661, 662. Indeed, there is authority for the proposition that an 
indictment may be withdrawn from the files, and recommitted to 
the same grand jury, who may amend it without a re-examination 
of witnesses. State v. Davidson, 2 Cold. 184. In the Ivey case 
this was not done. The old indictment was quashed on the 
motion of the prosecuting officer. There was nothing left to send 
back to the grand jury for amendment. The Ivey case does not 
decide that an indictment may not, on order of the court, be 
returned to the same grand jury, and be by them amended with- 
out further examination. But in the case at bar the body of the 
information has not been changed. There was a mere alteration 
in the caption. But, construing the information as a new one, 
there can be no question about the right of the state's attorney to 
file it under the order of the court, without another preliminary 
examination. It would, indeed, be singular if, when a demurrer 
to an information had been sustained for defects therein, no 
amendment thereof could be made, or the old one could not be 
supplanted by a new one correcting the error, without an entirely 
new preliminary examination. The quashing of the old informa- 
tion does not carry with it the preliminary examination. The pre- 
liminary examination is complete in itself, and entirely independent 



STATE V, HASLEDAHL. 4 1 

of the subsequent proceedings. Irregularity in such proceed- 
ings cannot affect these anterior disconnected proceedings. The 
grand jury act judicially in making the investigation and in find- 
ing the indictment. The state's attorney, in filing an information, 
is governed by the record of a prior complete, independent judic- 
ial investigation similar to that made by a grand jury. When the 
trouble is not with this precedent examination, how can it be 
affected by a defect in subsequent proceedings? What error the 
state's attorney has made in proceedings subsequent to the pre- 
liminary examination, i. ^., the information, can no more touch 
the soundness of that examination than the former's subsequent 
error can affect a valid indictment based on a proper investigation. 
To make the authorities sustaining the necessity of a new examin- 
tion to warrant a new indictment analogous, we must have a case 
presenting a defect in the proceedings 'before the committing 
magistrate, and not merely in the information. Is the power to 
file an information gone because an hour before a defective one 
has been filed and quashed on demurrer? Notwithstanding the 
fact that the valid information might have been originally filed an 
hour previous, must all proceedings be regarded as annihilated, 
and, in order to correct the error by filing such valid information, 
must it be deemed necessary to rearrest the accused, fo conduct a 
new examination, and have him held a second time for the same 
offense, burdening him and the public witl^additional trouble and 
expense, and necessitating his giving a new bond, merely because 
the first information was technically defective? The duty of the 
state's attorney is to file such valid information as is warranted by 
the record of the preliminary examination, and, whenever a pris- 
oner is arrainged under a new or an amended information, the 
only inquiry is whether it is a proper information, in view of the 
preliminary examination. It is strictly true, in such a case, that 
there has been and is a preliminary examination to support such 
an information. 

It is urged that the evidence is insufficient to warrant a convic- 
tion. The plaintiff in error was charged with embezzling a sum 



42 NORTH DAKOTA REPORTS. 

of money while in the employ of the National Elevator Company. 
As such agent, he was authorized to purchase and sell grain for 
such company, to collect the moneys due on sales, and to remit , 
the same to such company, or to use the same in making pur- 
chases of grain for such company. It was proved that in the 
month of July, 1890, a car load of oats was shipped to him, and 
that thereafter he sold oats to various farmers, and received from 
them pay, partly in cash and partly in grain. The books kept by 
him disclosed no sale of oats, after July ist, 1890, although it was 
his duty to keep a daily account of sales, purchases, etc. Here 
was evidence that he had been selling oats belonging to his 
employer for cash, and had not accounted for the cash. This was 
sufficient to warrant his conviction for embezzling money of his 
employer. It is true that the accused testified that he used the 
cash paid to him in the' purchase of grain for the company; but 
the jury were not bound to believe his testimony, for it appeared 
that he was short in his accounts some 1,400 bushels of wheat, on 
the theory of his making such purchases, and there was no 
attempt on his part to explain why he failed to observe as to the 
oats sold the usual mode of bookkeeping, /. e.y charge himself with 
the cash received for the oats sold. It was his duty, under his 
employment*, to keep his accounts in this manner, and there is no 
pretense that he failed to do so as to other items. The objection 
as to the admission ol evidence showing that the accused was 
short a large number of bushels of wheat and that h^ had no oats 
on hand, was without merit, and was properly overruled. It was 
necessary to prove these facts in order to make out the offense of 
embezzlement. For that purpose the evidence was competent. It 
was not offered to prove that he had embezzled wheat or oats, but 
to prove that he had not accounted for the proceeds of grain sold. 
It is proper to treat the money received as the money of the 
employer, and to charge the agent with the embezzlement of the 
money, and not of the property. The order allowing the filing of 
the new information was made without notice to the accused or 
his counsel, and in their absence. In this we see no error. The 



STATE V, JUDGE OF DISTRICT COURT. ' 43 

making of such an order was no part of the trial, within the mean- 
ing of § 7321, Comp. Laws, which provides that, where the offense 
is a felony, the defendant must be personally present at the trial. 
Efps V. State, (Ind.) i*N. E. Rep. 49I, 493; Boswellw. Cam., 20 
Grat. 860. The failure to give either the accused or his counsel 
notice of the application for this order, if notice was necessary, 
was without prejudicial effect upon the defendant. All objections 
which could have been interposed on the application for the 
order were raised and argued before both the trial court and this 
court, and both courts have heard him as fully on these points as 
if he had made the objections before the order was granted. If 
error, it was without prejudice, and for such an error there can 
be no reversal. Section 7588, Comp. Laws. 

Certain requests to charge were made by counsel for the 
accused. Error is assigned because of the refusal of the court to 
give them. Without examining them in detail, it is sufficient to 
say that we have carefully considered the points, and are clear 
that no error was committed by the refusal to charge the jury as 
requested, nor was the exception to the charge well taken. 

The judgment is affirmed. All concur. 

(53 N. W. Rep. 430.) 



State ex ret, R. R. Co, vs. Judge of District Court of Stuts* 

MAN County. 

Opinion filed Oct. 3i8t, 1892. 

Mandamus to District Judge— Refusal to Decide Motion for New Trial. 

Alternative writ of mandamus quashed, because it appeared that the motion 
for a new trial, which it directed the District Judge to decide, was not pending 
before him for decision. 

Application by the state on relation of the Northern Pacific Rail- 
road Company for a writ of mandamus to compel the judge of the 
District Court of Stutsman County, to take up and decide a motion 



44 ' NORTH DAKOTA REPORTS. 

for a new trial, which was alleged to be pending before him for 
decision. The alternative writ was quashed, and proceedings 
dismissed. 

Ball & Watson dinAJohn C. Bullitt, Jr., ior plaintiff. 

5. Z. Glaspell and E, W. Camp, for defendant. 

Corliss, C. J. On petition of the relator, an alternative writ of 
mandamus was issued directing the defendant to take up and 
decide a motion for a new trial, which it was alleged in the peti- 
tion was before him for decision, but which it was averred he 
refused to determine. On the hearing in this court, the defend- 
ant filed his answer to the alternative writ, and, an issue thus 
being formed, it was stipulated in open court that the court might 
treat the petition, answer, and affidavit as evidence, and determine 
t4ie questions upon this record without further proof. It lies 
wholly beyond our province to govern by the writ of mandamus 
the exercise of judicial discretion, nor can we use it as a proced- 
ure to correct errors in a case in which the judge or court has not 
refused to act, but has committed some mistake. Nonaction is 
the basis of the writ, provided a duty to act is established. It is 
urged in this case that the defendant has not refused to entertain 
and decide a motion for a new trial, for the reason that there is 
not pending before him any such motion for decision. If this 
fact be true, the alternative writ must be 'quashed. We are satis- 
fied it is true. It appears to be undisputed that a notice of motion 
for a new trial was duly served upon the counsel for the plaintiff 
in the action by council for the defendant in such action. The 
defendant therein is relator in this proceeding. It further appears 
that on the day and at the place specified in the notice, counsel 
for defendant in the action appeared before the District Judge, 
but that no one appeared for the plaintiff. On that day the 
motion was not argued, and the judge indorsed upon the papers a 
statement that the hearing of the motion was continued from that 
day (September I2th, 1889,) to September 21st, 1889. On the 
last named day no one representing either party appeared before 
the judge, nor does anything appear to have been done thereafter 



STATE V, JUDGE OF DISTRICT COURT. 4$ 

by either party with reference to the motion. It was urged that 
these facts established a submission of the motion to the court on 
the part of the relator herein as a matter of law. We cannot agree 
to this proposition. The action taken by the court in continuing 
the hearing of the motion to a later day, no argument having 
been made by counsel for the relator, would strongly indicate 
that the whole matter was left open, not only as to the plaintiff 
in the action, but also as to the defendant, the relator in this pro- 
ceeding. If these facts conclusively established that the counsel 
for the relator on the 12th of September, inforrfield the court that, 
while it might be disposed to continue the hearing of the motions 
so far as plaintiff was concerned, he desired then and there, on 
his part, to submit the motion on behalf of the defendant, then it 
might well be claimed that the motion was in fact submitted ,by 
the defendant, and that, therefore, the court was bound to decide 
it whether the plaintiff ever appeared or not, as he was in default, 
in failing to appear at the time specified in the notice of motion. 
But what took place is entirely consistent with the whole matter 
being left in the same condition as though the adjourned day 
(September 21st) was the first day set for the hearing, and as 
though nothing was done ^^ith respect to the motion except to 
postpone the argument and submission of it, as is frequently the 
case. It is true that the counsel for the relator asserts that the 
motion was submitted on September 12th, but this may be his 
conclusion from the facts already referred to. We feel con- 
strained to put this construction on his statement because 
he nowhere details any additional facts which woujd tend to show 
an actual submission on his part. Probably, in the absence of 
any positive evidence that there was no submission of the motion, 
we would regard his statement as one of fact, and not as a mere 
statement of his inference from other facts. But the learned 
judge to whom it is insisted that this motion was submitted dis- 
tinctly and positively asserts that the motion was never at any 
time submitted to him for decision, and that the papers were 
never left with him for decision. Whether they were left with him 



WWi^6/<fX!:r^~r^Y?^ 



46 , NORTH DAKOTA REPORTS. 

at all is in doubt. Unless the motion was subipitted to him for 
decision on September 12th, o& September 21st, it could not be 
submitted at all. After September 21st, no continuance of the 
motion having been made, and it not having been then or at any 
previous time submitted, it ceased to be a pending motion. There 
being no motion before the judge, he has no duty to perform with ^ 
respect to it, and the alternative writ should therefore be quashed. 
Many interesting and difficult questions were discussed on the 
argument, but the conclusion we have reached renders any 
decision upon them unnecessary. Under the circumstances, what- 
ever we might say touching them would be only oditer. The writ 
was issued under § § 86, 87, of the state constitution, vesting in 
this court superintending control over all inferior courts, and giv- 
ing it power to issue such original and remedial writs as may be 
necessary to the proper exercise of its jurisdiction. The alterna- 
tive writ must be quashed, and the proceeding dismissed. All 
concur. 

(53 N. W. Rep. 433) 



r 



O'NEIL V, TYLER. 47 

William 0*Neil vs. R. S. Tyler. 

Opinion filed Nov. 7th, 1892. 

Sale for Taxes — Adjoining Lots Assessed as One. 

Where adjoining lots in a town plat were assessed together as an entirety, 
and valued at one lump sum, a subsequent sale of such lots for the taxes based 
upon such assessment must follow the description in the assessment. The lots 
cannot legally be sold separately, each for moiety of the tax arising from the 
lump valuation. 

"Where Tax Deed Vacated— Judgment for Taxes. 

Where, on account of irregularities connected with the tax sale, a tax deed is 
set aside by the court, such deed no longer possesses anjr evidential force, and, 
in order to show that the tax for which the sale was made, or any subsequent 
tax, was a lawful tax, the party alleging the fact must show, by common-law 
proof, that the steps essential to a valid tax have been taken by the officials. A 
regular assessment and levy must be alleged and proved in order to recover 
judgment, under § 1643, Comp. Laws. 

City Ordinance — Mayor Must Approve Tax Levy. 

The charter of the City of Fargo, as amended in 1881, gave the mayor a veto 
power as to ordinances and resolutions passed by the council, and also conferred 
upon the "mayor and counciP' the power to "levy and collect taxes.** An ordi- 
nance also provided that the "mayor and council'* should "levy" the annual 
city taxes. The validity of a tax levy being in issue, the record of the proceed- 
ings of the city council showed that the council by resolution levied a tax, but^ 
no evidence was offered to show that the mayor approved of such resolution, or 
that he in any manner participated in or knew of the action of the council. 
Iff/J, that the proof failed to show a valid levy. /fM, further, that no valid 
levy could be made by the independent action of the council. 

Assessment Roll— Description. 

A description of real estate as it appeared in the assessment roll examined, 
and Afld to be sufficient. 

Board of Equalization — Adjournment. 

Where a board of county commissioners meets as a board of .equalization on 
the day appointed by law, and, after organization, adjourns until the next day, 
subsequent adjournments from day to day by less than a quorum of such board 
will preserve the duration of such session. 

Assessment Roll Filed During Session of Equalizing Board. 

The assessor failed to deliver the assessment roll to the auditor on the day 
^required by law, but the J>oard of equalization was in session upon that day, 
and, by adjournments from day to day, entered in the minutes, continued in 
session until such roll was filed, and thereafter a majority of said board 



48 NORTH DAKOTA REPORTS. 

remained in session for two days, engaged in equalizing the taxes for that year. 
Held^ that the taxpayers, had sufficient notice of the time of meeting of the 
board of equalization, and sufficient opportunity to be heard upon their assess- 
ments, notwithstandmg the irregularity in filing the assessment roll. 

Yeas and Nays on Passage of City Ordinance. 

Section 13 of the charter of the City of Fargo, as amended in 1881, provides 
**that upon the passage jaf all ordinances the yeas and nays shall be entered 
upon the record of the city council.'* This provision is mandatory, and it 
appearing that an ordinance (title i, c. 6, of the ordinances of the City of 
Fargo,) was adopted in violation of said provision, and that upon its passage 
by the council the yeas and nays were not entered upon the recoi:d, held^ that 
said ordinance was not legally adopted, and hence never became a valid ordi- 
nance. Held^ further, that an ordinance subsequently adopted, purporting to 
. amend a single section of such ordinance, and which could not be enforced when 
standing alone, js likewise null and void. 

Statutes Construed. 

The territorial statutes embraced in § g 1640, 1643, Comp. Laws, undertook 
to modify and regulate the practice in a variety of tax cases, including actions 
to "cancel" or "avoid" tax deeds. These statutes cannot be completely recon- 
ciled with each other, but the court is not. at liberty to wholly ignore them, and 
render its decisions in such cases upon general principles only. With a view to 
giving the two sections some efEect, § 1640 is limited to cases where the validity 
of the tax, in whole or in part, is conceded, and g 1643 is applied to other 
cases arising under the territorfal tax laws. 

Bartholomew^ J., dissenting. 

Equitable Action to Quiet Title. 

The object of this action is to quiet plaintiff's title to real estate, and to 
annul defendant's adverse title, and it is brought under g g 5449, 5450, Comp. 
Laws. Held that, within the meaning of § 1643, tupra^ it is an action to 
"cancel" a tax deed. The plaintifiE invoked the equity powers of the district 
court by praying for equitable relief, and that court gave such relief by its 
judgment annulling certain tax deeds as clouds on plaintiff's title. The action 
was therefore in equity, and none the less so because the plaintiff used a short 
form of complaint, and did not set out the nature of the cloud he was seeking 
to remove. 

Appeal from District Court, Cass County, McConnell, J. 

Statutory action by William O'Neil against R. S. Tyler to quiet 
an adverse title to real estate, which defendant claims by virtue 
of certain tax deeds. Judgment for plaintiff. Defendant appeals. 
Judgment setting aside the tax deeds is affirmed, and case reman- ^ 
ded for further proceedings consistent with the opinion. 

Newman & Resser^ for appellant. 



O NEIL V. TYLER. 49 

This is in*the nature of a suit in equity and governed by the rules 
applicable to equitable actions, because it seeks to remove a 
cloud from the title and also seeks an injunction. Clark v. Smith, 
13 Peters 195; Holland w, Challen, 1 10 U. S. 15; Farrington v. N. E. 
Inv. Co, 47 N. W. Rep. 191; Lamb v. Farrell, 21 Fed. Rep. 5. The 
faict that the statute authorizes a short form of complaint, cannot 
change the nature of the action. Curtis v. Sutter y 15 Cal. 260; 
Brant v. Wheaton, 52 Cal. 430. Plaintiff should tender amount of 
tax as condition precedent to suit. 

State R. R. Tax Cases, 92 U. S. 575; Nat, Batik v. Kimball, 103 
U. S. 732; Pelton v. Bank, loi U. S. 143; Cal, & 0, Land Co, v. 
Gowen, 48 Fed. Rep. 771; Palmer v. Town, 16 Mich. 176; Merrill v. 
Humphrey, 24 Mich. 170; Hersey v. Supervisors, 16 Wis. 198; Hersey 
v. Supervisors, 37 Wis. 7y,Schittler v. City, 43 Wis. 48. The descrip- 
tion must be such as to inform respondent that the land assessed 
is his. Blackwell on tax titles, 124, 2 Desty 56; Hopkins v. Young, 
22 At. Rep. 926; St, Peter's Church v. Scott Comity, 12 Minn. 395; 
Auguste v. Lawless, IQ So. Rep. 171; Greenwood v. LaSelle, 26 N. 
E. Rep. 1089; Beems \, Caldwell, 9 N. E. Rep. 623; Smith v, S/iat- 
tuck, 7. Pac. Rep. 335; Taylor v,. Wright, 13 N. E. Rep. $2^, Jenkins 
V. McTigue, 22 Fed. Rep. 148; Griffln v. Tuttle, 37 N. W. Rep. 167. 

y. E, Robinson, for respondent. 

Each deed shows that separate town lots were sold en masse for 
a gross sum, hence it is void on its face. 2 Desty 869, 973. Walker 
V. Moore, 2 Dillion 256; Ryan v. Cook, 21 la. 439; Warew, Thompson, 
29 la. 65; Crane v. Randolph, 30 Ark. 584; Bouldin v. Ewert, 63 
Mo. 330. Where a city charter requires the votes to be taken by 
yeas and nays and to be entered on the record, and ordinance 
voted without that requirement is invalid. Potvtiac v. Oxford, 49 
Mich. 69; Sticker v. Sagifuiw, 22 Mich. 104, 206. In the enactment 
of ordinances the requirements of the statute must be strictly 
observed. Blanchard v. Bissell, 11 Ohio St.. 301; Elizcdfethtozvn v. 
Lefier, 23 111. 90; Bamett v. Newark, 28 111. 62; Herzo v. Saii Frafi- 
Cisco, 33 Cal. 134; Fuller v. Heath, 89 111. 296; Tracy v. Peo, 6 Col. 
N. D. R. — 4. 






50 NORTH DAKOTA REPORTS. 

151. When by statute the mayof is a part of the law making 
power, his concurrence in legislative action is essential to its 
validity. Dillon on Municipal Corps., § 309. Se:i(fon v. Beach, 50 
Mo. 488; Sexton v. St. Joseph, 60 Mo. 153; /rvi?tg v. DeVors, 60 Mo. 
625. By force of statute a county tax deed — not void on its face — is 
prima facie evidence of title. But when any material irregularity 
is shown then the presumption of the statute is rebutted. Then 
step by step the claimant must prove everything esselitial to the 
validity of his title. LxLcy v. Davis, 4 Mich. 157; Case v. Dean, 16 
Mich. 12; Thompson v. Ware, 43 la. 433; BiUkr v. Delano, 42 la. 
350; Beddleman v. Brook, 28 Cal. 75; Johnson v. Elwood, 53 N. Y. 
431; 2 Desty 961, 969. 

Wallin, J. This is a statutory actiop to quiet an adverse*title 
to real estate. The grounds of the action are not alleged in the 
complaint further than to state that plaintiff is the owner of lots 
12 and 13 of block 9, in Keeney & Dewitt's addition to the City 
of Fargo, in Cas^ County; that defendant wrongfully claims an 
estate or title to the lots adversely to the plaintiff; that the action 
is brought to determine such adverse claim. The prayer of the 
complaint is, in effect, that defendant shall quitclaim his interest 
in the lots to the plaintiff, or set forth by answer the nature of his 
adverse claim, that it may be adjudged to be void, and that 
defendant be restrained from asserting any claim to the lots. 
Defendant answered the complaint, denying each and every alle- 
gation thereof, and further set oiit title to the lots in himself by 
virtue of two certain tax deeds annexed to and made a part of 
the answer. One of the deeds is based upon a tax sale of the lots 
for taxes claimed to have been assessed against them by the tax- 
ing officials of the City of Fargo, in the year 1884, such tax deed 
being executed by the city treasurer pursuant to a tax sale made 
by him in 1885. The answer further alleges that, subsequent, .to 
such tax sale, defendant paid certain sums assessed against said 
lots by the city authorities as and for taxes. Referring to the 
other tax deed, the answer avers, in substance, that such deed 
was made and delivered to defendant by the county treasurer of 



ONEIL V, TYLER. 5 1 

Cass County as the culmination of a tax sale of the lots made by 
the county treasurer to the defendant in October, 1887, ^^^ taxes 
claimed to have been assessed against the lots by the county 
officials of Cass County in the year 1886. The answer further 
states that after such sale defendant paid certain other sums as 
and for taxes upon the lots, which were claimed to have been 
assessed by the county authorities subsequent to the year 1886. 
Defendant further alleges that said deeds were not only regular 
in themselves, but were given pursuant to valid tax sales made 
for delinquent taxes; that the taxes for which the lots were sold 
were properly assessed, equalized, and levied by the proper 
officers of the city and county, respectively, at the proper time 
and in the proper manner. The affirmative matter contained in 
the answer was pleaded as a counterclaim, and plaintiff replied 
thereto, denying the whole thereof, except that the tax sales and 
deeds were made and delivered, and the sums alleged were paid by 
defendant as subsequent taxes; also that plaintiff neither paid nor 
tendered any of the taxes before instituting the action. The trial 
was had before the court, and, after findings were filed in plain- 
tiff's favor, judgment was entered adjudging the plaintiff to be 
the owner of the lots, annulling the tax deeds as void, and for 
costs. It will suffice here to say that the trial court, for various 
reasons, set out in the findings, held that the alleged taxes for 
which the lots were sold were never lawfully assessed or levied 
against the lots, and for that reason the sales were illegal, and 
that, no taxes being lawfully assessed or levied, none need be paid 
or tendered preliminary to the action. A bill of exceptions was 
settled, and the evidence comes up with the record. 

In deciding the case we shall not refer in detail to all the objec- 
tions urged by plaintiff's counsel against the validity of the tax 
sales and tax deeds through and by which defendant claims to be 
the owner of the land. We are unanimously of the opinion that 
the tax sales were illegal sales, and that the deeds given in pur- 
suance of such sales are invalid, and hence convey no title to the 
defendant. The facts upon which this conclusion rests are 



52 NORTH DAKOTA REPORTS. 

undisputed, and are common to both the city and county sales. It 
appears by defendant's answer, and is admitted by the plaiiitiff's 
reply, and was conceded at the trial, that the lots were struck off 
to the defendant at both of the tax sales in question, one at a 
time, for a sum bid for each as a separate parcel. The uncontro- 
verted testimony, consisting of the assessor's returns and tax lists, 
discloses the fact that in assessing the lots for the years in ques- 
tion both lots (ii and 12) were grouped together as an entirety, 
and were valued in the aggregate at one lump sum. The taxes 
were apportioned against the property upon such lump valuation. 
It appears affirmatively that no valuation was placed upon either 
lot separately, nor was a tax apportioned against either lot as a 
separate parcel of land. The evidence shows that the two lots 
constituted plaintiff's homestead; his house resting upon both lots. 
Conceding, without deciding the point, that the manner of occu- 
pying the property justified an aggregate valuation such as was 
made, it would follow that the sale must correspond to the valua- 
tion and the apportionment of the tax. It is well settled that, 
where distinct parcels of real estate are properly grouped as an 
entirety for valuation, and one tax is laid against the total value, 
the tax sale, if made, must correspond to the previous grouping 
and valuation of the property. No tax collector possesses the 
legal authority to arbitrarily divide the sum apportioned as a tax 
against such aggregate valuation, and sell a separate parcel for 
the whole tax, or any part of the tax! There being no tax against 
either lot as a separate parcel, there could lawfully be no separate 
tax sale of either lot. This rule is firmly established by the 
authorities. Black, Tax Titles, § 123; Kregelo v. Flint, 2$ Kan. 695; 
Wyman v. Baer, 46 Mich. 418; 9 N. W. Rep. 455; Allen v. Morse, 72 
Me. 502; Willey v. Scoville, 9 Ohio 43; Welty, Assessm. § no, and 
notes \a, 2; Cooley, Tax'n, pp. 493, 494, and notes; MoiUton v. 
Doran, 10 Minn. 67, (Gil. 49;) 2 Desty, Tax'n, 871, and notes. 

The tax deeds being invalid for an illegality which relates only 
to the sales, and which does not go to the ground work of the 
tax, defendant contends very properly that he has a right to show 



O NEIL V, TYLER. 53 

that the taxes for which the sales were made were in all respects 
legal and valid taxes. But, the illegality of the deeds being 
shown, their evidential character is lost, and they cannot be, used 
even as prima fade evidence of the regularity of the proceedings 
upon which the validity of the taxes depends. If the taxes are 
valid, their validity must be made to appear by common-law 
proof. Each essential step in the process of laying the tax must 
be established by competent testimony. The burden is u|>on the 
purchaser. Black, Tax Titles, § § 246, 247, 249. See numerous 
cases cited in note i to § 246, Id. 

We will first consider the validity of the alleged tax of 1884, 
for which the city treasurer sold the property in 1885. At that 
time the amended charter of the City of Fargo, adopted in March, 
1 881, was in force. Among other provisions of the charter were 
the following: "Sec. 5. The powers hereby granted shall be 
exercised by the mayor and council of the City of Fargo as here- 
inafter set forth." "Sec. 8. The council of said City of Fargo 
shall consist of eight citizens of said city, being two from each 
ward, who shall be qualified electors of their respective wards, 
under the organic act of this territory, one of whom shall be 
elected president of the council at their first regular meeting after 
each annual election provided in §9 of this act." "Sec. 13. All 
ordinances of the city shall be passed pursuant to such rules and 
regulations as the mayor and council may prescribe; provided, 
that upon the passage of all ordinances the yeas and nays shall 
be entered upon the record of the city council," etc. "Sec. 38. 
The mayor shall have power to sign or veto any ordinance or res- 
olution passed by the city council. Any ordinance or resolution 
vetoed by the mayor may be passed over the veto . by a vote of 
two-thirds of the whole number of alderman elected, notwith- 
standing the veto; and should the mayor neglect or refuse to sign 
any ordinance, or return the same with his objections in writing 
within ten days, the same shall take effect without his signature." 
Section 12 declares that the "mayor and council" of the City of 
Fargo "shall have power to levy and collect taxes for general 



54 NORTH DAKOTA REPORTS. 

purposes." Section 4 of an ordinance not pleaded, but offered in 
evidence, also confines the power in express terms upon the 
"mayor and council" to "levy the necessary taxes" on the "first 
Monday of September." The answer expressly avers that the 
several acts pleaded by the defendant as constituting the assess- 
ment, equalization, and levy of the taxes of 1884, and embracing 
also the sale of plaintiff's property by the city treasurer in 1885, 
for such taxes, and the execution and delivery of the tax certifi- 
cates and tax deed, were all and singular done and performed 
under -and by virtue of "chapter 6 of the ordinances of the Qty of 
Fargo."" 

At the trial plaintiff claimed that no such ordinance existed, 
because the same was never legally enacted or adopted by the 
city council, for the reason that upon the passage of the ordi- 
nance by the council the "yeas and nays were not entered upon 
the record of the city council," as was required to be done by § 13 
of the city charter. We think the evidence fully sustained plain- 
tiff's contention on this point, and the trial court found it to be 
true, as a matter of fact, that the yeas and nays were not entered 
in the record of the city council upon the passage of the ordi- 
nance, and that "said record contains no entry of or concerning 
the passage of said ordinances, except as follows: "April igth, 
1 88 1, council met pursuant to adjournment. Revised ordinances 
were accepted, and old ones repealed." Upon this record we are 
compelled to hold, under the authorities cited below, that the 
alleged ordinance was not legally passed or adopted, and hence 
never became a valid enactment. See i Dill. Mun. Corp. § 291, 
and cases cited in note i. See analogous doctrine applied to leg- 
islation. Cooley, Const. Lim. (6th Ed.) 168; Suth. St. Const. § 48. 
Our attention is directed to the fact that an ordinance was 
adopted in 1884, which among other things, changes the date of 
selling real estate for city taxes, and fixes the rate of interest on 
city taxes after such taxes become delinquent at a rate specified 
by § I of the original ordinance. But this latter ordinance pur- 
ports to be only an amendment of a single section of the original 



O NEIL ZK TYLER. 55 

ordinance, i, e., § 3 of ch. 6, supra. Standing alone, the amend- 
ment is meaningless, and wholly incapable of enforcement. It is 
obvious that the amendment would not have been adopted as an 
independent law. Under such circumstances, the amendment 
must be held to be null and void. Cooley, Const. Lim. (6th Ed.) 
pp. 211, 212. As has been seen, the power to levy the city taxes 
for general purposes is, by the charter as well as by an ordinance 
of the city, conferred in express terms upon the **mayor and 
council." 

The trial court found as a fact, upon sufficient evidence, that 
the mayor and council did not in 1884, levy any city taxes. The 
undisputed testimony discloses that the council met at the proper 
time, and that all members were present. The council by resolu- 
tion in proper form then levied the taxes for 1884, as far as the 
council could make such levy by its se|)arate action. But this 
evidence is fatally insufficient to establish the fact of a tax levy 
by the "mayor and council." The testimony offered, i. ^., the 
record of the proceedings of the council, refers only to the action 
of the council, and in no way relates to the action of the mayor. 
So far as the evidence discloses, the mayor never participated in 
the levy in any manner, and never assented to or became aware 
of the action of the council in the premises. Nor are we at liberty 
to indulge the presumption that a vital step in the tax levy was in 
fact taken when there was no evidence offered to show that such 
step was taken, and where the evidence put in to show the levy 
falls short of doing so. We cannot assume without proof that 
other and further proceedings were had. The burden to show a 
valid levy by the "mayor and council" was with the defendant, 
and he failed to show such levy. It is elementary in tax law that 
essential steps in laying a tax must appear by some record. Such 
steps cannot be shown by parol. In this case no parol evidence 
of the fact was offered. Powers v. Larabee, 2 N. D. 141; 49 N. W. 
Rep. 724. The proof offered wholly fails to show a valid levy of 
the city tax in question, and we therefore rule that the alleged 
city tax for which the lots were sold was void. A levy by the 



56 NORTH DAKOTA RfiPORTS. 

proper officials is essential to a tax. Cooley, Tax'n, 339; i Desty, 
pp. 106, 515. Where the authority to levy is given, and the mode 
also prescribed, the mode must be pursued. 2 Dill. Mun. Corp. 

§769. 

Turning to the county tax, the respondent contends that such 
tax was wholly void, first, because the description of the property 
as found in the assessment roll for the year in question is insuffic- 
ient to meet the requirements of the law. Certain pages of the 
roll were put in evidence, and, among others, the printed heading 
at the top of the page on which the lots are described, which 
heading is as follows: "Assessment Return of Taxable Property 
in Cass County, Dakota, for the year 1886. Real -Property. 
Keeney & Dewitt's Add'n." Below this was a proper description 
of the lots as lots 12 and 13 of block 9. Respondent criticises the 
return, for the reason that it does not appear on the page where 
the lots are described in the return where they are located. It is 
true that such page does not disclose whether the lots are situated 
within the limits of Fargo or not, nor does this page indicate or 
state that Keeney & Dewitt's addition is an addition to Fargo. 
But another printed heading of a preceeding page of the same 
return was put in evidence by the appellant as follows: "Assess- 
ment Return of Taxable Property in Cass County, Dakota. Real 
Property. Fargo. Original Addition." This was the heading on 
page 3 of the return and descriptions of real estate continued 
under this head to page 11 of the return, and on page 12 the 
return was as follows: "Keeney & Dewitt's Addition;" and under 
the last mentioned heading the descriptions continued until page 
19, and embraced the property in question. From all of these 
pages of the return, when read togetheHr and fairly construed, we 
are compelled to hold that the description of the property, though 
not to be commended, is yet a substantial description, and one 
which fulfills the requirements of the law. We arrive at this con- 
clusion without reference to parol evidence, which showed that 
the only Keeney & Dewitt's addition in Cass County was an addi- 
tion to Fargo. We therefore rule that the property was sufficiently 



o'nEIL v. TVLEk. 57 

described and valued by the assessor in the year 1886. As 
to what constitutes a sufficient description of real estate in tax 
cases, see Cooley, Tax'n, 404, 408. 

Respondent also claims that for certain reasons, not necessary 
to detail, the levy of taxes in in 1886 was irreg^ular and void. We 
have carefully considered the points raised, and are clear that the 
taxes were levied in substantial conformity to law, and hence hold 
that the levy was sufficient. 

The trial court found as follows: "That on or before the first 
Monday of July, in said year, the county assessor of Cass County 
did not make and deliver to the county clerk of said county an 
assessment roll; that no such roll was made and sworn to until 
the I2th day of July, 1886; that in the year 1886, for the purpose 
of equalizing and correcting the assessment roll, and as a board of 
equalization, the county commissioners of Cass County did not 
hold a session of two days, or at any time, commencing on the 
first Monday or the first Tuesday of July, in said year; that, as 
shown by the record of said commissioners, in the year 1886, they 
did not meet as a board of equalization until the Tuesday after 
the first Monday in July, and then that said board ofily met to 
adjourn, and that, without a quorum, the board adjourned from 
day to day until the 13th day of July, 1886; that on said day the 
board adjourned until the 14th day of July, at 10 o'clock A. M.; 
and that on the 14th day of July, 1886; the board of county com- 
missioners of Cass County did not meet as a board of equaliza- 
tion, or otherwise, until 2 o'clock p. m." The undisputed testi- 
money shows that the board of equalization met on the Tuesday 
next after the first Monday of July, Monday being the 4th, and a 
legal holiday. The board was composed of five members, and a 
quorum was present. The board organized, and at once adjourned 
until the next day, Wednesday, at 10 a. m. On Wednesday the 
journal enllyilLis follows: "Wednesday, July 7th, 1886. Board 
of equalization Aiet at 10 o'clock a. m. Present, Messrs. Gill and 
Kissner. No quorum being present, board adjourned till 10 
o'clock A. . M. tomorrow." No quorum being present on the 



58 NORTH DAKOTA REPORTS. 

following Thursday, Friday, Saturday and Monday, an entry was 
made in the journal substantially like that made for Wednesday, 
as above quoted. On Tuesday and Wednesday, July, 13th and 
14th, a quorum was present, and on each of the last mentioned 
days the board was engaged in equalizing the taxes of 1886, a 
<rerified tax roll having been completed on the 12th of July,. and 
delivered to the auditor. 

The questions of law arising upon the findings and the undis- 
puted evidence and facts are of serious importance, whether con- 
sidered with reference to the collection of the public revenues or 
with reference to the constitutional and statutory rights of indi- 
vidual taxpayers; nor do the discordant decisions and apparently 
endless discussions of elementary writers afford much assistance 
to the court in its investigations of the different points presented. 
The principal questions connected with the meeting of the board 
are two in number, and are as follows: First. Did the board of 
equalization in Cass County in the year in question meet upon the 
proper day, and hold a session of not less than two days, as the 
statute m force at the time required it to do? Seco7td, When the 
authenticaited assessment roll is not delivered to the auditor on 
or before the first Monday in July, as the statute directed shall be 
done, but is delivered before the board of equalization adjourns, 
and after its delivery the board remains in session for a period of 
two days, and while in session actually equalizes the taxes, is 
such delay in the delivery of the roll an irregularity in the pro- 
cess of assessing and equalizing the taxes that will render the 
taxes of that year void? 

Taking up the questions in their order, it is manifestly true that 
the board of equalization did meet on the day designated by law 
for their first meeting. The statute names the first Monday of 
July, but that year it happened that Monday was July 4th. This 
day being a legal holiday, the statute expressly muAorizes the 
postponement of secular business to be done o* sudt day until 
the next business day. Comp. Laws, § 4752. The board met for 
the first time on the Tuesday next following the first .Monday of 



O'nEIL V, TYLER. 59 

July, and this, as we have seen, was striclly regular, under the 
statute. There was a quorum present at the first meeting, and 
hence the adjournment until lo a. m. the next day was also strictly 
regular. But the successive adjournments from day to day, 
which were made by only two members, — less than a quorum, — 
are challenged as illegal and void. If such adjournments had no 
validity, it follows, logically and legally, that the board was not 
lawfully assembled when it did actually meet and discharge its 
functions on Tuesday and Wednesday, July 13th and 14th, and 
hence, on this supposition, there was no session of "not less than 
two days" that year, as the statute required. Comp. Laws, § 1584. 

We have been unable to find a decided case in point upon the 
question presented, «. e,, as to the validity of no quorum adjourn- 
ments when such adjournments are made from day to day 
as a means of preserving the life of meetings required by 
law to be held by the governing officials of public cor- 
porations. But this court will take notice judicially that 
the practice of making such adjournments extensively per- 
vades in the United States, and that it is not limited to such 
bodies as congress* and state legislatures, where it has the express 
sanction of organic law but obtains in city councils and in town, 
county, and school district boards, where there is no express 
provision of law authorizing it. Cush. Leg. Law & Pr. Assem. 
(2d Ed.) § § 254, 255. We think so valuable a rule, as applied 
to public corporations, at least should be preserved, particularly 
as its denial would operate disastrously to the public interests in 
many cases, as would be true with respect to meetings of the only 
board before which the taxpayer can be heard upon the matter of 
the valuation of his property for taxation. Our conclusion is 
that the board met at the proper time, and held a session of not 
less than two days in the year 1886. 

This brings us to another question. The statute in force, 
(Comp. Laws, § 1582,) required the assessors to return their 
assessment rolls to the county clerks on or before the first 
Monday of July of each year. In 1886 the return was not 



60 NORtH DAKOTA REPORTS. 

f 

made in Cass County if ntil July 12th, or more than one week after 
the day fixed by statute. Is this a fatal irregularity? If the board 
had adjourned without day prior to* the return of the roll, a very 
different question would arise. In such a case there could be no 
equalization or adjustment of the taxes, and no opportunity would 
be given tp the taxpayer to present any grievances which might 
arise upon the return to the only tribunal provided by law to hear 
and dermine such grievances. In the supposed cate a majority 
of this court would hold, for reasons fully stated in Powers v. 
Larabee, 2 N. D. 141, 49 N. W. Rep. 724, that ttie taxes levied in 
that year would be invalid for any purpose. But the record 
before us presents no such facts. Here the roll was delivered 
to the clerk prior to the adjournment of the board, and after the 
roll was returned the board remained in session for two days, and 
discharged its functions as a board of equalization. This shows 
that the taxpayer was not deprived of his opportunity to be heard 
upon matters arising uppn the return. Authorities can be found 
which announce the broad doctrine that in a case where the 
assessment roll has not been returned to the proper office on or 
before the date designated by .statute for its return that the tax- 
payers have no legal notice or knowledge when the return will be 
delivered to the proper official, and hence are not bound to give 
the matter further attention. But, while we should not hesitate 
to apply this doctrine in a proper case, we are of opinion that it 
should not be applied to a case where the tribunal of review and 
equalization is still sitting at the time the roll is returned, and 
had, by adjournments, kept alive a session which was initiated by 
a meeting upon the date designated for its first meeting. The fact 
that the board was still in session when the roll was returned, and 
had by lawful adjournments continued its session from the first 
day of its meeting, — the day stated in the law for such meeting, — 
was a fact which was advertised to the public by entries made in 
the official journal of its proceedings, to which taxpayers have 
access. Such board has no lawful business other than such busi- 
ness as is vitally connected with the assessor's return, and hence. 



O'NEIL f. TYLER. 6l 

SO long as the board continued in session, it was notice to the 
public that its duties would be performed when and as soon as 
the return should come before them. Under such circumstances, 
we are quite clear that the public had practically notice and an 
opportunity to be heard before the board in 1886 despite the fact 
that the roll was not. returned upon or before the date required 
by statute for its return to the county clerk. We conclude that 
the tax of 1886 was valid as a tax, and none the less so because 
the sales and deeds were illegal and void on account of certain 
irregularities which do not go to the ground work of the tax. 

We here encounter a point arising under our very peculiar and 
very confusing statutes inherited from territorial times. Apellant 
contends that the action was not lawfully commenced, and must 
be dismissed because the taxes and interest were neither paid nor 
tendered before the suit was brought; citing § 1640 of the Comp. 
Laws in support of this position. This section, among other 
things provides: "No action shall be commenced by the former 
owner or owners of lands * * * to recover possession ' of lands 
which have been sold and conveyed by deed for nonpayment of 
taxes, or tp avoid such deed, * * ♦ until all taxes, interest and 
penalties, costs, and expenses shall be paid or tendered by tjhe 
parties commencing surh action." A liberal construction of this 
section alone would oblige us to dismiss this action, for the reason 
that the tax of 1886 was neither paid nor tendered before suit; 
but we do not feel justified in putting such a construction upon 
the section, in view of the fact, especially, that § 1643 of the same 
statutes contains provisions in direct conflict with those quoted 
above, and the latter statute leads to a widely different result. 
Section 1643 provides, among other things, that in an action "to 
recover the possession or title of any property, real or personal, 
sold for taxes, or to invalidate or cancel any deed or grant thereof 
for taxes, * * ♦ the true and just amount of taxes due upon 
such property or by such person must be ascertained, and judg- 
ment must be rendered and given therefor against the taxpayer." 
Ar comparison shows that the provisions of the statute ^above 



62 NORTH DAKOTA REPORTS. 

quoted are in part contradictory of each other. The former 
requires payment or tender of taxes as a condition precedent 
to an action to "avoid" a tax deed; the latter provides that in an 
action "to invalidate or cancel" such deed a judgment shall be 
rendered for "the true and just amount of taxes due upon such 
property." These provisions cannot be harmonized entirely, and 
we are convinced that it would be a harsh and unreasonable inter- 
pretation of the language used to hold that § 1640 alone must 
govern. To do so would not only compel the plaintiff, who has a 
just cause of action upon the merits, to go out of court without 
the relief he is seeking, but would likewise imply that § 1643 *s 
meaningless, and must be ignored. We are convinced that a less 
rigid construction would be, on the whole, more conducive to jus- 
tice, and more in accord with sound legal principles. We there- 
fore conclude that the terms of § 1640 of the statute above 
quoted must be confined to cases where the plaintiff concedes the 
validity of the tax, or a part thereof, and that neither tender nor 
payment will be required in suits where the legality of the entire 
tax is controverted in good faith. The powers of the court, tram- 
meled as they are by crude and self-contradictory legislation, can- 
not, be put forth as fully as they might be done by a court of 
equity when unfettered by legislation. The most that can be 
done, while aiming to do justice, is to give such a construction to 
discordant statutes as will tend to give some effect to their pro- 
visions, and not to annul them entirely. With these objects in 
view, we must overrule this point, and refuse to dismiss the 
action. 

Respondent's counsel contends, however, that neither of the 
sections above quoted have any application to this case, because, 
as he argues, the action is not in strictness an action to either 
"cancel" or "avoid" a tax deed, and contends that the action is 
statutory in its nature and origin, and is nothing more than a 
challenge to the defendant to bring forward his claim, or be 
debarred from any interest or title to the lots in question. This 
suggests a wide field for discussion, upon which we do not deem 



O'nEIL V, TYLER. 63 

it necessary to enter further than to cite the cases below, and say 
that in our judgement this -action is essentially equitable in char- 
acter; and, while the facts are not set out in the complaint which 
show a cloud upon plaintiff's title, yet it is still true that the 
record shows such a cloud, and the judgement below removes the 
cloud. Plaintiff being in possession, and a cloud being cast upon 
his title by the tax deeds, an action would lie in equity to 
remove the cloud, and no court other than a court of equity could 
remove the cloud by a decree. We think that the fact that plain- 
tiff has availed himself of the practice in other states, and has not 
set out in'the complaint the facts showing a cloud upon his title, 
does not alter the essential objects of the suit. Plaintiff cannot, 
on the one hand, invoke equitable relief, and avail himself of the 
powers of a court of equity, and, on the other hand, escape the 
consequences of being in a court of equity. Besides, the two sec- 
tions of the statute above quoted apply alike to actions at law 
and suits in equity. The peculiar nature of the so-called stat- 
utory action is fully considered in the cases cited below. More v. 
Steinbach, 127 U. S. 70; 8 Sup. Ct. Rep. 1067; Whitelteadv. S/iatttuk, 
138 U. S. 146; II Sup. Ct. Rep. 276; Holland v. Challen, no U. S. 
15; 3 Sup. Ct. Rep. 495. 

Appellant's counsel further contends that plaintiff cannot 
invoke the powers- of a court of equity in his behalf, becase, as 
counsel argues, he has not done equity by offering to pay his 
proportional share of the public burdens. Counsel claims that, if 
no valid taxes have been assessed or levied against the lots, still a 
court of equity would, as a matter of conscience, refuse to remove 
the cloud until plaintiff had first tendered payment of his propor- 
tional share of the public burdens, which should have been assessed 
as taxes, but which where not assessed. This rule seems to have the 
sanction of some courts, while other courts have refused to apply 
it. We cannot adopt the doctrine, not only because we are gov- 
erned by statutes which are designed to regulate the practice in 
tax cases, but, on principle, this court is opposed to the theory 
that a taxpayer should, especially where the collection of the 



64 NORTH DAKOTA REPORTS. 

revenue, is not involved, as a condition of relief, be forced to have 
his taxes assessed and levied by a court in lieu of having them 
assessed apd levied by other officers, who are familiar with the 
subject matter, and who are especially appointed by law to assess 
and levy the taxes of all citizens. We adhere to the language 
used in the opinion in Powers v. Larabee^ supra: "It is, in a broad 
sense, a- moral obligation, resting upon every taxpayer, to pay a 
fair and equal tax upon his property. Such obligation, however, 
does not become legal and enforceable in the courts unless the 
tax is a substantially legal one;" and also quote with approval 
what is said by the Supreme Court of Minnesota, in Barter v. 
Evans^ 27 Minn. 92; 6 N. W. Rep. 445; wherein the court says, at 
p. 96, 27 Minni, and at p. 448, 6 N. W. Rep.: "In respect to the 
suggestion that the taxes, in this case, though not legal, were such 
as the owner ought equitably to have paid to the state, it is suffic- 
ient to say that no legal or equitable liability can arise in respect 
to the payment of any tax not founded upon a fair, valid assess- 
ment and levy, made in the manner provided by law. In the 
absence of any such assessment and levy, the owner has no means 
of ascertaining what sum he ought to pay in respect of any piece 
of property, and his just share of the public burden; and, under 
the laws in force governing this case, the courts have no power to 
make the requisite assessment and apportionment of the tax." 
See, also, Plumer v. Board, 46 Wis. 164; 50 N. W. Rep. 416. It fol- 
lows, from what has been said, that the judgment of the court 
below settingaside the tax deeds, and for costs, was proper as far 
as it went, and to that extent it must be affirmed. 

But defendant now claims that the judgment falls short of 
meeting the requirements of § 1643 ^f ^he statutes, and should be 
modified, so as to give judgment in favor of defendant for thfe 
"true and just amount of taxes against the property." The prin- 
ciple contention in the court below and in this court turned upon 
the title, both parties claiming ownership, and defendant demand- 
ing that the action should be dismissed, and that the title be con- 
firmed in him. A rehearing being granted, the attention of the 



O'nEIL V, TYLER. 65 

court is directed more particularly to the state of the pleadings 
with reference to defendant's claim for judgment against the 
plaintiff for the "true and just amount of taxes," under § 1643, 
supra. The answer alleges, in substance, that, in addition to the 
amounts paid by defendant at the tax sales for the taxes of 1884 
and 1886, respectively, (and concerning the regularity of which 
taxes issue is fully tendered by the answer,) defendant has paid 
taxes on .the lots as follows: That defendant paid the taxes, 
stating the amounts, to the county treasurer for the year 1887, and 
paid the taxes to the city treasurer, stating the amounts, for the 
years 1885 and 1886. At the trial plaintiff admitted "that the 
defendant paid taxes on the premises degcribed in the complaint, 
subsequent to the sale of said, premises to him, the following 
sums, to-wit." Then follow the amounts as alleged in the answer. 
Upon these averments of the answer and the plaintiff's admissions 
at the trial the question arises whether the court below should, 
without proof, have given judgment for such amounts paid, or for 
any amounts. A majority of this court is of the opinion that this 
question must be answered in the negative. The averments of the 
answer amount to this, i. ^., the defendant paid the subsequent 
taxes for certain years, and plaintiff admits that the sums were 
paid as taxes. But the District Court is directed by § 1643 ^^ 
"ascertain the true and just amount of taxes." This language 
compels the examination of the tax records with a view of ascer- 
taining whether an alleged tax was assessed and levied. The mere 
payment— and- no more is alleged or admitted here — does not 
suffice to establish the validity of the tax. Miller v. Hurford, 
(Neb.) 12 N. W. Rep. 832; Brown v. Corbin, 40 Minn. 508; 42 N. 
W. Rep. 481 ; Weimer v. Porter, 42 Mich. 569; 4 N. W. Rep. 306. 

Counsel calls attention to the Farrington case, i N. D. 102, 45 
N. W. Rep. 191, where a majority of this court say, at p. 120, i N. 
D., and p. 197, 45 N. W. Rep.: "Said section is mandatory 
upon the court, and it becomes its duty to enter up judgment for 
the amount of the legal tax, and such judgment in no manner 
N. d; r. — 5. 



66 NORTH DAKOTA REPORTS. 

depends upon the request of either party to the action.** A 
majority of this court is of the opinion that the language quoted 
must be confined to the facts of the case in which it was used. In 
that case there were no subsequent taxes considered by the court, 
and the legal validity of all the taxes in question was put in issue 
by proper averments, and was fully litigated at the trial. The 
court say, on the same page of the opinion: "It was the duty of 
the trial court, under the evidence, to have entered judgment." The 
difference between the two cases is apparent. In the case at bar 
there is no averment alleging the validity of the subsequent taxes, 
or that the same were ever assessed or levied by any one. Nor 
was there any evidence at the trial tending to show that any 
subsequent tax paid by defendant was ever levied or assessed. 
This court is of the opinion that it would be a dangerous prece- 
dent and one subversive of established principles, to hold that the 
mere fact of payment will suffice to show that the sum paid 
represents the "true and just amount*** of a tax, and hence will 
suffice to warrant a trial court in entering judgment for such 
amount. Under established rules of pleading and evidence, the 
party seeking judgment must allege and prove all facts essential 
to a recovery. In this case defendant is seeking a judgment. In 
California a statute allowed an action to be instituted to recover 
a delinquent tax. Under this statute the courts of that state 
uniformly have held that all facts essential to a tax, including 
assessment and ley, must be alleged in the complaint. In a 
recent case brought under the statute, People v. Railroad Co.^ (Cal.) 
23 Pac. Rep. 303, a demurrer to the complaint was sustained, 
because material facts were omitted. Among other points made 
is the following: "An averment of indebtedness for taxes, with- 
out an avernant that any taxes were levied on defendent or his 
property, or, if levied, when, where, and by whom the levy was 
made, or whether the taxes were based on the assessment men- 
tioned above, or that there are any taxes against defendant delin- 
quent or unpaid, is insufficient.'* See, also. People v. Cone, 48 Cal. 
427; 2 Desty, Tax'n, 712. The rule stated by these authorities is 



O'nEIL v. TYLER. 67 

clearly to the effect that in statutory actions to foreclose the lien 
of a tax, or to recover judgment for a delinquent tax, the com- 
plaint must be governed by the ordinary rules of pleading under 
the code. It must state the material facts, and, among such, is 
the fact of a valid assessment and levy. This court is. wholly 
unable to discover any difference in principle between the case of 
a plaintiff who, under a statute brings an action to foreclose a 
tax lien, or to recover a judgment for a delinquent tax and the 
case of a defendant who seeks, under § 1643, to recover judgment 
for taxes in an action brought to avoid a tax deed. We think 
that the legislature did not intend in passing § 1643 ^^ inaugurate 
any new rules of pleading, practice, or evidence to govern the 
cases brought under that section. Tested by ordinary rules, the 
answer is fatally defective. It alleges payment of subsequent 
taxes, but omits to allege that such taxes were ever assessed or 
levied. But, upon proper averments in the answer, issue was 
joined upon the legality of the taxes upon which the tax sales 
were made. We have held that the county tax of 1886, for which 
the sale was made, is a valid tax, for that the defendant is 
entitled to judgment for such tax, with interest and penalty, as 
provided by the statute. See Farrington case, supra. Also Everett 
v. Beebee^ 37 Iowa, 452. Inasmuch as further proceedings in the court 
below have become necessary, we have concluded to direct that the 
defendant, at his election, may apply to the District Court for leave 
to amend his answer by inserting therein averments of fact necessary 
to show that since the county tax sale he has paid legal county taxes 
against the lots in question. We have already said that the city 
tax for 1884, o^ which the sale is made is a void tax. But leave 
is given to the defendant to allege, at his election, in his answer 
the facts necessary to show that since the sale defendant has paid 
valid city taxes on the lots. If, after a hearing had upon issues 
made by an amended answer, it shall appear to the District 
Court that, in addition to the tax, interest, and penalty due on 
the tax of 1886, other valid county or city taxes have been paid by 
the defendant, the same shall be included in the amount to be 



68 NORTH DAKOTA REPORTS. 

recovered by defendant. We have held that title i, ch. 6, of the 
city ordinances, and the attempted amendment of § 3 thereof, 
never became valid, and hence cannot be resorted to in comput- 
ing interest on city taxes, if such are found to exist. If no valid 
ordinance is shown at the hearing fixing the rate of interest, then 
defendant shall recover 7 per cent, on amounts paid in discharge 
of valid city taxes assessed since the tax sale, and paid by the 
defendant to the city treasurer. Under § 5193, Comp. Laws, we 
have discretion in modifying the judgment of the court below 
with respect to the costs and disbursenrients incurred in this court, 
and in the present case we have decided to allow costs and dis- 
bursements to neither party and the court below will not give 
judgment for costs or disbursements incurred in this court. The 
court below will take further proceedings in harmony with the 
views expressed in this opinion. 

Corliss, C. J., concurs. 

Bartholomew, J., {dissenting,) I am unable to assent to that 
portion of the foregoing opinion which limits the construction 
given to § 1643, Comp. Laws, in Farrington v. Investment Co., i N, 
D. 102, 45 N. W. Rep. 191, and Bode v. Same, i N. D. 121, 42 N. 
W. Rep. 658, and 45 N. W. Rep. 197, to the particular facts of 
those cases. I am also of opinion that, under the pleadings and 
admissions in the case, and for the purpose of a money judgment 
for taxes under said section, the legality of the subsequent taxes 
stands admitted. In all other respects I concur in the opinion 
written by Justice Wallin. 

(53 N. w. Rep. 434.) 



WAGNER V. OLSON. 69 

John P. Wagner vs, Gunder Olson. 

Opinion filed Jan. 25th, 1893. 

Attaching Exempt Property— Failure to File Schedule. 

While § 5130, Comp. Laws, requires a debtor who desires to receive the 
benefit of the exemptions mentioned in g 5128, Id., to serve upon the officer 
who has seixed his property under execution or attachment a verified schedule 
containing all his personal property, yet the failure of the debtor to include in such 
schedule all of such property, when done with no fraudulent intent, and when 
the officer is in no manner misled thereby as to the amount of the debtor's 
property, will not deprive* the debtor of such exemptions, but only debars the 
debtor from selecting any property as exempt which does not appear in the 
schedule. 

Minglins^ of Goods — Purchase Money — Execution. 

Where a merchant purchases goods of the same class and quality from differ- 
ent parties, and in the ordinary course of business so mingles the goods upon 
his shelves that it becomes impossible to designate the goods purchased from 
any one party, yet such fact will not render the entire stock liable to seizure at 
the suit of one of such parties to recover the purchase price of goods sold to 
such merchant, notwithstanding § 5137, Comp. Laws, provides that no exemp- 
tion shall be allowed against an execution issued for the purchase money of 
property that has been seized under the execution. 

Claim and Delivery for Exempt Property. 

When, in such a case, the owner brings the action of claim and delivery 
against the officef holding such property, on the ground that the same was 
exempt from such seizure, the burden is upon the officer to show what specific 
property so held by him was liable to seizure for the purchase price thereof 
under the process in his hands. 

Affidavit that Property is Exempt 

The action of claim and delivery will lie at the suit of the defendant in 
attachment to recover property seized under a writ of attachment, when it is 
stated in the affidavit that such property was exempt from such seizure. 

Appeal from District Court, Walsh County; Templeton, J. 
Action in claim and delivery by John P. Wagner against Gunder 
Olson, sheriff. Plaintiff had judgment, and defendant appeals. 
Affirmed. 

Bosard & Van Wormer^ for appellant. 
C. A, M, Spencer^ for respondent. 



^O NORTH DAKOTA REPORTS. 

Bartholomew, J. This controversy arises under the exemp- 
tion laws of this state. The defendant, and appellant herein, 
was sheriff of Walsh County, and as such received a writ of 
attachment in an action brought by the firm of Dodson, Fisher & 
Brockman against John P. Wager, the plaintiff and respondent 
herein. The sheriff at once laid the writ upon a stock of merchan- 
dise consisting of harness, harness leather, harness hardware, 
blankets, robes, etc., belonging to the respondent. Respondent 
made an effort to claim his exemptions under the statute, but his 
claim was not recognized by the office^, whereupon he brought 
this action in claim and delivery, resulting in a verdict and judg- 
ment in his favor. 

Our statute (§ 5128, Comp. Laws) gives the debtor, in addition 
to certain absolute exemptions, other personal property, not to 
exceed in the aggregate S 1,500 in value. Section 5130 provides 
that, when the debtor desires to avail himself of the additional 
exemptions, he must make and deliver to the officer who has 
levied process upon his property a verified schedule of all his 
personal property, and provides that any property owned by the 
debtor, and not included in the schedule, shall not be exempt. 
Other provisions provide for an appraisement, and that from the 
appraisement so made, if over the limitation in value, the debtor 
may select the amount of his additional exemptions. The claim 
for the benefit of these exemptions must be made within three 
days after the notice of the levy. Within the time limited, the 
respondent (defendant in the attachment action) served upon 
the officer the following notice, (omitting title:) "To the sheriff 
of said County of Walsh: Take notice that the above named 
defendant hereby claims the following personal property owned 
by him as exempt from attachment and execution in the above 
entitled action, that is to say, viz: the personal property, book 
accounts, and notes mentioned in the schedule hereunto annexed, 
and made a part of this notice; and you are further notified that 
I choose M. F. O'Brien, a disinterested citizen of said county, 
not related to either party, to act as my appraiser in fixing the 



WAGNER V. OLSON. 7 1 

value upon all the personal property levied upon by you, in 
order that I may select the exemptions of fifteen hundred dollars 
given me by law. Dated, May 13th, 1889. John P. Wagner." To 
this was attached an itemized list of property, being the same 
property described in the complaint, and a verification by Mr. 
Wagner, in which he says "that the foregoing list of personal 
property is a complete schedule of all his pergonal property, of 
every kind and character, including itioney on hand, and debts 
due and owing deponent, claimed by him as exempt under the 
laws of the Territory of Dakota." No other schedule of personal 
property was made by respondent. It is reasonably certain from 
the evidence that another demand for this same property was 
made after the appraisement. 

The appellant requested certain instructions, invoivipg the fol- 
lowing points: Firsty that the schedule was insufficient for the 
reason that it did not cover all of respondent's property; second, 
the demand for exemptions was insufficient in that it did not 
appear that the articles demanded were selected from the appraise- 
ment; third, that there was no evidence of the value of the prop- 
erty; and, fourth, that the property purchased from Dodson, 
Fisher & Brockman, and for the purchase price of which the 
attachment action was brought, was so intermingled and com- 
bined with the property claimed as exempt that they could not 
be identified and separated. These requests were all refused, and 
the court, in its charge to the jury, said: "I say, as a matter of 
law, that all the proceedings of the plaintiff leading up to his 
demand for exemptions in this case were had within the time and 
in the manner prescribed by law." On argument, in addition to 
the points made in his requests, appellant urges that the instruc- 
tion quoted was error, because it appears by the evidence that the 
property demanded covered the entire appraisement, which 
exceeded the exemption limitation in value; or, if this be not 
true, that there was no evidence in the case showing the appraised 
value of the property claimed. It is far from clear upon the 
record that these last points were ever called to the attention of 



^2 KdRTH DAKOTA REpORTS. 

the trial court, but as, under the instruction, they might have 
been made on the motion for a new trial, and as we are- not sure 
they were not, we shall consider them. 

We call attention, first, to the fact that the schedule served did 
not cover all of respondent's property, but only such as he 
claimed as exemjk. The statute requires the debtor to serve a 
schedule covering^ all his personal property, but it does not say 
that his failure to include all such property shall deprive him of 
his exemptions. It fixes the consequence of such omission when 
it declares that any property not so included shall not be exempt. 
Courts cannot declare a more serious consequence. Respondent 
seems to have understood and intended that all of his personal 
property not embraced in the schedule should be applied on his 
debt; and, while it is true that his schedule was not a literal com- 
pliance with the statute, yet, under the liberal construction always 
applied in the matter of exemptions, we think it sufficient in this 
case. Paddock v. Balgard, (S. D.) 48 N. W. Rep. 840. The officer 
had already seized, and had in his possession, all of respondent's 
personal property. Had the schedule misled the officer as to the 
amount of respondent's property, and particularly if it had been 
made with intent to mislead him, an entirely different question 
would be presented. The demand for exemptions contained in 
the schedule was a nullity, because at that time there had been no 
appraisement, and the law requires the selection to be made from 
the appraisement where it exceeds $1,500 in value. Section 5132, 
Comp. Laws. But it is undisputed, under the testimony, that the 
list of property contained in that schedule was taken from the 
inventory, which the sheriff (appellant) had served upon the 
defendant in the attachment case, (respondent herein.) The 
appraisement, of course, covered the same property that was in 
the inventory, and all of it. It might have covered more, but that 
is immaterial now. Another demand for the same property was 
made after the appraisement. As we have just said, this prop- 
erty must have been upon the appraisement, and the demand was 
a sufficient selection from such appraisement. In this connection 



WAGNER V. OLSON. 73 

it will be most convenient to notice the points that this second 
demand was for all the goods appraised, or, if not, that there is no 
evidence of the appraised value of such as were demanded. 
Respondent, as a witness for himself, in speaking of the second 
demand, says: "I demanded the property from defendant after 
this appraisement was made, and he refused." Because this wit- 
ness had just been speaking of the entire appraisement, appellant 
assumes that "the property" refers to all the property. This is 
certainly unwarranted. Respondent had brought his action to 
recover certain specific property. He had already shown that at 
one time he demanded the identical property for which suit was 
brought. Then, after speaking of the appraisement, he says he 
demanded the property after such appraisement. But there is no 
intimation that this demand differed in any respect, as to the 
property covered, from the first; and that the first demand did not 
include all the property appraised is perfectly clear from the 
record. The schedule of property claimed as exempt is in the 
abstract. The appraisement was introduced in evidence, but is 
not embodied in the abstract. The amount of the appraisement 
is given as $1,526.03 in merchandise, and $708.80 in notes and 
accounts. An examination of the list of property claimed as 
exempt shows that it contains a list of merchandise, and notes 
and accounts. One Shepperd, salesman for Dodson, Fisher & 
Brockman, and a witness for appellant, testified that at the time 
of the levy two-thirds of the stock were goods that he had sold to 
respondent as agent of Dodson, Fisher & Brockman; in other 
words, goods of the value of more than $1,000 belonged to that 
class. But the witness also testified that of the goods claimed as 
exempt about $200 were purchased from his firm. From this it 
follows that goods of the* value of $800, at least were appraised 
which were not claimed as exempt. Nor is there any support for 
the claim that there was nothing before the trial court to show 
what value the appraisers placed upon the property claimed as 
exempt. True, there is nothing before this court from which the 
amount can be ascertained, because the appraisement was not 



74 NORTH DAKOTA REPORTS. 

incorporated in the abstract; but the appraisement was before the 
trial court, and we must presume that it showed the value placed^ 
by the appraisers upon each article, or lot of property claimed as 
exempt. With this appraisement before it, the trial court told the 
jury, in effect, that the appraised value of the property claimed 
did not exceed the sum of $1,500. We cannot say that the trial 
court erred, because the incomplete abstract before us does not 
conclusively establish the correctness of the instruction. Error 
must affirmatively appear. 

The action of Dodson, Fisher & Brockman, was on account for 
goods sold and delivered. Section 5137, Comp. laws, provides 
that no property shall be exempt from siezure on execution issued 
for the purchase price thereof. The trial court charged that the 
burden was upon appellant to show what property, if any, that 
was claimed by respondent as exempt, had been purchased from 
Dodson, Fisher & Brockman, and the purchase price of which was ^ 
included in the account sued upon. In this there was no error. 
When respondent established that he was the owner of the prop- 
erty, and that its value did not exceed $1,500, and that he had made 
a proper demand therefore, he "shovi^d^ prima facie case of exemp- 
tion. If it was. not exempt, it was by reason of some exception 
to the general law, and the party who claims the benefit of such 
an exception must bring himself .within its terms. Paddock v. 
Balgordy supra. 

It appears that respondent had been in the habit of purchasing 
goods from different parties, and, when received, he placed them 
upon his shelves indiscriminately; so that, whe;i the same character 
and quality of goods were purchased from different parties, and 
placed upon the shelves, it became impossible to say what articles 
were purchased from one party, and what from another. As the 
goods purchased from Dodson, Fisher & Brockman, were liable 
to seizure in an action for the purchase price thereof, and as such 
goods could not certainly be identified by reason of the mixture 
madejby respondent, it is claimed that thereby the whole stock 
became liable to seizure. We cannot assent to this proposition. 



WAGNER V. OLSON. 75 

This is not a case calling for the application of the rules that obtain 
in cases of fraudulent admixture of goods. If appellant's position 
be correct, then a merchant would be entitled to no exemptions 
whatever as against the claims of parties from whom he purchased 
goods unless he kept his ^ock so arranged and classified that he 
could tell at any moment from exactly what source he received 
every article in his stock. 

Lastly, the old common law rule is invoked that, the goods 
being in custodia Ugisy replevin would not lie. The rule is not of 
universal application in this state. Section 4973, Comp. Laws, 
prescribes what the affidavit in claim and delivery of personal 
property shall state, and, among other things, it must state that the 
property was not "seized under an execution or attachment 
against the property of the plaintiff, or, if so seized, that it is hy 
statute exempt from such seizure." Clearly this statute authorizes 
the action where the property is claimed as exempt, as in this 
case. Cooley v. Dqvis, 34 la. 128; Whitney v. Swensen^ (Minn.) 45 
N. W. Rep. 609. 

Judgment affirmed. 

Wallin, J., concurs. 

Corliss, C. J., having been of counsel, took no part in the 
above decision. 
(54 N. W. Rep. 286.) 



76 north dakota reports. 

James Morrison vs, Thos. N. Oium. 

Opinion filed Nov. 17th, 1892. 

Sale — ^Transfer of Possession. 

When, at or prior to the time of the execution of a bill of sale of personal 
property, the vendor, with intent to transfer the title and possession of the 
same, pointed it out to the agent of the vendee, where it was contained in 
boxes and crates, and stood in a warehouse, and subsequently locked the 
building, and delivered the key to such agent, who thereafter retained it, 
there was such an immediate delivery and actual and continued change of 
possession as fulfills the requirements of § 4657, Comp. Laws. 

Joint Possession of Building Where Stored. 

Such delivery is not impaired by the fact that a third party may also have 
had property in the same warehouse, and held a key thereto; nor by the 
further facb that the vendor may have agreed with such third party that his 
possession should be exclusive. 

Appeal from District Court, Ransom County; Lauder J. 

Action for the possession of personal property by James 
Morrison against Thomas Oium, sheriff. Plaintiff had judgment, 
and defendant appeals. 

Affirmed. 

Goodwin^ Van Pelt and Gammom, for appellant. 

A transfer of personal property, if not accompanied by an 
immediate delivery, and followed by an actual and continued 
change of possession is conclusively presumed to be fraudulent, 
§2024 Civil Code, Cofirad v. Sttdth, (N. D.) 51 N. W. Rep. 720; 
Longley v. Daly, (S. D.) 46 N. W. Rep. 247; Cook v. Rochford, 12 
Pac. Rep. 568; Young v. Poole, 13 Pac. Rep. 492; Comatia v. Kyle, 5 
Pac. Rep. '666; Stull v. Weigle, 8 At. Rep. 578; Batcher v. Berry 13 
Pac. Rep. 45; Sweeney v. Coe, 21 Pac. Rep. 705; Murch v. Swenson, 
42 N. W. Rep. 290. If there is a doubt as to the sufficiency of the 
delivery the benefit of the doubt must be given to the creditor. 
Anderson v. Brennerman 6 N. W! Rep. 222; Smith v. Greenop, 26 N. 
W. Rep. 332. 

C, W, Buttz, for respondent. 



MORRISON V, pIUM. 77 

The delivery of a bill of sale and of the key to a warehouse in 
which the goods are stored is an immediate delivery of the goods. 
Teidman on Sales, io6; Bruits v. Hatch, 19 Pac. Rep. 482; Pearson v. 
Qidst, 44 N. W. Rep. 217; Ross v. Sedgwick, 69 Cal. 247; Pope v. 
Cheney, 68 la. 363; Hart v. Mead, 84 Cal. 244. Slight evidence of 
actual delivery has been allowed to protect. the rights of the 
purchaser, 8 Am. and Eng. Enc. Law 885, Russel v. OBrien, 127 
Mass. 349; Thomdye v. Bush, 114 Mass. 116; Ingalls v. Herrick, 108 
Mass. 351. 

Bartholomew, J. Plaintiff and respondent claims certain 
personal property as vendee. Defendant and appellant, as sheriff, 
claims possession of the same by virtue of an attachment against 
the property of respondent's vendor's. Respondent, in his com- 
plaint, claimed title through a bill of sale executed and delivered 
on November 9th, 1887. At the hearing, against appellant's 
objections, respondent was permitted to give evidence of an oral 
contract of sale made at an earlier date, and delivery of posses- 
sion thereunder. This is assigned as error. If so, it is without 
prejudice. It is undisputed that a bill of sale was executed and 
delivered on November 9th, and that the attachment was not 
served until November loth, and the same delivery of the 
property that was made under the oral contract of sale continued 
under the written bill of sale. If the prior delivery was 
good, no further delivery was required. Shurtleff v. Willard, 19 
Pick. 210; Lake v, Morris, 30 Conn. 201. At the close of the 
testimony, appellant requested the court to take the case from the 
jury, and direct a verdict in his favor. This the court refused to 
do, but directed a verdict in respondent's favor. The case turned 
upon the question of delivery, and the court ruled that, under the 
undisputed facts, there was a legal delivery. This is alleged as 
error, and to that point appellant's main argument is directed. 
The property in controversy consisted of buggies in what the 
witnesses call a "knock down" condition, meaning that the 
various parts were in the boxes and crates in which such property 
is usually shipped. The delivery consisted in taking respondent's 



78 NORTH DAKOTA REPORTS. 

agent into the warehouse where the property was stored, showing 
it to him, and locking the warehouse, and giving him the key. A 
question of evidence arises at this point also. In the warehouse 
where the buggies were stored was a large amount of other 
property, (farm machinery principally,) which had formerly 
belonged to respondent's vendors, and which they had, a few days 
prior, transferred to one of their creditors, and had also given to 
such creditor a key to the warehouse. Appellant offered to prove 
that, by agreement between the vendors and such creditor, the 
creditor was to have exclusive control of the warehouse after the 
key was delivered to him. This evidence the court excluded, 
and, we think, properly. If such agreement had in fact been 
made and carried out, and if such creditor had exclusive control 
of and access tosaid warehouse, holding the property therein that 
had not been conveyed to him simply as a gratuitous bailee for the 
owners, it may be that upon a subsequent sale of such property by 
the owners, no delivery that would be good as against existing 
creditors could be made without notice to such bailee, and his 
consent either to relinquish to the purchaser or to hold as his 
bailee. Some of the cases would seem to so hold. See Hildreth 
V. Fitts, S3 Vt. 684; Hallgarten v. Old/uim, 135 Mass. i; Campbell 
V. Hamilton^ 68 Iowa, 293, 19 N. W. Rep. 220. But it is unques- 
tioned in this case that respondent's vendors did have access to 
the warehouse, and had possession of a key thereto, and unlocked 
the warehouse, and pointed out the property in controversy to 
respondent's agent, and subsequently locked the building, and 
gave such agent the key. Nor is it questioned that at the same 
time the agent of the party to whom the farm machinery had been 
sold held a key to the building, and had access thereto. If 
respondent's vendor were violating any agreement in not allow- 
ing said party exclusive possession, that fact cannot affect 
appellant's legal rights. If under the circumstances, the acts of 
respondent's vendors amounted to a legal delivery, they were 
none the less a delivery because such vendors, at a prior time, 
had made an agreement, which they had failed to perform, that 



MORRISON V, OIUM. 79 

another party might have exclusive control of the building; hence 
the existence or nonexistence of such an agreement was entirely 
immaterial in the case, and the offered evidence was properly 
excluded. 

Section 4657, Comp. Laws, reads as follows: "Every transfer 
of personal property, other than a thing in action, or a ship or 
cargo at sea or in a foreign port, and every lien thereon, other 
than a mortgage, when allowed by law, and a contract of 
bottomry or respondentia, is conclusively presun>ed, if made by a 
person having at the time the possession or control of the 
property, and not accompanied by an immediate delivery, and 
followed by an actual and continued change of possession of the 
things transferred, to be fraudulent, and therefore void, against 
those who are his creditors while he remains in possession, and 
the successors in interest of such creditors, and against any 
person on whom his estate devolves in trust for the benefit of 
others than himself, and against purchasers or incumbrancers in 
' good faith subsequent to the transfer." It is claimed that there 
was no such immediate delivery and actual and continued change 
of po)5session in this case as the statute contemplates. It will be 
noticed that under our statue the failure to comply with its terms 
raises a conclusive presumption of fraud. Under statutes of this 
character it is perhaps true that somewhat higher evidence of 
delivery is required than under statutes where the fraudulent 
presumption raised by the law may be rebutted. Ludwig v. 
Fuller^ 17 Me. 162. The delivery in this case was symbolical, as 
distinguished from actual, (which takes place when there is 
manual tradition of the property from vendor to vendee,) or con- 
structive, (which is effected by bill of sale when the property is 
not present, as a ship at sea, or by the parties approaching 
within view of the property, and the vendor proclaiming delivery 
to the vendee when the property is ponderous to a degree that 
precludes actual delivery.) But the symbolical delivery that is 
manifested when the vendor delivers to the vendee the key to 
the building where the property is stored has long been regarded 



80 NORTH DAKOTA REPORTS. 

by the law as equally effective in transferring the title and posses- 
sion from the vendor to the vendee with actual tradition. What 
the law requires, and all that the law requires, is that the conduct 
of the parties should clearly show a relinquishment of ownership 
and possession, and all rights of control on the part of the vendor, 
and an assumption of ownership and possession and control on 
the part of the vendee. We think these requirements were fully 
met by the conduct of the parties in this case, as shown by the 
undisputed testipiony. There is not even a suspicion in the testi- 
mony that respondent's vendors, after delivery of the key of the 
warehouse to- respondent's agent, ever exercised any control 
whatever, real or apparent, over the property. Nor is there any 
indication that there was aught about the warehouse that would 
lead any one to suppose that it was in the possession of such 
vendors, or that they were in any manner carrying on their busi- 
ness therein. Nor does any reason occur to us why this delivery 
should be defeated because a third party had property in the 
same warehouse, and held a key thereto. After the delivery of the 
key to the agent, respondent's vendors ceased to have access to the 
building or control of any property therein. Prior to that time 
they did have access to and actual possession of the property sold 
to respondent. By their acts they transferred all their right of 
access, and their possession, to respondent. The vendors' rights 
and possession could not have been more completely terminated 
had they, therefore, been sole occupants of the building. We 
think the trial court rightly held as matter of law that the undis- 
puted evidence showed an immediate delivery, and actual and 
continued change of possession, good as against existing creditors 
of the vendors. See, generally, Packard v. Dunsnwrey 1 1 Cush. 
282; Russell V, (TBrieny 127 Mass. 349; Vining v. Gilbreth, 39 Me. 
496; McKee v. Garcelon, 60 Me. 165; Benford v. Schell, 55 Pa. St. 393. 
What we have said virtually disposes of the error assigned upon 
the refusal of the court to grant a new trial on the ground of 
newly-discovered evidence. This proposed evidence is all directed 



THE MINN. THRESHER MANUFACTURING CO. V. HANSON. 8l 

to the points which we have alfeady ruled to be immaterial in 
this case. 
The judgment of the District Court is affirmed. All concur. 

(54 N. W. Rep. 288.) 



The Minnesota Thresher Manufacturing Co. vs. Elias Hanson. 

Opinion filed Not. 23rd, 1892. 

Sale — ^Warranty Construction. 

Contract of warranty upon the sale of a steam threshing machine construed. 
This court will not limit such warranty to such defects only as are discovered 
when the machinery is first started, unless the wording clearly requires such 
restriction. 

Action for Price — Defense — Estoppel. 

Continued use of machinery purchased under a warranty, after knowledge 
of defects may destroy the buyer's right to rescind the contract, but will not 
destroy his right to plead a breach of warranty to defeat a recovery, in whole 
or in part, in an action brought by the seller to recover the purchase price. 

Appeal from District Court, Grand Forks County; Templeton, J. 

Action by the Minnesota Threshing Manufacturing Company 
against Elias Hanson. Plaintiff had judgment, and defendant 
appeals. 

Reversed. 

BaTigs & Fisky for appellant, 

A.J. OKeefe, for respondent. 

Bartholomew, J. This action was brought to forclose a mort- 
gage given to secure the purchase price of a steam threshing 
outfit. The defense was breach of warranty, followed by a rescis- 
sion of the contract and a return of the property. From a decree 
of foreclosure, with judgment for deficiency against him, defend- 
ant appeals. The findings of fact are not questioned, but the legal 
conclusions are challenged. The property purchased Was second 
N. D. R. — 6. 



82 NORTH DAKOTA REPORTS. 

hand machinery. The order for the same, given by appellant, was 
upon a written and printed form, and contained the warranty upon 
which the breach is assigned. The portions thereof material to 
this decision are as follows: "This engine and separator is the 
Fadden rig, and is warranted and represented to be in. running 
order at time of delivery. * ♦ * It is hereby understood that 
if any of the machinery ordered herein is second hand, and has 
been repaired and sold as such, it is warranted to be in good run- 
ning order at the time of delivery to the buyer; and if, at the time 
of first starting, it is found by the buyer not to be as represented, 
immediate notice by telegraph or by mail shall be given to the 
seller at Stillwater, Minn., and the buyer shall wait until the seller 
gets a man there to right it, and shall give him necessary and 
friendly assistance, and then, at once, give the machinery a fair 
trial. The use of such machinery after said trial shall be conclu- 
sive evidence of satisfaction and fulfillment of the warranty." 
The findings show that the machinery was delivered in the latter 
part of August, 1890, and appellant commenced to use the same 
September 2nd, 1890, and continued to use it until October 7th, 
1890, and that during said time the machinery did good work, but 
that at the time of the delivery the boiler was in an unsafe and 
dangerous condition, by reason of certain defects that were 
unknown to appellant, and also unknown to respondent and its 
agent, who believed it to be in good running order; that on Octo- 
ber 7th, 1890, the state boiler inspector condemned said boiler as 
unsafe, and ordered appellant to stop using the same; that until 
said date appellant did not know that the boiler was in a danger- 
ous condition; that the next day appellant, for the first time, gave 
respondent written notice, by letter directed to it at Stillwater, 
Minn., of the* defects in the boiler, and notified respondent that he 
repudiated the contract, and requested the return of his notes. It 
does not appear from the findings that any attention was given to 
this letter, and on October 23rd, 1890, appellant returned the 
property to the City of Grand Forks, and offered to turn the same 
over to the general agent of respondent from whom he purchased 



THE MINN. THRESHER MANUFACTURING CO. V, HANSON. 83 

it, but the agent refused to receive it. On the same day appellant 
again notified respondent that he had returned the property, and 
left it near rfespoadent's warehouse, subject to respondent's dis- 
posal. After said date neither party interfered with the property 
in any manner. Upon these facts the learned trial court found, 
as a conclusion of law, that appellent, by keeping and using said 
machine until October 7th, 1890, without notice to respondent of 
any defects, was precluded from setting up a breach of warranty 
as to the condition of the boiler at the time of the purchase. If this 
conclusion is correct, the judgement must be affirmed; otherwise, 
reversed. 

No question is raised, it will be noticed, upon the right of the 
buyer to return the property unless such right had been waived. 
Appellant was precluded from the defense of breach of warranty 
solely by reason of his conduct in using the property for such 
length of time without notice of defects. Whether this conclusion 
was based upon the express terms of the warranty, or upon gen- 
eral principles of law pertaining to the subject, we are not 
definitely informed. The learned counsel for respondent, in his 
brief, puts his construction upon the warranty, and prints it as 
follows: "That if, at the time of first starting, it is found by the 
buyer, not to be as represented, immediate notice, by telegraph or 
mail, shall be given to the seller at Stillwater, Minn. * ♦ * The 
use of the machinery after such trial shall be conclusive evidence 
of satisfaction and fulfillment of the warranty." Under that con- 
struction the law is undoubtedly with respondent, as we regard it 
well settled that where an express warranty is upon condition, or 
when some duty is devolved upon the purchaser by the terms of 
the warranty, such condition must be fulfilled, or such duty per- 
formed, before advantage can be taken of any breach of such war- 
ranty. Nichols V. KnowleSy 31 Minn. 489; 18 N. W. Rep. 413; King 
v. Tawsky, 64 la. 75; 19 N. W. Rep. 859; Russell v. Murdoch, 79 la. 
loi; 44 N. W. Rep. 237; Worden v. Harvester Co,, 11 Neb. 116; 7 
N. W. Rep. 756; Threshing Machine Co,, v. Venttum, (Dak.) 23 N. 
W. Rep. 563. But will the warranty bear that construction? We 



84 NORTH DAKOTA REPORTS. 

fiiink not. We have already quoted Ht, supplying the ellipsis 
found in respondent's quotation. We think the fair, reasonable 
construction of the langauge will lead to the conclusion that the 
use of the machinery which is declared to be conclusive against 
appellant upon the question of breach of warranty must occur 
after notice of defects; after a man has been sent to remedy such 
defects;, after an effort has been made so to do, and the machinery 
then given a fair trial. It is the use of the machinery after said 
trial that becomes conclusive. • This construction becomes irre- 
sistible by reference to other portions of the warranty, all of which 
is set forth in the findings. It is provided that, in case of purchase 
of machinery other than second hand machinery, the buyer shall 
have three days after it i§ first started to ascertain whether said 
machinery is or is not as warranted. If not, he shall at once give 
notice to the seller, and wait until a man gets there to right it, 
and, after the man is through, the buyer shall at once give the 
machinery a fair trial of two days, and the use of the machinery 
after the said two days shall be conclusive evidence that it is as 
warranted. Here is it expressly dedared that the use of the 
machinery which shall be conclusive upon the question of war- 
ranty follows the second trial of the machinery, — the trial that 
comes after the efforts of the expert to correct the defects. Under 
the language used, it is not reasonable to conclude that it was the 
intention to establish a different rule upon sales of second hand 
machinery. In this case it does not appear, however, that any 
attention was ever given to the notice of defects sent on October 
8th, 1890, or that any man was sent to remedy such defects, or 
that there ever was any subsequent trial of the machinery. Such 
being the case, that portion of the warranty which makes the use 
of the machinery after such subsequent trial conclusive against 
the buyer on the question of breach of warranty must be elimi- 
nated from further consideration. 

But it is claimed that under the express terms of the warranty 
the buyer was bound, at his peril, to discover all the defects in the 
machinery "at the time of first starting," and that only the defects 



r' 



THE MINN. THRESHER MANUFACTURING CO. V, HANSON. 85 

thus discovered and reported were covered by the warranty. This 
construction would be very narrow, and we do not think the lan- 
guage requires it. It would convert a provision intended for the 
buyer's protection into a trap for his undoing. It would be diffi- 
cult, often impossible, for the buyer, upon a trial of an hour's 
duration, or even in a half day, to inspect each portion of a steam 
engine, boiler and grain separator, sufficiently to discover whether 
or not it was perfect, and properly performed its functions. When 
next started, in different grain, and under less favorable circum- 
stances, portions of the machinery might be found entirely inade- 
quate. Yet, under the construction contended for, the buyer's mouth 
would be closed. We do not think the buyer understood, or that 
the seller intended him to understand, that he was receiving only 
this restricted and unsatisfactory protection. Independent of any 
conditions in the warranty, it was incumbent upon appellant to be 
ordinary dilligent to discover, and prompt to report, any defects 
in the machinery that would constituted a breach of the seller's 
warranty; and any continued use of the machinery, after knowl- 
edge of the defects, without notice thereof to the seller, would 
prevent a recission of the contract, and a return of the property. 
It would be an election upon the part of the buyer to affirm the 
contract. Lode v. Williamsony 40 Wis. 377; Boothby v. Scales, 27 
Wis. 626; Sparling v. Ma^ks, 86 111. 125; Marshall v. Perry, 67 Me. 
78; Cookingham v. Dusa, 41 Kan. 229; 21 Pac. Rep. 95; Polhemus v. 
Heiman, 45 Cal. 573. But the retention and use oi the property, 
without notice of defects, under the great preponderance of the 
later — and, as we think, better — authorities, affects only the right 
to rescind. The buyer may still rely upon the breach of warranty 
to defeat a recovery, in whole or in part, in an action brought by 
the seller to recover the purchase price. Continued use of the 
property, with knowledge of defects, and without notice or com- 
plaint of the seller, may be more or less persuasive as evidence of 
waiver of defects, but cannot establish such waiver as a matter of 
law. See, generally, Kellogg v. Denslow, 14 Conn. 411; Aultman, 
Miller & Co. v. Thierer, 34 la. 272; Muller v. E710, 14 N. Y. 597; 



86 NORTH DAKOTA REPORTS. 

Kent V. Friedman, loi N. Y. 6i6; 3 N. E. Rep. 905; Vincent v. 
Leland, 100 Mass. 432; Taylor v. Cole, in Mass. 363; Warder v. 
Fisher, 48 Wis. 338; 4 N. W. Rep. 470; Ferguson v. Hosier, 58 Ind. 
438; feftnock V. Stygles, 54 Vt. 229; 5/w/A v. Mayer, 3 Col. 207. 
We are unable, under the findings of fact, to discover any legal 
reason, either in'the express words of the warranty or otherwise, 
why appellant may not in this case take advantage of the breach 
of the warranty, if any such breach in fact exists. 

An inspection of the record in this case discloses another reason 
why we should reach this conclusion. The original contract is 
partly printed and party written. The first warranty of the par- 
ticular property involved, and which we have already quoted, is in 
writing, and is unconditional and absolute. The conditional war- 
ranty is printed. To give that conditional warranty the construc- 
tion for which respondent contends would make it entirely incon- 
sistent with the written warranty. A well settled rule of construc- 
tion, in all such cases, makes the written portion of the contract 
controlling, as being that to which the attention of the parties was 
more directly and specifically called. 

The judgment of the District Court is reversed, and a new trial 
granted. All concur. 

(54N. W. Rep. 311.) 



parker v. first national bank. 87 

Almon H. Parker vs. The First National Bank of Lisbon. 

opinion filed Dec. 14th, 1892. 

Lien for Threshing— Notice— Description of Land. 

In order to preserve a lien for threshing grain, under Ch. 88, Laws Dakota 
Territory, 1889, the statement which that statute directs shall be filed, must 
contain a description of the land whereon the grain upon which the lien is 
claimed was grown. 

Owner and Operator of Machine. 

Np party is entitled to a lien, under the provisions of that chapter, unless he 
owns and operates the machine with which the threshing was done. 

Who May Maintain Conversion. 

An action for the conversion of personal property cannot be maintained 
unless plaintiff was in possession, or held a legal right to immediate possession 
of the property converted, at the time of the conversion. 

Appeal from District Court, Sargent County; Lauder, J. 

Action by A. H. Parker against the First National Bank of 
Lisbon for the conversion of a quantity of wheat. A demurrer 
to the complaint was overruled, and defendant appeals. 

Reversed. 

Goodwin & Van /I?// for appellant. 
Lockerby & Cady, for respondent. 

Bartholomew, J. This is an action for conversion of certain 
wheat. There was a demurrer to the complaint on the ground 
that it did not state facts sufficient to constitute a cause of action. 
The demurrer was overruled, and this appeal was brought by 
defendant solely upon such ruling. It will not be necessary to 
consume the space required to set out the complaint in full. 
Respondent claimed the wheat by virtue of a thesher's lien, 
under Ch. 88, Laws Dakota Territory, 1889. Section i of that 
chapter reads as follows: "Every person or persons owning and 
operating a threshing machine shall have a lien, from the date of 
threshing, upon all grain threshed by him with such machine, for 
the value of the services so rendered in doing such threshing." 



88 NORTH DAKOTA REPORTS. 

The second section gives such lien, when filed within the time 
specified, priority over all liens or incumbrances upon the grain, 
created subsequent to the act. Section 3 provides for filing an 
account, and specifies what the account shall contain, including 
the number of bushels threshed, the price agreed upon for such 
work, the name of the person for whom such threshing was done, 
and a description of the land upon which the grain was grown. 
It also provides for filing the statement for record. Section 4 
makes such filing notice to all purchasers and incumbrancers 
subsequent to the date of said filing; and § 5 provides for the fore- 
closure of the lien upon the notice, and in the manner, provided 
by law for the foreclosure of chattet mortgages. No copy of the 
statement required to be filed is incorporated in or annexed to 
the complaint. Appellant disclaims raising any question as to 
the constitutionality of the statute under which respondent 
claims, but contends that respondent has failed to bring himself 
tvithin the provisions of the statute, in two particulars: Firsts 
that it does not appear from the complaint that respondent ever 
filed the statement required by the statute; and, second^ that it 
does not appear from the complaint that respondent was the 
owner of the machine that did the threshing. The language used 
by Justice Wallin in construing the statutory seed grain lien in 
Lavin v. Bradley, i N. D. 291, 47 N. W. Rep. 384, is in all respects 
pertinent to this case: "In construing the seed lien statute the 
fact must not be overlooked that the lien given is wholly statutory 
in its nature and origin. It was unknown to the common law, 
and hence can neither be acquired nor enforced unless there has 
been a substantial compliance with the act of the legislature from 
which the lien .arises." Relative to the statement filed, the 
complaint states: "Plaintiff further alleges that, for the pur- 
pose of securing his pay for said threshing and for the purpdse 
of perfecting a lien on the grain so threshed, he caused to be 
made an itemized statement of his account for such threshing, 
containing his bill therefor, and after making oath thereto," etc. 
There is no other reference to the statement in the complaint. 



PARKER V, FIRST NATIONAL BANK. 89 

The allegation is that it was "an itemized statement of his account." 
An itemized account, as those words are generally — and, so far as 
we know, universally — used, includes the names of the parties, 
debtor and creditor, the respective items for which the credit was 
given, with the dates and amounts charged for each item; and the 
total amount. In an itemized account for threshing, a description 
of the land on which the grain was grown would be entirely 
foreign. It would be no necessary or usual part of such an 
account. The pleader having alleged t\h character of the state- 
ment filed, under familiar rules of interpretation, we cannot 
presume that anything else was filed. Yet the statute is peremp- 
tory in requiring the statement to contain a description of the 
land on which the grain was grown, in order to entitle a party to 
the lien given by the statute. The necessity for such statement, 
particularly for the protection of subsequent purchasers and 
incumbrancers, is perfectly apparent. In this case it may be 
true that respondent performed all the acts alleged in the com- 
plaint, and yet if appellant subsequently came into possession of 
the wheat by purchase from the owner, or by way of security, its 
title would be perfect, as against respondent. 

Again, under the statute, it is not the party owning a threshing 
machine who is entitled to the lien, nor yet the party operating 
such machine, but it js the person "owning and operating a 
threshing machine." The only allegation in the complaint upon 
that point is as follows: "That plaintiff was at all times herein- 
after mentioned doing business of running and operating a thresh- 
ing machine." That falls far short of an allegation of ownership 
in the machine. It is just as consistent with possession in any 
other capacity. An allegation much stronger than in this case 
was held to be an insufficient allegation of ownership in Rug-g v. 
Hoover, 28 Minn. 407, lO N. W. Rep. 473. We think the com- 
plaint was vulnerable to the demurrer on both these points. 

Another insuperable objection is urged against the complaint, 
which we are compelled to notice, in view of what may hereafter 
appear by way of an amended complaint. Plaintiff does not 






90 NORTH PAKOTA REPORTS. 

show that he was in possession, or had an immediate right of 
possession, of the grain at the time of the alleged conversion. 
The statute, at most, only gives a lien. . This lien may be fore- 
closed upon the notice, and in the manner, provided by law for 
foreclosing chattel mortgages, but it carries with it no right of 
possession until the right to foreclosure is complete. The com- 
plaint fails to show that the credit extended to the piarty for whom 
the threshing was done had expired, or that the account W2|.s due. 
It is well settled that no%ction for conversion can be maintained 
unless the plaintiff shows a general or special ownership in the 
property converted, and possession or a legal right to immediate 
possession, at the time of the conversion. Barton v. Dunning, 6 
Blackf. 209; Grady v. Newby, Id. 442; Dungan v. Insurance Co., 38 
Md. 242; Owens v. Weedman, 82 111. 409; Fulton v. Fulton, 48 Barb. 
581; Donley v. Rector, 10 Ark. 211. The order of the District 
Court overruling the demurrer to the complaint is reversed, and 
that court is directed to enter an order sustaining the demurrer, 
and giving respondent 20 days after the entry of such order in 
which to amend his complaint, if he so desires. All concur. 
(54 N, W. Rep. 313.) 



r' 



BENNETT V. N. P. R. R. CO. QI 

George A. Bennett vs. Northern Pacific Railroad Company. 

Opinion filed Dec. 17th, 1892. 

Injury to Employee— Question of Negligence for Jury. 

Plaintiff, a switchman, in the employ of defendant, was directed by the fore- 
man of the switching crew to assist him in coupling an engine to a flat car. 
According to some of the evidence the drawhead of the car sank flush with the , 
end of the car when the engine struck the car, and plaintiff was caught between 
the car and engine, and injured. The evidence showed that the play of a 
drawbar was from i to 4 inches, and that this drawbar was 10 or 12 inches 
long. J/e/d, sufficient evidence of defendant's negligence to -require the sub- 
mission of that question to a jury. 

Contributory Negligence—What is Not. 

The track on which the coupling was made was a curved one, and plaintiff 
was standing on the footboard of the engine, on the inside of the curve, at the 
time he was injured^ There was no evidence as to the degree of the curve. 
IfM, that he was not negligent, as a matter of law, in remaining there to help 
in making the coupling. 
• 
Evidence Applied. 

Nor was he guilty of contributory negligence, as a' matter of law, in stand- 
ing in that place, notwithstanding the unusual shortness of the drawbar of the 
engine and of the drawbar of the car, the former projecting 6 inches beyond a 
rim on the rear of the engine, and the latter being, according to some of the 
evidence, 12 inches long, the evidence showing that the usual play to a drawbar 
is from I to' 4 inches; there being no play to the drawbar on the engine, and it 
being undisputed that the engine approached the car slowly to make the coupl- 
ing, so that the amount of slack taken up would be but little, if everything was 
in proper order. 

Standing on Footboard of Engine. 

Neither was it contributory negligence, as a matter of law, for him to remain 
on the footboard, instead of going ahead, and setting the pin, and'then stepping 
outside the track before the engine and car came together. 

Appeal from District Court, Stutsman County; Rosft J. 

Action for personal injuries by Geo. A. Bennett against the 
Northern Pacific Railroad Company. Defendant had judgment, 
and plaintiff appeals. 

Reversed. 

5. L. GlaspeUy for appellant. 

BaU & Watson^ for respondent. 



92 NORTH DAKOTA REPORTS. 

Corliss, C. J. This is the second time this case has been 
before us. On the former appeal the opinion is reported in 2 N. 
D. 112; 49 N. W. Rep. 408. On the second trial the court 
directed the jury to find for the defendant. Judgment was 
entered on the verdict so directed. From that judgment this appeal 
is taken. Should the case have been submitted to the jury? It is 
necessary to review the evidence, as the facts seem to be some- 
what different from those which appeared from the record on the 
former appeal. The plaintiff was injured while assisting in coup- 
ling an engine to a flat car, known as a "Union Tank Line Car.' 
The car was standing on a switch. Plaintiff was directed by Den- 
nis Shields, the foreman of the switching crew of which plaintiff 
was a member, to go with him to couple onto this car, and to 
transfer it to another track. Plaintiff turned the switch, and 
stepped upon the end board of the engine where Shields was 
standing. The engine then started eastward to back down to this 
car, which was only a few rods distant, — about 60 or 70 feet. The 
switch was a curved one. How great was the curve is not dis- 
closed by evidence on this record. PlaintiflF appears to have 
offered to prove that the curve was slight, but this offer was 
objected to, and the objection ^sustained by the court. Shields 
stood on the end board on the outside of the curve, while plain- 
tiff stood on the end board on the inside of the curve. Accord- 
ing to plaintiff's testimony he was looking for a pin with which to 
make the coupling as the engine approached the car. Finding 
none lying on the drawhead of the car, he turned to the tool box 
in the rear end of the tank of the engine to look for one there. Dis- 
covering none there he next cast his eyes upon the ground to find 
one, and was still unsuccessful. Finally he espied one on the 
platform of the car near the end. The engine, he says, was at 
that time about twenty feet from the car, and moving slowly, 
about 2 J^ miles an hour. He leaned over and grasped the pin, and 
was just in the act ot setting it when he was caught between the end 
of the car and the end of the engine, and one of his pelvic bones 
crushed. The injury appears to be permanent and quite serious. 



BENNETT V, N. P. R. R. CO. 93 

There is a marked difference between the evidence on this and 
on the former trial so far as the length of the drawbar of this car 
and the circumstances immediately surrounding the accident are 
concerned. On the former appeal we held that plaintiff was 
guilty of contributory negligence, as a matter of law, because the 
evidence disclosed the fact that this drawbar projected less than 
five inches from the end of the car before the slack was taken up. 
We held that, as the plaintiff slowly approached the car, he could 
not have failed to have noticed that the drawbar was extremely 
short had he used proper care; but it now appears from some of 
the evidence that this drawbar projected lo or 12 inches b'eyond 
the end of the car. We do not think that it can be said, under 
such evidence, that as a matter of law, the plaintiff was negligent 
in not apprehending peril; nor is it evident that plaintiff would 
have been injured at all had the play of this drawbar been only 
normal; i, e, from one to four inches. The engine was moving so 
slowly that its momentum when it struck the car must have been 
very slight. Shields, the foreman, says that the engine barely 
touched the car when they came together. The amount of slack 
taken up under these circumstances would be but little if every- 
thing was in proper condition. We think that the plaintiff had a 
right to assume that everything was all right, under the Circum- 
stances. It is true that, under the rule referred to in the opinion 
on the former appeal, and which was introduced in evidence on 
the second trial, the plaintiff was under obligation to look at the 
coupling apparatus to see if it was all right before making the 
coupling; but this does not involve a critical examination of the 
apparatus. The plaintiff testified that, as he approached the car, 
he looked at the drawbar, and did not see anything the matter 
with it. Indeed, it is undisputed that the drawbar and drawhead 
were apparently in good order; and if, there was anything the 
matter with them it is fair to assume that it was some obscure 
defect as in the spring, the follower plate, or some other similar 
place, the discovery of which would have required a very careful 
examination. It was for the jury to say whether plaintiff did all 



94 NORTH DAKOTA REPORTS. 

' the rule required of him under the evidence on this appeal. We 
are left in dark as to the precise difficulty with the drawbar, but, 
if the testimony of the plaintiff is entitled to credence,-^and that 
is a question for the jury, — then there is evidence to warrant a 
finding that there wa^ something wrong with some part of this 
coupling apparatus. The plaintiff swore that, when the engine 
struck the car, it pushed back the drawhead of the car almost, if 
not quite flush with the end sill. He said: "When the engine struck 
the draft iron it sunk in. It sunk in under the car. * It might 
have been a foot. It could not have been more than flush with 
the end of the car, or what would be the car frame." That there 
should be such play to the drawbar from sb slight an impact of 
the Engine against it is certainly evidence from which the jury 
might have said that there was some defect, which a proper inspec- 
tion of the car would have disclosed. It is urged that there is 
evidence that the car was inspected. Assuming this to be so, 
still it may be that the defendant had not discharged its full duty 
to plaintiff. It owed him the duty of making a careful inspection, 
and it was for the jury to say whether the sinking in of this draw- 
head flush with the end of the car, should they believe plaintiff's 
testiniony in this particular, was not evidence that this inspection, 
if made at all, was not made in a proper manner. If plaintiff's 
testimony is tru6, the drawbar, instead of having a play of from i 
to 4 inches, had a play of lo or 12 inches, — the full length it 
projected beyond the car. It seems to be conceded that the 
drawbar could not have sunk in so far had there been no defect 
in the apparatus. It is true that there was evidence tending to 
show that everything Was in proper order, but this conflict it is 
the province of a jury to settle. On the former appeal we said: 
"To fail to discover, under this circumstances, that these draw- 
bars [i. e. those of the engine and of the car] were only about 
one-third the usual length, must be negligence," etc. It now 

' appears that the drawbar on the engine was 8 inches long, and that, 
that on the car was 10 or 12 inches long. We cannot, under these 
new facts, say, as a matter of law, that the plaintiff was negligent 



BENNETT V, N. P. R. R. CO. 95 

in not knowing that there was danger of his being injured in mak- 
ing the coupling should he remain on the footboard; nor is there 
any evidence that he would have been hurt had there been no 
undue play to the drawbar of the car. The jury might, under the 
evidence, have found that this drawtar projected 12 inches beyond 
the end of the car; that the plaintiff was justified in assuming that 
only a little of the slack would be taken up in vieW of the very 
slow approach of the engine to the car; and it is undisputed that 
the drawbar of the engine projected at least 6 inches beyond the 
2'-inch rim around the rear end of the engine, and that there was 
no slack in this drawbar which could be taken up. This would 
have left a standing place of about 16 inches, assuming that the 
spring of the drawbar of the car yielded two inches. This would 
have afforded plaintiff ample space in which to stand with safety, 
under the evidence on this record. It is true that plaintiff was 
bound to know that this space would be diminished somewhat by 
reason of his being on the inside of the curve, but there is no 
evidence in this case showing the extent of the curve, or how 
much closer together the ends of the car and engine would come 
on the inside than on the outside of the curve. The curve may 
have been so slight as to make the difference barely appreciable, 
especially at the point where plaintiff must have stood, quite near 
the center, in order to secure the pin, and drop it into the opening 
in the drawhead of the car. 

Whether plaintiff ought to have gone ahead and set the pin, 
and stepped to one side before the engine and car came together, 
is also a question for the jury. Negligence and contributory 
negligence are generally matters of fact, and we think that in this 
case, under .the present record, they should have been both sub- 
mitted to the jury, under proper instructions. Radical changes in 
testimony excite more or less suspicion, but it is not for this 
court to say whether the plaintiff swore falsely on the second 
trial; nor was it the province of the trial court to settle this matter 
of fact either for or against the plaintiff. The judgment is 

reversed, and a new trial ordered. All concur. 
(54 N. W. Rep. 315.) 



96 north dakota reports. 

Charles H. Gould vs. Duluth and Dakota Elevator Co. 

Opinion filed January loth 1893; 

Vacation of Judgment. 

Defendant moved in the District Court to vacate certain judgments entered in 
plaintiff's favor, and pending defendant's motion plaintiff made a counter 
motion, asking, in the alternative, either that the judgments be confirmed, or, 
if vacated on defendant's motion, that a new judgment be entered on the 
verdict. Both motions were denied, by one and the same order. Held, that 
while the order, in terms, denied plaintiff's motion, as well as that of the 
defendant, its practical operation and legal effect were wholly favorable to the 
plaintiff and wholly unfavorable to the defendant. 

Separate and Distinct Matters Not Disposed of in One Order. 

The practice of mingling distinct and independent matters in one hearing, 
and disposing of the batch by one order, condemned. 

Appeal Dismissed. 

No appeal will lie in plaintiff's favor from such order, and hence plaintiff's 
appeal therefrom is dismissed. 

Order for Judgment— Ex Parte Application. 

An application to the District Court, or to a judge thereof, for an order 
directing the entry of a judgment, may be made ex parte. Notice of such 
application is not necessary, unless a stay exists, or the court or judge, for some 
special reason, directs that such notice be given. 

Judge May Direct Entry of Judgment Outside His District. 

Under the proviso contained % 4828 Comp. Laws, a Judge of the District 
• Court of the district in vrhich the action is pending has authority, by an ex parte 
order, made while outside of such district, and within the state, to direct the 
entry of a judgment in such action; and, where an outside judge has been 
requested to act in the place of the judge of the district where the action is 
pending, under Ch. 61, Laws 1890, such outside judge is, with respect to such 
cases or matters as come within the request to act, empowered to **do and per- 
form all such acts as might have been done and performed by the judge of 
such district." Accordingly, held, that the Judge of the Fifth Judicial District, 
who had been duly requested to act, had authority to sign an ex parte order for 
judgment in this case while within the fifth district; the action being pending 
in the third district. 

Presumption of Due Taxation of Costs. 

On appeal from a judgment embracing costs, this court will presume, unless 
the contrary affimatively appears in the record, that the costs were duly taxed 
and inserted in the judgment. Where presumptions control, they will only be 
indulged in support of the judgment. Eliott, App. Proc. § §710, 717, 718, 725. 



GOULD V, DULUTH AND DAKOTA ELEV. CO. 97 

Cross appeals from District Court, Cass County; McConnell, J. 

Action by Charles H. Gould against the Duluth & Dakota 
Elevator Company for the conversion of a quantity of wheat. 
After the reversal of an order vacating a judgment for plaintiff, 
50 N. W. Rep. 969, judgment was entered for plaintiff. Defen- 
dant moved to vacate such judgment, and pending such motion 
plaintiff moved for an order confirming the judgment, or, if 
vacated on defendants motion, for judgment on his original 
verdict. From the orders entered, denying both motions, both 
parties appeal. 

Affirmed. 

y. £, Robinson^ for plaintiff. 

Spalding & Plielps, for defendant. v 

Wallin J. On a former appeal in this action to this court, 
2 N. D. 216, 50 N. W. Rep. 969, an order of the District Court 
setting aside a verdict in plaintiff's favor, and granting a new trial, 
was reversed, and the trial court was directed to enter judgment 
in plaintiff's favor, reversing the order of the District Court, and 
for the costs and disbursements of this court. On filing the 
remittitur below, and on plaintiff's application therefor, judgment 
was entered in the District Court, reversing the said order of the 
District Court, and for plaintiff's costs and disbursements made 
and incurred in this court on said appeal, amounting to the sum 
^80.65. This judgment bears date January 30th, 1892, and the 
same was entered by the Clerk of the District Court for Cass 
County, in the Third Judicial District, where the action was pend- 
ing. At the same time, and on plaintiff's motion therefor, 
another and separate judgment in this action was rendered and 
entered by the Clerk of said District Court, in favor of plaintiff 
and against defendant for the amount of the verdict, with interest, 
together with the costs and disbursements of said action in the 
District Court, aggregating $592.35. This judgment also bears 
date January 30th, 1892. Both judgments were rendered and 
entered without notice to defendant, or to its attorney in the 
action. It is conceded that both judgments were signed by the 
N. D. R. — 7. 



98 NORTH DAKOTA REPORTS. 

Judge of the Fifth Judicial District while said judge was outside 
of the third district, and within his own district — the fifth. The 
judge of the fifth district signed and certified to both judgments 
as follows: "Roderick Rose, Judge, acting for and in place of 
Wm. B. McConnell, at his special request, and in his absence from 
the state." No question arises upon this record touching the 
accuracy of the several amounts entered in the judgments as costs 
or disbursements. After the entry of said judgments, defendant 
obtained an order of the District Court for the Third Judicial 
District, signed by the judge thereof, requiring plaintiff to show 
cause, why said judgments should not be vacated; and pending the 
hearing of said order to show cause, and before the same was 
determined, said District Court, •at plaintiff's instance, granted 
another order, requiring defendant to show cause "why the judg- 
ments herein entered, and signed by Judge Rose should not be in 
all things confirmed, and stand as the judgments of this court, or 
why judgment should not be entered on the verdict for $484 and 
costs, as taxed and allowed by the court." Said orders, respec- 
tively, were based upon affidavits, but the contents thereof, 
except as hereinafter mentioned, are not now impbrtant to notice. 
The motions embodied in the two orders to show cause were 
heard at the same time, and after hearing counsel the District 
Court ordered as follows: "That each of said motions be, and.the 
same is hereby, denied." This order bears date on March 29th, 
1892. On April 2nd, 1892, the District Court made the following 
order: "The order requiring plaintiff to show cause why the two 
judgments herein, dated January 30th, 1892, signed by the Honor- 
able Roderick Rose, Judge of the Fifth Judicial District, should 
not be set aside and vacated, coming on for a hearing, A. C. 
Davis, defendant's attorney, in support of said order, and J. E. 
Robinson, plaintiff's attorney, showing cause contra^ and on due 
consideration, ordered, that said order to show cause be, and the 
same is hereby, discharged, and the application of defendant to 
set aside and vacate the judgment is hereby denied as to each of 
the same. This order is made as a partial substitute for order 



GOULD V. DULUTH AND DAKOTA ELEV. CO. 99 

dated March 29th, 1892; and, except as hereby suspended, said 
order stands. Wm. B. McConnell, Judge. April 2nd, 1892." It 
appears on the record that the last mentioned order "was made on 
motion of defendant's attorney, in order to free his appeal from 
the plaintiff's motion.'* From the last mentioned order defendant, 
on April 4th, 1892 perfected an appeal to this court; and there- 
after, on April 23rd, 1892, the plaintiff appealed to this court 
from so much of the first order of the District Court (that of 
March 29th, 1892) as denied plaintiff's motion "that the judg- 
ments herein be in all things confirmed, or that plaintiff do have 
judgment on the verdict for the amount thereof, with interest and 
costs." 

In this court, defendant assigns the following errors: Firsts "That 
Judge Rose had no authority to sign the judgments, or to order 
them to be entered by the clerk of this court, and especially had no 
authority to do so beyond the limits of the Third Judicial District.*^ 
Second, "That the proceeding of the plaintiff in causing two judg- 
ments to be entered herein is irregular, and contrary to law and 
the practice of this court." Third, "That said judgments were 
rendered and entered without notice to the defendant or its attor- 
ney." Plaintiff's assignments of error in this court are briefly as 
follows: First, The District Court erred in refusing to grant 
plaintiff's motion, because the counter motion of plaintiff was 
justified by defendant's motion to vacate the 'judgments. Second, 
If the judgments were void, then the court erred 'in denying 
plaintiff's motion for another and valid judgment. 

We can discover no merits in either of plaintiff's assignments 
of error. Plaintiff's motion was, under the circumstances, uncalled 
for, and premature. One branch of the relief sought by the 
motion was a confirmation of judgments already entered in plain- 
tiff's favor. While plaintiff's judgments stood of record as 
entered, their confirmation would be superfluous and meaningless; 
and whether the judgments were to stand intact or not was the 
sole question to be determined by the motion previously made 
by defendant, and then pending. The other branch of plaintiff's 



Wy^^P^: 



lOO NORTH DAKOTA REPORTS. 

motion, Viz: to enter a new judgment on the verdict, (upon the 
contingency that the existing judgments were first vacated,) was 
premature. The practice of mingling together in a single motion 
various matters which are distinct and severable in their character, 
and of disposing of the »entire incongruous mass by one lump 
order, is npt to be commended. Such a course tends to compli- 
cate and confuse issues which should be separated, and considered 
independently of each other. It is nevertheless quite clear that 
the order of the trial court denying both the motion of the plain- 
tiff and the motion of defendant was, in its practical operation 
and legal effect, wholly favorable to the plaintiff. By such order 
the District Court refused to vacate plaintiff's judgments. The 
refusal to vacate was tantamount to saying that the judgments 
should stand as entered of record. Such an order could not pre- 
judice any right of the plaintiff, and the same was not appealable. 
Defendant's assignments of error present more serious ques- 
tions. We will inquire first whether the trial -court erred in 
refusing to vacate the judgments upon the ground that they were 
entered without notice to the defendant or its counsel. The 
practice of entering judgments in the District Courts in contested 
cases without notice, and in the absence of the defeated party, 
was extensively prevalent in those portions of the late territory 
which are now embraced within the boundaries of this state, and 
since the state has -been admitted the practice still continues to 
be prevalent. The number of such ex parte judgments is very 
great, and, unless the most imperative reasons exist for so doing, 
we certainly ought not lo establish a rule in this or in any case 
which could be used, or sought to be used, as a lever to upset the 
results of so' ipuch of the litigation which belongs to the past. But 
we know of no express statute or governing rule of practice that 
makes such holding necessary. Section 5095, Comp. Laws, pro- 
vides that a judgment "may be entered by the clerk upon the 
order of the court, or the judge thereof." At the time this section 
was enacted the line dividing the duties of the court while in 
session from those of the judge at chambers was much more 



GOULD V, DULUTH AND DAKOTA ELEV. CO. 101 

distinctly marked than it has become under the operation of more 
recent statutes. The existing practice of entering , judgments 
without notice probably grew up under the statute in consonance 
with the theory that only ^x parte matters, followed by orders 
made as of course, could be entertained by a judge when not 
fitting as a court. The section cited confers upon the "judges" 
as well as the courts, authority to direct the entry of judgment. 
We think this implies that the legislature intended judgments to 
be entered, except in cases where the statute otherwise specially 
directed, without notice or other formalities than the simple 
direction of the court, or of the judge at chambers. There seems 
to be no necessity for such notice ordinarily. None is expressly 
required in cases tried by the court. Section 5067, Comp. Laws. 
On the other hand a motion is expressly required by the terms of 
a recent statute regulating the entry of judgments based upon the 
reports of referees. Laws 1889, p. 151. Applications for judg- 
ment in default of answer is specially regulated by § 5025, Id.; 
and in cases of a frivolous demurrer, answer, or reply, § 5026 
expressly requires notice of the application to be given. What 
we say in this case has no application to cases arising under 
those sections. In the cases mentioned in § 5095, we see no 
danger, and see some practical advantages likely to result from 
the practice of entering judgment without notice. No judgment 
can be regularly entered without an application therefor to the 
court or judge, and if deemed expedient, an order for notice and 
a hearing before rendering judgment can be made in any case. 
Counsel for defendant cite § 5333, Comp. Laws, which requires 
that, in cases where defendant has appeared in an action, notice 
of the ordinary proceedings in the action shall be served on 
defendant or his attorney. But this general provision must, 
under a familiar rule of construction, yield to any statute framed 
expressly to control a particular subject. There is a correspond- 
ing section in the practice act of the State of Minnesota. See 
volume I, § 72, Ch. 66, Gen. St. Minn. 1878. In Lcyde v. Martin, 
16 Minn. 38, Gil. 24, where judgment was entered without notice 



102 NORTH DAKOTA REPORTS. 

upon the report of a referee, the court sustained the practice 
against the objection that no express statute conferred on the 
Clerk of the Court authority to enter judgment without notice in 
such qases, although, the clerk could do so in jury cases under 
§ 268 of Ch. 66. The court cited earlier decisions and refused to 
disturb the existing practice of entering judgment without notice. 
Much less we think, should the existing practice be disturbed in 
this state, where unlike Minnesota, no. judgment can be entered 
without the direction of the court, or a judge thereof. While the 
point is not directly involved in the present case, we feel like say- 
ing, in the interest of a sound and uniform practice, that there is 
no statute in this state requiring the District Court, or judge 
thereof, to sign a judgment. An order directing the entry is all , 
that is required. Section 5095, Comp. Laws. By the decided 
weight of authority, where a statute provides in terms for affix- 
ing the signature of the judge to a final judgment, such statute 
will be construed as directory, merely, and a failure to sign the 
judgment does not invalidate the same. I Freem. Judg. § So6e, 
and note. In this state, where an order for the entry of the judg- 
ment is given, it is the duty of the clerk, under § 5095, supra^ to 
enter final judgment in the judgment book, and then place a copy 
of such judgment in the roll. Comp. Laws, §§ 5101, 5103. On 
the coming in of a verdict, an order for judgment entered in the 
minutes, or subsequently written out, signed by the judge, and 
filed, will give the clerk authority to enter judgment pursuant to 
the order. Where the action is tried by the court, the findings 
should indicate clearly the character of the judgment to be 
entered; and such findings, without further direction from the 
court or judge, will authorize the entry of judgment. In no case 
should a judge be called upon to sign a judgn^ent. 

Another of defendant's assignments of error is predicted upon 
the entry of two judgments instead of one. The entry of a judg- 
ment based upon the verdict, and embracing the costs and 
disbursements in the District Court, was clearly regular — no stay 
having been granted — after the remittitur had been transmitted, 



GOULD V. DULUTH AND DAKOTA ELEV. CO. IO3 

showing that the order vacating the verdict, and 'for a new trial, 
had been reversed by this court. After such refusal, it certainly 
was regular practice to apply for an order directing the entry of 
a judgment in conformity to the verdict; and in this case the 
judgment, as entered by the clerk upon the verdict, recited upon 
its face that the order of the District Court yacating the verdict, and 
granting a new trial, had been reversed. Under the circumstances 
we can discover no irregularity or error in applying for an order, 
and having the judgment entered upon the verdict. 

Was it error to enter a separate judgment for the costs incurred 
in the Supreme Court on the former appeal? We think not. The 
decision and mandate of this court awarded such costs, in terms, 
to the plaintiff. Nor do any of defendant's assignments of error 
challenge the right of plaintiff to have judgment entered in the 
District Court for his costs and disbursements incurred on the 
.appeal. Defendant's assignment of error upon this feature goes only 
to the fact that two judgments were entered, instead of one. Our 
own meager statutes upon the subject matter of costs and dis- 
bursements incurred in this court afford us little in the solution 
of the point raised. * Nor do the precedents in other jurisdictions 
— which for the most part are based upon local statutes — afford 
us much hdlp. There are numerous precedents in other states 
for the entry of separate judgments for the costs and disburse- 
ments incurred in a court of review. It might happen, indeed, 
that a party who had prevailed in a court of review upon an 
appeal based upon some interlocutory order as was the case here, 
may be defeated, and judgment go against him at the end. In 
such case we do not see how the party who was awarded his costs 
on the appeal could ever recover them, if he was not allowed to 
enter a separate judgment for such costs. True, some courts 
have awarded the costs incurred on appeal to the successful 
party, conditionally, i, e, upon the condition of ultimate success 
on the merits. In such case the right to enter judgment for costs 
could not be determined in advance of final judgment; but with- 
out deciding whether, under our statute, this court possesses the 



104 NORTH DAKOTA REPORTS. 

power to direct that costs shall abide the final event of the suit, 
we will only say that in this case the costs on the former appeal 
werb awarded to plaintiff absolutely. There is no question 
before us, upon this record, -touching either the several items 
which go to make the totals of the costs or disbursements in 
either of the judgments, nor is there any point made that the 
aggregates are excessive. No hardship or injustice appearing in 
this respect, we see no considerations, either pi law or justice, 
which require us to set aside the judgment for costs. Counsel for 
defendant cite § 5197, Comp. Laws, requiring notice of the adjust- 
' ment of costs before the clerk to be given, and make the point 
that no notice was given, and hence that the judgments are vul- 
nerable for that reason. The answer to this point is that it does 
not appear by the record that defendant has not received notice 
of the adjustment of the costs before the Clerk of the District 
Court. If such is the fact, it should be made to appear affirma- 
tively, for the reason that courts of review will assume in support 
of a judgment, until the contrary is shown, that the same was 
regularly rendered and entered. Gaar, Scott & Co. v. Spalding, 
2 N. D. 415, 51 N. W. Rep. 867. No such point appears to have 
been made before the District Court, nor is error assigned in this 
court, predicated upon any alleged failure to give notice of taxa- 
tion of costs before the clerk. Under these circumstances, we 
cannot rule upon the point. 

A single question remains for determination. The authority of 
the Judge of the Fifth Judicial District to order the entry of the 
judgments in question is broadly challenged. Counsel for defen- 
dant say in their brief: "It is not the physical fact of signing the 
order outside the Third Judicial District which the defendant 
contends is error, but the assumption of jurisdiction of the cause, 
and the rendering of judgment, outside of the proper district." We 
think the act of signing an ex parte order for judgment, if done 
within the state, but outside of the district where the action is 
pending, and the signing is done by the Judge of the District 
Court in which the action is pending, is not an irregularity in 



GOULD V, DULUTH AND DAKOTA ELEV. CO. IO5 

practice, although such signing is not as likely to occur as it was 
during the territorial regime, when the judges were often called 
outside of their district to sit in banc as a Supreme Court. Such 
an order, when va^idQ ex parte by a judge would, under the termin- 
ology used in the earliar statutes, be denominated a "chambers 
order," and the act oi 1887, § 4828, Comp. Laws expressly allows 
such, orders to be made at any place within the territory, in any 
matter properly before him." See, also § 5324, Id. We think 
those provisions of the statute are not repugnant to any provisipn 
of the state constitution, and therefor are now in force. Under 
the terms of the statute the Judge of the Third Judicial District, 
where the action was pending, would have been authorized to 
direct the entry of judgment at any place within the state. 
Whether the Judge of the Fifth District, who actually made the 
order, had authority to make the same, depends upon whether 
such judge, when he signed the order, was lawfully empowered to 
discharge the official duties of the Judge of the Third District. 
We think the Judge of the Fifth District was legally empowered 
to make the order. The state legislature has, in terms, given 
authority to the District Judges, under the circumstances stated 
in the statute, i. e, where a District Judge is unable to act "for any 
reason," or is technically "disqualified," to request another of the 
District Judges either to hold a term of court, or to hear a motion 
or try a case or cases for the judge so unable to act, or so dis- 
qualified. The judge requested to act, when so called in, becomes 
empowered, under the statute, to "do and perform all such acts as 
might have been done and performed by the Judge of said 
District." Laws 1890, p. 176. The wording of this statute is so 
unfortunate that the meaning of some of its features is rendered 
obscure and dubious, but the general purposes of the act cannot 
be mistaken. The statute is stricily remedial in character, and 
should therefore receive a liberal interpretation, with a view of 
accomplishing the main purpose of the enactment, which clearly 
was to give a }udge who was either technically disqualified or 
unable to act, "for any reason," to call in an outside judge, either 



I06 NORTH DAKOTA REPORTS. 

to preside at a term of court, or to hear and determine any motion, 
case or cases. 

Thus construing the statute, we are next to inquire, whether as a 
matter of fact, the Judge of the Fifth District was requested to act 
in this matter for the Judge of the Third District. This question of 
fact, as already shpwn, is settled clearly upon the face of the judg- 
ment itself; but in the absence of such evidence, or of any written 
evidence of the request, we should assume, the contrary not being 
made to appear, that any Judge of a District Court who had 
signed an order in a case not pending in his own district had, 
under the statute, lawful authority to do so. Irregularities in the 
entry of judgments in courts of record will never be presumed. 
If any exist, they must be brought upon the record, and made to 
appear affirmatively. There is no showing and no pretense in 
this case that the Judge of the Third District did not request the 
Judge of the Fifth District to act. The entire scope of the 
assignment of error upon this feature is that Judge Rose could 
not assume jurisdiction to make the order while outside of his own 
district. This theory, as already shown, is untenable. Our con- 
clusion must be> and is, that the appeal of the plaintiff should be 
dismissed, with costs, and that the order of the trial court, deny- 
ing defendant's motion to vacate the judgment, should*be in all 
things affirmed. Such will be the order. Judgment below will 
be entered accordingly. All concur. 
(54 N. W. Rep. 316.) 



r 



POWER V. BOWDLE. IO7 

James B. Power vs. A. M. Bowdle. 

Opinion filed January 19th, 1893. 

Action to Determine Adverse Claims — Counterclaim. 

In an action under § 5449, Comp. Laws, to determine adverse * 'estates and 
interests" in real estate, the defendant may by answer, in addition to a denial 
of plaintiff's title, allege facts which show title in himself, and ask that such 
title be quieted and confirmed by the court. Such new matter, when properly 
pleaded, constitutes a counterclaim, within the meaning of subdivision I, § 4915) 
Comp. Laws. Such counterclaim constitutes a cause of action in favor of the 
defendant, and against the plaintiff, which is ''connected with the subject of the 
action." 

Reply — When Deemed Waived. 

To such counterclaim, if not demurred to, the plaintiff must respond by a 
reply, and, if none is served, the defendant may move for judgment. Comp. 
Laws, § g 4918, 4919. But where both parties at the trial treat the new 
matter as traversed and at issue, and evidence upon the same is put in without 
objection, and the court, without objection, proceeds to litigate and determine 
the subject matter of the counterclaim, it will be too late, after judgment, to 
to raise the point that no reply was served. In such case the reply is waived 
by conduct. 

Estates and Interest— Not Synonymous ^with Liens. 

In said statuory action, "estates and interests" in lands are not synonymous in 
meaning with "liens." Mere "liens" are not primarily within the purview of 
the statute; but where a defendant sets out new matter as a counterclaim, which 
embraces a "lien" upon tlie land, and asks the court to pass upon the same, 
and such new matter is heard upon the merits, and is determined by the court, 
without objection, it will be too late, after judgment, for the defendant to raise 
the technical objection that "liens" cannot be litigated in such an action. 

Assessment Roll — Sufficiency of Description. 

The statute requires parcels of land listed in an assessment roll, which con- 
consists of parts of sections, to be particularly described. Sections 1544, 1582, 
Comp. Laws. Accordingly, held^ that tracts of land in an assessment roll, 

consisting of parts of sections, described as follows, viz: Name of owner, ; 

section ; town ; range , — ^followed by a statement of the 

number of acres, is insufficient, because the part of the section is not particularly 
described. . The fact that such description may not mislead the owner is not 
alone enough to validate it. 

Insufficient Descriptions. 

Following the rule laid down in Powers v. Laradee, 49 N. W. Rep. 726, 2 
N. D. 141, and Keith v. Hay den, 2 N. W. Rep. 495, 26 Minn. 212, Ae/tf, that 
the combination of letters and figures given below, and all others of similar 



I08 NORTH DAKOTA REPORTS. 

character, in the ussessment rolls in question, are insufiBcient and invalid as 
descriptions of parts of sections of land, viz: NW4; NW4 of NE4; NE SW; 
Ws SW. Such symbol writing is not English as it is ordinarily used, and is 
without the sanction of any general usage among the masses of the people. 
Hence the symbol writing descriptions cannot be upheld as a basis of taxation, 
or as a me'ans of building up and perpetuating title to real estate under the 
revenue laws. 

Judicial Notice of Custom — Usag^e of Language. 

Courts and judges rest under an official obligation to notice and recognize, 
without proof, such facts and matters as are so notorious as to be generally 
known. Among other things, courts must judicially notice the vernacular 
language, and such abbreviations and symbols of ideas as have, from immemor- 
ial use, been adopted by the people generally, and thereby have become a part 
of the common usage of the language. When this occurs, i. e. when a given 
usage of language ceases to be a mere special usage, limited in its sphere, and 
emerges into general use among the masses of the people, the state, either by 
its courts or its legislature, will adopt and legalize such usage, and thereby add 
the same to the body of the common or of the statute law, as the case may be. 
Thereafter the existence of such general usage of language is not to be left to 
the hazards of nisi prius trials, to be proved or disproved, as testimouy may 
preponderate one way or the other. Its existence is evidenced by the statute or 
by judicial precedents, as the case may be. 

Amendment of Answer— New Matter. 

The trial court, against objection, - allowed defendant to serve an amended 
answer, embracing among others, the following averments: **That said 
abbreviations and combinations of letters and figures were in general 'use in 
Barnes County, North Dakota, and throughout the State of North Dakota, and 
throughout those parts of the United States where the government system of 
survey is used for the descriptions of parts of sections of lands, and were gener- 
ally understood by the people and taxpayers of said Barnes County and the 
State of North Dakota, and in those portions of the United States where the 
government system of survey is used." Held^ that the ruling was prejudicial 
error. 

Assessor Responsible for Sufficient Description. 

In valuing land for taxation, the assessor may refer to descriptions or lists of 
land furnished either by the county commissioners under § 1544, Comp. Laws, 
or by individuals under § I554« Id., but the assessor is officially responsible fdkr 
the legal sufficiency of the description of all parcels of real estate returned by 
him. Upon that official alone devolves the entire responsibility of making out 
and delivering the roll containing a list of taxable lands. Accordingly, hetd^ 
where a parcel of land is attempted to be described in the assessor's return, but 
such description is inherently and fatally defective, the same cannot be rendered 
valid and sufficient by showing that it corresponds to a description furnished 
the assessor by the owner, or by any one else. The public and bidders at tax sales 
as well as owners, are interested in the descriptions of real estate in tax records 
'and tax titles. Such descriptions, to be sufficient, must point out parcels of 
land clearly and distinctly by the use of terms commonly understood. 



POWER V, BOWDLE. IO9 

Cross appeals from District Court, Barnes County; Rose, J. 

Action by James B. Power against A. M. Bowdle, to quiet title, 
under Comp. Laws, § 5449. From a judgment for defendant, 
both parties appeal. 

Reversed. 

/, E, Robinson and C A, Pollock, for appellant. 

When a custom has become so established as to become a part 
of the law, the court will act upon it, without requiring it to be 
proved. Consegna v. Millings, I Peters N. S. C. C. 225. Courts 
will take judicial notice of whatever is* generally known or gener- 
ally ascertainable within their jurisdictions. Brown v. Piper, 91 
U. S. 37. But parole evidence is not admissable to prove as a 
custom a. local usage changing the significance of the language. 
Powers V. Larabee, 49 N. W. Rep. 726, S. C. 2 N. D. 141. 

Where land is sold for taxes it is essential that every fact 
necessary to give jurisdiction should appear on the face of the 
record. Thatcher v. Powe, 6 Wheat., 1 19; McClung v. Ross, 5 Wheat., 
1 16. Every essential proceeding in the course o£ a levy of taxes, 
must appear of record in written and permanent form in the records 
of the bodies authorized to act upon them. Cooley on Taxation, 
247, Desty on Taxation, 1087. 

Newman & Resser, for respondent. 

Defendant pleads title under his tax deed by way of counter- 
claim. He seeks to defeat plaintiff *s title by an equitable cross 
action. His counterclaim is proper and well pleaded. Pomeroy's 
Remedies, § 746; Jarvis v. Peck, 19 Wis. 84. 

The fact that the statute makes tax deeds pri?na facie evidence 
of the regularity of all proceedings and conclusive evidence of 
the facts recited does not relieve defendant from pleading such 
proceedings and facts. The statute furnishes a rule of evidence 
and not of pleadirtg. Russell v. Mann, 22 Cal. 132; Himmelman 
V. Danos, 35 Cal. 441. Parole evidence is admissable for the 
purpose of applying the description to the land and identifying 
the land which is described, i Greenl. Ev. 286 and 301, n.; Stewart 



no NORTH DAKOTA REPORTS. 

V. Carter, i8 N. W. Rep. 98; Ames v. Lawry, 15 N. W. Rep. 247; 
Jtidd V. Anderson, i N. W. Rep. 677; Knote v. Caldwell, 23 Pac. 
Rep. 625; Welty on Assessments 170. Descriptions furnished by 
the United States surveys of the public lands may be used in mak- 
ing assessments. Welty on Assessments 173; Jenkins v. McTigue, 
22 Fed. Rep. 148; McQuade v. Jaffrey, 50 N. W. Rep. 234; Taylor 
V. Wright, 13 N. E. Rep. 529; Hodgson v. Burleigh, 4 Fed. Rep. 
Ill; Gilfillan v. Hobart, 24 N. W. Rep. 342; Judd v. Anderson, i 
N. W. Rep. 678; Atkinson v. Hinman, 7 111. 437. A description by 
which a competent svrveyor can identify the land is sufficient. 
Law V. Peo,, 80 111. 268; Fowler v. Peo., 93 111. 116, Peo, v. Stahl, 
lOi 111. 346. 

Wallin, J. Plaintiff was the owner of lands described in the 
complaint, and situated in Barnes County. Said lands were sold 
at tax sale in the years 1887, 1888, and 1889 for the alleged taxes 
of 1886, 1887, and 1888. Defendant was the purchaser of the 
lands at each and all of said sales, and tax certificates evi- 
dencing the sales, respectively, were delivered to him in due 
form. No redemption from either of the sales was ever made. 
The time for redemption from the first sale ( 1887) having expired, 
the county treasurer of said county made out in due form, and 
delivered to defendant, tax deeds of said lands, based on said tax 
sale of 1887. This action is brought to quiet title under § 5449, 
Comp. Laws. Defendant by his amended answer denies plaintiff's 
ownership of the land, and by way of counterclaim alleges title in 
himself by virtue of said tax deeds, and also sets up the sales to 
him of said lands for the taxes of 1887 and 1888, as already stated. 
Defendant demanded as his relief that the title of the lands be 
quieted and cpnfirmed in himself, and further demanded that, in the 
event of the sale being declard void, plaintiff be required to pay 
all of said taxes with interest, as a condition of plaintiff's relief. 

In view of the conclusion at which we have arrived, it will be 
unnecessary to consider all of the many points arising upon the 
record. We will, however, consider certain points of practice 
which are incidentally involved, and which effect the judgment 



POWER V, BOWDLE. Ill 

that must be entered below. No reply to the answer was served, 
nor did defendant move for judgment as for want of a reply. The 
trial wai manifestly conducted upon the theory that all the alle- 
gations of the answer which were pleaded as a counterclaim were 
at issue. Testimony was offered, without objection; to prove and 
disprove the averments of the answer, and the court, without 
objection or protest, made its findings of facts and conclusions of 
law upon the subject-matter of the counterclaim. In this court 
the claim is made by defendant's counsel that, inasmuch as plain- 
tiff did not reply to the counterclaim, he admitted all the facts 
stated therein; citing § § 4919, 4933» Comp. Laws. Counsel say: 
"The question to be determined on the appeal then is, do the 
facts stated in the defendant's counterclaim entitle him to the 
relief demanded?" We think the new matter pleaded in the 
answer constitutes a counterclaim, within the meaning of subdi- 
vision I, § 4915, Comp. Laws. The new matter constitutes a 
cause of action in defendant's favor and against the plaintiff, and 
such new matter is "connected with the subject of the action." 
Bliss, Code PI. § iJ/[\Jarvis v. Peck, 19 Wis. 74; Eastman v. Linn, 
20 Minn. 433, Gil. 387, and cases cited. A reply was requisite 
under the statute, but a reply may be waived, and we are of the 
opinion defendant waived a reply by proceeding at the trial to 
treat the new matter in the answer as being traversed and at issue 
without a reply. Bliss, Code PI. § 397; Netcott v. Porter, 19 Kan. 
i^i', Matthews v. Torinus, 22 Minn. 132. 

Another point raised in this court, but which does not appear 
to have been suggested below, is this: Counsel for defendant 
claim that "all considerations as to the 1887 and 1888 taxes are elim- 
inated." The position taken is that, the action being brought 
under § 5449, Comp. Laws, the court can determine only adverse 
"estates and interests" and that a mere "lien," such as is evidenced 
by the tax certificates, cannot be litigated. Defendant cites 
Bidwell V. Webb, 10 Minn. 59, Gil. 41, which sustains the point, 
and holds under a statute which, when the case was decided, was 
similiar to ours, that "liens cannot be determined in such an 



112 NORTH DAKOTA REPORTS. 

action." But in later cases it has been held in Minnesota that 
where a defendant elects to have his own case determined in such 
action, and sets out the facts of his case and asks judgment 
upon such facts, ai^d the court without objection, pronounces 
judgment thereon upon the merits, it will then be too late for 
the defendant to raise any technical objection based upon the 
form of the action. Hooper v. Henry, 31 Minn. 264, 17 N. W. 
Rep. -476; Mitchell v. McFarland, 47 Minn. 535, 50 N. W. Rep. 
610. The reasoning of these later cases is, in our judgment, 
unassailable, and we therefore rule that all questions arising out 
of the tax sales and certificates of 1888 and 1889 were properly 
before the trial court, and are therefor before this court for 
review. 

After a trial before the court, numerous findings of law and fact 
were filed. It was admitted at the trial, and the court found, 
that the assessment roll of Barnes County, as returned in each of 
the years, was in the "words, letters, figures, and form" as follows: 



POWER V. BOVVDLE. 



113 



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114 NORTH DAKOTA REPORTS. 

Against the objection of plaintiff's counsel, who excepted to 
the ruling and assigns error upon it in this court, the defendant 
served an amended answer, which, among other allegations, con- 
tained the following: "That sa.id abbreviations and combination 
of letters and figures were in general use in Barnes County, North 
Dakota, and throughout the State of North Dakota, and through- 
out those parts of the United States where the government 
system of survey is used, for the description of parts of sections 
of land, and were generally understood by the people and tax- 
payers of said Barnes County, and the State of North Dakota, 
and in those portions of the United States where the government 
system of survey of lands is used, and where, when applied to 
descriptions' of lands, abbreviations of said descriptions of halves 
and quarters of sections and smaller subdivisions. That the said 
figure two placed at the right, and opposite the upper portion 
of the proper letter indication, east, west, north, or south, is gen- 
erally used and generally understood throughout the State of 
North Dakota, and throughout those portions of the United 
States in which said government system of survey is used, as 
meaning *Qne half when applied to descriptions of land; and the 
said figure four placed at the right, and opposite the upper right- 
hand portions of the abbreviations N. E., S. E., S. W., or N. W., when 
applied to descriptions of land, is generally used and understood 
throughout the State of North Dakota-, and those portions of the 
United States where the said government system of survey is 
used, as meaning *one-quarter,' and the said figure "two" and the 
said figure "four" are so as aforesaid used and understood in place 
of the fractions one-half and one-fourth. That said abbreviations 
and combinations of letters and figures lare uniformly used by this 
plaintiff in describing parts of sections of land, and were at the 
time of said assessment well understood by him. That said 
abbreviations and combinations of letters and figures are in 
general use in the general land offices of the United States, and 
in the land office in the district in which said Barnes County is 
situated, and in the offices of the various auditors, treasurers, and 



POWER V. BOWDLE. IIS 

registers of deeds throughout the State of North Dakota, and have 
been so used since the organization of said local land offices and 
since the organization of said county, and have been so used by the 
occupants of said lands in correspondence with reference to the 
same, and are more frequently used than any other abbreviations 
or combinations of letters and figures to indicate parts of sections 
of land." 

The case was tried by the court, and at the trial defendant's 
witnesses upon the question of usage were not cross-examined, 
and plaintiff offered no rebutting evidence on that branch of the 
case. The court found for the defendant upon the question of 
usage, and made its findings of facts substantially in the language 
of the amended answer, as above set out. Plaintiff excepted to 
such findings as follows: The evidence does not show a uniform 
usage; it only tends to show that such characters are known and 
used for private convenience by a class of experts. The evidence 
upon the question of usage is in the record. The trial court held 
that said descriptions of the several tracts of land were sufficient, 
and that the taxes based thereon were regular and valid taxes; 
but also found that certain irregularities occurred as to the sales 
which rendered the sales illegal, and adjudged that all of the sales 
were illegal, and that the tax deeds and certificates fell with the 
sales upon which they were made. Judgment was entered accord- 
ingly. Both parties appeal from the judgment. 

The pivotal question presented is this: Was it proper and 
allowable, under established principles of law, for the defendant 
to allege and attempt to show, by testimony offered in the trial 
court, that the symbol writing as used in the assessment rolls was 
and is "generally understood by the people and taxpayers of said 
Barnes County and the State of North Dakota, and in those por- 
tions of the United States where the government system of survey 
of land is used." We remark, first, that in a case recently decided 
{Powers v. Larabee, 2 N. D. 141, 49 N. W. Rep. 726) this court, 
after a very careful consideration, held that descriptions essen- 
tially the same as those appearing here were insufficient. In that 



Il6 NORTH DAKOTA REPORTS. 

case we said: "We hold that the alleged description is wholly 
insufficient as a description of the lands in question, or of any 
lands, and that it cannot be sustained as a means of indentifying 
the lands for purposes of assessment for taxation, or for the 
ulterior purpose of transferring the title of the reality from the 
general owner to the tax-title holder and his successors in interest. 
The alleged description is neither written out in words, nor is the 
same expressed by charters or abbreviations commonly used by 
conveyancers, or generally understood and used by the people at 
large, in describing land. The description of realty placed in the 
assessment roll is the means of identifying or describing the land 
for all the subsequent steps in the process of taxation and sale, if 
a sale is made. The official who makes the tax list and duplicate 
and the official who collects the tax, or sells and conveys the 
land, or certifies to its redemption from sale, are governed by the 
original description in the roll, and are not authorized by law to 
change the same;" citing Keitk v. Hayden, 26 -Minn. 212, 2 N. W. 
Rep. 495. There has no case been cited, and we know of none, 
which directly passes upon the sufficiency of the particular 
descriptions in question aside from those we have mentioned. No 
authority can be shown, we think, which sustains such descriptions, 
and it is significant (in view of the claim made by defendant's 
counsel that such descriptions are in general and common use, 
not only in this state but in all states where the government 
system of land surveys exists) that the validity of such descrip- 
tions has never been drawn into review in the courts of last resort 
except in the two cases cited, and then only to be condemned as 
unauthorized by general usage. In the cases cited, no evidence 
was introduced tending to prove or disprove the existence of the 
alleged general usage in question, and yet both courts declared 
and held, distinctly and emphatically, that no such general usage 
did exist. In Keith v. Hayden, the court says: "There is no 
general usage of this kind; neither is this the import of the letters 
and figures employed, according to the common and ordinary 
usage of the English language, as the same is spoken or written 



POWER V. BOWDLE. II7 

in this state, or in general, nor as it is used in the judgments of 
courts." In Powers v. Larabee this colirt used the following lan- 
guage: "The description is not expressed in common language; 
nor are the characters and abbreviations employed such as are 
used by conveyancers in describing real estate; nor do the people 
generally use such a combination of words, letters, and figures in 
referring to or describing land." It is elementary that courts will 
take judicial notice of the vernacular language of the people and 
of its mutations, and hence, will take notice whether given words, 
letters, and figures which are brought to the notice of the court 
are or are not couched in the ordinary language in use by the 
court and people. In the cases cited the holding was in effect 
that the arbitrary combinations of letters and figures, as used in 
the respective assessment rolls, is not the language of the court 
or country, i, e. is not the English language as commonly used. 
An inspection of the symbol writing will at once show the correct- 
ness of this view. The figure 2, according to its established 
meaning, represents two units or whole numbers, and the figure 4 
represents four units or whole numbers. As employed in the 
assessment rolls, 2 is made to signify one-half of one whole 
number, and 4 one-fourth of a whole number. Thus it appears 
that the symbols in question consist of a combination of letters 
and figures whereby such letters and figures are perverted from 
their established signification and use among the people, and 
made to signify something radically different when used to 
describe land. It is a matter of which this court will take notice, 
because a matter of common knowledge, that the government 
system of surveying land has been quite generally adopted in the 
western states, and that the system prevails in the States of North 
Dakota and Minnesota; and yet, as has been shown, the courts of 
last resort in the two states mentioned have taken judicial cogni- 
zance of the fact, and so held that the symbol writing in question, 
as a mode of describing land, has not the sanction of general 
usage in either of the said states. In view of these adjudications 
— that of Powers v. Larabeey being very recent, and made after 



w^ 



Il8 NORTH DAKOTA REPORTS. 

mature deliberation — ^we think it would be unwise to hold that 
evidence is admissable to prove only such facts as the court would 
be bound to judicially note without proof, if such facts really 
exist. If it be true that the symbol writing is, as alleged by the 
answer, used in describing land, and "generally understood" by 
the taxpayers and the people of North Dakota and throughout 
the western states, the judges and courts of such states are bound 
to judicially note the existence of such usage. To borrow" the 
words of Chief Justice Caton, "courts \yill not pretend to be more 
ignorant than the rest of mankind." If evidence became necessary 
in this case to prove that the usage in question was generally 
understood and in common use by th6 taxpayers and people of 
this state and of the western 'states generally, then, and for the 
same reason, evidence would be needed to certify the same facts to 
any other trial court in the state in which the question might arise. 
Vaiiada v. Hopkuis, (Ky.) 19 Amer. Dec. 92; Bailey v. Publishing 
Co.t 40 Mich. 251; 12 Am. & Eng. Enc. Law, p. 197, note i. 

The judges of the Supreme Courts of Minnesota and North 
Dakota alike rest under an official obligat^ion to notice without 
proof such usages and customs as have become general among all 
classes of people in these states ; yet in both states the courts have 
held squarely that the symbol writing, such as is found in the tax 
rolls in this case, has not the sanction of general usage in such 
states, respectively. When a usage becomes general, the courts 
will notice the same. Bish. Cont. § 445. It is true that many 
usages are not judcially noticed in the courts. Such usages are 
often shown to exist by testimony. "The leading distinctions 
between customs, considered as usage, and law, is that the former 
is restricted to a particular locality or class of persons, or business, 
while the latter is universal throughout the state." Section 446, 
Id. When a usage is special, /, e. limited to a particular locality 
or business or class of persons, the judges are not always sup- 
posed to be aware of its existence, and hence proof is sometimes 
resorted to, when the fact is disputed, to establish or disprove the 
existence of the usage. Section 450, Id. When it is shown that 



POWER V. BOWDLE. 1 19 

a particular usage existed and was known to the parties to the 
contract, such usage may, and often does, modify the contract. 
Sections 449, 456, Id. Blackstone makes the same distinction, 
and defines the two classes of customs as follows: "General 
customs, which are the universal rule of the whole kingdom, and 
form the common law in its strict and more usual signification; 
particular customs, which for the most part affect only the inhabi- 
tants of particular districts." I Bl. Comm. 67. The books are 
replete with decisions illustrating and applying the general 
doctrine that special customs and the usages of trade may be 
shown by testimony produced in court for the purpose of modify- 
ing contracts. Barnard \. Kellogg, 10 Wall. 383; Walls v. Bailey^ 
49 N. Y. 464; Collender v. -Dimmore, 55 N. Y. 200. But, as we 
have seen, such customs as have ceased to be special 1. e. local as 
to territory or limited as to classes, and have become generally 
known, used and understood by the people and taxpayers of the 
whole state, and of many other states, no longer need to be 
proved, because all courts and judges are bound to know such 
matters of fact and such usages and customs as are so notorious 
as to be commonly known. This general proposition is elemen- 
tary. Stev. Dig. Ev. 124, and notes. The matters judicially 
noticed are very numerous, and need not be enumerated here. It 
will suffice to say that all authorities agree that the vernacular 
language, and such ordinary abbreviations as are in common use, 
are noticed without proof. Reyn. Ev. 68. To prove facts com- 
monly known is regarded by the courts as a waste of time, and 
for that reason is not permitted. Id. p. -66. While authority 
abounds showing that special customs may be established by tes- 
timony, we have searched laboriously, but in vain, for a precedent 
which authorizes the introduction of evidence to establish the 
existence of a custom of language which is alleged to be generally 
known and understood by the taxpayers and people throughout 
an entire state or nation. It is in our view, obviously unsound to 
argue that the courts or judges of a state or nation may be con- 
sidered as unaware of the existence of a custom of language which 



120 NORTH DAKOTA REPORTS. 

is claimed to be so notorious that it is known and used generally 
by the taxpayers and people throughout the entire state or nation. 
At all events it is fundamental in the law that courts are bound to 
know such notorious facts, matters and usages of language as are 
generally known to other people. We are not regardless of the 
fact that the English language has reached its present state by 
processes of growth and development, and that new words, 
phrases, and abbreviations are from time to time ingrafted upon 
the body of the language. The process of growth and accretion 
will continue, and it is possible, though we do not expect the 
event, that the shorthand or symbol writing in question will cease 
to be what we now consider it, viz: a special clerical usage 
limited in its use, for the most partr, to certain officials (United 
States land office officials and certain county officials) and their 
clerks and deputies, and emerge into common use. Should this 
transpire, courts and judges, under their oaths of office, will take 
Judicial cognizance of the event, and will then uphold the validity 
of the symbol writing in assessment rolls as a ba'^is of taxation, 
and of building up and transferring title to real estate. Should 
the symbol writing become general as a means of describing 
land, there would then be no more occasion to offer proof of the 
usage than there now is to establish any other common usage of 
the vernacular language. In the event supposed, the symbol 
writing, as a means of describing realty, would be quite as familiar 
to all who speak and write the language, including all well 
informed women and advanced pupils in the public schools, as 
the older methods are now familiar to them, i. e, descriptions by 
the use of English words or common fractions. 

It is manifestly true that if the symbol writing can be estab- 
lished as a common custom, by a finding of fact based upon 
testimony, it must follow that its nonexistence as a common 
custom can be certified in the same manner. To illustrate our 
meaning, let us suppose that, instead of standing upon his objec- 
tion to filing the amended answer, plaintiff's counsel has seen fit to 
appear and cross-examine defendant's witnesses, and then had 



POWKp V, BOWDLE. 121 

ofifered rebutting testimony sufficiently strong to have overcome 
defendant's testimony, as we think would not have been at all 
difficult to do. Then in the hypothetical case the finding of the 
trial court as to the usage must have been the exact opposite of 
that which is before us. But shall so important a matter as the 
existence or nonexistence of a general usage of language or 
symbol writing in describing land turn upon the varying financial 
abilities of suitors, or the uncertain vigilance and skill of counsel 
in arraying testimony, where the jraount of testimony, from the 
nature of the case, is practically inexhaustable? There is, we 
think, practically no limit to the number of witnesses /n? and con 
who will honestly testify to the result of their personal experiences 
and observations as to the prevalance and extent of the custom. In 
one case the affirmative. side will preponderate, and in the other 
the negative. But to place the public revenues and titles to land 
upon such a shifting basis would be to rest them upon a foundation 
of quicksand. This argument has been anticipated, and to meet 
it counsel cite 2 Greenl. Ev. 249. We quote from the author a 
paragraph which counsel have italicized in their brief: "And after 
having been frequently proved in the course of successive legal 
investigations, * ♦ * will take notice of it without further proof." 
According to this, the courts are not to take cognizance of a 
usage until it has been "frequently proved." When not proved 
at all, or when disproved, the holdings would, according to this, 
be different. But the learned commentator is here confining his 
observations to a particular class of special customs, i, e, "usages 
of trade." It would have been nearer the mark, we think, from 
the standpoint of defendant's counsel, to have cited the previous 
section, — 248. There the author is treating of a still wider class 
of "special customs," viz: "local customs," — "established by com- 
mon consent and uniform practice from time immemorial." But 
in both sections of the treatise the learned commentator is con- 
fining his remarks to "special customs." As has been shown, 
such customs and usages are very frequently proven in court as a 
means of interpreting contracts, and sometimes to annex terms 



122 NORTH DAKOTA REPORTS. 

to contracts. But reference to the averments of the amended 
answer shows that the idea of a special custom is distinctly 
negatived by the answer; nor would counsel contend that a mere 
special custom should receive judicial sanction as a means of 
building up^title to land. A description in the tax roll, adjudged 
to be valid, in one county or locality in the state, must be held 
good in all parts of the state; otherwise, chaos in tax proceedings 
and in land titles would supervene. 

The considerations already advanced have satisfied a majority 
of this court that the averments as to a general usage of language 
pleaded in the amended answer present a state of things which 
ought not to be left to the chances of tdsi prius trials, and be 
permitted to be proved or disproved, as it might turn out. Hence 
we shall sustain plaintiff's assignment of error predicated upon 
the order of allowing the amended answer to be served and filed. 
The chief justice, (Judge Bartholomew,) while fully agreeing with 
the majority, of the court in holding that the descriptions in 
question are without the sanctions of any general custom or law, 
and hence are insufficient as a basis of taxation, prefers to rest 
his concurrence on this branch of the case upon a somewhat 
different line of reasoning. I quote his language: *-A descrip- 
tion of realty in an assessment roll, to be sufficient, must be such 
a one as the law recognizes. It is not enough that it be 
such as may be, in fact, understood, or often or generally used. 
It must be such as must be understood in the sense that 
the law will not listen to the declaration that it is not 
understood. A defective or ambiguous description in a deed 
or contract may be cured by ascertaining the intention of the 
parties to the instrument, and giving effect to such intention. But 
this cannot apply to an assessment. Tax proceedings are in 
invitum^ and there are no contracting parties. Primarily, the 
description must be such that it must be understood by, and will 
not. mislead, the owner. It must also go further, and be such as 
must be understood by all persons desiring to purchase at tax 
sale. Theoretically this includes all persons capable of contracting. 



POWER V, BOWDLE. 123 

A description that must be thus generally understood should 
have a more certain basis than a mere fact, because ignorance of 
fact can always be used as an excuse or defense. It . must be 
based upon the law, and this may be upon an express statute 
authorizing the description, or it may be upon common law, or, 
what is the same thing, custom. Sir William Blackstone said, in 
substance, that was the pride of the English common law that it 
was but the customs of the people, adopted by themselves, and rest- 
ing upon immemorial usage, i Bl. Comm. 73, 74. There is a 
clear distinction between usage, however general, and custom. 
Usage is local practice, and must be proved. Custom is general 
practice, judicially noticed without proof. Usage is the fact. 
Custom is the law. There may be usage without custojn, but 
there can be no custom without usage to accompany or precede 
it. Usage consists of a repetition of acts. Custom arises out of 
this repetition. Usage is the evidence of custom. Usage is 
inductive, based on consent of persons in' a locality. Custom is 
deductive, making established local usage a law. Whart. Ev. § 965 ; 
And. Diet. Law, 'Custom' and *Usage.' From these definitions it 
would seem to follow that there may exist a usage that would 
affect or control a contract, and yet not reach the dignity of a 
custom or law; and it has been so ruled. Carter v. Coal Co,, JJ 
Pa. St. 290; Momingstar v. Cunningham, 1 10 Ind. 333, u N. E. 
Rep. 593. These distinctions between usage and custom have 
not always been observed. The words are often used interchange- 
ably, and not a little confusion has followed this inadvertance. 
But if we give proper prominence' to the thought that one is fact, 
and the other law, the intricate question in this case, arising upon 
an attempt to plead and prove usage, is, to my mind, resolved 
without difficulty. Law, speaking without reference to the 
exceptions, is not a subject of proof. In no branch of the law is 
certainty and uniformity more imperatively demanded than in 
that branch that deals with the transfer of title to real property. 
A description which is not good in every portion of the state can 
be good in no portion. From the very definition of usage it is 



124 NORTH DAKOTA REPORTS. 

not within its province to fix this uniformity. That can only be 
done by law. I do not care to go as far as to hold that the nature 
and extent of a usage may not be shown in any case in order 
that the court may deduce therefrom a custom, although this 
would generally be unnecessary, as courts would recognize a 
usage that was so universal, ancient, and certain that it would 
support a custom without evidence. But from the nature of our 
circumstances, no usage can exist in this state that would support 
the custom that must obtain before descriptions such as were 
used in this case can be upheld. Vast portions of our area yet 
belong' to the general government. Some of it is yet unsurveyed; 
some counties but recently organized; others yet unorganized. It 
is not possible that in such localities any *usage' as to real-estate 
descriptions, in the proper sense of the word, can have an 
existence. It cannot be that persons who seek to occupy these 
lands are required to take notice of a usage of which they have 
no knowledge in fact, and which never obtained in their locality. 
If once we hold such descriptions good, we establish the custom, 
and make it the law of the state forever afterwards, unless 
annulled by the legislature. This we ought not to do until our 
conditions change. The trial court erred in holding the descrip- 
tion good." 

But counsel claim that the description of the tracts involved 
here is sufficient if the symbol writing be ignored and rejected. 
They say in their brief: "Part of section 25, in township 141, of 
range 59, containing 80 acres, owned by James 6. Power," is suffi- 
cient, because, as they say, it would not mislead the owner. We 
think that whether such a description would mislead the owner 
or not might depend largely upon the number of 8o-acre tracts 
belonging to him in the section; also upon the situation of the 
various tracts which he might own with reference to the quarter 
sections. Whether the 80 acres was or was not in a solid body 
would also be an important factor, wc think. It is, in our judg- 
ment, important to keep in view the fact that others besides 
owners of land have a vital interest in descriptions of lands in 



POWER V. BOWDLE. I25 

tax rolls. Delinquent lands are sold for taxes, and titles are to 
be built up and perpetuated on such sales. When lands are 
offered at tax sales, it is important to the public revenue, as well 
as to purchasers, that some definitely ascertained tract or 
tracts should be put up for sale. There would be little induce- 
ipent to buy if the parcels offered are not pointed out by some 
apt and suitable description fatniliar to the public, which would 
enable a purchaser to identify, not merely a tract, but the parti- 
cular parcel purchased. Bidwell v. Webby lo Minn. 59, (Gil. 41;) 
Black, Tax Titles, § 38^ i Desty, Tax'n, 564. To us the proposi- 
tion that fractions of whole sections need not be designated in a 
tax roll further than by giving the section, town, range, and 
number of acres, in connection with the owner's name, is novel, 
and somewhat starjtling. Our observation and study have led us 
to believe that the practice of describing parts of sections in tax 
rolls, as well as in deeds of conveyance, is universal at the west. 
We are certain that the statute in force when these lands were 
assessed required such descriptions in addition to the other data 
mentioned. Comp. Laws, § 1582; also Id. § 1544. Section 1582 
provides that the assessment roll, among other things, shall con- 
tain a list of lands, "with the number of acres in each tract set 
opposite the same." To set the number of acres down in the roll 
opposite the tract necessitates a description of the tract in con- 
nection with the number of acres. We think this statute is not 
only plain, but is likewise mandatory. It is well settled that a 
description in a tax proceeding — which is a proceeding in invitum 
— that is inherently and fatally defective cannot be helped out 
and validated by extrinsic evidence. It is also true that where 
premises have acquired a name or description by repute, though 
not technically correct, the same will suffice for purposes of taxa- 
tion, and parol evidence is competent to show the name acquired 
by repute coincides with the proper description of such land. 
GUfiUan v. Hobart, 34 Minn. 67, 24 N. W. Rep. 342. This line of 
authority is clearly not in point in the case at bar. There is 
neither allegation in the answer nor claim that the lands of the 



126 NORTH DAKOTA REPORTS. 

plaintiff have acquired any name or designation by repute which 
is peculiar and different from other lands situated within govern- 
ment surveys in the state. On the contrary, the assertion is 
emphasized in the answer that the descriptions of the lands in 
suit are technically accurate, and conform precisely to a usage of 
language which is general in describing lands in this state. See 
extract from amended answer, supra \ also, Knight v. Alexander^ 
38 Minn. 384, 37 N. W. Rep. 796. 

Counsel make the further point that inasmuch as § 1554, Comp. 
Laws, required taxpayers to "list all property subject to taxation." 
and because it does not appear from "annotations on the roll" that 
plaintiff's property was in fact listed by the assessor, that the court 
must concltisively presume that plaintiff not only made a statement 
of his property, as required by § 1547, but the plaintiff furnished 
the assessor a list in which the lands in question were described 
by precisely similar symbols to those now appearing on the roll. 
In support of this point, counsel cite § § 1549, 1550, Gomp. Laws, 
to show that, where the taxpayer fails or refuses to list his property, 
it then becomes the duty of the assessor to "note the fact on the 
roll," and return it to the auditor. Wc did not so read the two 
sections last cited. Said sections we 'think, have reference to 
documents of a different character from the "return" and roll, viz: 
to lists such as the county commissioners are required, under 
§ 1544, to furnish all assessors. We have found a section — one 
not cited — which we think is the only one which requires an 
assessor in a case of failure or refusal to list to note the fact on 
the roll or "return." But this is confined to "personal property," 
and the ommission to include real estate is, \^e think, significant, 
and implies, at least, that no such annotation on the roll is to be 
made as to real estate. Comp. Laws, § 1583. This view is 
strengthened by a requirement of law that the county commiss- 
ioners shall furnish assessors in each year blank forms for listing, 
containing "a list of all the entered lands in his county subject to 
taxation," which list shall contain "lands by township, range and 
section, and any division or part of a section." Where the owner 



POWER V. BOVVDLE. 1 27 

is neither absent or unknown, it becomes the duty of the assessor 
both to "ascertain and value" the property. Section 1548. In 
the total absence of proof we cannot assume in any case that the 
owner was not absent and not unknown, and that the assessor did 
not ascertain and value his property for one or the other reason. 
In this case for a special reason, that theory cannot be indulged. 
The answer expressly avers that said land "was by the assessor 
of said Barnes County duly assessed for taxation at its true 
value." It is true, and the fact has been a source of embarrass- 
ment to this court, that the statutes governing the listing and 
assessing of these lands were conflicting, and far from being clear 
in meaning. Yet one thing stands out with clearness and cer- 
tainty, and that is the fact that the entire responsibility for 
describing property in the "roll" is devolved by statute upon the 
assessor. It is that official Who is requied to make out and deliver 
to the county clerk a "return" or "roll." Comp. Laws, § § 1550, 
1 582. It is with the descriptions of land in the return or roll that 
we are dealing in this case. Such description must govern in all 
subsequent steps in the process of taxation, and in transferring 
the title of land sold for taxes and not redeemed. It certainly 
would be the duty of the assessor, in making out his roll, to have 
recourse to any lists of property furnished him, either by his 
official superiors, the county commissioners, or by taxpayers 
individually; but as between lists differing as to description the 
arbiter must be the assessor himself, whose official duty it is to 
make out and deliver a roll containing sufficient descriptions. 
We cannot see, in view of all the provisions of the statute, that 
an assessor can avoid full responsibility for all descriptions and 
other data in the roll. Moreover, as has been seen, we are of 
the opinion that a description of realty essentially insufficient 
cannot be upheld as a basis of taxation, or for building up title 
under the revenue laws, even when such description is furnished 
by the owner. The public and purchases at tax sales, and their 
successors, have an interest in descriptions of land as well as 
owners. We think the weight of authority supports our view 



128 - NORTH DAKOTA REPORTS. 

upon this point, but we are aware that some cases hold that, 
where the owner furnishes the exact description involved, he is 
estopped from questioning its sufficiency. 

In conclusion we feel like saying that every member of this 
court has given to this case his very best and most faithful con- 
sideration. We appreciate the importance of the questions 
involved, relating, as they do, to the public revenues, and bearing 
vitally, also, upon the stability of land titles in this state. We 
readily concede that views differing from ours may be and are 
honestly entertained; but we have concluded that stability in a 
rule of property, when once deliberately adjudged, is of prime 
importance, and hence have adhered to the views laid down in 
the previous decisions. Moreover, we believe that comparatively 
a small number of the whole population have any degree of 
familiarity with the symbol writing in question. Those who have 
close relations with the local land offices, and with such of the 
county officers as have copied and adopted the symbol writing 
from the land officers, are indeed strongly impressed with the 
idea that all of the people understand and use this mode of 
describing land. We cannot come to the same conclusion. We 
think symbol writing in tax records has already disappeared, and 
is no longer employed in county offices in this state, and jour 
belief is strong that when the public land has been disposed of, 
and the local land offices have performed their limited and tempo- 
rary functions and have been removed further west, it will be 
found that symbol writing in describing realty will have failed to 
become ingrafted upon the vernacular language. We feel justi- 
fied in this conclusion from our observations and experience in 
the older states of the west. If we are mistaken, the remedy can 
be readily found in the legislative branch of the government, 
where a statute can be passed to govern future assessments. See 
"The Elements of Jurisprudence," by T. E. Holland, p. 54. 

The judgment entered below must be reversed, and a new judg- 
ment entered, quieting title in the plaintiff, and also setting aside 
the taxes on the land in question for the years 1886, 1887, and 



ENGLISH V. GOODMAN. 1 29 

1888, and vacating all tax deeds and certificates described in or 
referred to in the amended answer. Neither party will recover 
costs or disbursements in this court. The District court will enter 
judgment accordingly. 
(54 N. W. Rep. 404.) 



O. M. English vs, J. D. Goodman. 

Opinion filed Dec. 23rd, 1892. 

Trial— Verdict— Amendment by Court. 

In a case where the sole issue is plaintiff's right to recover anything of defen- 
dant, and where the amount due, if anything, is admitted by the pleadings, 
and where the jury returns a general verdict in 7avor of plaintiff, and against 
defendant, without fixing the amount of the recovery, it is not error prejudi- 
cial to the defendant for the court to order judgment for plaintiff for the 
amount admitted by the pleadings. 

Appeal from District Court, Stutsman County; Rose, J. 
Assumpsit by O. M. English against J. D. Goodman and 
another. Plaintiff had judgment, and defendants appeal. 
Affirmed. 

Lewis T, Hamiltoti, for appellants. 
5. L, Glaspell, for respondent. 

Per Curiam. This case originated in justice's court, and was 
brought to recover $50 for work and labor performed under a 
special contract. At the trial in the District Court the jury 
returned a sealed verdict, as follows, omitting title: "We, the 
jury, find for the plaintiff, and against the defendants." Upon 
this verdict the court ordered judgment for plaintiff for S50, and 
costs. Defendants appeal, and insist that under § 5062, Comp. 
Laws, which provides that, where a verdict is found for plaintiff 
in an action for the recovery of money, the jury must also find the 
amount of the recovery; that the court was without authority to 
order any judgment. No doubt the more regular and orderly 
N. D. R.— 9. 



130 NORTH DAKOTA REPORTS. 

method is to have the amount always stated in the verdict r but 
this statute never was intended to render a verdict that failed to 
state the amount a nullity in a case where the sole issue was plain- 
tiff's right to recover anything, and where the amount was 
admitted by the pleadings. In this case, under the pleadings, 
the trial court would have been fully warranted in instructing the 
jury that, in case they found the plaintiff entitled to recover, they 
should fix the amount of his recovery at $50; or the court might, 
upon the return of the verdict, have ordered it amended in that 
respect. Under these circumstances, the court might well treat 
the verdict as amended, and order judgment. Such action in no 
manner prejudiced appellants. To put these parties to 4he 
expense of a new trial for so harmless an irregularity would be a 
reflection either upon legislation or judicial wisdom. For a very 
similar case, see Hodgkiihs v. Mead, 119 N. Y. 166, 23 N. E. Rep. 
559. The judgment of the District Court is affirmed. All concur. 
(54 N. W. Rep. 540.) 



STATE V, BARNES. I3I 

State ex rel. Magnus Peterson vs, Barnes. 

opinion filed February 21st, 1893. 

Complaint Before Ma^strate — When Sufficient. 

Section 8, Ch. 71, Laws 1890, which provides that, with certain specified 
exceptions, **no information shall be filed against any person for any crime or 
offense until such person shall have had a preliminary examination therefor, as 
provided by law, before a committing magistrate or othe«- officer h«iving 
authority to make preliminary examinations, unless such person shall waive his 
right to such examination,'* etc., construed. Heidy where a criminal com- 
plaint filed against the accused with an examining magistrate, after alfeging 
time and place, designates the offense in general language, giving its name, 
and, in addition thereto, sets out such of the facts and circumstances constitut- 
ing the offense as will fairly apprise a person of average intelligence of the 
nature of the accusaticm against him, it will be sufiicient, within the meaning of 
the statute, to authorize the State.'s Attorney to file an information against the 
accused for the same offense if he has had or waived an examination on such 
complaint. It will make no difference with this rule if certain averments of 
fact which are essential in an information are omitted from the complaint. 
Such complaints need not Ije framed with the same degree of care and technical 
accuracy as is required in framing informations and indictments. Tested by 
this rule, the complaint against the petitioner is examined, and found sufhcient. 

Errors of Procedure not Reviewed on Habeas Corpus. 

Rulings of the District Court made upon the trial of criminal actions are 
reviewable by writ of error, but the writ of habeas corpus cannot be invoked for 
that purp>ose. 

Habeas Corpus and Writ of Error Distinguished. 

Where the petitioner pleaded in abatement to an information filed in the 
District Court against him that ^e had neither had nor waived a preliminary 
examination for the offense charged in such information, and the plea was over- 
ruled. Ifeldy that such ruling was made by a court having jurisdiction of the 
person and the subject matter, and therefore the ruling cannot be reviewed by 
habeas corpus. 

Petition for a writ of habeas corpus by the state, on the rehi- 
tion of Magnus Peterson, against Oscar G. Barnes, as Sheriff of 
Cass County. 

Writ discharged. 

Taylor Crum, for petitioner. 

Robt M. Pollock, State's Attorney. 



132 NORTH DAKOTA REPORTS. 

Wallin, J. Magnus Peterson, the petitioner, was arrested upon 
a criminal warrant issued by a justice of the peace of Cass 
County, and was taken before such justice of the peace for a pre- 
liminary examination. The complaint upon which the warrant 
was issued was read to the petitioner, and, acting upon the advice of 
counsel, the petitioner waived an examination, and was committed 
for trial at the next ensuing term, of the District Court for Cass 
County. The complaint was sworn to, and, omitting certain 
formal parts not criticised, is as follows: "State of North Dakota 
vs. Magnus Peterson, defendant. A. E. Jones, being by me first 
duly sworn, on oath complains and charges that the defendant, 
Magnus Peterson, at the said County of Cass, on the ijth day of 
August, A. D. iScfi, with force and arms, did then and there 
commit the crime of obtaining property under false pretenses, as 
follows, to-wit: That on the said isth day of August, 1891, at the 
City of Fargo, in said County of Cass, the said Magnus Peterson, 
with intent to cheat and defraud Aultman, Miller & Co., and for 
the purpose of obtaining of it, the said Aultman, Miller & Co., 
property of the value of seventy dollars by means thereof, did 
falsely and feloniously represent and state to said Aultman, 
Miller & Co., that he, said Magnus Peterson, was then and there 
the owner of 80 acres of land in the County of Clay and State of 
Minnesota free from all incumbrances, and of the value of f 1,500, 
and also of personal property within said County of Clay and 
State of Minnesota of the value ot $1,000, over all indebtedness 
and legal exemptions; that, by reason of said false and fraudulent 
representations, the said Aultman, Miller & Co., were induced to 
and did sell and deliver to said Magnus Peterson on said 15th 
day of August, 1891, 540 pounds of pure manilla twine, then and 
there the property of said Aultman, Miller & Co., and of the value 
of $70, against the peace and dignity of the State of North 
Dakota, and contrary to the form of the statute in such case 
made and provided, and prays that the said Magnus Peterson 
may be arrested and dealt with according to law.** No deposi- 
tions or testimony other than said complaint was taken by the 



STATE V. BARNES. 133 

justice of the peace before issuing the warrant of arrest, or at any 
time. At a term of the District Court for Cass County next 
following such commitment the state's attorney of said county 
filed an information in due form against said Magnus Peterson, 
charging him with "the crime of obtaining property under false 
pretenses." 

It will be unnecessary, for the purpose of disposing of this case, 
to set out the information in detail. It is conceded that it is a 
valid and sufficient information; also, that certain averments of 
fact, which are essential in an information or indictment charging 
said offense, were embodied in the information, but were ommitted 
from the complaint ypon which the warrant of arrest was issued. 
The petitioner, on being brought to trial on the information, 
pleaded in abatement thereto that "he had never had a prelimin- 
ary examination for the crime or offense charged, nor waived the 
same, and that the crime charged was not committed during the 
session of the court, and that the petitioner was not a fugitive 
from justice." The antecedent history of the case appeared of 
record as above narrated, and no issue of fact was litigated upon 
the issues raised by the plea in abatement. The District Court 
overruled the plea, holding that the petitioner, having waived 
a preliminary examination, was in a position which authorized the 
state's attorney to file an- information against him for the offense 
charged by such information, and that the offense set out in the 
complaint was the same offense, in substance, as that charged in 
the information. This ruling is assigned as error in this court. 

The petitioner refused to plead either guilty or not guilty, 
whereupon the cour^ directed a plea of not guilty to be entered 
in his behalf, and after a trial the prisoner was found guilty. A 
motion was made and overruled in arrest of judgment, and the 
petitioner was sentenced to a term of six months in the state's 
prison at Bismarck. Exceptions were saved to the several rulings 
above mentioned. While in the Cass County jail under said 
sentence the petitioner was awarded the writ of habeas corpus^ 
directed to the sheriff of Cass County, and upon the return of 



134 NORTH DAKOTA REPORTS. 

the writ the foregoing facts are upon the record of this court. 
Upon the facts appearing of record, only one question arises 
upon the merits. It is this: In waiving a prcliminaiy examina- 
tion before the magistrate, did the petitioner, \\rithin the meaning 
of the statute, waive an examination for the crime or offense 
charged in the information lodged against him by the state's 
attorney? We think he did. Section 8, Ch. 71, Laws 1890, pro- 
vides, with certain exceptions, not necessary to notice in this case, 
that "no information shall be filed against any person for any 
crime or offense until such person shall have had a preliminary 
examination therefor, as provided by law, before a committing 
magistrate or other officer having authority to make preliminary 
examinations, unless such person shall waive his. right to such 
examination," etc. The manifest purpose of this provision of the 
statute is, with the exceptions specified in the statute, to prohibit 
the state's attorney from filing an information in the District 
Court charging any person with a public offense until the person 
accused has first had or waived a preliminary examination before 
an examining magistrate upon a complaint charging the offense 
set out in the information filed in the District Court. The grand 
jury being abolished, this statute was enacted to furnish the 
citizen with a substantial safeguard against hasty and ill advised 
prosecutions for grave public offenses. . Without this statute, or 
one of similar import, the grand jury no longer existing, a citizen 
would be required to stand his trial for a felony on the mere accu- 
sation of one person, viz: the state's attorney. It was to prevent such 
a state of things that the statute above quoted was enacted, and it 
should therefore be upheld, and not be frittered away by judicial 
construction. Was the petitioner denied any right secured to 
him by the statute? He exercised his privilege, and waived an 
examination, which was tendered to him. In so doing did he 
waive an examination, within the meaning of the statute? In 
other words, was the examination tendered him by the proceed- 
ings in justice's court such as is "provided by law?" The prisoner's 
counsel has suggested but one reason why the preliminary 



STATE V. BARNES. 135 

examinatidh was not such as is contemplated by the statute. The 
point is made that the complaint lodged with the magistrate 
omitted to state one qr more averments of fact which are neces- 
sary to constitute the crime of "obtaining property under false 
pretenses." Conceding this to be true, we cannot sustain the 
contention of counsel that the petitioner has not waived a prelim- 
inary examination, within the meaning of the statute. We know 
of no case or principle of law which requires that a complaint 
made as a basis for a mere preliminary examination should be 
drawn with the fullness and technical accuracy required in cases 
where the prisoner is put upon his trial in a court having authority 
to hear and determine the case and impose a final judgment. The 
system of criminal procedure which is established by the laws of 
this state contemplates that nonprofessional persons, and particu- 
larly justices of the peace, who, as a rule, are men unlearned' in 
the abstruse rules of criminal pleading, may have frequent occa- 
sion to write out criminal complaints, to be filed as a basis for the 
arrest of offenders. To require of persons who are without pro- 
fessional training to frame criminal complaints with the same 
degree of technical accuracy which is required in indictments 
and informations would be to exact the impossible. No such 
rule has hitherto existed, and this court will not lend its sanction 
to such a notion. In cases of felony the jurisdiction of a justice of 
the peace does not extend beyond the mere initiation of the pro- 
'ceeding. At the utmost, he can only direct that the prisoner 
shall be put upon his trial before a court having competent 
jurisdiction. It is true that a preliminary examination, under 
Ch. 71. Laws 1890, has assumed a degree of importance which did 
not attach to it prior to the enactment of the statute. Under the 
statute, with the exceptions named, an examination before a 
magistrate must antedate the filing of an information in the 
District Court. The statute, however, does not undertake to 
modify the system of examinations existing at the time of its 
passage. The sole requirement is that "no information shall be 
filed against any person for any crime or offense until such person 



136 NORTH DAKOTA REPORTS. 

shall have had a preliminary examination therefor, as provided by 
law; before a committing magistrate, * * * unless such person shall 
waive his right to such examinations/' etc. The only new feature 
embraced in the statute under consideration is that the examina- 
tion of the accused before the magistrate must Have been based 
upon a complaint charging the same offense as that set out in the 
information filed against the accused by the state's attorney. 
Such examination can be inaugurated only upon a complaint 
called an "information." Comp. Laws, § 7117. "The information 
is the allegation in writing, made to a magistrate, that a person 
has been guilty of some designated public offense." . But how 
designated? We hold that a complaint, after stating time and 
place, which names or describes an offense in general terms, and 
which, in addition thereto, sets out such facts and circumstances 
of the offense as will fairly apprise a person of average intelligence 
of the nature and cause of the accusation against him, will be 
sufficient, as a basis of an examination, even in cases where other 
averments, not inserted in such complaint, would be essential to 
a valid information charging the same offense. Tested by this 
criterion, the complaint against the petitioner was sufficient as an 
accusation charging him with the same offense as that embodied 
in the information filed in the District Court. Hence the error 
assigned must be overruled. 

Counsel for petitioner cites White v. State, (Neb.) 44 N. W. 
Rep. 443. The case is good law, but is not in point here. In that * 
case the complaint on which White was arrested did not in any 
manner set out any criminal charge against the accused, and the 
Supreme Court held that the District Court was therefore without 
authority to put the accused on his trial upon an information filed 
by the states attorney. As has been seen, we fully concur in that 
construction of the statute, and Nebraska statute being identical 
with ours. Counsel also cites the following cases: People v. 
Chapfnan, (Mich.) 28 N. W. Rep. 896; Statew. Braithwaite, (Idaho,) 
27 Pac. Rep. 731; People v. Wallace, (Cal.) 29 Pac. Rep. 956; 
People V. Parker, (Cal.) 27 Pac. Rep. 537. Some of the cases last 



STATE V, BARNES. * 137 

cited turn upon mere questions of practice arising under statutes 
dififering from those in this state, but the general principle run- 
ning through them all has our approval, viz: that the charge 
made in the trial court must have been made substantially — i, e. 
with fair and reasonable fullness — in the complaint upon which 
the prisoner was examined, unless the examination is waived. 
The statute in the state of Kansas is essentially the same as that 
of North Dakota upon the question involved in this record, and 
the Supreme Court of that state has, in the cases cited below, 
reached conclusions which are essentially in harmony with the 
views already stated in this opinion: State v. Tennison, (Kan.) 
i8 Pac. Rep. 948; State v. Reedy, (Kan.) 24 Pac. Rep. 66; State v. 
Bailey, (Kan.) 3 Pac. Rep. 769. 

One point further, a decisive one, remains to be considered. 
We hold that the petitioner has mistaken his remedy. The writ 
of habeas corpus will not lie in behalf of a prisoner confined in 
execution upon a criminal judgment as a means of reviewing 
errors of procedure occurring upon the trial. Such errors can be 
reviewed in this state only by the writ of error. This doctrine 
has long since passed beyond the domain of debate, and is 
reckoned among the fundamentals of the law of procedure. See 
petition of Semler, 41 Wis. 518; Eisner v. Shirgley, (Iowa,) 45 N. 
W. Rep. 393; in re Ellis, (Mich.) 44 N. W. Rep 616; ex parte Ah 
San\, (Cal.) 24 Pac. Rep. 276; ex parte Siebold, 100 U. S. 375; 
Wood V. Brush, 11 Sup. Ct. Rep. 738; hi re. Thompson, (Mont.) 
23 Pac. Rep. 933; ex parte Max, 44 Cal. 579. 

It is quite clear that the question whether a prisoner accused of 
a crime by information filed in the District Court has had or 
waived a preliminary examination for the same crime is a question 
of procedure, pure and simple. The point presented for decision 
may involve questions of fact alone, or of law alone, or of both 
law and fact. From nature of the question, it can only arise upon 
the trial of the action, and it must be presented to a court which 
has full authority to decide the question in common with all 
questions arising at the trial. The question in this case arose at 






138 NORTH DAKOTA REPORTS. 

the trial after an arraignment upon the information in a court 
possessing full jurisdiction over the subject matter and over the 
person of the accused. The ruling of the District Court in such a 
case may be correct or it may be erroneous. In either event, from 
the nature of the case, the authority to rule is unassailable! 

The question of practice presented by the record is decisive 
against the prayer of the petitioner, but we have deemed the case 
to be one of unusual practical importance, considered with refer- 
ence to the prosecution of offenders by information, and as the 
questions involved have never before been presented to this court, 
we have conceived it to be important to pass upon the merits as 
well as upon the practice question. The writ is discharged, and 
the prisoner remanded. All concur. 

(54 N. W. Rep. 541.) 



Washburn Mill Company vs, S. J. Bartlett, ^/ ^/. 

Opinion filed December 3rd, 1893. 

Foreign Corporation — Right to do Business. 

Sections 3190, 3192, Comp. Laws, which prescnl>e the terms upon which 
foreign corporations may do business in this state, do not render contracts 
entered into with such corporations, before compliance with the terms of said 
sections, unenforceable and void. 

Contracts With— Estoppel. 

Parties who have contracted with such foreign corporation as a corporation, 
and received and retained the benefits of such contract, cannot, in an action by 
such corporation, based thereon, raise the question of noncompliance with the 
terms of said sections. . 

Appeal from District Court, Sargent County; Lauder, J. 

Action by the Washburn Mill Company against S. J. Bartlett 
and another to foreclose a real estate mortgage. A demurrer to 
the answer was overruled, and plaintiff appeals. 

Reversed. 

/. E. Bishop, {Akcrs & Lancaster of Counsel,) for appellant. 



WASHBURN MILL COMPANY V. BARTLETT. 1 39 

Defendant's answer is insufficient to raise the question of non- 
compliance with the statute. It pleads legal conclusions. Gull 
River Lumber Co, v. Keefe, 41 N. W. Rep. 743, 6 Dak. 160. The 
defense that a foreign corporation has not complied with the 
statute, by filing its articles of incorporation and appointing a 
resident agent must be specially pleaded. Americmi ButtonJwle 
Co. V. Moore, 2 Dak. 280, 8 N. W. Rep. 131. The consideration 
for contracts is presumed to have been lawful. Illegality is never 
presumed, it must be alleged and proved. St Louis etc. Ry, Co, v. 
Fire Association, 18 S. W. Rep. ^y.'Dakl v. Montana Copper Co,, 
10 S. C. Rep. 97; White River Lumber Co. v. Southwestern Imp. 
Ass*n, 18 S. W. Rep. 1055. The fact of violation of law in one trans- 
action, will not inure to a stranger as a defense to an action on a 
contract not in violation of law. Nortltwestem Mutual his. Co. v. 
Brown, 36 Minn. 108, 18 S. W. Rep. 43, and 1055, supra. Penal 
statutes are strictly construed and a forfeiture will not be enforced 
unless such appears to have been the unmistakable intention of the 
legislature. Toledo etc. Co. v Thomas, 11 S. E. Rep. 37; Ufdted States 
v. Alliens Armory, 31 Ga. 344. There is a clear distinction between 
an intent to prohibit a transaction until a certain thing is done 
(when the primary object is actual prohibition) and an intent to 
compel the performance of an act collateral to the transaction. 
Lamed v. Andrews, io6, Mass. 435, Aikefi v. Blaisdell 41, Vt. 655; 
DeMers v. Daniels, 39 Minn. 158; Pangbom v. Westlake, 36 la. 546; 
Strong V. Darling, 9 Ohio,* 201. The restriction imposed by statute 
is a simple inhibition — no one but the state can object. The con- 
tract is valid as to the defendant and he has no right to raise the 
question of its invalidity. Whitney v. Wyman, loi U. S. 392, Na£l 
Bank of Genessce v. Whit?iey, 103 U. S. 10 1; Fortier v. New Orleans 
Bank, 1 12 U. S. 439, 5 S. C. Rep. 2'^^\ Reynolds v. Crawfordsville Bank, 
112 U. S. 405, 5 S. C. Rep. 213; Frills v. Palmer, 132 U. S. 293, 10 
S. C. Rep. 93. A person who has had the benefit of an agreement 
cannot be permitted in an action founded upon it to question its 
validity. (Jjiiofi Natl Bank of St. Louis v. Mattliews, 98 U. S; 621 ; 
Wright V. Lee, 51 N. W. Rep. 706. 



140 NORTH DAKOTA REPORTS. 

Thorp and Ellsworth, {Ball& Watso?i of Counsel) for respondent. 

It is the right of any state to entirely exclude foreign corpora- 
tions from doing business as such corporations within its territorial 
limits. Doyle v. Co7ttinental Ins, Co., 94 U. S. 535; Home Ifis, Co. v. 
Davis, 29 Mich. 238, 8 Am. and Eng. Enc. Laws 333. It follows 
that the state may impose such conditions as may be deemed 
expedient, upon foreign corporations dping business within the 
state and may declare that all contracts made without compliance 
shall be void. Doyle v. his. Co., 94 U. S. 535; W. U. Tel. Co. v. 
Mayer, 28 Ohio St. 539. 

Bartholomew, J. The appellant herein, the Wasburn Mill 
Company, is a corporation chartered by the State of Minnesota, 
and organized and existing under and by virtue of her laws. It 
brought this action in the District Court for Sargent County, in 
this state, to foreclose a real estate mortgage executed by S. J. 
Bartlett and F. G. Bartlett, the respondents herein, to secure a 
promissory note given by respondents to appellant. The answer 
admits the execution of the note and mortgage, and as a sole 
defense thereto alleges, in substance, that at the time the same 
were given, appellant was a foreign corporation, and was engaged 
in and carrying on the regular business of dealing in lumber at 
Forman, and other points in the Territory of Dakota, (now State 
of North Dakota;) and that said Note and Mortgage were given 
and received at said Forman, and in the regular course of appel- 
lant's business; and then proceeds to set forth certain facts to 
show that at the time of said transactions appellant had not com- 
plied with the statutory provisions then in force in the Territory 
of Dakota, and now in force in this state, relative to the trans- 
action of business by foreign corporations. There was a demurrer 
to the answer, which the trial court overruled, and this ruling is 
the only question involved in this appeal. The statutes relied 
upon constitute § § 3190, 3192 of our Comp. Laws, and read 
as follows: "No corporation created or organized under the laws 
of any other state or territory shall transact any business within 



WASHBURN MILL COMPANY V. BARTLETT. I4I 

this territory, or acquire, hold, and dispose property, real, personal, 
or mixed, within this territory, until such corporation shall have 
filed in the office of the secretary of the territory a duly authenti-t- 
cated copy of its charter or articles of incorporation, and shall-— - 
have complied with the provisions of this article: provided, that 
the provisions of this act shall not apply to corporations or asso- 
ciations created for religious or charitable purposes only." Section 
3192: "Such corporation shall appoint an agent, who shall reside 
at some accessible point in this territory, in the county where the 
principal business of said corporation shall be carried on, duly 
authorized to accept service of process, and upon whom service of 
process may be made in any action in which said corporation may 
be a party; and service upon such agent shall be taken and held 
as due service upon such corporation. A duly authenticated 
copy of the appointment or commission of such agent shall be 
filed and recorded in the offices of the secretary of the territory 
and register of deeds of the county where said agent resides, and 
a certified copy thereof by the secretary or register of deeds shall 
be conclusive evidence of the appointment and authority of such 
agent." Three errors are assigned and argued: First, the answer 
does not state facts sufficient to show noncompliance with said 
statutes: Second, said statutes do not make contracts made in 
violation of the provisions thereof void or unenforceable as 
between the parties thereto, or in any way affect their rights or 
remedies. Third, said statutes, as applied to the case at bar, are 
unconstitutional, in that they interfere with interstate commerce. 

As to the first point, without setting forth the allegations in 
detail, we have to say that a careful consideration of them leaves 
no doubt in our minds that the allegations fairly show noncom- 
pliance with the statute, and tlie trial court committed no error 
in so holding. 

The second point is difficult, and involved in much confusion. 
While these provisions have been upon our statute books for 
years, appearing as § § 567, 569 in the Civil Code of 1877, yet 
they are now, for the first time, to be passed upon by the court of 



142 • NORTH DAKOTA REPORTS. 

last resort in this jurisdiction. On three different occasions 
{Machine Co. v. Moore, 8 N. W. Rep. 131,2 Dak! 280; Manufac- 
turing Co, V. Foster, (Dak.) 30 N. W. Rep. 166; and Lumber Co. v. 
Keefe, 41 N. W. Rep. 743, 6 Dak. 160) an effort was made to raise 
the point before the Supreme Court of Dakota Territory, but no 
ruling was ever made. In declaring the effect of statutes prohibitory 
in form, courts have but one object in view,-the real purpose of the 
statute; the real intention of the legislature in its enactment. It 
may be stated as a rule at common law that if a statute forbids an 
act to be done — provides a penalty for doing it — any contract to 
do the forbidden act is void, whether the statute expressly so 
declares or not. Machine Co. v. Caldwell, 54 Ind. 276. And when 
the purpose of the enactment is the absolute prohibition of a cer- 
tain act, then the performance thereof is invalid, whether the 
prohibited act be malum i?i se or sirtiply malum prohibitum. Holt 
V. Green, 73 Pa. St. 198; Pratt v. Sltart, 79 N. Y. 437.' But in deter- 
mining the purpose of the enactment, courts consider the nature 
of the forbidden act, for the very obvious reason that when such 
act is immoral or criminal in its nature, or dangerous to life, 
health or property, the presumption must prevail that legislative 
wisdom intended to stamp it out; while if the act be innocent irt^ 
itself and in its consequences, no such presumption necessarily 
arises. Among the former may be mentioned gaming contracts, 
contracts for the sale of intoxicating liquors, where such sales 
are made criminal, contracts for the sale of diseased food, cham- 
pertous contracts, etc. A large number of the cases arose under 
statutes of this kind, and are not authority for the case at bar. 
To properly construe statutes of the nature of the one here 
involved, it is necessary to first consider the powers and privi- 
leges of foreign corporations in the absence of all statutory regu- 
lations. While it is undoubtedly true, as stated by Chief Justice 
Taney in Bank v. Earle, 13 Pet. 588, that "a corporation can have 
no legal existence out of the boundaries of the sovereignty by 
which it is created," and that '*every power, however, of the 
description of which we are speaking, which a corporation 



WASHBURN MILL COMPANY V. BARTLETT. I43 

exercises in another s^ate, depends {or its validity upon the laws of 
the sovereignty in which it is exercised, and a corporation can 
make no valid contract without their sanction, express or implied,'* 
yet this implied sanction is always presumed to exist until the 
contrary appears. In the same case it is said: "We think it well 
settled that by the law of comity among nations a corporation 
created by one sovereignty is permitted to make contracts in 
another, and to sue in its courts, and that the same law of comity 
prevails among the several sovereignties of this Union/* In 
Elstan V. PiggoU, 94 Ind. 17, it is said: "This principle of the 
comity of natipns is a part of the common law, and is by long 
settled rules, as well as by positive statute, ingrafted on our law.'* 
And to same effect are Christian Union v. Young, loi U. S. 352; 
Thompson v. Waters, 25 Mich. 214; Lumber Co. v. Thomas, 33 W. 
Va. 566. II S. E. Rep. 37; Ang. & A. Corp. § § 372, 376. Of 
course, this comity only extends* to the exercise of such powers 
as are expressly granted in the charter conferred by the creating 
sovereignty. It is true, also, that one sovereignty has the power 
to exclude from its territory any corporation created by another 
sovereignty; but this must be done by express statute, or by the 
settled policy of the statfe, as evinced by the decisions of its 
courts of last resort. And this includes the lesser right to pre- 
scribe terms with which such foreign corporation must comply. 
We have no statute excluding foreign corporations, except as here- 
tofore quoted, nor has it ever been the policy of this state to 
exclude foreign corporate capital and business enterprise. Appel- 
lant, unless forbidden by the statute quoted, had the power to 
transact business and enter into contracts in the Territory of 
Dakota. • The nature of its contracts contravened no policy of 
that territory. The contract was innocent in itself and in its 
consequences. Under these facts, was it the legislative purpose, 
by the enactment of § § 3190, 3192, Comp. Laws, to declare con- 
tracts of /this character, entered into before the foreign corpora- 
tion had/compiled with the provisions of said sections, unenforce- 
able and void? Similar statutes upon this and other subjects are 



144 NORTH DAKOTA REPORTS. 

found in all the states of this ynion, and in their construction so 
much is left to judicial determination that uniformity in the 
decisions would hardly be expected. The statutes, too, present 
great variety. Some, like ours, are prohibitory in form, with no 
penalty attached, and silent as to the consequences of noncom- 
pliance. Others, while not prohibitory in form, attach a penalty 
for doing or failing* to do certain specified things. Ot]iers have 
both the prohibitory form and the penalty. Some declare con- 
tracts made without compliance with their provisions void and 
unenforceable or unlawful. Others specify various consequences 
that shall follow noncompliance. One class of cjises, where the 
statutes are prohibitory, with penalty attached, holds that con- 
tracts made without compliance with the terms of the statute are 
nevertheless valid and enforceable, on the ground that by annex- 
ing a penalty the legislature manifested its purpose that the 
penalty should be exclusive of all other consequences of noncom- 
pliance. Of this class are Lumber Co. v. Tliomas, 33 W. Va. 566, 
II S. E. Rep. 37; Insurame Co, v. Walsh, 18 Mo. 229; Insurance Co, 
V. McMillen, 24 Ohio St. 67; Harris v. Runnels, 12 How. 79. 
Another class of cases, under similar statutes, holds that the 
annexation of a penalty renders all aCts which subject the party 
to the penalty unlawful, and hence unenforceable, on the univer- 
sally accepted proposition that no cause of action can be based 
upon an unlawful transaction. See Btixton v. Hamblen 32 Me. 
448; Miller V. Post, i Allen, 434; Wheeler v. Russell, 17 Mass. 257; 
Johnson v. Hulings, 103 Pa. St. 498; Holtw, Green, 73 Pa. St. 198; 
Dudley v. Collier, (Ala.) 6 S. Rep. 304; Insurance Co, v. Harvey, 11 
Wis. 412; Elkins v. ParBiurst, 17 Vt. 105. But there is still 
another class ot cases, where the statute annexes a penalty, that 
holds that contracts made without compliance with the statute 
are nevertheless valid, on the ground that the purpose of the 
statute was not to prohibit business, but to accomplish some 
collateral object. In this class we cite luimed v. AfidrewSy 106 
Mass. 435; Aiken v. Blaisdell, 41 Vt. 655; DeMersw, Daniels, 39 
Minn. 158, 39 N. W. Rep. 98; Strong v. Darling, 9 Ohio, 201; 



WASHBURN MILL COMPANY V. liAKTLETT. 145 

Pangboni v. IVestlake, 36 Iowa, 546; Rahter v. Bmik, 92 Pa. St. 393. 
It has been held under statutes, prohibitory in form, but without 
penalty, and silent as to consequences, such as ours heretofore 
quoted, that all contracts entered into without compliance with 
the terms of the statute were absolutely void. These cases are 
based largely upon the thought that, inasmuch as there is no 
penalty or forfeiture provided in the statute for a. disregard of its 
terms, there remains no method of its enforcement, other than to 
declare all contracts made in disregard of the statutory provi- 
sions unenforceable. Bank v. PagCy 6 Or. 431'; Haclieny v. Leary, 
12 Or. 40, 7 Pac. Rep. 329; hi re Comstock, 3 Sawy. 218; Hoffman 
v. Banks, 41 Ind. i; Insurance Co. v. Harrah, 47 Ind. 236; Insurance 
Co. V, T/iomas, 46 Ind. 44; Assurance Co. v. Roscntlial, 55 111. 85. 

Other cases arising, like those last noticed, under statutes pro- 
hibitory in form, but without penalty or expressed consequences, 
have held that contracts entered into without compliance with 
the terms of the statute were valid, enforceable contracts as 
between the parties, and that one who had received and retained 
the benefits of such a contract could not raise the question of 
noncompliance. Bank v. Mattheivs, 98 U. S. 621, arose under that 
provision in 'the national banking law permitting national banks 
to purchase, hold, and convey real estate for certain specified 
purposes, and no other. The bank had received real estate 
security contrary to the terms of the act, and it was sought to 
declare such security void in the hands of the bank. The court 
said the prohibition was clearly implied, and as effectual as if it 
were expressed; but, on full consideration and a review of the 
authorities, it was held that the purpose of the statute was not to 
render such contracts void and unenf<^rceablc. The court used 
this language: "The intent, not the letter, of the statute consti- ' 
tutes the law. A court of equity is always reluctant in the last 
degree to make a decree that will effect a forfeiture. The bank 
parted with its money in good faith. Its garments are unspotted. 
Under these circumstances, the defense of ultra vires^ if it can be 
N. D. R. — 10. 



146 NORTH DAKOTA REPORTS. 

made, does not address itself favorably to the mind of the chan- 
cellor." And as a conclusion the court said: "The impending 
danger of a judgment of ouster and dissolution was, we think, the 
check, and none other contemplated by congress. That has been 
always the punishment prescribed for wantom violation of a 
charter, and it may be made to follow whenever the proper public 
authority shall see fit to invoke its application. A private person 
cannot, directly or indirectly, usurp this function of the govern- 
ment." The court also quoted with approval the following lan- 
guage from Sedg. St. Const. 73: "Where it is a simple question 
of authority to contract, arising either on a question of regularity 
of organization or power conferred by charter, a party who has 
had the benefit of the agreement cannot be permitted, in an action 
founded upon it, to question its validity." Whitney v. IVyman, 
loi U. S. 392, is equally instructive. It arose under a Michigan 
statute, which prohibited corporations from transacting business 
until their articles of incorporation were filed in the proper office, 
but attached no penalty. Certain parties purporting to act for a 
certain corporation, but before articles of incorporation were filed, 
ordered certain machinery of plaintiff, which was forwarded and 
charged to the parties ordering, and not to the corporation. The 
parties refused to pay, and plaintiff brought action against them, 
claiming that the corporation for which they purported to act 
could not transact business by reason of the statutory restriction. 
A unanimous court, speaking by Justice Swayne, said: "The 
restriction imposed by the statute is a simple inhibition. It did 
not declare what was done should be void, nor was any penalty 
prescribed. No one but the state could object. The contract is 
valid as to plaintiff, and hdhas no right to raise the question of its 
invalidity;" citing the case of Bank v. Matthews, and showing that 
the court considered the principle involved to be the same. In 
Grant w. Coal Co., 80 Pa. St. 218, it is said: "Having dealt \with 
the defendant in error as a de facto corporation, there is little 
merit in the defense now taken, that they were not duly incorpor- 
ated, and had no right to sue for coal which it is admitted they 



WASHBUKX MILL COMPANY T'. BARTLETT. I47 

delivered. Nor is there any question raised upon the record as 
to the right of this company as a foreign corporation to hold real 
estate or even mining leases in this state. If the commonwealth 
has any interest in such inquiry, it can be raised by her proper 
officer. It is a matter with which the plaintiff in error has no 
concern." Since the decision of this case in the trial court, the 
Supreme Court of South Dakota, in an elaborate and instructive 
opinion by Bennett, J., has passed upon the identical statute here 
in question, which South Dakota, like North Dakota, received at 
the hands of the late Territory of Dakota. The conclusion 
reached by that court, after a full review of the authorities, is thus 
stated: "Aided by the light of these able decisions, endeavored 
to be reviewed upon both sides of the question raised in the case 
at bar, we have come to the conclusion that the constitutional 
provision and legislative enactment in our state, as quoted above, 
was not designed or intended as a prohibition upon foreign cor- 
porations to contract in this state, to the extent to deglare such 
contracts void, but were merely intended to furnish the means by 
which our citizens could procure personal judgments against 
foreign corporations who were their debtors. And while the statute 
did in terms prohibit the transaction of business until its provi- 
sions are complied with, yet whatever objection there might be 
made to a foreign corporation for noncompliance, it being a 
statute regulating a public policy, this objection could not be 
urged collaterally by a private person, but it must be done by a 
direct proceeding instituted by the state." Wright v. Lee, (S. D.) 
51 N. W. Rep. 706. See also, Mor. Priv. Corp. § 665; Frittsv. 
Palmer, 132 U. S. 282, 10 Sup. Ct. Rep. 93; Fortier v. Bank, 112 U. 
S. 439! 5 Sup. Ct. Rep. 234; Rcy?wlds v. Bank, 112 U. S. 405, 5 Sup. 
Ct. Rep. 213; Chase's Patent Elevator Co. v. Boston Tozv Boat Co., 
152 Mass. 428, 28 N. E. Rep. 300; Merrick v. F.ngifw & Governor 
Co., loi Mass. 384. 

The cases which we have cited from the various classes demon- 
strate, perhaps, the lack of uniformity with more certainty than 
they point to the correct rule of construction. Yet when studied, 



148 NORTH DAKOTA REPORTS. 

the cases are all found seeking one common object, — the legisla- 
tive purpose. "The intent of 'the law maker is the law;'* the em- 
barrassment is in declaring that intent. This intention may be 
declared in the act, or it may be inferred from its provisions in 
connection with the subject matter and circumstances. Howell v. 
Stewart, 54 Mo. 400; Machine Co. v. Caldwell, 54 Ind. 279. In the 
statute under discussion the legislature specified reasonable terms 
upon which a foreign corporation could launch its business over the 
entire state, unquestioned by private interests or sovereign power. 
Whatever may have been the primary purpose of the legislature, it 
certainly was not to exclude foreign corporations from the state. 
Nor is it reasonable to presume that it was the legisjlative intent 
to declare all contracts made by foreign corporations without 
compliance with the statute absolutely void. It were a reflection 
upon legislative wisdom to presume that consequences so unusally 
harsh and oppressive were expected to flow from the use of lan- 
guage so mild and uncertain. Our statute is a simple inhibition. 
It declares no penalty. It does not declare the transaction of 
business unlawful or contracts void. We may well use the lan- 
guage of Justice Swayne in Bank v. MattJiews, supra: "The 
statute does not declare such a security void. It is silent upon 
the subject. If congress so meant, it would have been easy to. 
say so; and it is hardly to be believed that this would not have 
been done, instead of leaving the question to be settled by the 
uncertain result of legislative and judicial decision." The statute 
by its terms places foreign corporations upon an equality with 
domestic corporations in the matter of the publicity of the pur- 
poses of their creation and their powers, and in the matter of conve- 
nience and certainty with which process may be served upon them. 
It is not possible to read the statute without perceiving this to 
have been the primary purpose of its enactment. These objects 
are, or may be, highly necessary for the protection and conveni- 
ence of our citizens dealing with such corporations. The legisla- 
ture, having specified the duties of the foreign corporation, provi- 
ded, in Ch. 26 of the Civil Code, the means for their enforcement, 



WASHBURN MILL COMPANY V. BARTLETT. , I49 

and made it the duty of every prosecuting attorney to sec 
that such conditions were fulfilled, or the corporation barred from 
the exercise of any corporate franchise within this state. This 
we believe to have been the rentiedy, and the only remedy, in the 
mind of the legislature. These respondents dealt with appellant 
as a corporation. They received and retained its property, and 
executed their obligation to pay for the same. TJie corporation 
has fulfilled its contract, and now respondents, without offering to 
return the consideration for their note, ask that they be released 
from the performance of their contract, for no reason other than the 
failure of appellant to perform a duty that it owed to the state at 
large, but the nonperformance of which in no manner prejudiced 
respondents. We are unwilling to ingraft upon a silent statute a 
consequence so inequitable. Upon both principle and authority, 
respondents are precluded from raising the question of noncom- 
pliance upon the part of appellant with the provisions of said 
§ § 3^90» 3192, Comp. Laws. The facts alleged in the answer did 
not invalidate the contract, and the demurrer should have been 
sustained upon that ground. 

It will not be necessary nor proper, in view of what we have 
said upon the second assignment of error, for us to discuss the 
constitutional question raised by the third assignment. 

The District Court is ordered to vacate its order heretofore 
entered, and enter an order sustaining the demurrer. 

'Reversed. All concur. / 

(54 N. W. Rep. 544.) ^ 



15b north dakota reports. 

State vs. Charles Johnson. 

Opinion filed February 21st, 1893. 

Conviction of Lesser Crime, Than Charged. 

Comp. Laws, § § 6479, 6480, 6491, 6492, 6510, 7429, construed, //f///, on 
a trial for the, crime of assault and battery committed with a deadly weapon, 
"with intent* to kill," the accused, under i^ 6510, Comp. Laws, may be 
convicted of an assault and battery, armed with a dangerous weapon, **with 
intent to do bodily harm." The commission of the latter is necessarily 
included in the commission of the former, within the meaning of § 7429, supra. 

Verdict — Weapon Not Named — Assault and Battery. 

Where the accused was charged with an assault and battery when armed 
with a deadly weapon, "with intent to kill," and the verdict was for **assault 
and battery with intent to do bodily harm, as charged in the information," /leld, 
the verdict will warrant a conviction for assault and battery only. The weapon 
with which an assault is committed is an essential feature of the crime defined by 
i$ 6510, supra. The jury failed to find the weapon, and the ommtssion is fatal 
to a conviction for felony. 

Acquittal of Greater Offense. 

The following words found in the verdict, '*.as charged in the information," 
are ambiguous, and cannot \yc resorted to for the purpose of showing that the 
assault and battery was committed with a dangerous weapon, in view oi the 
fact that the effect of the verdict is to acquit the accused of the offense 
**charged in the information." 

Error to District Court, Cass County; McComicll, J. 

Charles Johnson was indicted for assault with intent to kill. 
The Jury found him i^uilty of a.ssault with intent to do bodily 
harm. He was sentenced for the first named crime, and brings 
error. 

Judgment modified. 

Taylor Cnim, for plaintiff in error. 

Roht. M. Pollock, State's Attorney, for defendant in error. 

Wallin, J. Plaintiff in error was tried and convicted in the 
District Court upon an information charging him, in effect, with 
feloniously committing an assault and battery, while armed with 
a deadly weapon, "with intent to kill." The verdict is as follows: 
"We, the jury, find the defendant guilty of the crime of assault 



STATE 7\ JOHNSON. I5I 

and batter>' with intent to do bodily harm as charged in the infor- 
mation, and recommend him to the mercy of the court." When 
the prisoner was brought, into court for sentence, his counsel 
appeared and objected to any sentence being pronounced against 
the prisoner for "any other or higher grade of offense than simple 
assault." This objection was overruled, and an exception was taken 
to the ruling. The court then sentenced the prisoner to a term, 
of eight months in state's prison, an exception being saved to the 
sentence. The contention in this court is confined to the one 
question of the legality of the sentence, and the question pre- 
sented is this: Did the verdict justify a sentence for felony, or 
should the punishment have been limited to a sentence for a 
simple assault, or assault and battery? A solution of this ques- 
tion will involve an examination of the information and the 
verdict, and these must be considered with reference to certain 
sections of the Penal Code. It is conceded that the information 
upon which the accused was tried was framed under that part of 
§ 6479 of the Comp. Laws (§ 279 of the Penal Code) which pro- 
vides that any person "who commits any assault and battery upon 
another by means of any deadly weapon, and by such other 
means or force as was likely to produce death, with intent to kill 
any other person, is punishable by imprisonment in the territorial 
prison, not exceeding ten years." As has been seen, the verdict, in 
terms, finds the accused guilty of "an assault and battery with 
intent to do bodily harm, as charged in the information." It is 
obvious that the legal effect of this verdict is to acquit the pris- 
oner inferentially of the specific offense charged against him in 
the inforniation, viz: the offense of assault and battery with intent 
to kill, and the question then presented is whether the verdict 
will justify the sentence actually pronounced against the prisoner. 
It is clear that the sentence cannot be sustained under the sec- 
tion upon which the information was drawn, (§ 6479, Comp. 
Laws,) for the reason, as has been stated, that the effect of the 
verdict is to find the accused not guilty of the crime defined and 
punished by that section; nor can the conviction be sustained 



152 NORTH DAKOTA REPORTS. 

under § 6480, Id., which provides for the punishment of "assaults 
with intent to kill" which are not punishable under § 6479. The 
plaintiff in error has not been charged with the crime of commit- 
ing an assault with intent to commit a felony "other than assaults 
with intent to kill;" hence the conviction cannot be upheld under 
§ §.6491, 6492, Comp. Laws. It is contended, however, in behalf 
of the state, that the sentence is valid as a conviction for an 
offense defined by § 65 lO, Comp. Laws, (§ 309, Penal Code,) 
which provides that "every person who, with intent to do bodily 
harm, and without justifiable and excusable cause, commits any 
assault upon the person of another with any sharp or dangerous 
weapon, * * * is punishable by imprisonment in the terri- 
torial prison," etc. It is well settled at common law that a defen- 
dant in a criminal case may be convicted of any offense "included" 
in the offense charged by the indictment. This principle has 
been embodied in § 7429, Comp. Laws, (§ 402, Code Crim. Prbc.) 
which reads: "The jury may find the defendant guilty of any 
offense the commission of which is necessarily included in that 
with which he is charged in the indictment." Under a similar 
statute of the State of Iowa, the Supreme Court of that state, 
upon rehearing, overruled the original opinion of the court as 
written by Chief Justice Miller, and held that, "upon the trial of an 
indictment for an assault with intent to commit murder, the 
defendant may be convicted of an assault with an intent to com- 
mit manslaughter." State v. WhitCy 41 Iowa, 316, 320; followed in 
State w. Cofmor, (Iowa,) 13 N. W. Rep. 327. The principle has 
frequently been applied, under statutes similar to those in this 
state, by the Supreme Court of' California. People v. Davidson, 5 
Cal. 134; People v. English^ 30 Cal. 216; People v. Congleton, 44 Cal. 
93; People V. Lightner, 49 Cal. 226. In People v. English, supra, the 
following language is used by the court: "The verdict is followed 
by the same judgment as though the defendant had been indicted 
for the offense of which he was convicted." The same rule 
obtains in New York, {O'Learyw. People, 4 Parker, Crim. R. 187,) 
and in Missouri, {State v. Biirk, 2 S. W. Rep. 10.) These cases, 



STAth: V. JOHNSON. 153 

with many others, have fully established the modern doctrine 
that, even in those peculiar crimes where a specific intent consti- 
tutes the gist of the offense charged, a conviction will be sustained 
for any other offense, not charged in terms, the commission of 
which is necessarily included in the commission of the offense 
charged. Bcckwith v. People^ 26 111. 500. In the case at bar, how- 
ever, the established rule now voiced by § 7429, Comp. Laws, by 
reason of an insufficient verdict, cannot be applied to the extent 
of affirming a conviction for felony for the offense defined by 
§ 6510, Id. The verdict does not find the defendant guilty of the 
offense charged in the information, and fails to find him guilty of 
any other felony. "Assault and battery with intent to do bodily 
harm" is not felony at common law, nor under any statute of 
this state. An essential element of the felony defined by § 6510 
is lacking in the verdict. An armed assault is not found, and the 
omission is fatal to the sentence. The verdict will sustain a sen- 
tence for assault and battery, which offense is both charged and 
found. This view has direct and ample support in the adjudica- 
tions of other states, under statutes essentially the same as in this 
state. People V. Vanard, 6 Cal. 562; Sullivan v. State, 44 Wis. 595; 
Territory v. Conrad, (Dak.) 46 N. W. Rep. 605; O'l^ary v. People, 
4 Parker, Crim. R. 187. 

We are of the opinion that the words *'as charged in the 
information," which are embraced in the verdict in this case, 
when considered with reference to the fact that the defendant is 
not found guilty of the offense charged in the information, are 
ambiguous, and too indefinite to sustain the sentence. If the 
inference may properly be drawn from the general language of 
verdict above quoted, that the accused was armed with a danger- 
ous weapon when he committed the assault and battery of which 
the jury found him guilty, the same rule of construction would, 
we think, require the court to infer that an armed assault and 
battery was committed if the verdict had been as follows: "We, 
the jury, find the defendant guilty of an intent to do bodily harm, 
as charged in the information;" but to thus speculate, and "give 






154 NORTH DAKOTA REPORTS. 

loose rein to conjecture," would, in our opinion, be very danger- 
ous in a criminal case. VVc find no precedent to justify such a 
• mode of spelling out the meaning of ambiguous language in a ver- 
dict in order to sustain a conviction for felony. A verdict of 
guilty for an offense not charged in terms is allowable, as has 
already been shown, in certain cases, but such verdicts, to be 
legal, must embody all the essential elements of the crime not 
charged in terms, but which is "included" in the commission of the 
offense charged. The offense of assault and battery was charged and 
found by the jury, and the verdict warrants a conviction for that 
offense only. The judgment of the District Court must be modi- 
fied, and that court will be directed to sentence the plaintiff in 
error for the crime of assault and battery only. All concur. 

(54 N. W. Rep. 547.) 



National Bank of North Dakota 7fs. Frederick Lemke. 

Opinion filed March 1st, 1893. 

Usury— Repeal of Statute— Penalty. 

Under g 4767, Comp. Laws, the penalties prescribed by Ji^ 3723, Id., against 
u.sury, were uol extinguished by the repeal of said i:^ 3723 by Ch. 184, Laws 
1890, as to any transactions had and completed prior to the enactment of said 
repealing statute. 

Erroneous Instruction— Harmless Error. 

While the giving of an erroneous instruction raises an immediate presumption 
of prejudice, yet a case will not be reversed by reason of such error where it is 
clear from the record that the complaining party could not have been preju- 
diced thereby. 

Appeal from District Court, Towner County; Morgan, J. 

Action in claim and delivery by the National Bank of North 
Dakota, a corporation, against Frederick Lemke. Defendant had 
judgment, and plaintiff appeals. 

Affirmed. 

A. S. Drake, {H. C. Mcacliam, of counsel,) for appellant. 

John IV. Maker and M. H. Breiman, for respondent. 



r 



NATIONAL BANK V. LKMKE. * 1 55 

Bartholomew, C. J. This action was brought, in claim and 
delivery, to obtain possession of certain personal property which 
the National Bank of North Dakota, plaintiff and appellant, 
claimed as assignee of a chattel mortgagee. The defendant and 
respondent, Lemke, was the mortgagor. The trial resulted in a 
verdict and judgment for respondent. The facts are somewhat 
involved, and the evidence upon some points conflicting. On 
November 24th, 1888, Lemke and his wife executed to the firm of 
VVhited & Johnson their promissory note for $633.65, drawing 
interest at 12 per cent, per annum, and due October ist, 1889. 
This note was secured by a chattel mortgage covering some — 
perhaps all — of the property here in controversy. This note is 
indorsed October 28th, 1889, with interest to October ist, 1889, 
and Si 80.88 to apply upon the principal. This indorsement was 
made by Whithcd & Johnson. Following this is the indorsement 
without recourse by said firm, and on April 2nd, 1891, a further 
payment of $9.50; and under date of April 15th, 1 891, there is a 
memorandum indorsed on the note, showing balance due on 
April 2nd, 1891, to be $531.65. It is undisputed that Whited & 
Johnson transferred the note to E. A. Mears, but at just virhat 
date docs not appear. It must, however, have been subsequent 
to October 28th, 1889, and after the date of the maturity of the 
note. On April 2nd, 1891, Lemke and wife executed a new note 
for $531.65 to E. A. Mears, due October 1st, 1891, and bearing 12 
per cent, interest. This note was secured by chattel mortgage 
covering the same property as the first mortgage. The old note 
was not delivered to the makers when the new note was taken. 
Both notes subsequently came into the possession of the appel- 
lant bank, of which E. A. Mears has been president since its 
organization. There was some claim made that the appellant 
received these notes before the maturity of the note of April 2nd, 
1891, but this question was submitted to the jury upon an instruc- 
tion requested by appellant, and their verdict is conclusive of the 
fact that appellant received such note after maturity. One of the 
defenses set up in the answer is that the only consideration for 



156 NORTH DAKOTA REPORTS. 

the second note was the balance due on the first, and that in fact 
there was no balance remaining when the second note was given, 
and hence it was without consideration. Appellant's theory of 
the case is, also, that the consideration of the second note was 
the balance due upon the first, but the parties differ widely as to 
what that balance was. Nearly all the payments on the original 
note were made by the delivery of elevator wheat checks, some 
of which were delivered to Whitcd & Johnson, and some to the 
agent of Mears. The mortgage covered successive wheat crops 
on certain land, and, as this wheat was hauled to the elevators, 
wheat checks were taken, and delivered to the party holding the 
note. But during the time that Mears held the original note, 
and before the second note was given, he also held various small 
notes against respondent, aggregating, according to the testimony, 
$319.60. Appellant claims that this money arising from the sale 
of the wheat represented by the checks was ; by agreement, to be 
applied to the payment of these small notes, and there is testi- 
mony to that effect. This respondent, in his testimony, denies. 
It is not very material. When the second note was given, these 
small notes were delivered to, or at least left 'with, respondent. 
With full knowledge of the fact, he has retained them, with no 
offer to return. Hence, as against him, it must be held, either that 
the small notes were paid by the wheat payments, or that they 
formed, pro tanto^ the consideration of the second note. It would 
be necessary, therefore, in order to establish a total absence of 
consideration in the second note, to show that the payments made 
not only extinguished the note of November 24th, 1888, but also 
the smaller notes. Further, the agent of Mears testifies that at 
various times he let Lemke have cash for expenses, — $25 at one 
time, and $5 or $10 at two or three other times; that this money 
was to be repaid from the proceeds of the wheat; that he simply 
put slips in the money drawer to represent the cash so advanced, 
and when the wheat was sold he replaced the money, and 
destroyed the slips, and no record was made of the transactions. 
This testimony respondent denies, and we have no means of 



NATIONAL BANK V. LEMKE. 1 57 

knowing what the jury found to be the fact in this regard. But 
whatever amount, if any, the jury found had been so advanced, 
must be first deducted from the payments, and the balance, only, 
applied on the notes. Respondent claims that the payments 
made, and as to which there is no conflict in the testimony, were 
sufficient to extinguish all legal claims held by Mears againt him, 
and that at the time of the execution of the note of April 2nd, 
1891, he owed Mears nothing. It is averred in the answer, and 
respondent's testimony supports the averment, that the original 
note of $633.65 was in fact usurious; that respondent received 
$465.65 on said note, and no more; and that the excess, to-wit: 
S168, was simply an usurious bonus. There is no evidence in the 
abstract that contradicts this, but there is documentary evidence 
tending to corroborate it. The jury would have been unwarranted 
in finding the fact otherwise. The court instructed the jury that, 
under the law at the time said note was given, "any person 
receiving, retaining, or contracting for any higher rate of interest 
than 12 per cent, per annum forfeits all the interest so taken, 
received, retained, or contracted for, and when the note is sued 
on the plaintiff can recover only the principal." Under this 
instruction the jury could consider that note as for $465.65, and 
no more. The small notes amounted to $319.60, making a total 
of $785.25 to be paid without reference to the cash advances. 
The indorsement on the note made by Whited & Johnson 
amounts (interest and principal indorsed separately) to $245.50. 
It is undisputed that the wheat checks delivered by respondent 
to Whited & Johnson at and prior to the making of such indorse- 
ment sold for $397. A part of the indorsement on the note at 
that time reads, "Balance wheat for atty. fee, Eaton suit, as per 
contract," and there was evidence that Mr. Whited at one time 
sfcted as attorney for respondent in a suit with one Eaton. But 
respondent testified that he owed Mr. Whited nothing at that 
time as attorney's fees, or in any other capacity, and that he 
repeatedly asked to see the note on which the indorsement was 
made, but that his request was always evaded in some manner, 



158 NORTH DAKOTA REPORTS. 

but that Whited & Johnson gave him a receipt for $397 "to 
apply on what he owes on note." This receipt is in evidence. 
The abstract contains nothing to contradict this testimony, and 
the jury must have have allowed respondent credit on this pay- 
ment for $397. The amount of wheat for which the agent of Mr. 
Mears gave respondent receipts, all of which are in evidence, 
figured at the prices which the agent swears he received for the 
respective amounts, makes the further sum of 8439.10; making 
total payments $836.10, or 850.85 in excess of the amount of the 
original note, shorn of its usury, and all the smaller notes. This 
excess more than equals the largest amount of cash advances 
claimed. 

It is thus clear that at the time of the execution of the note of 
April 2nd, 1891, respondent owed E. A. Mears, to whom the note 
was given, and who is president of the appellant bank, nothing; 
and such note is entirely without consideration, unless appellant's 
contention that the court erred in its instruction heretofore 
quoted, as to the effect of usury in the original note, can be sus- 
tained. The instruction given was clearly in harmony with § 3723, 
Comp. Laws 1887, which was in force when the note was given, 
but this section was repealed by Ch. 184, Laws 1890, and hence 
was not in force when this action was tried; and it is urged that 
this repeal wiped out all the penalties and forfeitures under the 
old statute, and left the note to be enforced in its entirety. In 
other words, that neither the penalty prescribed by said § 3723, nor 
by the usury law enacted in 1890, and which repealed the old law, 
could be applied to this particular transaction, and, even if con- 
fessedly usurious under either or both statutes, still there is no 
remedy left for the enforcement of the consequences of such 
usury. That the repeal of a statute penal in its nature, without a 
saving clause, operates to absolutely extinguish all penaltie? 
under such law, is, we think, quite well settled. See Ewell v. 
Daggs, 108 U. S. 143, 2 Sup. Ct. Rep. 408, and cases there cited. 
But this rule of law has been abrogated by a general provision 
in this state. Section 4767, Comp. Laws, reads: "The repeal of 



NATIONAL BANK V. LEMKE. 1 59 

any statute by the legislative assembly shall not have the effect 
to release or extinguish any penalty, forfeiture, or liability 
incurred under such statute, unless the repealing act shall so 
expressly provide; and such statute shall be treated as still 
remaining in force, for the purpose of sustaining any proper 
action or prosecution for the enforcement of such penalty, for- 
feiture, or liability." Other states have substantially this same 
provision. For a construction of the Indiana statute, see W:U. 
Tel. Co. V. Broivn, io8 Ind. 538, 8 N. E. Rep. 171. For Missouri 
statute, s^c. State v. Kansas City, etc., R. Co., 32 Fed. Rep. 722. 
For Kentucky statute, see Com. v. Sherman, 85 Ky. 686, 4 S. W. 
Rep. 790. In each of these cases the court enforces a penalty 
incurred under a statute that had been repealed prior to the 
time of the trial. The repealing statute of this state passed 
in 1890 is silent as to the penalties incurred under the former 
law. Hence, under this plain provision of § 4767, Conip. Laws, 
appellant is not relieved from that penalty. 

On the question of payment, the court instructed the jury that, 
if they found that payments were made in wheat, they should 
allow respondent the highest market price from the time of 
delivery to the time of trial. This was clearly error. The court 
had in mind a rule sometimes applied in cases of conversion, but 
clearly foreign to this case. Appellant insists that for this error 
the case must be reversed. When an erroneous instruction is given 
an immediate presumption of prejudice arises, and the case 
must be reversed, unless it is clear that such error, under the 
facts, could have worked no prejudice to the complaining party. 
McKay v. Leonard, 17 Iowa, 569; Hook, Adm'rw. Craghead, 35 Mo. 
-^^o. Freeman v. Rankins, 21 Me. 446, Haync, New Trials, § 287, 
and cases cited. It is equally certain that when the error could 
work no injury to the complaining party the case will not be 
reversed by reason thereof. See last citations. In the statement 
of facts as heretofore made, we have cither taken facts about 
which there was no dispute in the testimony, and which the jury 
were bound to accept as true, or wc have in every case taken 



l60 NORTH DAKOTA REPORTS. 

appellant's amounts and computations; and yet as we have seen, 
the payments exceeded all legal demands. It is clear that the 
error could work no injury to appellant. 

The defense of duress is pleaded, and much of appellant's 
brief is devoted to that subject, but, as the case must be affirmed 
by reason of the total want of consideration for the note secured 
by the mortgage under which appellant claims the property, the 
question of duress becomes immaterial. 

Affirmed. All concur. 

(54 N. W. Rep. 919.) 



Helene Wessel vs. D. S. B. Johnston Land & Mortg.age Co. 

Opinion 5Ied March 8th, 1893. 

Redemption from Foreclosure Sale — Voluntary Payment. 

Where a party in possession, and with full knowledge of all the facts, pays 
to the proper officer the money necessary to redeem certain real estate from a 
foreclorure sale by advertisement, which sale was made after the lien of the 
mortgage had iMsen fully satisfied and destroyed, and where such payment is 
made for the sole purpose of preventing the execution of a deed to the pur- 
chaser at the foreclosure sale, which would create an apparent cloud upon the 
title, such payment is voluntary, and cannot be recovered. 

Payment Under Protest Unavailing. 

That a payment was made under protest is of no avail, unless there was 
duress or coercion of some character, and then its only office is to show that 
such payment was made by reason of such duress or coercion. Protest can 
never make that involuntary which in its absence would be voluntary. 

Appeal from District Court, Richland County; Lauder, J. 
Reversed. 

McCuTnbcr & Bogart, for appellant. 

W. E. Purcelly and Z. B, Evcrdcll, for respondent. 

Bartholomew, C. J. Action by Hclene Wessel, the respon- 
dent, to recover certain money paid by her to redeem certain real 
estate owned by her from foreclosure sale under a power of sale 



WESSEL V, D. S. B. JOHNSTON LAND & MORT. CO. l6l 

contained in a mortgage executed by her to the D. S. B. Johnston 
Land & Mortgage Company, the defendant and appellant. Trial 
to a jury. Verdict for plaintiff. Motion for a new trial denied 
and defendant appeals. 

When the case was called for trial the appellant, by motion, 
asked to have the case dismissed because the complaint did not 
state facts sufficient to constitute a cause of action, and because 
the action was improperly brought, and also moved by judgment 
on the pleadings. An exception was taken to an adverse ruling 
on these motions. The central idea upon which these motions 
were based was that the money sought to be recovered was volun- 
tarily paid by respondent. The complaint showed that on 
November 13th 1886, respondent executed to appellant her prom- 
issory note for $54, payable in six equal semiannual payments, of 
$9 each, and secured the same by mortgage on real estate. It 
avers payment of the first five payments as they became due, and 
tender of tg on the last payment at appellant's office, in St. Paul, 
Minn., where the note was, by its terms, payable; that such tender 
was refused, and the amount deposited, subject to the order of 
appellant, in the First National Bank of St. Paul, where it has 
since remained. Avers the subsequent foreclosure of said mort- 
gage by advertisement under the claim of $23.98 due thereon, and 
the sale of the real estate by the sheriff to appellant for said 
amount, with interest and costs of foreclosure; that respondent 
had no actual knowledge of such foreclosure proceedings and 
sale until about three months before the expiration of the term 
for redemption, and that prior to the expiration of said time, and 
to prevent the execution of a sheriff's deed to said realty, respon- 
dent paid to the sheriff the amount necessary to redeem from 
such sale. The payment was accompanied by a written protest. 

Under these circumstances, was the payment voluntary, or was 

it under legal duress? We think the answer must be that it was 

voluntary. There is no claim that such payment was made under 

any mistake of facts. The facts were all known and understood, 

N. D. R. — II. 



1 62 NORTH DAKOTA REPORTS. 

and under the allegations the lien of the mortgage was entirely 
destroyed when tender of the last payment was made. Immedi- 
ately upon the refusal thereof, — which was well known to 
respondent, — she might have brought her action in equity against 
appellant, and compelled a satisfaction of the mortgage of record. 
This right she failed to exercise. The subsequent sale under the 
foreclosure was made to the mortgagee, who, if such were the 
fact, had full knowledge that the lien of the mortgage had been 
extinguished by tender of the full amount due thereon, and that 
the power of sale contained therein was no longer operative. 
Under these circumstances, nothing passed to the mortgagee by 
virtue of such sale. A sheriff's deed to appellant, based upon 
such sale, would be of no effect to divest respondent's title. She 
. was in possession, and no action by appellant could disturb that 
possession. Further, she had actual knowledge of the foreclosure 
proceedings three months before the time for redemption expired. 
The appellant continued to hold the certificate until the expira- 
tion of the redemption period, and was, according to the com- 
plaint, *'^about to apply for a sheriff's deed of said premises, by 
virtue of said pretended foreclosure and sale." At any time 
during the three months that she had knowledge of the sale, and 
prior to the expiration of the time for redemption, an application 
to the proper court would have resulted in a perpetual injunction 
against the execution of the deed. After the execution of the 
deed, she might have maintained an action to remove the appar- 
ent cloud created thereby. There is no allegation that appellant 
was threatening or intending to transfer the certificate or convey 
the land after receiving the deed. Without intimating whether 
or not it would have been in the power of appellant to prejudice 
respondent's, rights by any such transfer to a bona fide purchaser, 
it is sufficient to say that in either case the filing of a lis pendetis 
would have afforded her complete protection. The same testi- 
mony that would establish, in the case at bar, that the money 
sought to be recovered was paid upon an unjust claim, would 
have enabled respondent to succeed in either of the actions above 



WESSEL V. D. S. B. JOHNSTON LAND & MORT. CO. 163 

indicated. No case can be found wherein the party had so ample 
opportunity to litigate, and yet elected to pay, in which the pay- 
ment was held to be involuntary. There is no allegation or sug- 
gestion of any immediate or special damage to her by reason of 
the cloud upon her title that would have been created by the 
deed. The only circumstance relied upon to constitute legal 
duress is the fact that, had respondent suffered the deed to issue, 
the whole value of the land would have been risked upon the 
successful termination of the litigation, instead of the small 
amount required to redeem. We are sure no case can be found 
wherein that circumstance, alone, has been held to render a pay- 
ment involuntary. With the reasoning of the well considered 
case oi Joannin v. Ogilvie, (Minn.) 52 N. W. Rep. 217, chiefly 
relied upon by counsel for respondent, we fully agree. It may be 
that the application of the reasoning to the facts in that case 
carried the court as far as any decided case has gone, but a mere 
statement of the facts will show their radical difference from the 
facts in the case at bar. There a party had placed an unfolded 
mechanic's lien upon certain realty. There was a prior mortgage 
upon the property, which was due, and foreclosure proceedings 
were threatened. The only resource of the owner for raising 
money to meet such mortgage was by placing another mortgage 
upon the land. This he could not do while the mechanic's lien 
remained of record. He paid the unfounded claim under protest, 
and was allowed to recover the money. There was an immediate, 
special, and irreparable injury, by reason of the cloud, that could 
not tolerate the delay incident to its removal by an action in 
equity. The case of Panton v. Water Co., Id. 527, was decided 
upon the same principle. In Shane v. City of St, Paid, 26 Minn. 
543, 6 N. W. Rep. 349, the defendant was about to issue a tax 
deed to certain land belonging to plaintiff, upon a tax sale certi- 
ficate. The sale had been made in pursuance of a judgment void 
upon its face. The deed, when issued, would be prima facie evi- 
dence of title, and would constitute a cloud upon plaintiff's title. 
He redeemed from the tax sale, under protest, and sought to 



1 64 NORTH DAKOTA REPORTS. 

recover back the, money so paid. A recovery was denied. The 
plaintiff was in possession, and the court said: "The execution 
and delivery of the tax deed in accordance with the alleged 
threat could work no disturbance to that possession, for, being 
founded upon a judgment void upon its face, its invalidity could 
always been shown, to defeat any claims that might be at any time 
asserted under it. There was therefore no necessity for plaintiff 
to make any redemption in order to protect his possession of the 
property. Neither was he required to do so to avoid any injuri- 
ous consequences which might arise by reason of the apparent 
cloud which might J>e cast upon his title, for upon the facts stated 
he had a perfect and adequate remedy by action for the removal 
of such apparent cloud, whenever created." 

We deem it a well settled rule of law that where a party, with 
full knowledge of the facts, pays a demand that is unjustly made 
against him, and to which he has a valid defense, and where no 
special damage or irreparable loss would be incurred by making 
such defense, and where there is no claim of fraud upon the part 
of the party making such claim, and the payment is not neces- 
sary to obtain the possession of the property wrongfully withheld, 
or the release of his person, such payment is voluntary, and cannot 
be recovered. Nor will the fact that such payment was accom- 
panied by a protest make that involuntary which otherwise would 
be voluntary. A protest is of no avail unless there be 'duress 
or coercion of some character, and then its only office is to show 
that the payment is the consequence of such duress or coercion. 
Befison v. Monroe, 7 Cush. 125; Comndssioners v. Walker^ 8 Kan. 
431; Emmons v. Scudder, 115 Mass. 367; Lester v. Mayor, etc., 29 
Md. 415; Potomac Coal Co, v. Cumberland & P. R, Co., 38 Md. 226; 
Gerecke v. Campbell, 24 Neb. 306, 38 N. W. Rep. 847; Mariposa Co, 
V. Bowman, Deady, 228; Lamborti v. Commissioners, 97 U. S. 181; 
Powell V. Board, 46 Wis. 210, 50 N. W. Rep. 1013. The District 
Court is directed to reverse the judgment in this case, and enter 
judgment for the defendant on the pleadings. All concur. 

(54 N. W. Rep. 922.) 



r 



plano manufacturing co. v. root. 165 

Plano Manufacturing Co. vs. William Root. 

opinion filed March 15th, 1893. 

Breach of Warranty— Burden of Proof. 

Written contract construed, and heid^ to constitute an agreement for sale and 
purchase of property, the title to pass on delivery and acceptance thereof. 
After such delivery and acceptance the purchaser cannot claim, in an action for 
the purchase price, that the burden is on the vendor to show that the property 
was as warranted. The warranty is collateral, and the purchaser must affirma- 
tively show a breach thereof, and full performance of all conditions precedent 
of the warranty, to entitle him to rescind and defeat the action. * 

Declarations of Agent— Incompetent Proof of Agency. 

The fact of agency and the extent of an agent^s power cannot be proved by 
the agent's declarations. 

Authority in Writing— Excludes Parol Proof. 

The scope of an agent's authority cannot be established by parol when the 
employment of the agent defining his power is in writing. 

Prior Negotiations Inadmissabie. 

The rule excludfbg all prior and contemporaneous negotiations when a con- 
tract is reduced to writing htid applicable to the facts of this case. 

Appeal from District Court, Richland County; Lauder,]. 

Action by the Piano Manufacturing Company against William 
Root. Plaintiff had judgment, by direction of the court, and 
defendant appeals. 

Affirmed.' 

McCumber & Bogart, for appellant. 

Plaintiff sued upon a written contract. By the terms of its 
warranty it was incumbent upon the plaintiff to furnish the defen- 
dant a machine that was well made, of good material and with 
proper care and management, capable of doing as good work as 
any other machine on the market. 

The basis of plaintiff's action being upon a contract, it was 
necessary for it to show that it had complied with the terms 
of the contract, and this before it could put the defendant on his 
defense. When plaintiff closed its case it had not shown compli- 
ance with its contract; therefore defendant's motion for a directed 



l66 NORTH DAKOTA REPORTS. 

verdict, should have been allowed. /. /. Case Threshing Machine 
Co, V. Smithy i8 Pac. 641 ; Fairfield v. Madison Mfg, Co, 38 Wis. 346. 
W. E. Ptircell and L. B, Everdell, for respondent. 

This is not an action to enforce an executor>'^ contract of sale, 
nor for damages for breach of such contract but for purchase 
money on an executed sale. Fisliback v. VanDuseii, 22 N. W. Rep. 
244; Warden v. Fisher, 4 N. W. Rep. 470; Jcnkinson v. Monroe Bros,, 
44 N. W Rep. 1 113; Smith v. Whitfield, 2 S. VV. Rep. 822. Where 
the authority and power of an agent is in writing, the writing is the 
best evidence. Reise v. Medlock, 84 Am. t)ec. 61 1 ; Cohimbia Bridge 
Co. V. Geise, 38 N. J. L. 39; Meachcm on Agency § 103. 

Corliss, J. The action was brought to recover the purchase 
price of a binder sold by plaintiff to defendant. On the trial a 
verdict was directed for the plaintiff. Defendant appeals. The 
order for the binder was in writing. It constituted the con- 
tract between the parties. It, in substance, authorizes and 
requests an agent of the plaintiff's to procure for defendant a 
harvester and binder, describing it, for which defendant agrees to 
pay $120 in addition to freight, etc., on delivery of the property. 
The order then continues as follows: *'I understand that the 
machine referred to is sold, and that I am purchasing the same 
subject to the following warranty and agreement, and that the 
agent above named, as well as the person to whom 1 deliver this 
instrument, has no authority to add to, abridge, or to change said 
warranty in any manner. The warranty is as follows, to-wit: 
The warranty referred to states that the binder is well made of 
good materials, and with proper care and management is capable 
of doing as good work as any other machine in the market. 
Other provisions of the warranty will be referred to later. The 
execution of this order, and the delivery of the machine there- 
under, were admitted. 

Plaintiff having rested without proving that the binder was well 

made of good materials, and was capable of doing as good work 

« 
as any other machine in the market, defendant moved to dismiss, 



r 



PLANO MANUFACTURING CO. V. ROOT. 167 

on the ground that plaintiff had failed to establish performance 
of conditions precedent to recovery. We cannot assent to his 
interpretation of the contract. It was a contract of sale and pur- 
chasCf with a collateral agreement constituting a warranty. The 
burden was on defendant to show a breach of the warranty; and 
even then he could not defeat the action without showir^g that he 
had complied with the conditions of the warranty to be performed 
on his part, and had rescinded the contract, or had sustained 
damages by reason of such breach of warranty equal to or exceed- 
ing plaintiff's claim. The parties intended that the title to the 
property should pass on delivery. The defendant states in the 
order signed by himself that he understood that the machine is sold, 
and that he is purchasing it subject to the following warranties, 
etc. The defendant did not agree to buy if certain conditions 
were fulfilled. He agreed to purchase a certain machine, and, 
when it had been delivered to and accepted by him, he was 
obliged thereafter to rdy upon the warranty as any other pur- 
chaser of property. He must perform its conditions. He must 
either rescind or claim damages for breach. On the trial defen- 
dant asked leave to amend his answer by alleging, in substance, 
that, at the time he executed and delivered this order, one 
Parsons, general agent of the plaintiff, agreed with defendant 
that, if the machine did not do good, work, defendant need not 
keep.it, and that such agent informed defendant at the same time 
that defendant would not be bound by the terms of the written 
order. This request was denied. In this there was no error. 
Defendant could not vary by parol the terms of the written con- 
tract. This talk was contemporaneous with the execution of the 
writing, and it would violate all rules of evidence to allow defendant 
to contradict the solemn agreement of the parties in this manner. 
It was not error to refuse to permit defendant to plead what he 
would not be suffered to prove. The defendant himself stated on 
the stand that he could not tell when he had such a conversation 
with Parsons, whether before or after the execution of the con- 
tract, and that he could not say that this alleged talk was after 



l68 NORTH DAKOTA REPORTS. 

the signing of the written agreement. Parsons himself was not 
asked anything about such a conversation. There was therefore 
not competent evidence of a contract independent of the writing. 
All prior and contemporaneous negotiations and talks were 
merged in the written agreement. There was no attempt to prove 
any subsequent modification of the written instrument, or the 
making of a new contract after the execution of the original 
order. Whether, therefore, Parsons was or was not general agent 
is entirely immaterial. We think, however, the court did not err . 
in excluding the inquiries as to the scope of his powers. It was 
undisputed that his employment was in writing, and an attempt 
was made to prove the loss of this writing which defined the 
extent of Parsons' powers as agent. What authority he possessed 
could be proved only by the best evidence. Defendant's whole 
contention that the written contract was modified by an oral 
agreement with Parsons rests upon the hypothesis that Parsons 
was general agent. It is apparent from th^ record that he was 
not, but, on the contrary, occupied a very subordinate position in 
the employ of plaintiff. The order contains a statement that 
plaintiff understands that the agent, Parsons, has no authority to 
add to, abridge, or change the warranty in any manner. Unless he 
was a general agent, there could be no pretense that Parsons could 
alter the conditions of this warranty in the face of this explicit 
provision. The defendant has made these contentions because it 
is apparent that he has not complied with a material provision of 
the written warranty, nor has there been a waiver thereof, and he 
must therefore suffer defeat if he is forced to stand upon the 
written instrument. The warranty expressly requires the defendant 
to give written notice, stating wherein the machine is defective, 
to the agent from whom it is received, and also to the "Piano 
Mfg. Co., at Chicago, 111." Such notice was never given. It was 
not waived. There was therefore no defense to the action, 
although there may have been a breach of the warranty. Defen- 
dant cannot take advantage of such breach for the purpose of 
recovering damages, or of rescinding the sale, unless he has 



PLANO MANUFACTURING CO. V, ROOT. 169 

performed the conditions which the warranty imposed upon him. 
The breach of the warranty, followed by a return of the property, 
constituted no defense, because the plaintiff warranted the 
machine on the condition that defendant should give it notice of 
the breach at its head office, and this condition was not performed 
by defendant. The contract does not give the defendant the 
unrestricted right to rescind in case the machine fails to com- 
ply with the terms of the warranty. After written notice the 
company is to have a chance to remedy the defect; arid then, if it 
will not do good work, the defendant has for the first time a right 
to return the machine. Even then he cannot insist that he should 
have back his money or his notes, or treat the contract as ended 
and his liability as extinguished. The company has the option 
^to agree to this, or to furnish a new machine in the place of the 
defective one. There was no error in excluding the offer to 
prove by defendant Parson's declarations that he was plaintiff's 
general agent. It was mere heresay. Ah agent's powers or the 
fact of agency cannot be established by the agent's own declara- 
tions. Such evidence was not competent to impeach the witness 
Parsons, because no foundation for impeachment had been laid, 
and, being defendant's own witness, he could not be impeached 
by defendant. There was no question of fraud in the case. 
Fraud was not set up in the answer. No such question was raised 
upon the trial. It is too late to urge it here for the first time, 
not was there any evidence of fraud. The judgment of the 
District Court is affirmed. All concur. 
(54 N. W. Rep. 924.) 



170 NORTH DAKOTA REPORTS. 

Edwards & McCulloch Lumber Co. vs. L. P. Baker. 

Opinion filed April 25th, 1893. 

Bill of Exceptions — Settlement and Signing. 

After a trial judge has decided and announced what shall be embodied in a 
bill of exceptions, it is not his duty to engross the bill in accordance with his 
decision, and he cannot l^e said to have neglected to settle such bill unless he 
neglects to sign the bill after it is presented to him for signature, engrossed as 
settled by him. 

Appeal from District Court, Richland County; Lauder, J. 

Action by the Edwards & McCulloch Lumber Company against 
L. P. Baker. Defendant moved to dismiss an appeal taken by 
plaintiff. Motion allowed. 

McCumber & Bogart, for appellant. 

W. E. Purcell and Z.. R. Everdell, for respondent. 

Corliss, J. The motion to dismiss the appeal, we think, must 
be granted. The appeal was taken too late, unless the appellant has 
brought himself within the provisions of an act approved January 
9th, 1893, providing, in substance, that when a bill of exceptions is 
submitted to a judge for settlement within 60 days after service 
of written notice of an order, and at least 8 days before the 
expiration of such period of 60 days, and the judge neglects to 
settle the bill within such period of 60 days, the party appealing 
may have 30 days after the settlement of such bill in which to 
appeal. The burden is, of course lipon the appellant to bring 
himself clearly within this exception. The question is jurisdic- 
tional, and cannot be left in doubt. It appears from the affidavits 
of several persons, including that of the trial judge, that before 
the 60 days had expired he had decided what should be embodied 
in the bill, and had so informed appellant's counsel. At that 
time the bill, as so settled, had not been engrossed. It is not the 
duty of the trial judge to do this. He is to take the proposed 
bill and the amendments, and determine what the bill shall con- 
tain; and it is then his duty to sign the bill, as settled, when it is 



EDWARDS & MC CULLOCH LUMBER CO. V. BAKER. I7I 

engrossed and submitted to him for signature. Haynes, New 
Trials & App. § 156. It further appears from some of the affida- 
vits that the judge informed appellant's counsel that he was ready 
to sign the bill, as settled, any time it should be put in form and 
submitted to him, and that appellant's counsel expressed dissatis- 
faction with the ruling of the judge as to the matters to be 
embodied in the bill, and intimated that he would apply to the 
Supreme Court to have the bill settled. If these facts are true, 
the trial judge did not neglect to settle the bill within the 60 days. 
They are, in the main, controverted. We do not believe that 
there is any intentional misstatement of fact on either side. We 
simply hold that there is a failure to make out, by a preponder- 
ance of proof, that the case falls within the exception, and* the 
general rule regulating the time in which to appeal from an order 
must therefore govern. The appeal having been taken too late, 
the motion to dismiss is granted. All concur. 
(54 N. W. Rep. 1026.) 



172 north dakota reports. 

William McCann vs. Mortgage, Bank & Investment Co.; David 
Williamson vs. Mortgage, Bank & Investment Co.; Thomas 
Halvorson. 2/j. Mortgage, Bank & Investment Co. 

Opinion filed March 13th, 1893. 

Foreclosure by Advertisement—Enjoined. 

The powers embraced in the proviso of g 541 1, Comp. Laws, regulating fore- 
closures of mortgages by advertisement, construed. ^A/, that the several orders 
made by the Judge of the District Court in the above entitled matters, directing 
the discontinuance of foreclosure proceedings by advertisement, and requiring 
that the further foreclosure proceedings of said mortgages be had in court, are 
valid orders; the same being based in each case upon an affidavit which was 
satisfactory to the judge who made the order, and which also set out such facts 
' as are required by said proviso to be embodied in such affidavits. 

Foreclosure by Action— Cumulative ' Remedy. 

//>/</, further, that the proceeding in which the above entitled matters origin- 
ated is, considered as a remedy, merely cumulative, and the same is not to be 
classed with, or regulated by, the principles of law and rules of practice which 
obtain in civil actions in which equitable relief by injunction is sought. 

Discretionary Power of Court. 

J/Mf further, that the proviso contained in § 5411* supra^ is intended to 
confer upon Judges of the District Courts certain authority, to be exercised at 
their discretion, %nd such descretion is nonreviewable, except in cases of abuse, 
and that the several records herein fail to present a case of abuse of discretion. 

Repeal of Usury Law — Forfeiture Not Extinguished. 

Held, further, that the usury statute embraced in Ch. 70, Laws 1889, was, 
without a saving clause, repealed by § 12, Ch. 184, Laws 1890; but such rei)eal 
does not operate to extinguish any (penalty, forfeiture, or liability incurred 
under the act of 1889. Section 4767, Comp. Laws. 

Appeals from District Court, Bottineau County; Morgan, J. 

Affirmed. 

The facts fully appear in the following statement by Wallin, J. 

An appeal to this court is taken in each of the above entitled 
matters by the Mortgage, Bank & Investment Company, which 
company is the mortgagee in all of the above mentioned mort- 
gages. The several appeals are from orders of the District Court 
for Bottineau County, denying appellant's application to set aside 
previous orders made by the judge of said court. The opinion 



WM. MC CANN V, MORTGAGE, BANK & INV. CO. 1 73 

below is based upon the record in the McCann appeal, but the 
controlling facts and governing principles of law are common tq 
all of the cases, and hence a single opinion will suffice for all. 

A. S, Dtake, for appellant. 

E, A, Maglone and Ball & Watson, for respondents. 

Wallin, J., (after stating the facts as above.) This proceeding 
originated under the proviso embraced in §5411, Comp. Laws, 
regulating foreclosures of mortgages by advertisement. The pro- 
viso is as follows: "Provided, that when the mortgagee or his assi- 
gnee has commenced procedure by advertisement, and it shall be 
made to appear by affidavit of the mortgagor, his agent or attorney, 
to the satisfaction of the Judge of the District Court of the county 
where the mortgaged property is situated, that the mortgagor has 
a legal counterclaim, or any other valid defense, against the col- 
lection of the whole or any part of the amount claimed to be due 
on such mortgage, such judge may, by an order to that effect, 
enjoin the mortgagee or his assignee from foreclosing such mort- 
gage by advertisement, and direct that all further proceedings for 
the foreclosure be had in the District Court properly having 
jurisdiction of the subject matter; and, for the purpose of carry- 
ing out the provisions of this act, service may be had upon the 
attorney or agent of the mortgagee or assignee." On the 25th 
day of September A. D. 1891, William McCann, the respondent, 
presented to the Judge of the Second Judicial District Court of 
North Dakota his affidavit, which after the title and venue is as 
follows: 

"William McCann, being duly sworn, deposes and says that he 
is the mortgagor mentioned and described in the annexed notice 
of mortgage sale, which said notice, hereto annexed, marked 
•Exhit A,' and made a part of this affidavit. Deponent further 
says that he has a legal counterclaim, valid defense, against the 
collection of the mortgage, and the amount claimed therein to be 
due thereon; that the sum, 886.43, claimed in said notice to be 
due on said mortgage is, as deponent is informed and verily 



174 NORTH DAKOTA REPORTS. 

believes, for interest on the sum of $600.00, secured by said mort- 
gage; that deponent on the loth day of February, i8go, made, 
executed, and delivered to Mortgage, Bank & Investment Com- 
pany his promissory note for the sum of $600.00, with interest at 
the rate of 9 per cent, per annum, and to secure the payment of 
said sum, deponent, at said time and place, executed the mort- 
gage described in said Exhibit A; that deponent received only the 
sum of $335; that the balanxre of said sum of $600.00, to-wit: the 
sum of $265, together with a chattel mortgage for $140.00 and 
note for same; was kept and retained by said Mortgage, Bank & 
Investment Company as a bonus or usury, and deponent never 
received any consideration or benefit therefrom, whatever; that 
said Exhibit A is taken from the North Dakota Eagle, a 
newspaper printed and published at Willow City, Bottineau 
County, N. D.; that said Mortgage, Bank & Investment Company 
threatens to foreclose said mortgage by advertisement, and sell 
the premises therein described, on October 15th, A. D. 1891, at 
2 o*clock p. M., at Willow City, Bottineau County, N. D.; that 
deponent fears said mortgagee will so sell said premises at said time 
and place unless restrained therefrom by an order from the Judge 
of the District Court of Bottineau County, N. D. Deponent 
further says that he is the owner of the premises in said Exhibit A 
described. Wherefore, deponent prays that the honorable Judge 
of the District Court of Bottineau County, N. D., may, by an 
order to that effect, enjoin the mortgagee, or its assignee, agent, 
attorney, or servants, from foreclosing said mortgage by adver- 
tisement, and direct that all further proceedings for the foreclosure 
thereof be had in the District Court of Bottineau County, N. D.; 
the same being the county wherein said premises are situated. 
Wm. McCann. 

"Subscribed and sworn to before me this 25th day of Septem- 
ber, 1891. Jacob Schroeder, Notary Public. [Seal."] 

"Exhibit A. Default existing in a contract and mortgage 
executed by William McCann on February loth, 1890, to Mort- 
gage, Bank & Investment Company, on the west yi of northeast 



r 



WM. MC CANN V, MORTGAGE, BANK & INV. CO. 1 75 

}^ and east J4 of northwest % of section 15, township 160, range 
74, in Bottineau County, North Dakota, now due on said contract 
and mortgage, — ^$86.43, — therefore, said land will be sold at the 
front door of the post-office in Willow City, in said county and 
state, on October 15th, A. D. 189 1, at 2 o'clock p. m., under said 
mortgage. September ist, 1891, A. S. Drake, Attorney, 
Fargo, N. D." 

Whereupon, on the 30th day of September, A. D. 1891, the 
Judge of said District Court made an order as follows: "Ordered, 
that said Mortgage, Bank & Investment Company, and their 
attorney A. S. Drake, and all their agents, servants, attorneys, 
and employes, be, and they hereby are, enjoined and restrained 
from foreclosing said mortgage by advertisement, and they, each 
and all of them, are further ordered and directed that all further 
proceedings for the foreclosure of said mortgage be had in the 
District Court.of Bottineau County, N. D., that being the county 
wherein said premises are situated, and the court properly having 
jurisdiction thereof," — which affidavit and order were served upon 
the Mortgage, Bank & Investment Company prior to the hour of 
sale, as stated in the published notice of sale. At a term of the 
District Court for Bottineau County, held in May, 1892, upon due 
notice, the Mortgage, Bank & Investment Company moved in 
open court for an order vacating and setting aside the before ^ 
mentioned order made by the judge of said court. After hear- 
ing counsel on both sides, the application to vacate was denied, 
to which ruling the moving party saved an exception; and the 
order and exception, together with all of the papers in the pro- 
ceeding, were brought upon the record, and made a part thereof, 
by the direction of the District Court. The Mortgage, Bartk & 
Investment Company have appealed to this court from the order 
of the trial court refusing to vacate the original order made by 
the judge of said court. The motion to vacate was not supported 
by affidavits offered by the mortgagee, but was based wholly 
upon the affidavit of McCann, as presented to the judge on the 
application for the order, and upon the order made by the judge. 



176 NORTH DAKOTA REPORTS. 

In this court, appellant assigns only the following errors: ''First, 
The judge erred in issuing said injunction. Second, The court erred 
in overruling appellant's'motion to dissolve said injunction, for the 
reasons {a) that no fact or facts appear in support of said injunc- 
tion, which could in any manner constitute a valid defense or 
legal counterclaim against the collection of the whole, or any 
part, of the amount claimed by appellant to be due in its notice 
of sale on the mortgage described in the notice of sale mentioned 
by respondent in his affidavit for the injunction; {b) that it does 
not appear in support of the said injunction that such proceed- 
ings have been begiin by appellant, or by any person or persons 
in its behalf, as would, if carried forward to completion, foreclose 
the said William McCann of his equity of redemption in the land 
in question." 

We are clear that these assignments of error are untenable, 
and hence must be overruled. An inspection of the affidavit of 
McCann, the mortgagor, discloses that it embraces all facts which 
the statute requires to be stated as a basis for an application for a 
judge's order of the character in qttestion. It sufficiently appeared 
by the affidavit that the mortgagee had instituted a mortgage 
foreclosure proceeding by advertisement, and also that the mort- 
gagor had a "valid defense" against the collection of the whole of 
the ''amount claimed to be due on such mortgage." These gen- 
eral averments, if satisfactory to the judge who made the 
order, would be alone sufficient, to authorize the judge, at his 
discretion, to make the order. But the affidavit goes into detail, 
and sets out specific facts which tend to show that the sum claimed 
to be due upon the mortgage was claimed as interest, and that 
no interest was due upon the note secured by the mortgage in 
question, by reason of usury, with which it appeared, prima facie, 
the transaction was tainted. The proceeding is wholly statutory, 
and there is no requirement that the affidavit made in behalf of a 
mortgagor shall be couched in any specific terms, nor that it shall 
be framed under the strict rules governing the pleader in franjing 
the pleadings in an action. All that is required is that the facts 



MC CANN V, MORTGAGE, BANK & INV. CO. \^^ 

enumerated in the statute shall be set out in the affidavit in such 
manner and form as will satisfy the judge to whom the affidavit 
is presented. Being satisfied with the affidavit, the judge may 
make the order. We think the statute is not intended to be man- 
datory, but is, on the contrary, intended to clothe the Judge of 
the District Court with a pure discretion, which, unless abused, 
cannot be reviewed in an appellate court. We see no such abuse 
in this case. Elliott, App. Proc. § § 597, 605. 

Counsel claims, in effect, that the note and mortgage which 
were given in February, 1890, are wholly exempt from the opera- 
tion of any usury law, even though illegal interest was exacted in 
the note and mortgage transaction. The claim is that the 
usury law of 1889, which is embraced in Ch. 70, Laws 1889, 
and which was in force when the note and mortgage were 
executed, does not govern the note and mortgage, because, 
as is claimed, the law of 1890, found in Ch. 184, Laws 1890, with- 
out a saving clause, expressly repealed all pre-existing usury 
laws of this state. Referring to the defense of usury, as stated in 
the affidavit of the mortgagor, counsel for appellant uses the fol- 
lowing language in his brief: "This supposed defense would have 
been proper, were it not for such repeal, but he is no longer per- 
mitted to set up such defense to his contract made while the old 
usury law was is in existence." It is true that the usury law of 
1890 operated to repeal the usury statute enacted in 1889, but the 
question lying in the background is this: Does such repeal 
operate to extinguish any penalty or forfeiture which under the 
old law had attached to a usurious transaction, had while the old 
law was yet in force? We think this question is decisively 
answered in the negative by § 4767, Comp. Laws, as follows: 
"The repeal of any statute by the legislative assembly shall not 
have the effect to release or extinguish any penalty, forfeiture or 
liability incurred under such statute, unless the repealing act shall 
so expressly provide, and such statute shall be treated as still 
remaining in force for the purpose of sustaining any proper action 

N. D. R. — 12. 



178 NORTH DAKOTA REPORTS. 

or prosecution for the enforcement of such penalty, forfeiture, or 
liability." This section constitutes § 2133 of the Civil Code, and 
was enacted by the territorial assembly on February i6th, 1877. 
It follows that such section has, under a provision of the state 
constitution, become incorporated* with the laws of this state. 
Counsel is in error in his claim that § 4767 never was enacted by 
the territorial legislature. The repealing act (§ 12, Ch. 184, 
Laws 1890) is as follows: "All acts and parts of acts in conflict 
with the provisions of this act are hereby repealed." This lang- 
uage does not provide, expressly or otherwise for the extinguish- 
ment of penalties or forfeitures which may have been incurred 
under a former law. Hence, such penalties and forfeitures, if 
any, are, under § 4767, enforceable, notwithstanding such repeal. 
The court so held in a decision rendered at this term, Bank v. 
Lemke, 54 N. W. Rep. 919. The penalty of the law of 1889 for 
usury, which was the law in force when the note and mortgage 
were executed, was a forfeiture of all interest "contracted to be 
received." Chapter 70, Laws 1889. It follows that the affidavit 
used as a^basis of the order embodied facts tending to establish 
a valid defense to the claim for interest which was sought to be 
enforced by the foreclosure proceeding. The following authori- 
ties are in point, and fully sustain the construction we have 
placed upon § 4767, Comp. Laws; V, 5. v. Matthezvs, 23 Fed. 
Rep. 74; U, 5. v. Ulrici, 3 Dill. 532; Com, v. Desmond, 123 
Mass. 407. 

Referring to the assignment of error marked ''by counsel claims 
that the mortgagor's affidavit is insufficient, and "fails to show a 
valid foreclosure proceeding," because it fails to set out the fol- 
lowing facts: ''First, That the mortgage contained any power of 
sale; second, that the mortgage was properly acknowledged; third, 
that the mortgage was properly recorded; fourth, that the title to 
the mortgage showed of record to be in the nime of the party 
foreclosing; fifth, that the first publication of the notice of sale 
was made early enough to give time for the proper number of 
publications; sixth, that the publication of the notice of sale was 



MC CANN V. MORTGAGE, BANK & INV. CO. 1 79 

Still running; seventh, that no proceeding to collect the mortgage 
debt appeared of record; eighth, that the estate of the mortgagee 
has not been merged into an estate by deed of record." These 
objections, quoted from the brief of counsel, may all be met and 
disposed of adversely to the appellant by the statement that the 
statute under which the affidavit is made does not require that 
either or any of the features indicated in the foregoing enumera- 
tion of points shall be embodied or referred to in such affidavit. 
Hence their statement, in whole or in part, would have been 
superfluous, if made in the mortgagee's affidavit. But it may not 
be amiss to state here that, as viewed by this court, the proceed- 
ing under the proviso of the statute in question cannot be assimi- 
lated to. or classed with, the remedy by injunction, as that remedy 
is administered in a civil action in an equity case. It would 
follow from this that the rules of pleading, practice, and proce- 
dure which obtain in civil actions of an equitable nature do .not 
necessarily apply to this proceeding, nor would an appeal, in our 
judgment, lie in this case from the order of court refusing to set 
aside the judge's order under subdivision 3, § 24, Ch. 120, Laws 
1891. The question of the appealability of the order appealed 
from is not discussed by counsel, nor shall wc decisively pass 
upon it here, further that to say that the appeal can be sustained, 
if at all, only as an appeal from "a final order affecting a substan- 
tial right, made in a special proceeding." Subdivision 2 § 24, Id. 
The proceeding in (Question is certainly anomalous, and, so far 
as we have been able to ascertain, is entirely new and novel, in 
the annals of statutory law. Our attention has been called to a 
case which arose under the same-statute in South Dakota, {Bank v. 
Smith, 44 N. W. Rep. 1024,) in which the learned Supreme Court 
of that state has held adversely to our views upon certain inciden- 
tal matters of practice; but we fully indorse the views of the 
court, as expressed in the opinion in that case, as follows: **We 
think the statute contemplated an ex parte application to the 
judge, and nat a trial before him. Issues raised by counter affi- 
davits on the part of the holder of the mortgage might often, as 



l80 NORTH DAKOTA REPORTS. 

in this case, involve the very vitality of the mortgage, or the 
existence of any indebte^iness under it, or the validity of a coun- 
claim or other defense claimed by the mortgagor, — questions 
which the parties interested are entitled to have tried and deter- 
mined by the usual methods of trial, where the testimony offered 
may be sifted, and admitted or excluded, in whole or in part, 
under the established rules of evidence, and where the witnesses 
on either side are subject to the test of cross-examination." In 
our judgment it will follow logically from the reasoning of the 
court in the case cited that the use of rebutting affidavits upon 
a motion to vacate the judge's order is not contemplated by the 
statute. If the facts embodied in the affidavit made by the mort- 
gagor, or in his behalf, cannot be controverted before the judge 
makes his order, we certainly can see no valid reason why the 
controversy should be opened later, and after the foreclosure 
proceeding had been arrested. The entire scope of the statute 
is to clothe the proper Judge of the District Court with authority, 
at his discretion, to act fully and finally in the premises, and to 
take such action upon an ex parte showing. We do not wish to 
be understood, however, as holding or intimating that, if such an . 
order is made improvidently, it cannot be vacated by the judge 
who made it, either upon application rtiade by the mortgagee, or 
upon the judge's own motion; but we do say that in our opinion 
no affidavits can be read upon such application, tending to rebut 
the showing made by the mortgagor as to his alleged defense or 
counterclaim. Such facts are not intended to be litigated by such , 
methods and such machinery as are furnished by the proviso in 
question. This proceeding originates ii), and is limited by, a 
proviso contained in a single section of the statutes which author- 
ize and regulate foreclosures by advertisement. The term of the 
proviso are scanty, and nothing can be discovered in its language 
looking towards any ulterior proceeding to be built upon the 
statute which is not expressly created by the terms employed in 
the statute. Its words are few, and their meaning is obvious. A 
mortgagor who is a layman can easily write out the brief affidavit 



MC CANN %K MORTQAGE, BANK & INV. CO. l8l 

which the statute requires as a foundation for an order, and he 
may present the same to the Judge of the proper District Court, 
and if the order is given the same may be served by the mortga- 
gor himself, and by this simple process a statutory foreclosure 
may be arrested, and the owner of the mortgage required to fore- 
close by action, if at all. Whether so radical a measure is expe- 
dient or not, or, if expedient, whether an amendment should be 
made which would afford protection in the way ^f reimbursement 
to mortgagees in cases where it might turn out, in the action to 
foreclose, that the mortgagor failed to assert or failed to prove 
that he had any counterclaim or defense to the sum sought to be 
collected by the foreclosure by advertisement, are questions which 
appertain wholly to the legislative department of the state 
government, and do not fall within the province of the courts to 
determine. The proviso in question is not assailed on constitu- 
tional grounds, and, under an established rule of construction, we 
have assumed its constitutionality accordingly. No doubt exists 
of the plenary power of the legislature over the subject matter of 
foreclosures of mortgages by advertisement. Such foreclosures 
are purely statutory in their nature and origin. The statute 
creates the proceeding, and determines the conditions upon which 
it may be had. Some mortgages cannot be foreclosed by adver- 
tisement, and others may be upon the terms and conditions laid 
down in the statute; and at present, while we abstain from decid- 
ing the point, we are unable to see why it is not competent for 
the legislature to declare that, upon a certain state of facts being 
made to appear by affidavit to the satisfaction of the Judge of 
District Court of the proper county, such judge should not have 
the discretion to direct that a given mortgage shall be foreclosed 
in court, particulary in cases where the mortgage involved is exe- 
cuted subsequently to the enactment of the statute. In view of 
the novelty of the proceeding, and particularly in view of the 
great number of cases in which it has been resorted to by mort- 
gagors as a means of compelling the foreclosure of their mortga- 
ges by action in court, we have been led into a discussion of some 



1 82 NORTH DAKOTA REPORTS. 

features of the statute which, in strictness, need not have been 
considered, in order to decide this case. We have done so, of 
course, only to aid the profession and the public in utilizing a new 
and peculiar remedy. 

Appellant's counsel attempts to distinguish the above entitled 
case of Thomas Halvorson from the others upon the ground that 
it appears in Halvorson's case that the mortgagor has a purely equit- 
able defense, as against his mortgage, and one which, if main- 
tained in court, would operate to defeat the mortgage entirely, 
and set it aside. Conceding this to be true, the result must be the 
same, because if further appears by the affidavit presented to the 
judge as a basis for the order that *'Thomas Halvorson has a legal 
counterclaim and valid defense to the amount claimed to be due 
on and under said alleged mortgage." The printed notice of sale 
forms a part of the affidavit, and from that it appears that there is 
"now due on said mortgage $40.36 to said mortgagee." These 
facts bring the case of Halvorson within the terms of the proviso, 
inasmuch as they show that the mortgagor had a "valid defense 
against the whole * * * ' of the amount claimed to be due on 
such mortgage," viz. $40.36. Vide section 541 1. It must follow 
from the views already advanced in this opinion that each and 
all of the orders appealed from in the above entitled matters 
should be affirmed. The court will so order. All concur. 

(54 N. W. Rep. 1026.) 



MC MILLEN ZK AITCHISON. I83 

John McMillen et al vs. John Aitchison. 

Opinion filed March 7th, 1893. 

Verdict — Contrary to Evidence or Instructions. 

A verdict that must be either without support in the evidence, or contrary to 
the instructions of tbe^court, cannot be permitted to stand. 

Irrelevant Testimony— Prejudice. 

The admission of testimony that has no bearing upon the issues as made by 
the pleadings, but which, from its nature, would tend to prejudice the jury 
against the party objecting, constitutes reversible error. 

Appeal from District Court, Cass County; McCortnell^ J. 
Action by John McMillan and Christina McMillan against John 
Aitchison. Plaintiffs had judgment, and defendant appeals. 
Reversed. 

Francis & SotUhard, for appellant. 
Benton & Amidon, for respondents. 

Bartholomew, C. J. To reverse a judgment against him, 
based upon a verdict, the defendant and appellant assigns six 
errors: First] \}i\^\, the evidence was insufficient to support the 
verdict, specifying wherein it was insufficient; second, that the 
complaint did not state facts sufficient to constitute a cause of 
action; third, error of the court in ruling upon the admission of 
evidence; fourth, error of the court in refusing to nonsuit, or 
direct a verdict for defendant; fifth, error of the court in refusing 
an instruction asked by appellant; and, sixth, that the verdict was 
contrary to the evidence and instructions. The second assign- 
ment is not well taken, and merits no discussion, beyond what is 
incidental to the disposition of the other assignments. 

The respondents are husband and wife, and their complaint 
alleges that on and prior to April 5th, 1885, one Ober was 
indebted to respondents for work and labor performed for him at 
his request, in the sum of $400; that on said 5th day of April, 
1885, and while said indebtedness was due and unpaid, the appel- 
lant, Aitchison, undertook and agreed to pay said respondents 



184 NORTH DAKOTA REPORTS. 

said amount, and that, as a consideration for said promise, respon- 
dents agreed to, and did, enter into the employment of appellant, 
and did perform valuable services for him, and which were bene- 
ficial to him. There is a further allegation that during the year 
1885, and, as appears from the evidence, some months subsequent 
to April 5th, the appellant "had in his possession and control, 
and was indebted to said Ober, in, a certain' large sum of money," 
and that respondents were about to commence an action against 
said Ober, and attach the money and property in appellant's 
hands, and that appellant further promised and agreed that if 
respondents would not commence such proceedings, and attach 
said property in his hands, he would pay respondents the debt 
owing them from said Ober, and that, in consideration of such 
promise, respondents did not take the legal steps contemplated. 
The answer was, in substance, a denial. As we read the instruc- 
tions, the jury were plainly told that respondents could recover 
nothing by reason of this latter promise, set forth in the com- 
plaint; and, as neither party complains of such instruction, it 
must stand as the law of the case, and our investigations are x:on- 
fined to the first promise alleged. As this promise rests in parol, 
only, it is admitted that, if it were a collateral promise of guar- 
anty, it was void, under the statute or frauds. But it is claimed 
that it was an original undertaking based upon a benefit accruing 
directly to the promisor. 

Section 4277, Comp. Laws, reads: "A promise to answer for 
the obligations of another in any of the following cases is deemed 
an original obligation of the promisor, and need not be in writing: 
* * * (3) Where the promise, being for an antecedent obliga- 
tion of another, is made upon the consideration that the party 
receiving it cancels the antecedent obligation, accepting the new 
promise as a substitute therefor, or upon the consideration that the 
party receiving it releases the property of another from a levy, or 
his person from imprisonment, under an execution on a judgment 
obtained upon the antecedent obligation, or upon a consideration 
beneficial to the promisor, whether moving from either party to 



MC MILtEN V. AITCHISON. l8S 

the antecedent obligation, or from another person." In this case 
the antecedent obligation was not released, as respondents sub- 
sequently contemplated an action against Ober. Neither was 
there a release of property from any levy, as no actual levy was 
ever made. If the case falls within the statute, it is by reason of 
the final provision, — "or upon a consideration beneficial to the 
promisor, whether moving from either party to the antecedent 
obligation or from another person." This statutory provision, it 
will be noticed, excludes a portion of the broad consideration "of 
benefit or harm moving between the newly contracted parties," as 
laid down by Chief Justice Kent in Leofiard v. Vredenburg, 8 
Johns. 29, and the cases that have followed that decision, and 
confines it to that which is beneficial to the promisor, but without 
regard to the source from which the benefit moves. The learned 
trial court placed the case entirely upon this promise, and the 
charge to the jury was full, clear, and very fair to appellant. The 
jury could not have returned a verdict for respondents without 
disregarding the court's instructions, unless they found the promise 
was made as alleged, and based upon a consideration beneficial to 
the promisor. 

It is earnestly contended that the evidence docs not warrant a 
finding that any such promise was made. The court told the jury 
plainly that, if appellant incurred any liability to respondents, "it 
was by reason of some contract made on April 5th, 1885." As to 
what occurred on that day, Mr. McMillan testified: "Mr. Aitchi- 
son wanted to engage me and my wife, and I told him we would 
not engage with any person until we got a settlement for the pre- 
vious year. He said he had everything in that place in black and 
white, in his own name, but that Ober was to have an interest, 
but if we would stay he would pay the wages before Ober should 
have a cent on the farm." This, clearly, was a conditional 
promise only, and before any recovery could be had thereon the 
existence of the specified conditions must be alleged and proven. 
Mrs McMillan testified as to the same transaction: "I was present 
during the conversation between my husband and Mr. Aitchison. 



1 86 NORTH DAKOTA REPORTS. 

He had not intended to stay there, unless we had a settlement, 
but Mr. Aitchison asked him to stay, and said that if we would 
stay he would pay us for the indebtedness of Mr. Ober, and on 
that condition we stayed." This was on direct examination, and, 
if unqualified, would support the finding. But on cross-examina- 
tion she testified that she did not remember exactly what Mr. 
Aitchison said; "I remember that I got from what he said that he 
would pay the wages." And further on: "I heard him say that, 
before Ober got his interest out of the farm, he would pay this 
money." This witness is positive about the conditional promise. 
The absolute promise seems to have been her deduction from what 
was said. But it would be bordering upon the absurd to suppose 
that appellant, at the same time, and in reference to the same 
matter, made both a positive and conditional promise of perfor- 
mance. The appellant testified: "I told him [McMillan] I 
thought he ought to have something, and that, before I made 
over anything to this Ober, I would see that they were paid." 
And on cross-examination: **I told him ♦ * ♦ that I should 
not let my countryman suffer; that I would take care that I made 
Ober pay him before I gave him any title to the half section." 
The testimony of this witness showed that he had a parol con- 
tract with this man Ober, by the terms of which, under certain 
contingencies, he was to convey to Ober one half of the farm on 
which this work was to be done. The evidence of the two parties 
who made the agreement shows that it was conditional. A third 
party who heard it also testifies to its conditional character, but 
uses language which, if not subsequently qualified, would import 
a positive agreement. Nor is it possible to avoid giving some 
consideration to the circumstances under which this agreement 
was made. It is undisputed that at the same time, and as a part 
of the same transaction, appellant, employed respondents to work 
for him on the farm for one year, — he says, for the sum of $460; 
McMillan says, for the sum of S38 per month. Either 'sum was 
the full ordinary price for such services in that locality. Respon- 
dents continued to work for appellant a portion of the succeeding 



r 



MC MILLEN V. AITCHISON. 187 

year at the same wages. It is not conceivable that a man of 
ordinary business prudence should unconditionally bind himself 
to pay nearly double the ordinary wages. Under the facts and 
circumstances, as disclosed by the evidence, wc are clear that, if 
the jury found that the. positive promise alleged in the complaint 
was in fact made, such finding was without any sufficient support 
in the evidence, under the rule announced by this court in Fuller 
v. Elevator Co. 2 N. D. 220, 50 N. W. Rep. 359, and the case must 
be reversed under the first assigned error. If, on the other hand, 
the jury returned a verdict for respondents, without finding the 
existence of such positive promise, then the verdict was contrary 
to the instructions of the court, and the case must be reversed 
under the sixth assignment. 

It is proper to add that the verdict of the jury may have been 
somewhat influenced b^ reason of certain matters raised under 
the third assignment. One Bruce was called as a witness for 
respondents. He seems to Jiave been the financial agent of Mr. 
Ober. He was asked whether or not, at any time during the 
summer of 1886, he received from Mr. Aitchison, for the credit of 
Mr. Ober, any money. This was objected to by counsel for 
appellant as irrelevant and immaterial, and the objection was over- 
ruled. In answer the witness said that in the summer of 1885 he 
received $575 from Mr. Aitchison for the credit of Mr. Ober; and 
by other questions, all answered against appellant's objections, 
this fact was made prominent before the j«iy. If respondents 
were seeking a recovery under the positive promise set forth in 
the complaint,— and under the instructions they could recover on 
no other ground, — it was entirely immaterial whether subsequent 
to such promise appellant paid Ober any money. He was equally 
liable whether he did or did not. Such fact had no possible 
bearing upon the issues made by the pleadings. And yet the 
prejudice to appellant of such testimony, after the evidence as to 
the contingent character of the promise had been given, is too 
evident for discussion. The admission of that testimony was 



1 88 NORTH DAKOTA REPORTS. 

reversible error. Joms v. Bacon, (Sup.) 19 N. Y. Supp. 553; Rail- 
road Co, V. Heptier, (Tex. Sup.) 18 S. W. Rep. 441; Bank v. Carson, 
30 Neb. 104, 46 N. W. Rep. 276. The District Court is directed 
to reverse its judgment and grant a new trial. All concur. 
(54 N. W. Rep. 1030.) 



The Goose River Bank vs, Wm. Gilmore, €t at. 

Opinion filed January 25th, 1893. 

Appeal From Order Denying New Trial — Motion to Purge the Record. 

When an ap]>eal is taken from an order denying a new trial, and the motion 
for such new trial was heard in part upon certain papers and documents, which, 
on appeal to this court, have been properly indAitified by the judge and certi- 
fied by the Clerk of the District Cfturt, a motion to purge the record of such 
papers and documents for the reason that the same are not authenticated by any 
bill or statement cannot be sustained. Under § $, Ch. 120, Laws 1891, no bill 
or statement is required to bring such papers and documents before the court. 

Bill of Exceptions—Stenographer's Transcript. 

The stenographer's transcript of the proceedings had at the trial, and used on 
a motion for new trial for the purpose of showing errors of law occurring at 
the trial, does not constitute an authenticated recotd, and l>efore this court can 
review errors occurring at the trial the proceeding must l^e brought upon the 
record by a bill of exceptions or statement of the case. 

Affidavit of Newly Discovered Evidence. 

An affidavit used upon a motion for a new trial, which states that certain 
evidence could and would be offered if a new trial should be granted, is entirely 
insufficient unless it also states that such evidence is newly discovered, or fur- 
nishes some excuse for not introducing it on the former trial. 

Appeal from District Court, Steele County; McComiell, J. 

Action by the Goose River Bank against Will Gilmore and 
others. Defendant's had judgment by direction of the court, and 
from an order denying a motion for .a new trial, plaintiff appeals. 

Affirmed. 

A, B, Levisec, for appellant. 

McMahon Bros, and . /. £. Robinso7i, for respondents. 



GOOSE RIVER BANK V. GILMORE. 189 

Wallin, J. In this action the verdict was for the defendants. 
Plaintiff moved for a new trial, basing its motion upon "the plead- 
ings in the case, the minutes and memoranda of the court, the 
stenographer's report of the evidence adduced upon the trial, and 
the affidavit of plaintiff's counsel." The motion was initiated by 
the service of a notice of intention stating that the "grounds 
upon which such motion would be urged are: Firsts That the 
court erred in withdrawing said cause from the jury, and in order- 
ing the jury to render a verdict for the defendants, to which 
action of the court the plaintiff duly excepted at the time. Sccotid, 
That if the evidence adduced and delivered to the jury on said 
trial was in fact or in\ the opinion of the court insufficient to 
make a fair, prima facie case for the consideration of the jury, 
such defect of proof resulted from the oversight of the plaintiff's 
counsel, and not from an actual lack of evidence to support said 
cause as set up in the complaint; and the plaintiffs are justly 
entitled to have another opportunity to establish the merits of their 
cause before a jury." The motion was denied, and judgment was 
entered for defendants dismissing the action, and for costs. No 
appeal is taken from the judgment, but plaintiff appeals to this 
court from the order denying the motion for a new trial. 

The Judge of the District Court has by his certificate properly 
identified the papers mentioned below as the papers used on the 
motion for the new trial, and the clerk has certified such papers 
to this court, under § 5, Ch. 120, Laws 189 1, providing that, "if 
the appeal is from an order, he shall transmit the order appealed 
from, and the original papers used by each party on the applica- 
tion for the order appealed from." The papers thus certified up 
are the following: Complaint; answer; verdict; judgment; order 
denying motion for a new trial; said notice of intention; an affi- 
davit of plaintiff's counsel, referred to in such notice; a document 
purporting to be a transcript of the evidence, rulings, exceptions, 
etc., had and taken upon the trial of this action, which is certified 
to be correct by the official stenographer of the District Court, 
but not otherwise authenticated as a true version of the proceedings 



1 90 NORTH DAKOTA REPORTS. 

had at the trial; lastly il pages of what purports to be the 
evidence of the defendants in a certain other action in which this 
plaintiff was plaintiff and Willow Lake School township was 
defendant. The last document was certified to be a true tran- 
script by one Frank La Wall, who affixes the following to his 
signature: "Ex-Official Stenographer, Sixth Judicial District, 
Territory of Dakota." The document purporting to be a tran- 
script of proceedings had at the trial of this action embraced, 
with the testimony, an order based upon the testimony, and 
directing a verdict in favor of defendants, with plaintiff's 
exception thereto. It is conceded that no bill of excep- 
tions or statement of the case was ever prepared, served, or 
allowed in this action. In this court the defendants' counsel sub- 
mits a preliminary motion to purge the record by striking there- 
from all papers except the judgment roll proper, i, e, the com- 
plaint, answer, verdict, judgment, and order denying a new trial. 
No authority is cited in support of this motion, and the only 
reason offered in its support is that the papers sent to this court 
have not been embodied in either a bill or statement, and hence, 
as counsel agree, arc not authenticated as a record. A motion 
similar to this was made and granted in Wood v. Nissen, 2 N. D. 
26, 49 N. W. Rep. 103. In that case, "on appeal from a judgment 
in favor of the plaintiff, a transcript of the proceedings had at the 
trial, embracing the evidence as extended by the stenographer, 
was by the order of the District Court, annexed to the judgment 
roll, and the same was sent up to this court as a part of the 
record." No bill or statement was prepared or settled, and this 
court held that such transcript, though vouched for by the court 
below, "constitutes no part of the judgment roll," and hence the 
same was stricken from the roll. But the case referred to must 
be distinguished from the case at bar, because the former was an 
appeal from a judgment, and in this case the appeal is from an 
order only, and the record is certified to this court under § 5, Ch. 
120, Laws 1 89 1. The clerk of the court below seems to have 
complied with the mandate of this statute fully. All papers in 



GOOSE RIVER' BANK V> GILMORE. I9I 

the record are certified to as being used on the application for a 
new trial, and this is substantially what the statute requires. It 
would seem quite clear that this court ought not to strike from 
its files any papers or records properly certified to this cpurt from 
the court below. Bailey v. Scott, (S. D.) 47 N. W. Rep. 286. 
Hence the motion to purge the record must be denied, and we 
are therefore brought to a consideration of the case as it appears 
in the light of all the papers in the record. 

In this court plaintiff has assigned only the following errors: 
First, "the court erred in withdrawing the case from the jury, and 
ordering a verdict for the defendants;" second^ "if, as the court 
seemed to think, there was in fact a deficiency of proof, then the 
court erred in refusing a new trial to afford the plaintiff another 
opportunity to establish its claim;" third, "the; court erred in 
refusing a new trial." The third assignment of error cannot be 
sustained, unless some legal ground or reason for granting a new 
trial was presented to the trial court. 

The second assignment of error does not purport to point out 
any specific error, either of law or fact, which occurred at the 
trial, and which would of itself constitute a legal ground for a new 
trial of the action. A deficiency of proof offered at a trial cer- 
tainly does not alone constitute any ground for a new trial enu- 
merated in § 5088, Comp. Laws. The assignment omits to state, 
and nothing in the record supplies the omission, if it could be 
supplied, that any newly discovered evidence had come to plain- 
tiff's knowledge since the trial; much less is there any attempt to 
excuse the laches which would have been involved in the non- 
production of evidence know by plaintiff to exist, and which was 
not produced at the trial. It follows that the second assignment 
of error must, for the reasons stated, be overruled. 

The first assignment of error, according to the stenographer's 
transcript, is' predicated upon an alleged ruling of the District 
Court made after plaintiff had rested its case, and is based upon 
the evidence adduced by the plaintiff. In order to review this 
ruling, the fact that the ruling was made and excepted to, 



•^T^ 



192 NORTH DAKOTA REPORTS. 

together with the evidence upon which the ruling was based, 
must be duly authenticated and brought upon the Vecord of this 
court. We think such authentication has not been made in this 
case. Thje testimony and rulings at the trial are vouched for only 
by a stenographer's certificate. While it is true that this certifi- 
cate is transmitted to this court as one of the papers used on the 
motion in the court below, yet the stonographer's version of the 
proceedings had at the trial has never been authenticated by 
being embodied in a bill or statement settled on notice, and in 
manner and form as the statute directs. The motion below being 
upon the minutes, it was proper, if the moving party saw fit to do 
so, to have a stenographer's transcript of the proceedings before 
the court for reference; but whether or not such transcript is 
used upon the hearing the law contemplates that upon such 
motion all disputed matters of fact must be determined by the 
trial court upon its own recollection of what occurred at the trial. 
In this court, however, we cannot so determine disputed facts, 
and hence it is essential that all matters of fact occurring at the 
trial should be settled by the court below, and the law points out 
how this shall be done. After judgment is entered, a bill embrac- 
ing exceptions may be settled, under § 5083, Comp. Laws. See, 
^Iso, § § 5084, 5094. We can see no legal reason why a bill or 
statement was not prepared and settled in this case after the 
motion was denied. This not having been done, we have no 
proper record before us of what occurred at the trial, and hence 
must overrule the first assignment of error. 

We do not hold, nor do we intimate the opinion; that where a 
motion for a new trial is based exclusively upon affidavits and 
upon the grounds stated in the first four subdivisions of § 5088, 
Comp. Laws, that a bill or statement must be made a record for 
use in this court. Our views in this case have reference only to 
cases arising under the last three subdivisions of said section. 
Our law and practice relating to bills of exception and statements is 
largely drawn from the State of California, but in that state appeals 



UNION NATIONAL BANK V, OIUM. I93 

from orders granting or refusing a new trial are in a class by them- 
selves. See Haynes, New Trials & App. § § 262, 263. Our statutes do 
not embrace a provision similar to § 951 of the California Code of 
Civil Procedure, and hence decisions from that state are not in 
point here as to What constitutes the record on appeals from 
orders granting or refusing a new trial. See Haynes,' New Trials 
& App. (Ed. 1884,) p. 785, § 262. While we regret the necessity 
which obliges us to dispose of this case upon a question of prac- 
tice, yet the exigencies of particular cases cannot suffice to justify 
this court in violating long establisihed rules of practice, which 
are essential to the regular administration of law. The order 
appealed from is affirmed. All concur. 
(54 N. W. Rep. 1032.) 



The Union National Bank vs, T. N. Oium. ^ 

Opinion filed Deccembcr 28th, 1892. 

Sufficiency of Description in Chattel Mortgage. 

The description in a chattel mortgage stated that the property was situated 
on a certain section in a certain township and range, but did not name the 
county or state within which such section and property were located. The 
mortgage was filed by the mortgagee in Ransom County, in the then Territory 
of Dakota, and it was shown that the section named in the mortgage was 
located in that county, and that property corresponding with that described in 
the mortgage was situated thereon, owned by the mortgagor. Heldy a suffix 
cient description as against an attaching creditor as to such property, but not 
as to property not situated on such section. 
Priority of Mortgage Over Attachment Lien. 

Where a creditor attaches personal property covered by a mortgage, between 
the execution and delivery of the mortgage and the filing thereof, his lien is 
not superior to that of the mortgagee, under the statute (§ 4379) declaring such 
mortgage void as to creditors unless filed, where the debt for which he attaches 
existed before the giving of the mortgage, and the creditor has not altered his 
position to his detriment since the mortgage was given, and before the filing 
thereof. 
Possession Substitute for Refiling. 

It is unnecessary, to preserve the lien of a chattel mortgage, to renew the same 
by refiling a copy thereof, with a statement, etc., as required by Ch. 41, of the 
Laws of 1890, where the mortgagee has taken possession of the property before 
the period arrives at which the statute requires the mortgage to be so renewed. 

N. D. R.— 13. 



194 NORTH DAKOTA REPORTS. 

Appeal from District Court, Ransom County; Lauder, J. 

Action of replevin by the Union National Bank of Oshkosh 
against T. N. Oium, as sheriff of Ransom County,* and another. 
There was judgment for defendants, and plaintiff appeals. 

Reversed. 

Ball & IVatsoH and Rourkc & Allen, for appellant. 

No valid levy of attachment was ever made upon the engine 
and separator and some of the plows claimed to have been 
attached, as they were not present nor in the view of the sheriff at 
any time. Rogers v. Bonner, 45 N. Y. 379; Bond v. Willett, 31 
N. Y. 102; Ray v. Harcourt, 19 Wend. 495; Brown v. Pratt, 4 Wis. 
513; Dresser v. Ainsworth, 9 Barb. 619; Crocker on Sheriff's §436-7; 
Freeman on Executions § 262. When the possession of attached 
property is voluntarily abandoned by the custodian and it comes 
into the possession of any one claiming adversely to the attaching 
officer, the lien of the attachment is lost. • Wade on Attachments 
§ 164; Sanderson v. Edwards, 16 Pick. 144; Boynton v. Warren, 99 
Mass. 172; Littleton v. Wyman, 28 N. W. Rep. 582; Nichols v. 
Patten, 36 Am. Dec. 713; Hardon v. Lissen, 36 111. App. 383; 
Russell V. Mayor, 29 Mo. App. 167. The. engine, separator and 
certain plows to which the court found that the lien of plaintiffs 
mortgage did not attach, because of the fact that at the time of 
the execution of the mortgage they were not on section 19, have 
since thp delivery of such mortgage come into the possession of 
the mortgagee, and possession equally with filing is notice to all 
persons of the mortgagees interest in mortgaged property. 
Gooding v. Riley, 50 N. II. 400; Clark v. Tarbell, 57 N. H. 328; 
Jones on Chattel Mortgages, § 176; Morrozv v. Reed, 30 Wis. 81, 
Janvrin v. Fogg, 49, N. H. 340. The taking of possession by the 
mortgagee of the mortgaged property before any other right or 
lien attaches, the title obtained under the mortgage is good 
against everybody, although it be not acknowledged and recorded 
or the record be ineffectual by reason of any irregularity. The 
taking of possession is an indentification and appropriation of 



UNION NATIONAL BANK V, OIUM. I95 

the specific property to the mortgage and cures any defect there 
may be through an insufficient description of the property. Jones 
on Chattel Mortgages, § § 178, 60; Chipron v. Feikert, 68 111. 284; 
Frank v. Miners 50 111. 444; Brown v. Webb, 20 Ohio 389; Parsons 
Savings Bank v. Sargent, 20 Kan. 576. 

There is no occasion for refiling a mortgage where the mortga- 
gee has taken actual possession of the mortgaged property. 
Jones on Chattel Mortgages, § 294; Porter v. Parmlee, 52 N. Y. 185; 
Dayton v. Peoples Savings Bank, 23 Kan. 42 1. The rights of the 
parties must be determined by the facts as they stood at the time 
.the cause of action accrued. Bates v. Wilbur, 10 Wis. 415; New- 
man V. Tymeson, 12 Wis. 448; Case v. Jewett, 13 Wis. 498; Meech v. 
Patchin, 14 N. Y. 71; Lewis v. Palmer, 28 N. Y. 271. The defen- 
dant cannot take advantage of the failure of the appellant to 
refile its chattel mortgage. "One not having a judgment and 
execution is not a creditor within the meaning of the provision of 
the statute, declaring that the omission to file a chattel mprt- 
gage renders it void as against creditors of the mortgagee and 
subsequent purchasers and mortgagees in good faith." Jo7ies v. 
Gra/uzm, 77 N. Y. 628; T/wmpson v. Van Vechten, 27 N. Y. 568; 
Paine v. MasoTt, 7 Ohio St. 198; Stewart v. Beale, 7 Hun. 405. 
Actual notice of an unrecorded mortgage of property is as effec- 
tual as constructive notice by recprd, against subsequent pur- 
chasers; and an attaching creditor stands in no better position. 
Jones on Chattel Mortgages, § 317; Allan v. McCalla, 25 la. 464; 
McLaurin v. Haupt, 9 la. 83; Brown v. Brabb, 34 N. W. Rep. 403; 
LeNeve v. LeNeve, Leading cases in Eq. 202. 

In replevin, defenses must be with reference to the time of the 
commencement of the action. Cobbey on Replevin, § § 764, 796 
and 798; Patten v. Hammer, 28 Ala. 618; Coller v. Beckley, 30 
Ohio St. 523, Niclwls v. Michael, 23 N. Y. 264; Allen v Crary, 10 
Wend. 349. The pleadings evidence and judgment in an action , 
of replevin should be confined to the points and questions neces- 
sary to elucidate the right of plaintiff to the immediate possession 
of the property in question at the commencement of the suit. 



"^ 



196 NORTH DAKOTA REPORTS. 

Cobbey on Replevin, § § 977, 978 and 979; Hamer v. Hathaway, 
33 Cal. 117; Blue Valley Bank v. Cle^nent, 30 N W. Rep. 64. In 
replevin the value of each item of property should be found 
separately, as the whole may be returned or a part only in satis- 
faction of the judgment pro tafito. Cobbey on Replevin, § 1063, 
Under an attachment the sheriff has no right to make use of the 
property, and no right to damage for being deprived of its use. 
Tatidler v. Sauftders, 22 N. W. Rep. 271; Broadwell v. Paradice, 
81 111. 474; McArthur v. Howett, 72 111. 359; Cobbey on Replevin, 

§895. 

The value of property at the time of the trial should be found 
instead of its value at the time of its taking. Rowley v. Gibbs, 14 
Johns. 385; Tuck V. Moses, 58 Me. 361; Boylston v. Davis, 70 N. C. 
485; Burkelwlder v. Rudrow, 19 Mo. App. 60; Mix v. Kepmr, 81 
Mo. 93; Allen v. Judson, yi N. Y. 76; Pierce v. Vandike,6 Hill 613; 
Brewster v. Silliman, 38 N. Y. 423'-9. 

Goodtvin & Van Pelt and Geo, D, Emery, for respondent. 

The mortgage contains no description of the property by which 
it could be identified. No presumption arises from the execution 
of the chattel mortgage, that the mortgagor 6wns the property — 
nor that such property is in existence. Warner v. Wilson, 73 
Iowa, 719, 36 N. W. Rep. 719. 

The mortgage must not be indefinite and uncertain. "It must 
indicate, suggest and direct inquiry whereby the property can be 
identified." Griffiths \, Wheeler, 2 Pac. Rep. 842; Smith v. McLean, 
24 Iowa 322; Tolbert v. Norton, 33 Minn. 104. The individual 
description of each separate item or class of chattels is fatally 
defective. Bart v. Cannon, 69 la. 20, 28 N. W. Rep. 413; Eggert 
V. White, 13 N. W. Rep. 426; Pennhigton v. Jones, 10 N. W. Rep. 
274; Warner \, Wilson, 36 N. W. Rep. 719; Hayes v. Wilcox, 17 N. 
W. Rep. no; Smith v. McLean, 24 la. 322. As to the separator 
no clue of identification is furnished by the mortgage. Leffel v. 
Miller, 7 So. Rep. 324 Kellogg v, Andersori, 40 Minn. 207; Armsby 
V. Nolan, 28 N. W. Rep. 569; Rhutassel v. Stevens, 27 N. W. Rep. 



UNION NATIONAL BANK V. OIUM. I97 

786; Caldwell v. Trowbridge, 26 N. W. Rep. 49; LeiglUo?i v. Stuart, 
26 N. W. Rep. 198; Tabor v. Sampson, 4 Pac. Rep. 45. Plaintiffs 
mortgage not being filed was void against defendant even though 
he had actual notice of itsexistence. Bank of Farmiiigton v. Ellis, 
30 Minn. 270; Houk v. Condon, 40 Ohio St, 569; Wilson v. Leslie, 

20 Ohio 161; Barr V, Canno?i, 69 la. 20, 28 N. W. Rep. 413; 
Farmers Z. & T Co. v. Hendrickson, 25 Barb. 484; Tyler v. Strang, 

21 Barb. 198; Ramsey v. Glenn, 33 Kan, 271; Jewell v , Simpson, 17 
Pac. Rep. 463; Ransom V. Schnela, 13 Neb. 73^ Filing is necessary 
to give the mortgage validity as to creditors, and the contest 
between the creditor holding the mortgage and the creditor with 
the attachment is simply a race of diligence. Rich v. Roberts, 48 
Me. 548, Travis v. Bisfiop, 13 Mete. 304; Bevons v. Bolton, 31 Mo. 
437; McComb V. Meyers, 8 Wis. 236; Lockwood v. Slevin, 26 Ind. 
124. If the plaintiff in replevin alleges that the defendant, the 
sheriff, is in px)ssession of goods and wrongfully detains them, he 
is estopped from claiming that the defendant is not in possession 
for the purpose of showing that the defendant has not made a 
valid levy or attachment. Thompson on Trials, § 197; Derby v. 
Gallant, 5 Minn. 119; N, P. R, R. Co. v. Paim, 7 Sup. Ct. Rep. 323. 
Plaintiffs rights under the mortgage were lost at time of trial 
becauseQof its failure to refile its mortgage — and defendant was 
entitled to judgment. Wells on Replevin, § 496. 

Corliss, C. J. This litigation presents a strife for supremacy 
between a chattel mortgagee, the plaintiff and appellant, and an 
attaching creditor of the mortgagor, one of the defendants and 
respondents. The sheriff who made the attachment and the 
creditor in whose behalf it was made are both parties defendant. 
The nature of the action is replevin. To sustain it, the plaintiff 
must show a valid chattel mortgage, and that its lien is superior 
to that of the attachment. The mortgage has been assailed as 
invalid for want of a sufficient description of the mortgaged 
property. It was executed at Oshkosh, in the State of Wisconsin, 
on property in the then Territory of Dakota. The portion of the 
mortgage material to a proper consideration of this point reads 



198 NORTH DAKOTA REPORTS. 

as follows: "The following described goods, chattels, and 
property, viz: 4,000 bushels of wheat, in granary on section 19, 
township 134, range 56; 38 horses, being all the horses on said 
section 19; 26 head of cattle, cows, bulls, steers, heifers, etc., 
being all the cattle on said section; 6 self-binders; 7 sulky 16 in. 
plows, (make. Flying Dutchman;) 2 Flying Dutchman gang 
plows; 4 Van Brunt 3-horse seeders; i broadcast Stowbridge 
seeder; 6 4-horse drags; 16 set double harness; 2 top buggies; i 
platform wagon; 7 double-heavy lumber wagons and racks; 80 
tons hay; 2,000 bushels oats; and all other personal property on 
said section, — all said property being on said section; also i 
threshing machine, together with all the appurtenances," etc. We 
think that the description is sufficient, within the rule which merely 
requires that it should suggest such inquires as will enable a third 
person by the aid thereof to identify the property. The property, 
with an exception which will be referred to hereafter, was 
described as being situated on section 19, township 134, range 56. 
The mortgage was filed in Ransom County, Territory of Dakota, 
and there was found within that county a description of land cor- 
responding with the description in the chattel mortgage. We 
think that the fact that neither the county nor the state in which 
this real estate was located was stated in the mortgage is unim- 
portant, because, under the law requiring the mortgage to be 
filed in the count/ where the property is situated, the mortgagee 
filed it in Ransom County, in the then Territory of Dakota, and 
within that county it was shown that a piece of land known, 
according to the government survey, as "section 19, of township 
134. in range 56," is situated, and that upon it was property 
answering to the description contained in the mortgage, owned 
by the mortgagor. There is no evidence that as to any of the 
classes or kinds^of property described in the mortgage there was 
any greater number belonging to that class than the number men- 
tioned in the mortgage. Without further discussion of this point 
or a review of the authorities, we refer to the extended note to 
the case of Barrett v. Fisch, [Iowa, 41 N. W. Rep. 310,] 14 Am. 



r 



UNlbN NATIONAL BANK V. OIUM. I99 

St. Rep. 238, 239, ef seq., as containing a collation of the decisions, 
and we are satisfied that they fully sustain our view in this respect. 

It was urged that the only means of identifying the property 
intended to be mortgaged was by its location at the time of the 
execution of the mortgage, and that there is no evidence which 
fixes its situs at the precise moment of the giving of the security. 
But it appears to be undisputed that all of the property, except 
an engine, separator, and some plows, were on this section 19 the 
day the property was attached, which was only three days after 
the execution of the mortgage. Having in view the character of 
the property, and the fact that the o.wner thereof, Mr. Morrison, 
also owned this tract of land, that the property seems to have 
been kept there constantly, and there being no proof that it was 
placed upon this farm after the execution of the mortgage, we 
are clear that there is nothing in this contention; but, as to the 
engine, separator, and some of the plows, we must hold that the 
description in the mortgage was insuflficLent. It appeared that 
they were not upon section 19, and there was no other description 
of them, aside from the incorrect statement as to their location, 
sufficient to point out the property to a third person within the 
rule governing such cases. 

The attachment, it is claimed, was made after the execution 
but before the filing of the mortgage. Assuming this to be so, 
still the question remains whether the attachment lien is superior 
to that of the mortgage., That the lien of the mortgage was good 
as between the parties to it without the filing thereof cannot be 
questioned. The attaching creditor can be in no better position, 
unless by virtue of the statute. It provides as follows: "A mort- 
gage of personal property is void as against creditors of the 
mortgagox and subsequent purchasers and incumbrancers of the 
property in good faith for value, unless the original, or an authen- 
ticated copy thereof, be filed by depositing the same in the office 
of the register of deeds of the county where the property mort- 
gaged, or any part thereof, is at such time situated." The invali- 
dity of the mortgage is claimed, not by a subsequent purchaser 



200 NORTH DAKOTA REPORTS. 

or incumbrancer, but by an attaching creditor, who attached 
for a debt contracted before the giving of the mortgage. It is 
therefore necessary to determine the meaning of the word 
"creditors" in this statute. It is important that there should be 
kept in mind a distinction between the right of a general creditor 
to insist that an unfiled chattel mortgage is vord and the ability 
to enforce this right. While an unfiled chattel mortgage may be 
void as to a general creditor, he cannot avail himself of the 
statute until he has armed himself with attachment or execution 
and levied on the property, or has in some other way secured a 
lien thereon. Before he has seized the property covered by the 
chattel mortgage, or secured some lien thereon, he is in no posi- 
tion to raise the question that the mortgage is void as to him. 
Bank V. Batesy 7 Sup. Ct, Rep. 679; Kitchen v. Lowery, (N. Y. App.) 
27 N. E. Rep. 357, Thompson v. Van Vechten, 27 N. Y. 568; Denipsey 
v. Pforzheitner, (Mich.) 49 N. W. Rep. 465. The statute does not, 
however, require that he should be armed with process or have a 
lien on the property to entitle him to come within the category 
of "creditors," as to whom the unfiled instrument is a nullity. 
The mortgage is not void as to creditors who have seized the 
property, or who hold process under which they can seize it. 
This is not the language of the statute. The mortgage is void as 
creditors, and nothing is said in the statute about the necessity of 
a creditor's having secured a Hen on the mortgaged property. 
The fact that the creditor cannot assail the mortgage until he has 
seized the property is of no moment in determining whether he 
belongs to the class of persons as to whom the mortgage is void. 
Whether he belongs to that class is one question; whether he is 
in a position to derive benefit from belonging to that class is 
another, and entirely different question. The two inquiries are 
distinct, and each is independent of the other. When he arms 
himself with process, and seizes the mortgaged property, the 
court will then inquire whether he is a "creditor," within the 
meaning of the statute which declares void the mortgage as 
against "creditors." The facts which determine this point are 



UNION NATIONAL BANK V, OIUM. 201 

independent of the fact of seizure, and can derive no aid there- 
from. The inquiry is whether he is a "creditor" within the spirit 
of the law, and not whether he is a creditor with process which 
he has levied on the property covered by the mortgage. If it 
were necessary that he should have seized the property before he 
can be regarded as a creditor within the statute, great wrong 
could be done the public by the withholding of a chattel mort- 
gage from record, for which those wronged would have no redress. 
After a chattel mortgage had been given, and while it was with- 
held from record, a loan might be made to the mortgagor, or 
credit might be extended to him on the sale of property, the 
creditor relying upon the apparent freedom of the debtor's 
property from liens. All the harm that could be done the credi- 
tor has now been consummated. The subsequent filing of the 
chattel mortgage cannot undo it. It would be a gross perversion 
of the statute requiring chattel mortgages to be filed to assert 
that the right of this creditor successfully to attack the unfiled 
mortgage depends on his seizing the property under process 
before the mortgage is filed; that until then he cannot be con- 
sidered a creditor as to whom the mortgage is void. It is true 
that he must seize the property before he can raise the point, but 
he need not seize it before the instrument is filed. Whenever he 
does seize it, whether before or after the filing of the mortgage, 
he is then in a position to lirge that he was before the mortgage 
was filed a "creditor," within the meaning of the statute. Strong 
authority exists to support this proposition, that the fact of a 
levy under process does not enter into the question whether the 
creditor is one whom it was the purpose of the law to protect as 
against unfiled chattel mortgages. Thompson v. Van Vechten, 27 
N. Y. 568. In this case the court say: "But, when they [credi- 
tors] present themselves with their process, they may, I think. 
go back to the origin of their debt, and show, if they can, that, 
when it was contracted, the incumbrance with which they are now 
confronted existed, and was kept secret by being withheld from the 
proper office." See also, Feary v. Cummings, 41 Mich. 376, i N. 



202 NORTH DAKOTA REPORTS. 

W. Rep. 946; Ba?ik v. Bates, 120 U. S. 556, 562, 7 Sup. Ct. Rep. 
679. If the word "creditors" is to have its widest significance, 
then no chattel mortgage can ever be valid as against the credi- 
tors of the mortgagor unless it is filed simultaneously with its 
execution. If, when the mortgagee hurries to the proper office 
to file his security, he is to be deprived of its protection because 
a creditor, intermediate its execution and its filing, has seized the 
mortgaged property under attachment, it must be because the 
creditor so seizing it is a "creditor," within the meaning of the 
statute. He is not such because he has seized the property 
betore the filing of the mortgage. This element, as we have 
seen, is entirely unimportant. The fact of levy prior to the filing 
of the mortgage has no bearing upon the question whether he is 
such a creditor as the statute protects. We must therefore elim- 
inate this element from our consideration. He would be a credi- 
tor within the law just the same although he should not secure a 
levy on the property until after the filing of the mortgage. If, 
then, the mortgage is void as to him when he seizes it five 
minutes after the execution and before the filing of the mortgage, 
it is void as to him without such previous seizure. He may seize 
the property after the mortgage is filed, and then insist that he is 
a "creditor," within the law, just as fully as when the seizure is 
made before the filing of the instrument. That the fact whether 
the seizure is or is not before the filing of the mortgage is of no 
moment in determining whether the person is a creditor within 
the law is made apparent from the silence of the law as to this 
fact, in connection with the injustice and absurdity of such an 
interpretation of the law. If the date of seizure is controlling, a 
creditor whose claim antedates the execution of the mortgage, 
and who therefore extended no credit while the mortgage was 
withheld from record, could destroy a mortgage filed one minute 
after the execution thereof by seizing the mortgaged property 
after the mortgage had been delivered, but before it could be 
filed, no matter how great the diligence of the mortgagee in 
filing it, and despite the fact that he parted with value on the 



UNION NATIONAL BANK V, OIUM. 203 

V 

security of the mortgage; and, on the other hand, a creditor who 
had trusted the mortgagor after the execution and delivery of the 
unfiled mortgage, relying on the apparent freedom of the prop- 
erty from liens, would lose all right to protection by the subse- 
quent filing of the mortgage, although not filed until after the 
expiration of a year perhaps, provided it were filed before such 
creditor should seize the property. The language of the stat- 
ute is not -that the mortgage is void as against creditors "until" 
it is filed. This would warrant the construction that the property 
could be seized by creditors and the mortgage ignored until it 
had been filed. The statute make the mortgage void "unless" it 
is filed. This indicates a purpose to fix the rights of those who 
in the future shall deal with thfe owner on the faith that the prop- 
erty is unincumbered. As to those persons it is not merely void 
until it is filed; it is void for all time, — void jiist the same 
whether they seize the property before or after the mortgage is 
filed. We have seen that the word "creditors" cannot have its 
broadest significance in this statute. No court has pretended to 
hold that the mere fact that the person was a creditor during the 
interval between the execution and filing of the mortgage would 
entitle him to claim the benefit of the act. It is unjustifiable to 
place upon the statute the construction limiting the meaning of 
this word to those who have actually seized the property before the 
mortgage is filed. It would not be in harmony with the spirit of 
the law. It would defeat its purpose, which is protection to 
those who act in ignorance of the unfiled security, by taking that 
protection^ from those who, having dealt with the mortgagor after 
the execution and before the filing of the mortgage on the theory 
that the property was unincumbered, should fail to seize the prop- 
erty before the mortgage should be filed; and, on the other hand, 
it would extend the protection of the statute to those who have 
no claim to its protection because they did net act after its exe- 
cution, but before, — ^who have not been prejudiced in the least by 
its being kept from record; it would extend to this class protec- 
tion should such creditors levy upon the mortgaged property 



204 NORTH DAKOTA REPORTS. 

before the filing of the security. We cannot give the word "credi- 
tors'* in this statute its broad, comprehensive meaning; neither 
can we attach a qualification which leads to such absurd, unjust 
results, which runs counter to the manifest policy of the law. In 
what light, then, should this word be interpreted? The answer 
seems obvious. We must look to the purpose of the law. We 
find it is a law designated to protect those who deal with the 
owner of mortgaged property under circumstances ^indicating 
that they relied on the freedom of the property from incum- 
brances, because there was no record thereof. Its policy as to 
such persons is to protect them against all secret chattel mort- 
gage liens. To bring themselves within the spirit of the law, 
they must show that such mortgage existed and was unfiled when 
they dealt with the owner of the property. This statute intends 
to protect creditors in the same spirit, iind in only the same 
spirit, in which it protects subsequent purchasers and mortgagees. 
Purchasers and incumbrancers, to be entitled to protection, must 
be purchasers and mcumbrancers in good faith for value. Section 
4379» Comp. Laws. Whether those words "in good faith for 
value" are used in such a statute is unimportant. They are often 
interpolated into such a law by construction because of its 
obvious policy. Now, it is well established that one who purchases 
or takes security for an antecedent debt is not entitled to the pro- 
tection of such a statute. The reason is that he has not altered 
his position to his detriment on the strength of the apparent 
freedom of the property from incumbrance. The cases are una- 
nimous on this point. Bank v. Bates, 120 U. S. 556, 7 Sup. Ct. 
Rep, 679; Button v. Rathbone, Sard & Co., (N. Y. App.) 27 N. E. 
Rep. 266; Cassidy v. Harrelson, (Colo. App.) 29 Pac. Rep. 525, and 
authorities there cited. 

Again, notice of the unfiled chattel mortgage destroys his right 

to protection. The. reason is that he has not altered his position 

to his detriment relying on the apparent freedom of the property 

from incumbrance. He knows that it is incumbered. Why 

'should not the word "creditors" be interpreted in the light of this 



UNION NATIONAL BANK V. OIUM. 205 

same policy of the law? Why should general creditors receive 
unreasonable protection, on the one hand, or be denied reasonable 
protection, on the other hand? Why should they be more 
favored than creditors who have taken security on the property? 
It is no answer to say that the words "in good faith for value" do 
not relate to the word "creditor." They would be meaningless if 
they did. When they refer to a mortgagee, they mean the part- 
ing of value on the strength of the security without notice. But 
it would be idle to talk about a credit or "in good faith for value," 
except to indicate that he had a bona fide claim against the 
debtor. These words would not mean that the creditor had 
extended the credit relying on the silence of the record sis to the 
existence of a chattel mortgage. It is true that language might 
have been employed in the statute which would have expressly 
indicated what this court regards as the purpose of the statute. 
But the act then would not have shown more clearly what 
was its object. Its policy is protection, and we know that the 
lawmaking power had no thought of protecting those who 
did not fteed protection, — those who had not changed their 
position to their disadvantage because of the failure to file 
the security. The word "subsequent," as applied to purchasers 
and incumbrancers, does not relate to creditors. But this 
gives no warrant to the inference that all creditors, existing ' 
as well as subsequent, were intended to be protected. It would 
have defeated in part the policy of the law had only subsequent 
creditors been included in the statute. It would have cut off 
from the protection of the law those existing creditors who, 
while the default in filing the mortgage continued, should altar 
their position to their detriment, as by releasing security, or by 
extending the time of payment. The language of the court in 
Brown v. Brabb, 67 Mich. 17, 34 N. W. Rep. 403, on this point 
meets our approval. Said the court: "To my mind the reason 
why the word 'subsequent' was not inserted in the statute before 
the word 'creditors* was to meet just that contingency where an 
existing creditor might suffer injury by relying upon the 



206 NORTH DAKOTA REPORTS. 

apparent situation, and so be daninified by postponing action, or 
extending the time of credit already given, or possibly in some 
other manner." Unless we interpret the word "creditors" in the 
light of the spirit of the statute as applicable to purchasers and 
mortgagees, we will ultimately find ourselves involved in the 
most absurd distinctions. One who takes a second mortgage to 
secure an existing debt is not entitled to protection as against a 
prior unfiled mortgage of which he had no notice, although he 
puts his mortgage on file before the first mortgage is filed; but, 
if the same creditor will refuse to accept what would seem to be 
a good security, he may, by suing upon his debt, and by levying 
upon the property before the mortgage is filed, secure a lien 
which will be paramount to that of the: mortgage. This result is 
inevitable unless we look at the spirit of the law in construing the 
word "creditors." 

Again, a subsequent mortgagee for present value is not pro- 
tected if he has notice of the existence of the unfiled mortgage 
when he takes his security and extends the credit; but if he will 
lend on the general credit of the mortgagor, and refuse 'the prof- 
' fered security, he may, it is contended, by suing on his claim, and 
attaching the mortgaged property before the filing of the mortgage, 
obtain a superior lien. Some of the courts seem to hold that notice 
jof the chattel mortgage at the time of the making of the seizure 
will defeat the creditor's right to assail it as void. But why 
should this notice work to his prejudice if he gave credit while 
the mortgage was withheld from record? The criticism on this 
doctrine in Crooks v. Stiiart, 7 Fed. Rep. 800-803, meets our 
approval. Said the court: "One who gives credit to a merchant 
in the open and exclusive possession %i a stgck of merchandise 
upon which there is no recorded lien has a right to assume that he 
is dealing with the owner of such stock, and to rely upon such 
ownership in extending credit. If he is to be affected by any 
secret lien upon such stock which may be recorded before he 
secures a lien by levy or otherwise, it will generally happen that 
the first notice to him upon which he can make an affidavit for 



UNION NATIONAL BANK V, OIUM.. lOJ 

attachment will be the recording of the lien, so that the circum- 
stance that gives him the right cuts of the remedy." The absence 
of any express qualification of the word "creditors" is not signi- 
ficant of an intent to use that word in its broadest sense, unlimited 
by ^the spirit of the statute. It has frequently been held that a 
registration or a recording law affords no protection to purcha- 
sers or mortgagees who take with notice of the unfiled or unre- 
corded instrument, or who part with no value on the strength of 
the silence of the record, although there is nothing in the statute 
to qualify the words "purchasers or mortgagees;" such as the 
phrases "in good faith," or "for value," or "without notice." The 
manifest spirit of the law makes the employment of any such 
language unnecessary. Allen v. McCalla, 25 Iowa, 464; Le Neve v. 
Le Neve, 2 Lead. Cas. Eq. 182-184, and cases in note; Tolbertw. 
Horten, (Minn.) 18 N. W. Rep. 647, 650; Dyer v. T/wrstad, 
(Minn.) 29 N. W. Rep. 345. The only interpretation which can 
be placed on the word "creditors" to prevent decisions which 
will give to general creditors protection when morally they are 
not entitled to it, and withhold that protection when in justice it 
should be extended to them, — the only construction which will 
give to them the same measure of protection, and no more, as is 
accorded to creditors who take security on the property, — is the 
construction which regards the general creditor as standing, for 
the purposes of this statute, in just the s^me position he would 
have occupid had he taken security when his debt was incurred, 
or his position was altered to his detriment, with the single 
exception, of course, that he cannot be regarded as standing in 
that position when his debt was incurred before the unfiled mort- 
gage was given. In such a case, having no lien, as he would have 
had had he taken security, he can claim no priorty of lien by 
virtue of a prior mortgage; and, having trusted the debtor before 
any default in filing the subsequent mortgage existed, he has no 
claim to protection as a creditor. If subsequently, while the 
mortgage is withheld from record, such creditor, without notice 
thereof, alters his position to his disadvantage, he is entitled to 



208 NORTH DAKOTA REPORTS. 

protection if he would have been entitled to protection had he 
then taken a mortgage on the property. Knowledge of the 
unfiled mortgage possessed by the general creditor when he 
changes his position to his detriment should be as fatal to his 
right to protection as it would be had he taken a mortgage on 
the property with such knowledge. A lien under attachment 
should be regarded as conferring no greater rights under the 
same circumstances than a lien under a mortgage. 

The construction which has uniformly been placed upon the 
word "creditors" in statutes providing for the refiling of chattel 
mortgages is in the direction of the interpretation which meets our 
approval in this case. Although the word "creditors" is used 
without qualification, and the mortgage declared void as to them 
when not refiled within a certain period, the courts have invari- 
ably held that one who seized the property before the default 
occurred could not, after the default, be regarded as a creditor 
within such a statute, although he was in fact a creditor. Lowe 
V. Wifig, 56 Wis. 33, 13 N. W. Rep. 892; Case v. Conroe, 13 Wis. 
498; Edson V. Newell, 14 Minn. 228, (Gil. 167;) Corbin v. Kincaid, 
33 Kan. 652, 7 Pac. Rep. 145; Fra7ik v. Playter, 73 Mo. 672; Howard 
V. Bofik, (Kan.) 24 Pac. Rep. 983; Ullmafiv. Duncan, (Wis.) 47 N. 
W* Rep. 266. See language of court in Swiggett v. Dodsoh, (Kan.) 
17 Pac. Rep. 594-598. We find express authority for or in sup-: 
port of our views in Brown v. Brabb, (Mich.) 34 N. W. Rep. 403; 
Crippen v. Jacobson, 56 Mich. 386, 23 N. W. Rep. 56; Waite v. 
Mathews, 50 Mich. 392, 15 N. W. Rep. 524; Fearey v. Cummings, 
41 Mich. 376, I N. W. Rep. 946; Dyer v. Thorstad, (Minn.) 29 N. 
W Rep. 345; Tliompson v. Van Vechten, 27 N. Y. 568; /ir^/z// v. 
Seymour, 48 Fed. Rep. 548; Root v. Harl, (Mich.) 29 N. W. Rep. 
29; Cutler V. Steele, (Mich.) 48 N. W. Rep. 631. In Brown v. Brabb, 
(Mich.) 34 N. W. Rep. 403, the court say: "The language of the 
statute contains no qualifications as to the time the creditors 
become such. It does not say that the unfiled mortgage shall be 
void as to subsequent creditors, and this has led some courts to 
hold that it is void as to all creditors. But a qualification is 



UNION NATIONAL BANK V. OIUM. 2O9 

plainly implied from the language of the whole section, con- 
sidered with reference to the object of the law. It must be 
remembered that the filing is designed to take the place of the 
delivery of thp property. The object of the law is to protect 
persons dealing upon credit with one who is in possession of per- 
sonal property as the ostensible owner, upon the reliance of such 
ownership, from secret conveyances by which he is enabled to 
obtain a fictitious credit to which he would not be entitled if the 
true situation were known. Until such secret conveyance is given, 
the law has no force. There is nothing for its provisions to 
operate upon, and the creditor has the protection of the ordinary 
remedies for the enforcement of his demands. These are not 
enlarged by the statute, and no new rights or remedies are con- 
ferred upon the creditor. To him it makes no difference whether 
the debtor sells, mortgages, or gives away his property, either 
secretly or openly, unless it is done with intent to defraud him. 
His remedy to reach the property conveyed depends entirely 
upon the fraudulent character and intent with which the debtor 
has conveyed it away. As to him, the debtor may secure 
another person by delivering the property to him, followed by a 
continued change of possession, in which case he would not be 
likely to extend any further credit. But suppose, instead, his 
debtor gives a mortgage in good faith, to secure an honest debt, 
to another creditor, or for a present consideration, for a loan of 
money; there is nothing in the quality of these acts by which he 
is injured. There is no legal wrong done him; nor is there any 
legal wrong done him if the mortgage is kept secret or unfiled, 
unless he has thereby been led to extend new credit or further 
time, or has been led to abstain from taking action to collect his 
debt, in ignorance of the real situation. It would seem unreason- 
able that without extending any new credit, or otherwise suffer- 
ing loss on account of the mortgage being kept from the files, or 
being filed in a wrong place, he could be permitted to say that 
the mortgage is void as to him, and that he would attach the 

N. D. R. — 14. 



210 NORTH DAKOTA REPORTS. 

property, and deprive the owner of his security, simply because 
he had failed to comply with the law. He has not been led to do 
or to omit doing anything upon the strength of such noncompli- 
ance with the statute. And herein lies the difference between 
his case and the innocent purchaser or incumbrancer under the 
recording laws. These protect subsequent purchasers and incum- 
brancers in good faith, who have been led to rely upon the record 
title. To my mind the reason why the word 'subsequent' was not 
inserted in the statute before the word 'creditors* was to meet 
just that contingency where an existing creditor might suffer art 
injury by relying upon the apparent situation, and so be damni- 
fied by postponing action, or extending time of credit already 
given, or possibly in some other manner." In T/wmpson v. Van 
Vcckten, 27 N. Y. 568, the court say: "But, when they [creditors] ' 
present themselves with their process, they may, I think, go back 
to the origin of their debt, and show, if they can, that, when it 
was contracted, the incumbrance with which they are now con- 
fronted existed, and was kept secret by being withheld from the 
proper office." In Kitchen v. Lotuery, (N. Y. App.) 27 N. E. Rep. 
357, the court say of certain unfiled chattel mortgages: "They 
may be void as to creditors, for the reason that- they were not 
filed at the time the credit was given." 

To sum up our views as to the proper construction to be given the 
word "creditors" in this statute, we say that the word must have 
some restriction placed upon its broad meaning to prevent the 
most absurd consequences; that there is nothing in the language 
or spirit of the law which will warrant the view that the right to 
assail an unfiled mortgage depends entirely upon the fact whether 
the seizure of the mortgaged property does or does not antedate 
the filing of the mortgage. Such a construction would result in 
extending protection when it ought not to be extended, and in 
withholding it when the creditor has a moral right to claim it. 
As the word must have some limitation placed upon its meaning, 
the only sound limitation is one which makes the statute har- 
monious in all its provisions, which docs not unreasonably 



r 



UNION NATIONAL BANK V. OIUM. 211 

discriminate either in favor of or against general creditors, but 
places them under the same protection accorded to incumbran- 
cers. Certainly it is unjustifiable to give the general creditor 
better protection under this statute than the creditor with 
security on the very property embraced in the unfiled mortgage. 
There is nothing in the words or policy of the law which lends 
countenance to a distinction so anomalous. We therefore hold 
that, as the' debt for which the attaching creditor seized the 
property was a debt contracted before the execution and delivery 
of the mortgage, and while, therefore, there was no default in 
filing it, and, as it does not appear that the creditor," after the 
giving of the mortgage and before it was filed, in any manner 
altered his position to his detriment, the mortgage lien is para- 
mount, even assuming that a valid levy was made before the 
mortgage was filed. ' 

It is next urged that the plaintiff is not entitled to judgment 
for a delivery of the property, because, as it is contended, his 
once valid lien has been lost by his failure to renew the mortgage 
by refiling a copy of the same, together with a statement of the 
amount due, as required by chapter 41 of the Laws of 1890. This 
is a most peculiar law. It has certainly not answered its purpose 
if the object of its enactment was to settle controversies with 
respect to the meaning of the then existing laws regulating 
. that subject. It provides as follows: "That a mortgage of per- 
sonal property shall, unless duly renewed as provided in § 2 of 
this act, cease to be valid as against the original mortgagee and 
mortgagor, his heirs or assigns, and against any attaching or exe- 
cution creditor of the mortgagor, or any subsequent purchaser or 
mortgagor of the property, in good faith, whether the title of 
such purchaser shall vest, or the lien of such creditor or mort- 
gagee shall attach, prior or subsequent to the expiration of the 
three year period or periods in § 2 of this act mentioned. Section 
2. In order to preserve and continue its priority of lien, every 
chattel mortgage must, not less than ten or more than thirty days 
immediately preceding the expiration of three years from the 



212 NORTH DAKOTA REPORTS. 

date of the filing thereof, be renewed by the filing in the oflSce of 
the register of deeds of the proper county of a copy of such 
mortgage, together with a statement of the amount or balance of 
the mortgage debt for which a lien is still claimed, duly sub- 
scribed and sworn to by the then owner of the mortgage, his 
agent or attorney; and in like manner thq copy and statement of 
debt must be again filed every three years, or the mortgage shall 
cease to be valid as against the parties in § i of this act men- 
tioned." This statute must be construed with a view to the 
object of the law in requiring a chattel mortgage to be filed and 
to be refiled after the lapse of a certain period. Filing is a substi- 
tute for possession. Jones, Chat. Mortg. § § 176, 178, 236, 237; 
Morrow v. Reed^ 30 Wis. 81; Harrington v. Brittany 23 Wis. 541; 
Dolan V. Van Demark^ (Kan.) 10 Pac. Rep. 850; Fromme v. Jones ^ 
13 Iowa, 474; Janvri7i v. Fogg^ 49 N. H. 340; Kelley v. Reynolds y 
39 Mich. 467; Nicklin v. Nelson^ (Or.) 5 Pac. R*p. 51. When 
possession is immediately delivered, it is unnecessary to file the 
mortgage. If possession is taken by the mortgagee before the 
period arrives at which the mortgage is required to be renewed, 
there is no reason why the failure to renew it should effect its 
validity. There is ample authority to support this construction 
of the statute. Daytoii v. Bank, 23 Kan. 421; Jones, Chat. Mortg. 
§ § 294, 297; Porter v. PamUyy 43 How. Pr. 445, 459, on appeal, 52 
N. Y. 185; Howard v. Batiky (Kan.) 24 Pac. Rep. 983, 985. See,- 
also, Hatiselt v. Harrison^ 105 U. S. 401; Applewhite v. Mill Co,y 
(Ark.) 5 S. W. Rep. 292; Bank v. Sprague, 21 N. J. Eq. 530. The 
plaintiff took possession of the property, under claim and 
delivery proceedings in this action, long before he was required 
to renew his mortgage, and was in possession of the property at 
the time of trial. The judgment in this case required him to 
return the property to the defendants. Being in possession before 
the time arrived at which the statute requires a chattel mortgage 
to be renewed, there was no occasion for renewing it. We think 
that, upon this record the plaintiff was entitled to recover 
except as to the engine, separator, and some of the plows. For 



UNION NATIONAL BANK V, OIUM. 21 3 

the error of the court in rendering judgment for the defendants 
upon the findings, the judgment is reversed, and a new trial 
ordered. All concur. 

ON REHEARING. 

We have carefully considered the petition for rehearing. It has 
not convinced us that we were in error. It is urged that it 
appears that the mortgagee took its security for an antecedent 
debt, and that, therefore, it does not occupy the same vantage 
ground which it would have held had the mortgage been taken to 
secure a loan made on the strength of that security. This con- 
tention is founded on an utter misapprehension of the question. 
A mortgagee, whether for a present or an antecedent debt, whose 
security is prior in point of time, is entitled to priority of lien 
except as such priority is affected by the statute. We hold that 
one who attaches for a debt incurred before any default in filing 
the mortgage exists is not entitled to the protection of the 
statute; that he is not within its manifest policy and spirit. To 
bring himself within the act, he must show that he parted with 
value while the default existed. But a mortgagee who hsls first 
obtained a valid Hen has a right to rely upon the priority secured 
by what the law regards as his superior diligence, whether the 
mortgage is to secure an old or a new debt. His lien is protected, 
unless the creditor can point to a statute which denies the mort- 
gagee such .protection. The question whether the attaching 
creditor comes within the statute is in no manner affected by the 
inquiry whether the mortgagee took his security for an existing 
claim or a newly credited indebtedness. This inquiry only 
becomes important as to one whose lien is subsequent in point of 
time, but who claims priority of right. It is never made to deter- 
mine the rights of one who has secured the first lien in point of 
time. He stands on his legal priority until one having a subse- 
quent lien brings himself within some statute which will give him 
priority of right. 

It is also urged that the attaching creditor was injured by the 
delay in enforcing his claim, induced by the failure to file the 



214 NORTH DAKOTA REPORTS. 

chattel mortgage, creating in his mind the belief of the solvency 
of the debtor. It would be difficult to support such a contention 
under the facts in this case, the execution of the mortgage having 
been followed by the levy of the attachment within a few days. 
But considering this argument in the abstract, without reference 
to the particular facts of this litigation, we can see no force in it. 
It amounts to this: That a creditor may be as greatly prejudiced 
by refraining from action, relying on the silence of the record, as 
if by a binding agreement he had actually extended the time of 
payment. But how is the creditor injured by the withholding of 
the mortgage from the record under such circumstances? Had 
the mortgage been immediately filed, he must have attached sub- 
ject to it. He is in no worse position if he attaches, and the 
mortgagee who has not filed his security claims and is allowed 
priority. The mortgage is simply a first lien, as it would have 
been had it been promptly filed. But where time of payment is 
extended by binding agreement, the creditor is seriously detri- 
mented, because the mere subsequent discovery of an unfiled 
chattel mortgage will not entitle him to rescind the agreement 
extending the time of payment, there being no fraud. To hold 
that mere inaction entitles one to protection would be to overturn 
elementary principles. It would destroy the distinction which 
has always been recognized between subsequent incumbrancers 
for a newly created indebtedness and those who have merely 
taken security for antecedent obligations. To remain passive for 
a day because lulled into a sense of security by the silence of the 
record would as fully entitle to protection as to stand inactive for 
a week or a month, or even a year. Upon this theory, then, every 
moYtgagee for an existing claim would become, at least after the 
expiration of a day, an incumbrancer entitled to protection as 
against a prior unrecorded instrument. But all authority is 
against this. 

It is also urged that this rule will have a tendency to encourage 
fraud by inducing the withholding of mortgages from record. 
This argument, if such it can be termed, applies with equal force 



UNION NATIONAL BANK V. OIUM. 21 5 

to the doctrine that a subsequent chattel mortgagee for an ante- 
cedent debt is rfot protected as against an unfiled prior mortgage 
on the same property. The first mortgage maybe withheld from 
record for a year, and yet one who was a creditor when it was 
given, and who has not since it was executed altered hi^ position 
to his disadvantage, cannot, by taking a second mortgage on the 
property, although without knowledge of the unfiled lien, secure 
any priority, however long thereafter the first mortgage is kept 
from record. If the mortgage in either case is kept from record 
for a fraudulent purpose, a different rule would apply. Nor do 
we think that one who takes security for an honest debt will care 
to risk that security by failing without reason to file it as required 
by law. There can be no pretense, under the facts of this case, 
that the attaching creditor refrained from taking steps to collect 
his claim because of the silence of the record. Only three days 
elapsed between the execution of, the mortgage and the com- 
mencement of the action in which the property was seized. He 
was not stirred to action by discovering that a chattel mortgage 
had been given. Nor is there aught to indicate that he would 
have enjoyed any more advantageous position had' the mortgage 
been filed the day it was given, and had he thereafter and on the 
same day commenced his suit and seize the property. It is said 
that, if the creditor whose claim accrues while the default in 
filing the mortgage exists is to be protected even after the mort- 
gage-is filed, he may wait two years, and then, by attaching, sur- 
prise the mortgagee, who will be injured because he has not anti- 
cipated that his lien could be so defeated. But is the innocent 
creditor who parts with his money on the strength of the mortga- 
gor's credit — a credit frequently created because of his ownership 
of unincumbered property — to be debarred his rigljt to rely on 
the silence of the record merely by reason of the filing of the 
mortgage before he can seize the property for his claim? Debts 
are seldom payable when incurred, and, if the subsequent filing of 
the unfiled instrument is to destroy the innocent creditor's right 
to protection, the greatest injustice will be done him; for it will 



2l6 NORTH DAKOTA REPORTS. 

be generally, if not invariably, impossible for him to sue upon his 
claim until some time after the debt is contracted/ Moreover, to 
assert that the mortgagee would be surprised by a seizure after 
two years is to beg the question. He is not surprised if the law 
entitles such creditor to protection whenever he attaches. The 
mortgagee knows that he runs the risk of his lien being defeated 
by such a creditor if he fails for a time to file his mortgage; and 
if the right to priority has once attached to such creditor's debt, 
and if it can be secured by a seizure before the mortgage is filed, 
wherein is the mortgagee detrimented if such seizure is allowed 
priority when made after the mortgage is filed? We are aware 
of decisions which place a different construction upon similar 
statutes. We had examined them before the original opinion in 
this case was written, but could not give them our approval. To 
follow them would conduct us to this anomalous position: Had 
the attaching creditor in this case been met at the farm by an 
offer to give him a mortgage on the same property, and had this 
offer beei) accepted by him, there is not an adjudication which 
would have upheld this mortgage as a lien prior to the unfiled 
mortgage had the former been received merely as security with- 
out any extension of time or other act on the part of the creditor 
to his prejudice. And yet, by a refusal to accept security, it is 
contended that, under the same statute which has denied him 
protection as mortgagee, the creditor has actually increased his 
rights, and has secured protection. He has been benefited by his 
rejection of the proffered security. A number of Minnesota 
cases are cited as controlling. They are not at all in point. In 
Murch V. Swenseiiy 40 Minn. 421, 42 N. W. Rep. 290, the question 
arose under the Minnesota statute of frauds, providing that every 
sale, unless accompanied by an immediate delivery, and followed 
by an actual and continued change of possession, etc., is presumed 
fraudulent and void as against creditors, etc., unless it appears 
that the transfer was made in good faith. The word "creditors" 
as used in this statute, is expressly defined by the next section to 
mean all persons who are creditors of the vendor at any time 



UNION NATIONAL BANK V, OIUM. 21 7 

while the property remains in his possession or under his control. 
Gen. St. 1878, Ch. 41, § 16. There is no such definition of the 
word "creditors" as used in our registry law relating to the filing 
of chattel mortgages. Moreover, the object and construction 9f 
such a statute are different from the purpose and interpretation of 
a mere registry law. In Tolbert v. Horton,;^\ Minn. 518, 18 N.W. 
Rep. 647, all that was decided was that a subsequent mortgagee 
who took with actual notice of a prior unrecorded mortgage is 
not entitled to protection. How this can be an authority for the 
contention of the attaching creditor in this case that he can claim 
protection it is difficult to see. It will be noticed that the Minne- 
sota statute is radically different from ours. It contains an ele- 
ment whiih makes it, as to mortgages, a statute against frauds 
and perjury. In that state the mere filing of the instrument will 
not suffice. There still exists, if the property is not delivered, a 
presumption of fraud which must be overcome. Gen. St. 1878, 
Ch. 39, § I. Our registry law contains no such feature. Section 
4379, Comp. Laws. See, also, § 4657, Id. This peculiar provi- 
sion of the Minnesota act is noticed by both opinions in the case, 
as well the dissenting as the prevailing opinion. In the con- 
struction that such statute was more than a mere registry law all 
members of the court agreed. Says Judge Mitchell: "Our 
statute on chattel mortgages is not a mere registry law, as seems 
to be often assumed. It is a statute declaring certain mortgages 
void as to certain persons unless certain things exist or are 
affirmatively made to appear." Baitk v. Ellis, 30 Minn. 270, 15 
N. W. Rep. 243, merely decides that it is not essential to the pro- 
tection of a subsequent chattel mortgagee in good faith, as 
against an unfiled prior chattel mortgage, that the former should 
place his mortgage on file before the prioi; mortgage is filed. 
This decision stands firmly on the language of the statute. But 
the fact that the subsequent mortgagee was a mortgagee in good 
faith was not controverted, and it affirmatively appeared in aid of 
the presumption that he was a bona fide mortgagee; that the 
mortgagee, on taking the security for an existing debt, surrendered 



2l8 NORTH DAKOTA REPORTS. 

a valid attachment lien on the mortgagor's crops, thus alter- 
ing his position to his disadvantage, relying upon the mortgage. 
This, under all of the authorities, constituted him a bona fide 
incumbrancer. The New York cases cited to support the view 
that the seizure before the actual filing of the instrument gives 
priority fully support this position. But the highest court in 
that state has not passed directly on this point. Karst v. Gafie, 
6i Hun, 533, i6 N. Y. Supp. 385, and cases there cited. Says Mr. 
Jones in his work on Chattel Mortgages, (§ 245:) "But in New 
York it is held thata mortgage not duly filed is void as against a 
general creditor whose claim has accrued during the continuance 
of the default in filing the mortgage, although the creditor is not 
in a position to raise the question until he has obtained a judg- 
ment or process against the property. The object of the act is to 
prevent the setting up of secret mortgages against persons who 
may deal with the mortgagor on the faith that his property is not 
thus incumbered. Therefore, when a creditor has obtained 
judgment and execution, he may go back to the origin of the 
debt, and show, if he can, that, when it was contracted, the incum- 
brance with which he is thus confronted was kept secret by being 
withheld from registry;" citing TJtompsoJi v. Van Veckten, 27 N. Y. 
568; Stewart v. Beale, 7 Hun. 405; Fraser\. Gilbert, 11 Hun. 634. 
In this condition of the decisions in that state we believe that the 
court of appeals will finally settle the construction of their regis- 
try law, which is the same as ours, in accordance with the views 
we have herein expressed. 

It is also urged that the description in the mortgage was not 
sufficient as to third persons until the mortgage was filed. It 
may be that the language of the opinion was susceptible of the 
construction that the statement in the mortgage that the property 
was on a certain section, in a particular township and range, was 
insufficient as to attaching creditors until the mortgage had been 
filed. But this is not our view. Whenever a description is 
challenged as insufficient^ we arc to inquire whether the creditor, 
after inspecting the instrument, and aided by the inquiries it 



UNION NATIONAL BANK V. OIUM. 219 

suggested, could ascertained what property was intended to be 
mortgaged. Apply that rule to this case. The property was 
attached on a piece of real estate answering to the description 
contained in the mortgage of the land on which the mortgaged 
property was situated. Property the same as that described in 
the mortgage is found there. It is owned by the mortgagor. The 
creditor is aware of his ownership. It is seized by him as the 
mortgagor's property. Would a sane person entertain a doubt 
whether the mortgage was intended to cover the property seized? 
It will not do to assert that the creditor could not know of the 
contents of the mortgage until it had been filed. Not being 
within the protection of the law, he is bound to know of the 
mortgage and its contents without filing. If a creditor or 
mortgagee may insist that a description in an unfiled mortgage is 
not good merely because he did not know of the mortgage, he 
can always defeat an unfiled mortgage containing the most minute 
and perfect description of the property, although he does not fall 
within the scope of the statute which annuals the instrument as 
to certain classes of persons unless filed. The description, if good 
as to third persons when the mortgage is filed, is equally good as 
to them altliough the instrument is not filed. Whether such third 
persons are protected under the statute as against such unfiled 
mortgage is an entirely distinct and different question. 

The petition for rehearing is denied. 

Wallin, J., having been of counsel, took no part in the above 
decision. 

(54 N. W. Rep. 1034.) 



220 north dakota reports. 

Patrick Fahey vs. Esterley Machine Company. 

Opinion filed March 2 1st, 1893. 

Rescission by Buyer— Notice of Breach of Warranty to Seller. 

Before the purchaser after sale can recover back the purchase price, on the 
theory of breach of warranty and rescission, he must fully perform all 
conditions precedent on his part to be performed according to the terms of the 
warranty. On sale of a harvester, the contract of warranty provided that the 
purchaser should give written notice of defects, not only to the agent from 
whom the machine was received, but also to the company at its headquarters. 
No notice to the company was given. J/^/J, under the evidence, that there 
was no waiver of this requirement, and that therefore > plaintiff could not 
recover back the purchase price on breach of warranty, although the machine 
was returned by him. 

Res Judicata. 

When it is not certain that the same question was determined in favor of the 
party, in imother action, who relies on the judgment therein as conclusive as 
to such question, the judgment is not final on the point. He/d that, in an 
action to recover the purchase price of a harvester, on the theory of a breach 
of the warranty and rescission of the contract, defendant herein could not rely 
on a judgment against plaintiff in favor of the indorsee for value of a note 
given by plaintiff on the purchase of such harvester, as settling the issue of a 
breach of warranty and rescission of the contract of sale against the plaintiff, 
for the reason that the judgment against plaintiff might have been rendered on 
the ground that, despite a breach of warranty and rescission of the contract of 
sale, the indorsee of the note might have recovered as an innocent purchaser 
thereof before maturity ; such a defense not being available as against such a 
purchaser of negotiable paper, and there being nothing to show on what 
particular ground the judgment was rendered. 

Transfer of Note— Recovery of Amount of Note Upon Rescission for Breach 
of Warranty. 

Where a purchaser of property gives his note therefor, and afterwards 
rescinds the contract of sale on the ground of breach of warranty, he may 
recover the amount of the note and interest, without first paying the same, 
when the note was negotiated before maturity to an innocent purchaser for 
value. But the judgment should provide that upon the return of the note to 
the plaintiff, and his release from all liability thereon growing out of any 
judgment which has been recovered thei'eon, and on payment of costs within a 
specified time, the judgment should be satisfied. 

Appeal from District Court, Richland County; Lauder, J. 
Action by Patrick Fahey against the Esterley Harvesting 
Machine Company for a rescission of contract. Plaintiff had 



■P»^^' 



FAHEY V, ESTERLEY MACHINE COMPANY. 221 

judgment, and from an order denying a new trial, defendant 
appeals. Reversed. 

McCumber & Bogart, for appellant. 

Where the warranty under which machinery is sold requires 
written notice to be given the vendor or its agents in case of 
breach, no action based on such breach is maintainable unless such 
notice has been given. Nicholas v. Wyman, 32 N. W. Rep. 258; 
Fumeaux v. Esterly, 13 Pac. Rep. 824; Nicholas v. Larkiji, 79 Mo. 
264; Nicholas v. Hall, 4 Neb. 210; Miller y, Nicholas, 5 Neb. 478; 
Bamberger v. Greiner, 18 la. 477; Dewey v. Borough, 14 Pa. St. 211. 
Where contract provides that keeping the machine during a 
certain season shall be conclusive evidence that it fulfills the 
warranty — keeping it during such time waives any defense based 
on the warranty. Wendall v. Asdom, 18 N. W. Rep. 709; Bayliss v. 
HcTtnesy, 6 N. W. Rep. 46. 

W. E. Purcell and Z. B, Everdell, for respondent. 

Corliss, J. The basis of this action is the rescission of a 
contract for the sale and purchase of a twine-binding harvester. 
The plaintiff purchased the property of the defendant for $110, 
giving his negotiable promissory note therefor. Upon the sale a 
written warranty was given to plaintiff by defendant. Plaintiff, 
claiming that the harvester was not as warranted, returned the 
machine, and brought suit to recover the purchase price, alleging 
the defendant had negotiated the note before maturity thereof. 
One of the defenses set forth in the answer was estoppel by 
record. This defense was struck out on motion at the trial. We 
are thus compelled to determine its sufficiency. It set up, in 
substance, that the note was transferred to the First National 
Bank of Whitewater, Wis., and that suit was brought upon it by 
the bank before a justice of the peace, and that in that suit the 
defendant therein, and the plaintiff in the case at bar, relied as a 
defense upon the same breach, of warranty, followed by the same 
rescission of the contract of purchase, which constitutes the 
groundwork of his cause of action in this case. Judgment was 



222 NORTH DAKOTA REPORTS. 

rendered in that action against the defendant therein (the plaintiff 
in this case) for the full amount of the note. The defendant in 
th^ present action was not a party to that suit; but waiving this 
point, whatever force it may have, we are clear that the trial court 
did not err in holding the defense insufficient. The record of the 
case before the justice of the peace is set forth in the answer. It 
appears from that record that the plaintiff therein alleged that it 
purchased the note, and that the same was indorsed to it by the 
payee before maturity for a valuable consideration and in good 
faith. This averment was denied. But we are unable to say that 
the court did not find this fact in favor of the plaintiff. Such a 
finding would, of course, preclude all inquiry into the questions 
of the breach of warranty and rescission. Even though the justice 
had been convinced of the truth of the defense in this regard, he 
must have given judgment for plaintiff because of his being a 
bona fide purchaser before maturity. It thus appears, upon the 
face of the answer in the case at bar, that the former judgment 
may have rested on either of these points, — that there was no 
breach of warranty and rescission, or that the defendant therein 
could not, despite such breach of warranty and rescission, sustain 
his defense, because the plaintiff therein was a good faith purchaser 
and indorsee of the note before maturity. The defendant in the 
case at bar should have shown, by additional allegations in his 
answer, that the issue as to the breach of the warranty and 
rescission was in fact found against the defendant in that case, the 
plaintiff herein. When the record does not settle the question, 
oral evidence is admissable to show what Avas in fact decided; but 
the answer must clearly show the ultimate fact, as to what was 
decided. If that fact is left in doubt by the answer the defense 
fails. The case we have to decide falls within that class of cases 
where a judgment on one cause of action is sought to be used as 
conclusive in a suit on another cause of action. In such cases the 
judgment is final only as to the matters which were in fact deter- 
mined in the former case and adjudicated by the judgment. Foye v. 
Patch, 132 Mass. 105, and cases cited; Stone v. Stamping Co,, Mass. 29 



FAHEY V, ESTERLEY MACHINE COMPANY. 223 

N. E. Rep. 623; Cromwell v. County of Sac., 94 U. S. 351 ; Nesbit v. 
Independent Disty 144 U.S. 610, 12 Sup. Ct, Rep. 746; Bellv, Merrifield, 
109 N. Y. 202, 16 N. E. Rep. 55. The least uncertainty as to what 
was in fact determined in the suit before the justice of the peace 
is fatal to the use of the judgment as an estoppel on the question 
of breach of warranty and rescission. This uncertainty created 
by the record of the proceedings before the justice is not in any 
manner cleared up by allegations in t^he answer that the question 
was in fact determined by the justice against the defendant therein, 
the plaintiff in the case at bar. ^'According to Coke, an estoppel 
must be certain to every intent; and if upon the face of a record 
anything is left to conjecture as to what was necessarily involved 
and decided, there is no estoppel in it when pleaded, and nothing 
conclusive in it when offered as evidence, Tt is undoubtedly 
settled law that a judgment of a court of competent jurisdiction, 
upon a question directly involved in one suit, is conclusive as to 
that question in another suit between the same parties. But to 
this operation of the judgment it must appear, either upon the 
face of the record, or be shown by extrinsic evidence, that the 
precise question was raised and determined in the former suit. If 
there be any uncertainty upon this head on this record,-— as, for 
example, if it appear that several distinct matters may have been 
litigated, upon one or more of which the judgment may have 
passed without indicating which of them was thus litigated, and 
upon which the judgment was rendered, — the whole subject matter 
of the action will be at large, and open to a new contention, unless 
this uncertainty be removed by extrinsic evidence showing the 
precise point involved and determined." Russell v. Place, 94 
U. S. 606. To same effect are Bell v. Merrifield, log N. Y. 
202, 16 N. E, Rep. 55; Stozvell v. Chatnberlain, 60 N. Y. 
272; Stone V. Stamping Co,, (Mass.) 29 N. E. Rep. 623; Cook v. 
Burnley, 45 Tex. 97; McDowell v. iMngdon, 3 Gray, 513; Downer v. 
Shaw, 22 N. H. 277, Chrisman v. Harman, 29 Grat. 494; Lea v. Lea, 
99 Mass. 493. If everything alleged in this part of the answer had 
been established on the trial, it would have been impossible to 



224 NORTH DAKOTA REPORTS. 

determine what was in fact settled by the judgment given by the 
justice of the peace; whether the defendant was liable because 
there was not a breach of warranty and rescission, or because, 
notwithstanding such breach and rescission, the defense must 
fail as against th^ plaintiff, found by the court to be a bona 
fide purchaser of negotiable paper before maturity. To recover 
it was incumbent on plaintiff to show that he had performed all 
the conditions precedent of .the warranty to be performed on his 
part. This he did not do. Mere breach of the warranty did not 
entitle him to rely upon its promises. He must have taken action 
to hold the defendant to its warranty after a breach. It is only 
upon giving written notice to the agent from whom he received 
the machine, and also to the Esterley Harvester Machine Company 
at Whitewater, Wis., that he is allowed to avail himself of the 
warranty. Failure to give such notice, it is provided, is conclusive 
against the purchaser's right to rely on the warranty. The same 
evenhanded justice which requires the defendant to keep its 
promise demands of the plaintiff that he perform his part of the 
agreement. Neither will it do to assert that notice to the company 
in addition to notice to the agent from whom the machine was 
received, was of no value to the company. The plaintiff has 
foreclosed all inquiry into that question by agreeing to give such 
notice. Nor is it difficult to conceive of good reasons for requiring 
this additional notice. Agents in their zeal to establish a reputation 
for making sales, and in their natural desire to earn commissions, 
may often be inclined to go to greater lengths in their endeavor 
to sustain a sale than the sound business judgment of the company 
would approve. It is necessary that the company should have 
direct notice of the purchaser's claim that the machine is 
unsatisfactory, that the company may act itself in determining 
what shall be done in such an exigency. If notice is to be given 
only to the agent, there is no certainty that the company will ever 
in fact know of the trouble, in time to act prudently. It may 
often learn of it too late to save itself from heavy loss, and many 
find its right seriously embarrassed y^y the actions and agreements 



FAHEY V. ESTERLEY MACHINE COMPANY. 225 

of a subordinate agent directly interested in supporting the sale. 
Other sound business reasons will readily suggest themselves to 
the mind for insisting upon such notice as will insure actual 
knowledge of the trouble at the headqarters of the company. In 
this case notice was given to the agent, but no notice, either written 
or oral, was ever given to the company as required by the warranty. 
Was the giving of such notice waived by the conduct of any of 
defendant's agents? We think not. We find no evidence showing 
any action taken by any agent of the defendant having authority 
to act for it in the matter of receiving such notice. Certainly, 
notice to the agent from whom the machine was received was not 
notice to the company. To hold otherwise would render meaning- 
less that clause which provides for notice to the company in 
addition to notice to such agent. All the evidence of a Waiver of 
such notice is that which relates to the conduct and words of 
certain experts employed by defendant, but not sent specially to 
fix plaintiff's machine, but placed under the control of the agent 
by whom it was sold, to keep the machines sold by the company 
in repair. These facts do not show any authority in these experts 
to substitute their judgment for that of the company in deciding 
the business proposition, what should be done when complaint 
should be made that a particular machine was not, when sold, in' 
the condition warranted. They were to fix such machines as the 
company should conclude to fix, but there was nothing in the 
nature of their employment which gave them authority to 
substitute their judgment for that of the company in determining 
what should be done in any particular case in which the claim of 
breach of warranty should be made. It is absurd to suppose that, 
while notice to^the agent was not to be sufficient, the company 
intended that these experts, exercising special powers, under the 
agent himself, and acting under his direction and control, were to 
be given complete authority to do away in any case with this 
explicit requirement that written notice should be sent to the 
home office, — a requirement so important to enable them to protect 

N. D. R. — 15. 



226 NORTH DAKOTA REPORTS. 

their rights. Is there greater certainty that an expert, acting 
entirely under the direction of the agent, will bother himself to 
notify the company of difficulties of which his immediate superior 
has notice, and which he is setting about to remedy? The waiver 
of notice must come from some agent having power to waive it. 
The warranty expressly provides that " no agent or expert has 
any authority to add to or abride or change it in any manner." 
The power to waive notice was not in fact vested in these experts, 
or any one of them ; there was nothing in the nature of their 
employment or the kind of work they were performing to justify 
the belief that they were authorized to decide for the company all 
matters it would be called upon to decide when apprised of a claim 
of breach of warranty; and therefore they had no power to do 
away with the necessity of notice. The purchaser was distinctly 
informed that they had no such power, and in the same connection 
he agreed to give notice to the company itself, — an act simple in 
its nature, and easy of performance. Business faith required him 
to send such notice, whatever the agent or other persons might 
say, for the very nature of the requirement informed him that the 
company desired and insisted upon such a notice, that there would 
be no uncertainty of its receipt at the center of power and 
responsibility, — to guard against the concealment of facts by 
local agents who might be tempted to withhold full information. 
The case is so plain that we do not feel the need of authority. 
But we find adjudications in harmony with our views: Fumeauxw. 
Esterly, (Kan.) 13 Pac. Rep. 824, and cases cited; Nicliols v. Knowles, 
(Minn.) 18 N. W. Rep. 413. 

It is urged that the court erred in striking out what is designated 
as the equitable defense in the action. On the theory that plaintiff 
might be able to show, on a new trial, a waiver of the condition 
requiring notice to be sent to the home office, we will refer to this 
point. The true theory of this action is that the consideration 
for the $110 note failed because of a breach of the warranty, 
followed by the performance by the plaintiff of all the conditions 
of the warranty, and by a complete rescission, and that it then 



FAHEY V, ESTERLEY MACHINE COMPANY. 22/ 

become the duty of the defendant to return the note. The 
authorities seem to sustain the doctrine that on demand for a note, 
under such circumstances, the cause of action arises, and that the 
maker may recover the full face value thereof, although he has 
not paid it or been held liable upon it. Tltayerv, Manley, 73 N. Y. 
305; Comstock V. Hier, Id. 269; Famkam v. Benedict, 107 N. Y. 159, 
13 N. E. Rep. 784; Decker v. Matthews, 12 N. Y. 313. Where the 
note has been negotiated before maturity for value, as in this case, 
there would seem to be no doubt as to the soundness of the doctrine ; 
and when the note is still in the hands of the original party, the 
defendant, but is not due when the action is brought, the rule 
ought to be and is the same. Tliaycr v. Manley, 73 N. Y. 305. 
Neither does the fact that the maker might restrain the negotiation 
of such a note, and compel its surrender in an equitable action, 
affect his right to maintain an action at law for damages, Id. But 
the judgment ought not to be absolute, if the defendant requests 
the privilege of restoring the note, and saving plaintiff- from all 
possibility of loss on account thereof. The plaintiflf has paid 
nothing. His right to damages depends upon the danger of being 
compelled to pay the note. When that danger is removed, it 
would be a perversion of justice to allow him still to recover 
judgment for a damage he has not suffered, and cannot possibly 
suffer in the future. If the judgment is to stand absolute, then 
the note becomes valid, and another action is necessary to settle 
rights which ought to be adjusted in one suit. Under our system 
the defendant may urge as defenses matters in legal actions, which 
under the old system he must by appropriate equitable actions 
have relied on as the basis of equitable relief. The policy 
of the law is to settle all the controversy in a single suit. 
If the maker is insolvent, the defendant is powerless to 
compel him to disgorge what he has received without any 
substantial right thereto. The defendant, however, has assumed 
that the rfact of nonpayment of the note, when coupled 
with the insolvency of the maker, would constitute an absolute 
defense. In this we think he is in error. His right is to have the 



228 NORTH DAKOTA REPORTS. 

judgment contain a provision which will enable him, by a return 
of the note within a certain time, and the payment of the costs, 
and the satisfaction of the judgment obtained on the note by the 
First National Bank of Whitewater, to have the judgment in this 
case satisfied, should such a judgment on a new trial be rendered 
against defendant. Thayer v. Manley, 73 N. Y. 305. 

For the error of the court in refusing to take the case from the 
jury, on the ground that plaintiff had failed to comply with the 
condition of the warranty requiring written notice of the defect 
to be given to the company at their office in Whitewater, Wis., 
the order denying motion for a new trial is reversed, and a new 
trial is ordered. All concur. 

ON REHEARING. 
(April 14, 1893.) 

We have carefully considered the petition for rehearing, but are 
unable to agree to the view therein stated, and which appears to 
have been the view of the learned trial judge. The contention in 
the petition is that sending out these experts was a waiver of the 
provision requiring notice to the company at the home office; or 
that a reasonable man would be justified in construing it as a 
waiver. They were sent out to remedy such defects as the 
company should decide to remedy, and not to make that decision 
for the company in any particular case. It was convenient and 
even necessary to have them so near their field of labor that they 
could readily do the work which the company might decide to 
do. But so placing them that they would be reasonably close to 
whatever work they might be called upon to perform was no 
evidence of a purpose to do away with the provision requiring 
notice at headquarters. Nor could it be construed by any 
reasonable man as a waiver of such notice. They were not sent 
out as business managers to decide whether in a given case an 
alleged defect should be remedied, — whether the company in case 
of breach of warranty would furnish another machine, as it might 
under the contract, or remedy the defects in the one sold; they 



CANHAM V. PLANO MANUFACTURING CO. 229 

were sent out as mere experts in the performance of the kind of 
work involved in making a defective machine a good one. On 
what principle, then, can it be said that the company intended to 
waive this provision touching notice, and, in effect, intrust these 
important business questions to the decision of those who were 
not employed or sent out for that purpose. The petition for a 
rehearing is denied. 
(55 N. W. Rep. 580.) 



John Canham vs, Plano Manufacturing Co. 

Opinion filed March 21st, 1893. 

Power of Agent Selling Machine to Warrant the Same. 

An agent authorized to sell binders for another has power to warrant that the 
binders will do as good work as any other machine in the market. 

Secret Restrictions— Not Binding. 

His general authority to so warrant cannot be restricted as to third persons 
who have no knowledge of such restriction. 

Holding Machine at Request of Selling Agent— Not Waiver of Right to 
Rescind. 

Where the purchaser of a binder was induced to keep the machine by 
repeated promises and attempts to fix the same, made by the agent who sold 
the same, a return of the binder immediately after discovering that it would not 
work as warranted, after the last attempt to fix it, is in time to entitle purchaser 
to claim that he has rescinded the contract for breach of warranty promptly, 
within the provisions of § 359 it Comp. Laws. 

After Rescission for Breach of Warranty Vendee May Sue for Value of Note. 

Fah^ v. Han>esHng Co.^ 55 N. W. Rep. 580, 3 N. D. 220 (decided at this 

' term,) followed as to liability of vendor of property sold with warranty, when 

the contract of sale is rescinded by vendee for breach of warranty, for the 

amount of a negotiable note given for purchase price, negotiated to a bona 

fide indorsee before maturity, although such note has not been paid. 

Appeal from District Court, Richland County; Lauder, J. 



230 NORTH DAKOTA REPORTS. 

Action for breach of contract by John Canham against the 
Piano Manufacturing Company. Plaintiff had judgment, and 
defendant appeals. 

Affirmed. 

JV. E.^Purcell2SiA L, B, Everdell, for appellant. McCutnber & 
Bogarty for respondent. 

Corliss, J. The defendant sold and delivered to plaintiff a 
twine binder. For this, plaintiff gave his three promissory notes. 
He subsequently returned the machine claiming that there was a 
breach of the warranty accompanying the sale, and, having paid 
two of these notes, he brings suit to recover the amount so paid, 
and also the amount due on the other note.*^ If there was a valid 
warranty on such sale, and a breach thereof, and a valid rescission 
of the contract, then the consideration for these notes failed, and 
it was the duty of the defendant to return the note which remained 
unpaid, and to restore the money which had been paid by the 
plaintiff in satistaction of the other two"" notes. One of the notes 
was paid to the agent on his promise to remedy defects in the 
machine, and the other one was paid by plaintiff to one claiming 
to be an innocent purchaser for value. In making these payments 
plaintiff did not waive his right to a return of the money on failure 
of the consideration of these notes. The other note having been 
negotiated before maturity by the defendant, it is liable to plaintiff 
for the amount due thereon if a failure of consideration is 
established. Fattey v. Harvesting Co., 55 N.W. Rep. 580, (decided 
at this term,) and cases there cited. 

The sufficiency of the complaint was challenged, but it is clearly 
sufficient. It shows a breach of warranty and rescission of the 
contract which would entitle plaintiff to recover the amounts paid 
on the two notes and the amount due on the note negotiated by 
defendant before maturity. All these facts relating to these notes 
are fully set forth in the complaint. It therefore states a cause of 
action. The court directed a verdict for the plaintiff for the full 
amount claimed. From the judgment entered upon this verdict, 



CANHAM V. PLANO MANUFACTURING CO. 23 1 

defendant appeals. Was it error to direct this verdict ? The 

machine was sold by an agent of the defendant whose name was 

Crafts. The warranty was oral. It was, in substance, that the 

binder would do as good work as any other binder in the market. 

There is no controversy either as to the fact of this warranty, or 

as to the fact of a breach thereof. But it is insisted that the 

plaintiff did not rescind the contract promptly, after discovering 

the defect. This would be fatal to plaintiff's recovery unless he 

was induced to delay action by defendant's promise to make the 

machine work. Section 3591, Comp. Laws. The sale was in July, 

1889, and the binder was not in fact returned until August 4, 1890. 

It is undisputed however, that the agent Crafts fepeatedly promised 

to put the binder in working order, and requested the plaintiff to 

keep it, to enable him (Crafts) to do this. A number of efforts 

to fix it were made during the season of 1889, but they all proved 

abortive. Each time the attempt failed, plaintiff expressed his 

determination to return the binder, but was deterred from doing 

so by Crafts' repeated promises to make the binder do good 

work, and his often repeated entreaties that the plaintiff keep the 

machine, to give him (Crasts) a chance to make it fulfill the 

warranty. Finally, not being able to make it work during the 

harvest of 1889, Crafts promised plaintiff that, if he, plaintiff, 

would keep the binder until next season^ he would agree to see 

that it was put in good working order for next harvest, to do as 

good work as any other machine in the market. Relying on this 

promise, plaintiff did keep the binder. It was urged on the 

argument that Crafts gave his mere personal guaranty that this 

should be done, but we do not so construe the record. It was 

undoubtedly understood by both the parties that he was acting 

for the defendant in making this promise. During all of this 

time Crafts was agent for the defendant in the sale of these 

machines. He was their general agent for this purpose, being 

intrusted with this business of selling generally, and not merely 

with the sale of this particular machine. "An agent for a particular 

transaction is called a special agent. All others are general agents." 



232 NORTH DAKOTA REPORTS. 

Section 3962, Comp. Laws. As such agent he had authority to 
make the warranty on the sale already referred to. Section 3985, 
Id.; McCormick v. Kelly, 28 Minn. 135, 9 N. W. Rep. 675. It 
cannot be doubted that he had power to represent and bind the 
defendant by his subsequent conduct and promises, inducing 
plaintiff to refrain from prompt action on discovery of the defects' 
in the machine. Snody v. Shier, (Mich.) 50 N. W. Rep. 252; 
Pitsinmvsky v. Beardsley, 37 Iowa, 9. Defendant, through its 
authorized agent, by its promises and conduct, lulled the plaintiff 
into a sense of security against prejudice from his failure promtly 
to restore the property, and cannot be heard to insist that the 
delay until the year 1890 is fatal to plaintiff's right to rescind for 
breach of warranty. Snody v. Shier, (Mich.) 50 N. W. Rep. 252; 
Manufacturing Co. v. Kelly, 26 111. App. 394. In fact, there was a 
new warranty made in the fall of 1889 that the machine would do 
as good work the next season as any other binder in the market. 
In the month of August, 1890, after repeated efforts by plaintiff 
to induce Crafts to send an expert to fix the binder in accordance 
with his promise, one was finally sent out to plaintiff's farm. It 
was Saturday night before the work was finished. Early Monday 
morning plaintiff started the machine. It did not do good work. 
The same day it was returned by plaintiff to the same place from 
which he took it when he purchased it, and he then notified the 
agent Crafts that he had returned it, and demanded a return of his 
notes. If Crafts was agent for the defendant during the year 1890 
in the sale of its machines, there can be no doubt that plaintiff 
acted promptly in returning the property to defendant, in view of 
the promises and conduct of defendant's agent inducing delay, 
and therefore amounting to a waiver of return until after 
defendant's final effort to fix the machine. That Crafts could 
give a new warranty, after failure to make the binder work during 
the harvest of 1889, cannot be doubted. There being a breach of 
a former warranty, plaintiff had it in his power to return the binder 
and have back his notes, or a new machine in place of the defective 
one. This new machine would be delivered upon the same 



CANHAM V. PLANO MANUFACTURING CO. 233 

warranty which related to the old one. The parties could agree, 
after the return of the old one, to a new contract of sale of the 
old binder with warranty, and therefore the agent could make a 
new warranty without the formality of a return, which he could 
not prevent. This same reasoning leads to the conclusion that 
the agent could attach to the continued holding of the binder by 
the plaintiff a condition that if it should not do as good work the 
next season as any other binder in the market he would take it 
back. This is precisely what he did agree to. It amounted, in 
effect, to a keeping of the machine by the plaintiff on trial. With 
a right to return it next year if it should fail to work ^s stipulated 
by defendant's agent. Had the binder been returned as sold. 
Crafts would have had power to sell it on trial. Deering v. Thorn, 
29 Minn. 120, 12 N.W. Rep. 350; Oster v. Mickley, 35 Minn. 245, 28 
N. W. Rep. 710. He therefore had power to promise to take 
back the binder if it did not work as warranted, without the 
necessity of a formal surrender of the machine and the cancellation 
of the contract of sale and the making of a new contract. 
Whatever view we take of the matter, — whether we regard the 
old warranty as undisturbed, or consider that a new warranty was 
made relating to the work the binder would do during the year 
1890, or that an agreement was made to take back the binder if it 
should fail to do good work during the year 1890, — we reach the 
same conclusion. We hold, as a matter of law, that the binder 
was returned in time. 

But it is urged that Crafts had no authority to give the oral 
warranty which he made on the sale of the binder. His employ- 
ment uras in writing. It restricted his power to warrant to a 
written warranty of a specified character, differing from the oral 
warranty given to plaintiff. This writing was offered in evidence 
but on objection of plaintiff it was excluded. In this there was 
no error. There is no pretense that plaintiff had notice of this 
restriction of the power of the agent. On the contrary, it 
affirmatively appears that he did not have such notice. Unless 
actually restricted in his authority an agent to sell has power to 



234 NORTH DAKOTA REPORTS. 

warrant in the manner in which Crafts warranted this binder. 
Section 3985, Comp. Laws. Crafts was intrusted with the sale of 
defendant's binders, and had them in his possession for sale. 
And even if restricted in his authority he would stijl have such 
authority to warrant as to all persons who did not have actual or 
constructive notice of the restrictions upon his powers. Section 
3980, Id. See also Bootfiby v. Scales, 27 Wis. 635. 

It is also urged that this written employment of Crafts as agent 
should have been received, because it showed on its face that his 
employment was only for the season of 1889, and that therefore 
nothing done by Crafts during 1890 would bind the defendant. 
In the same connection it is urged that the return of the property 
to Crafts in 1890 would not be a good delivery to defendant if 
Crafts had ceased to be defendant's agent. This excluded writing, 
it is urged, was evidence of the fact he was not such agent for 
1890. But it was not evidence of this fact. It did not show that 
he was not agent for 1890. It was not at all inconsistent with his 
employment as agent the following year. Moreover, there is 
another reason why it was not error to receive this writing for this 
purpose. It was plainly offered for another purpose, for which it 
was incompetent, /. r., to bind plaintiff by restrictions on what 
would otherwise be the agent's authority, without offering to bring 
home to plaintiff notice of such restriction. Being rejected as 
evidence for this purpose, the defendant should have stated the 
other object for which it was desired to have it admitted in evidence. 
Having failed to do so, he cannot complain of the refusal to receive 
it as error. There was no claim on the trial that Crafts was not 
the agent of defendant during the year 1890, the same as the year 
before. We do not think that the presumption of the continuance 
of the agency, after the fact of agency had been once established, 
could be rebutted by the introduction of the written contract of 
employment, silent on the point as to whether the agent was 
employed the ensuing year, when the agent himself was put upon 
the stand by the defendant as a witness for defendant. A simple 
inquiry would have settled this question, and the fact that Crafts 



TAYLOR V, JONES. 235 

was not interrogated by defendant on this point is convincing to 
our minds that there was no thought of raising any such point, 
and this confirms our belief that the written instrument under 
which Crafts was employed was not offered for the purpose of 
overthrowing the presumption of the continuance of the agency. 
We have carefully considered the points raised, and finding no 
error the judgment is affirmed. All concur. 
(55 N. W. Rep. 583.) 



Theophilus L. Taylor vs, John R. Jones. 

opinion Bled April 14th, 1893. 

Sufficiency of Evidence to Sustain Verdict. 

The claim that a verdict is without support in the evidence cannot be 
maintained when the explicit and consistent testimony of one witness sustains 
it, even though a numl^er of witnesses may as explicitly testify to the contrary. 

Retaining Property of Another for Debt Due Does Not Constitute a Pledge. 

The fact that one party, claiming under a legal right, however unfounded, 
declares to another party that he will hold certain property of such other party 
until a debt owing l)y such party to him is secured, and that such other party 
remains silent, and makes no objection thereto, does not constitute a pledge of 
such property as security for such debt. 

Appeal from District Court, Richland County, Lauder, J. 
Action by Theophilus L. Taylor against John R. Jones, for 
conversion. Judgment for plaintiff. Defendant appeals. 
Affirmed. 

McCumber & Bogart, for appellant. 

The verdict \Cas against the clear weight of the testimony and 
should be set aside. Mead v. CoiiTce, 8 At. Rep. 374; Hicks v. 
Stotie, 13 Minn. 434; Garrett v. Grecnwell, 4 S. W. Rep. 441; 
Sandwich Manufacturing Co, v. Fcary, 33 N. W. Rep. 485 ; 
Kaemmevcr v. Mauser, 29 111. App. ^y6\Jo?ies v. AlcWalley, 11 S. E. 
Rep. 544; M, P, Ry, Co. v. Sufnmers, 14 S. W. Rep. 779; Helfrich v. 



236 NORTH DAKOTA REPORTS. 

Hogden City Ry, Co., 26 Pac. Rep.. 295; Atchison & C. Ry. Co. v. 
Wagtter, 7 Pac. Rep. 204; Cummings v. Winters, 28 N. W. Rep. 303. 
The silence of Taylor was an assent to the proposition made by 
Jones. Bishop Cont. § § 284-290 and 229; i Parsons Cont. 476; 
Abbot w. Herman, 7 Me. 118; Preston v. Am. Linen Co., 119 Mass. 
400; Leathers Mfg's^ Nat. Bank v. Morgen, 6 Sup. Ct. Rep. 657; 
Steel V. Refining Co., I Sup. Ct. Rep. 389. 

W. E. Purcell and L. B. Everdell for respondent. 

A court will not set aside a verdict as being against evidence, 
because on examination they might have come to a different 
conclusion from that arrived at by the jury. iVetidall v. Stafford, 
12 N. H. lyi, Mays v. Callwin, 6 Leigh 230. A mere preponderance 
of evidence agains.t a verdict is no ground for granting a new 
trial. I Graham & Watt on New Trials, 380; Johnson v. R. R. Co., 
II Minn. 264 , De Rocliebnwe v . Soutluimer, 12 Minn. 78; State v. 
Merrick, 12 Minn. 132; Caiicfieldv. Bogie, 2 Dak., 465; Moline Plow 
Co. V. Gilbert (Dak.) 16 N. W. Rep. 500; King v. Meyers, 35 Cal. 
646; Todd V. Brannan, 30 la. 439; Barret v. U. S. 9 Wall, 38; 
Alveron v. U. S. 8 Wall. 337. 

Bartholomew, C. J. Taylor, the plaintiff below and respondent 
herein, sued John R. Jones, the defendant and appellant, in 
conversion for the value of a team, harness, and buggy. There 
was a verdict for plaintiff, a motion for a new trial denied, and 
judgment on the verdict. It is uncontroverted that respondent 
was the owner of the property prior to bringing this action, and 
that it was in appellant's possession; that respondent demanded 
the same, and appellant refused to deliver it. The answer 
alleged, in substance, that on the 2nd day of June, 1891, respon- 
dent delivered the property to appellant, as a pledge to secure an 
indebtedness that respondent owed to appellant, and that appel- 
lant held the property under and in accordance with the terms of 
the pledge, and that the debt had not been paid. That the debt 
existed and was unpaid seems to be conceded. The case was 
made to turn entirely upon the truth or falsity of the allegation 



TAYLOR V. JONES. 237 ' 

that the property was pledged. Appellant presents the case in 
this court under three heads, which cover all his assignments of 
error: First, insufficiency of the evidence to justify the verdict, 
and herein error of the court in refusing to direct a verdict for 
appellant, and in refusing a new trial; second, error in refusing and 
giving instructions; t/iird, error in admitting and excluding 
evidence. 

From a mass of testimony we summarize the following facts as 
sufficient to render our rulings intelligible: Prior to June 2nd, 
1 891, one Holding recovered a judgment against the respondent, 
Taylor, and caused execution to issue thereon, under which the 
sheriff of the proper county seized the horses and harness in ques- 
tion. Taylor claimed this property of the sheriff as exempt from 
sale on execution, but the sheriff refused to recognize this claim, 
and had advertised the property for sale on said June 2nd, 1891. 
Taylor desired to preserve this particular property, and also to 
preserve his right of action against the sheriff for selling exempt 
property. This he could properly do. See Northrup v. Cross, 2 
N. Dak. 433, 51 N! W. Rep. 718. The day before the sale the 
respondent saw one David Jones, the brother and agent of appel- 
lant, and one Malloy, appellant's bookkeeper. Appellant was 
absent. Respondent desired David Jones and Mr. Malloy to go 
with him the next day to Forman, where the sale was to take 
place. The witnesses differ as to respondent's object in having 
David Jones and Malloy present at the sale. Respondent testifies 
that he desired them to help him to raise money in case the 
property should be bid up at the sale to a figure in excess of what 
money he had. David Jones and Malloy testify that he wanted 
them to attach the property on his debt to appellant, in order to 
head off certain other creditors. Appellant was notified by tele- 
gram to be present at Forman, but it was feared he could not get 
there before the sale. Early on the morning of June 2nd, David 
Jones and Mr. Malloy went with respondent to Forman. They 
immediately saw Mr. Ellsworth, an attorney, and, after consulta- 
tion, an attachment action was commenced by said attorney in 



238 NORTH DAKOTA REPORTS. 

the name of appellant against respondent, and a writ of attach- 
ment procured and delivered to the sheriff, who immediately 
levied it upon the property. This was known to respondent 
before the hour fixed for the sale. At the sale the property was 
bought by David Jones, in his own name, but with money fur- 
nished entirely by respondent. Soon after the sale, appellant 
reached Forman. It is proper here to state that respondent's 
debt to appellant was for lumber purchasecj, and appellant had it 
secured by mechanic's lien. When appellant and respondent met 
at Forman, appellant began to upbraid respondent for getting his 
(appellant's) men to bring'the attachment action and thus invali- 
date the mechanic's lien, and declared that he would hold the 
property until he Was secured. Appellant then testifies, in 
detail, that respondent not wishing to have further expense, 
asked him to release the attachment, saying that he would turn 
the property over as a pledge until he got other sufficient secu- 
rity. To this appellant agreed, and the attachment was released, 
and the horses and harness, and, under the advice of Mr. Ells- 
worth, the buggy also, were turned over to David Jones, as 
pledge holder for appellant. A careful scrutiny of the testimony 
fails to disclose that any other witness says anything about a 
pledge. All of the other witnesses seem to have understood that 
the team and harness were held by virtue of the purchase of 
David Jones at the sheriff's sale. David Jones testifies: "I bid 
the team in for the interest of John R. Jones. I bid it in myself, 
in my own name." "I bid the team in for John R. Jones. I held 
the team by that bid. I hold the team." "I said, at the time I 
purchased this property, I purchased in the interests of John R. 
Jones." "It was to be given back by myself or John R. Jones, 
to him, [Taylor;] no difference which." "I held them as John 
R. Jones' property until the thing was settled, —until a bill of sale 
was made to Mrs. Taylor." Speaking of the agreement with 
respondent, he says: ''The horses should be in my charge, or in 
my brother John's, himself, until he settled the account." The 
witness Malloy narrates the circumstances attending the sale; 



r 



^ TAYLOR 7^ JONES. 239 

that respondent gave him the money to purchase the property, 
and he turned it over to David Jones ; that, by the subsequent agree- 
ment, the property was to remain in David Jones' possession 
until the account was secured, and then a bill of sale was to be 
made to Mrs. Taylor. Mr. Ellsworth, the attorney, was also a 
witness for the appellant. In speaking of what took place after 
the sale, and at the time when it is claimed the pledge was made, 
he says: "He [Taylor] said he wanted it understood that the 
sale, or the purchase of this property at the sale, was a bona fide 
purchase, and that he would arrange it with Mr. Jones in a short 
time.*' He further said that, when the account was secured, a 
bill of sale of the property was to be made to respondent's wife, 
Mrs. Taylor; that respondent wanted it done in that manner, so 
that no other party could seize the pfbperty; that, as the buggy 
had not been sold, he (witness) suggested to Mr. Jones, in 
Taylor's presence, that it would be better if Taylor would turn 
over the buggy also, to which Taylor agreed; that he then sent 
for the sheriff, and gave him a written order releasing the attach- 
ment. Respondent, in his testimony, claims that he furnished 
the money to Malloy to buy the property in for him; that instead 
of doing so, Malloy turned the money over to David Jones, who 
bought the property in his own name. He unequivocally denies 
that the property was ever turned over as a pledge or otherwise; 
claims that it was taken by appellant or his agents after the sale, 
without his (respondent's) knowledge or consent; and denies all 
knowledge that the attachment was released. He admits that 
appellant told him that the attachment had invalidated his lien, 
and that he would hold the team, but says that he made no reply; 
admits also, that Mr. Ellsworth adviscfd him to turn over the 
buggy, but s'Jays he made no reply. Under this evidence, not 
only was there a conflict upon the question of a pledge, but the 
preponderance was clearly against it. The proof tended to show 
that the parties treated the purchase by David Jones at the 
sheriff's sale as passing the title of the property to him, which 
could only be divested by a resale, and that David Jones, acting 



. 240 NORTH DAKOTA REPORTS. ^ 

in the interest and at the instance of his brother, determined to 
hold the property so purchased at the sale until respondent 
secured the account owing to his brother, when a bill of sale was 
to be made to respondent's wife. The buggy had not been pur- 
chased at the execution sale, but had been attached, and the 
attorney testifies that he suggested to Mr. Jones that it would be 
well to have Mr. Taylor turn that over also, and that Taylor con- 
sented so to do. Taylor says he simply made no reply. Several 
witnesses testify that Taylor did, in fact, turn the buggy over. 
Taylor as explicitly swears that he did not. The question was for 
the jury. Respondent's testimony is all consistent with the 
theory that he did not turn the buggy over as a pledge or other- 
wise, and the fact that he is opposed by a number of witnesses 
does not render the verdict so entirely unsupported by evidence 
as to warrant a court in disturbing it. It may be true, as urged 
by learned counsel, that if respondent knew that appellant under- 
stood him to consent to turn over the property, or any portion of 
it, as a pledge, and if he knew that, relying upon such consent, 
appellant dismissed the attachment, and thus altered his condition 
to his prejudice, respondent would be estopped from denying his 
consent. The trouble in applying the proposition in this case is 
the fact that respondent swears he had no knowledge that appel- 
lant released the attachment. If that be true, there is no element 
of estoppel in the situation. We may add that respondent's 
statement has strong corroboration in the circumstances, as they 
seem to have been understood by the parties. If the horses and 
harness passed to David Jones by virtue of the purchase, and 
were to be held by him unless security was given for the account, 
then the attachment became a mere useless appendage, as the 
value of such property far exceeded the amount of the account, 
and it would be only natural that respondent should give no 
further thought to the attachment. There is a direct conflict in 
the evidence as to whether or not respondent consented that the 
horses and harness might be held even under the purchase. This 
discussion of the evidence demonstrates, we think, that the 



TAYLOR V, JONES. 24 1 

verdict has substantial support, and that there was no error in 
refusing to direct a verdict for appellant, or in denying the 
motion for a new trial, on -the ground that the verdict was not 
sustained by the evidence. 

This also practically disposes of the error assigned on the 
refusal to give an instructi9n asked by appellant. This instruc- 
tion, without qualification or condition, statea that if the jury 
found that on said June 2nd, 1891, defendant told plaintiff that he 
would hold said property as security for his debt, and plaintiff 
made no objection thereto, but allowed defendant to take the 
property, this would be an assent upon the part of the plaintiff 
to such holding, and the verdict must be for defendant. Now, 
without holding that mere silence and inaction could be more 
than evidence of assent, in any case where the other party had 
not been induced thereby to alter his condition to his prejudice, 
it yet seems too plain for argument in this case that if appellant 
was claiming a legal right to hold the property, either under the 
purchase by David Jones or under the attachment in his own 
name, and respondent silently acquiesced in such claim of right, 
such fact would fall far short of constituting a contract of pledge 
between the parties. Moreover, the instruction disregards 
respondent's testimony that the property was taken without his 
knowledge or consent. 

It is pressed against the charge of the court that it makes 
unduly and unnecessarily prominent the thought that a pledge is 
a contract, and that it takes two persons to make a contract, and 
that their minds must meeet on the same line. Both must under- 
stand the transaction in the same way, and it must be voluntarily 
entered into. We think the criticism not applicable. There was 
but one issue in the case, and that was upon the allegation in the 
answer that respondent pledged the property to appellant as 
security for the debt. Appellant must succeed, if at all, upon the 
theory of a pledge. Possession by other means would not help 
him. It was entirely proper for the court to specifically define a 

N. D. R. — 16. 






242 NORTH DAKOTA REPORTS. 

pledge and its constituent elements; and to guard the jury against 
any mistake by reason of the fact, if such it was, that respondent 
acquiesced in appellant's claim of legal right to hold the property, 
it was pertinent for the court to impress upon the jury the volun- 
tary nature of the contract of pledge. 

Numerous errors are assigned upop the admission and exclu- 
sion of testimony. Some of these have been already indirectly 
answered, and none of them are of sufficient general importance 
to warrant any lengthy notice. Some days after the transaction, • 
on J'wie 2nd, appellant had the property at the town of Straub- 
ville. Early in the morning, respondent and another party 
sought to get possession of the property by stealth or force, or 
both. Something of an altercation took place between appellant 
and respondent. It was sought to give in evidence all the details 
of that difficulty by appellant when on the stand. This was 
objected to, and the court limited the witness to "what was said 
in regard to your holding the team, or right to hold it, or any 
agreement you and Mr. Taylor had before that." Certainly, that 
was broad enough. Anything further could only prejudice the 
jury. The same remark applies to the third error assigned. The 
evidence excluded under the fourth and sixth assignments would 
necessarily have been the same whether the property was held 
under the purchase or the attachment or the pledge, and hence 
was incompetent to establish a pledge. The answer excluded 
under the fifth assignment was purely a conclusion of law. The 
seventh assignment is more difficult. The respondent, while on 
the stand, was asked: "Did you in any way consent to John R. 
Jones', or any other person for him, holding this team as security 
for any debt you might be owing him?" This was objected to, as 
calling for a conclusion, and not for a fact, and the objection 
overruled, and in this we think the court did not pass the bounds 
of discretion necessarily lodged with a trial court in excluding 
and admitting testimony. This was on rebuttal. Appellant's 
witnesses had given the facts from their standpoint, and had 
repeatedly asserted that respondent did so consent, and we do 



STATE V. GETCHELL. 243 

not think that it was improper to permit respondent, after he had 
given all the facts from his standpoint, to testify that he did not 
consent. The objection is argued on the theory that, on his own 
testimony, respondent had consented as a matter of law. We 
have already ruled that such was not the case. The other assign- 
ments require no notice further than that they have already 
received. No error in the record has been shown, and the judg- 
ment below is accordingly affirmed. All concur. 
<55 N. W. Rep. 593.) 



State ex rel Diebold Safe & Lock Co. vs, F. O. Getchkll. 

opinion filed April 25 th, 1893. 

Mjuidamns — Illegal Claim. 

The writ of mandamus is never awarded to aid in the collection of an illegal 
claim. 

Ezpenditnre in Excess of Revenue — Illegal. 

The county commissioners of Eddy County allowed the bill of the relator, and 
directed a warrant to be drawn therefor in payment for corridor and cells put up 
in the cpunty jail by relator at the request of such board. The question of such 
expenditure was never submitted to the voters of the county, and the amount of 
such bill and proposed warrant was greater than could be paid out of the 
annual revenue of the county for the current year. The defendant as auditor, 
refused to attest and certify such warrant, and the District Court refused to 
award the writ of mandamus compelling him to do so. Held^ that the ruling 
of the court below was proper, as the expenditure would have been illegal, 
under g 607, Comp. Laws. 

Assent of Voters — Benefits — Acceptance. 

The voters not having assented to such expenditure, the commissioners were 
without lawful authority to i^ake the same, and hence their acceptance of the 
benefits would not operate to bind the county. 

Appeal from District Court, Eddy County; Rose, J. 

Application by the Diebold Safe & Lock Company for writ of 
mandate to Fred O. Getchell, county auditor of Eddy County. 
Application denied. Plaintiff appeals. 

Affirmed. 

Edgar W. Camp, {E. B. Graves of Counsel) for appellant. 



244 NORTH DAKOTA REPORTS. 

Mandamus is proper remedy to compel auditor to sign and 
deliver a warrant. M«rrill on Mandamus § § 126, 121; Lachauce 
V. Auditor General, 43 N. W. Rep. 1005; State v. Tarpen^ Auditor^ i 
N. E. Rep. 209. In issuing warrants the auditor acts ministerially. 
State V. Ames^ 18 N. W. Rep. 277. The petition alleges that the 
cells and corridor were delivered to Eddy County. The con- 
tract was one the county had power to make, consequently even if 
the contract was not properly made, yet by user and acceptance 
the informal contract mighty be ratified. Bank v. School Dist^ i 
N. D. 479; Bank v. School Dist,, 6 Dak. 248, 19 Am. and Eng. 
Enc. Law 47, 15 Id. 1102. 

/. F, Keime, for respondent. 

The auditor must certify that the warrant has been issued "pur- 
suant to law" and that "it is within the debt limit." The making 
of this certificate involves a judicial discretion. Section 187 
Const. Debates Const. Con. 439-440. Where the act sought to 
be coerced by mandamus involves an examination, the exercise 
of judgment or discretion mandamus will not lie. Peo. v. Super- 
visors, 12 Johns. 414; Peo, v. Auditor, 10 Mich, 307; Tilden v. 
Supervisors, 41 Cal. 68; State v. Judge, 53 N. W. Rep. 433, 3 N. 
D. 43; High. Ex. Leg. Rem. 45 to 47, 24, 80; Merrill on Man- 
damus 112. There could be no ratification in this case § 3972 
Comp. Laws. Capital Bank v. School Dist., i N. D. 486, 494. A 
public corporation cannot be estopped by the void acts of its 
agents. Bigelow on Estoppel ^y)\ McPherson v. Foster, 43 la. 48; 
Schaffer v. Bonham, 95 111. 368; Ottawa v. Perkins, 94 U. S. 260. 

Corliss, J. The appeal is from an order denying relator's 
application for a writ of mandamus to" compel defendant, as 
auditor of Eddy County, to attest and certify a county warrant 
issued by the board of county commissioners, and signed by the 
chairman thereof. The relator did not secure, in the first instance, 
an alternative writ, but applied on notice for a permanent writ.' 
The better and more regular practice is to obtain the alternative 
writ on an ex parte application. The alternative writ constitutes 



STATE V, GETCHELL. 245 

both the process and the pleading in the special proceeding. But 
it cannot be doubted that there are precedents warranting an 
application for a peremptory writ on notice without the prelimin- 
ary issue of the alternative writ, and our Code recognizes this 
practice. Sections 5520, 5521, Comp. Laws. Accompanying the* 
notice of application for' the writ was an affidavit, and in the 
notice it was stated that the relator would apply for a "writ of 
mandamus" upon the facts set forth in such affidavit. On the 
hearing a petition was also filed, embodying, in substance, the 
same facts' embraced in the affidavit. In this petition there was a 
prayer for a peremptory writ of mandamus. The defendant filed 
an answer on the return day, and also an affidavit in which were 
set forth the same facts which were contained in the answer. The 
contention of the relator in this court is that he applied on this 
hearing for an alternative writ, and that the court erred in refus- 
ing to issue such writ. We do not so construe the record. It is 
apparent from the record that the parties intended to and did 
submit to the court all controverted questions of fact upon the 
pleadings and the affidavits, and upon admissions made in open 
court after the answer was filed. The. order denying the applica- 
tion for the writ recites that there was a hearing of the relator's 
application for a writ of mandamus at a regular term of court, and 
that on this hearing these affidavits were read and filed, and that 
certain facts were admitted by the parties to the proceeding. 
Why these admissions were made, if the only object was to ask 
for an alternative writ, it is impossible to discover. The issues to 
be. tried would be formed by the return or answer to the alterna- 
tive writ, were it intended that such writ should be issued. Why, 
therefore, make admissions in the application for such a writ? 
The time for admissions, and the use of affidavits, would be upon 
the trial of such issues, after the alternative writ had been granted. 
What possible object could the relator have had in securing an 
alternative writ? To this writ the same answer would have been 
made, and the same issues would have been presented for trial 
which were already before the court for tricJ in this more informal 



1 



246 NORTH DAKOTA REPORTS. 

manner. Section 5520 of the Comp. Laws contemplates that 
there may be a trial of matters of fact upon the hearing, based 
upon notice,' instead of upon an alternative writ. It provides 
that when the application is upon notice the peremptory writ 
'may be issued in the first instance. But the peremptory writ will 
never issue so long as a material fact is In controversy; and if it 
may issue in the first instance, in such a case, it must be that the 
court has power, upon the hearing based upon notice, to try and 
determine all disputed matters of fact. There is no absolute right 
to a jury trial. The court, in its discretion, may order the issues 
to be tried before a jury. Section 5522, Comp. Laws. 

As we are of opinion that the parties submitted the case on the 
merits, and that, therefore, the relator asked for a peremptory 
writ, the question arises whether the court was bound, in any 
view of the case, to award such peremptory writ. In deciding 
this question we must assume that the trial judge found in favor 
of the defendant any and all facts necessary to support his deci- 
sion, of which there was evidence before him. The county 
warrant which the relator is seeking to compel the defendant to 
attest and certify as auditor was ordered to be drawn, by resolu- 
tion of the board, in payment for jail cells and a corridor 
furnished during the year 1891 by the relator to Eddy County, 
and put in place by the relator, in the jail of such county, under a 
contract made in 1891 with the board of county commissipjiers of 
such county to pay therefor the sum of $1,785. In the answer it 
is alleged "that neither said sum of $1,785 alleged in the petition, 
nor any part of said sum. could be paid out of the current 
revenue of said county for said year 1891; that to pay said sum it 
was necessary to create an indebtedness." And in the defen- 
dant's affidavit used upon the hearing it is stated "that the current 
income of Eddy County in the year of 1891 was not large enough 
to pay the warrants drawn in that year, and the said county was 
at that time owing a larger sum of money on unpaid county war- 
rants than one year's revenue of said county; that there was no 
money in the county treasury, ^nen, out of which said so called 



STATE V, GETCHELL. 24/ 

warrant could be paid; that said sum could not not be paid out of 
the annualtax; that said so called warrant created, or would 
create, an indebtedness that Eddy County could not possibly 
meet for more than one year from its date." The contract was 
made in October, 1891, and it was admitted upon the hearing that 
the queston of making such expenditure was never submitted to 
a vote of the people of such county. It is practically conceded 
that under these facts the contract is void, under § 607, Comp. 
Laws, unless the illegal action of the board of county commis- 
sioners in making this contract was subsequently ratified- But 
the court had no evidence of ratification before it. It is true that 
it is stated in the petition and affidavit of relator that the board 
of county commissioners accepted the work. But this does 
not constitute ratification. What the board could not do in the 
first instance, it could not thereafter make valid by ratification. 
The power must come from a higher source, — the vote of the 
people. It is not a case where there has been some irregularity 
in the exercise of a power vested in the board. It is a usurpation 
of power by the board which the legislature, in express terms, 
has withheld from the board, and vested in the people, and in the 
people alone. The people must ratify, because ratification pre- 
supposes power to do the act ratified. Mechem, Ag. § 121; 
* People V. Gleaso7t, (N. Y. App.) 25 N. E. Rep. 4; Dickimon v. City 
of Pougkkeepsie, 75 N. Y. 65; McDonald v. Mayor, etc., 68 N. Y, 23; 
Capital Bank of St. Paul v. School Dist. No. ^J, i N. Dak. 479, 48 
N. W. Rep. 363. There was no evidence that the people have ever 
taken any action pointing towards a ratification of this unlawful 
agreement. Under § 3972 **a ratification can be made only in the 
manner that would have been necessary to confer an original 
authority for the act ratified," except in cases where an oral 
authorization would have been sufficient. In such cases, and only 
in such cases, will the acceptance and retention of the benefits of 
the act, with notice thereof, constitute a ratification thereof. As 
the board of county commissioners could derive their authority 
to make such a contract only from a vote of the people, and not 



248 NORTH DAKOTA REPORTS. 

from any oral authorization of the act, it is difficult to see how 
anything short of such a vote, or of an act of the legislature, can 
render the county liable on this contract. Mere use of the prop- 
erty by officials should not be evidence of ratification. The 
people cannot prevent such use, nor are they under obligations to 
take steps to prevent such use. Neither are they required to 
cause to be removed from the county building, property which 
was placed there without their consent; such consent as evidenced 
by a vote of the people, being necessary to bind them. The 
legislature has prescribed the mode of ascertaining their will 
towards such extraordinary expenditures. It is by a vote of the 
people. It would be a dangerous doctrine that any other conduct 
of the people would be sufficient evidence of their will as to such 
unusal expenditures, for it would be impossible to determine by 
any other test whether a majority of the people were desirous of 
incurring such a debt. It is to such majority that the law con- 
fides the power, and the only safe rule to ascertain whether a 
majority of the people favor the project is by a popular vote. In 
the following cases the defendants retained the benefits of the 
void contracts, and yet it was adjudged that there was no liability 
on that account: People v. Gleason, (N. Y. App.) 25 N. E. Rep. 
^\ Dickinson v. City of Poughkeepsie^ 75 N. Y. 65; McDonald v. 
Mayor, etc,, 68 N. Y. 23. The mere auditing of the claim by the ' 
board of county commissioners did not validate the contract. 
People V. Gleason, (N. Y. App.) 25 N. E. Rep. 4. This case is 
very much in point on the merits of the case at bar. 

It appearing from this record the warrant was issued to pay an 
illegal debt, and their being no evidence of ratification thereof, 
the defendant was fully justified in refusing to attest the warrant 
under § 187 of the state constitution. See State v. Hill, 32 Minn. 
275, 20 N. W. Rep. 196; High, Extr. Rem. §40. We do not wi§h to 
be understood as deciding that the illegality of this claim is 
finally settled, so far as the facts are concerned, the County of 
Eddy not being a party to this proceeding. 

The order is affirmed. All concur. 
(55 N. W. Rep. 585.) 



1 



COLER & CO. V, DVVIGHT SCHOOL TOWNSHIP. 249 

Wm. N. Coler & Co. VS. DwiGHT School Township. 

Opinion filed April .25th, 1893. 

De Facto Manicipal Corporation. 

The county superintenclent of schools, under chapter 14, Laws 1879, organ- 
ized a school district, school district officers were elected, and exercised the func- 
tions of their respective offices; teachers* were employed by the district, and school 
was taught therein, and a school meeting was held in the district to vote upon the 
question of issuing bonds to build a school house. Such bonds were thereafter 
issued. In an action upon some of the interest coupons of such bonds, held, that 
the district was a de facto municipal corporation, and that therefore the defense 
could not be interposed that the bonds were void 011 the ground that the 
d istrict had no legal existence because of failure to comply with provisions of 
the statute regulating the organization of such districts in matters which went 
to the jurisdiction of the county superintendent to organize the district. 

Estoppel by Recital in Bonds. 

Municipal corporations are estopped, as against bona fide holders of munici- 
pal bonds, from setting up as a defense to an action thereon that all the pre- 
liminary steps necessary to authorize the issue of the bonds were not taken, 
when the officers who have charge of the issue of such bonds are especially 
or impliedly authorized to determine whether all the conditions precedent to the 
issue of valid bonds have been complied with, and recite in the bonds so issued 
that they have been complied with. It is not necessary to estop the corpora- 
tion that this statement should set forth in detail that all the preliminary steps 
have been taken. It is sufficient that it declare that the bonds are issued in 
pursuance of a certain statute, specifying it. Neither is it essential that the 
officers issuing the bonds should be expressly authorized to determine such 
questions. It is sufficient if they are given full control in the matter. 

Org^anization of District—Liability for Debts. 

A school township organized under Ch. 44, Laws 1883, becomes, immediately 
upon such organization, liable for debts of a district, the school house and fur- 
niture of which become the property of the school township. This liability is 
complete, and does not depend upon the settlement of equities between several 
districts included in the new school township, under § g 136, 138, Ch. 44, 
Laws 1883. 

Appeal from District Court, Richland County; Morgan, J. 

Action by William N. Coler and William N. Coler, Jr., partners 
under the firm name and style of W. N. Coler & Co., against 
Dwight School Township of Richland County, on the interest 
coupons of certain bonds. Judgment for plaintiffs. Defendant 
appeals. 



250 NORTH DAKOTA REPORTS. 

Modified and affirmed. 

IV, E, Purcell, for appellant. 
McCufftber & Bogart, for respondent. 

Corliss, J. The plaintiffs have recovered judgment upon a 
number of coupons representing the interest on bonds issued by 
an alleged municipal corporation known as School District No. 
22, in Richland County, in the then Territory of Dakota. Defen- 
dant, not having issued them is sought to be held liable on these 
bonds and their interest coupons, by virtue of Ch. 44, Laws 1883. 
At the threshold of the case we are met with the proposition that 
there is no liability because there was no such corporation as 
School District No, 22 in existence when these instruments were 
executed and delivered. It is asserted that the proceedings 
instituted to effect the organization of such a municipality were 
fatally defective. It is, in the first place, insisted that there was 
no petition for the erection of the district presented to and filed 
by the county superintendent of schools, signed by a majority of 
the citizens residing in the territory to be effected. Such a peti- 
tion is required by the statute. Chapter 1*4, Laws 1879, § 10. The 
trial judge has found that there was such petition made, and that it 
was filed as required by law. This finding is challenged. We think 
that the evidence is sufficient to sustain it. The petition itself was 
not produced, but we are satisfied that there was ample evidence to 
warrant a finding by the trial judge that it could not be found, but 
had been lost or taken away by some former county superintendent, 
either the one with whom it was originally filed or by one of his 
successors. There was ample evidence to justify the trial court in 
holding that diligent search has been made for the paper. The 
court therefore properly admitted secondary evidence as to the 
signing and filing of the petition. This evidence sustains the 
finding. 

It is next contended that there was a failure to comply with 
the provisions of the statute requiring the county superintendent 
to furnish the county commissioners of the county with a written 



p?^' 



COLER & CO. V. DWIGHT SCHOOL TOWNSHIP. 



251 



description of the boundaries of the district, and declaring that 
such description must be filed in the office of the register of deeds 
before such district should be entitled to proceed with its organ- 
ization by the election of school district officers. Chapter 14, 
Laws 1879, § 10. It is undisputed that the only attempt to com- 
ply with this requirement was by filing a paper, which in words, 
figures, and form is as follows: 

"On January ist, 188 , the above named district comprised the 
following described lands, viz: 



DeicriptioD 



For subsequent chang 



Sec. Town Range 



opposite 



Description 



Sec. Town Range 



v^i^- ■3r--'*'r.'.sY-'^' 



252 



NORTH DAKOTA REPORTS. 

"Plat of School District No. 22. 
Township Range ....Township 13a, Range 49. 





6 


5 


4 


3 1 


2 


1 


6 


5 


4 


3 


2 


1 






7 


8 


9 


10 1 


11 


12 


7 


8 


9 


10 


11 


12 




18 


17 


16 


15 1 


14 


13 


18 


17 


16 


15 


14 


13 




cr 




























9 


19 


20 


21 


22 1 


23 
26 


24 


JL, 


20 


21 


22 


23 


24 
25 




S- 


25 


30 


29 










J 


30 


29 


28 


27 


28 


27 


26 




1 = 


31 


32 


33 


34 


35 


36 


31 


32 


33 


34 


35 


36 




6 


5 


4 


3 


2 


1 


6 


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rr 


3 


2 


1 




p 




























5 


7 


8 


9 


10 j 

i 


11 


12 


7 


8 


9 


10 


11 


12 






18 


17 


10 


15 1 


14 


13 


18 


17 


19 


15 


14 


13 






19 


SO 


21 


22 


23 


24 


19 


20 


21 


22 
27 


23 
26 


24 
25 






ao 


29 


28 


« 1 


26 


25 


30 


29 


28 













a 





- 



















31 


32 


33 


34 i 


35 


36 


31 


32 


33 


34 


35 


36 





Townsh ip Range Township Range 

"Organized October 24th, 1881, by J. H. Kennedy, Co. Supt. of 
Schools." 

We are clear that this does not contain a written description of 
the boundaries of the district. It merely purports to be a- plat of 
the district. Whether the district is within or without the lines 
of the plat is left to speculation. But does it necessarily follow 
that the organization of the district is thereby rendered void? 
The county superintendent creates the district. His decision, 
embodied in written form, is the act which calls the new corpora- 
tion into being, provided he has been given authority to proceed 
by the presentation and filing of the proper petition. The 
statute requires him to keep a record of his official acts, (§ 12,) 
and it is to this record that the court must look to see if the 



* Not included. 



COLER & CO. V, DWlGHf SCHOOL TOWNSHIP. 253 

district has been formed. The record so kept by the county 
superintendant . shows the following entry: "District No. 22, 
organized October 24th, 1881, and includes the following described 
territory: South half of sections 19, 20, 21, 22, and 23, and all of 
sections 26, 27, 28, 29, 30, 31. 32, 33, 34, and 35, in township 133, 
range 49, and one-half of section 5, in township 132, range 49, and 
sections 24, 25, and 36, township 133, range 50." The statute 
does not declare that furnishing the county commissioners witfi a 
written description of the boundaries, and the filing thereof in the 
office of the register of deeds, are conditions precedent to the 
existence of the district. Quite the contrary. The statute refers 
to the district as a corporation already formed before the doing 
of these acts. It does not withhold corporate life until the 
description is furnished and filed. It merely provides that the 
district shall not be entitled to proceed with its organization by 
the election of school officers before these acts are performed. 
The corporation exists; the district officers exist; but no election 
of officers can be held until after certain acts are performed. This 
is the plain reading of the statute. Said the court in School 
Directors of Uniofi School DisL No. 4 v. School Directors of New 
Union School Dist. No. 2, (111. Sup.) 28 N. E. Rep. 49, at page 52: 
"And the failure of the township trustees to file with the county 
a map showing the lands embraced in the new district will not 
have the effect to destroy its corporate existence, or to prevent 
the directors of a new district from levying taxes for school pur- 
poses therein;" citing School Directors of Dist No. 5 v. School 
Directors of Dist. No. 10, 73 111. 250. A municipal corporation 
may have life, although there are no officers in office. No claim is 
made that the officers who in fact signed the bonds and coupons 
were not at least de facto officers of the district, provided there 
was a legal organization thereof. Nor could it be successfully 
contended that such officers were not at least de facto officers, 
there having been an attempt to comply with the law requiring 
the furnishing and filing of the description before officers should 
be elected, and the officers being in actual possession of their 



254 NORTH DAKOTA REPORTS. 

respective offices and exercising the functions thereof, and 
there being no other persons pretending to lay. claim to such 
offices. Nor would we reach a different conclusion were we of 
opinion that the organization of the district was so defective that the 
proceedings would be set aside on certiorari or the right of the dis- 
trict to act as such would be denied by judgment in quo warranto. 
At the time these bonds were issued the district was acting ^sdide 
facto district under at least color of organization. It had elected its 
district officers; held its district meetings; had voted to borrow 
money to build a school hous^; and it appears to be undisputed 
that the proceeds of these bonds were used for that purpose, and 
the inhabitants received the benefit thereof. A school house has 
been built, and school has been taught therein. To allow the 
defense that the proceedings in the organization were defective to 
defeat the debt represented by these bonds would, under these 
circumstances be to sanction repudiation of an honest obligation. 
We are firm in the opinion that the legality of the organization 
of a municipal corporation cannot be thus collaterally attacked. 
Citizens of the district who are opposed to the formation of such 
a corporation are not without remedy. Certiorari will reach the 
action of the county superintendent when without jurisdiction. 
People V. Board of Sup'rs, 41 Mich. 647, 2 N. W. Rep. 904. The 
statute allows an appeal. Section 25, Ch. 14, Laws 1879. The 
corporate existence may be attacked by quo warranto. State v. 
Bradford^ 32 Vt. 50; People v. Clark, 70 N. Y. 518; Cheshire v. Kelley, 
(lU. Sup.) 6 N. E. Rep. 486; Comp. Laws, § 5348, Subd. 3; Terri- 
tory V. Armstrong, 6 Dak. 226, 50 N. W. Rep. 832. The evils 
resulting from a doctrine which would permit the legality of the 
organization of a municipal corporation to be inquired into collat- 
erally — in an action to enforce a debt, in a proceeding to collect a 
tax levied by the de facto corporation, or in a litigation over a tax 
title growing out of a tax imposed by such municipality — would 
be as great as the evils which would flow from the collateral 
inquiry into the title of a person to an office, the functions of 
which he is in fact exercising. This same argument reaches the 



T^ 



COLER & CO. V, DWIGHT SCHOOL TOWNSHIP. 255 

objection that no sufficient petition was ever presented and filed, 
even assuming that the record sustained the claim this requirement 
of the statute was not complied with. It does not follow, because 
the organization was illegal for want of power in the county 
superintendent, that at all times, in every species of litigation, 
and by any person, the existence of the de facto district can be 
assailed. It is no more essential to the exercise by the county 
superintendent of this power that a petition should be filed than 
that it should be signed by a majority of the citizens residing in 
the district. It is the fact, and not the decision of the superin- 
tendent that the fact exists, which gives him jurisdiction. A 
petition is filed lacking the signature of one citizen to make it a 
petition signed by majority of the citizens; in all other respects 
the organization is regular; bonds are issued, a school house built, 
and school taught. Is all this to be ignored, to be treated as 
illegal, because there was no de jure district? Who are the real 
parties interested in defeating such a debt? The taxpayers with- 
in the district. In what position are those to object who partici- 
pated in the organization? They have attempted to form a 
district. They for a time believed that they had formed it. They 
elect officers; borrow money on bonds for district purposes; build 
a shool house therewith; and use the money for other purposes 
connected with the functions of the district. On what principle 
can the existence of the district be denied by them for their 
benefit? If any within the district refrained from affirmative 
action, still they are chargeable with passive acquiescene when 
they might have acted, and acted effectually, against the de facto 
existence of the district, and thus have prevented an imposition 
upon the innocent who were justified in taking that tq be a legal 
district which was acting as such, and to all appearances was war- 
ranted in acting as such. Those who were silent, when in con- 
science they should have spoken, have no claim upon the equity 
of this court. They did not protest; they did not appeal; they 
did not resort to certiorari', they made no effort to have the 
district attorney overthrow this de facto district by qtio warrantor 



2S6 NORTH DAKOTA REPORTS. 

and when the bonds were voted for they appealed to no chancel- 
lor to protect their property from an illegal debt. Not only the 
considerations which lie at the foundation of the rule protecting 
the public in dealing with a di facto officer, but also a principle 
very analogous to that of equitable estoppel, protect these bond- 
holders against repudiation under the forms of the law. If there 
cannot be a ^/^ facto school district, there cannot be a ^ facto 
city. If illegality in the proceedings to effect organization is 
fatal to the existence of a district, it is equally as fatal to the 
existence of a municipal corporation of a higher grade. Given a 
case where the defects in the incorporation of the city are as 
fatal as in this case, and then deny to that corporation any effect, 
although a city government is in fact inaugurated and carried on, 
and the consequences would be intolerable. Open and acknowl- 
edged anarchy would for some reasons be preferable. In after 
years tax titles would be destroyed; every officer of the city 
would be a trespasser when the discharge of what would be his 
duty on the theory of the existence of the corporation led to an 
interference with the property or person of others. Every police 
or other peace officer and every magistrate acting under the sup- 
posed authority of the city government would be liable for extor- 
tion, for assault and battery, for false imprisonment, and could be 
prosecuted criminally for acts done in good faith in the enforce- 
ment of the criminal law. An army of creditors whose savings 
have gone into the city treasury, and through the treasury into 
public buildings and other public improvements, find, to their 
astonishment and dismay, that they have received in exchange 
beautifully lithographed but worthless bonds as souvenirs of their 
abused confidence. All that has been done in good faith under 
color of law is only barefaced usurpation, and to be treated as 
such for all purposes. Such a doctrine would be the author of 
confusion, injustice, and almost endless litigation. The imagina- 
tion cannot embrace all the gross wrong to which it would lead 
when pushed, as it must be, to its logical consequences. On the 
other hand, no great injury can result to the citizens or state by 



COLER & CO. V, DVVIGHT SCHOOL TOWNSHIP. 257 

recognizing a de facto corporation; one acting as such under 
color of organization. If the law is disregarded in the attempt to 
organize the municipality, the violation of. law always can be 
nipped in the bud by appropriate judicial proceedings. We find that 
our views are by no means novel. The rule that the existence of a de 
facto municipal corporation cannot be collaterally assailed has fre- 
quently been recognized and applied by the courts. Stuart v. Sc/tool 
Dist,, 30 Mich. 69; People v. Maynard,\^ Mich. 470; Krutz v. Town 
Co., 20 Kan. 397; Tisdale v. Town of Minonk, 46 111. 9; Gemva v. 
Cole, 61 III. 397; People v. FamJmm, 35 111. 562; Ja?neson v. People, 
16 111. 257; Sherry v. Gilmore, (Wis.) 17 N. W. Rep. 252; State v. 
Railroad Co,, (Nev.) 25 Pac. Rep. 296; ScJiool DisL No, 2 v. Sc/tool 
DisLNo. I, (Kan.) 26 Pac. Rep. i\y, Railroad Co. v. Wilso?i, (Kan.) 6 
Pac. Rep. 281; Clement v. Everest, 29 Mich. 19; Stockle v. Silsbee, 
41 Mich. 615, 2 N. W. Rep. 900; Burt v. Railroad Co,, 31 Minn. 
472, 18 N. W. Rep. 2f85, 289; Me?idenhall v. Burton, (Kan.) 22 Pac. 
Rep. 558; School Directors of Union Sc/tool Dist. No. 4 v. Sc/iool 
Directors of New Union Sc/iool Dist. No. 2, (111. Sup.) 28 N. E. 
Rep. 49; 15 Am. and P)ng. Enc. Law, 965; i Dill. Mun. Corp. § 43; 
President, etc., v. T/tompson, 20 111. 197; Tozvn of Enterprise v. State, 
(Fla.) ID South. Rep. 740. See 2 Dill. Mun. Corp. § 894; State v. 
Weatherby, 45 Mo. 17; Board v. Lewis, 10 Sup. Ct. Rep. 286; 
Austrian v. Guy, 21 Fed. Rep. 500. In some of the cases time 
seems to have been considered an element of some importance, 
but the public may as effectually be deceived by a de facto organ- 
ization the day after it is complete as a decade thereafter. The 
time a de facto officer has been in possession of an office is never 
regarded as controlling. He is as much an officer, as to the 
public, the day after he intrudes into the office as a year later. 
"The same rule which recognizes the rights of officers de facto, 
recognizes corporations de facto, and this is necessary for public 
and private security." Clerneiit v. Everest, 29 Mich. 19, 23. 

We have treated this power as if the action were upon the 
bonds themselves, because the holders of interest coupons may 

N. D. R. — 17. 



258 NORTH DAKOTA REPORTS. 

recover if .they could maintain an action on the bonds under the 
same circumstances. It is also urged that there was a failure to 
comply with certain conditions precedent to the valid exercise 
of the power conferred upon such districts by law to borrow 
money on district bonds. The statute regulating the issuing of 
such bonds provides, in substance, that they can be issued only 
when a majority of the electors of the district present and voting 
at a district meeting shall A^ote to issue the same. Chapter 24, 
Laws 1 88 1, § I. Section 2 of this act provides: "Before the 
question of issuing bonds shall be submitted to a vote of the 
district, notices shall be posted in at least three public and con- 
spicuous places in said district, stating the time and place of 
meeting, the amount of bonds that will be required to be issued, 
and the time in which they shall be made payable, at least twenty 
days before the time of meeting; and the voting shall be done by 
means of written or printed ballots, and all ballots deposited in 
favor of issuing bonds shall have thereon the words 'for issuing 
bonds,' and those opposed thereto shall have thereon the words 
'against issuing bonds;* and if the majority of all the votes cast 
shall be in favor of issuing bonds, the school board, or other 
proper officers, shall forthwith proceed to issue bonds in accord- 
ance with the vote; but if a majority of all the votes cast are 
opposed to issuing bonds, then no further action can be had, and 
the question shall not be again submitted to vote for one year there- 
after; provided, however, that the question of Issuing bonds shall 
not be submitted to a vote of the district, and no meeting shall be 
called for that purpose, until the district school board shall have 
been so petitioned, in writing, by a majority of the resident electors 
of said school district.'* It is contended that the school board 
was not petitioned to submit the question of issuing the bonds to 
a vote as required by the proviso to § 2. We think the defendant 
is not in position to raise this point. The plaintiffs are bona fide 
holders of the coupons. The recital in the bonds is therefore 
fatal to this defense. Upon their face appears the following 
statement: "This bond is issued on the 24th day of June, 1882, 



COLER & GO. V. DWIGHT SCHOOL TOWNSHIP. 259 

by School District No. 22, County of Richland, D. T., for building 
and furnishing a school house, under and in pursuance of, and in 
strict conformity with, the provisions of an act of the legislative 
assembly of the Territory of Dakota, entitled *An act to empower 
school districts to issue bonds for building school houses,* 
approved March 3rd, 1881, and of a vote of said district* at a 
special meeting had on the 29th day of November, 188 1." Upon 
the back of each bond is the following certificate signed by the 
clerk of the district; "I certify that the within bond is issued in 
accordance with a vote of School District No. 22, of Richland 
County, Dakota Territory at a special meeting held on the 29th 
day of November, A. D. 1881, to issue bonds to the amount of 
twelve hundred dollars." It is obvious from the statute that the 
officers by whom the bonds are to be issued are intrusted with 
duty of determining whether the statute has been complied with 
as to all matters necessary to give them authority to issue the 
bonds. Their statement embodied in these bonds therefore 
estops the district and its successors from showing aught to the 
contrary. The rule and the reason for it have been so often 
shown, and are so well known to the profession, that it will 
suffice to cite some of the numerous authorities on the point. 
Inhabitants v. Morrison, 133 U. S. 523, 10 Sup. Ct. Rep. 333; 
Oregon v. Jemnngs, 119 U. S. 74-92, 7 Sup. Ct. Rep. 124; County 
of Moultrie v. Rockingham^ etc., Bank, 92 LJ. S. 631; Venice v. Mur- 
doch , Id. 494; Town of Colona v. Eaves, Id. 484; Dixon County v. 
Field, III U. S. 83, 4 Sup. Ct. Rep. 315; Humboldt Tp. v. Long, 92 
U.S. 642; Commissioners of Knox Co. v. Aspimvall, 21 How. 539; 
Fulton V. Town of Riverton, (Minn.) 44 N. W. Rep. 257; 15 Am. 
and Eng. Enc. Law, 1295 et seq.\ Burr. Pub. Secur. 2^et seq. It is 
not necessary . that the power to determine these facts should 
have been expressly conferred upon the district officers by the 
statute. "It is enough that full control in the matter is given to 
the officers named." Inhabitants v. Morrison, 133 U. S. 523, 10 
Sup. Ct. Rep. 333; Fulton v. Town of Riverton, (Minn.) 44 N. W. 
Rep. 257. For is it essential that the statement should set forth 



260 NORTH DAKOTA REPORTS. 

in detail that all of the various conditions precedent have been 
complied with. It is sufficient if it is stated that the bond was 
issued in pursuance of the statute, designating it in such a manner 
as to identify it. This is in legal effect a statement that each 
and all of the necessary preliminary steps were taken to authorize 
the isstie of the bonds. Inhabitants v. Morrison, 133 U. S. 523, 10 
Sup. Ct. Rep. 333; Dixon Co. v. Field, 1 11 U. S. 83, 4 Sup. Ct. Rep. 
315; 15 Am. and Eng. Enc. Law, 1300; County of Moultrie v. Rock- 
ingham, etc., Bank, 92 U. S. 631. But the statement went much 
further. It asserted that the bonds had been issued under and in 
pursuance of, and in strict conformity with, the act authorizing 
their issue, "and of a vote of said district at a special meeting had 
on the 29th day of November, 1881." The certificate indorsed on 
the bonds by the clerk was required by the statute to be indorsed 
thereon. Chapter 24, Laws 1 881, § 4. The statute specifies what 
the certificate shall contain, and this provision was strictly com- 
plied with in the issuing of these bonds. This requirement indi- 
cates that it was for the protection of the purchaser of the bonds, 
who might Jmplicity rely upon the clerk's certificate as conclusive 
evidence that all necessary preliminary steps had been legally 
and regularly taken. 

We come now to the claim that the plaintiffs have sued the 
wrong corporation. The defendant did not issue these bonds. If 
liable at all, it must be by virtue of some statute. Chapter 44, 
Laws 1883, is pointed to as the act which binds the defendant to 
pay these bonds. This law provides for a new system. The 
district school system was to be abolished, and the township 
school system to take its place. Under this statute it was the 
duty of the board of county commissioners to divide all organized 
counties into school townships. The finding of the court is that on 
May 23rd, 1883, the commissioners of Richland County duly 
organized the school township of Dwight in that county, and that 
the territory within this new school township embraced nearly all 
of the territory of the old school district No. 22; and that the 
school house and school furniture belonging to the district were 



r 



COLER & CO. V. DVVIGHT SCHOOL TOWNSHIP. 26l 

received into and are owned by the defendant. There is sufficient 
evidence to support the finding that the school house belonging 
to district No. 22 is within the territorial limits of the defendant. 
Under these facts the liability of the defendant on these bonds 
would be clear, under § 144 of the act, were it not for the provi- 
sions of § 136, to which we will in a moment refer. Section 144 
provides as follows: "Every school township shall be liable for, 
and shall assume and pay fully, according to their legal tenor, 
effect, and obligation, all the outstanding bonds and the interest 
thereon, of every school district, the school house and furniture 
of which^are received and included within the school township, 
and owned thereby, the same as if said bonds had been issued by 
said school township; and the law which authorized the school 
district to issue bonds shall apply to the school township the 
same as if it had originally been authorized to issue, and had 
issued, the said bonds. The bonds shall be deemed in law the 
bonds of the school township, with the same validity for securing 
and enforcing Hhe payment of principal and interest that they 
would have had against the district that issued them.** There can 
be no question as to the power of the legislature to impose upon 
a new municipality, which includes all or a portion of the terri- 
tory of an old municipal corporation, liability for the debts of the 
old corporation, where the property of the latter is turned over to 
and received by the former under the law. Mt Pleasant v. Beck- 
with, 100 U. S. 514; I Dill. Mum Corp. § 63; State v. City of Lake 
City, 25 Minn. 404; City of Winona v. School Dist No. 82, 40 Minn. 
13, 41 N. W. Rep. 539; Dentattos v. City of New Whatcom, (Wash.) 
29 Pac. Rep. 933; Laramie C&unty v. Albany County, 92 U. S. 307; 
Schriber v. Town of Langlade, (Wis.) 29 N. W. Rep. 547, and 
cases cited in opinion; Knight v. Tow7i of Asliland, (Wis.) 21 N. 
W. Rep. 65-70. See, also, note to State v. Clevenger, [Neb., 43 
N. W. Rep. 243,] in 20 Am. St. Rep. 677. Indeed, many of the 
cases go much further that is necessary to support this legisla- 
tion. But it is contended that School District No. 22 has not 
ceased to exist; that the organization of the defendant is not 



262 NORTH DAKOTA REPORTS. 

complete; and the argument from these premises is that District 
No. 22, and not the defendant, is at present liable for these bonds. 
The section of the statute on which the claim rests is § 136. It 
provides as follows: "The adoption of the system herein pro- 
vided, and the passage and approval of this act, shall not have 
the effect to discontinue, abolish, and render null such school 
districts or tlieir organization as they may now exist in any 
county, but thcfr shall continue to exist, and their officers to^act 
as such, in law and fact, until the school township organization is 
complete, so far as it includes any particular district or districts, 
or the larger part of any particular district. And such ^township 
organization shall not be deemed complete, nor such districts so 
cease to exist, and their officers to act as such, until all matters 
between the district and the township are adjusted, and the 
property delivered, funds paid over, and an adjustment is reached 
for the equalization of taxes and property between the districts 
which enter into the school township, so far as such taxes and 
property remain permanent in houses, sites, furniture, and other 
parts of houses and grounds." The next two sections prescribe the 
procedure by which the equalization of taxes is to be determined, 
and the rules which are to govern such equalization. Now, it is 
quite clear to our mind that § 136 was incorporated in the statute 
merely to keep the old districts alive, for the purpose of adjust- 
ing their rights among themselves, so that taxpayers living in each 
portion of the new township which formerly constituted a school 
district should not pay more of the aggregate of the old indebted- 
ness of the several districts embraced in the township than would 
be equitable, considering the rights of the taxpayers of the other 
districts, so included, to the same treatment. The school boards 
of the several old districts constituted, with the county superin- 
tendent, a body to adjust these matters, and it was necessary to 
keep the districts alive for this special purpose after the organi- 
zation of the township. The legislature intended to worlc an im- 
mediate, radical revolution in the school system for the whole 
territory. We do not believe that they contemplated that, while 



COLER & CO. V. DWIGHT SCHOOL TOWNSHIP. 263 

a long drawn out contest was going on to settle these questions 
between the old districts, this new system should be held in 
abeyance. Moreover, there would be no reason for making the 
organization of the school township, and its right to carry on the 
school system, depend upon the determination of a matter, the 
prior settlement of which was not essential to the corporate 
existence of the school township and the administration of the 
school law. Settlement must inevitably come. Should those 
charged with the duty of making it fail to obey t|ie law, man- 
damus would set them in motion. The nature of their decision 
could not be dictated by any court; but they could be compelled 
to make some decision. The discharge of this duty, whether 
voluntary or under compulsion, can as well go on after as before 
the school township becomes liable for the district debts and is 
authorized to carry on the schools. The township is by the 
statute made liable for these bonds. It is the formal party agaiAst 
which judgment may be recovered. When execution in the form 
of mandamus to compel a levy of taxes is applied for, the court 
will observe the decision of the board of adjustment in the appor- 
tionment of the burden. If no settlement has at that time been 
voluntarily reached, the CQurt in a separate proceeding will com- 
pel the performance of this duty specially enjoined by Igiw, and 
when such adjustment is consummated the writ of mandamus to 
compel the levy of a tax to pay the judgment must observe and 
follow this adjustment in the apportioning of the tax among the 
several old districts of the new township. The statute is not 
clear. The question is by no means free from doubts. If the 
eye is riveted on § 136 alone there is much force in the defen- 
dant's position. But we must scan the whole act to find out its 
spirit, and in the light of that spirit we must interpret § 136. We 
can discover a good reason for keeping these districts alive, after 
the organization of the school township, for the special purpose 
of adjustment of equities. We believe it would be highly incon- 
venient to preserve their existence thereafter for general school 
purposes, and that such was not the intention of the law making 






264 NORTH DAKOTA REPORTS. 

power. The existence of these districts for this particular pur- 
pose is not incompatible with the existence of the school town- 
ship. It in no manner interferes with the full exercise by the 
school township of all its powers. These districts were to be 
kept alive for a short period, to accomplish a special object 
entirely foreign to the power conferred upon school townships. 
Their utter extinction for all purposes contemporaneously with 
the creation of school townships would have left the latter no 
more completely in possession of all their functions as municipal 
corporations. Finding no error, the judgment is affirmed. All 
concur. 

ON REHEARING. 
(May 31st, 1893.) 

We are asked to grant a rehearing on the assumption that we 
have overlooked the case of Dartmouth Sav, Bank v. School Dists* 
Nos. 6 and 31,6 Dak. 332, 43 N. W. Rep. 822. We had not over- 
looked it. We do not regard it as in point. In that case it might 
be said that their was no color of organization. There was no peti- 
tion ever filed, or even signed. In so far as that decision can be 
regarded as conflicting with our conclusions we feel constrained 
to differ from the court which pronounced it. 

Another matter is referred to in the petition for rehearing 

which strikes us with much force. It is insisted that, unless we 

» 
modify the judgment, it will stand as an unqualified judgment 

against the defendant, to be collected the same as any other 
judgment against it. To save any question, we will modify the 
judgment so that the collection of it must be enforced according 
to the provisions of § § 136, 141, Ch. 44,. Laws 1883. The District 
Court will modify the judgment by inserting therein the follow- 
ing clause: This judgment is to be enforced subject to the pro- 
visions of § § 136, 141, Ch. 44, Laws 1883; the debt on which it is 
rendered being a debt subject to equalization as therein provided. 

Modified and affirmed. All concur. 

(55 N. W. Rep. 587.) 



mortgage co. v. stevens. 265 

Colonial & United States Mortgage Co» vsp Orlando 
Stevens, et al. 

Opinion filed May 9th, 1893. 

Liability of Married Women as Surety. 

A married woman is liable on a note signed by her as surety for her husband, 
although she does not charge her separate estate with the payment thereof. 

Appeal from District Court, Cass County; McCoTinell, J. 

Action by the Colonial & United States Mortgage Company 
against Orlando Stevens and Ellen A. Stevens on a note. From 
a judgment dismissing the case, plaintiff appeals. 

Reversed. 

W, /. KneesJuvw^ {Byron Abbott ^ of Counsel) for appellant. 

Section 2590, Comp. Laws, is a part of the Code prepared by 
the New York Commission. It was adopted by Dakota in 1886, by 
California in 1872, later by Nevada. It is the same as § 158 Cal. 
Code, and § 169 of Nevada Civil Code. The courts of each of 
these states passing upon this section have unequivocally held 
that a married woman is under no disability and can contract as if 
a feme sole. Wood v. Orford, 52 Cal. 412; Marlow v. Barlew, 53 Cal. 
556; Good V. Moulton, 8 Pac. Rep. 63; Burkle v. Levy^ 11 Pac. Rep. 
643; Cartaii v. Davids 4 Pac. Rep. 61. A married woman makes 
contracts sui juris respecting specific property. Yerkes v. Hadley, 
40 N. W. Rep. 340, 5 Dak. 324. The Supreme Court of Vermont 
and Minnesota upon similar statutes have held that a married 
woman's contracts are not affected by coverture. Reed v. Newcomb^ 
10 At. Rep. 539; Dobbin v. Cordiner, 42, N. W. Rep. 870. Satid- 
wich Mfg. Co. V. Zellmer, 51 N. W. Rep. 379. Where the law gives a 
woman power to contract like a feTne sole, the courts will hold her 
to her obligation to perform. Orange Nat. Bank v. Traver, 7 Fed. 
Rep. 149. Ellen A. Stevens is estopped from pleading in this 
case coverture and want of consideration. Pom. Eq. Jur. § 814. 
Dobbin v. Cordiner^d^2 N. W. Rep. 870. 
Oiarles A. Pollock^ for respondents. 



266 NORTH DAKOTA REPORTS. 

Statutes which have been enacted have been intended for the 
benefit of msfrried women. Her incapacity to contract is a pro- 
tection. Yale V. Dederer, i8 N. Y. 272. Brandt on Suretyship 5. 
A married woman can never be held without her contract is within 
the power conferred upon her by statute, and it is not the primary 
object of the statute to extend her liabilities, but to protect her 
property interests. Her general engagements having no reference 
at the time to her separate property, cannot be enforced against 
her separate estate. Wells. Sep. Prop, of Married Women, 
§§319 to 323. 

Corliss J. We have to determine on this appeal a single 
question of law. The essential facts are few and simple. The 
defendant Ellen A. Stevens executed, as surety with her husband, 
a promissory note to the plaintiff. To secure the note, th^y both 
executed a mortgage upon the homestead of the husband. In 
neither the note nor the mortgage did the wife charge her separate 
estate with the payment of the amount of the note; nor did she in 
any other manner charge such estate with its payment. At the time 
the note was signed she owned no separate estate whatever. 
The action is brought against her upon the note. The only 
defense is that she is not liable thereon, because she was a 
married woman at the time the note was given. This defense was 
successful below. From the judgment dismissing the action the 
appeal to this court has been taken, and whether we affirm or 
reverse this judgment depends upon the question whether a 
married woman is liable on her contract under the circumstances 
existing in this case. The rule which renders her liable must be 
found in the statute, or it does not exist. At common law, and 
even under equitable rules, this contract would be void. It is 
unnecessary to restate the reasons which have been given for the 
doctrine which exempts married women from liability on their 
contracts. Neither is a citation of authorities to support this rule 
necessary. The reasons which gave birth to this rule, and the 
rule itself are familiar to bench and bar. • 

Whenever it is claimed that a married woman is liable upon 



MORTGAGE CO. V, STEVENS. 26/ 

her contract, and the case does not fall within any exception to 
the general doctrine of nonliability known to courts of law or 
equity, we must return to statutory law for our guide. Several 
sections of our statutes are referred to by counsel for plaintiff as 
sustaining his contention that the defendant Ellen A. Stevens is 
liable upon the note which she signed as surety for her husband. 
The one which bears most directly upon the question is § 2590 of 
the Comp. Laws. It declares that "either husband or wife may 
enter into any engagement or transaction with the, other, or with 
any other person, respecting property, which either might, if 
unmarried, subject, in transactions between themselves, to the 
general rules which control the actions of persons occupying con- 
fidential relations with each other, as defined by the title on 
trusts." This statute is very broad in its language. It is true 
that the contract must be one respecting property; but we cannot 
assent to the view that it must relate to the married woman's 
separate property. It would have been easy to have said so in 
express terms had such been the purpose of the lawmaking 
power. When the legislature has established the single and 
simple test >that the contract must be one respecting property 
generally, we have no right to amend the law, and thereby inject 
into the act a further limitation which will exclude many con- 
tracts respecting proper. To add another limitation by interpre- 
tation would ignore the drift of legislation on the subject of the 
rights and liabilities of married women. The current runs 
steadily and strongly in the direction of emancipation of the wife, 
and of the imposition of responsibility commensurate with her 
increased rights. Why the words "respecting property" were 
inserted in the law it is not necessary to determine. It is suflfi- 
cient.for the purposes of this case to give full effect to them. 
This we do by holding that any contract respecting property is 
binding upon the wife, whether the agreement does or does not 
relate to her own separate estate. Some courts have looked upon 
the njarried women as needing protection from her husband in 
matters relating to property. We are not in accord with these 



*''i 



268 NORTH DAKOTA REPORTS. 

views, which regard the state as more friendly to the wife than 
her own husband, especially under the system which here pre- 
vails, — a system which recognizes her legal independence so far, 
at least, as property and the right to enter into contracts are con- 
cerned. Increased rights bring increased .responsibilities. It is 
quite significant that in several of the states the married woman's 
power to contract is expressly limited to contracts relating to 
her separate property. Here we have no such limitation in terms, 
and yet it is urged that these dissimilar statutes are to have the 
same interpretation. On what principle this contention is based we 
are unable to discover. A contract to pay money is a contract 
respecting property. If it does not relate to property, then 
money is not property. And to what else does such a contract 
relate if not to property? But we are not without authority on 
this point. Section 1 58 of the Civil Code of California is identi- 
cal in its language with our § 2590 of the Comp. Laws. In Good 
V. Moulton, (Cal.) 8 Pac. Rep. 63, the Supreme Court of that state 
held that a wife was liable upon a note signed by her as surety. 
We quote briefly from the opinion to show the scope of the 
decision. After referring to an instruction which the trial judge 
had given, the court said: "The instruction, in effect, told the 
jury that if Mrs. Moulton was a married woman, and, without 
consideration, executed the note for the accomodation of D. L. 
Moulton, and the plaintiff knew these facts, then their verdict 
must be for the defendants. This was error. In this state a 
married woman may enter into any engagement or transaction 
respecting property which she might if unmarried. Section 1 58, 
Civil Code. A promissory note is an engagement respecting 
property which a married woman may make, though it can be 
enforced only as against her separate property. Marlow v. Bar- 
lew, 53 Cal. 456; Alexander v. Bouton, 55 Cal. 15. If Mrs. Moulton 
had been unmarried, she could have made a promissory note for 
the accomodation of her father without receiving any considera- 
tion for so doing; and the note so made, in the hands of on^ who 
received it for value, would, beyond question, have been valid 



r 



MORTGAGE CO. V, STEVENS. 269 

and binding upon her, though the holder knew how and why it 
was made. But the fact that she was married does not at all 
change the rule, or limit her power in this respect." The case is 
directly in point. No authority to the contrary can be found. 
The decision is in harmony with advanced ideas upon the subject. 
It accords with the spirit of our legislation touching married 
women. By various statutes her property has been rested from 
the control of her husband. He is no longer liable for her debt^. 
She is made responsible for her own engagements. Sections 
2589, 2593, 2594, Comp. Laws. The policy disclosed by all the 
legislation in this state upon the subject is to place the married 
woman upon the same footing as a feme sole with respect to her 
property and to her rights to make binding contracts. See, also, 
as tending to support our views, Woody, Orford, 52 Cal. 412, and 
Marloiv v. Barlew, 53 Cal. 456. We have no fear that, under the 
construction we have placed upon the statute, the wife will become 
the victim of the husband's machinations to strip her of her 
property for his own benefit. Nor would the denial of her power 
to bind herself for the payment of his debts afford her any pro- 
tection as against her husband. It is always in her power to give 
him her entire estate, or to pay all his debts out of her separate 
property. The judgment is reversed, and the District Court is 
directed to enter judgment for plaintiff for the amount due upon 
the note, with costs. All concur. 
(55 N. W. Rep. 578.) 



270 north dakota reports. 

Paul Hutchinson vs. Joseph Cleary. 

opinion/ filed May 31st, 1893. 

Evidence of Transactions with Decedents. 

Under g 5260, Comp. Law's, a party to an action is prohibited from testifying 
to a conversation with plaintiff's intestate, notwithstanding the fact that an 
, agent of the decedent was present at the time the conversation took place. 

Parole Evidence Contradicting Written Contract. 

Parol evidence held incompetent because it contradicted the terms of a writ- 
ten agreement between the parties; and the error in admitting the evidence AelJ 
prejudicial because the court submitted to the jury a question of fact, as to 
which there was no controversy under the evidence, except on the theory that 
the jury had a right to base a finding upon such parol evidence. 

Suspension of Agents Power— Presence of Principal. 

So long as the principal acts for himself in a matter, in the presence of his 
agent, the agent, as to such matter, does not represent the principal. His 
power is suspended for the time being. 

Appeal from District Court, Foster County; Rose, J. 

Action on a contract by Paul Hutchinson, administrator of the 
estate of Charles Hutchison, deceased, against Joseph Cleary and 
others. Defendants had judgment, and plaintiff appeals. 

Reversed. 

E. W, Camp, for appellant. 

The court erred in admitting proof of the talk between defen- 
dant's and plaintiff's intestate. Because it was offered for the 
purpose of varying the terms of a written agreement. Dean v. 
Bank, 6 Dak. 222; Hemiessy v. Griggs, i N. D. 52; Fuel Co, v. Brum, 
I N. D. 137. It was also inadmissable under § 5260 Comp. Laws; 
Taylor V, Bunker, it ^.^. Rep. 66; Reherds Admr. v. Clem, 10 
S. E. Rep. 504; Harris v. Batik, i So. Rep, 140; Brague v. Lord^ 67 
N. Y. 495; Heyne v. Doerfler, 26 N. E. Rep. 1044; Holcomb v. Hoi- 
comb, 95 N. Y. 316; Ebert v. Roth, 24 At. Rep. 685. 

5. L, Glaspell, for respondents. 

Parol testimony was offered to show the understanding of the 



HUTCHINSON V. CLEARY. 27 1 

parties of the meaning of the technical words used in the con- 
tract — towit: "custom work." There was no attempt made to 
change or vary the agreement, simply to ascertain what it was. 
Chandler v. Thompson, 30 Fed. Rep. 38-43. The admission of 
evidence objected to, if error was without prejudice. Speticer v. 
Robbins, 5 N. E. Rep. 726. 

Corliss, J. This suit was commenced by Charles Hutchinson. 
Before the trial he died. The action is continued in the name of 
the administrator of his estate. The deceased was a proprietor 
of a flour mill in South Dakota. To induce him to move his 
plant to New Rockford. N. D., the defendants entered into a 
written contract with him. This agreement, omitting the signa- 
ture, was in the following words and figures: "This contract is 
entered into this thirteenth day of August, A. D. 1885, by and 
between Charles Hutchinson, of Oskaloosa, Iowa, on the first 
part, and Joseph Cleary, J. M. Patch, Frank A. Brown, E. E. 
Henderson, T. R. Palmer, Frank S. Dunham, John R. Winslow, 
H. M. Clark, John G. Frankland, et al of New Rockford, Eddy 
County, Dakota Territory, on the second part. And this con- 
tract witnesseth that said party of the first part agrees to 
bring to New Rockford, Eddy County, Dakota Territory, the 
machinery, engine, and boiler now in his mill at Mt. Vernon, 
Dakota Territory, and to add thereto new roller machinery, of the 
best pattern and workmanship, to constitute and complete a mill 
of seventy-five barrels capacity, and to erect the same at New 
Rockford> D. T., as quickly after the date hereof as practicable, 
and to operate the same as steam flouring mill, doing custom 
work at said place, for a period of five years from date hereof, 
unless prevented by inevitable necessity, or transfer of ownership, 
In consideration whereof the parties of the second part agree to 
provide and guaranty the following privileges: First. A deed for 
five acres of land contiguous to James river, with a right of way 
for a spur track from the Northern Pacific R. R. track, as a site 
for said mill; said deed to be given on arrival of lumber on the 
ground. Second, Nine cords of building rock for the foundation 



272 NORTH DAKOTA REPORTS. 

of the mill, to be deposited on the site at once, on execution 
hereof. . Third. Free transportatation for four car loads of lum- 
ber from Minneapolis, and two car loads of machinery from 
Fargo. Fourth, The sum of five hundred dollars, to be paid in 
cash on arrival of lumber on the ground. Fifth. A deed for town 
property of present value of one thousand dollars, when the mill 
is completed and running. Sixth. Subscriptions of wheat and 
cash of the value of one thousand dollars, to be paid by Novem- 
ber 1st, 1885, if ^^ill is completed and running by that time; and 
if not, as soon as it is completed and running. Seventh. It is 
hereby agreed and understood between the parties that any or all 
of the cash subscriptions in this section above mentioned may be 
paid in carpenter and other work in the construction of said mill, 
at the usual wages for such labor, provided such labor is needed 
by, and can be rendered satisfactorily to, said Charles Hutchinson 
or his agent; but the first five hundred dollars subscription speci- 
fied in fourth section shall, as therein stated, be paid in cash, on 
the arrival of lumber on the ground. And it is further under- 
stood and agreed between contracting parties that said Charles 
Hutchinson shall not sell or transfer ownership of said mill with- 
out causing the new proprietor to assume all liabilities under this 
contract and especially the one to operate the mill as a custom 
mill for five years from the date hereof, at said town of New 
Rockford, D. T., and that when such new proprietor shall thus 
assume this contract the said Charles Hutchinson shall be fully 
released therefrom. Witness our hands this thirteenth day of 
August, A. D. 1885." The action was brought to recover the 
balance due under this agreement, the plaintiff averring that he 
had performed all the conditions on his part which are conditions 
precedent to a recovery. It is undisputed that the defendants 
had performed the 1st, 2d, 3d, and 4th conditions of the agree- 
ment, and that they had partially performed the 5th and 6th con- 
ditions. It is to recover the balance due under these two 
conditions that the action was brought. It was claimed that the 
town property deeded to plaintiff's intestate was of the value of 



r" 



HUTCHINSON V. CLEARY. 273 

only $500 instead of $1,000, and, instead of securing subscriptions 
of wheat and cash of the value fi,ooo, they had furnished such 
subscriptions of the value of $200 only. The defendants allege 
that plaintiff failed to perform his part of the agreement, in sev- 
eral particulars, and seek to recover back the money paid him. 
The conclusion we have reached makes it necessary for us to 

. refer to only one of these matters. The contract provides that 
plaintiff is to operate this mill as a steam flouring mill, doing 
custom work. The defendants aver plaintiff had not, up to the 
time the answer was interposed, operated a custom flour mill at 
New Rockford. The mill which plaintiff was to operate was a 
roller mill. It is undisputed that the words "custom work," when 
used with reference to such a mill, have a meaning different from 
that which attaches to them, as applied to the old fashioned grist 
mill. One of the witnesses who was sworn on this point said 
that "a custom mill is a mill that takes in farmer's grain, and 
grinds it, for a certain amouM of toll. A roller mill gives the 
farmer back the equivalent of the flour from his own grain. The 
small old fashioned mill grinds the farmer's grain. The large 
mill, even if it is stone mill, exchanges. The meaning of 'custom 
work,' as applied to roller mill, is that the farmer gets a certain 
amount of flour, bran, and shorts for a given number of bushels 
of wheat. A roller mill gives the equivalent, instead of the flour, 
from the identical grain. A roller mill gives the equivalent, 

-instead of the flour from the same grain, because there are too 
many machines for the different products of grain. The mill is 
too complicated." It was undisputed that, in the operation of 
this mill, custom work was done, according to the significance of 
these words as applied to a roller mill. There was therefore 
nothing to submit to the jury on this point; and yet the court, 
after stating to the jury the fact that the defendants had put in 
issue the fact whether custom work was done by the mill, sub- 
mitted to the jury the question whether the mill was operated as 
a custom mill. To this portion of the charge the plaintiff 

N. D. R. — 18. 



274 NORTH DAKOTA REPORTS* 

excepted. This action of the court renders it impossible for us to 
determine whether the jury did not decide against the plaintiff 
upon the strength of certain incompetent testimony, to which we 
will now refer. E. E. Henderson, one of the defendants, was 
asked to testify to a conversation which took place between him- 
self and the deceased, in his lifetime, prior to the time when the 
written contract was executed. The question was objected to as ^ 
incompetent under § 5260y Comp. Laws, and as generally incompe- 
tent and immaterial. The answer was as follows: "Mr. Hutchinson 
said he would build a roller mill at New Rockford under certain 
conditions. We asked what a roller mill was, and it was defined, 
to some extent, by Mr. Hutchinson. His definition was a 
machinery mill for exchange, and grinding flour for sale. Our 
reply was, we wanted a mill for the benefit of the farmers, where 
we could take our own wheat, and get it ground, and get our 
flour from our own wheat; and we said: 'We will have that, if we 
put our money into it. We will have the kind of mill we want.' '* 
This evidence was immaterial, except as it tended to throw light 
upon the agreement between the parties; and it was incompetent 
for that purpose, as it was directly contrary to the terms of the 
written contract subsequently entered into. Under the written con- 
tract, plaintiff agreed, not to give the defendants a grist mill, but 
a custom mill, according to the meaning of the word "custom," 
when applied to a roller mill, i. e. a mill where an equivalent in 
flour, etc., is given for wheat. It was improper to allow the jury - 
to hear evidence contradicting the contract the parties had made; 
and it was error to submit to them the issue whether the mill was 
operated as a custom mill, when there was no such issue before 
the jury, under the evidence, except on the theory that this in- 
competent evidence created such an issue, and the jury had a 
right to consider it, and even to base a finding upon it, directly 
against the clear and explicit terms of the written agreement. It 
is by no means certain that the jury did not find against the 
plaintiff upon the sole ground that the mill was not operated as a 
custom mill, and when it is undisputed that it is was so operated. 



HUTCHINSON V, CLEARY. 275 

The evidence of the witness Henderson was incompetent, also, 
under § 5260, Comp. iaws: '*In civil actions or proceedings by or 
against executors, administrators, heirs at law, or next of kin, in 
which judgment may be rendered or order entered for or against 
them, neither party shall be allowed to testify against the other 
as to any transaction whatever with, or statement by, the testator 
or intestate, unless called to testify thereto by the opposite party. 
But if the testimony of a party to the action or proceeding has 
been taken, and he shall afterwards die, and after his death the 
testimony so taken shall be used upon any trial or hearing in 
behalf of his executors, administrators, heirs at law or next of 
kin, then the other party shall be a competent witness as to any 
and all matters to which the testimony so taken relates.'* The 
defendants endeavor to escape the force of the statute by the 
assertion that, the agent of the deceased being present at the time 
the conversation took place, the case does not fall within the 
spirit of the law. We find no such exception in the act itself, nor 
do we agree with counsel for defendants that such a circumstance 
takes the case without the spirit of the law. The theory and 
philosophy of the act are that one party to a conversation or 
transaction shall not secure an undue advantage in proving what 
took place -because the lips of the other party are sealed by death. 
If a third person was present, the surviving party to the conversa- 
tion or transaction can call him as a witness The authorities are 
numerous in support of the doctrine that the presence of a third 
person at the conversation does not render the surviving party a 
competent witness against the representatives of the deceased, 
under statutes similar to ours. Taylor v. Bu?iker, (Mich.) 36 N. 
W. Rep. 66; Heyne v. Docrfler, (N. Y. App.) 26 N. E. Rep. 
1044; Holcomb V. Holcomb, 95 N. Y. 316; Harris v. Banky 
(Fla.) I So. Rep. 140. See, also, Ebert v. Roth, (Pa. Sup.) 24 At. 
Rep. 68$; RehercTs Adm'r v. Ciem, (Va.) 10 S. E. Rep. 504. Nor 
can we see why the principle should be any different where the 
agent of the deceased is present at the conversation. No case 
has been cited which holds that such a fact makes any difference; 



276 NORTH DAKOTA REPORTS. 

and, even if such a distinction could be made, it would not con- 
trol this case, for the person present at the talk between Hender- 
son and the deceased, conceding him to have been the agent for 
the deceased in the transactions connected with the matters dis- 
cussed, could not be agent for his principal, and act for him, in a 
transaction, when the principal himself was present, and carrying 
on the negotiations, and conducting the business. The case is 
therefore assimilated to a case where a third person is present, 
and under such circumstances the decisions are unanimous that 
the evidence of the surviving party to the conversation or trans- 
action is incompetent. Of course, if the talk had been had with 
the agent alone, it would not have been a conversation with the 
deceased, and therefore the case would not have fallen within the 
statute. But no such question is presented on this appeal. For 
the errors to which we have referred, the order and judgment are 
reversed, and a new trial is ordered. All concur. 
(55 N. W. Rep. 729.) 



John Comaskey vs. Northern Pacific R. R. Co. . 

Opinion filed May 31st, 1893. 

Personal Injuries— Damages— Efifect Upon Mental Powers— Instruction. 

In an action to recover for personal injuries, where there is no claim in the 
complaint or in the evidence that plaintiff's mental powers were in any manner 
impaired by the injury, it is error for the trial court to instruct the jury that in 
estimating the damages they may take into account the effect of the injury upon 
plaintiff's mental powers. 

Appeal from District Court, Cass County; McCojinell, J. 

Action for personal injuries by John Comaskey against the 
Northern Pacific Railroad Company. Plaintiff had judgment, 
and defendant appeals. 

Reversed. 

Ball & Watsofiy for appellant. 



COMASKEY %K NORTHERN PACIFIC R. R. CO. 2^^ 

To recover damages for the impairment of the mental faculties, 
plaintiff must both allege and prove such injury. There being no 
such allegation or proof in this case, the court's instruction that 
if the jury found for the plaintiff they should allow him damages 
for the effects of the injury on his mental powers — was clearly 
wrong. The rule laid down by the court was in-applicable to the 
facts proven, and was prejudical to defendant. Michigan Bank v. 
Eldred, 9 Wall. 544; Chicago v. Robbins, 2 Black. 418. Thompson 
on Charge to Jury § § 62, 63; Willis v. Railroad Co., 17 A. and E. 
R. R. Cases, 542. 

It will as a rule be regarded as error in the court to give to the 
jury instructions, which are unsupported by evidence in the case 
for the reason that they tend to mislead the jury, even though 
abstractly correct in principle and law. Insurance Co. v. Baring, 
20 Wall. 158; Webster College v. Tyler, 35 Mo. 268; Achltree v. Carl, 
23 la. 394; Beaver v. Taylor, i Wall. 644; Clcu'k v. Dutcher, 9 
Cowan 674; Cane v. People, 3 Neb. 357. See, also, Battles v. Tall- 
man, 1 1 So. Rep. 247; Coal Creek, etc. v. Davis, 18 S. W. Rep. 387; 
Perot v. Cooper, 28 Pac. Rep. 391. 

Taylor Crum, for respondent. 

Respondent contends that "mental suffering" and "effects on 
mental powers," mean practically the same thing. That damages 
may be recovered for pain of mind. Citing Farchild v. Cal. Stage 
Co. 13 Cal. 601 ; Railroad Co. v. Barron, 5 Wall. (U. S,) 90; 
Masters v. Warren, 27 Conn. 293; Penn. & 0. Canal Co. v. Graham, 
63 Penn. St. 290; Slierwood v. Ry. Co., 46 N. W. Rep. 773. 

Bartholomew, C. J. This is a personal injury case, and 
involves but a single point. There was a verdict and judgment 
for the plaintiff. The court, in its general charge to the jury, 
used the following language: "If you find for the plaintiff, he is 
entitled to a verdict for the full amount of damages suffered by 
him on account of his injuries, not exceeding ten thousand dollars; 
and in considering the extent of his injuries you will take into 
account the extent of injury, of bodily pain and suffering which 



278 NORTH DAKOTA REPORTS. 

he may have suffered^ according to its degree, and the bodily 
injury, taking into account the loss of time, the effects of the 
injury on plaintiff's health, its effects on his mental powers, its 
effect on his bodily powers, upon his capacity for labor, the pur- 
suit of an occupation, and the earning of money." Exceptions to 
this instruction were saved, and it is urged that it assumes the 
existence of the facts therein stated, instead of leaving them to 
be determined by the jury. This is hypercritical. The court 
had already instructed the jury as to what facts they must find to 
exist before they could return a verdict for plaintiff. The 
court then said: "If you find for plaintiff he is entitled," etc., 
which was exactly equivalent to saying, "if you find the facts to 
exist as hereinbefore stated, plaintiff is entitled," etc. The 
instruction assumed nothing. 

It is next urged that there is no evidence in the case tending to 
show that plaintiff's capacity to earn money was in any manner 
impaired by the injury he received. We think otherwise. The 
testimony, as a whole, clearly tends to establish that plaintiff's 
ability to earn money was actually impaired by the injuiy he 
received. 

But the third objection urged against the instruction is fatal. 
There was no claim in the complaint or in the evidence that 
plaintiff's mental powers had been in any manner affected by the 
injury, yet the court directed the jury to take into account, in esti- 
mating plaintiff's damages, the effect of the injury on his "mental 
powers." It is conceded that mental suffering is a proper ele- 
ment of damages, and that the impairment of mental faculties is 
also a proper element, when claimed and proven, but it is neither 
claimed nor proven in this case. This position is not controverted 
by plaintiff. His contention is that the instruction did no more 
than to direct the jury to take into account plaintiff's mental 
suffering. We cannot so construe this language. It would be 
idle to follow counsel in his metaphysical dissertion upon 
abstract mental qualities. This language was addressed to men 
of average business intelligence, and must be construed in its 



COMASKEY V, NORTHERN PACIFIC R. R. CO. 279 

general acceptation. We speak of physical suffering, and of 
effect upon physical powers, and no one would claim for a 
moment that the two things were identical. Physical suffering 
may exist, and be an element of damage, and yet there be no im- 
pairment of the physical power to earn money; and the physical 
power to earn money may be greatly impaired, and an element 
for substantial damage, and yet there may exist no suffering 
whatever. True, the two, for a time at least, after an injury, are 
usually present together, but thera is no necessary connection 
between them. The same is true in the mental domain. Mental 
suffering may exist, and the mental powers — that is, the power to 
exercise the mental faculties for the purpose of earning money or 
otherwise — be in no manner affected. On the other hand the 
power to thus exercise the mental faculties may be impaired or 
destroyed, and yet there may be no mentil pain. What the court 
intended is clear from the context. The jury were directed to 
consider "the effects of the injury on plaintiff's health, its effects 
on his mental powers, its effects on his bodily powers, upon his 
capacity for labor, the pursuit of an occupation, and the earning of 
money." The effect upon the mental powers, and the effect 
upon bodily powers, — and the one just as much as the other, — 
were to be considered directly as bearing upon plaintiff's capacity 
to labor and to earn money. But as to the mental powers there 
was nothing of the kind in the case. Nor can we say this error 
was harmless, coming as it did; and, under the medical expert 
testimony in this case, its effect upon the jury is purely conjectural. 
It may not have been prejudicial to defendant, and it may. We 
cannot determine. Under these circumstances our duty is clear. 
The District Court is directed to reverse its judgment, and order 
a new trial. 

Reversed. All concur. 

(55 N. W. Rep. 732,) 



28Q north DAKOTA REPORTS. 

James C. Clark vs, J. O. Sullivan and H. G. Voss, Intervener. 

Opinion 6 led June 9th, 1893. 

Attorneys Lien for Compensation. 

The lien of an attorney for money due his client, in the hands of the adverse 
party, under § 470, Comp, Laws, when secured by compliance with the 
requirements of that section, gives the attorney an interest in such moneys, 
similar to that of an equitable assignee thereof. 

Lien Extends to Undertaking for* Payment of Judgment. 

His interest extends to and embraces the judgment rendered in the action to 
recover such mone3rs, and also the. undertaking to pay such judgment, given by 
the defendant in such action on appeal, and also the cause of action on such 
undertaking against the surety thereon. The attorney has the s^ame equitable 
interest in such judgment, undertaking, and cause of action upon the undertak- 
ing that he has in the money due his client from the adverse party. 

Surety— Right to Set OflF— Priority. 

When, however, the surety on such undertaking, after the attorney had 
secured his lien, but before the surety had notice thereof, purchased a judgment 
against the client, held that, in an action upon the undertaking, on appeal, the 
surety's right to set o£E such judgment was absolute, and was unaffected by the 
attorney's lien. 

Notice of Lien — Upon Whom Binding. 

The entry of notice of lien under Subd. 4 of § 470 is not notice to any except 
the judgment debtor. 

Rights of Assignee of Judgment. 

One who buys a set oH to a claim against him, without notice of a prior 
assignment of such claim, may use the set off as a defense, the same as tl^ough 
the claim against him bad not been assigned. 

Appeal from District Court, Morton County; WincJiester, J. 

Action on a bond by James C. Clark against James O. Sullivan. 
Henry G. Voss intervened, claiming an interest in. the contro- 
versy. From the order sustaining a demurrer to the complaint in 
intervention, intervener appeals. 

Affirmed. 

H. G, Voss, for appellant. 

Interveners lien for attorneys fee's upon the judgment and the 



CLARK V, SULLIVAN. 28l 

proceeds thereof is superior to the set off pleaded by the respon- 
dent. Kimie v. Robiiison, 29 N. W. Rep. 86; Rice v. Day, 49 N. 
W. Rep. 1 1 28; Wards v. Watson, 44 N. W. Rep. 27; Bratiutrd & 
Johnson v. Elwood, 3 N. W. Rep. 799; Reynolds v. Reynolds, 7 N. 
W. Rep. 322; Rooney v. Second Ave. R, R, Co. 18 N. Y. 368, 3 
S. E. Rep. 7. An attorney has a lien for his costs upon a fund 
recovered by his aid paramount to that of the person interested 
in the fund or those claiming as creditors. The reason for the 
rule is that the services of the attorney have in a certain sense 
created the fund and he ought in good conscience to be pro- 
tected. Ptiett V. Beard, 86 Ind. 172, 44 Am. Rep. 280; Justice v. 
Justice, 16 N. E. Rep. 615; Anderson v. Morse, 12 Conn. 444; 
Stratton v. Hussey, 62 Me. 286; Boyle v. Boyle, 106 N. Y. 654, 12 
N. E. Rep. 709. 

F. H, Register, for respondent. 

The lien given by statute is on money in the hands of the 
adverse party and not on the judgment. Subdivision 4, § 470, 
Comp. Laws. Seevers, J. in Brainard & Johrison v. Kinsey Elwood, 
3 N. W. Rep. 799. The lien of the attorney is upon the interest 
of his client in the judgment and is subservient to the right of 
set off in the other party. Mohawk Bank v. Smith, 6 Johns. Ch. 
317; Tiffany v. Stewart, 14 N. W. Rep. 241; McDonald v. Smith, 57 
Vt. 502; Bosworth v. Tallman, 29 N. W. Rep. 542; Nat Bank v. 
Eyre, 8 Fed. Rep. 733; Yorton v. Milwaukee, etc, Ry. Co., 23 N. W. 
Rep. 401; Porter v. Lane, 8 Johns. 277; Nicoll v. Nicoll, 16 Wend. 
446, I Am. and Eng. Enc. Law, 972. 

Corliss, J. The contest before us is between the defendant, 
Sullivan, and the intervener, Voss. The action is upon an under- 
taking executed by defendant, Sullivan, to plaintiff, Clark, as 
surety for one Mead, against whom Clark had recovered judgment 
before a justice of the peace. From this judgment. Mead appealed 
to the District Court, and on this appeal the undertaking sued 
upon was executed by Sullivan, as surety for Mead. In this 
undertaking, Sullivan, in substance, agreed that he would pay the 



282 NORTH DAKOTA REPORTS. 

amount of any judgment which should be rendered against Mead, 
in and by the District Court, on such appeal. Judgment having 
been recovered by Cla^k against Mead in the District Court, he 
(Clark) brought this -suit against defendant, Sullivan, upon the 
undertaking. 

As a counterclaim to the plaintiff's cause of action, defendant, 
Sullivan, interposed a judgment recovered against plaintiff, Clark, 
in favor of Fairbanks, Morse & Co., which judgment was assigned 
to Sullivan before the commencement of this action. That such 
judgment constitutes a valid counterclaim, as against Clark, can- 
not be disputed. IVel/s v. He^tsJiaw, 3 Bosw. 625; Clark v. Story y 
29 Barb. 295; Pom. Rem. & Rem. Rights, § 799. But the interve- 
ner, Voss, who was allowed to serve a complaint in intervention, 
insists that the judgment can be interposed as a counterclaim 
against plaintiff's cause of action on the undertaking only to the 
extent of plaintiff's interest in that cause of action, after deduct- 
ing therefrom the amount of an alleged attorney's lien which he 
(Voss) insists he had upon the plaintiff's catuse of action against 
Sullivan, and upon the undertaking at the time Sullivan purchased 
the judgment against Clark. Had the attorney such a lien? And, 
if so, what is the nature of that lien? These are the questions 
which it is important for us to determine. 

The attorney's claim to a lien grows out of the following fact: . 
Mr. Voss was attorney for Clark in the action against Mead. In 
that action he rendered services for Clark in both courts, worth 
the sum of $45. After the recovery of the judgment against 
Mead in the District Court, Mr. Voss entered his notice of lien to 
the sum of $45 in the judgment docket, opposite to the entry of 
the judgment. Under our statute, this gave him a lien, but what 
did it give him a lien upon? The language of our statute leaves 
no room for construction upon this point. The statute, so far as 
it is material to this inquiry, provides as follows: "An attorney 
has a lien for a general balance of compensation in and for each 
case upon: * * * Third, Money due his client, in the hands 
of the adverse party, or attorney for such party, in an action or 



CLARK Z'. SULLIVAN. 283 

proceeding in which the attorney claiming the lien was employed, 
from the time of giving notice in writing to such^ adverse party, 
or attorney for such party, if the money is in the possession or 
under the control of such attorney, which notice shall state the 
amount claimed, and, in general terms, for what services. Fourth. 
After judgment in any court of record, such notice may be given, 
and the lien made effective against the judgment debtor, by enter- 
ing the same in the judgment docket, opposite the entry of the 
judgment." Comp. Laws,*§ 470, subds. 3, 4. It is plain from this 
language that the lien is not upon the judgment, as the principal 
thing. Thfc lien is upon the money due the client, in the hands of , 
the adverse party. That lien, before judgment, can be secured 
by serving notice as prescribed by subd. 3 of the section. After 
judgment it can be secured by making the entry therein provided 
for. But the lien is the same in either case. It is a lien upon the 
money due, and not upon the judgment itself. After judgment 
has been recovered, that Hch can be secured only by making this 
entry, unless the notice required by subd. 3 has already been 
given. In case that notice has been given it is possible that no 
further notice would be necessary, so far as the judgment debtor 
is concerned. Whether it would suffice, as against a third person, 
having no actual notice, it is not proper to determine in this 
case. But whether notice is given under subd. 3, or an entry is 
made under subd. 4, of § 470, the .lien is primarily upon the 
money due, and not primarily upon the judgment itself. Wijislow 
\, Railroad Co., (Iowa,) 32 N. W. Rep. 330. In this case, how- 
ever, the intervener is compelled to insist that he has a lien upon 
the judgnient, and upon the undertaking signed by Sullivan, and 
upon the cause of action upon such undertaking. Defendant, 
Sullivan, is seeking to set off the judgment against plaintiff, 
which he has purchased, against plaintiff's claim arising out of 
the undertaking. It is obvious that Sullivan's right to have this 
set off allowed is absolute, if the undertaking is owned by plain- 
tiff, and no one else has any interest in it. The statute confers 
upon him a legal right to defeat plaintiff's cause of action by 



284 NORTH DAKOTA REPORTS. 

interposing this judgment as a counterclaim. Sections 4914, 
4915, Comp. Laws. The intervener can maintain his claim to 
priority, as against this judgment, in one way only. He must 
show that to the extent of his lien for services he is, in equity, 
the owner of plaintiff's cause of action on the undertaking. If he 
became such owner before Sullivan's right to set-off the judgment 
accrued to him, and Sullivan had notice of his rights at the time 
he (Sullivan) bought the judgment against plaintiff which he 
seeks to set off, then we are of opinion* that, to the e?ctent of the 
intervener's lien, the judgment does not constitute a proper 
^counterclaim. 

What were the rights of the intervener with respect to this 
undertaking, and the cause of action thereon against Sullivan? 
We are clear that he had all the rights with regard to this instru- 
ment that he had with respect to the judgment against Mead in 
favor of the plaintiff. This undertaking was executed by Sulli- 
van in the very case in which the judgment was rendered, and in 
the undertaking Sullivan promised to pay any judgment which 
the District Court might render in the case. The undertaking is 
but an additional security, provided for by the law, for the pay- 
ment of the money due from Mead to the plaintiff. The lien 
which attaches to the money must necessarily attach to the 
undertaking. The money which Sullivan is to pay under this 
undertaking is the money which the attorney has secured for his 
client by the labor he has bestowed upon the original case. Nor 
is authority wanting to support our views. Newbert v. Cunmng- 
twm, 50 Me. 231; Hobso7t v. \Vatso7u 34 Me. 20; Martin v. Hawks, 
15 Johns. 405; Wilkins v. Batterman, 4 Barb. 48. The reasoning 
upon which these cases rest is that the rights of an attorney, 
under his lien, arc those of an equitable assignee of the judgment, 
to the extent of his lien. Under our statute he would be the equit- 
able assignee of the money due from the debtor to the ci'editor. 
Of course, as such assignee, he would have the same interest in 
any undertaking or cause of action which the creditor, his client, 
might have, as security for the payment of such money. The 



CLARK V. SULLIVAN. 28$ 

intervener being, to the extent of his lien, the equitable assignee 
of the plaintiff's claim for money due him from Mead, he was 
also, to the same extent, the equitable assignee of the undertak- 
ing given by Sullivan on the appeal. It is a familiar principle 
that the assignment of the principal thing carries with it all inci- 
dents.' Our Code so declares, in express terms. Section 3243, 
Comp. Laws. \n Hobson v. Watsofiy'^^ Me. 20, the attorney had 
recovered a judgment for his client. Upon this judgment he had 
a lien for his services. The debtor in the judgment gave a poor 
debtor's bond, under the statute, to secure his release from exe- 
cution issued upon the judgment. The client claimed the right 
to discharge the bond without the consent of the attorney. This 
the attorney contested, and it thus became necessary to determine 
whether the attorney had the same lien upon the bond which he 
had upon the judgment. The court decided that he did have 
such lien upon the bond, saying: "Does the lien extend to the 
bond in suit, and embrace it? The attorney has an interest in the 
judgment, to the amount of more than half of it. What is the 
nature of that interest? It is the property in it, to the extent of 
such interest, as much as if the creditor had assigned it to him as 
collateral security for his fees and disbursements; and, it being 
the property of the attorney, he has all the legal incidents which . 
attach to it, and which by law may arise from it. He could not 
claim a right to the benefit of any contract made between the 
creditor and debtor in relation to the mode of satisfying the. 
judgment, when it was voluntarily entered into, and not pre- 
scribed by law. The debtor has the right, without the consent of 
the creditor, to giife a bond to release himself from arrest in exe- 
cution. It does not depend upon the will of the creditor. It is 
a legal incident attached to the judgment and execution. The 
creditor is compensated by the bond for the liberation of the 
debtor. The bond belongs to the owner of the judgment. If the 
whole amount due upon the judgment was costs, upon which the 
attorney had a lien, would not he be entitled to the control of the 
bond? It would be his property, in equity, and he would have a 



286 NORTH DAKOTA REPORTS. 

right to use the name of the nominal party in a suit upon it." In 
Newbertv. Cunni?igham, 50 Me. 231, the defendant in a replevin 
suit recovered judgment for return of the property. The execu- 
tion upon this judgment being returned unsatisfied, the defendant 
who had recovered the judgment brought suit upon the replevin 
bond. He obtained a judgment upon this bond, but, the sureties 
being insolvent, he sued the sheriff for taking an insufficient 
bond. This last action was settled by the plaintiff therein with- 
out the consent of his attorney in the original replevin suit, in 
which the plaintiff recovered judgment. The attorney, claiming 
a lien for his services upon the original judgment in the replevin 
action, insisted that he had a lien to the same extent upon the 
cause of action against the sheriff for taking an insufficient bond, 
and that, therefore, the action could not be settled without his 
consent, to the prejudice of such lien. The court sustained him 
in this contention, saying: *'Thc attorney, being regarded as an 
equitable assignee of the judgment, has a right to the same 
remedial processes as his client to obtain satisfaction to the 
extent of his lien. The replevin bond is a substitute for the 
property replevied, and a security for the damages and costs aris- 
ing in the prosecution of the suit. The right to enforte it is one 
, of the fruits of the judgment. It accrues after its rendition. It 
is by its enforcement that the judgment is made available. The 
attorney, as incidental to the jugment, has a right to enforce it, 
.which his client cannot defeat. The bond is made running to the 
defendant in replevin. The attempt to collect it was ineffectual. 
The sureties were insolvent. But this will not discharge the 
sheriff. Until the attempt was made, and failed, he might have 
insisted it would have been successful. It being the duty of the 
sheriff to take a replevin bond with sufficient sureties, he is liable 
in case of their insufficiency. But to whom? Manifestly, to the 
person to whose benefit the bond, if good, would accrue. The 
damages awarded for taking an insufficient bond are the compen- 
sation for the loss arising therefrom. The person holding the 
bond is the one who suffers from the insolvency of the sureties. 



CLARK V. SULLIVAN. 287 

The defendant in replevin would primarily be entitled to the 
damages arising from an insufficient bond, if he obtained judg- 
ment, and as a consequence thereof. But the lien of the attorney 
is equivalent to an assignment of the judgment. The attorney, 
having a right to enforce the bond, has a right to the damages 
which may be given for and on account of its insufficiency. The 
assignment of the judgment carries with it the replevin bond, and 
the right to enforce it, and, in case of failure to collect, the right 
of action to damages by way of compensation, for such failure. 
The assignor has no right to the suit. The action exists by virtue 
of the judgment, and as a mode of making it available, or of afford- 
ing an adequate remedy to. the party suffering through the 
neglect of the officer; and that judgment, to the extent of his lien, 
belongs to the attorney." 

That the rights of the attorney, under his lien, are those of an 
equitable assignee, is supported by many decisions, and is sound 
on principle. Warfield v. Campbell, 38 Ala. 527, 534; Ely v. Cooke, 
»28 N. Y. 365; Perry v. Chester, 53 N. Y. 240; Marshall v. Meech, 51 
N. Y. 140; Rooney v. Railroad Co., 18 N. Y. 368. The intervener 
therefore became an equitable assignee of this undertaking, to 
the extent of 845, his bill for services, several days before the 
defendant, Sullivan, had secured the right to set off the judgment 
against Clark. He (Sullivan) did not purchase this judgment 
until about a week after the intervener entered notice of his lien 
upon the judgment docket. But unless Sullivan had notice of 
this equitable assignment at the time he bought the judgment 
against Clark, his right to set off such judgment against his 
liability on the undertaking cannot be defeated by such assign- 
ment. Section 4871, Comp. Laws, provides: "In the case of an 
assignment of a thing in action, the action by the assignee shall 
be without prejudice to any set off or other defense existing at 
the time of, or before notice of, the assignment; but this section 
shall not apply to negotiable promissory note or bill of exchange, 
transferred in good faith, and upon good consideration, before 
due." Under the terms of this section the right to set off a claim 



288 ^ NORTH DAKOTA REPORTS. 

purchased by the debtor before notice of the assignment of the 
claim against the debtor, is unaffected by the assignment, 
although the assignment is made before the right of set off 
accrues to the debtor. Natchez' w. Minor, 9 Smedes & M. 544; 
Lockwood V. Bates, i Del. Ch. 435; Bank v. Balliet, 8 Watts & S. 
311; Martin v. Wells, Fargo & Go's Express, (Ariz.) 28 Pac. Rep. 
958. The statute only embodies a well established doctrine of 
the common law. 

That defendant, Sullivan, had actual notice of the equitable 
assignment of the cause of action against him on the undertaking 
to Voss before he (Sullivan) purchased the set off, is not pre- 
tended. It only remains to be considered whether the entry of 
the lien in the judgment docket constituted notice to him. When 
we examine the statute, we find that it limits to the judgment 
debtor the effect of this entry as notice. It says that by this 
entry the lien is made effective against the judgment debtor. It 
is apparent that the statute does not mean that any lien is created 
against the judgment debtor, or against his property, but merely • 
that the entry of the notice constitutes notice to him, so that he 
cannot thereafter disregard the interests of the attorney in the 
moneys which he (the debtor) owes the client The legislature 
has so restricted, the operation of this entry of notice that only 
the judgment debtor is affected by it. His surety on an appeal 
undertaking is not within the statute. The attorney can protect 
himself by giving such surety actual notice of his lien, and from 
that moment the surety pays the client, or purchases a set off 
against him, subject to the attorney's rights. The case of Hroch 
V. Auhman & Taylor Co., (S. D.) 54 N. W. Rep. 269, has been 
cited to support the priority of the attorney in the case. But in 
that case the right of set off was held by the court not to be 
absolute, as in the case at bar. Here the defendant is relying 
upon a legal set off which he purchased against the plaintiff's 
cause of action against him, without notice that an equitable 
assignment of the defendants claim had been made to the 'attor- 
ney, whereas in that case the court was dealing with the question 



CLARK ^'. SULLIVAN. 289 

of the right of a judgment debtor to set off against the judgment 
obtained against him another judgment recovered by him against 
the plaintiff in the first named judgment. The court held the 
right to set off one judgment was not an absolute right, under the 
statute, but that the court would be governed by circumstances in 
granting or denying the application to set off mutual judgments. 
That the right was not absolute, under the decisions, cannot t)e 
doubted. The application to have judgments set off was in the 
nature of an appeal to the equity of the magistrate. When it 
would defeat justice to grant the application, it was refused. To 
the extent that the setting off of one judgment against another 
would affect the rights of third persons —rights which have 
equitable claim to superiority — the court will refuse to compel the 
payment of one of these judgments with the other. Puctt v. 
Beard, 86 Ind. 172; Tliropp v. Insurance Co,, 125 Pa. St. 427, 17 Atl. 
Rep. 473; Diehl v. Friester, 37 Ohio St. 473; Brown v. Hendrickson, 
39 N. J. Law, 239. See cases cited in note to Diuican v. Bloom- 
stock, i3^Am. Dec. 730. Our statute regulating this matter is the 
same as that of South Dakota. It provides that "mutual final judg- 
ments may be set off pro tanto, the one against the other, by the 
court, upon proper application and notice.'* Section 5109, Comp. 
Laws. Whether we should agree with the Supreme Court of that 
state in the view that this statute works no change in the former 
doctrine, it is not necessary now to decide. It is sufficient to 
distinguish the case from that state, relied on by the intervener, 
that the court held that in that jurisdiction the court will exer- 
cise its discretion on an application to set off judgments, and will 
grant or withhold relief according to justice, having regard to 
those rights of third persons which will be affected by the 
granting of such relief. The right of the defendant to interpose 
this judgment against plaintiff as a counterclaim is absolute, under 
the statute, he having purchased the same before notice of the 
intervener's equitable interest in the undertaking. The order 

N. D. R. — 19. 



290 NORTH DAKOTA REPORTS. 

sustaining the demurrer to the complaint in intervention is 
affirmed. All concur. 

(55 N. W. Rep. 733-) 

Note — For right of offset by surety, see Clark v. Sullivan^ 2 N. D. 103. 



Henrv C. Branstetter vs. William H. Morgan. 

Opinion filed May 31st, 1893. 

Evidence to Refute Inference or Presumption of Fact. 

A plaintiff may properly introduce evidence to refute an inference or pre- 
sumption of fact that might arise from matters drawn from himself on cross- 
examination, even though such evidence has no direct bearing upon the issues, 
and the lime of the introduction of such evidence is peculiarly within the dis- 
cretion of the trial court. 

Claim and Delivery— Ownership— Verdict. 

In claim and delivery, where each party claims the right of possession by 
virtue of absolute ownership, and in no other manner, a verdict which finds the 
- plaintiff entitled to the possession of the property, and fixes its valued will sup- 
port a judgment for plaintiff for possession of the property, or its value as 
found by the jury. 

Appeal from District Court, Barnes County; Rose, J. 

Action by Henry C. Branstetter against William H. Morgan 
for the recovery of six horses. Plaintiff had judgment, and 
defendant appeals. 

Affirmed. 

M, A, Hildreth, for appellant. 
G, K, AndmSf for respondent. 

Bartholomew, C. J. The judgment in favor of the plaintiff in 
this case must be affirmed. There was practically no defense to 
the action. The case was claim and delivery for six horses. Both 
parties claimed by absolute ownership. Plaintiff's evidence 
showed that he raised the horses on his ranch in Umatilla County, 
Or.; that they were branded when young colts with a Y brand on 
the left shoulder; that these horses, with 25 or 30 more, were 



BRANSTETTER V. MORGAN. 29 1 

stolen from his ranch about August 5th, 1891, and that they were 
shipped east over the Northern Pacific Railroad by a party by the 
name of C. McCullom. Plaintiff positively identified the horses, 
both by the brand and by general appearance. The branding 
iron with which these horses were branded, and which plaintiff 
swore he had used for more than 12 years, was put in evidence, 
over defendant's objection. It might have been of assistance in 
identifying the horses, and was thus material. Plaintiff's neigh- 
bors who had assisted him in branding swore positively to the 
branding iron, and to plaintiff's loss of horses, but these witnesses 
were not permitted to see the horses in controversy, they being 
still in defendant's possession. Defendant's claim of title rested 
exclusively upon the fact that he purchased the horses in August, 
1 891, from one Charles McCullom, at Tower City, in this state, 
and paid full value therefor. This was consistent with and corro- 
borative of plaintiff's evidence. No effort whatever was made by 
defendant to show that McCullom had any title to the horses. 
But it was sought on cross-examination of plaintiff to draw out 
matter on which to base an argument to the jury that plaintiff 
and McCullom were in collusion, because plaintiff had not taken 
active measures to apprehend and punish McCullom. In rebuttal 
of this idea, plaintiff was permitted to introduce, over defendant's 
objection, a subscription paper signed by thirty citizens of 
Oregon, and to which plaintiff was its largest subscriber, which 
was gotten up to raise funds to capture and convict parties impli- 
cated in stealing horses, and which paper stated that **H. C. Bran- 
stetter is a heavy loser." Plaintiff was also allowed, over objec- 
tion, to show, by the district attorney of Barnes County, that he 
applied to that officer to prosecute said McCullom, and by a 
justice of the peace that a warrant was issued for said McCullom, 
and by the deputy sheriff that said warrant was placed in his 
hands, and he went to New Rockford to arrest said McCullom, 
but did not find him. This was all proper to rebut the claim that 
plaintiff was in collusion with McCullom, and was properly admit- 
ted. See State y. McGahcy, 55 N. W. Rep. 753, 3 N. D. (decided at 



292 NORTH DAKOTA REPORTS. 

this term,) and cases there cited. The order in which the proof 
was offered might be open to criticism, but that matter is peculi- 
arly in the discretion of the trial court. The verdict finds the 
plaintiff entitled to the possession of the property, and the value 
thereof. It is urged that this is entirely insufficient to support 
the judgment for plaintiff, in that it does not pass upon the 
question of ownership. Some early Wisconsih cases are cited to 
support the claim. These cases for the most part were decided 
when the practice in replevin cases was qtiasi criminal, and the 
plea of "not guilty" put in by defendant put in issue every 
material allegation in the complaint. Ownership, both general 
and special, was thus put in issue; also the right of possesion, as 
well as the wrongful taking or wrongful detention. It is elemen- 
tary that the verdict must respond to all the issues; and this is 
the same whether the issues are raised by plea of "not guilty'* or 
specifically by answer. But in this case there was, under the 
pleadings, but the one issue. Each party claimed absolute owner- 
ship. Neither claimed any right, e?ccept such as flow from and 
are incident to such ownership. Under the pleadings, ownership 
necessarily carried with it the right of possession, and the party 
entitled to possession was necessarily the owner. The verdict 
settled the only issue in the case, and was sufficient. KraUse v. 
Cutting, 32 Wis. 688; Event v. Bank, 13 Wis. 468; Faulk fier v. 
Meyers, 6 Neb. 415; Underwood v. White, 45 111. 438; Clark v. Heck, 
17 Ind. 281; Payne v. Ju/u, 92 Ind. 253. 

Judgment affirmed. All concur. 

(55 N. W. Rep. 758.) 



r 



STATE V, MC Gi\HEY. 293 

State rj. Arthur McGahey. 

opinion filed July 7th, 1893. 

Redirect Examination of Defendant. 

It is proper upon the redirect examination of a witness in a criminal case to 
permit him to state facts and circumstances that tend to correct or repel any 
wrong impressions or inferences that arise from the matters drawn out on cross- 
examination, and this rule is not changed because such facts and circumstances 
may be of such a character as to prejudice the defendant in the minds of the 
jury. 

Harmless Error— Not Ground for Reversal. 

An error of the court in ruling upon the admission of evidence that conclu- 
sively appears to have been innoxious, and could have worked no prejudice to 
the party objecting, is no ground for reversal. 

Striking Out Testimony— Caution to Jury. 

Where, in answer to proper questions, a witness volunteers incompetent and 
irresponsive matter in his answers, and which matter has but an indirect bear- 
ing upon the issue upon trial, and is promptly stricken out by the court, in the 
presence and hearing of the jury, on motion of opposing counsel, such action 
amounts to a withdrawal of such matter from the jury, and no duty rests upon 
the court, in the absence of any request thereunto, to further caution the jury, 
either at that time or in the general charge, to disregard such matter. 

Prosecution Need Not Call all Eye Witnesses. 

No duty rests upon the prosecution in a criminal case to produce and swear 
as witnesses for the state all the eyewitnesses to the transaction, where the 
testimony of the witnesses called, or some of them, is direct and positive, and 
apparently covers the entire transaction. 

Remarks of Counsel for State— Caution by Court. 

The control of the remarks of counsel for the state during a criminal trial is 
a matter largely in the discretion of the trial court; and where the objectionable 
remarks are of a general character, and such as would not be likely, under the 
attending circumstances, to prejudice the cause of the accused in the minds of 
honest men of fair intelligence, the failure of the court to strike out such 
remarks, or caution the jury against them, is not such an abuse of discretion as 
will constitute error. 

Cross-examination— Collateral Matters. 

While a party to an action cannot object to questions asked a witness upon 
cross-examination, tending to elicit proof that the witness had been guilty of 
practices that would affect his credit before the jury, yet, where such matters 
are purely collateral to the issue, the answer of the witness is final, and it is not 
proper to introduce contradicting evidence. 



294 NORTH DAKOTA REPORTS. 

Cross-examination— Witness— Criminal Relations with Defendant. 

The state has the right, on cross-examination, to show the nature of the 
relations existing between the witness and the accused, so far as their relations 
are such as would create a bias on the part of the witness that might reasonably 
be supposed to affect his testimony, and this rule cannot be changed by the fact 
that these relations may be such as to prejudice the accused in the minds of the 
jury. 

Request Refused When Covered by General Charg^e. 

It is not error to refuse an instruction requested that correctly states the law, 
and is applicable to the case, when the court, in its general charge, has fully 
and specifically covered the same points. 

Error to District Court, Grand Forks County; Templeton, J. 
Arthur. McGahey was convicted of shooting at another with 
intent to kill, and brings error. 
Affirmed. ^ ' 

John M. CochranCy for plaiittiff in error. 

Failure of the court to rule on objections of defendant, 
when the objections were properly made — was error. Elliott. 
Ap. Pro. § 727; Comiing v. Woodin, 8 N. W. Rep. 572. The 
re-examination of complaining witness as to cause of animosity 
between himself and defendant, was prejudicial error. I Thomp. 
on Trials, § 484; Schascr v. State, 36 Wis. 432, 11 Alb. Law Jr. 224. 
Questions assuming facts not in evidence were improperly 
allowed. Cornwellv. Cogwm, 17 N. Y. Sup. 299; Peo. v. Cahoon, 
50 N. W. Rep. 384; State v. Smith, 49 Conn. 376; People v. Matlur, 
21 Am. Dec. 122. The conversations between complainant and 
his wife in the absence of defendant were improperly admitted. 
Barbee v. State, 4 S. W. Rep. 584; Taylor v. State, 11 S. W. Rep. 
462; Maifies v. State, 5 S. W. Rep. 123; Tyler v. State, 11 Tex. App. 
388; Washington v. State, 17 Tex. App. 197; Favors v. State, 20 Tex. 
App. 155. The court having admitted irrelevant testimony over 
objection of counsel — should upon striking the same out there- 
after have instructed the jury to disregard such testimony even 
without being specially requested so to do. 2 Thomp. on 
Trials § 2339'; Yco. v. Peo, 49 111. 412; Peo, v. Wheeler, 60 Cal. 589. 
The swearing of William Brittan for the state— his name not 



STATE V. MC GAHEY. 295 

appearing upon the information — was error. Peo, v. Hall, 12 N, 
W. Rep 665; Peo, v. Moraii, 4 Am. Crim. Rep. 470. Defendant's 
request should have been granted to have Mrs. Hill an eye wit- 
ness of the shooting, sworn as a witness for the state. Tliompson 
V. State, 17 S. W. Rep. 448; Territofy v. Hanna, 5 Pac. Rep. 252; 
Welter \. Peo., i Am. Crim. Rep. 283; MaJierv, Peo,, lO.Mich. 212; 
Hurdw, Peo., 25 Mich. 405; Peo. v. Gordon, ^o Mich. 716; State v. 
Magoon, 50 Vt. 338; Tfiomas v. Peo. 39 Mich. 309; State v. Middle- 
ham, 17 N. W. Rep. 446; Whart. CI. Ev. § 448; Chapmans Case, 8 
C. & P. 558; Orchards Case, 8 C. & P. 559; Peo. v. Dietz, 49 S. W. 
Rep. 296; Peo. v. Eller, 45 N. W. Rep. 1109. And the objection 
that the witness is not favorable to the prosecution is no excuse 
for not calling her. Welter v. Peo., i Am. Crim. Rep. 283; f/urd 
V. Peo., 25 Mich. 415; Territory v. Hamta, 5 Pac. Rep. 252. The 
statement of the prosecuting attorney in answer to defendant's 
request that Mrs. Hill be called for the state should have been 
stricken out. Hardtke v. State, 30 N. W. Rep. 726; Hall v. Wolf, 
16 N. W. Rep. 711; Peo. v. Dan£, 26 N. W. Rep. 781, Cross- 
examination of Mrs. Hill a witness for defendant as to acts of 
adultery with defendant on the pretense of impeaching her testi- 
mony, but in fact proving another crime against the defendant* 
was highly prejudicial and improper. Hoberg v. State, 3 Minn. 
181; State V. McGee, 46 N. W. Rep. 764; State v. Starrett, 32 N. W. 
Rep. 387; Peo. V. Thurston, 2 Parker Crim. Rep. 130; State v. Gor- 
don, 3 la. 415; State v. Hoyt, 13 Minn. 125. The rule permitting 
cross-examination of a witness upon irrelevant matters affecting 
character as going to the creditability of the witness has never 
been extended to permit the repeated asking of questions upon 
the same line, all of which questions impute crime. Peo. v. 
Cahoon, 50 N. W. Rep. 384; Sullivan v. Dieter, 49 N. W. Rep. 263. 
When evidence tends to prove two things, one of which it may 
properly be admitted to prove but not the other, it should go to 
the jury, with an explanation from the court of its legitimate 
bearing. Webster v. Enfield, 10 111. 298; 2 Thomp. on Trials § 2416; 
Kclley V. State, 18 Tex. App. 262; Holmes v. State, 20 Tex. App. 



296 NORTH DAKOTA REPORTS. 

509; Alexander v. State, 21 Tex. App. 410; Whart. Cr. Ev. § 46. 

Bangs & Fisk, {W. H. Standish, Atty, Getiloi Counsel) for the 
defendant in error. 

Upon re-examination of a witness it is proper to ask him 
questions for the purpose of drawing forth an explanation of a 
sense and meaning of expressions used by him on cross-examina- 
tion. I Thompson on Trials, § ^%6\ Schaser v. State, 36 Wis. 432; 
Goodman v. Kennedy, 10 Neb. 270; State v. Hopkins, 50 Vt. 316; 
People V. Smallman, 55 Cal. 188. A witness may be permitted to 
to state in his own language what may be necessary by way of 
introduction to make his narrative intelligable and thus may 
state what others told him. Shultz v. State, i Crim. Law Mag. 
140. The extent to which a re-direct examination will be allowed 
to proceed rests in the discretion of the trial court. Slinkier v. 
State, 9 Neb. 241; Towers v. Leach, 26 Vt. 270. Where improper 
testimony has crept in but is promptly ordered stricken out by 
the court, the defendant cannot predicate error on account of the 
neglect of the court to specifically charge the jury to disregard 
such testimony in the absence of a request so to do. Arthur v. 
Griswold, 55 N. Y. 408; Hopt v. Utah, 120 U. S. 430; Zell v. Comm. 
2 Crim. Law Mag. 22, 25. No duty rests upon the state to pro- 
duce and swear all eye-witnesses to the transaction where the 
testimony of the witnesses called, is direct and positive and 
apparently covers the entire transaction. Comm. v. Haskell, 140 
Mass. 128; State v. Middlcham, 62 la. 150, S. C. 14 N. W. Rep. 446. 
Where objectionable remarks of counsel are of a general character 
and not likely to prejudice the case of the accused in the minds 
of honest men of fair intelligence the failure of the CQurt to strike 
out such remarks or caution the jury to disregard them is not an 
abuse of discretion. Sec note to 26 N. W. Rep. 782; Epps v. State, 
(Ind.) I N. E. Rep. 492; State v. McCool, 9 Pac. Rep. 618; Schider 
V. State, (Ind.) 2 West. 801. The evidence of uncommunicated 
threats which were offered to be proven by the defendant was 
inadmissible as the threats were not made by Hill against the 



STATE V. MC GAHEY. 297 

defendant but were made by defendant himself against the witness 
Hill. State v. Cross, (la.) 26 N. W. Rep. 64. Witnesses cannot 
be contradicted upon collateral matters brought out on cross- 
examination for the purpose of impeachment. Wharton's Cr. Ev. 
§ 484; Stokes V. Peo, 53 N. Y. 175; Kent v. State, (Ohio) 6 Cr. Law 
Mag. 520 and note. It is well settled that witnesses who are not 
parties may, for the purpose of impeachment and within the 
sound discretion of the trial court, be required to testify as to 
collateral facts which may tend to degrade them. Terr, v. 
O'Harre, i N. D. 30, S. C. 44 N. W. Rep. 1007. And this may be 
done although the facts thus brought out may also reflect upon 
the character of the defendant and thereby prejudice the accused 
in the minds of the jury. State v. Bacon, 13 Ore. 143, S. C. 8 Cr. 
Law Mag. 82. Error cannot be predicated upon the admission 
of evidence under a general objection, a specific ground of objec- 
tion be stated. Burke v. Koch, 75 Cal. 356, S. C. 17 Pac. Rep. 228; 
Chicago E. I, R. v. People, 120 111. 667. The refusal of the court to 
instruct the witness Mrs. Hill as to her privilege cannot be taken 
advantage of by defendant for the reason that the witness did not 
claim her privilege, and defendant's counsel could not do so for 
her. People v. Brozvn, 72 N. Y. 573. A general objection to evi- 
dence is sufficient only where the evidence is inadmissable in its 
nature. That a question is "irrelevant" and "inadmissable" will 
not raise the question of its incompetency where it is relevant to 
a certain point in issue. Fozer v. N, V. Ce/it. & H, R. R. Co. 105 
N. Y. 659; Burke v. Koch, 75 Cal. 106; i Rice on Ev. 920,921. 
Where the law of the case is fully stated to the jury by the court 
error cannot be predicted on the refusal of the court to give a 
specific instruction. Biefield v. State, 19 N. W. Rep. 607. 

Bartholomew, C. J. Arthur McGahey, the plaintiff in error, 
was convicted in the District Court for the County of Grand 
Forks of the crime of shooting at one Thomas Hill with intent to 
kill. It is not possible to read the record in this case without 
becoming strongly impressed with the belief that McGahey had 
also been guilty of adulterous intercourse with Hill's wife. It is 



' ^ 



298 NORTH DAKOTA REPORTS. 

safe to say that all the evidence tending to establish or indicate 
such adultery was objected to by the able attorney for the plain- 
tiff in error, and the rulings of the court upon these objections 
are here for review. The elementary principle which would 
ordinarily render such evidence inadmissable is too familiar to 
need mention, and the state, admitting the principle, contends 
that there has been no violation of it in this case. The shooting 
affray occurred upon one of the thoroughfares of the City of 
Grand Forks, in daylight. Hill, with his wife, was in a building 
used as a skating rink, and of which he was the proprietor. 
McGahey was on the sidewalk, on the opposite side of the street. 
It is undi3puted that McGahey fired three shots from a revolver 
at or in the direction of Hill, and that Hill fired one shot from a 
rifle at MaGahey. Each party claimed that the other sliot first, 
and on that point the case turned. The shooting occurred about 
8 o'clock in the evening on May 24th, 1892. Hill as the principal 
witness for the state, testified that he was sitting upon a pile of 
lumber in the rink, talking with his wife; that the door was open, 
and McGahey came down the other side of the street, and, seeing 
witness through the door, drew his revolver, and commenced 
firing; that he (Hill) ran over to an open window, and returned the 
fire. On cross-examination it developed that, a few hours before, 
Hill had gone into a store, and procured a repeating rifle, 
and caused it to be loaded, and taking it with him, went down 
into the woods by the brewery, where he had been told he would 
find his wife and McGahey. He was asked, "How did you come 
to feel the necessity of having a gun just at this time?" He 
answered, "I knew if I ran against this man at the place I was 
going to look for him I might have trouble." From this language, 
under the circumstances, a strong inference might be drawn that 
Hill was the aggressor. On redirect examination the question 
was put, "Why did you think you needed this [the rifle] to pro- 
tect yourself?" This was objected to as not proper redirect 
examination. The plain purpose of the question was to enable 
the witness, by giving antecedent facts and circumstances, to 



STATE V. MC GAHEY. 299 

remove the inference left by the cross-examination. This is one 
of the most important purposes for which a redirect examination 
is allowed. Sdiaser v. State ^ 36 Wis. 429; State v. Hopkins, 50 Vt. 
316; People V. SmaUmaji, 55 Cal. 185. The fact that the answer to 
the question called out a narrative of certain matters touching 
former conduct of plaintiff in error and his relations with Mrs. 
Hill, that might prejudice him in the eyes of the jury, cannot 
change the rule of law. Plaintiff in error moved to strike out a 
certain portion of the answer to the foregoing question as not 
responsive, and the court made no ruling. This is assigned as 
'error. This failure of the court to make a ruling was probably 
equivalent to a denial of the request, but there was no prejudicial 
error. True, the language was not strictly responsive, but it had 
no element of prejudice in it. The witness stated that plaintiff in 
error was at one time in the habit of going to his room late at 
night, changing his clothes, and going out again. This act is 
entirely consistent with innocence dnd good character. We 
would not depart, particularly in a criminal case, from the rule 
which requires reversal in every case where evidence is improperly 
admitted, unless it conclusively appears that such error was innox- 
ious, — that it not only might not, but could not, be prejudicial to 
the party against whom it was offered; but we feel bound to say 
in this case that such harmless language could not prejudice the 
minds of jurymen of average intelligence. 

The 4th, 5th, 6th, 7th, and 8th assignments of error present in 
different forms the same question discussed under the ist, and 
require no separate discussion. The 9th and loth assignments 
are identical in principle. Certain questions were asked the 
witness Hill on his redirect examination, and objections' thereto 
overruled. After the witness had answered, motions were made 
to strike out the answers, or parts thereof, as not responsive, and 
as immaterial. These motions were sustained, but the court, 
neither at the time nor in the general charge, cautioned the jury 
to disregard such testimony. The questions were proper, but a 
willing witness dragged in incompetent and irresponsive matter 



300 NORTH DAKOTA REPORTS. 

in his answer, and, although promptly stricken out on motion, it 
is urged that this was not sufficient to remove the poison that it 
had instilled in the minds of the jurors; that it was a case where 
it became the duty of the court, without any special request 
thereto, to caution the jury to disregard it. It has been held that 
where counsel, in argument to the jury, stated evidentiary 
matters of which there was no proof, it was the duty of the court, 
without request, to instruct the jury to disregard such statement. 
Voe V. People, 49 111. 412. It has also been held that, where in- 
competent evidence has been admitted upon the statement of 
counsel that he would subsequently, by other evidence, so con-' 
nect the incompetent testimony with the case as to remove the 
objection, and such subsequent testimony was not produced, it 
became the duty of the court to expressly withdraw such incom- 
petent testimony from the jury. Dil/in v. People, 8 Mich. 357. 
And it has even been held, under such circumstances, that the 
subsequent withdrawal of ^ch testimony did not cure the error. 
Marshall v. State, 5 Tex. App. 273. And see Arthur v. Griswold, 
55 N. Y. 400. A full discussjon of the subject may be found in 
Thomp. Trials, § § 715, 723. While there is lack of uniformity in 
the decisions, no case is cited which fairly supports the conten- 
tion of plaintiff in error in this case. The divergence of authority 
arises from the inherent difficulty in, announcing any rule of uni- 
versal application. When important testimony, bearing directly 
upon the issue, is introduced at one stage of the trial, and per- 
mitted to remain before the jury, while other testimony is given, 
forming an integral part of the facts, that find a lodgment in the 
minds of the jurors, and on which they reach their conclusions, 
and it subsequently appears that such former testimony was, for 
any cause, clearly improper, it is no doubt the duty of the court 
in explicit language to direct the jury to disregard such testimony. 
And the mind can readily suggest cases in which, by reason of 
the equipoise of the other evidence in the case, and the magnitude 
of the issues at stake, no words of the judge could certainly be 
relied upon to enable the jurors to entirely emancipate themselves 



STATE V. MC GAHEY. . 36 1 

from the effects of the vicious testimony. "It had poisoned 
their minds, and its effects could not be erased froni their 
memories." But to hold that where -an over-willing witness, in 
answer to a proper question, volunteered immaterial and irre- 
sponsive matter in his answer, such error could not be cured by 
immediately withdrawing such improper matter from the jury, 
would open the door for a- reversal of a large percentage of 
criminal cases, and for no material reason, and for no error of the 
prosecution or the court. But it is claimed this matter was* not 
taken from the jury. We think it was in effect. As soon as the 
improper testimony left the mouth of the witness, counsel moved 
that it be striken out, and the court, in the presence and hearing 
of the jury, so orderd. No intelligent juror misconceived the 
situation. In a case of this kind, (and we need go no further.) 
where, at most, the evidence had but an indirect and inferential 
bearing upon the case, the court had no further duty pertaining 
to the matter. It was but an incident, and by no means an im- 
portant incident, in the trial. Before the general charge was 
reached, it had naturally passed from the mind of the court. If 
counsel desired a specific instruction on the point, he should have 
requested it. Doubtless, in the abundance of protection that 
courts properly throw around persons accused of crime, such a 
request would have been given. We do not say that a refusal to 
give it would have been error, but we da say that no error can 
be predicated upon the failure of the court to give such specific 
instruction without request. 

The testimony of the state developed the fact that Mrs. Hill 
was present at the rink when the shooting occurred, and might 
have been an eyewitness of the affray, or at least .a portion of it. 
When the state rested, the plaintiff in error requested the prose- 
cuting attorney to produce Mrs. Hill and have her sworn as a 
witness for the state. This the prosecutor declined to do, where- 
upon counsel for plaintiff in error moved the court to order 
that Mrs. Hill be so produced and sworn. The motion was 
denied, and this ruling is assigned for error. It is proper to state 



302 NORTH DAKOTA REPORTS. 

that besides the witness Hill not less than six other persons had 
been sworn for the prosecution, all of whom based their testimony 
upon the sense of sight or* hearing, or both, and the testimony 
thus produced covered all parts of the transaction. Under this 
assignment of error it is urged that it was the duty of the prose- 
cutor to produce and swear all persons who were shown by the 
evidence to have been present at the time of the affray, and whose 
testimony could throw any light upon the subject that would in 
any degree aid the jury in ascertaining the facts. The rule thus 
invoked was early established in England. In Reg. v. Holdcn, 8 
Car. & P. 606, Patteson, J., said: "Every witness who was present 
at a transaction of this sort ought to be called; and, even if they 
gave different accounts, it is fit that the jury should hear their 
evidence, so as to draw their own conclusions as to the truth of 
the matter." This was a homicide case. And see Reg, v. Qtap- 
matt, Id. 559; Reg. v. Bull, 9 Car. & P. 22; Rose. Crim. Ev. 128. 
While this rule was established in that country at a time when 
the right of persons accused of crime to be represented by 
counsel was denied, or greatly abridged, and hence the rule found 
greater support in justice and necessity than at present, yet we 
are not aware that it has ever been abrogated. The state of 
Michigan seems to have adopted this rule in its entirety. It is 
true that the cases in that state which first discussed the question 
{Maker v. People^ 10 Mich. 2\2\ Hurd v. People^ 25 Mich. 405; 
Wellarv. People, 30 Mich. 16; and Thomas v. People, 39 Mich. 309) 
announced the modified rule hereinafter stated, but the latest and 
strongest utterance of that very able court on the subject is found 
in People v. Dictz, 86 Mich. 419, 49 N. W. Rep. 296. This was a 
case of assault with intent to do great bodily harm. There were 
four persons engaged in the affray, — two on each side. The 
prosecutor called the two on one side, and the testimony covered 
the entire transaction. The court refused to require the prosecu- 
tion to swear the other party to the affray, not on trial, and who 
was present in court, and also refused to require the prosecution 
to produce and swear three ladies who witnessed the difficulty 



STA.TE V. MC GAHEY. ^ 3O3 

from the porch of a house 35 rods distant, and who were sworn 
on the preliminary examination. The case was reversed, and the 
court said: "We think the better rule is that it is incumbent 
upon the prosecutor not only to have the witnesses present in 
court, but to have thefn sworn in behalf of the people, and he 
may then examine them much or little, as he chooses. It affords 
the defense an opportunity to cross-examine without prejudicing 
their case by the bias of the witness, if he should have any." And 
see People v. Gordon, 40 Mich. 716; People v. Etter, 81 Mich. 570, 
45 N. W. Rep. 1 109. But see, also, comments of Cooley C. J., in 
Bonker v. People, 37 Mich. 4. We do not think State v. Magoon, 
50 Vt. 338, cited by counsel, sustains his position; and Donaldsofi 
v. Com. 95 Pa. St. 21, also cited, is not an authority. The case 
was rape, and was reversed upon another ground, but the court 
said: "We cannot forbear, however, remarking that, in our 
opinion, the physician who, the day after the occurrence, examined 
the person of the girl upon whom the offense was alleged to have 
been committed, should have been called as a witness, and 
required to testify by the district attorney. Whether his evidence 
tended to acquit or convict, it was demanded equally by the cause 
of humanity on the one side and of justice on the, other. We say 
this more especially because there was no direct evidence of the 
factum of the crime, and no proof of actual penetration, the pros- 
ecutrix having testified that she was insensible, and had no 
knowledge of what took place. We do not reverse for this 
reason, and do not sustain the fifth assignment of error, which 
raises the question, but merely express our opinion as to what 
should have been done in the peculiar circumstances of this case." 
In the case in 10 Mich., Judge Christiancy said: "Whenever it 
appears evident to the court that but part of the facts, or a single 
fact, has been designedly selected by the prosecution from the 
series constituting the res gestce, or entire transaction, and that 
the evidence of the others is within the power of the prosecutor, 
it would, I think, be the duty of the court to require the prosecu- 
tor to show the transaction as a whole." And in Hurd v. People, 



304 NORTH DAKOTA REPORTS. 

supra, the same learned judge, again speaking for the court, said: 
**But the prosecution can never in a criminal case properly claim 
a conviction upon evidence which expressly or by implication 
shows but part of the res gcstce or whole transaction, if it appear that 
evidence of the rest of the transaction is obtainable. This would 
be to deprive the defendant of the benefit of the presumption 
of innocence, and throw upon him the burden of proving his in- 
nocence." In Territory \, Han?ia,^ Mont. 248, 5 Pac. Rep. 252, it is 
said: "The authotities arfe clear and conclusive upon the propo- 
sition that the prosecution cannot select out part of a transaction, 
and ask a conviction thereon, when testimony showing the whole 
thereof is within its reach." Thompson v. State, 30 Tex. App. 325, 
17 S. W. Rep. 448, was a homicide case, where the shooting was 
admitted, and self defense relied upon, by defendant. It was 
admitted that there were four eye witnesses to the shooting, all of 
whom had been subpoenaed by the state, and were present in the 
court room. The state introduced only circumstantial evidence 
and the testimony of experts, and the court refused to require the 
prosecutor to introduce any of the eyewitnesses^ This was held 
error, on the broad ground that the evidence introduced was not 
the best evidence of which the case was susceptible,. and revealed 
the existence of more original sources of information as stated in 
I Greenl. Ev. § 82. The modified rule applied in these cases 
commends itself so instantaneously to the judicial mind that it 
would probably be accepted by any court in the land. But the 
facts and circumstances of this case leave it clearly outside the 
influence of this rule. Here not less than seven witnesses had 
testified directly to facts as they saw them and heard them. 
There had been no particular facts selected out by design or 
otherwise. The entire transaction had been sifted in all its 
details. There is not even a suggestion of concealment in the 
evidence. Nor is it suggested that Mrs. Hill was in better con- 
dition to know the facts that any one of several witnesses whom 
the state called. The most that can be claimed is that Mrs. Hill, 
testifying upon the same matters, and with the same means of 



STATE V, MC GAHEY. 305 

knowledge, might have contradicted the testimony of the other 
witnesses. Under such circumstances, no duty rested upon the 
state to call her. The law is ever more zealous to protect inno- 
cence than to punish crime. Persons accused of crime have the 
full and free use of the process of the court to compel the 
attendance of witnesses. They are always represented by counsel, 
chosen either by themselves or by the court. They can be con- 
victed only upon evidence that the jury regards as practically 
conclusive, and so juries are always instructed. We regard it as 
clearly unsafe to go further, and require the prosecution, after it 
has fairly and in good faith given the entire res gcstCB to the jury, 
to call every witness to the transaction, howsoever bitterly hostile 
such witness may be to the prosecution, or howsoever powerful 
his motives may be to screen the defendant. To place such a 
witness in the hands of astute counsel for cross-examination 
would be to confound justice, and establish a rule that innocence 
never requires for its protection. This assignment of error can- 
not be sustained on this ground. State v. Middleliam, 62 Iowa, 
150, 17 N. VV. Rep. 446; State v. Eaton, 75 Mo. 586; State v^ Jolm- 
son, 76 Mo. 121; State v. Martin, 2 Ired. loi; State v. Smallwood, 75 
N. C. 106; State v. Cain, 20 W. Va. 679; Com. v. Haskell, 140 Mass. 
128, 2 N. E. Rep. 773. 

When counsel for the plaintiff in error asked the court to com- 
pel the prosecution to produce and swear Mrs. Hill, the prosecuting 
attorney, in opposing such request, and in the presence and hear- 
ing of the jury, used the following language: "Information comes 
to me that the witness whose presence is requested as a. witness 
for the state has been kndwn to be conniving and going with the 
defendant in endeavoring to secure testimony in any way that it 
can be secured as against the state, in favor of the defense, and 
for that reason the state declines to produce her or to swear her 
here as a witness for the state." Counsel for plaintiff in error 
immediately moved to strike out this statement as an improper 
statement to be made before the jury. There was no ruling on the 

N. D. R. — 20. 



306 NORTH DAKOTA REPORTS. 

point, and this absence of action by the court is assigned as 
error. Regarding the failure to rule as equivalent to denying the 
motion, it follows that, if the statement was improper^ the point 
"made must be sustained. The diligence of learned counsel has been 
awarded with the citation of numerous cases upon this question. 
The citations are all of comparative recent date, as the question 
is one of the refinements of the law that has but recently 
developed into its present proportions. That the rules announced 
in these cases are in the interests of fairness and justice, and that 
they should be implicitly enforced in all proper instances, cannot 
for a moment be doubted; but they should not be indiscrimin- 
ately extended. Counsel must have some latitude and some dis- 
cretion. In the heat of ?nsi prius tna\s, where questions are raised 
that must be instantly met, counsel cannot be expected to weigh 
with nicety and precision the effect of their words. This matter 
must, of necessity, rest largely in the discretion of the court, and 
abuse of that discretion is not to be rashly presumed. We are in 
full accord with the language of the learned Supreme Court of the 
State of Indiana, that "when the statement is a general one, and 
of a character not likely to prejudice the cause of the accused in 
the minds of honest men of fair intelligence, the failure of the 
court to check counsel should not be deemed such an abuse of 
discretion as to require a reversal." Combs v. State^ 75 Ind. 215. 
And more emphatically would this be true where, as in this case, 
the remarks were addressed to the court, and were entirely perti- 
nent and proper for the court to hear; and, while in the presence 
of the jury, yet in no 'sense directed to them, or intended to influ- 
ence them. No case cited by counsel would warrant us in sus- 
taining his point. The cases will be found to fall almost without 
exception into one of three classes. By far the largest class are cases 
where counsel have violated some express statutory provision, 
such as referring in argument to the jury to the fact that a defen- 
dant in a criminal case failed to be sworn as a witness, or by 
referring on a second trial to the fact of a former conviction. In 
these cases a reversal is, of course, imperative. In other cases 



STATE Z', MC GAHEY. 307 

counsel have stated to the jury, as facts in counsel's own knowl- 
edge, matters prejudicial to the defendant, but immaterial to the 
issue on trial, and which could not be properly given in evidence; or 
have sought to augment the force of the evidence by their own 
positive but unsworn assertion of a pertinent and material matter. 
Another class of cases comprise the instances where counsel, in 
argument, have assumed certain facts to be proven, of which 
there was no evidence whatever. In all the cases it will be found 
that the objectionable language was gratuitous. In this instance, 
under the condition of the authorities heretofore cited, the prose- 
cuting attorney was entirely warranted in believing that, when 
opposing counsel demanded that he produce and swear as a wit- 
ness for the state a party who was present at the transaction, it 
was imperatively necessary for him to render to the court a good 
and sufficient reason for not so doing. This he did in a manner by 
no means extravagant, and what he said could only indirectly affect 
the accused by impairing the credit of a witness whom he subse- 
quently called. But we do not think its effect even went to 
that extent. The prosecutor was careful to state nothing as a 
fact. He did not give to the statement the weight of his own 
assertion of its truthfulness. He simply said that information 
had come to him of a certain character. This information was 
such that it would be dangerous for him to call the party, unless 
he new the information to be false. We do not think the lan- 
guage ysed, in the manner, under the circumstances, and for the 
purpose stated, was at all "likely to prejudice the cause of the 
accused in the minds of honest men of fair intelligence," and 
hence there was no abuse of judicial discretion in refusing to 
strike it out, or caution the jury against it. 

The defendant below called one Susie Thompson as a witness, 
and, after showing her age to be i6, sought to prove by her that 
she had been seduced by the complaining witness Hill, and that 
he was the father of her bastard child. After a number of ques- 
tions in this line had been ruled out on objection by the state, 
counsel for plaintiff in error made a formal offer to prove that 



308 NORTH DAKOTA REPORTS. 

said Hill had seduced this witness, and was the father of her 
child, and that he had seduced another young girl, and had an 
abortion produced upon her; that he had admitted these facts to 
various parties, and, among others, to McGahey; and that 
McGahey told Hill "that if he didn't desist from such practices 
he would make a complaint to the officers, and procure his arrest." 
The offer was rejected by the court. Counsel then insisted, and 
now insists in this court, that such evidence was proper for the 
purpose of impeaching Hill, and also for the purpose of showing 
threats by McGahey against Hill, and thus, as bearing upon the 
question as to who was the aggressor, furnish a motive on the 
part of Hill for putting McGahey out of the way. These posi- 
tions are entirely untenable, and need but brief mention. Hill 
has been asked on cross-examination as to all of these alleged 
criminal practices, and had denied them. It was proper to ask 
him these questions on cross-examination, as affecting his credi- 
bility; but his answers were final. The court could not go into an 
investigation of the truth of these purely collateral matters, and 
thus virtually place Hill upon trial, instead of McGahey. This is 
elementary. i Greenl. Ev. § 449, and cases cited. 

Nor need we enter into a discussion of the law as to threats, 
communicated or uncommunicated. The question does not prop- 
erly arise. McGahey did not threaten Hill with prosecution for 
anything that he had done. The threat was that, "if he did not 
desist from such practices, he [McGahey] would make complaint," 
etc. But there was no intimation in the offer of proof that Hill 
had been guilty of any such practices since McGahey's warning. 
There was no claim that the condition, upon which alone the 
threat was based, existed. The offer showed nothing that could 
raise in Hills* mind the least apprehension of danger from 
McGahey. 

Mrs. Hill was sworn as a witness for plaintiff in error. On 
cross-examination the state's attorney, over the objection of the 
opposing counsel, was permitted to interrogate her at length as 
to her relations to and criminal intercourse with McGahey. This 



STATE If, MC GAHEY. 309 

is urged as error. The able counsel does not contend that it was 
improper to ask the witness on cross-examination as to her crim- 
inal relations with men generally as affecting her credit, but 
urges that such object could be equally well attained without 
specifically naming McGahey, and that the necessary effect of so 
naming him must have been to prejudice the jury against him. 
Admitting counsel's conclusion, we are still of opinion that the 
line of cross-examination was proper. The state has the right to 
show the relations existing between the witness and the party at 
whose instance, and presumably in whose interest, she was testi- 
fying. It had the right to expose to the jury every motive and 
desire of the witness that might naturally and reasonably be sup- 
posed to produce that bias that would effect the character of her 
testimony. i Greenl. Ev. 450, note; Cameron v. Montgomery, 13 
Serg. & R. 128; Batdorff v. Bank, 61 Pa. St. 179; State v. Bacon, 13 
Or. 143, 9 Pac. Rep. 393. 

Some errors pertaining to the charge of the court are argued in 
the brief of the counsel for plaintiff in error, but an examination 
of the abstract, amended as stipulated at the oral argument, shows 
that no exceptions to the action of the court in this matter were 
saved except in one instance, and that pertains to the refusal of 
the court to give an instruction requested relative to the law of 
self-defense. We see no objection to the instruction asked, and 
it was applicable to the case, but its refusal was not error. It is 
true that a general charge will not always cure the error in reject- 
ing a specific instruction. Elliott, App. Proc. § 706, and cases cited 
in note. But in this case the charge of the court covered every 
point in the instruction refused as specifically and as favorably to 
plaintiff in error as did the rejected instruction; hence its rejection 
was not error. Thomp. Trials, § 2352, and cases cited in note. 
We have noticed all the points argued, and, finding no error in 
the record, the judgment of the trial court must be affirmed. All 
concur. 

(55 N. W. Rep. 753.) 



310 NORTH DAKOTA REPORTS. 

State ex rel M. J. Edgerly vs, Archie Currie, Jr. 

Opinion filed May 31st, 1893. 

Statutes — Repeal by Implication. 

Sections 82, 84 of the constitution of this state are considered in connection 
with Ch's 122, 123, 125, 126, 128, 187, 188, and Ch's 9 and 10 of the Laws of 
1890, and Ch. 9 of the Laws of 189 1; and, held^ that said constitutional 
provisos, and said statutes of the state, are in conflict with, and repugnant to, 
§ 27 of Ch. no, Laws 1889, and hence said § 27 was never in force in this 
state. 

Clerk of Railroad Commissioners— Campensation. 

The state auditor has no authority, under existing laws, to issue warrants on 
the state treasurer to pay the salary of the clerk or secretary of the commis- 
sioners of railroads upon a basis of $1,500 per annum, as fixed by § 27, Ch. 
1 10, Laws 1889. Accordingly, Juld^ that the state auditor lawfully refused to 
issue such warrants to the relator, who held the position of secretary from Janu- 
ary 4th, 1891, until the end of January, 1892. The salary annexed to said 
position is $1,000 per annum. 

Appeal from District Court, Burleigh County; Wincliester, J. 

Mandamus proceeding. Defendant appeals from a final order 
of the District Court of Burleigh County, {W, H. Wuickcster, J.,) 
which order directs the defendant to issue warrants for relator's 
official salaiy, as secretary of the commissioners of railroads, at 
the rate of $1,500 per annum. 

Reversed. 

IV. H, Standish, Atty. Gcn,y for appellant. 
M, J, Edgerly, for respondent. 

Wallin, J. The relator was appointed secretary of the commis- 
sioners of railroads on February 4th, 1891, and served in that 
capacity from said date until the end of January, 1892. The 
relator claims that the salary allowed by law to such secretary is 
$1,500 per annum, and has, upon that assumption, made out, in 
due form, his monthly accounts for salary during said period, 
and has frbm time to time presented the same to the respondent, 
as state auditor, and demanded warrants upon the state treasurer 



STATE V. CURRIE. 3II 

for such amounts. The auditor has refused, and still refuses to 
issue warrants to the relator upon the basis of a salary of 81,500. 
The court below directed the defendant to issue the warrants as 
demanded. The facts are conceded, and the sole question pre- 
sented for the determination of the court is whether relator's 
salary is, or is not, $1,500 a year. If it is that amount, the order 
appealed from must be affirmed; otherwise, it must be reversed. 
The solution of the question must turn upon the construction to 
be given to certain constitutional provisions and statutes which 
bear upon the subject matter. 

Chapter no of the Laws of 1889 embraces an act of the legis- 
lature of the Territory of Dakota, which act amends an act of 
1885, entitled "An act to provide for the establishment of a board 
of railroad commissioners, defining their duties," etc. Both acts 
authorized the governor of the Territory, by and with the advice 
and consent of the <:ouncil, to appoint three persons biennially, 
to be "and constitute a board of railroad commissioners." Sec- 
tion 6 of the act of 1885 ^^s re-enacted without change, ancf consti- 
tuted § 27, Ch. no. Laws i88g. Said section is as follows: "The 
said commissioners shall hold their office at such place as they 
shall determine. They shall each receive a salary of $2,000, to' be 
paid as the salaries of the other territorial officers are paid, and 
shall be provided, at the expense of the territory, with necessary 
office furniture and stationery; and they shall have authority to 
appoint a secretary who shall receive a salary $1,500 per annum." 
This section is explicit, and under it the territorial board of rail- 
road commissioners "had authority to appoint a secretary," and 
when appointed the secretary's salary was $1,500 a year. This sec- 
tion was in force when the state constitution went into effect, in the 
year 1889; ^0^ ^^ becomes necessary to inquire whether it was in 
force during the time when the relator was in office, because it is 
not claimed that any statute has been passed by the state legisla- 
ture, in terms^ creating the office of secretary of the "commission- 
ers of railroads." The relator's claim is that such office has been 
recognized by state legislation, and that no state enactment is in 



312 NORTH DAKOTA REPORTS. 

conflict with the provisions of § 27, relating to the appointment 
and salary of a secretary, and hence that the same are in force. If 
the^ position of secretary of the commissioners of railroads is, 
under § 27, a distinct state office, and one which exists separately 
and apart from the position of a clerjc of the commissioners of 
railroads, it would be the duty of the state auditor, under the 
annual appropriation act, approved February 27th, 1891. (Ch. 10, 
Laws 1 891,) to issue the warrants demanded by the relator as the 
incumbent of such office. That the relator was appointed to the 
office of secretary by 4:he commissioners of railroads is not 
questioned. 

Turning to the state law wc find that § 82 of the constitution 
provides "there shall be chosen by the qualified electors of the 
state * * ♦ three commissioners of railroads. * * * They 
shall severally hold their offices at the scat of government for the 
term of two years, and until their successors are elected and duly 
qualified." Section 83 provides: "The powers and duties of the 
commissioners of railroads shall be as prescribed by law." Sec- 
tion 84 fixes the annual salary of such commissioners at $2,000. 
The state constitution contains no further provisions relating to 
commissioners of railroads, and, as has been seen, it confers upon 
them no powers or duties, but, on the contrary, declares that their 
powers and duties "shall be as prescribed by law." The legisla- 
ture of the state, at its first session, enacted a great number and 
variety of statutes defining the powers and prescribing the duties 
of the "commissioners of railroads;" but, so far as we can see, no 
statute of the state has ever created, in terms, the office of secre- 
tary of the commissioners of railroads, or authorized such com- 
missioners, or any one else, to appoint an officer of that name. 
See Ch's 122, 123, 125, 126, 128, 187, 189, Laws 1890. Upon this 
state of facts the question arises, under the law, whether there is, 
independent of clerkships, an office of "secretary" of the commis- 
sioners of railroads in the State of North Dakota. If the law has 
not created such an office it will be conceded that the commis- 
sioners could not do so by the mere act of appointing the relator 



STATE V, CURRIE. 313 

to such an office; much less would such appointment operate to 
authorize the state auditor to draw warrants on the treasurer, as 
and for the salary of such secretary, at the rate of $1,500 per 
annum. No money can be drawn from the state treasury without 
authority of law. If there is any law which will justify paying 
the relator a salary of $1,500 per. annum, it is conceded that it 
must be found in § 27, of the act of 1889, which we have quoted 
above, and which, the relator contends, is still in force. 

The attorney general cites Ch's 9 and 10 of the Laws of 1890 to 
show that § 27, supra^ has been repealed by necessary implication, 
if not irt terms. Chapter 9 is entitled "An Act to Provide Clerk 
Hire for the Various State Officers, and Making Appropriation 
Therefor." Chapter 10 is an amendment of Ch. 9. Section i of 
Ch. 9, as amended, provides: "The following amounts are here- 
by fixed and allowed for clerk hire of the several state officers 
hereafter mentioned," etc. Section i then goes on to provide 
clerk hire for the governor's office, and all other state offices, and 
concludes in the following language: "Commissioners of rail- 
roads, one thousand dollars per annum." The proviso of § i is 
as follows: "Provided, that all clerical appointments shall first 
be referred to the governor for his approval." Section 2 provides 
for a continuing annual appropriation for such clerk hire. Section 
3 — the emergency section — declares, as a reason why the act 
should go into immediate effect, that there was then existing "no 
provision by law for the payment of any clerk hire for the several 
state officers." A summary of these statutory provisions will 
show: First, That the state legislature, at its first session, after 
clothing the commissioners, then newly elected by the people, 
with extensive powers, some of which were of a nature to require 
the services of a clerical assistant, authorized the said commis- 
sioners, with the approval of the governor, to appoint a clerk to 
serve the commissioners. Second, The legislature provided a 
continuing annual salary for the clerk so to be appointed. Third, 
The legislature itself declared, in effect, in the emergency clause 
of the statute, that there was, when the act was passed, no other 



314 NORTH DAKOTA REPORTS. 

existing law which authorized the cbmmissioners to appoint a 
person to perform their clerical work. Section 4 reads: "All 
acts and parts of acts in conflict with the provisions of this act 
are hereby repealed." We are convinced, after careful considera- 
tion, that the state constitution, which creates three commission- 
ers of railroads to be chosen- by popular vote, when read in 
connection with the comprehensive body of statutes enacted at 
the first session of the state legislature, covering all of the ground 
embraced in the territorial laws upon the same subjects, must be 
held to have effected a total abrogation of all territorial statutes 
which created a board of railroad commissioners, and defined 
their powers and duties, including the power to appoint a secre- 
tary of the board. The creation of the constitutional officers to 
be elected by the voters necessarily implies the abolition of the 
board appointed by the governor, as the two sets of officers, in 
the same sphere of duty, could not co-exist, and exercise their 
powers, without a clash in jurisdiction. All duties which, under 
territorial laws, were devolved upon the board, are now cast upon 
the commissioners of railroads, by statutes passed since statehood, 
except only the duty of appointing an officer who was described 
in the territorial statute as a secretary, which officer was to be 
appointed by the board, without reference to the approval of the 
governor, whereas, under state law, the commissioners are em- 
powered to appoint a clerk, but such appointment does not take 
effect until approved by the governor of the state. The feature 
of the approval of the governor, required by the state statutes of 
both 1890 and 1891, marks a clear departure from the old system, 
and indicates to our mind a purpose in the state legislature to 
abolish the old system of allowing the board to appoint a secre- 
tary without consulting the governor, and substituting therefor 
the plan of executive approval of such appointment. The two 
systems of filling the two clerical offices in question differ so 
radically that we are satisfied that the state legislature intended 
to wipe out the old method, and substitute another. We think the 
legislative intent was to cast the same clerical duties which, 



STATE V. CURRIE. 315 

under the territorial regime, were to be performed by an officer 
called a "secretary," upon a functionary who, under the state 
statutes, is denominated both "secretary" and "olerk." The 
terms "clerk" and "secretary," as applied to subordinate minis- 
terial functionaries, are by popular usage, synonymous terms, and 
are frequently used interchangeably. This use is also strictly 
accurate, according to the accepted standards of the language. 
One definition of the term "secretary," as given in Webster's 
Dictionary, is: "A person employed to write orders, letters, 
dispatches, public* or private papers, records, and the like; an 
official scribe, amanuensis, or writer." The same authority, under 
the word "clerk," says: "In some cases, *clerk' is synonymous 
with 'secretary;*" also, that a clerk is "one who is employed to 
keep records and accounts; a scribe; a penman; an accountant; as 
the clerk of the court." A striking, as well as strictly pertinent, 
example of the interchangeable use of the terms "clerk" and 
"secretary," is found in the law we are considering. As. we )iave 
seen, § 6, Ch. 126, Laws 1885, expressly authorized the board to 
appoint a secretary. A salary was provided for such secretary. 
But a careful perusal of the entire chapter will disclose the fact 
that not a single duty, clerical or otherwise, was devolved by the 
act upon any official of that name, while, on the contrary, one 
duty, at least, of a clerical nature, was expressly cast upon a 
subordinate of the board, who was, in terms, denominated a 
"clerk;" and no officer called a "clerk" was authorized to be 
appointed or employed, by the territorial statute. Section 3 of 
said Ch; 126 authorized the territorial board, under certain cir- 
cumstances, to serve a written notice upon railroad corporations. 
The statute required the notice to be served by leaving a copy 
thereof, "certified by the commissioners* clerk, with any station 
agent." Unquestionably, such written notice could have been 
lawfully certified by the secretary of the board, not only because 
the board had no clerk, and was not authorized to appoint any 
functionary of that name, but for the further reason, as has been 



3l6 NORTH DAKOTA REPORTS. 

shown, that the two words, "clerk" and "secretary" as applied to 
such a functionary, arc used interchangeably. 

Respondent's counsel cites the following excerpt from § lo, 
Ch. 122, Laws 1890, to show, quoting from his brief, that "it w^as 
evidently the intention of the legislature of the State of North 
Dakota, of the year 1 890, that a clerk or clerks should be em- 
ployed in the office of the secretaiy of the commissioners of rail- 
roads," viz: "Said commissioners shall inform such railroad com- 
pany, by a notice thereof, in writing, to be served as a summons 
in civil actions required to be served by the statutes of this state 
in actions against corporations, when certified by the clerk or 
secretary of the railroad , commissioners." To ' our mind this 
statutory provision furnishes only another instance of the inter- 
changeable use of the terms "clerk" and "secretary," as descrip- 
tive of a subordinate functionary, whose duties arc ministerial and 
clerical in character. We think both terms were used in the 
statute to more fully describe the subordinate functionary, 
whether called "clerk" or "secretary." Section i of Ch. 9, Laws 
1 89 1, is also cited by respondent to* show that there is such an 
officer as secretary of the commissioners of railroads. If con- 
sidered by itself, and wholly divorced from other features of the 
statute relating to the same matter, the section would possibly 
tend to support respondent's contention that there is a state offi- 
cer called a "secretary of the commissioners," and that that officer 
has been allowed $1,000 per annum to disburse as clerk hire to his. 
subordinates. But this theory becomes untenable when we recall 
the fact that there never was a statute which, by any construction 
possible, conferred upon the secretary of the board, or upon any 
other person or board, the power to appoint a subordinate to 
render clerical assistance to the secretary or in the secretary's 
office. We think that we have shown that the obvious purpose 
of the state laws, when considered together, is to annul the laws 
of the territory upon the same subject-matter, and to confer upon 
the commissioners of railroads chosen by the people new and 
additional powers, including that of appointing, with the approval 



STATE V. CURRIE. 317 

of the governor, a clerical assistant, whose salary is fixed at Si, 000 
a year, and who is referred to in the act of 1890 as a "clerk," and 
in the act of 1891 as '^secretary." 

It appears that the point in question has not before arisen in 
the state. The law in question, as practically construed by the 
several state auditors, has been held to be adverse to the relator's 
construction. Prior to the relator's appointment, and since the 
state was admitted, two persons has been appointed to the posi- 
tion held by the relator, viz: F. VY- Fanchcr and Harvey Harris. 
Both were paid salaries at the rate of $1,000 a year. While it is 
true that the relator is not necessarily concluded by the uniform 
rulings of the several state auditors who have practically con- 
strued the law against the relator's theory, nor by the uniform 
acquiescence of his predecessors in office in such rulings, never- 
theless it is true that the ruling of an executive officer upon a 
point where it is his sworn duty to act, especially where the 
rulings have been acquiesced in by those whose financial interests 
were involved, are always given considerable weight ih the courts, 
and when the power is doubtful the uniform rulings in an execu- 
tive office would be followed, and allowed to turn the scale. 
Cooley, Const. Lim. (3d Ed.) marg. pp. 69, 70. In the case at 
bar, however, we think there is a plain and necessary repugnancy 
between the territorial and state law upon the question involved, 
and of course the former must give way to the latter. The rela- 
tor bases his claim wholly upon § 2^ of the act of 1889. That 
section gave absolute authority to the territorial board to appoint 
a secretary, whose salary was fixed at $1,500 a year. No such 
authority has been conferred upon the state commissioners. The 
territorial board no longer exists. The abolition of that board 
by the repeal of the law which created it must be held to vacate 
all offices, and to cut off all official salaries, which came into 
existence by virtue of the law which is repealed. Mechem, Pub. 
Off. § § 407, 408. We must therefore hold that § 27, Ch. no. 
Laws 1889, is repugnant to both the constitution and laws of the 
State of North Dakota, and especially repugnant to the acts 



3l8 ' NORTH DAKOTA REPORTS. 

embraced in Ch's 9 and 10, Laws 1890, and Ch. 9, Laws 1891. 
Where the salary of an officer is hot fixed by the terms of the 
constitution, it is well settled, where an act of the legislature 
appropriates a sum as salary which is less in amount than the 
salary allowed the same officer by the statute which created the 
office, that the two statutes are repugnant, and the former must 
give way to the latter, even though the latter enactment contains 
no repealing words. Collins v. State, (S. D.) 51 N. W. 776, and 
cases cited. These authorities are not in point in the case at bar 
until the conclusion is first reached -and we have reached that 
conclusion — that all of the enactments in question which touch 
the matter of a ''clerk" or **secretary" of the commissioners are 
to be construed as referring to one and the same subordinate 
functionary of the commissioners of railroads, whose duties arc 
ministerial, purely, and of a clerical nature. Chief Justice Waite, 
in the case of Kifig v. Cortull, 106 U. S. 395, i Sup. Ct. Rep, 312, 
said: "While repeals by implication are not favored, it is well 
settled that when two acts are not in all respects repugnant, if 
the later act covers the whole subject of the earlier, and embraces 
new provisions, which plainly show that the last is intended as a 
substitute for the first, it will operate as a repeal." 

We deem further comment unnecessary. From what has been 
said it follows that no law of the state will allow the state auditor 
to issue warrants on the state treasurer to the relator as and for 
salary at the rate of $1,500. The relator,. whether as the secretary 
or clerk of the commissioners of railroads, is lawfully entitled to 
a salary of $1,000 per annum, and no more. The order appealed 
from must therefore be reversed, and such will be the order of 
this court. All concur. 

(55 N. W. Rep. 858.) 



STATE V. BARNES. 3I9 

State ex rel William Larabee vs, Oscar G. Barnes. 

Opinion filed May 9th, 1893. 

Constitutional Prohibition— Leg^ally Adopted. 

Congress by an act approved P'ebruary 22nd, 1889, known as the * 'Enabling 
Act," directed the people in what is now the State of North Dakota to elect 
delegates to a constitutional convention, which convention should formulate a 
constitution to be submitted to the qualified electors for their adoption, and pro- 
vided for the submission at the same time of separate articles or ordinances, 
and required for their adoption a "majority of the legal votes cast." Article 
20 of our constitution, known as the "Prohibition Article," was so submitted 
for adoption. At the same time, under a provision of the proposed constitu- 
. tion, a full set of state officers was elected. Said article 20 received a majority 
of all the votes cast upon the question of the adoption of the same, and upon 
the question of the adoption of the constitution, but did not receive a majority 
dt the votes cast for governor. Heldy that said article 20 was legally adopted. 

Prohibition Statute— Leg^ally Adopted— Title of Act— Unusual Punishments. 

Said enabling act provided that the state officers should exercise all the func- 
tions of their offices when ^Torth Dakota was admitted as a state, and that 
the legislature might assemble, organize, and elect two United States senators; 
and § 17 of the schedule to the constitution required the governor, as soon as 
qualified, to issue his proclamation convening the legislature within a specified 
time for the purpose of electing such senators. Section 41 of the stale consti- 
tution provides that the term of office of members of the legislature shall begin 
on the first Tuesday in January following their election, and § 53 provides that 
the legislative assembly shall meet on the first Tuesday after the first Monday 
in January in the year next following the election of the members. The gov- 
ernor, by proclamation, convened the legislature at a time prior to the first 
Tuesday in January next succeeding the election, for the purix>se of electing said 
United States senators, and "for the performance of such other legislative duties 
as may l>e in accordance with the provisions of said constitution." The legisla- 
ture convened pursuant to such proclamation on November 19th 1889, and at 
once proceeded to exercise general legislative functions, and passed Ch. no, 
known as the "Prohibition Statute," and the same was approved December 
19th, 1889. Held, that the legislature so convened had full power to enact said 
statute. Ssiid act is not vulnerable to the constitutional objections that its 
object is not fully expressed in the title, or that it contains more than one sub- 
ject, or that it is not uniform in its operation, or that it inflicts cruel and unusual 
punishment. 

Original application in the name of the state at the relation of 
Wm. Larabee against Oscar G. Barnes, Sheriff of Cass County, 
for the release of relator on habeas corpus. Writ granted, and 



320 NORTH DAKOTA REPORTS. 

case heard upon objection to the sufficiency of the petition. 

Judgment for defendant. 

/. W. Tilly, {H. SteetiersoTiy of counsel) for relator. 

Article 20 of the constitution is void because it was never 
approved by the qualified voters of the state as required by § 8, 
of the enabling act. The vote as canvassed and certified was "for 
prohibition" 18,552, against 17,393. ^The total vote cast for gov- 
ernor was 38,098 showing at least that number of qualified voters 
present and voting, and 448 less than a majority voted for article 
20. The words "qualified voters of said state" mean the qualified 
voters voting at the election: Peo, v. Warfidd, 20 111. 163; Peo, v. 
Gamer, 47 111. 246; Peo, v. Wiout, 48 111. 263; Bridgeport v. R. R, 
Co., 15 Conn. 475; St, Joseph Tp. v. Rogers^ 16 Wall. 644; Taylor v. 
Taylor, 10 Minn. 107; Bayard v. Klenge, 16 Minn. 221; Everet v. 
SmitJi, 22 Minn. 53; Walmttw. Wade, 103 U.S. 683; State v. Becked, 
34 N. W. Rep. 342; State v. Babcock, 22 N. W. Rep. 372. The 
prohibition statute, Ch. no, Laws 1890, was* passed in December 
1889, before the legislative assembly had any legislative power. 
The legislature of 1889 was called by proclamation of the gover- 
nor for election of two United States senators. The term of 
service of members of the legislative assembly begins on the first 
Tuesday in January next after their election. Art. 2, § 41, Const. 
It is a primary requisite to the enactment of laws that there be a 
legal legislature. In time and place the members entitled so to 
do must lawfully convene. Tenants Case 3 Neb. 409; State v. 
Judge, 29 La. Ann. 223; Gormly v. Taylor, 44 Ga. 76; Peo, v. 
Hatch, 33 111. 151. When convened in extra session and limited 
by the constitution to business for which the session was specially 
called, all acts passed relating to other subjects will be void. 
Southerland on Stat. Const. § 25; Davidson v. Moormafi, 2 Hcisik. 
575; Jones V. Theall, 3 Ncv. 233; Speed v. Crawford, 3 Met. (Ky.) 
207. This statute is void as inflicting excessive punishment. 
I Bish. Cr. Law 947; State v. Driver, 70 N. C. 423; State v. Petty, 
80 N. C. 367; ex-parte Mitchell, 70 Cal. i; State v. Williams, 77 Mo. 
310; State V. Durston, 52 la. 635. 



STATE V. BARNES. 321 

W, H, Standish, AUy, Getil and C. A, Pollock, for respondent. 

So far as the adoption of article 20 of the constitution is con- 
cerned, all that is required is, that it shall be approved by a 
majority of all the votes cast on that subject at such election. 
Cooley Const. Lim. 770; Gillespie v. Palmer, 20 Wis. 572; Prohibi- 
tion Amendment Cases, 24 Kan. 500; Sanford v. Prentice, 28 Wis. 
358; Green v. Weller, 32 Miss. 650; Dayton v. St Paul, 2 Minn. 400. 

Bartholomew, C. J. The relator was informed against in the 
Cass County District Court for violation of the provisions of the 
constitution and statutes of the state prohibiting the sale of in- 
toxicating liquors. He pleaded guilty, and was sentenced to the 
county jail of Cass County for the term of 90 days, and to pay a 
fine of S300. To relieve himself from confinement under this 
sentence he procured a writ of habeas corpus from this court. 
The petition for the writ, with the exhibits attached, alleges, in 
substance, that such imprisonment is illegal, because the charge 
against relator does not state facts sufllicient to constitute a public 
offense, in that the same is based upon article 20 of the constitu- 
tion of the State of North Dakota, and upon Ch. no of the Laws' 
of said state for 1890. That said article 20, and the said act based 
thereon, are null and void, for the reason that said article was 
never adopted by the people of the state as required in the enabl- 
ing act, hereinafter more particularly noticed; and for the further 
reason that said Ch. 1 10, was never passed by any legally consti- 
tuted legislature, and that said chapter, independant . of said 
article 20, is void, for the reason that the title does not embrace 
any object to prohibit the sale of intoxicating liquors, but only to 
prescribe penalties for its unlawful sale; and that the act violates 
§ 61 of the state constitution, which provides that no bill shall 
embrace more than one subject, which shall be expressed in the 
title; and that said act violates both the federal and state consti- 
tutions, in that it inflicts cruel and unusual punishment. The writ 
was served on the defendant, Barnes who is sheriff of Cass County, 
N. D. R. — 21. . 



322 NORTH DAKOTA REPORTS. 

and upon the return day defendant appeared in court with the 
prisoner, and entered a general demurrer to the petition. Relator 
bases his right to a release from Imprisonment upon the follow- 
ing propositions:' First, Article 20 of the constitution of the 
State of North Dakota, commonly known as the "Prohibition 
Article," was never adopted as a part of the constitution; second, 
Ch. no, Laws 1890, was not enacted by a legally constituted 
legislature; third, said chapter violates the constitution of this 
state and of the United States. 

To understand the points made under the first proposition it is 
necessary to state that the enabling act, approved February 22nd, 
1889, under the terms of which North Dakota, South Dakota, 
Montana, and Washington became states, after providing for con- 
stitutional conventions to formulate constitutions, and the sub- 
mission of such constitutions to a vote of the qualified electors 
of the proposed states, provides in § 8 that **at the elections 
provided for in this section the qualified voters of said proposed 
states shall vote directly for or against the proposed constitu- 
tions, and for or against any articles or propositions separately 
' submitted. The returns of said elections shall be made to the 
secretary of each of said territories, who, with the governor and 
chief justice thereof, or any two of them, shall canvass the same, 
and, if a majority of the legal votes cast shall be for the consti- 
tution, the governor shall certify the result to the president of the 
United States, together with a statement of the votes cast there- 
on, and .upon separate articles or propositions, and a copy of the 
said constitution, articles, propositions, and ordinances. And if 
the constitutions and governments of said proposed states are 
republican in form, and if all the provisions of this act have been 
complied with in the formation thereof, it shall be the duty 
of the president of the United States to issue his proclama- 
tion announcing the result of the election in each, and thereupon 
the proposed states which have adopted constitutions and formed 
state governments as herein provided shall be deemed admitted 
by congress into the Union, under and by virtue of this act, on an 



STATE V. BARNES. 323 

equal footing with the original states, from and after the date of 
said proclamation." Section 24 of said act provides "that the 
constitutional conventions may by ordinance provide for the 
election of officers for full state governments, including members 
of the legislatures and representatives in the 51st congress; but 
said state governments shall remain in abeyance until the states 
shall be admitted into the Union, respectively, as provided in this 
act." The time and the manner of the election of such officers 
was left entirely in the hands of the several constitutional con- 
ventions. As a matter of fact, the constitutional convention of 
North Dakota did provide for the election of all state officers at 
the time of the vote upon the adoption of the constitution. An 
inspection of the returns of that election as certified by the 
proper canvassing board, and which are made a part of the peti- 
tion herein, discloses that there were 35,548 votes cast for or 
against the adoption of the constitution, and 35,945 votes cast for 
or against the adoption of said article 20, of which 18,552 were in 
the affirmative and 17,393 i^^ ^^ negative. It thus appears that a 
majority of all the votes for or against said article were in the 
affirmative, and also that the affirmative vote for said article 
exceeded one-half of all the votes cast for or against the adoption 
of the constitution. But at said election there were 38,098 votes 
cast for governor, and the affirmative vote upon the adoption of 
said article 20 was less than one-half of the total vote cast for 
governor. Upon these facts it is urged upon us with great earn- 
estness and force that a "majority of the votes cast," within the 
meaning of said § 8 of the enabling act, were not in favor of the 
adoption of said article 20, and hence the same was never adopted. 
This proposition cannot receive our assent and we will briefly 
state some of the reasons which irresistibly lead our minds to the 
opposite conclusion. Said § 8 of the enabling act requires (and 
the requirement is mandatory) that the proposed constitution, 
and any specific article that the constitutional convention may 
direct, be submitted to a vote of the people, and that any such 
specific article shall be voted upon separately, and that, if a 



324 NORTH DAKOTA REPORTS. 

majority of the votes cast be in favor of the constitution, that 
fact shaU be certified to the president of the United States, with 
a statement of the votes for and against the constitution and each 
specific proposition so separately submitted, together with a copy 
of the constitution and of any articles separately submitted; and 
from the data thus certified the president was required to deter- 
mine whether or not the constitution was republican in form, and 
whether or not all the requirements of the enabling act had been 
complied with, and, if so, he was required to issue his proclama- 
tion admitting North Dakota as a state. Where, in this section, 
congress spoke of the votes cast, it had reference to votes cast 
upon the particular objects which it directed should be submitted 
to a vote of the qualified electors. Congress had no knowledge 
that any candidates for oflSces would be voted for at that same 
election, and the matter of electing officers was left under the 
exclusive control of the constitutional convention;' and, further, it 
was the vote upon the constitution and the articles, if any, sepa- 
rately submitted, that was to be certified to the president; and, if 
by the use of the words "majority of legal votes cast" congress 
meant votes cast upon any subject other than those directed to be 
certified to the president, it would be obviously impossible for that 
oflficial ever to determine whether or not the constitution had been 
legally adopted, and yet, under the act, the duty devolved upon 
him to determine that question at once. These considerations 
seem to us to conclusively establish that when congress used the 
words "majority of legal votes cast" it meant votes cast for or 
against the adoption of the constitution or of the articles sepa- 
rately submitted. Whether or not congress did not also intend 
that, in case the constitution was adopted, the separate articles 
should stand or fall upon their separate vote, we need not 
determine. 

Chapter no, Sess. Laws 1890, was enacted by our first state 
legislature undoubtedly in response to what the legislature 
regarded as its duty under the provisions of article 20 of the con- 
stitution, and to provide the necessary machinery for the proper 



STATE V, BARNES. 32$ 

enforcement of that article. It is claimed that at the time of the 
passage of the act the legislature was not a lawful legislature, and 
was without power to exercise ordinary legislative functions. 
The act was approved December 19th, i88g. The constitution 
was adopted, and full state offices, including members of the 
legislature, elected, October ist i88g. North Dakota became a 
state by virtue of the proclamation of the president on November 
2nd, 1889. Section 24 of this enabling act provided, ii; case that 
the constitution was adopted, the legislature of the state might 
assemble, organize, and elect two senators of the United States, 
and that when the state was admitted the state officers should at 
once proceed to exercise the functions of their office. On 
November 4th, 1889, *^he governor elect of this state qualified. 
Section 17 of the schedule of the constitution provides: "The 
governor elect of the state, immediately upon his qualifying and 
entering upon the duties of his office, shall issjue his proclama- 
tion convening the legislative assembly of the state at the seat of 
government, on a day to be named in said proclamation, and which 
shall not be less than fifteen nor more than forty days after the 
date of such proclamation. And said legislative assembly, after 
organizing shall proceed to elect two senators of the United 
States for the State of North Dakota; and at said election the 
two persons who shall receive a majority of all the votes cast by 
the said senators and representatives shall be elected such United 
States senatdrs.." On said 4th day of November, 1889, the gov- 
ernor issued his proclamation convening the legislature on 
November 119th, 1889, for the election of two United States sena- 
tors, and "for the performance of such other legislative duties as 
may be in accordance with the provisions of said constitution." 
The legislature convened on said November 19th, and at once 
proceeded to the exercise of general legislative functions, and 
said Ch. no was passed and approved on December 19th, 1889 as 
stated. Section 41 of the constitution reads: "The term of ser- 
vice of the members of the legislative assembly shall begin on the 
first Tuesday in January next after their election." Section 53 



326 NORTH DAKOTA REPORTS. 

reads: "The legislative assembly shall meet at the seat of gov- 
ernment at 12 o'clock noon on the first Tuesday after the first 
Monday in January in the year next following the election of the 
members thereof/* The contention is that the term of office of 
the members of the legislature elected on October ist, 1889, did 
not begin until the first Tuesday in January, 1890. Such would be 
true, if we could not look beyond or away from said § 41. But it 
must be remembered that when the state was admitted all the 
legislative offices were vacant unless filled by the newly-elected 
officers; and unless so filled, however great the emergency, or 
however imperative the necessity for action, the sovereign state 
was without power to take legislative action from November 2nd, 
1889, to the first Tuesday in January, 1890. We do not think any 
such condition was contemplated. Section 24 of the enabling 
act provides that, upon the admission of North Dakota as a state, 
the officers of thje state government shall proceed to exercise all 
the functions of state officers. In the broad sense here used, 
members of the legislature are state officers. This section as well 
as § 17 of the schedule, required that the legislature should meet 
and organize and elect United States senators. It is a solecism 
to say that the persons thus called together were legislators for 
one purpose, but not for all purposes. If they were not legisla- 
tors they could not elect United States' senators. If they were 
legislators, being legally convened, and there being no restrictions 
in the constitution or the enabling act, they possessed plenary 
legislative powers. Cooley, Const. Lim. 187; Morford v. Unger, 
8 Iowa, 82. As other plain provisions had been made respecting 
the members and the first session of the first legislature, it is clear 
that §§41 and 53 of the constitution were intended to apply only 
to subsequent legislatures, elected in the regular manner, and at 
the regular time provided by law, and that said Ch. no is not 
vulnerable to this attack. 

All the questions pertaining to defects in the title of this act 
in this case were raised and fully discussed in State v. Haas^ 2 N. 
D. 202, 50 N. W. Rep. 254. These same objections are here urged, 



STATE V, BARNES. 327 

on the assumption that we would hold that said article 20 of the 
constitution had never been adopted. As we do not so hold we 
need add nothing to what we have said in the Haas case. 

The next point made by relator — that the statute is unconstitu- 
tional, because it inflicts cruel and unusual punishment — hardly 
merits mention. It is legal history that all jurisdictions that have 
sought to prohibit or effectually control the sale of intoxicants have 
found it necessary from time to time to increase the rigor of the 
punishment for the violation of prohibitory and regulating laws. 
The matter is peculiarly of legislative cognizance, and we cer- 
tainly see nothing in this statute that indicates that the legisla- 
ture has provided for greater punishment than is requisite to the 
proper execution of the law. Nor does the fact that by such 
statute the sale of intoxicants for lawful purposes is confined to 
druggists render the statute open to the charge of want of uni- 
formity in its operation. It applies to all persons who come 
within its terms, and no person is prohibited from placing himself 
within its terms. That is all the constitutional provision requires. 
Trust Co. V. Whithed, 2 N. D. 82, 49 N. W. Rep. 318. And it 
was clearly a wise and proper exercise of police power to so 
limit the sale. If all persons indiscriminately were permitted to 
keep and sell intoxicants for the enumerated lawful purposes it 
would be quite impossible, as all experience teaches, to prevent 
illegal sales. The statute increases the punishment for second 
and third offenses. This is urged as an objection to it, but no 
authority sustaining the objection is cited, nor do we find any. 
Such statutes are' very common, and are universally upheld. Nor 
can we see that the fact that the increased punishment passes the 
arbitrary line fixed by the legislature between misdemeanors and 
felonies can in any manner change the principle. The writ must 
be discharged, and the relator remanded to the custody of the 
defendant, to be dealt with according to the terms of his commit- 
ment; and it is so ordered. All concur. 

(55 N. W. Rep. 883. 

Note — For other cases upon the liquor law, see, State v. Swan^ i N. D. 5; State 
V. Eraser y x N. D. 425; State v. IlaaSy 2 N. D. 202. 



328 NORTH DAKOTA REPORTS. 

Prairie School Township vs, Wm. Haseleu, etaJ, 

opinion filed July 6th, 1893. 

School Township Treasurer— Cannot Sell Bonds. 

Chapters 44, 45, Sess. Laws Dak. T. 1883, relating to school townships and 
school house bonds, considered. Held^ that the school board (consisting of the 
treasurer, clerk, and director) is the official governing board of such school 
township, and such board has full power and authority to issue, negotiate, and 
sell such bonds of the school township as have been duly voted by the electors 
for the purpose of building a school house. Held^ further, that the school 
township treasurer, acting independently, has no authority under the law and 
by virtue of his office as treasurer, to issue, negotiate, or sell such bonds. 

School Board Responsible for Lost Funds. 

.Where the school board of the plainti£E, consisting of the treasurer, clerk, and 
director, issued certain school house bonds, which had been regularly voted by 
the electors, and in doing so delivered such bonds to a bank to be negotiated and 
sold for the benefit of the school township, and the bonds were sold and put in 
circulation, but the proceeds were never turned over to the school township, 
but, on the contrary, were lost to the school township, held, that the school 
board was wholly responsible for such loss. Held, further, that such bonds 
not having been delivered to the treasurer for negotiation and sale, and he 
never having sold or attempted to sell the same, an action will not lie against the 
treasurer or his sureties on his official bond for a breach of the condition of such 
bond which requires the treasurer to account for and pay over all moneys and 
property which shall come into his hands as treasurer. 

Obligation of Surety Not Enlarged by Construction. 

The obligations of sureties upon official bonds are measured by the language 
of the bond, and where the condition of a bond embodies the provisions of the 
statute, and no more, the obligation cannot be expanded by construction 
beyond the fair import of the language in which the sureties have consented to 
be^ bound. 

Parol Evidence to Vary Terms of Receipt. 

When the bonds were delivered by the board at the bank for negotiation and 
sale, all members of the board were at the bank, and acting in concert. At 
that time the cashier of the bank delivered to the treasurer a writing as follows: 
"$i,ooo, Grand Rapids, Dakota, Sept. 28th, 1883. Received of William 
Haseleu, Treas. Prairie School Township, one thousand dollars in bonds of 
Prairie Tp., LaMoure Co., D. T., for placing and cr. A. H. Huelster, Cashier 
Bank of Grand Rapids." Held, that such writing embodied both a receipt 
and a contract, and that, as such, its terms could be varied and explained by 
parol evidence, but only as to that part which is a mere receipt. 



PHAIRIE SCHOOL TOWNSHIP V. HASELEU. 329 

Error Without Prejadice. 

Where it appears that upon the uncontroverted facts the plaintiff cannot 
recover in the action, a verdict and judgment for defendants will not be dis- 
turbed by this court even when the record shows errors in procedure. Such 
errors are without prejudice. 

Appeal from District Court, La Moure County; Rose, J. 

Action on a bond by the Prairie School Township against 
William Haseleu, August Beckman, and Stephen Kohan. Defen- 
dants had judgment, and plaintiff appeals. 

Affirmed. 

George W, Newton, for appellant. 

Z. C, Harris and E, W, Camp, for respondents. 

Wallin J. This action is brought to recover damages for an 
alleged breach of the condition of an official bond given by an 
ex-treasurer of the plaintiff. All of the defendants executed the 
official bond; the defendant William Haseleu, the ex-treasurer, 
signing as principal, and defendants Beckman and Kohan signing 
as sureties. The allegations contained in the first six paragraphs 
of the complaint, and which are expressly admitted to be true by 
the defendants' answer, are, in substance, as follows: The plain- 
tiff was at the time in question, and is, a duly organized school 
township of La Moure County; that defendant Haseleu, after 
being elected, qualified for the office of treasurer of said school 
township in July, 1883, by taking the required official oath and 
giving said official bond; that Haseleu entered upon the duties of 
his office, and was treasurer of the plaintiff at the time the school 
bonds hereafter referred to were voted, executed, and delivered; 
that at a meeting of the school township held in September, 
1883, it was decided by a majority of the electors that said school 
township should, for the purpose of building a school house, issue 
two bonds of S500 each, bearing 7 per cent, interest; that there- 
after, and on the 28th day of September, 1883, the school board 
of said school township, (which board was wholly composed of 
the three defendants,) in pursuance of the vote caused to be exe- 
cuted and did execute and did issue two separate school bonds of 



330 NORTH DAKOTA REPORTS. 

said school township, each of said bonds being for the sum of 
$500, and bearing 7 per cent, interest per annum. Paragraphs 7, 
8, 9, 10 and 11 of the complaint are as follows: "(7) That both 
of such school bonds, each being for the sum of five hundred 
dollars, and of the value of five hundred dollars each, were placed 
in the hands and custody of William Haseleu, the treasurer of 
said school township, for the purpose of negotiation and sale, and 
that said William Haseleu did negotiate and make sale of said 
two school township bonds with C. T. Ingersoll for the whole sum 
of nine hundred and fifty dollars cash. (8) That on the 24th day 
of June, 1884, the term of said office of said William Haseleu 
expired as treasurer of said school township, and one Lewis M. 
Olson immediately succeeded him, the said William Haseleu, as 
treasurer of such school township, and received from his prede- 
cessor, the said William Haseleu, the books and papers belonging 
to his said office; but that the said William Haseleu neglected and 
refused to turn over to him, the said Lewis M. Olson, and to 
deliver up to him, the two school bonds heretofore described, or 
to turn over and deliver up to him, the said Lewis M. Olson, the 
moneys for which said described school bonds were sold, and 
neglected and refused to account for said bonds or their proceeds, 
or any part thereof, except the sum of fifty dollars. (9) That 
the Said Lewis M. Olson, the school township treasurer who 
immediately succeeded the said William Haseleu as treasurer, 
repeatedly demanded of the said William Haseleu the above 
described school township bonds, or their value, less the fifty 
dollars accounted for by the said William Haseleu, but that the 
said William Haseleu has all the time refused to turn over to him, 
the said Louis M. Olson, the said school township bonds or their 
value, and has refused in every way to account for their value or 
for the said bond, except as herein stated, and still refuses and 
neglects to account for them or for their value, or any part thereof, 
except the fifty dollars herein mentioned. (10) That the said 
Lewis M. Olson was treasurer of said school township for the 
five years next succeeding his first taking possession of such 



PRAIRIE SCHOOL TOWNSHIP V, HASELEU. 33 1 

office on the 27th day of June, 1884, and that he was succeeded 
in said office by Gustave Papenfuss, who is now the duly elected 
and qualified treasurer of said school township. (11) That by 
reason, and means of the facts herein stated that said William 
Haseleu and his co-defendants are indebted to the plaintiff herein, 
the said Prairie school township, in the sum of nine hundred 
dollars, and interest thereon from the 27th day of June, 1884, at 
the* rate of seven per cent, per annum, for which amount and 
costs of this action' plaintiff asks judgment against said defen- 
dants." 

For answer to the complaint defendants say: "(i) That they 
admit all the allegations contained in paragraphs numbered i, 2, 
3, 4, 5, 6, and 10 of plaintiff's complaint. (2) That they deny 
that the school bonds described in paragraph 6 of plaintiff's com- 
plaint were ever placed in the hands of the defendant William 
Haseleu, treasurer as alleged; and further deny that the said 
bonds were sold by the said William Haseleu, treasurer, to one 
C. T. Ingersoll, for the sum of nine hundred and fifty dollars 
cash, as alleged; and further deny that said bonds were ever sold 
or negotiated at any time or place by the said William Haseleu, 
treasurer, for the sum alleged in paragraph 6, or for any other 
sum whatever. (3) That they specifically deny all the allega- 
tions contained in paragraph 8 of plaintiff's complaint except as 
to the date on which defendant's (William Haseleu's) term as 
treasurer expired, and the name of the person succeeding him as 
such school treasurer. (4) That they specifically deny each and 
all of the allegations contained in paragraph 9 of plaintiff's com- 
plaint. (5) That they deny that they are indebted to the plaintiff 
in the sum of nine hundred and fifty dollars and interest, as alleged 
in paragraph 1 1 of complaint, or that they are indebted to plain- 
tiff in any sum whatever. (6) The defendants for further answer 
and defense to plaintiff's complaint, say that the cause of action 
therein stated did not accrue at any time within six years next 
before the commencement of plaintiff's action thereon. Where- 
fore defendants demand judgment for costs." 



332 NORTH DAKOTA REPORTS. 

There was a jury trial, and the verdict and judgment were for 
the defendants. The proceeding had at the trial, embracing th^ 
evidence and rulings thereon and the instructions given to the 
jury, were brought up on the record. A motion for a new trial 
was denied. Plaintiff assigns error in this court upon certain 
rulings of the trial court made upon the admission of evidence, 
and upon certain instructions of the court given to the jury; but, 
in the view which we have taken of the whole case as presented 
by the record, we deem it unnecessary to specifically pass upon 
plaintiff's assignments of error. If the District Court did err in 
its rulings and instructions which are assigned as error the result 
would not be different, as we have concluded, upon the conceded 
facts and undisputed and competent evidence in the record, that 
the plaintiff cannot recover in this a9tion, and hence that the 
judgment must be affirmed. Paragraph 6 of the complaint, the 
averments in which are expressly admitted in the answer, alleges, 
in substance, that the defendants at the time in question consti- 
tuted plaintiff's school board; and that the defendants, acting as 
board, executed and issued two $500 7 per cent, bonds, pursuant 
to a vote of the electors directing such bonds to issue for the 
purpose of building a school house. The execution and issuing 
of the bonds by the school board being admitted, it becomes of 
importance to inquire when, where, and to whom such bonds were 
issued and delivered by the school board. Upon this vital fea- 
ture of the case issue is squarely joined. The complaint (para- 
graph 7, supra) alleges in substance that "both of such school 
bonds were placed in the hands and custody of William Haseleu, 
the treasurer of said school township, for the purpose of negotia- 
tion and sale; and that said William Haseleu did negotiate and 
make sale of said two school township bonds with one C. T. 
Ingersoll for the whole sum of nine hundred and fifty dollars." 
It is admitted that Haseleu, upon demand therefor, has neglected 
and refused to turn over the bonds or their proceeds to his Suc- 
cessor in office, and has wholly failed to account for either the 
bonds or their proceeds, except for the sum of fifty dollars which 



PRAIRIE SCHOOL TOWNSHIP V. HASELEU. 333 

was paid over to the treasurer when the bonds were issued, and 
has been properly accounted for; and also for a certain bill of 
lumber to the amount of $2x6, which has been received by the 
plaintiff on account of the two bonds, and which has been 
accounted for to the plaintiff. The failure to turn over the 
bonds of their proceeds, except as above stated, constitues the 
alleged breach of the condition of the official bond upon which 
the plaintiff bases its rights of action. 

At the trial the plaintiff rested its case upon the admissions 
made in defendants' answer, and upon the testimony, oral and 
written, set out hereafter. Lewis M. Olson testified substantially 
as follows: "My name is Lewis M. Olson. Am a farmer. Was 
treasurer of Prairie school township at one time. Know the 
defendant William Haseleu. I became treasurer June 27th, 1884. 
I succeeded Mr. Haseleu, the defendant in this case. Mr. Haseleu 
did not turn over to me the bonds of Prairie school township of 
S500. He turned over a receipt. He never turned over any 
money as realized from such bonds. [Paper shown witness.] 
That is the receipt and paper. I received that paper from the 
defendant Mr. Haseleu." The paper was put in evidence, and is 
as follows: "Si,ooo. Grand Rapids, Dakota, Sept. 28th, 1883. 
Received of William Haseleu, Treas. Prairie School Township, 
one thousand dollars in bonds of Prairie Tp., La Moure Co., 
D. T., for placing and cr. A. H. Huehjter, Cash. Bank of Grand 
Rapids." Olson further testified: **I was treasurer of the town- 
ship for some years. As treasurer I have knowledge of the pay- 
ment of interest on the bonds of $500 each issued September 28th, 
1883. I pst^d coupons every year for two terms while I was 
treasurer. Am. not a member of the school board. These bonds 
are now outstanding." George R. Fralick testified in substance 
that he was county auditor of La Moure County. He produced a 
record showing that the two $500 bonds were registered on 
September 28th, 1883, and were issued by plaintiff, and made 
payable to one C. T. Ingersoll. Another witness testified that 



334 NORTH DAKOTA REPORTS. 

the bonds were worth $950 when Haseleu went out of office on 
September 24th, 1884. Plaintiff here rested its case. . 

The defendants introduced Haseleu as their only witness. He 
testified as follows: "Reside in Prairie township, La Moure County, 
N. D., since 1882. Am one of the defendants in this action. I 
was treasurer of Prairie school township in 1883. I knew of 
certain bonds of $500 each having been issued in the month of 
September, 1883, by Prairie school township. I knew Mr. Beck- 
man procured the blanks for the issuance of these bonds. He 
was clerk of Prairie school township. The bonds which are in 
question in this action were filled out at Mr. Whitman's pffice, at 
Grand Rapids, in this county. I was in town that day. The way 
I happened to be there that day was Mr. Beckman came to me, 
and said he was going to Grand Rapids, and he had some business 
there; no other party. He told me he was going to prepare 
these bonds, and asked me to come along with him. Mr. Stephen 
Kohan went with us that day. He was director of Prairie school 
township. I did go in there when the bonds were filled out. I 
did not sign them. These identical bonds were taken in hand by 
a party I do not know. After these bonds were filled out, Mr. 
Beckman, Mr. Kohan, and I went with them to the Rapids Bank, 
and they were handed right over, after we went into the bank, to 
Mr. Huelster. He was cashier of the bank at that time. There was 
no conversation at that time, — not as to how much should .be 
received for them. Mr. IngersoU was not there. I did not, before 
these bonds were issued, ever make any negotiations with 
any parties whatever — Mr. IngersoU or anybody else — for the 
sale of these bonds. I never saw Mr. IngersoU. I never made 
any attempt to sell these bonds to any one. By the Court: Did 
you have these bonds in your hands? A, I did not. No sir. It 
was so long ago I couldn't tell. They were carried in by all three 
of us. Q. Did you never have any conversation previous to the 
time of your going in, either with Mr. IngersoU or the cashier 
of the bank, Mr. Huelster? A. Before these bonds were sold or 
left there? Q. Yes. A. I did not. I never saw Mr. IngersolL 



PRAIRIE SCHOOL TOWNSHIP V. HASELEU. 335 

I did not talk with Mr. Huelster. I had nothing to do with these 
bonds. Q. Did Mr. Beckman tell you before the bonds were 
sold that he had agreed to sell these bonds to Mr. Ingersoll for 
95 cents on the dollar? (Plaintiff's counsel objects to the question 
on the grounds that it is heresay and incompetent. Objection 
overruled, to which ruling the plaintiff, by his counsel, duly 
excepted.) A. He did. Mr. Beckman did the bargaining. Mr. 
Beckman took full charge and control of procuring all the blanks 
and negotiating the sale of these bonds. Q. You may state 
whether or not Mr. Beckman made any statement to you in 
regard to the fact as to whether Mr. C. T. Ingersoll was to pur- 
chase these bonds or simply negotiate for the township. (The 
plaintiff's counsel objected to the question on the ground that it 
is incompetent and immaterial and hearsay. The court overruled 
this objection, to which ruling the plaintiff, by its counsel, duly 
excepted.) A. He was going to sell them for the district. Q. 
Did Mr. Beckman ever tell you thaft? A. He did. Since these 
bonds were placed there I have been there once a week, to see if 
the funds for them had been returned; and until I got a little 
money from him, and an order for the material to build the 
school house, no money was received from the bank. At the 
time the bonds were left there by the board, I communicated my 
inability to collect the proceeds of these bonds to the other mem- 
bers of the board after my trips to Grand Rapids and attempts to 
collect. Talked with Beckman from time to time about it. We 
talked about it sometimes twice a week. The order for material 
that Mr. Ingersoll gave was taken to the lumber yard and figured 
out. Mr. Beckman took it there. I went along. We both went 
together. He was the clerk. The amount received by the town- 
ship on that order was $216. By the Court: Who took this 
order to the lumber yard? A. I and Mr. Beckman. We both 
took it. Do not know who it was given to. They delivered the 
lumber to Mr. Beckman, and the farmers went together and 
hauled it out. After these bonds were issued, did not give any 
additional bond to cover the amount to b^ received from their 



336 NORTH DAKOTA REPORTS. 

proceeds. Only gave one bond as treasurer. Cross-examination 
by Mr. Glaspell: This order was given at Grand Rapids, in the 
bank. Mr. Huelster wrote it. I and Mr. Beckman and Mr. 
Kohan were present. I went along with the board that day. 
The order was delivered to me, Mr. Haseleu. The order was 
delivered to Mr. Haseleu for material to build the school house. 
I made an entry on my books as treasurer for this $216. Don't 
believe I wrote it in the books. I was in the bank when these 
bonds were delivered. They were delivered to Mr. Huelster. 
Mr. Kohan, Mr. Beckman, and Huelster were present. Mr. 
Huelster gave me that receipt. Exhibit A. The board ordered 
him to. I didn't ask for any. The board ordered it. I was present 
at the time, and the members of the school board. The treasurer 
was a member of the school board at that time. I was present 
when the receipt was made out in rtiy name. It was not made out 
in the name of the three members of the school board, because I 
was put there to collect the money. It was understood and 
agreed that I was to collect the money, and the board ordered 
me to collect the money after the bonds were left there. Don't 
know who carried the bonds over there. I didn't have them in 
my pocket. I can't tell you if it was possible that I had them. 
I did see these bonds. I was out and in when they were signed. 
There were two bonds. They were signed in Mr. Whitman's 
office. Did not put them in my pocket when we started over to 
the bank. Mr. Whitman did not go over to the bank with us. 
I attended the meeting when the proposition was indorsed for 
the issuance of these bonds for this school township. Do not 
know when it was. First was in June, 1883. Was at the meeting 
when the proposition was passed to issue these bonds. Told at 
the meeting that Mr. Beckman had been talking with 'Mr. Inger- 
soll, and the bonds would bring 95 cents, and would rather issue 
bonds than orders. Mr. Beckman was present, and talked also. 
Told them the same thing. We all wanted the bonds issued. I 
did explain the matter of issuing bonds at that meeting. My 
reason for wanting tcj issue the bonds was that it was pretty hard 



4 

PRAIRIE SCHOOL TOWNSHIP V, HASELEU. 337 

to get money for orders here at that time. Mr. Beckman told me 
that money could be realized on bonds. All I stated was what 
Mr. Beckman told me. Don't know as I gave Mr. Beckman as 
my authority at that meeting.*' Defendant rests. Gustave Papen- 
fuss recalled on behalf the plaintiff: "I was present at the school 
meeting in Prairie school township when the proposition of issu- 
ing the bonds in question in this suit was brought up. Mr. 
Haseleu was present. He stated about issuing bonds. He just 
spoke like this: *We have spoken to Mr. Ingersoll, and we can 
get 95 cents, and it is a better way to issue bonds.' Cross-exam- 
ination: He said, 'We.'" 

We think there is no substantial conflict in the evidence upon any 
feature of the case which is at all material. The facts may be 
condensed as follows: After the bonds were voted, the school 
board, consisting wholly of the defendants, caused the bonds to 
be filled out in favor of C. T. Ingersoll; and after they were 
properly registered the bonds were conveyed to the bank of 
Grand Rapids, — all of the defendants going to the bank together, 
— and the bonds were then and there delivered to the cashier of 
the bank, who gave to Haseleu the receipt above set out. On the 
occasion of the delivery of the bonds to the bank no conversation 
whatever was had between the cashier and the defendants, or 
either of them, as to what disposition should be made of the 
bonds; and it distinctly appears by the undisputed evidence that 
defendant Haseleu had never at any previous time seen Ingersoll, 
or had at any time sold or attempted to sell or negotiate a sale of 
the bonds. It appears by evidence offered on both sides that 
previous to the voting of the bonds some arrangement had been 
made with Ingersoll whereby the bonds were to be so disposed of 
that they should yield $950 net to the school township. The 
details of such arrangement do not appear in evidence, but all 
the circumstances of the transaction demonstrate the fact that 
the bonds were delivered to the cashier of the bank pursuant to 
such previous arrangement. There were two acts done by the 

N. D. R. — 22. 



338 NORTH DAKOTA REPORTS. 

cashier which can only be explained upon the theory of a 
pre-existing understanding, viz: the payment of $50, which was 
made at the time to Haseleu, and which money is accounted far, 
and the execution of the receipt which was delivered to Haseleu. 
These two acts of the cashier were not the result of any talk had 
at the time, and they are of a nature to show that an arrangement 
had previously been made, and one which was understood and 
assented to by the defendants. The terms of the writing show 
that the bonds were to be "placed." This expression is one that 
is well understood by bankers and business men generally, and it 
means that the bonds were to be sold. The circumstances pre- 
clude the idea that the sale of the bonds was to be wholly con- 
summated, and the money paid over then and there, at the bank. 
The evidence shows that all of the defendants understood that 
the treasurer should collect the money when it was obtained out 
of the proceeds of a sale, which sale was not to be fully consum- 
mated at the bank at the time when the bonds were delivered. 
The understanding of all members of the board to the effect that 
Haseleu was to collect and receive the money derived from the 
sale of the bonds was natural and in entire consonance with the 
duties which the law imposes upon a school township treasurer. 
Hence it was quite proper that the receipt for the bonds should 
be made out to Haseleu. The law expressly states: "All money 
received from the sale of the bonds shall be paid to the treasurer 
of the school township." Section 2, Ch. 45, Laws 1883. The 
very terms of this statute import that when a school township 
sells its bonds the proceeds of such sale are to be paid over by 
those who make the sale to the treasurer. No such provision 
would be necessary if the treasurer, as such, was, under the law, 
empowered and required to negotiate a sale. Section I of Ch, 45 
authorizes a school township to issue and sell its bonds for the 
purposes stated, and within the limitations of the statute. A 
school township is a municipal corporation for school purposes, 
and can only act through its officers. When the bonds have been 
voted the authority of the electors over the subject matter is 



PRAIRIE SCHOOL TOWNSHIP V. HASELEU. 339 

exhausted. The voters direct the issue and sale of certain bonds, 
but they cannot either issue or sell the bonds. This duty, in the 
absence of specific provisions to the contrary, devolves upon the 
governing officials of the corporation, viz: the school board. 
Section i, Ch. 45, Laws 1883, provides that "the bond and each 
coupon shall be signed by the clerk of the school township, and 
countersigned by the director.'* Nor is there any provision which 
authorizes the treasurer to either issue, sign, or countersign the 
bond; nor is the treasurer, as such, authorized by law to sell or 
negotiate a sale of a school bond. Plaintiff assumes correctly that 
the duty of executing and issuing school bonds is devolved by 
law upon the school board, and plaintiff expressly charges in 
paragraph 6 of the complaint that the school board "did execute 
and did issue" the bonds. The truth of this averment is expressly 
admitted by the answer, and the testimony shows in detail how 
and in what way the bonds were "executed and issued." They 
were signed and countersigned by the clerk and director, and, 
after being registered, were delivered to the cashier of the bank 
by the board, pursuant to some pre-existing arrangement, the 
terms of which are not fully disclosed by the evidence, but were 
obviously known to the board, and concurred in by all the mem- 
bers of the board. This delivery of the bonds to the cashier of 
the bank is and constitutes the issue of the bonds, which the com- 
plaint alleges was an act of the board. No other issue — no other 
delivery of the bonds — appears to have beep made. The plain- 
tiff has signally failed to offer any evidence tending to support 
the essential averment set out in the seventh paragraph of its 
complaint as follows: "That both of such school bonds * * * 
were placed in the hands and custody of William Haseleu, the 
treasurer of such school township, for the purpose of negotiation 
and sale; and that said William Haseleu did negotiate and make, 
sale of said two school township bonds with one C. T. IngersoU 
for thie whole sum of nine hundred and fifty dollars cash." Not 
only is there an entire failure to support this averment by proof, 
but the undisputed evidence negatives its truth, and shows beyond 



^ 



340 NORTH DAKOTA REPORTS. 

the possibility of a doubt that the bonds were never placed in 
William Haseleu's hands for sale, or negotiation for sale, or for any 
purpose. The fact is made perfectly clear by the undisputed 
testimony that Haseleu never sold the bonds, and never nego- 
tiated with Ingersoll for their sale, either as treasurer, or in his 
private capacity, or at all. On the other hand, the evidence 
leaves no room for doubt that the board, acting in concert and 
cdllectively, "did execute and did issue" the bonds as alleged in 
the 6th paragraph of the complaint. Not only did the board 
"execute and issue" the bonds, but it also delivered the bonds to 
the cashier, and no other delivery appears ever to have been 
made. Counsel for appellant points to the terms of the writing 
signed by the cashier and delivered to Haseleu at the time the 
bonds were handed to the cashier. It reads, "Received of William 
Haseleu, Treas." etc., and counsel's contention is that the writing 
shows on its face that the treasurer delivered the bonds to the 
cashier, and that the writing is the best evidence of the transac- 
tion, and excludes any parol evidence which contradicts or varies 
the terms of the writing. It is true that the terms of the writing, 
when unexplained, are such as to indicate that the treasurer did 
deliver the bonds to the cashier; but, as has been seen, the writ- 
ing was executed in a transaction had between the school board 
and the cashier of the bank, and the treasurer, as such, was not a 
party to it. In such a case the rule excluding parol evidence 
does not apply. 7 Am. & Eng. Enc. Law, p. 95. If the instru- 
ment can properly be classed as a receipt, the rule does not aj>ply, 
and the parol evidence would, in that view, of course, be admissi- 
ble; but we think the instrument partakes of a dual character, and 
is in part a receipt and in part a contract. In such instruments 
the rule is that the part which is a receipt may be explained or 
varied by parol. Morris v. Railroad Co., 21 Minn. 91; Burke v. 
Ray, 40 Minn. 34, 41 N. W. Rep. 240. We think the writing is 
clearly a mere receipt, except as to that part in which it is stated 
that the bonds were received "for placing and credit." Hence 
the evidence outside the writing was proper to show the 



PRAIRIE SCHOOL TOWNSHIP V, HASELEU. 34I 

circumstances and the relation of the parties to the transaction in 
which the writing was made. 

Upon the facts thus appearing the question arises whether the 
treasurer and his official sureties, in an action for a breach of the 
condition of the treasurer's official bond, can be made responsible 
for the loss of the bonds or their proceeds, when such loss was 
wholly the result of the action of the school board. This question 
must be answered in the negative. Neither the treasurer nor his 
official bondsmen should be held responsible for the conduct of 
other officers over whom the treasurer, as such, has no control. 
The law and the official bond constitutes the sole measure of the 
treasurer's liability. Section 35, Ch. 44, Laws 1883, says: "The 
treasurer of every school township shall, before entering upon 
duty as such, give bond to such corporation, conditioned that he 
will faithfully and impartially discharge the duties of his office, 
(naming it fully,) and render a true account of all moneys, 
credits, accounts, and property of every kind that shall come into 
his hands as such treasurer, and pay and deliver the same accord- 
ing to law." The condition of the bond in suit substantially em- 
bodies this statute, and the bond and statute furnish the full 
measure of the treasurer's liability. The statute requires the 
treasurer to render a true account of money and property which 
shall come into his hands as treasurer. It requires no more than 
this. It appears in this case that the treasurer has fully 
accounted for whatever property and money has been placed in 
his hands as proceeds of the bonds in question, and also appears 
that the bonds themselves never came into his hands or custody 
as treasurer or otherwise. Never having come into his hands, 
the treasurer, as such, never became liable to account for or turn 
over the bonds. 

While the language of an official bond should, under the 
established modern doctrine, receive a fair and reasonable inter- 
pretation, its obligation is nevertheless stricHssimi juris. The 
obligors consent to be bound to a certain extent only and their 
obligation ought not to be expanded by judicial construction 



342 NORTH DAKOTA REPORTS. 

beyond the fair terms of their consent. The liability of sureties 
extends to the official acts of the principal, and only to such acts. 
For acts done outside of official duty an officer may incur 
personal liability, but for such acts sureties are not responsible. 
These views have the amplest support in the authorities. U. S, 
V. Boyd,, 15 Pet. 187; Bank v. Ziegler, 49 Mich. 157, 13 N, W. Rep. 
496; Taylor v. Parker, 43 Wis. 78; State v, Conover, 78 Am. Dec. 
54; Gerber v. Ackley, 37 Wis. 43; Murfree, Off. Bonds, § § 461, 
462; Mechem, Pub. Off. § § 282, 283. 

Appellant's counsel argues that it was the duty of the treasurer 
to object to the delivery of the bonds to the cashier of the bank, 
and that his silence constitutes negligence which renders 
him and his official sureties liable on his bond. This theory is 
untenable under the issues made by the pleadings. The action 
arises wholly upon contract and there are no averments in the 
complaint sounding in tort. The complaint counts on an alleged 
breach of the condition in the bond for not accounting for certain 
bonds which it is alleged were delivered to the treasurer. Upon 
the issues made no queston can arise as to whether the board or 
its members exercised due care in issuing the school bonds. We 
find, after a very careful consideration of the whole record, that 
the verdict and judgment are in accordance with law and the 
testimony, and therefore should be affirmed. The court will so 
order. 

Corliss J., concurs. Bartholomew, C. J., having, been of 
counsel, took no part in the above decision. 
(55 N. W. Rep. 938.) 



YORKE V. YORKE. 343 

Louis A. Yorke vs, Emma M. Yorke. 

Opinion filed May 31st, 1893. 

Citation to Show Cause— Service on Attorney. 

When a decree of court has been obtained, and an application to set the 
same aside is subsequently made in the same case, service of the citation to show 
cause why the decree should not be set aside is properly made upon the attor- 
ney of record who procured the decree. 

Affidavit for Publication of Summons — Dilig^ence. 

An. affidavit for publication of summons, which entirely fails to show that 
any diligence was used to find the defendant in this s'tate, and fails to state 
positively the residence of such defendant, or that any diligence has been used 
to ascertain such residence, is fatally defective, and a publicatton of summons 
based upon such affidavit confers no jurisdiction of the person of defendant. 

Motion to Vacate Decree— Appearance — Waiver of Service. 

When a party who has not been properly served with process appears in a 
case, and asks to have a decree against "him set aside for the reason that the 
court had no jurisdiction of his person, and for the further reason that such 
decree was procured by fraud and deceit, and was without evidence to 
support it, such appearance is general, and is a waiver of all defects in the ser- 
vice of process. 

• 
General Appearance Will Not Validate Void Decree. 

But such general appearance will not validate a decree otherwise invalid by 
reason of fraud and deceit practiced in its procurement. 

Vacation of Decree— for Fraud or Deceit. 

Courts of general jurisdiction have the inherent power, independent of any 
statutory provisions, — and in divorce cases no less than in other cases, — to set 
aside and annul any judgment or decree procured by the fraud and deceit of 
the successful party, practiced upon the com plaining -party to the action, and 
the court. 

Vacation of Decree— Rehearing. 

When a decree is thus annulled for fraud in its procurement, it is not proper for 
the court to go further, and dismiss the action with costs. The case should be 
retained, and defendant granted a reasonable tim6 within which to plead to the 
complaint. 

Appeal from District Court, Cass County; Mc Connelly J. 

Action by Louis A. Yorke against Emma M. Yorke, for a 
divorce. Plaintiff had a decree, and from an order vacating the 
same, and dismissing the complaint, plaintiff appeals. 



344 NORTH DAKOTA REPORTS. * 

Modified and affirmed. 

M. A, Hildreth, for appellant. 

Service of papers upon ja former attorney, but after the relation 
of attorney and client has ceased, is not proper service. Beach v. 
Beach, 6 Dak. 374. The affidavit for publication of summons was 
sufficient. Kennedy v. Ins, Co., loi N. Y. 487, 43 Hun. 629, 76 
Cal. 646. The defendant having appeared and moved to vacate 
the judgment upon other grounds than want of jurisdiction, was 
a general appearance and cured all defects in prior proceedings. 
Handy v. Im. Co. 37 Ohio St. 366; Swift v. Lee, 65 111. 336; McBain 
V. People, 50 III. 503; Dunning v. Dunning, 37 111. 306. 

L. A, Rose, for respondent. 

Motion papers to set aside a judgment of divorce granted by 
default are properly served on the attorney for the plaintiff in the 
judgment, although made after entry of judgment and after the 
attorney for the plaintiff has been paid off and discharged. 
Miller v. Miller, yj How. Pr. i; Merriam v. Gordon, 22 N. W. Rep. 
563; Beach v. Beach, 43 N. W. Rep. 701; Drury v. Russell, 27 
How. Pr. 130; Lusk V. Hastings, i Hill. 656. The court may 
vacate its judgment after term where it did not have jurisdiction 
to render judgment or where for any reason the judgment is void 
or where its rendition or entry was procured by fraud. Edson v. 
Edsofi, io8 Mass. 590; Cottrell v. Cottrell, 23 Pac. Rep. 531; Caswell 
V. Caswell, 11 N. E. Rep. 342; Morton v. Morton, 27 Pac. Rep. 718; 
Wisdom V. Wisdom, 39 N. W. Rep. 594; Brown v. Grove, 18 N. E. 
Rep. 387; McBlane v. McBlane, 20 Pac. Rep. 61; Cross v. Cross, 15 
N. E. Rep. 333. Lapse of time will not effect the right to vacate 
a judgment void for want of jurisdiction. Feikert v. Wilson, 37 
N. W. Rep. 585; Vilas v. PL N. Y. 25 N. E. Rep. 941; Caswell v, 
Caswell, 1 1 N. E. Rep. 342. One year limitation within which to 
vacate default does not apply to void judgments. Peo. v. Greene, 
16 Pac. Rep. 197. Affidavit of merits is not necessary to set aside 
a decree of divorce obtained by fraud. Cottrell v. Cottrell, 23 Pac. 



YORKE V. YORKE. 345 

Rep. 531; McBlane v. McBlane, 20 Pac. Rep. 6i; Gay v. Gra?it, 8 S. 
E. Rep. 99; Hanson v. Hanson, 20 Pac. Rep. 736; Wisdom v. Wis- 
dom, 39 N. W. Rep. 594; Orth v. (?rrA, 69 Mich. 158. Appearance 
and motion of defendant to vacate judgment does not cure prior 
defects. Gay v. Hawes, 8 Cal. 563; Deidesheimer v. Brown , 8 Cal. 
340; Toof V. Foley, 54 N. W. Rep. 59. 

Bartholomew, C. J. This case comes to this court on an 
appeal from an order entered by the District Court of Cass 
County on the 23rd day of November, 1892, which vacated and 
set aside a decree of divorce granted by said court in said action 
on the 15th day of September, 1891, and dismissed the complaint 
in said action, with costs. On September 9th, 1892, on the peti- 
tion of Emma M. Yorke, the defendant and the respondent herein, 
an order was issued by the judge of said court, citing Louis A. 
Yorke, the plaintiff and appellant herein, to show cause why such 
decree should not be vacated. This order was served on M. A. 
Hildreth, Esq., who had acted as the attorney for plaintiff in pro- 
curing such decree. At the final hearing under such citation, 
the order was entered from which' the appeal is taken. The 
petition upon which the order was granted is exceedingly volu- 
minous. We state such of the ultimate facts, as alleged in the 
petition, as we deem necessary for a proper understanding of our 
rulings: Some time in 1889, appellant instituted an action for 
divorce against respondent in the District Court of Stutsman 
County, charging her with dissertion. To this action there was 
an appearance and answer filed, and, the case being thus at issue, 
the attorney for appellant wrote to the attorney for respondent, 
who resided in Philadelphia, saying: "Will advise you of 
further proceedings in the case when the same are taken." That 
neither respondent nor her counsel ever received any notice of 
any further proceedings in said case. That on June 20th, 1890, 
by order of said court, other counsel were substituted as attorneys 
for appellant in said case, and on the same day such substituted 
counsel procured an order dismissing said action without preju- 
dice; and immediately thereafter this action was brought, in Cass 



346 NORTH DAKOTA REPORTS. 

County, charging respondent with dissertion and adultery. That 
subsequently an order for publication of summons was procured 
in said case, and that the affidavit upon which such order was 
obtained was false, and known by appellant and his attorney to 
be false when made, in that it was stated therein that respondent's 
residence was at Philadelphia, Pa., when it was well known to 
them that her residence in summer, was at Sea Girt, N. J., and, in 
winter, at Bryn Mawr, in Montgomery County, Pa., and that she 
had no residence whatever at said City of Philadelphia; that the 
summons in this case was published in a weekly newspaper at 
Fargo, in said Cass County, but that no copies of the summons and 
complaint were ever mailed to her, at her place of residence, as 
the statute requires^ but the same, if mailed at all, were sent to 
said City of Philadelphia, and that all this was "done for the pur- 
pose of preventing respondent from gaining any knowledge of 
the pendency of this action^ The answer 'filed by the respondent 
in the case brought in Stutsman County is made a part of the 
petition in this case. In that answer, respondent specifically 
charged appellant with deserting her and with long continued 
adulterous intercourse with one Lena de Zychlinski, and denied 
that he was a resident of this state. Respondent denies all 
desertion and all adultery on her part. She had no knowledge of 
the pendency of this action until after the decree was rendered, 
and until after October 22nd, 1891. That she then read in a 
newspaper published in New York City the announcement of the 
divorce of Louis A. Yorke from Emma M. Yorke, and his subse- 
quent marriage to the Countess de Zychlinski. The evidence is 
also reviewed in the petition, and the claim made that it was 
insufficient to support the decree, and that it was false. The 
relief asked by the petitioner is as follows: "The defendant, 
Emma M. Yorke, therefore respectfully asks the court, upon the 
further consideration of the record, proceedings, and evidence in 
said cause, to open and set aside said judgment and annul said 
decree therein, and if said court cannot summarily open and set 
aside and annul said judgment and decree upon the irregularities, 



YORKE V. YORKE. 347 

imperfections, and insufficiency of said proceedings, that it will 
allow said defendant to come and defend the said action." The trial 
court, in making the order appealed from, also made some prelimin- 
ary findings of fact, one of which, being a matter of which that court 
was bound to take notice, becomes important here. The fact that 
the action had once b^en brought in Stutsman County, and, after 
issue joined, had been dismissed by plaintiff without the know- 
ledge of defendant, was in no manner brought to the attention of 
the trial court until respondent's petition was filed. 

The attorney for the appellant, M. A. Hildreth, Esq., appeared 
specially to oppose the motion to set aside the decree, and 
claimed that the court had acquired no jurisdiction of appellant 
in the matter because the motion papers were served upon the 
attorney, instead of the party. He filed his alBidavit, setting forth 
that service might have been made upon the party in the state, 
and that the relation of attorney and client no longer existed 
between himself and Louis A. Yorke. This point is practically 
ruled against appellant in Beach v. Beach, 6 Dak. 371, 43, N. W. 
Rep. 701. We indorse what is there said, and need not repeat it 
here. We may add, however; that, granting that the relation, 
powers, and duties of an attorney cease upon entry of final judg- 
ment, yet it is upon the ground that the judgment and decree, as 
entered in this case, were not final, that the application of respon- 
dent was made. This application was not by original action in 
the same or another court, but by motion in the very case in 
which the decree was entered. While the court could entertain a 
motion affecting the decree, it cannot, in any proper sense, be 
said that the decree was final. See, also. Miller v. Miller, 37 
How. Pr. i; Merriam v. Gordon, 17 Neb. 325, 22 N. W. Rep. 563. 
The notice to show cause was properly served upon the attorney 
of record in the case. It was alleged in the notice that the aflS- 
davit upon which the order of publication of summons was based 
was insuflScient in form, as not showing what, if any, diligence 
had been used to find the defendant in this state. Under the 
authority of Beach v. Beach, supra, that would be true. Indeed, 



348 NORTH DAKOTA REPORTS. 

we think the affidavit in this case much more vulnerable than in 
that. It not only entirely fails to show that any diligence what- 
ever had been exercised to find defendant in this &tate, but fails 
to give any satisfactory information as to defendant's residence. 
It was made by the attorney, and states, on information and 
belief, that defendant's residence is at Philadelphia, Pa.; and the 
sources of information are stated to be statements made by plain- 
tiff to the attorney, and the fact that certain papers which the 
attorney had never seen were sworn to by her in that city. This 
latter circumstance could have no probative force in the mind of 
a lawyer, and we are at a loss to understand why the plaintiff 
himself did not make the affidavit, instead of making statements 
to his attorney. He verified the complaint on the same day, before 
a notary public, in the same county, and presumably, at the same 
place. True, these affidavits may properly be made by an attor- 
ney, but when the truth of the matter stated rests upon the 
unsworn statement of the client, and the client is present, good 
faith to the court requires that some reason be given why the 
client does not make the affidavit. We think the affidavit was 
insufficient in this case, and that the court was without jurisdiction 
of the defendant at the time the decree was granted. 

But, when the respondent came into court with her motion to 
set aside the decree, she made no special appearance, nor did she 
attack the decree on the ground of want of jurisdiction only, but 
also upon the further grounds of fraud and deceit practiced upon 
herself and upon the court, and the insufficiency of the evidence 
to support the decree. The petition asked that tlie entire pro- 
ceedings be set aside, or, if that could not be done, that she be 
allowed to come in and defend. This was a voluntary and un] 
qualified submission to the jurisdiction of the court, generally, 
and, although made after judgment, was a waiver of all defects in 
the process. Elliott v. Laivhead, 43 Ohio St. 171, I N. E. Rep. 
577; Leake v. Gallogly, (Neb.) 52 N. W. Rep. ^24; Grander v. 
Rosecrance, 27 Wis. 488; Anderson v. Cobtim, Id. 558; Insurance Co, 
V. Swineford, 28 Wis. 257; Carpentier v. Minturn, 65 Barb. 293; 



YORKE V. YORKE. 349 

McBane v. People, 50 111. 503; Curtis v. Jackson, 23 Minn. 268; 
Frearw, Heicheri, 34 Minn. 96, 24 N. W. Rep. 319. But what was the 
effect of this general appearance, made subsequent to the entry 
of the decree? In Anderson v. Cobum, supra, it was held that, as 
to the inmmediate parties to the action, such appearance validated 
a judgment that was theretofore absolutely void for want of juris- 
diction. Such was also the holding in Grander v. Rosecrance, 
supra, and in Alderson v. White, 32 Wis. 308; Burdette v. Corgan, 
26 Kan. 102; Fee v. Iron Co., 13 Ohio St.* 563; and Curtis v. Jackson, 
23 Minn. 268. But this last case was expressly overruled, as to 
that point, in Godfrey v. Vale7itine, 39 Minn. 336, 40 N. W. Rep. 
163. It may not be imperatively necessary for us to pass upon 
the point, but we cannot forbear saying that we think the case in 
39 Minn. 336, 40 N. W. Rep. 163, rests upon much the better 
foundation in principle. We can well understand that where a 
defendant against whom judgment has passed, but who was in no 
manner served with process, comes into court, and asks to have 
that judgment set aside by reason of such want of service, and 
also for other alleged irregularities connected therewith, by ask- 
ing the court to investigate such other irregularities he submits 
himself to the jurisdiction of the court, and can no longer be heard . 
to say that the court has no jurisdiction of his person. We can 
understand, also, that if, upon investigation, the court finds that 
such irregularities do not exist, and refuses to set aside the judg- 
ment, the defendant is forever bound by such rulings, unless 
reversed in a higher court. But we do not understand upon 
what principle it is held that the mention of such other irregula- 
rities in connection with the want of jurisdiction should forever 
preclude any investigations into the existence of such irregulari- 
ties. A defendant who has not been served with process may 
have the judgment against him set aside for that cause. If plain- 
tiff desires to proceed further he must then bring the defendant 
into court by proper service, and, when so in court, defendant 
may demur to the complaint, or defend, as he sees proper. But 
if, when he asks to have the judgment set aside, he goes one step 



350 NORTH DAKOTA REPORTS. 

further, and says to the court: "Notwithstanding the fact that I ' 
was never served with process, yet Inow aver that plaintiff states 
no cause of action against me in his complaint, and I ask to have 
the judgment set aside for that reason also," by what legal neces- 
sity or propriety can it be said that he thereby shuts his own 
mouth, forecloses the question, and forever makes the complaint 
good, as against himself. We doubt if such a result should fol- 
low a voluntary appearance under such circumstances. But, 
however the law may be as touching mere irregularities, we are 
confident that no subsequent voluntary appearance can cure or 
condone fraud, such as appears upon the record before us. A 
court record, based upon a legal fraud, may demand obedience 
while it stands, but it is idle to talk of the sancitity of such a record. 
Whatsoever is tainted with fraud — a court record no less than a 
contract — must fall before the clear evidence of the fraud by 
which it was established. This principle can never be departed 
from without making the law the instrument for the perpetration 
of injustice, oppression, and crime. This is familiar law. But 
see Black, Judg. § 321, and cases cited. 

It is contended, however that decrees in actions for divorce 
,form a clear exception to the general rule; that in this class of 
cases, reasons of public polity, the interests of the state, as well 
the irreparable wrong that may be done to innocent third parties 
in cases of remarriage, alike demand that divorce decrees should 
not be subject to attack in this manner. It is freely conceded 
that courts have sometimes so held. Perhaps the strongest case 
in the books is Parish v. Parish, 9 Ohio St. 534. That case did 
not arise on motion to vacate, but under the old practice of bill 
in equity filed at a subsequent term. There was a demurrer to 
the bill, and the court said: *'For the honor of human nature, it 
is to be hoped thsft the facts alleged in the petition in regard to 
the procuration of the decree are not true in fact, though, for the 
purpose of the demurrer, they arc to be taken as admitted. 
Indeed if a case could be supposed in which a decree a vinculo, 
by a court having jurisdiction over person and subject matter, 



YORKE V, YORKE. 35 1 

could be vacated at a subsequent term by reason of its fraudulent 
procurement, it would seem that such a case is presented in the 
bill under consideration," But after a not very thorough review 
of the authorities the court concludes: "We therefore feel com- 
pelled, though reluctantly, to hold that sound public policy, in 
this class of cases, foVbids us from setting aside a decree of 
divorce a vinculo, though obtained by fraud and false testimony, 
on an original bill at a subsequent term." See, also, Mcjunkin v. 
Mcjunkin, 3 Ind. 30; GCormell v. O'Comiell, 10 Neb. 390, 6 N. 
W. Rep. 467; Lewis v. Lewis, 15 Kan. 184; Greerte v. Greene, 2 
Gray 361. An examination of these cases will disclose that in 
almost every instance the decision was more or less influenced by 
sympathy of the judges for innocent third persons, who, on the 
strength of the decree, had intermarried with the divorced party, and 
for the helpless issue of such marriage. They were unwilling "to 
expunge a sentence of divorce with a stroke of the pen, bastardize 
after-begotten children, involve an innocent third person in legal 
guilt, and destroy rights acquired in reliance on a judicial act 
which wgts operative at the time." Fortunately for us, as this 
record stands, our sympathies are not thus wrought upon; and, as 
a purely legal question, the overwhelming weight of authority is 
the other way. Hobnes v. Holmes, 63 Me. 420; Adams v. Adams, 
51 N. H. 388; Edson v. Edson, 108 Mass. 590; Whitcomb v. Wkit- 
comb, 46 Iowa, 437,' Rush v. Rush, Id. 649; Olmstead v. Olmstead, 
41 Minn. 297, 43 N. W. Rep. 67; Alle?i v. Maclellan, 12 Pa. St. 
yi%\ Mansfield v. Mansfield, 26 Mo. 163; Johnson v. Coleman, 23 
Wis. 452. These cases establish beyond dispute the principle 
that — not less in divorce cases than in any other class of cases — 
courts of general jurisdiction possess, ex-necessitate, the power 
to emancipate themselves from the effects of a deceit practiced 
upon them, and to expunge from their records that which has 
been spread thereon only through fraud and deception. In no 
case "shall fraud be skillful enough to impose a sham upon a 
court of justice, to the injury of innocent parties, without 'any 
adequate remedy or reparation therefor." 






352 NORTH DAKOTA REPORTS. 

When we apply these principles to the case before us, there is 
not the least doubt that the action of the court in setting aside 
the decree was entirely correct; and in so declaring we do not 
intend to hold that the fact that the trial court found the appel- 
lant to be a resident of this state upon insufficient or false testi- 
mony would constitute legal fraud. Nor do we hold that the 
fact, if such it be, that the original decree was based entirely 
upon false or prejured evidence could be urged as a ground for an- 
nulling that decree. If the truth or falsity of the testimony upon 
which a judgment is based could be opened to subsequent in- 
quiry, there would be no end of litigation. That matter must be 
regulated by the conscience of the witness, and the bar of the 
criminal court. 2 Bish. Mar. & Div. §1571, and cases cited. But 
the fraud in this case is of a more palpable character. The plain- 
tiff brought his action in Stutsman County. Process was properly 
served. Defendant appeared by her attorney, and filed an answer 
in the case. If the allegations in that answer were true, they 
formed an insuperable barrier to any decree in plaintiff's favon 
With the case thus at issue, plaintiff's attorney stated, in writing, 
to the attorney for defendant, that he should have notice of any 
further proceedings in the case. While defendant was thus lulled 
into security, plaintiff permitted his attorney, in direct defiance 
of the ^bove understanding, and without any notice whatever to 
defendant or her attorney, to procure an order substituting 
another attorney in his stead, and permitted such substituted 
attorney to procure an order dismissing said action, and on the 
same day commenced an action in another jurisdiction. — t. e. in 
another Judicial District, — using, it would seem, special precau- 
tions to prevent defendant from obtaining any actual notice of 
its pendency. This conduct, under the circumstances, was a gross 
fraud upon defendant's rights. In all the subsequent proceedings 
that led up to the decree, the court was in no manner informed 
of any of the prior proceedings in the case in Stutsman County. 
It cannot be doubted that, had the court received, any know- 
ledge of such facts, no further step would have been permitted in 



YORKE V, YORKE. 353 

the case until the promise made by the former counsel was fully 
redeemed. Nor can it be doubted that plaintiff well knew that to 
be a fact. The suppression of those facts was a willful fraud 
upon the court. Borden v. Fitch, 8 Am. Dec. 230; Vicher v. 
Vitchcr, 12 Barb. 640. By means of the frauds thus practiced the 
respondent, presumably an innocent woman, was branded as an 
adulteress by the solemn records of a court. That record cannot 
stand. It is proper as a matter of practice, to say that this appli- 
cation is not made under § 4939, Comp. Laws, giving relief in 
certain cases of mistake, inadvertence, etc. That section is not 
applicable to this case. Nor is it made under § 4900. That 
section gives a defendant served by publication only, and having 
no actual knowledge of the pendency of the action, the absolute 
right, on good cause shown, to come in, within the specified time, 
and defend the action, but divorce cases are expressly excepted 
from its operation. This application is entertained under that 
underlying and indestructible right to attack a judgment that is 
rendered without jurisdiction, or obtained through fraud upon 
the injured party and the court. But while the action of the 
court, in setting aside the decree, was proper, we think the court 
went a step too far, in dismissing the complaint and entering judg- 
ment for costs. After all the record that was based upon the 
fraud was stricke» out, there yet remained a complaint to which 
defendant had entered a voluntary appearance. Justice to all 
parties requires that the searching light of truth be turned upon 
this case. The District Court of Cass County is directed to so 
modify the order appealed frorn as to set aside the decree of 
divorce, and allow the defendant 30 days from the entry of such 
modified order in which to plead to the complaint, if she so elect; 
respondent to recover costs in this court. 

Modified and affirmed. All concur. 

Corliss, J. I refrain from expressing any opinion whether the 
appearance validates the decree, so far as jurisdiction was con- 
cerned, or whether it conferred jurisdiction only from the date of 
the appearance. 
(55 N. W. Rep. 1095.) 
N. D. R. — 23. 



s" ' ■ ■ 

;-; 354 NORTH DAKOTA REPORTS. 

f< ANtONiA Hegar e/ at vs, John DeGroat. 

^1 ^ Opinion filed July 6th, 1893. 

:r Parties Plaintiff. 

r Sections 3303, 4870, Comp. Laws, construed. The plain tid Schmitz con- 

V veyed the land in question to the plaintiff Hegar while the defendant was in 
;;^ the actual possession of the land, claiming title adversely to Schmitz. Held, in 
1;:'. ^ an action brought by Hegar to recover the possession, and damages for wrong- 
ly > fully withholding the land, that Schmitz was properly joined as a formal party 

plaintiff. 

V Evidence. 

V* While Schmitz was living on the land, the sheriff, aided by the defendant, 

! ' and assuming to act under and by virtue of a writ of execution issued out of 

*- a Justice's Court, entered upon the land, and ousted Schmitz, and put the defen- 

dant in possession. The execution was issued upon a judgment by default in 
an action for an unlawful detainer, in w^hich the defendant herein was plaintiff, 
;" and Schmitz was defendant. The record in said action was excluded from the 

J consideration of the jury upon the ground that the justice of the peace had no 

r jurisdiction. The complaint showed upon its face that both parties to the 

action claimed title and based their right to possession upon a fee simple title. 
Held, that the ruling was not erroneous. 

Void Tax Deed — Instructions. 

; Plaintiff Schmitz was was the general owner of the land, and in possession. 

His title was perfect, unless the defendant had a superior title by virtue of a 
certain tax deed under which defendant claimed title. At the trial it appeared 

''"' that the tax deed was void on its face, for certain substantial reasons. The 

District Court ruled out the tax deed, and instructed tHfe jury to disregard the 
same, as it furnished no justification to the defendant for entering upon the 
land, and ousting Schmitz therefrom. Held, that the instruction was proper. 

, Attorney's Fees Not Properly Recovered as Damages. 

■ " The action is to recover possession of the land, and for damages for its 

wrongful occupation. At the trial, against objection, plaintiffs were allowed to 
introduce testimony showing their expenditures for attorney's fees in prosecut- 
ing this action. The verdict was for the plaintiffs, and the jury allowed, as a 
separate item, the sum of $500 as and for plaintiff's attorneys' fees in this 
action. Held, that the court erred in admitting the testimonjr, and that the 
judgment must be modified by striking therefrom the amount allowed as attorneys' 
fees. Held, further that § 4601, which allows a recovery, as a part of the 
damages, of "the costs, if any, of recovering the possession," has reference 
only to the costs incurred in a previous action, if any had been brought for the 
sole purpose of recovering possession and that even in such cases expenditures 
incurred in the previous action could not embrace attorneys' fees as an element 
to swell the damages in the later action. 



HEGAR V, DE GROAT. 355 

Evidence Sustains Verdict. 

Testimony as to the value of the use of the land in question is examined and 
considered, ffeld^ that the verdict as to the value of the use is justified by such 
evidence. 

Interest on Damages. 

The court instructed the jury that they might, at their option, allow or not 
allow interest on the annual value of the use of the land while it was wrong- 
fully occupied by the defendant. Heldy that such instruction was proper. 

Irrelerant Testimony — Harmless Error.' 

Against objection, one of plaintiffs' witnesses was allowed to testify as to 
certain matters which were foreign to the issues in the case. Heldf that the 
testimony was improperly admitted, but that it was not prejudicial to the defen- 
dant, and hence a new trial will not be granted on account of such error. 

Void Tax Deed Will Not Start SUtute of Limitations. 

A tax deed, void on its face, cannot operate to set the statute of limitations 
in motion. Accordingly, held^ (construing Comp. Laws, g 1640,) that this 
action is not barred on account of the fact that it was not commenced until 
more than three years had elapsed after the void tax deed was recorded. 

Appeal from District Court, Traill County; McConnell, J. 

Action by Antonia Hegar and Micke Schmitz against John 
DeGroat in ejectment and for damages for the use and occupa- 
tion. Plaintiff recovered judgment for possession and $3745 
damages and for costs, and defendant appeals. 

Modified. 

Selby & higivaldsofiy {M, A. Hildreth of Counsel) for appellant. 
y. E, Robinson^ for respondent. 

Wallin J. This action is brought to recover the possession of 
a certain quarter section of land in Traill County, with damages 
for withholding the same, and for the costs of recovering posses- 
sion. It is conceded that in the month of April, 1887, the plain- 
tiff Schmitz, who then resided upon the land with his family, was 
the fee simple owner thereof, unless De Groat, the defendant, 
was such owner by virtue of a tax deed executed and delivered 
by the county treasurer of Traill, and upon which the defendant 
bases all his rights to the land. It appears that DeGroat, relying 
upon his tax title to recover possession, instituted an action in a 



356 NORTH DAKOTA REPORTS. 

Justice's Court of Traill County against the plaintiff Schmitz to 
oust Smitz. and to recover possession of the land, under the 
unlawful detainer statute. Schmitz did not appear in such action, 
and De Groat obtained judgment in his favor, whereupon an exe- 
cution issued, and the sheriff (claiming to act under such execu- 
tion, and being actively assisted by the defendant) ousted 
Schmitz from the land, and placed the defendant in the exclusive 
possession thereof. Schmitz was dispossessed in the month of 
April, 1887, and the defendant continued in the exclusive posses- 
sion of the land from that time for six cropping seasons, and was 
in possession when the trial took place in this action, in Decem- 
ber, 1892. In May, 1892, the plaintiff Schmitz and his wife, by a 
deed of conveyance duly executed and recorded, conveyed all of 
their right, title, and interest in the land to the plaintiff Antoine 
Hegar, and also, by the same deed, transferred to Antoine Hegar 
*'all the rights of said grantors to recover possession of said land, 
with damages for the withholding thereof, and the rents and 
profits of the same, and for waste committed therein." The 
.grantors further empowered the grantee to institute any and all 
necessary actions, in their name or otherwise, to recover posses- 
sion and damages, as before stated. The deed being made while 
the defendant was in the actual possession of the land, Schmitz 
name is properly used as a nominal plaintiff in this action, pursu- 
ant to the provisions of § 4870, Comp. Laws. 

The trial court permitted the tax deed and the tax proceedings 
upon which the deed was based to be introduced in evidence, but 
in its charge to the jury they were instructed by the court, in 
substance, to wholly disregard the tax deed. We are satisfied 
that the tax was void, and that the deed was void on its face; but, 
as the soundness of this ruling of the District Court is practically 
conceded by appellant's counsel, we do not deem it necessary, in 
this case, to set forth in detail the grounds or reasons upon which 
we rest our conclusions upon this feature of the case. 

The complaint charged that the plaintiff was lawfully seized 
and possessed of the land as owner in fee simple, and "that 



r 



HEGAR V. DE GROAT. 357 

while so possessed thereof, on April 2nd, 1887, the defendant 
entered upon said premises, and ousted said Schmitz, and that he 
still unlawfully withheld from the plaintiff possession thereof, 
* ♦ ♦ and that the value of the use and occupation of said 
premises since the 2nd day of April, 1887, * * * is §500 a 
year." Plaintiffs further claimed in their complaint general 
damages in the sum of £i,€)00, but do not set up in their complaint 
any demand for attorney's fees as a part of plaintiffs' costs in 
recovering the possession. The verdict was for the plaintiffs, and 
embraced the following: "For the use and occupation of the 
land, $3,245; for the cost of recovering the said land, $500, — 
amounting in all to the sum of $3,745." Plaintiffs' counsel was 
called as witness to show the amount of attorney's fee which 
plaintiffs would be obliged to pay out in this action as one part 
of the cost of recovering possession of the land. The witness 
testified, in substance, that at the lowest figure the attorney fee 
would be from $500 to $5 50. The testimony was objected to 
upon the ground that it was not the proper measure of damages, 
was incompetent, irrelevant, and immaterial, and no foundation 
laid for the proof. These objections were overruled by the court, 
and defendant excepted. These rulings are assigned as error in 
this court. We think these exceptions must be sustained. The 
prevailing general rule is that expenditures for attorneys' fees 
made by the successful party cannot be shown at the trial as an 
element of damages. This is true, especially where the statute, 
in terms, allows specific sums as taxable costs, and as indemnity 
to the suitor for his expenses, over and above disbursements. 
The statute of this state expressly allows such costs, as distin- 
guished from the disbursements made by the prevailing party. 
Comp. Laws, § 5186. As to the general rule that money paid as 
attorneys' fees cannot be shown in evidence as an element of 
damages, see the following: Day v. Woodworth, 13 How. 372; 
Fairbanks v. Witter, 18 Wis. 287; Barnard v. Poor, 21 Mass. 278; 
Scema?i\. Feeney, 19 Minn. 79, (Gil. 54;) Jandt v. South, 2 Dak. 
46, 47 N. W. Rep. 779; Otoe Co. v. Brown, ( Neb.) 20 N. W. Rep. 274. 



tl 



358 NORTH DAKOTA REPORTS. 

Nor do we think that the section of the Code which prescribes 
the measure of damages for the "unlawful occupation" of real 
property (Comp. Laws § 4601) should be so construed as to 
change the general rule. Besides the value of the use of the 
land, the section authorizes the recovery of "the costs, if any, of 
recovering the possession." We think the term "costs," as used 
in the statute, was intended to have a limited and technical mean- 
ing. In general use, the term "costs," when employed with refer- 
ence to litigation, embraces both disbursements and specific sums 
allowed by statute as indemnity to the prevailing party for his 
expenses. In a narrower sense, the term "costs" excludes dis- 
bursements. Giving the term its most liberal signification, it 
could embrace only the taxable costs and disbursements in an 
action. The statute regulating costs and disbursements in this 
state is later in date than that which regulates the measure of 
damages in cases like this, and if the two enactments were in con- 
flict the former would have to give way, but in our opinion they 
are not in conflict. The statute allows certain sums as costs to 
the prevailing party in the cases enumerated in the statute. 
Section 5 191 declares: "Costs shall be allowed of course to the 
plaintiff upon a recovery in the following cases: i. In an action 
for the recovery of real property." The sums allowed by the 
statute are not discretionary with the court in this class of cases, 
and the plaintiff can therefore add such sums in taxing the costs 
to his items of disbursements. Reference to § 5186 shows that 
the allowances for costs were intended by the legislature to be by 
way of idemnity for expenditures, including expenditures for 
attorneys* fees made by the successful party. Section 4601 con- 
stituted one of the sections of the Civil Code which was reported 
for adoption by the commissioners of the State of New York, 
See Civil Code of New York reported by the "commissioners of 
the Code," p. 576. The section seems not to have been 
adopted in New York, but it was adopted by the Territory of 
Dakota, and since then it has been incorporated with the Civil 
Code of the State of California. So far as we know, this feature 



HEGAR V. DE GROAT. 359 

relating to costs has never received judicial construction. Doubt- 
less, the clause of the section which allows, as an element of the 
damages, the prevailing party to recover the "costs, if any, of 
recovering the possessipn," voices the better rule of law, as the 
law stood in the State of New York when the commissioners of 
the Code made their report to the legislature of that state. At 
that time it was allowable, and it may be done in this state; to 
first sue for the possession, and, if successful, the prevailing party 
could institute another action for damages for withholding, or for 
rents and profits, or waste. Comp. Laws, § 4932; Sedg. & W. Tr. 
Title Land, § 650 et seq. In a case where the party had been 
successful in a former action brought for the sole purpose of 
recovering the possession of the land, and the costs of such former 
action, for any reason, had not been recovered, the rule was that 
such costs, i. e, the taxable costs incurred in the action to recover 
possession, could be shown as a distinct element of damages in 
in the action for wrongful occupation. It is the rule which is 
voiced in the clause of § 4601, supra, which allows the recovery 
of "the costs, if any, of recovering the possession." In this case 
the evidence showing that plaintiffs had paid out a large sum as 
attorneys* fees for prosecuting this action was inadmissable. It did 
not come within the statutory rule, because there had never been 
any costs incurred in a former action to recover the possession. 
.The attorney's fee paid in this action was paid for prosecuting a 
suit for damages, as well as for the recovery of the possession; and 
in this suit, as has been seen, the statute has, besides disbursements, 
made allowances by way of costs to reimburse plaintiff for his 
expenditures. To recover double costs would be oppressive. 
We go further, and say that, if there had been a former action for 
the recovery of the possession alone, attorneys' fees paid in the 
former action could not be included as an element of damages in 
this action.. There is some conflict of authority, but the general 
rule, and we think the better rule, is that sums paid out or in- 
curred for attorneys' fees should not, in this class of cases, be 
allowed to swell the damages. In White v. Clack, 2 Swan, 230, 



360 NORTH DAKOTA REPORTS. 

the Supreme Court of Tennessee held that the costs of ejectment 
could be recovered^ and that this meant "the legal and proper 
costs taxed in the action pf ejectment, not including counsel fees or 
other expenses incurred by the plaintiff in. the prosecution of the 
suit." The development of the doctrine we have been consider- 
ing may be traced in the cases cited below. Baron v. Abell, 3 
Johns. 481; Aslin v. Parkin, 2 Burrows, 665; Delatouche v. Chubb, 
I N. J. Law, 466; Hunt v. O'Neill, 44 N. J. Law, 566. Also, Sedg. 
& W. Tr. Title Land, § 679, and cases there cited. The result is 
that the special verdict for $500, as and for plaintiffs' attorneys' 
fees in this action cannot stand, and the evidence upon which it 
is predicated was improperly admitted, to defendant's prejudice. 

The coriiplaint charges that the value of the use of the land 
during the period of defendant's occupancy thereof was $500 a 
year. To support this averment, plaintiff's introduced several 
witnesses, and a majority of them testified that the use of the 
land was worth at least S500 a year, and two of plaintiffs' wit- 
nesses testified that the use was much more than $500 per annum. 
Two of plaintiffs' witnesses estimated the value of the use on the 
basis of a cash rental, and their estimate was from $2 to $2.25 an 
acre for each year. The testimony of defendant's witnesses was, 
in substance, that the value of the use was from %2 to $2.25 an 
acre each year. The question of the value of the use was a question 
of pure fact, and one falling strictly within the province of the jury 
to determine. We cannot say that the verdict is not supported 
by a preponderance of the evidence, and, even if the preponder- 
ance was in favor of a lower figure, that alone would not justify a 
court of review in setting aside the verdict. To do so would be, in 
effect, to substitute our judgment for that of the jury, which of 
course, cannot lawfully be done. It follows that the general ver- 
dict cannot be vacated on the ground of the insufficiency of the 
evidence. Halley v. Folsom, i N. D. 325, 48 N. W. Rep. '219. 

The court instructed the jury, in effect, that they might or 
might not, at their discretion, allow interest at 7 per cent, as a 
part of the plaintiffs' damages. The instruction was excepted to 



HEGAR V. DE GROAT. 36 1 

by the defendant, but we think the exception untenable. The 
action was for unliquidated damages, and in such cases the jury 
have discretion as to the allowance of interest. Johnson v. Rail- 
road Co. I N. D. 355, 48 N. W. Rep. 227. In cases like this, the 
rule ha6 long been established that interest may be allowed upon 
the annual value of the use. Sedg. & W. Tr. Title Land, § 670. 
Issue was joined, by a special denial, upon the averment of the 
complaint that the defendant unlawfully entered upon the land, 
and unlawfully evicted the plaintiff therefrom. In support of 
such averment, the plaintiff Schmitz testified, in substance, that 
he was living on the land at the time the defendant came with 
the sheriff, and that the ^'defendant made him get off." That the 
sheriff said, " *Get off, and stop, there, or I will put the handcuffs 
on you, and put you in the Caledonia jail.' The reason I got off 
the land was because he threatened to put the shackles on me, 
and put me in jail." Defendant when testifying, denied, substan- 
tially, that any threats were used at the time referred to, and 
stated that Schmitz, on such demand being made by the sheriff, 
voluntarily agreed to go, and did surrender possession volunta- 
rily, and in obedience to the writ of execution issued by the 
justice of the peace in the unlawful detainer action. We think all of 
the testimony on this point was competent. But the court below 
took this feature of the case from the jury, and instructed them, 
in effect, that defendant's entry upon and occupation of the 
premises were wholly unlawful. This instruction is assigned as 
error in this court. We think the instruction was not erroneous. 
The complaint in the unlawful detainer action, which, with the 
entire record in that action, was put in evidence, showed on its 
face that the justice could have no jurisdiction to try the action. 
The facts alleged in the complaint showed, in substance, that the 
defendant herein was the owner of the land by virtue of said tax 
title, and that, prior to the execution of the tax deed, Schmitz 
was the- owner, and that since the defendant became the owner 
under the tax deed he had formally notified Schmitz to quit and 
vacate the land, but that Schmitz refused, and would not vacate. 



362 NORTH DAKOTA REPORTS. 

These allegations showed conclusively that the controversy be- 
tween the parties arose over a question of title to land^aad con- 
sequently that the justice could have no jurisdiction to try the 
case. Hence the District Court instructed the jury, quite prop- 
erly, that the proceedings in the justice's court gave the defendant 
no right to evict Schmitz, nor could such proceedings furnish any 
legal excuse for compelling Schmitz to vacate. It is entirely 
proper to allow Schmitz, as a witness in his own behalf, to state 
all the facts and circumstances surrounding his removal from the 
land; and he was obliged, under the allegations of eviction set out 
in the complaint, to prove the fact that he was forced to leave 
the land. Defendant objected to plaintiff's evidence on this 
feature of the case, and moved to strike it out. The court refused 
to strike it out, and we think quite properly. While testifying as 
to his removal from the land, Schmitz was asked this question: 
"State what kind of a place you had to go to live in after you 
were put off this land." He answered: "Well, I went over to 
Lewis Wright's, and slept in the barn, in the hayloft, two miles 
east, or two and a half, from where I lived. Q. How much of a 
family have you? A. We had one. I had a wife and child 
coming two years old. Q. You are of German decent? A. 
Yes sir." "No, I cannot read English, so I cannot write." These 
questions were all objected to as incompetent, irrelevant, and 
immaterial. 'The objections were overruled, and the court refused 
to strike out the testimony, and defendant took exception to the 
several rulings. We think the evidence was foreign to the issue, 
aftd was erroneously allowed to remain in the record; but, after a 
very careful consideration of the entire record, we are convinced 
that the error was a harmless one. The testimony referred to 
certainly could not have operated to influence the jury to find a 
verdict for defendant. That was out of the question. The trial 
court, in plain terms, instructed the jury that defendant's pre- 
tended title to the land was worthless, and that their verdict must 
be for the plaintiffs. The court said: "I charge you as a matter 
of law, that the plaintiff's are entitled to recover in this case, and 



HEGAR V, DE GROAT. 363 

therefore I direct a verdict in favor of the plaintiffs; but what the 
amount of the verdict will be is left to you, as you may find they 
are damaged. So the only question that you have for your consid- 
eration is, what have the plaintiffs been damaged by the defendant 
withholding this land from them?" The single issue for the jury 
to pass upon related to the plaintiff's damages, and it is certain 
that the obnoxioiis testimony could not, in view of the judge's 
very careful charge on that feature of the case, have influenced 
the jury at all. The court laid down the measure of damages by 
reading the whole of section 4601 ; and the court also reiterated 
to the jury that the only element of damage was the value of the 
use of the land, with plaintiffs* attorneys' fees added, and ex- 
pressly said to the jury: "You can allow nothing by way of 
punitive damages, — nothing by way of exemplary damages, — 
because, in this action, all the plaintiffs are entitled to is com- 
pensatory damages; nothing more or less than compensatory 
damages; what will compensate them for the injury sustained 
by the withholding of this land." The jury was properly 
and fully instructed as to the measure of damages, except as to 
attorneys' fees, and was especially cautioned against allowing 
anything by way of exemplary damages; and hence we are satis- 
fied that the testimony, though improperly admitted, could not 
have been prejudicial to the defendant. The verdict, as it stands, 
has ample support in evidence which was entirely competent; 
nor is there, in our judgment, any good reason to suppose that 
another trial, if granted, would result in a verdict which would 
more nearly approximate to right and justice, or to a correct legal 
standard, than that already rendered, after excluding the attorney 
fee. 

One other point remains to be considered. Defendant claims 
that the special statute of limitations requiring that actions 
brought to recover possession of lands sold for taxes shall be 
brought within three years after the recording of the tax deed 
applies to this action, citing Comp. Laws, § 1640. The action 
was not commenced until more than three years after the tax 



364 NORTH DAKOTA REPORTS. 

deed was recorded. But we are clear that the statute cannot be 
invoked as a bar to an action to recover possession in a. case 
where the defendant's only claim of title is a tax deed void on its 
face. The deed being void on its face, there was nothing for the 
statute to operate upon, — nothing to set it in motion. This view 
has the support of the weight of authority, and is, in our judg- 
ment, the safer doctrine. Moore v. Brozvn, 11 How. 414; Waterson 
V. Devoe^ 18 Kan. 223; Hall v. Dodge, Id. 277. In Iowa, when the 
assessment is void, the statute will not run. Nic/iols v. McGlathery, 
43 Iowa, 189; Burke v. Cutler, (Iowa,) 43 N. W. Rep. 20^\ TowU 
V. Holt, (Neb.) 15 N. W. Rep. 203; Shechy v. Hinds, 27 Minn. 259, 
6 N. W. Rep. 781; Hurd v. Brisner, (Wash.) 28 Pac. Rep. 371; 
Bird V. Bejdisa, 142 U. S. 664. 12 Sup. Ct. Rep. 323. 

It follows from what has been said that the judgment of the 
District Court is erroneous as the sum of $500 improperly inserted 
therein as plaintiffs' attorney fee. That sum must be stricken 
from the judgment, and this court will direct that the judgment 
be modified accordingly; defendant to recover costs in this court. 
All concur. 

(56 N. W. Rep. 150.) 



BRAITHWAITE V. AKIN. 365 

Wm. Braithwaite vs, Henry C. Akin, ct al. 

Opinion filed July 24th, 1893. 

Intenrentxon— Counterclaim Not Connected With the Subject of the Action. 

Plaintif! and interveners having recovered judgment against the defendants, 
the interveners claimed the money under a written contract with plaintiff. (See 
the contract referred tq in the opinion.) Such contract* provided that the inter- 
veners and the plaintif! (defendant in intervention) should contribute certain 
sums to a common fund with which to purchase the steamboat Eclipse, that the 
title should be taken in the names of plaintif! and another; that they should 
operate the boat, and pay over her earnings to the interveners, until their 
advances and certain claims of theirs against the boat were paid. After that 
the interveners' interest in the contract was to cease, and the boat to belong 
absolutely to plaintif! and the other purchaser. The boat was purchased by 
plaintiff and the other person under the agreement, and it is for the earnings 
while plaintiff was operating her under the agreement that the plaintiff 
recovered judgment. The interveners claimed the money due under this 
ji^dgment as money to which they were entitled under the agreement. Held^ 
that the plaintiff (defendant in intervention) cannot set up as a counterclaim a 
a cause of action for the conversion of his interest in the steamboat referred to 
in such contract; that the cause of action for the tort did not arise out of the 
contract or transaction set forth in the intervention complaint as the foundation 
of the interveners' claim, and is not connected with the subject of the action. 

Equitable Set Off"—Tort. 

Nor could the cause of action for tort be sustained as an equitable set off, 
independent of statute, there being no averment that the interveners are insol- 
vent. The mere fact that they are not residents of the state does not warrant 
the application of the doctrine of equitable set off. 

Cause of Action in Tort Not Set Off Against Cause of Action Upon Con- 
tract. 

Even if the interveners were insolvent, equity would not allow the set off of 
a cause of action for an independent tort against a claim arising on contract. 

Waiver of Tort— Recovery on Contract. 

One whose property has been converted may waive the tort and sue for the 
benefits received by the wrongdoer, although he has not disposed of the 
property converted; but the intent to waive the tort must appear on the face of 
the pleading. 

Judgment Against Intervener. 

One who intervenes in an action subjects himself as fully to the jurisdiction of 
the court as if he had brought an original action against the person against whom 
his complaint in intervention is filed, and the defendant in intervention may 



366 NORTH DAKOTA REPORTS. 

recover an affirmative judgment against the intervener either because of matters 
growing out of the intervener's claim or by establishing a counterclaim the 
same as a defiendanC in an ordinary action. 

Appeal from District Court, Burleigh County; Winchester^ J. 

Action by William Braithwaite against Akin and others. 
William Rea and George F. Robinson, partners as Robinson, Rea 
& Co., and others intervened. To the complaint in intervention, 
plaintiff, Braithwaite, answered, setting up counterclaims. To this 
answer interveners demurred. From an order overruling their 
demurrer, interveners appeal. 

Reversed. 

Louis Hatdtch, F. H. Register and Edgar IV, Camp, for appellants. 

A single count of a complaint cannot be permitted to combine 
several kinds of action as one in tort, one for money demand on 
contract, and one in equity. Supervisors v. Decker, 30 Wis. 624; 
Schuenert v. Koehler, 23 Wis. 523; Rothe v. Rotlie, 31 Wis. 570; 
Anderson v. Case, 28 Wis. 505; JoJiatmeson v. Borsckenius, 35 Wis. 
136; DeGraw v. Elmore, 50 N. Y. i; Ross v. Mat/ier, 51 N. Y. 108; 
Walter v. Bennett, 16 N. Y. 250. In the present case the wrong 
done is the conversion of plaintiff's property, not the mere breach 
of an agreement to deliver property to him. Smith v. Hall, 57 
N. Y. 48. The counterclaim sets out facts showing plaintiffs 
ownership — the conversion and the value of the boat. It is true 
plaintiff might have waived the tort and sued upon an implied 
contract. Star Cash Car Co, v. Reithart, 20 N. Y. S. 872; Norden v. 
Jones, 33 Wis. 600. But the allegations do not admit of such con- 
struction. The counterclaim does not set forth a violation of 
any contract right, but the violation of a non-contract right. 
Schtuncrt v. Koehler, 23 Wis. 523; Smith v. Hall, 67 N. Y. 48; 
Edgerton v. Page, 20 N. Y. 281; TJiorpe v. Philbin, 3 N. Y. 
S. 939; Boreal v. Lawto7i, 90 N. Y. 293; Woodruff v. Gamer, 
27 Ind. 4; Peo. V. Detttdson, 84 N. Y. 272. The counterclaim does 
not state a cause of action connected with the subject of the 
action. Tfiorpe v. Philbin, 3 N. Y. S. 939; Burgman v. Burr, 46 N. 



BRAITHWAITE V, AKIN. 367 

W. Rep. 644; RotJuhild v. Whitman, 30 N. E. Rep. 858; Edgerton v. 
Page, 20 N. Y. 281; Woodruff v. Gamers 27 Ind. 4. The subject 
of an action is either property (as illustrated by a real action) or 
a violated right. The Glenn & Co, v. Hall, 61 N. Y. 226; Wood- 
ruff V. Gamer, 27 Ind. 4. 7 Abb. Pr. 372. 

Geo, W, Newton, for respondent. 

The counterclaim in question shows a breach of the contract 
alleged in the complaint as the basis of the claim in this action. 
At common law when the contract in suit laid mutual duties and 
obligations, the defendant was allowed to meet plaintiffs demand 
by a claim for breach of duty on his part. This was called recoup- 
ment and only reduced or extinguished the plaintiffs claim. Bliss 
Code PI. 370; Keyes v. Slate Co,, 34 Vt. 83. "Recoupment, a 
quasi off set of counterclaims not liquidated." Londonderry v. 
Afidover, 28 Vt. 416. It is a rule of strict justice and the deduc-- 
tion is allowed to prevent a circuity of actions. Florida R, R. Co, 
V. Smith, 21 Wall 255; Wenderv, Caldwell, 14 How. 434; Dermott 
V. Jones, 23 How. 220; Ingle v. Jones, 2 Wall. i. In tort by con- 
version of personal property, the plaintiff can waive the tort and 
recover for the value of the property converted as upon an 
implied contract to pay its value. Bliss Code PI. 381; Norden v. 
Jones 33 Wis. 600; Brady v. Brennan, 25 Minn. 210; Bank v. Bank, 
32 Hun. 105. 

Corliss, J. This case is no stranger in this court. In various 
forms it has already been before us several times. I N. D. 455, 
475, 48 N. W. Rep. 354, 361; 2 N. D. 57, 49 N. W. Rep. 419. On 
this appeal we have to deal with the rights of the interveners and 
the plaintiff. The defendants are no longer interested in the con- 
tests of the cause. Their liability to the plaintiff and the inter- 
veners has been finally established, and now the only strife is 
between the interveners and the plaintiff over the judgment they 
have recovered. By their complaint in intervention, the interve- 
ners have ingrafted upon the original suit another controversy. 
In that controversy they have become plaintiffs, and the plaintiff 



368 NORTH DAKOTA REPORTS. 

has become defendant. To their complaint in intervention, 
the plaintiff Braithwaite interposed an answer, which embodied 
two cou'nterclaims. Other matters appear in the answer, but 
upon this appeal we have to decide only the question whether 
these counterclaims set forth in the answer are such counterclaims 
as the defendant Braithwaite had a right to interpose to the claim* 
of the interveners. There is no contention that the first counter- 
claim does not contain facts si^fficient to constitute a cause of 
action; but it is urged that this claim which the defendant Braith- 
waite seeks to set off against the interveners* claim to the judg- 
ment is not a legal counterclaim under the statute. The question 
was raised in the court below by demurrer to the answer to the 
complaint in intervention. From the order overruling the 
demurrer the interveners have appealed. The judgment in favor 
of the plaintiff and the interveners over which this contest is 
'pending, was recovered in an action for freight earned by the 
plaintiff Braithwaite in the transportation of army stores for the 
defendants from Bismarck to Ft. Buford, by the steamer Eclipse. 
The interveners* alleged interest in the judgment grows out of a 
written contract, which is fully set out in the opinion of this court 
in the case of Braithwaite v. Akin, i N. D. 475, 48 N. W. Rep. 
361. The substance of the agreement was that the interveners 
and the defendant Braithwaite were to contribute in cash certain 
sums of money with which to purchase the steamer Elipse, which 
was about to be disposed of at judicial sale, the interveners being 
interested in making this purchase because of claims held by 
them against the steamer, which would be cut off and rendered 
valueless by the sale. So far as they were concerned, their sole 
purpose in entering in the arrangement was to save, if possible, 
the money which they had theretofore ventured on the security 
of the boat. With the fund so created, the defendant Braithwaite 
was to attend at the marshal's sale, and buy the boat, taking the 
title in the name of himself and the intervener Joseph McC. 
Biggert as trustee. Under this purchase the boat was to be run 
by Braithwaite as captain and Biggert as financial agent; and out 



BRAITHWAITE V, AKIN. 369 

of her earnings the claims of the interveners were to be paid in 
full, and also the sums contributed by them to the purchase fund; 
and thereafter the Eclipse was to be the absolute property of 
Braithwaite and Biggert. The interveners claim that they have 
not been paid in full, and that the judgment for freight earned by 
the steamer under this contract, or some part of the judgment, 
belongs to them, and they ask for an accounting. It is obvious 
that the interveners' cause of action against Braithwaite, set forth 
in the complaint in intervention, is upon contract. The counter^ 
claim interposed is for the conversion of the steamboat Eclipse 
by the interveners. The defendant Braithwaite seeks to recover 
against these wrongdoes the value of his half interest on account 
of such conversion. 

The right to set up a counterclaim rests upon statute, except in 
those cases which are peculiar in their nature. In those cases, 
equity, to prevent injustice, will allow counterclaims which the 
law ignores. Our first inquiry is whether the defendant Braith- 
waite has a right to set up this tort as a counterclaim under the 
statute? This brings us to the statute itself. It provides: "The 
counterclaim mentioned in the last section must be one existing 
in favor of a defendant and against a plaintiff, between whom a 
several judgment might be had in the action, and arising out of 
one of the following causes of action: First, A cause of action 
arising out of the contract or transaction set forth in the com- 
plaint as the foundation of plaintiff's claim, or connected with the 
subject of the action. Second, In an action arising on contract, 
any other cause of action arising also on contract and existing at 
the commencement of the action." Section 4915, Comp. Laws. 
Under the second subdivision, any other cause of action arising on 
contract would constitute a good counterclaim. It is contended 
that the defendant Braithwaite had a right to waive the tort 
involved in the conversion of his interest in the steamboat, and 
sue in the assumpsit. The averments of the counterclaim would 
not bring him within the rule that a tort may be waived, as it is 

N. D. R. — 24. 



370 NORTH DAKOTA REPORTS. 

laid down in many of the cases. The doctrine that the injured 
party may waive the tort and sue in assumpsit is limited by these 
decisions to cases where the wrongdoer has sold the property, 
and received therefor money or money's worth. Jofies v. Hoar, 5 
Pick. 290; Mhoon v. Greenfield, 52 Miss. 434; Willet v. Willet, 3 
Watts, 277; Steams v. Dillingham, 22 Vt. 624; IValsoft v. Stever, 25 
Mich. 387; Balch v Patiee, 45 Me. 41 ; Kidney v. Persons, 41 Vt. 386; 
I Am. & Eng. Enc. Law, 888; cases in note to Webster v. Drink- 
water, 17 Am. Dec. 242; Tuttle v. Campbell, 74 Mich. 652, 42 N. W. 
Rep. 384; Moses v. Arnold, 43 Iowa, 187. There is no allegation in 
the answer that the interveners ever sold the steamboat, or in any 
manner received money or money's worth for her. But we are of 
opinion that this limitation of the doctrine that the tort may be 
waived is without foundation in reason or principle. The whole 
doctrine is built upon a fiction. It asserts that what was done in 
defiance of the owner's rights was in law done with the most per- 
fect regard for his rights; that the wrongdoer has received the 
money for the owner, or that he has bought the property from 
the owner at its fair value. This fiction is indulged only in the 
interests of the owner, and it rests upon the receipt by the wrong- 
doer of benefits accruing to him from his wrongful acts. Where 
no benefits are received, the liability is only for the wrong. As 
this right in the injured party to turn the tort liability into a con- 
tract liability stands upon the receipt of benefits by the wrong- 
doer, is it not beneath the dignity of any tribunal to draw a dis- 
tinction between the receipt of benefits in the shape of cash and 
the receipts of benefits in the form of property? In our judg- 
ment, the fact that a sale has not been made is unimportant. Not 
only upon sound principle, but also upon the foundation of strong 
authority, do we establish the rule in this state that the owner of 
property converted may waive the tort and sue in assumpsit for 
the benefits received whenever the tort feasor receives benefits of 
any kind from the wrong committed, whether by sale or by reten- 
tion of the converted property, or in any other manner. Nordcn 
V. Jones, 33 Wis. 600-604; Hill v. Davis, 3 N. H. 384; Stockctt v. 



BRAITHWAITE V, AKIN. 371 

Watkins, 2 Gill & J. 326-342; Barker v. Cory, 15 Ohio, 9; Berley v. 
Taylor, 5 Hill, (N. Y.) 583; Terry v. Hunger, 121 N. Y. 161, 24 N. 
E. Rep. 272; Frattw, Clark-, 12 Cal. 89. See note to Webster v. 
Drinkwater, 17 Am. Dec. 244. That the claim of defendant 
Braithwaite to recover in assumpsit the value of his interest in the 
boat would have been a good counterclaim had he waived the tort 
and sued in assumpsit cannot be doubted. When the tort is 
waived, the claim rests in contract, as well for the purpose of 
making it a cause of action arising on contract within the statute 
regulating counterclaims as for other purposes. In fact, the sole 
object in waiving the tort is often for the purpose of enabling Jthe 
injured party to set up his claim as an olEfset, when, without such 
waiver, he could not, because of its tort nature, use it as a coun- 
terclaim. Norden v. Jones, 33 Wis. 600; Coit v. Stewart, 50 N. Y. 
17; Brady v. Brenfian, 25 Miitn. 210; Car Co. v. ReifJiardt, (Com. 
PI. N. Y.) 20 N. Y. Supp. 872; Wood v. Mayor, 73 N. Y. 556; 
Bafnes v. McMullins, 'jZ Mo. 260; Becker v. Northway, 44 Minn. 61, 
46 N. W. Rep. 210; Evans v. Miller, 58 Miss, 120; Pom. Rem. & 
Rem. Rights, § 801. * 

It remains to be considered whether the defendant Braithwaite 
has elected to waive the tort and sue in assumpsit. The portion 
of the answer material to this inquiry contains the following aver- 
ment: **That, notwithstanding the interveners forcibly and 
wrongfully seized and took possession of said boat, her tackle, 
apparel, furniture, machinery, papers, books, stores, and merchan- 
dise, and forcibly and wrongfully dispossessed tne plaintiff of the 
same, and there and then wrongfully converted the same to their 
own use at Bismarck, aforesaid." There are other allegations in 
the counterclaim, but none of them throw any light upon the 
subject of the election of the defendant Braithwaite to waive the 
tort; nor are there any allegations of a sale of the property by the 
defendant Braithwaite, or that other interveners undertook or 
promised to pay for Braithwaite's interest in the boat the value 
thereof or any sum whatever. The other averments of the count- 
erclaim, so far as these matters are concerned, might as well have 



372 NORTH DAKOTA REPORTS. 

been omitted from the answer. They are mere surplusage. The 
substance of them is that, while Braithwaite was performing his 
part of the contract, the interveners seized the boat wrongfully. 
It was just as much a conversion for them to seize under these 
circumstances as it would have been had there been no agreement 
between the parties. The act was as much a tort as though a 
stranger to the contract had seized the boat. There being no 
averment of an election to waive the tort, and there being noth- 
ing in the pleading to warrant a recovery in assumpsit, — the 
allegations being those which are peculiarly adopted to the aver- 
ment of a cause of action for conversion, — we cannot treat the 
counterclaim as setting up a cause of action arising on contract. 
That the pleading should clearly show that the party elected to 
stand upon contract, and not upon the tort, is apparent when we 
consider the consequences which flow from a judgment for a 
wrong. Execution may issue against the person. Sections 
4945, 5115, Comp. Laws. If allowed, through error of the court, 
to use the tort as a counterclaim, on the ground that no waiver 
was necessary, could he not, after a judgm'ent in his favor, proceed 
against the person of the debtor under the judgment? Nor 
would it do to answer that, by using the tort as a counterclaim, 
he had manifested his election to stand upon contract, for there 
are many cases in which a tort may be used as a counterclaim 
under the statute. In such cases the interposition of a cause of 
action for a wrong as a counterclaim would not indicate a pur- 
pose to waive t^te tort. The right to a body execution would 
therefore involve an inquiry whether the cause of action for 
the wrong could have been set up as a wrong against the plain- 
tiff's cause of action. This right would never depend upon the 
construction of the pleading alone when judgment had been 
recovered by a defendant upon a counterclaim, while it would 
depend entirely upon such construction whenever judgment 
should be recovered by a plaintiff in an action founded on a 
similar cause of action. In the latter case the court would look 
only to the complaint to see whether the tort had been waived. 



BRAITHWAITE V, AKIN. 373 

To allow the defendant to insist upon a constructive waiver would 
violate the fundamental law of pleading. The answer must set 
up the fact3 constituting the counterclaim. But facts which show 
a cause of action for a wrong do not make out a case in assump- 
sit, and, unless the case is in assumpsit, there is no legal counter- 
claim. To establish a cause of action in assumpsit, the waiver 
must be averred either expressly or by the manner of stating the 
cause of action, for without the waiver no cause of action in 
assumpsit arises. It is not the wrong which gives the injured 
party the right to sue on contract; it is the wrong, coupled with the 
waiver of the tort. The waiver is an indispensable element in the 
cause of action. That the counterclaim was for conversion does not 
admit of doubt. See Smith v. Frost, 70 N. Y. 71 ; Smith v. Hall, 67 N. 
Y. 48; Anderson v. Case, 28 Wis. 505. The case oi Austin v. Rawdon, 
44 N. Y. 63, has been cited to sustain the defendant's contention that 
he has set up a cause of action arising on contract. Other cases 
might be added to this to support the doctrine which it enunci- 
ates. We cite a few: Conatighty v. Nichols, 42 N. Y. 83; Tubman 
v. Steamship Co,, 76 N. Y. 211; Neftel v. Lightstone, JJ N. Y. 99; 
Goodwin v. Griffis, 88 N. Y. 629; Becker v. Northway, 44 Minn. 61, 
46 N. W. Rep. 210. But these cases decide nothing contrary to 
the conclusion we have reached. They merely hold that, where 
the pleading contains a good cause of action for breach of con- 
tract, the addition of works or of allegations which are appro- 
priate to a cause of action for a wrong does not change the action 
from tort to contract. They were cases where the pleader had a 
cause of action for breach of contract without any waiver of tort; 
but the same act which gave him such cause of action constituted 
also an actionable wrong. It was therefore necessary for him to 
elect which remedy he should adopt, but it was not necessary for 
him to waive a tort before he could sue on contract. He was 
held in these cases to have made his election not to proceed for 
the tort, and the mere presence in the pleading of words germane 
to an action for a wrong was properly held not to overthrow the 
main purpose of the pleader to sue on contract. In case of doubt 



374 NORTH DAKOTA REPORTS. 

the courts incline against construing the pleading as embodying a 
cause of action for a tort. Goodwifi v. Griffis, 88 N. Y. 629, 639, 
640. And, under such circumstances, authority and reason sup- 
port the rule that where the answer is susceptible of either con- 
struction, the defendant, by using his cause of action as a counter- 
claim in a case where it would be a valid counterclaim only on 
the basis of an election to counterclaim for breach of contract, 
evinces his election to hold the plaintiff responsible for the viola- 
tion of his contract, and not for the tort. Becker v. Northway, 44 
Minn. 61, 46 N. W. Rep. 210. Whether defendant can now waive 
the tort by amending his answer is not before us for decision, but 
there seems to be strong authority against his retracing his steps 
in pleading under such circumstances. The cases appear to hold 
that the election is irrevocably made when the plea'ding is served, 
provided the pleader has full knowledge of the facts. We do not, 
however, wish to foreclose this point before it arises, and there- 
fore refrain from expressing any opinion on it. We merely cite 
the decisions which hold that the election, when once made, is 
final. Terry V, Hunger y 121 N. Y. 161, 24 N. E. Rep. 272, and 
cases in note to Fowler v. Bank, [21 N. E. Rep. 172,] 10 Am. St. 
Rep., at pages 487 to 494. 

Having reached the conclusion that the counterclaim was not 
proper under subd. 2 of §4915, wc will now inquire whether it 
comes within the provisions of the first subdivision. Does the 
counterclaim arise out of the contract or transaction set forth in 
the interveners' complaint as the foundation of their claim to this 
freight money? The contract which is the foundation of this 
claim is the written agreement already referred to. The wrong- 
ful seizure of the boat does not arise out of that contract. The 
seizure was independent of that agreement. It had no more con- 
nection with the contract than a seizure by a third person would 
have had. Is it in any manner connected with the subject of the 
action? The words "subject of the action" are of rather indefi- 
nite significance. In our judgment the subject of the interveners' 
intervention is their right to the earnings of the boat under this 



BRAITHWAITE V. AKIN. 375 

agreement until they are fully paid. The only possible theory on 
which it can be said that the cause of action for the conversion of 
the boat is connected with the interveners' right to the boat's 
earnings is that there was an implied engagement on the part of 
the interveners not to interfere with defendant's right of posses- 
sion while he was managing the boat under the contract. But we 
do not think that any such implied agreement can be said to have 
existed, imposing any different obligation upon the interveners 
than rested upon every other person, L e\ the obligation under the 
law not to disturb the defendant in the control of his own prop- 
erty. Even one who sells property to another cannot be said to 
have agreed, as part of the contract of sale, that he will not dis- 
turb the vendee in his possession. When the vendor has per- 
formed his part of the agreement, the contract is executed so far 
as he is concerned, and cannot thereafter be broken by him. If 
he subsequently seizes the property, and converts it to his own 
use, he is not liable for breach of his contract of sale or any of 
the terms thereof, but merely as a wrongdoer, independently of 
any agreement, — liable in the same manner as a stranger to the 
agreement would have been, and in no other way. We hold that 
the cause of action for the conversion of the boat had no connec- 
tion, however slight, with the interveners' right to the boat's earn- 
ings; and no mere partial or remote connection will suffice to 
bring the case within the statute. The connection must be imme- 
diate and direct. Pom. Rem. & Rem. Rights, § 776. Without 
attempting to lay down a general rule by which future cases are 
to be governed, we refer to the following decisions as sustaining 
our views on this point: Bazemore v. Bridges, (N. C.) 10 S. E. 
Rep. 888; Humbert v. Brisbane, 25 S. C. 506; Manufacturing Co, v. 
Hall, 61 N. Y. 226; Woodruff v. Gamer, 27 Ind. 4; Thorpe v. Phil- 
bin, (Com. PI. N. Y.) 3 N. Y. Supp. 939; Edgerton v. Page, 20 N. 
Y. 2Z\\ Rothschild v. Whitman, (N. Y. App.) 30 N. E. Rep. 858; 
Brugmann v. Burr, (Neb.) 46 N. W, Rep. 644; Wardv, Blackwood, 
(Ark.) 3 S. W. Rep. 624; MacDougall v. Maguire, 35 Cal. 274. 
Can the counterclaim be sustained as a set off in equity? We 



3/6 NORTH DAKOTA REPORTS. 

think it cannot, for two reasons. In the first place there is no 
fact averred in the answer calling for the application of the liberal 
doctrine of equity jurisprudence on this subject. There is no 
allegation that the interveners are insolvent. It is true that they 
are nonresidents, but the mere inconvenience of being com- 
pelled to resort to a foreign jurisdiction is not sufficient to call 
into operation those equitable rules which grafted upon the com- 
mon law the civil law doctrine of compensation in a modified 
form. Smith v. Gaslight Co., 31 Md. 12; Murray v. Toland, 3 
Johns. Ch. 569; Tone v. Brace, 8 Paige, 600. See, also, Stonemetz 
Printers' Machinery Co. v. Brawn Folding Mach. Co., 46 Fed. Rep. 
854. Equity follows the law as to set offs unless insolvency or 
or some other fact calls for the application of a more liberal rule 
to prevent injustice. This rule is elementary. Duncan v. Lyon, 
3 Johns. Ch. 351; 2 Story, Eq. Jur. § 1434; Abbott v. Foote, 146 
Mass. 333, 15 N. E. Rep. 773. Mere nonresidence of the parties 
is not such a fact. But, even if we should hold that a special 
equity in favor of the defendant was created by the fact that the 
interveners resided in another state, our conclusion would not be 
different. The doctrine of set off, as applied in equity, relates 
only to claims arising on contract. Equity has never set off a 
cause of action for tort against a debt. The doctrine was borrowed 
from the civil law doctrine of compensation. Duncan v. Lyon, 3 
Johns. Ch. 359; 2 Story, Eq. Jur. § 1440. No mention of setting 
off a claim for damages because of a wrong against a defendant 
can be found in the civil law. "Under Justinian the debts were 
held to operate as mutually extinguishing each other ipso jure. 
When the parties came before the judix, he ascertained their 
respective claims on each other, and, if there was on the whole a 
balance in favor of the plaintiff, awarded the amount to him. All 
the old distinctions were done away, and it no longer made any 
difference whether the two debts arose from the same transac- 
tion, or whether things of the same kind were payable. [The 
words 'ex eadem causa! in text arc therefore, under Justinian's 
legislation, inaccurate.] But Justinian made it requisite that the 



BRAITHWAITE V. AKIN. 377 

defendant's claim should be clearly well founded, and that the 
amount should be at once ascertainable, and not need further 
inquiry to determine it, and he would not allow any set off .to 
an actio deposited Sandar's Just, p. 541. Here is no mention of 
tort. The doctrine related exclusively to debts, and the amount 
of these debts must have been fixed or capable of ascertainment 
by computation. It has never been pretended that the English 
chancellors went beyond the civil law in relation to set off. Judge 
Story deprecates their refusal to go as far. He says: "The 
general equity and reasonableness of the principles upon which 
the Roman superstructure is founded make it a matter of regret 
that they have not been transferred to their full extent into our 
system of equity jurisprudence." 2 Story, Eq. Jur. § 1444. The 
absence of any decision sustaining the power of equity to set off 
a tort claim against a debt is very persuasive that no such power 
existed, but the question is rescued from all doubts by the cases. 
"Set off in equity is allowed upon the same general principles as 
at law. There must be mutuality in the demands, and the amounts 
should be liquidated and certain; and, while the practice inequity 
may be more liberal than at law in respect to mutual credits, set 
off can no more be allowed in equity than at law in cases of 
demands for uncertain damages as on breaches of covenant or for 
torts." See, also, Duncan v. Lyon, 3 Johns. Ch. 359; Dugan v. 
Cureton, I Ark. 31; Chambers v. Wright, 52 Ala. 444; Price v. Lewis, 
17 Pa. St. 51. Neither can it be said that, irrespective of the rules 
regulating set offs and counterclaims, the court, in adjusting the 
rights of the parties to this fund, can take into consideration this 
independent tort. If it was a tort connected with the matter as 
to which the accounting is to be had, there would be force in the 
the contention. In an action to redeem from a mortgage, the 
mortgagee in possession may be compelled to account for injury 
done to the freehold; and in such a proceeding all matters will be 
inquired into which go to determine the rights of the parties with 
respect to the mortgage debt and the land. But in such an action 
an independent tort would not be considered. The conversion 



378 NORTH DAKOTA REPORTS. 

of this boat was in no manner connected with the agreement 
between the parties, or their rights and duties thereunder, or the 
claim of the interveners for the earnings of the boat. So far as 
such connection is concerned, the case would have been the same 
if they had seized other property belonging to the defendant. By 
the seizure of the Eclipse they violated no provision of their 
agreement. They invaded the defendant's rights as owner. But 
those rights were not secured to him by the contract. He 
obtained them by virtue of his purchase of the boat at the mar- 
shal's sale. The agreement gave Jiim no title to the boat. By it 
the interveners did not agree to defend him in that title; nor did 
they promise not to molest him in his ownership. They merely 
agreed to furnish him certain money to enable him to buy the 
vessel, and thereafter he was to run the boat in their interests until 
their advances and their old claims against the boat were fully 
paid. Whatever rights he enjoyed as owner the parties left to 
the protection of the same law which protects all persons in the 
ownership of property. The act of the interveners in converting 
the boat had a twofold effect, — it affected the defendant Braith- 
waite's rights as owner, and it affected his interests under the 
contract. So far as it invaded his rights as owner, the act had no 
connection with the rights of the parties under the contract. 

What rights of the defendant under the agreement did it in- 
terfere with? This brings us to the second counterclaim. It is 
for the loss of a year's wages which it is claimed defendant would 
have earned had he run the boat as captain under the agreement. 
But the interveners nowhere in the writing agree to pay the 
defendant any stipulated wages. He is merely to receive $150 
out of the earnings of the boat. It cannot be said that the parties 
intended, if defendant ran the boat at a loss, that they should 
nevertheless pay this salary out of their own means. Nor is there 
any time specified during which defendant is to receive this 
salary. If he can recover a year's pay, why not two years' pay as 
well? This claim is founded in a mistaken construction of the 
agreement. The interveners did not hire defendant to run his 



BRAITHWAITE V. AKIN. 379 

own boat for any specified period. They were providing for the 
payment of their claims, and, as defendant must have some income 
qn which to live, they allowed him to pay $150 per month less 
out of the boat's earnings on their claims than he would have 
paid had no such provision been inserted in the agreement. But 
in the end they were to receive only so much money, .and the 
defendant was, by turning over these earnings, only paying 
for his interest in the boat. The interveners might at any 
moment have waived the performance by defendant of the obliga- 
tion to pay them the boat's earnings, and no one would dream 
that they would have been bound to keep on paying his monthly 
salary; or they might have prevented such performance without 
being liable for his salary in the future. The mere fact that their 
act preventing performance rendered them liable for the conver- 
sion of the boat did not increase their liability under the contract. 
There is no other possible interest of the defendant under the 
contract which could be effected by the seizure of the boat. The 
interveners had fully performed their part of the agreement. As 
to them the contract was executed. They could not violate an 
engagement they had already performed. Whatever remained to 
be done under the agreement was to be done by the defendant. 
Exonerating him from the performance of those executory condi- 
tions would be a benefit, and 'not a detriment. We are therefore 
of opinion that the demurrer to the two counterclaims should 
have been sustained, and the order overruling the demurrer is 
therefore reversed. 

There is another question which was not discusssed, but which 
may arise on the trial of the issues between the interveners and 
the defendant. We wish to settle it now to the end that no 
further appeal need to be taken to settle it in the future. Includ- 
ing this appeal, there have been four appeals in the case. This 
would seem to be sufficient for one litigation. The question to 
which we refer is whether there can be an affirmative judgment in 
favor of defendant Braithwaite in case the evidence should dis- 
close the fact that not only were the interveners not entitled to 



380 NORTH DAKOTA REPORTS. 

any of the proceeds of the judgment, but that they were indebted to 
the defendant because of any matters growing out of the trans- 
action. The theory of an intervention is that the interveners 
become plaintiffs to the extent of their intervention against the 
parties to the original action against whom their claim is made. 
It is an action within an action. We are clear that, when these 
interveners sought to recover this freight money as against 
Braithwaite, they opened for final determination all matters which 
could have been litigated between the parties had they brought 
an action to compel him to account for and pay over the money 
after he had collected it. The code seems to settle this point. In 
case of intervention the parties to the action against whom the 
interveners make their claim are allowed to answer or demur to 
the complaint as if it were an original complaint. Comp. Laws, § 
4886. He may therefore not only go into the case fully in his 
answer, but he may do what any other defendant may do, i. e, set up 
a counterclaim, and recover an affirmative 'judgment. The hard- 
ship, if not the injustice, of any other rule, is apparent. Were 
defendant not allowed to have judgment against the interveners, 
then he might be compelled to litigate the same question against 
them twice to secure relief. It is only by an examination into all 
matters between these parties that it can be determined whether 
the interveners are entitled to the proceeds of the judgment or of 
any portion thereof. Such an investigation might disclose the 
fact that they had been overpaid through mistake or fraud. Must 
the defendant, after showing that they were indebted to him in a 
certain sum, see the interveners dismissed by the court from the 
jurisdiction without his obtaining any redress from the court, and 
be forced to sue them, and travel over the same weary, tedious, 
and expensive route to secure relief? It would be a reproach to 
the administration of justice to so sacrifice substance to form, 
without a single reason to justify or excuse the sacrifice. When 
persons intervene in an action, they assume the position of plain- 
tiffs against those who arc called up to answer their complaint in 
intervention, and they are subject to all the rules which regulate 



BRAITHWAITE V. AKIN. 38 1 

pleading and practice between plaintiffs and defendants in similar 
cases. So the statute, in effect, declares. The rule is practicable 
and just; and it is supported by authority. Bank v. Weems, 69 
Tex. 489, 6 S. W. Rep. 802. This was an action brought by stock- 
holders of the City Bank of Houston to have it dissolved, and for 
tke appointment of a receiver, and the distribution of its assets 
among its creditors and stockholders. The Continental National 
Bank of New York intervened in the action as creditor of the 
City Bank 6f Houston, claiming priority of payment. The 
receiver set up a claim of the City Bank against the Continental 
National Bank for paper sent by the former bank to the latter 
bank for discount, which the latter bank had refused to discount, 
but which it was collecting, appropriating the money to its own 
use. Judgment was rendered against the intervener bank, in 
favor of the receiver, upon this counterclaim, and on appeal this 
affirmative jujdgment was sustained, the court saying: "We are 
of opinion that, although this proceeding was an intervention in 
another suit, and was a mere outgrowth of the original action, 
yet, appellant (the intervener) having sought the jurisdiction of 
the court to establish equities against the estate in the hands of 
the receiver, it was proper to allow the latter to reconvene and 
set up all the rights of the insolvent corporation growing out of a 
continued course of dealing under one general agreement. It 
was not error for the court to adjust the equities between the two 
banks, and to state the amount, and give judgment for a balance 
found in favor of the insolvent bank." 
The order overruling the demurrer is reversed. All concur. 

(56 N. W. Rep. 133.) 

Note: See for other features of this ligation. Rae v. Eclipse, 30 N. W. Rep. 
159. The Steamer Eclipse, 135 U. S. 590, S. C. 10 S. C. Rep. 873. 



382 north dakota reports. 

Thomas Hodgins vs. The Minneapolis, St. Paul and Sault 
Ste. Marie Railroad Company. 

Opinion filed July 7th, 1893. 

Stock Killing Cases — Prima Facie Case — Negligence-— Evidence. 

Where an action is brought against a railroad company for the negligent kill- 
ing of a domestic animal, the plaintiff can, if he sees fit to do so, make out a 
prima facie case without showing actual negligence, by proving the value of 
the animal and the fact that it was killed by defendant's train of cars; but in 
such case, if the defendant, to overcome the statutory presumption of negligence 
arising from the killing, shows conclusively by undisputed evidence that the 
train in question was at the time of the accident in good repair and condition, 
and was equipped with the best modern appliances and improvements in use, 
and was operated skillfully and with due care, then, and in. such case, the sta- 
tutory presumption of negligence arising from the killing is rebutted and entirely 
overcome; and where in such case, at the close of the testimony, defendant 
requested the trial court to direct a verdict for the defendant, and the court 
refused to do so, heldy that such refusal was reversible error. 

Appeal from District Court, Dickey County; Latider, J. 

Action by Thomas Hodgins against the Minneapolis, St. Paul 
& Sault Ste. Marie Railroad Company for the killing of plaintiff's 
horse. Judgment for plaintiff. Defendant appeals. 

Reversed. 

A. D, Flemingto?i diVid A, H. Bright, for appellant. 
W, H. Rowe and Jas, M. Austin, for respondent. 

Wallin, J. This action is brought to recover damages for the 
killing of plaintiff's horse. The horse was killed in the evening, 
at about 8:45 o'clock, on May 24th, 1896, by being run over by 
defendant's locomotive. The accident occurred on a bridge at a 
crossing of the Maple river, a short distance east of Boynton 
station, in Dickey County. When struck by the locomotive, the 
hind legs of the horse had slipped through the ties of the bridge, 
so that the animal could not extricate them, and the horse was 
partly on the railroad track and partly off the track and on the 
bridge. The animals head was facing the west, and the locomo- 
tive and train were going east. The train, besides the locomotive 



HODGINS V. RAILROAD COMPANY. 383 

and tender, consisted of two coaches, viz: a passenger car and a 
sleeper. Plaintiff, without proving actual negligence, made out a 
prima facie case, under the statute, by showing the killing of the 
horse by being run over by the defendant's locomotive, and the 
value of the animal. To rebut the presumption of negligence 
raised by the statute from the mere fact of killing, the defendant 
introduced as witnesses the men who had charge of the train in 
question, viz: the engineer, firemen, and conductor. The engineer 
testified, in substance, that he had been an engineer nine years, 
and in defendant*s employ six years, and that there were no 
demerit marks against him as an engineer; that the train in ques- 
tion was ' a special train drawn by a lo'comotive then newly 
repaired, and in good condition, and was equipped with all the 
appliances in use at the time and all the modern improvements, 
and that there were air brakes on the engine, tender, and coaches. 
After leaving the station, at 8:35 p. m., the train ran for some miles at 
the rate of about twenty miles an hour until it came upon a rough 
piece of road, and, while running over that, the rate was about 
fifteen miles an hour, to a point on the road distant about one-half 
mile from the bridge in question, and from there the speed was 
quickened to about twenty miles an hour, until the horse was 
seen by the engineer and fireman. *'Q. How about the lookout? 
A. I had my lookout all the time. Just before I got to the rough 
place, I got to the window, and was looking out of the window. 
Q. Go on now, and state further. A. When we got down very 
near the bridge, I saw an object, right side, as I supposed was 
the number board. As I got very near to it, it moved. By the 
Court: Q. You supposed it was what? A. I supposed it was the 
number plate of the bridge. It was a white plate, with figures on 
it. White board, about that wide. * ♦ * A. As I got very 
near the bridge, I saw the object move, and I discovered it was a 
horse; raised his head up, and threw one leg over the rail. Q. 
Where was he lying? A. He was lying between the guard rail 
of the bridge and the rail on which the engine runs, outside of 
the track. Just as he made a lunge, he threw one leg over the 



^jfi^.iwr 



384 NORTH DAKOTA REPORTS. 

rail, which cut off one hoof. He threw his head out, and the 
engine trucks, and pilot pushed him along. Q. When you saw 
this motion, what did you do? A. Did all possible to stop. Q. 

What was that? A. Put the air on, and made a to stop. 

I reversed my engine on sand, putting her on the back 
motion; made what is called an *immergency stop.' Q. What 
effect would that have on the brakes and wheels? A. It would 

have a great — . Q. Would it stop the wheels? A. It would 

stop the wheels. It would help to stop the train speed. The 
motion of the wheels going ahead, the reverse of the engine would 
have the effect to drive the wheels opposite to the head motion. 
Q. And it would have a tendency to shove the train back? A. 
Yes sir. Q. After you saw this horse, was there anything else 
you could have done to have stopped this train? A. No sir. Q. 
You made what you call an 'emergency stop?' A. Yes sir. Q. 
I will ask you, until you saw the horse raise his head, and throw 
its leg over the rail, was the track clear? A. The track was clear. 
Q. Clear across the bridge? A. Ves sir. Q. Now, if I under- 
stand you, you mean that no part of the horse's body,. — that no 
part of the horse was lying between the rails? A. No. sir. Q. 
How far is the outer rail from the guard rail, as you call it? A. 
The guard rail is put on the outside of the bridge tie, so as to 
hold them from slipping endways. It is a wooden guard rail. Q. 
How far from the rail? A. I think it is calculated to be three 
feet. Q. When you saw this horse, what did you see in the way of 
danger to yourself that it amounted to? A. I knew right off that 
there was great danger there. If the horse had been between the 
rails, I should have been almost tempted to jump off. Q. And 
you say that the train and the people on it were in danger of their 
lives? A. Yes sir. Q. What was the color of the horse? A. 
White. Q. What was the color of the number board? A. White. 
Q. What was the firemen doing? A. Keeping a lookout. Q. 
Do you know when he recognized this object? A. At the same 
time that I did. He had just about half the words out of his 
mouth, saying 'Ho,' when I saw it. Q. How many feet were you 



HODGINS V. RAILROAD COMPANY. 385 

from the horse when you applied the brakes? A. I should judge 
between six and seven hundred feet. I would say between six 
and seven rods. Q. Or how many feet. A. About 114- 15 feet. 
Q. State whether or not this is a long or short distance to stop a 
train in of that kind. A. A short distance to stop a train of that 
kind. Q. About what rate were you running at the time you saw 
the horse? A. Twenty miles an hour. Q. About what rate 
when you struck? A. About five. Q. You stopped, did you? 
A. Yes sir.. Q. Was there any one there when you stopped? A. 
No one there when I stopped." The witness further testified 
that the train reached the bridge about 8:45 p»m., and that it was 
dusk, but not dark, at the time; that the lights oh the train were 
lighted at the last station, Boynton, some three miles distant; 
and that the headlight is not much of a light until darkness 
comes. "Q At that time of day, how far could you see along the 
track? A. Not over one hundred and fifty feet. Q. Could you 
stop a train of three coaches with the latest improved air brakes 
in going the length of the train? A. Yes sir." 

The testimony of the conductor, so far as it bears on the points 
made in the assignments of error, corroborates that of the 
engineer, but the appellant claims that there is a material conflict 
in the testimony of the fireman and engineer as to where the train 
was with reference to the position of the horse when the horse 
was discovered by the engineer and fireman. It will be necessary 
to consider this feature of the fireman's testimony, which is as 
follows: "Q. Where were you, and what were you doing, on the 
evening of May 24th or 25th, 1890, the time of this accident? A. 
I was firing with Mr. Furtny [the engineer] on a special." Speak- 
ing of a point about a half a mile from the bridge, the witness 
was asked: "Q- From this time on until the engine struck the 
horse, what were you doing? A. Sitting on the seat. Q. Where 
was that? A. Left hand side of the engine. Q. What were you 
doing? A. Looking out of the window. Q. Were you constantly 
looking along the track? A. Yes sir. Q. How far was this from 
the bridge? A. About a half a mile. Q. During that time, did 

N, D. R. — 25. 



386 NORTH DAKOTA REPORTS. 

you have. to put any fire in the firebox? A. No, sir. Q. When 
did you first discover the horse? A. When he raised his head. 
Q. Up to that time, was the track itself clear? A. Yes sir. Q. 
Well, what was done by the engineer? A. He blew the brake 
alarm, and reversed his engine, and gave her sand." The witness 
fully corroborated the engineer as to the appliances on the train 
and the good condition of the engine. He then testified as fol- 
lows: "Q. About how far do you think you were from the horse 
when these brakes were put on? A. I should judge about five or 
six hundred feet, — somewhere along there. Q. Now, in stating 
the distance the trtiin was from the horse, when I asked this 
question, I have reference to the distance that your locomotive 
was west of the horse when the brakes were applied. How 
far was that? A. I couldn't just tell. Q. How far do you think? 
A. Somewhere along between five and four hundred feet. That 
is what I thought it was. Q. How many times the length of the 
train do you think'it was? A. It was not over the length of the 
train. Q. Is that train nearly four hundred and fifty feet long? 
A. I do not think I understand the question. Q. I want to know 
how far it was from where the engine was, when the brakes were 
put on the engine, to the horse at the time. I asked you how 
many lengths of the train? A. It was not the length of the 
train. About the length of two coaches is what it was. By 
the Court: Q. How long is a coach? How many feet is a 
coach? Is it 200 feet long? A. I do not believe they are. Q. 
How many feet do you think the engine was from the horse when 
the brakes were applied? A. I couldn't say. Q. Of course you 
didn't measure it. Give an estimate. A. Well I did. Q. About 
four hundred feet? A. About four hundred feet. Q. Daylight 
or dusk? A. Dusk, — quite dusk. Q. Which one saw the horse first? 
A. That I couldn't say. Both saw it about the same time. I 
hadn't the words out of my mouth when he put the brakes on." 
The testimony showed that the grade approaching the bridge was 
30 or 35 feet to the mile; also that a passenger coach is 60 feet in 
length. As to the stop, the conductor testified: "It was a very 



HODGINS V. RAILROAD COMPANY. 387 

quick stop; almost threw me off my feet. When they applied the 
brakes first, I fell forward, and it almost threw me off my balance. 
A motion was made at the close of the case to direct a verdict 
for the defendant, which was denied, and in this court the ruling 
is assigned as error. We think the ruling was error. There was 
but a single point arising on the evidence. The court charged 
the jury as follows: "Now, gentlemen, there is just one question 
to determine in this case: Did those in diarge of that train use 
ordinary care to prevent the injury after they had discovered the 
horse? They had no right to anticipate, or, rather, there was no 
obligation upon them to anticipate,' that a horse or a person or 
anything else was upon the track. But, when they observed that 
a person or an animal is upon the track, it is their duty to exer- 
cise reasonable care to prevent injury to the horse or person, as 
the case may be." The charge was entirely correct, and laid 
down the well established rule and the rule applied by this court 
in Bostwick v. Railroad Co., 2 N. D. 440, 51 N. W. Rep. 781. But 
we think the case, as presented by the testimony, is one in which 
there was a complete failure of proof upon the vital point of 
negligence, and consequently a case where the responsibility of 
making a decisive ruling belonged to the court, and should not 
have been devolved upon the jury. In making out a prima facie 
case, no testimony tending to show negligence was introduced by 
the plaintiff. The fact of the killing, however, made out a case 
of legal or constructive negligence under the statute, which 
declares: "The killing or damaging of any horse, cattle or other 
stock by the cars or locomotive along said railroad or branches, 
shall be prima facie evidence of carelessness and negligence of 
said corporation." Comp. Laws, § 5501. But this court held in 
the case of Smith v. Railroad Co., 53 N. W. Rep. 173, that 
negligence which is constructive and 'legal, as contradistin- 
guished from actual negligence, may be overcome by proof of 
the exercise of due care on the part of the railway company, 
and that whether or not such constructive negligence has 
been overcome by testimony is always a question of law for 



388 NORTH DAKOTA REPORTS. 

the court, and not a question to submit to a jury. The defen- 
dant offered testimony to rebut and overcome the technical 
case of presumptive or legal negligence which the statute creates 
for plaintiff's benefit. In our opinion, the testimony was ample 
for this purpose, and went further, and demonstrated that the 
defendant was guilty of no negligence whatever in the premises. 
The testimony of the engineer, conductor, and fireman is not con- 
tradicted as to any material fact having reference to the degree 
of care used by the engineer and fireman in keeping a lookout, or 
in their strenuous efforts to avoid a collision after the peril to the 
horse and the train were discovered. Counsel for the respondent 
points to the discrepancy in the testimony of the fireman as to 
the distance of the horse from the engine at the time the air 
brakes were applied to stop the train. True, the fireman's ideas 
of distance between the engine and horse at that time, when 
expressed in feet, were confusing,* and apparently conflicting with 
the engineer's testimony upon the point. But it is clear that the 
conflict was apparent, and not real. The fireman said and reiter- 
ated, in substance, that the horse was not the length of the train 
away from the engine when the brakes were applied, and that the 
distance was about the length of two coaches. In this he agreed 
substantially with the engineer, and, as we have said, there is no 
evidence in the case tending to show that the distance was either 
greater or less than that testified to by both the trainmen. Negli- 
gence is a fact, and where, as in this case, it constitutes the gist of 
the action, it must be made out affirmatively by the plaintiff. In 
the case at bar we find no proof whatever of actual negligence, 
and hence we are of the opinion that the court erred in refusing 
to direct a verdict for the defendant. A new trial will be directed. 
All concur. 

(56 N. W. Rep. 139.) 



STATE V, BOUCHER. 389 

State ex rel Wm. H. Standish vs. Nelson F. Boucher. 

opinion filed May 9th, 1893. 

Trustees of State Institutions — Tenure of Office. 

Section I, Ch..93, Laws 1889, which provides for the appointment of trustees 
of the state institutions, including the penitentiary, examined and construed. 
The section contemplates that such trustees shall (except in cases of vacancy) 
be appointed by the concurrent action of the governor and senate, and, when so 
appointed, that such trustees shall continue in office, not only until the expira- 
tion of the prescribed term for which they are appointed, but beyond that 
period, and until their successors are chosen by the action of both the governor 
and senate. It is accordingly heldy that trustees who were appointed by the 
governor, and confirmed by the senate at its session in 189]^ for a term of two 
years, are lawfully entitled to hold over after the expiration of the term of two 
years for which they were appointed, notwithstanding the fact that the 
governor in due time nominated their successors, and the senate which assembled 
in 1893 adjourned without confirming them, or confirming any successors of 
the trustees appointed in 189 1. 

Expiration of Prescribed Term — When Vacancy. 

The expiration of the prescribed term, when coupled with the fact that the 
senate adjourned without confirming successors of trustees in office under a 
former appointment, will not operate to create a vacancy in the office, which, 
under the statute, can be temporarily filled by the governor. The vacancies 
contemplated by the statute are actual vacancies, and such as arise from death, 
resignation and like causes. 

Power of Governor to Fill Vacancies. 

Under § 78 of the state constitution, the appointing power of the governor is 
confined to filling vacancies in office in cases where no other mode is provided 
by the constitution or laws for filling the same. 

Appeal from District Court, Burleigh County; Winchester, J. 

Action by the State of North Dakota, on the relation of 
William H. Standish, as attorney general, and Daniel Williams, 
against Nelson F. Boucher, to try title to the office of warden of 
the state penitentiary. Judgment for defendant. Plaintiff appeals. 

Affirmed. . 

W, H, Standish^ Atty, General, for appellant. 

The executive possesses the power of removal from appointive 
offices and by appointing Ward and Taylor for the places 



390 NORTH DAKOTA REPORTS. 

that had been held by Donnelly and Van Horn as trustees 
of the penitentiary, this operated as a removal and created a 
vacancy, even had not that vacancy taken place by a previous 
lapse of their two years term. Territory v. Cox, 6 Dak. 5.01; 
BlaJse V. United States, 103 U. S. 227; Keenan v. Perry 24 Texas 
253; ^^ parte Hennen 13 Peters 259; Smythe v. Lalham, 9 
Kan. 672. • 

Alexander Hughes and John F, Philbrick, for respondent. 

Successors to the incumbents must be appointed by the gover- 
nor by and with the advice of the senate and in no other way. 
And appointments to fill vacancies must be made in the same 
way, except only when the legislature is not in session, the gov- 
ernor alone may make temporary appointments. Peo. v. Howe^ 
25 Ohio St, 588. State v. Lusk, 18 Mo. 341; Peo, v. Osborne, 
4 Pac. Rep. 1079; State v. Bearshide, 32 La. Ann. 934; Watkins v. 
Watkins, 2 Md. 354; Taylor v. Hibden, 24 Md. 202; Tapper v. Gray, 
9'Paige Ch. 516; Com. v. Hawley, 9 Pa. St. 513; Territory v. Haux- 
hurst, 14 N. W. Rep. 432; State v. Wilson, 72 N. C. 155; Peo. v. 
Tyrrell, 25 Pac. Rep. 684; Peo, v. Bissell, 49 Cal. 407; State v. 
McMullen, 46 Ind. 407; McBlair v. Bond, 41 Md. 155; Peo, v. 
Hammo?id, 66 Cal. 657; Hubbard v. Crawford, 19 Kan. 570; State 
V. Brewer, 44 Ohio St. 593. Gossman v. State, 106 Ind. 205; State 
V. Harrison, 113 Ind 437. A vacancy in office is never created by 
the appointment of a successor to the incumbent except in those 
cases where there is no tenure of office and the incumbent holds 
at the pleasure of the appointing power. State v. Lusk, 18 Mo. 
341; Peo, V. Carrigue, 2 Hill 103; State v. Jofies, 3 Oregon 536; 
McBlair v. Bond, 41 Md. 1^2, Field v, Peo,, 2 Scam. (111.) 79; State 
V. Harrison, 113 Ind. 434; State v. Leary, 64 Mo. 89. 

Wallin, J. This is a civil action, brought by the attorney 
general of the state, under Ch. 26 of the Code of Civil Procedure, 
to try the title to the office of warden of the state penitentiary at 
Bismarck, as between said plaintiff Daniel Williams and Nelson 
F. Boucher, the defendant. After a trial the District Court 



STATE V, BOUCHER. 39I 

adjudged that the plaintiff Williams had no right or title to said 
office, and that the defendant, Boucher was the duly elected and 
qualified warden, and entitled to hold said office and exercise its 
powers. From such judgment, plaintiffs appeal to this court. 
The facts which are embodied in the complaint and answer, are 
not controverted. Both claimants of the office in dispute base 
their respective claims to the office upon an alleged appointment 
thereto made by certain distinct groups of individuals, each group 
claiming to be and to constitute the board of trustees of the 
penitentiar>' at Bismarck, and therefore it will be necessary in 
disposing of this case to inquire into and determine which of the 
two groups of individuals that have assumed to act as the board 
of trustees of the^ penitentiary is entitled in law to exercise the 
power of such board, and to appoint the warden. The law 
creating the office of trustees of state institutions, including the 
Bismarck penitentiary, and regulating their appointment and 
terms of office, is found in § i, Ch. 93 Laws 1889. At a session 
of the state legislature which convened in the year 1891, the 
governor of the state, acting under said statute, duly nominated, 
and, with the advice and consent of the senate, appointed, five 
trustees for the penitentiary, — three for a term of four years, and 
two for a term of two years. The title of the three who were 
appointed for the term of four years is not questioned; but the 
title of the two trustees who were appointed for the term of two 
years, viz: one Frank Donnelly and one Arthur Van Horn, is now 
denied and disputed by the plaintiffs. All of said trustees, 
appointed in 1 891 as aforesaid, soon after their appointment, 
qualified and entered upon the discharge of their duties, and have 
ever since being acting in the discharge of their duties as such 
trustees. At the regular session of the legislative assembly, which 
convened at Bismarck in 1893, the governor of the state, at the 
proper time, nominated and sent to the senate for confirmation 
the names of W. O. Ward and Joseph B. Taylor as trustees of the 
penitentiary at Bismarck, and as the successors in office of said 
Donnelly and Van Horn, who had been appointed in 1891 for a 



392 NORTH DAKOTA REPORTS.. 

term of two years, as before stated. The nomination of said 
Ward and Taylor was not confirmed by the senate, but, on the 
contrary, their nomination was rejected, and the senate of 1893 
adjourned without confirming any successors of the trustees 
appointed in 189 1. Soon after the adjournment of the legislative 
assembly for the year 1893, ^^e governor of the state, acting upon 
the assumption that a vacancy had occurred and was existing in 
the offices for which said Donnelly and Van Horn had been 
appointed in 1891 for a term of two years, appointed and com- 
missioned said Ward and Taylor as trustees of the Bismarck peni- 
tentiary, and as the successors in office of said Donnelly and Van 
Horn. After such appointment by the governor, said Ward and 
Taylor undertook to qualify for their said offipes, and took the 
oath of office, and executed an official bond, which official bond 
^was approved, filed, and recorded with the secretary of state. 
Thereafter said Ward and Taylor, acting together with one 
Charles E. Stowers, (who was one of the duly appointed trustees 
of the penitentiary, and whose title to such office is not chal- 
lenged,) met together, and assumed to be and constitute the 
penitentiary board, convened at the City of Bismarck, at the time 
and place appointed by law for the appointment of a warden for 
the penitentiary, and then and there did name and undertook to 
appoint the plaintiff Daniel Williams to be the warden of said 
penitentiary for a term of two years. All of the other trustees of 
said penitentiary refused to act and did not act or meet with said 
Stowers, Ward and Taylor at the time of their said meeting, or at 
any time. Said plaintiff Williams accepted such appointment, 
and his official bond was approved by Stowers, Ward, and Taylor, 
the other trustees refusing to act with them in the premises. 
After such appointment, the plaintiff Williams, in March, 
1893, went to the penitentiary building, and made demand to be 
admitted thereto, and to have turned over to him the charge of 
said penitentiary as warden; but the defendant, Boucher, claiming 
to be the lawful warden of the penitentiary, refused to comply 
with such demand, and did not permit said Williams to enter the 



STATE V, BOUCHER. 393 

building, and refused to turn over the penitentiary to Williams, 
and has never done so. The defendant Boucher, is in charge of 
the penitentiary as warden, and prior to such demand upon him 
by the said Williams, and after the attempted appointment of 
Williams, said Boucher had qualified as such warden, and claimed 
to be lawfully entitled to the office under and by virtue of an 
appointment thereto made by all of the trustees who had been 
appointed in 1891, as aforesaid, except said Stowers, who did not 
act, but refused to act, with the others who appointed the said 
Boucher as warden, as above stated. It appears from what has 
been said that the legality or illegality of the appointment of the 
said plaintiff Daniel Williams to the office of warden must turn 
upon the validity of the appointment of Ward and Taylor, who 
acted with Stowers in making his appointme/it. If Ward and 
Taylor were not trustees, and did not become such by virtue of 
the governor's appointment, then the appointment of Williams to 
the office of warden is and must be held to be a mere nullity. 

The facts in the record call for a construction of the statute 
above cited. A portion of § i of the act is all that need be recited 
for the purposes of this decision. It reads: "And the governor 
shall nominate, and by and with the advice and consent of the 
council, shall appoint, at this session of the legislative assembly,' 
five trustees for each of said institutions, two of whom shall hold 
their office for the period of two years, and three for the period 
of four years, and until their successors are appointed and quali- 
fied, except to fill vacancies, which appointments shall be made 
by the governor and shall extend only to the end of the next 
session of the legislative assembly." This statute contemplates 
and in terms provides that the trustees of state institutions, in- 
cluding the penitentiary, shall be chosen by the concurrent action 
of the governor and state senate, the governor to nominate, and, 
with the advice and consent of the senate, appoint, the trustees; 
and the statute further provides that upon the occurrence of a 
vacancy in the office of a trustee, and only in that event, the 
governor of the state shall, without the concurrence of the senate, 



394 NORTH DAKOTA REPORTS. 

appoint a trustee to fill such vacancy, such appointee to hold 
office until the end of the next ensuing session of the legislative 
assembly, and no longer. But, before we proceed to discuss the 
question of the existence of a vacancy in the offices of Donnelly 
and Van Horn, we will briefly consider a broad and sweeping 
proposition advanced by the learned attorney general, who argues 
— and it is his principal contention — that neither the senate nor the 
legislative assembly, under the state constitution, has or can 
acquire the power to confirm any appointments to office made by 
the governor unless the office is strictly legislative or judicial in 
its nature. The claim is made that the right to appoint to office 
and to fill vacancies; except to legislative and judicial offices, is an 
implied executive function, and that the governor, as the sole 
repositary of executive power under the state constitution, 
possesses the inherent right to name the officers, and to fill all 
vacancies therein, and that such right exists by implication of 
law, and independently of express constitutional or statutory 
authority. The further claim is made that, inasmuch as the state 
constitution has not expressly declared that the power to appoint 
to office shall be shared by the governor with the senate or legis- 
lature, the whole power inheres in the executive alone. From 
•these premises the attorney general draws the conclusion that, 
inasmuch as the limited term of two years had run before Ward 
and Taylor were appointed, the power existed in the governor, 
and that it was his duty, to appoint successors, and to do so with- 
out consulting the senate or allowing the senate to act upon his 
appointments. These views of course, imply necessarily that all 
parts of the statute creating the office of trustees of our state 
institutions which purport to confer upon the senate the right to 
confirm appointments made by the governor to such offices are 
unconstitutional and void. Wc have stated the proposition of 
the attorney general thus fully because it has been strenuously 
contended for and urged upon our attention with great force and 
earnestness; but, after careful consideration, we are unanimously 
of the opinion that the exigency of this case does not demand a 



STATE V. BOUCHER. ^ 395 

decision by this court of the abstract question which is involved 
in the proposition for which the attorney general contends. We 
will therefore simply say that the impressions of this court are 
decidedly against the views of the attorney general. We do not 
think that all power to appoint to office resides with the governor 
of a state as an implied executive function in cases where the 
constitution is silent upon the question. This view is in harmony 
with the spirit of our institutions, and has the support of a 
decided preponderance of authority. We cite only a few of the 
cases which are accessible: Biggs v. McBride, (Or.) 21 Pac. Rep. 
878; People V. Freeman, (Cal.) 22 Pac. Rep. 173; People v. Hurl- 
but, 24 Mich. 44; State v. Irwin, 5 Nev. in; State v. Rosenstock, 11 
Nev. 128; Mayor, etc., of Baltimore v. State, 15 Md. 376; State v. 
Lusk, 18 Mo. 333-340; Cooley, Const. Lim. (5th Ed.) 136. Under 
the common law of England, the sovereign power belonged to 
the king, and the power to appoint to office was unquestionably a 
sovereign perogativq. In this country,, and under our form of 
government, the sovereignty has been transferred, and is in the 
hands of the people. It is conceded in this case, as it must be in 
all cases arising under our political institutions, that the sovereign 
authority, — the people, — in creating a state government, can lodge 
the authority to appoint its officers in any branch of that govern- 
ment, or bestow it at pleasure upon any official upon whom they 
may elect to bestow the same. In granting such power it may be 
conferred in full measure, and without limitation, or it may be con- 
ferred only to a limited extent. Field v. People, 2 Scam. 1 11. The 
people of this state have exercised this authority, and, in terms 
easily understood, have indicated in their constitution when and 
to what extent the governor shall exercise the power to appoint 
to office. Section 78 of the state constitution reads: "When any 
office shall for any cause become vacant, and no mode is provided 
by the constitution or law for filling such vacancy, the governor 
shall have power to fill such vacancy by appointment." This 
language is clear and explicit. It confers no right to fill any 
office which has not previously become vacant. The power to 



396 ^ NORTH DAKOTA REPORTS. 

fill a vacancy is granted, but that power is conferred subject to a 
double limitation upon its exercise. The governor can only fill a 
vacancy in cases where neither the constitution nor the law has 
made provision to fill the same. As the governor can fill a 
vacancy, and can do no more than that, it will not, as we have 
already said, become necessary in this case to determine whether 
§ 78 is to be construed as a limitation upon an inherent power in 
the executive, or whether it must be regarded as a grant of 
authority not before existing. The power to fill an existing 
vacancy is conferred by the constitution upon the governor, and 
in the case at bar the statute, also in express terms, authorizes the 
governor to fill all vacancies which occur in the oflfices of trustees 
of public institutions. 

Just at this point it may naturally be asked, since the power of 
the governor to appoint to office extends only to cases of vacan- 
cies not otherwise provided for, and since there is no express 
grant of appointing power in the constitution to any other func- 
tionary or department of government, where does the power of 
appointment of officers and their successors in office rest? The 
power to appoint to office is an attribute of sovereignty. All 
attributes of sovereignty essential to the administration of govern- 
ment must be vested in the several departments of government 
by the people; otherwise, the government founded by the people 
would not constitute a full grant of governmental power. Such 
government would, to that extent, be defective, for the reason 
that the people themselves, in their collective capacity, exercise 
no governmental functions. Now, we have seen that the power 
to appoint to the offices in question is not vested by the constitu- 
tion in the governor. Neither is any appointing power vested in 
judicial department, except to appoint certain court officials. Un- 
less, therefore, this power resides in the legislature, it is lodged 
in no part of the government. As to this it will suffice to say 
that all governmental sovereign power is vested in the legislature, 
except such as is granted to the other departments of the govern- 
ment, or expressly withheld from the legislature by constitutional 
restrictions. 



STATE V. BOUCHER. 397 

Was there a vacancy in the offices occupied by Donnelly and 
Van Horn when the governor appointed Ward and Taylor to fill 
a supposed vacancy in such offices? This is the decisive question 
in the case. In appointing said Ward and Taylor, the governor 
of the state undoubtedly assumed that there was a vacancy in the 
offices occupied by Donnelly and Van Horn, and that such 
vacancy resulted from the fact that their term of office of two 
years had expired, and the senate had adjourned without confirm- 
ing their successors. Did such supposed vacancy exist? If there 
was no vacancy, it will be conceded that the governor was with- 
out authority to appoint Ward and Taylor. We are quite clear 
that the supposed vacancy did not exist. When the appoint- 
ments were made; Donnelly and Van Horn were incumbents 
holding over after the expiration of their definite term of two 
years, and until their successors should be lawfully appointed. It 
therefore appears that the offices which Ward and Taylor were 
appointed to fill were- not empty when the appointment was made, 
but, on the contrary, such offices were occupied by incumbents 
whose title and right to hold such offices were based upon the 
express language of the statute, which declares that all trustees 
of state institutions shall continue in office until successors are 
elected and qualified. The statute in question not only fixes 
definite terms of office for the terms of two and four years, but 
also, with equal clearness, annexes to the definite terms another 
period or term of indefinite duration, which period has been aptly 
described a& a "defeasible term" of office. The statute explicitly 
declares that trustees shall, after their limited term has expired, 
continue in office for a further period, and "until their successors 
are appointed and qualified." The definite terms of Donnelly and 
Van Horn had expired, and the legislature of 1893 had adjourned 
without confirming their successors, before the governor made his 
appointments; but, as has been seen, the terms of all trustees of 
state institutions in this state are extended by the statute beyond 
their limited duration, and until successors are appointed and qual- 
ified. Donnelly and Van Horn were appointed by the governor. 



398 NORTH DAKOTA REPORTS. 

by and with the advice and consent of the senate, and hence, 
under the statute, will continue to hold their office until their 
successors are appointed and qualified in manner and form as the 
statute directs. There is no doubt in our minds that the statute 
in question must be so construed as to mean that successors of 
trustees shall be appointed by the same power and authority 
which appointed their predecessors, i. e. by the governor of the 
state, by and with the advice and consent of the senate. The 
legislature having adjourned without day, and the senate failing 
to confirm successors to Donnelly and Van Horn, it follows as of 
course that their successors cannot be legally appointed until the 
legislature shall reassemble, unless a vacancy has occurred or 
shall occur in their offices. It is the policy of the statute, as well 
as its clearly expressed purpose, to require the action of 
both the governor and senate in filling the important offices of 
trustees of state institutions, and not to allow them to be selected 
by the independent action of the executive, except in those cases 
of vacancies, not frequently occurring, where an executive 
appointment can be made temporarily to fill an actual vacancy. 
It has been said that the law abhors a vacancy in an office, but, in 
our judgment, a vacancy in the office of a trustee of one of the 
public institutions of this state does not come about from the 
mere expiration of the limited term, even when that event is 
coupled with the fact that the senate had adjourned without con- 
firming successors of those whose terms had expired by limitation 
of time. It seems quite clear to us that the vacancy referred to in 
the statute, and which alone gives the executive the right to 
make a temporary appointment, relates only to such actual vacan- 
cies as may arise from death, resignation, and the like. The 
expiration of a definite term, and failure of the senate to confirm 
successors to those whose terms have expired, are certainly not 
among the causes enumerated in the Code which will create a 
vacancy in office. Pol. Code, § 2 Ch. 22; Comp. Laws, § 1385. A 
"vacancy in oflfice," within the meaning of the law, can never 
exist when an incumbent of the office is lawfully there, and is in 



STATE V, BOUCHER. 399 

the actual discharge of official duty. Similar statutes of other 
states, which are indentical in their meaning, and generally in 
their language, with that we are considering, have quite frequentl}^ 
been construed by the courts of last resort in other states, and the 
construction we have placed upon our statute is sustained by the 
unanimous current of authority. State v. Howe, 25 Ohio St. 588; 
People v. Tilton, 37 Cal. 614; People v. Whitman, 10 Cal. 39; People 
v. Bissell, 49 Cal. 407; People v. Edwards, (Cal.) 28 Pac. Rep. 831; 
People V, Otilton, 28 Cal. 44; State v. McMullen, 46 Ind. 307; State 
\. Hadley,6^ N. H. 473, 13 Atl. Rep. 643; Gosma?i v. State, 106 
Ind. 203, 6 N. E. Rep. 349; State v. Harriso?i, 113 Ind. 434, 16 N. 
E. Rep. 384. See, also, authorities cited in 19 Am. & Eng. Enc. 
Law, pp. 432, 433; People v. Tyrrell, (Cal.) 25 Pac. Rep. 684; 
Mechem Pub. Off. § 128; Com, v. Hanley, 9 P. St. 513; State v. 
Rareshide, 32 La. Ann. 934. *'A vacancy exists only where no 
one has any legal title to the office." State v. Ralls County Court, 
45 Mo. 58. "So long as the defeasible right to hold over 
continues, and the incumbent exercises it, the same conditions 
which would create a vacancy during the prescribed term will be 
required to create one during the term which he is lawfully hold- 
ing over." Gosman v. State, 106 Ind. 203, 6 N. E. Rep. 349. Our 
conclusion is that the plaintiff Daniel Williams was not appointed 
to the office of warden by the board of trustees of the state peni- 
tentiary, or by any lawful authority, and that said plaintiff has 
no right or title to said office. The judgment of the court below 
will be affirmed. All concur. 

ON REHEARING. 
(August 14th, 1893.) 

Bartholomew, C. J. Elaborate and exhaustive petitions for 
rehearing have been filed in this case by the attorney general and 
C. U. Greely, Esq., of special counsel. In these petitions the 
view of the law taken by the executive in submitting to the 
senate the names of Ward and Taylor as members of the board of 
directors of the state penitentiary, and in the subsequent appoint- 
ment of such persons after their rejection by the senate, and after 



4CX) NORTH DAKOTA REPORTS. 

the adjournment of the legislative assembly, upon the theory that 
a vacancy existed by reason of the expiration of the terms of 
office of Donnelly and Van Horn, is abandoned, and.it is admitted 
that, if there existed in the senate any power of confirmation, 
then no vacancies existed, and the attempted appointment of 
Ward and Taylor was a nullity. But it is urged that a ruling 
upon this question of appointing power to which we adverted, 
but upon which we expressly declined to rule in the original 
opinion, is necessary to the proper disposition of this case, and 
that the power of appointment to office is so necessarily and in- 
herently an executive function that it passed to the governor by 
plenary grant of executive power, to be divested only by express 
words, and that § 78 of the constitution, quoted in the orginal 
opinion, is not necessarily a limitation upon that power, but is a 
grant of power to fill a vacancy occurring in an elected office, 
which the governor would not have in the absence of such section. 
An attempt to answer this position places this court at once in 
that delicate and embarrassing situation from which all courts 
may well be excused from shrinking. Individuals and individual 
interests become as ciphers when passing upon the conflicting 
claims to power put forth by two co-ordinate and independent 
departments of a sovereign state. The great difference due from 
us to the executive department, not more than the high esteem 
we entertain for the gentlemen who has honestly sought to exer- 
cise this power, makes it eminently proper that, in denying the 
petition for a rehearing, we should succinctly state our objections 
to those views that have been so learnedly pressed upon us. 

Appellant takes the position that when the people of this state 
adopted their present constitution, § 71 of which declared that 
"the executive power shall be vested in a governor," thereupon 
there passed to and vested in the governor the exclusive, unre- 
stricted, and uncontrollable power to fill all appointive offices, and 
that such power must remain in full force unless limited by 
express words in the constitution, the presence of which is 
broadly denied; and that, while it is a legislative function to direct 



STATE V, BOUCHER. 4OI 

the manner of induction into office created by the legislature, yet 
that such function extends only to the right to declare such office 
elective or appointive; and that, when so declared appointive, the 
volition of the governor in filling such office can no more be 
influenced, limited, or thwarted by the legislative assembly that 
could the volition of an elector in filling an elective office; and, 
further, that, as the legislative assembly has no appointing power in 
itself, neither can it confer such power in whole or in part upon 
any person, persons, or body, except the governor. This last claim, 
while not made in words, is the logical and necessary result 
of the claim of exclusive appointing power in the executive. 
The fundamental necessity, under the genius of our government, 
for the separation of the three great governmental functions and 
their distribution to the executive, legislative, and judicial depart- 
ments, has been so often demonstrated, and so much more forci- 
bly than the writer could do it, that it becomes us to accept the 
necessity without recapitulating the reasons for its existence. We 
accept without question the proposition that when our constitu- 
tion vested executive power in the governor, and legislative 
power in the legislative assembly, and judicial power in the judi- 
ciary, these grants were in their nature exclusive, and that neither 
department, as such, could rightfully exercise any of the functions 
necessarily belonging to another department. With this state- 
ment of the exclusive nature of the powers of the different depart- 
ments, if appellants' contention that the power to appoint to 
office passed to the governor by the grant of executive power, and 
that there is nothing in the constitution in any manner limiting or 
controlling such grant, be correct, then the conclusion is obvious 
that so much of Ch. 93, Laws Dak. T. 1889, cited in the original 
opinion, as required the appointment of tl;ie members of the 
board of directors of the penitentiary to be made *'by and with 
the advice and consent of the council,*' was repugnant to the con- 
stitution, and was by § 2 of the schedule to that instrument nulli- 
fied by the adoption of the constitution. If, however, the exclusive 

N. D. R. — 26. 



402 NORTH DAKOTA REPORTS. 

power to appoint to office was not vested in the governor by 
the grant of executive power, then this result would not follow. 

Is the power to appoint to office necessarily an executive func- 
tion? A solution of this one vital point must rule this case. It 
is first argued that it is not competent for the senate to share the 
appointing power with the governor, by reason of the absence of 
certain provisions in our constitution. It is provided in § 2, Art. 
2 of the Federal Constitution, that the president of the United 
States shall have power, by and with the advice and consent of 
the senate, to appoint certain officers. Section 1857, Rev. St. U. S., 
which, as § 61 of the organic law of Dakota Territory, was in 
force when Ch. 93, Laws 1889, was enacted, gave the governor 
power to appoint certain officers by and with the advice and con- 
sent of the council. Our constitution contains no similar provi- 
sion. It is urged that these provisions were adopted for the 
express ^purpose of conferring upon the senate a share in the 
appointing power which it does not possess in the absence of such 
provisions. No authority is cited to support the position, and we 
deem it radically wrong. The provision in the Federal Constitu- 
tion was adopted for the purpose of conferring upon the presi- 
dent a power which he did not have. We think this is clear, for 
several reasons. The provision appears in the article granting 
and defining the powers of the executive, and not in the article 
defining legislative powers. It purports on its face to be a grant 
of power to the executive. The phrase "by and with the advice and 
consent of the senate" was not contained in the original draft of 
the section, but came in by way of amendment. See Journal of 
Convention, p. 225. The sole object of the original draft was to 
confer power upon the president. The object of the amendment 
was to put a limitation upon that power. See opinion of Mitchell, 
J. in Hovey v. State, 119 Ind. 401, 21 N. E. Rep. 21; also Mechem, 
Pub. Off. § no. The section in the organic law to which we have 
referred is too long for insertion here, but the plain purpose of 
the language is a grant of qualified power to the executive. Any 
other construction is strained, and renders a large portion of the 



STATE V. BOUCHER. 4O3 

section worse than meaningless. Constitutional provisions em- 
powering the governor to appoint officers by and with the advice 
and consent of the senate are found in many of the states, and 
always in the article defining the powers of the executive; yet 
such provision is wanting in the constitution of many of the 
western states, among which we may mention, in addiJ:ion to our 
own state, Wisconsin, Michigan, Missouri, Kansas, and Iowa. While 
in each of these states the executive power is vested in the gov- 
ernor, yet their statute books are full of instances- where offices 
have been created and made appointive by the governor "by and 
with the advice and consent of the senate." The constitutionality 
of these provisions has never been doubted in those states, so far 
as we know. We think it clear that the absence of that provision 
from our constitution has no effect whatever upon the power of 
the legislature to direct that appointments be confirmed by the 
senate. 

Is the senate precluded from participating in the appointing 
power by reason of the exclusive executive nature of that func- 
tion? Counsel for appellants, in discussing this point, lose sight 
of one very important distinction. The legislative department, 
as such, has not sought to exercise or to participate in exercising 
the appointing power. It has simply designated certain existing 
officers, to-wit, the senators, who should thus participate. Much 
of the labor of counsel is lost in this case by their failure to make 
this distinction, as will appear when the cases are examined. Mr. 
Mechem, in his work on Public Officers, says, at § 104: *'So it is 
said that appointments to office, whether made by judicial, legis- 
lative, or executive bodies, are in their nature intrinsically execu- 
tive acts." He cites the following cases, all of which are relied 
upon by counsel in this case: Taylor v. Com., 3 J. J. Marsh. 401; 
State V. Barbour, 53 Conn. 76; Achley's case, 4 Abb. Pr. 35; Mar- 
bury v. Madison, i Cranch, 137; Heirden v. Sullivan, 64 Cal. 378, i 
Pac. Rep. 158. It would be an unwarranted use of space to 
review these cases at length. We are convinced none of them 
intended to assert the doctrine for which appellants contend. 



404 NORTH DAKOTA REPORTS. 

The case from Kentucky, which seems to be a leading case, and 
which asserts that the power to appoint to office is inherently 
executive, still upheld an appointmient made by a court exercis- 
ing judicial powers. The cases from Connecticut and Abbott's 
Practice were instances where appointments were made by city 
councils Wjhich were upheld, and which in no manner involved 
the power of the governor. The case from Cranch involved an 
appointment made by the president, "by and with the advice and 
consent of the senate." The commission had been signed by the 
president, and sealed by the secretary of state, and the action was 
brought to compel delivery. It is only by inference that the 
opinion states the appointment to office to be an executive func- 
tion. The case from California is entirely foreign to» the point. 
Much reliance is placed upon the case of State v. Kenfwn, 7 Ohio 
St. 547. The case is not applicable. It deals entirely with the 
lack of power in the legislature, and not with the exercise of 
power in the executive. The constitutional provison in that state 
declared: **But no appointing power shall be exercised by the 
general assembly except," etc. As said by Swan, J., in that case: 
•'Appointing power by the general assembly is thus cut up by the 
roots, except only in the special cases in which it is expressly 
given by the constitution . itself." Then the constitution con- 
tained "negative words to limit the legislative authority." Never- 
theless, the general assembly enacted a law creating a board to 
do certain work and appoint certain officers, and named the 
members of the board in the act. This was held to be an exer- 
cise of the appointing power, and void. But the court declined 
to say, even under the prohibitive language of their constitution, 
that the legislative assembly might not create a board of 
appointers to office and direct the manner of their induction into 
office, but held that "directing by law the manner in which an 
appointment shall be made, and making an appointment, are the 
exercise of two different and distinct powers, — the one, prescrib- 
ing how an act shall be done, being legislative; and the other, doing 
the act, being administrative." Judge Swan in his concurring 



STATE V, BOUCHER. 4O5 

opinion clearly intimates that the legislative assembly might en- 
large the scope of an existing office, and require the incumbent to 
exercise additional functions, such as the appointing power. State 
V. Hyde, I2i Ind. 20, 22 N. E. Rep. 644, was another instance 
where the legislature created a state office, and named the incum- 
bent, and empowered him to appoint certain other officers, and to 
fill vacancies. A provision of the Indiana constitution, after 
dividing governmental powers among the three departments, 
provided that "no person charged with official duties under one of 
these departments shall exercise any of the functions of another, 
except as in this constitution expressly provided." Another pro- 
vision empowered- the governor to fill vacancies in state offices. 
The court held — three judges against two — that the act of the 
legislature violated both of these constitutional provisons. A 
study of the majority opinion shows it to be grounded upon the fact 
that there was no express authority conferred upon the legisla- 
ture by the constitution to fill such office. The court say: "What- 
ever may be said of the constitution of other states, it cannot be 
successfully maintained that, under the constitution of this state, 
the legislature possesses latent or undefined power." If there be 
any reasoning in that case that does not meet our approval, it is 
based upon a constitutional provision which we do not have. The 
case of State v. Peelle, 121 Ind. 495, 22 N. E. Rep. 654, is in its 
main features identical with State v. Hyde, 

Our own researches fully confirm the stattement of Chief Justice 
Elliott in his dissenting opinion in the case last named, where he 
says: "I have searched with all possible care, but I can find no 
decision which sustains the contention of the relator that the 
appointing power resides in the governor. I find no conflict, but 
entire unanimity; for, in every case that I have seen, it is affirmed 
that, unless expressly prohibited by constitutional provisions, 
there is a class of offices which the legislature may create and fill 
by appointment." Mechem on Public Officers (§ 108) says: "But 
the power to appoint officers, excepting perhaps, those who are 
to assist him in the discharge of his personal executive duties, is 



406 NORTH DAKOTA REPORTS. 

not inherent in the chief executive, but must exist, if it exist at 
all, by virtue of the authority conferred upon him by the sover- 
eign power." By this we understand the author to mean 
that the fact that executive power is lodged with the governor — 
the fact that he is constituted chief executive — does not give him 
appointing power. In Mayor^ eU., of Baltimore v. State, 15 Md. 
376, cited in original opinion in this case, the court said: "We are 
not prepared to admit that the power of appointment to office is 
a function intrinsically executive, in the sense in which we under- 
stand the position to have been taken; namely, that it is inherent 
in, and necessarily belongs to, the executive department. Under 
some forms of government it may be so regarded, but the reason 
does not apply to our system of checks and balance in the dis- 
tribution of powers, where the people are the source and fountain 
of government, exerting their will after the manner and by instru- 
mentalities specially provided in the constitution. The case 
cited [3 J. J. Marsh. 401] affirms that it is intrinsically executive; 
but the judge explains that the nature of the power is executive, 
whether exercised by the governor or a court, as distinguished from 
those acts of the court that are merely judicial. But it is nowhere 
intimated that another department than the executive cannot 
exercise the power." The erudite Judge Cooley, in speaking of 
this same Kentucky case, so much relied upon, after stating that 
the case declared the appointing power to be inherently execu- 
tive, says: "In a certain sense this is doubless so, but it would not 
follow that the legislature could exercise no appointing power, 
or could confer none on others than the chief executive of the 
state. Where the constitution contains no negative words to 
limit the legislative authority in this regard, the legislature, in 
enacting a law, must decide for itself what are the suitable, con- 
venient, or necessary agencies for its execution, and the authority 
of the executive must be limited to taking care that the law is 
executed by such agencies." Cooley, Const. Lim. 136, note 2. In 
Biggs V. McBride, 17 Or. 640, 21 Pac. Rep. 878, cited in original 
opinion the court say: "It was not claimed at the argument that 



STATE V, BOUCHER. 4O7 

there is any express provision of the constitution which autlior- 
ized the governor in direct terms to make the appointment in 
question, but that it is included in the grant in § i. Art. 5, of the 
constitution. That section declares: "The cbief executive 
power of the state shall be vested in the governor." Now, if it 
could be shown that the power to appoint all officers which 
are not expressly made elective by the people is a part of 
*the chief executive power of the state,' the appellant's contention 
would be sustained. But no authority whatever has been cited to 
sustain this view, nor is it believed that any exists. On the con- 
trary, the provisions of the fifth article of the constitution, which 
relates to the executive department, all seem at variance with 
this view. The f ramers of this instrument evidently designed that 
no prerogative powers should be left lurking in any of its provi- 
sions. No doubt, they remembered something of the history of 
the conflicts with perogatives in that country from which we 
inherited the common law. They therefore defined the powers of 
the chief executive of the state so clearly and distinctly that there 
ought to be no controversy concerning the method of filling the 
same, or in some cases of changing the method of filling an exist- 
ing office." It is proper here to state that the constitution of 
Oregon contains the express prohibitive language quoted from 
Indiana, and the section granting the governor the express power 
of appointment is much broader that our § 78. In this case, also, 
the appointment was made by the legislature. In People v. Free- 
man, 80 Cal. 233, 22 Pac. Rep. 173, it is said: "The contention on 
the part of the relator is that appointing to office is intrinsically, 
essentially, and exclusively an executive function, and therefore 
cannot be exercised by the legislature." The court then quotes 
the constitutional provision dividing governmental functions, 
which is practically the same as in Indiana, and adds: "If the 
making of appointments to office is a function which, in the sense 
of the constitution, appertains to the executive department of the 
slate government, there would seem to be no escape from the con- 
clusion that the appointment of the respondent by the members of 



408 NORTH DAKOTA REPORTS. 

the legislative department was invalid, unless by some specific pro- 
vision of the constitution such appointment is expressly directed 
or permitted. On the part of the respondent, it is contended 
that such specific provision is found in § 4 of Art. 20, which reads 
as follows: 'Section 4. All officers or commissioners whose 
election or appointment is not provided for by this constitution, 
and all officers or commissioners whose offices or duties may here- 
after be created by law, shall be elected by the people, or 
appointed as the legislature may direct.' But we cannot construe 
this section as an express direction or permission to the legisla- 
ture to exercise the power of appointment to office, if that is 
essentially an executive function. It would upon such an assump- 
tion amount only to this: that, with respect to newly created 
offices, or offices not provided for in the constitution, the legisla- 
ture may direct whether they shall be filled by popular election or 
by executive appointment; in other words, that the legislature 
may prescribe the rule of selection, but may not itself make the 
selection. State v. Kejinon, 7 Ohio St. 561. Our decision, there- 
fore, must depend upon the solution of the question whether 
appointment to office is essentially an executive function." And, 
on a review of the authorities, the court holds that it is not an 
executive function. The language in the Nevada cases cited is 
even stronger, but we will not take space to quote it. Mechem 
on Public Officers (§ no) reads as follows: "The power of 
appointment may be absolute or conditional. Where it is abso- 
lute, the choice of the appointing power, if it falls upon an 
eligible person, is conclusive. But frequently the power of 
appointment is conditional, and may be exercised, as in the case 
or the president of the United States, 'by and with the consent of 
the senate' or some other body only, and this requirement of 
assent or confirmation is found in all grades of municipal offices." 
But the grant of executive power to the governor is never condi- 
tional. The condition is always found in a subsequent provision 
granting express appointing power. But, if the grant of execG- 
tivc power carries with it appointing power, then these well nigh 



STATE V, BOUCHER. 4O9 

universal subsequent provisions expressly granting appointing 
power are meaningless and confusing surplusage. But we are not 
allowed to thus construe the organic law. "In written constitu- 
tions there are no meaningless words. In the declared will of the 
sovereign people, every word has an office and a purpose. Hence 
these subsequent provisions must be necessary, and, if necessary 
it is because power to appoint to office does not necessarily 
adhere in executive power." One further quotation will be excused 
by reason of the incomparable ability and fairness of the mind 
from which it issued. "The inferences which I think follow from 
these views are two: First, that the denomination of a depart- 
ment does not fix the limits of the powers conferred upon it, nor 
even their exact nature; and, second, (which, indeed, follows from 
the first,) that in our American governments the chief executive 
magistrate 'does not necessarily, and by force of his general charac- 
ter of supreme executive, possess the appointing power. He may 
have it or he may not, according to the particular provisions 
applicable to each case in the respective constitutions." Webster's 
Speech on the Presidential Protest. 

A careful study of all authorities to which we have been cited 
and all that we are able to find has made it entirely clear to each 
member of this court that the power of appointment to office 
does not necessarily and in all cases inhere in the executive 
department, and that when, as in this state, the express provisions 
of the constitution vest in the governor a limited power of 
appointment, such grant is exclusive, and no other or greater 
appointing power can be exercised. It is different with the legis- 
lative department. It is conceded in the brief of counsel that, by 
the great weight of authority, constitutional provisions are in the 
nature of grants of power to the executive and judiciary, but are « 
limitations upon the power of the legislature. This is no doubt 
true. All governmental power not by the constitution lodged 
elsewhere resides in the legislature. "Whenever a power is not 
distinctly either legislative, executive, or judicial, and is not oy the 
constitution distinctly confided to a department of the government 



410 NORTH DAKOTA. REPORTS. 

designated, the mode of its exercise and the agency must 
necessarily be determined by law; in other words, must necessa- 
rily be under the control of the legislature." Cooley, Const. Law, 44. 
*'The general rule is that the legislature may exercise any power 
not denied to it by the constitution of the state, or the exercise 
of which is not prohibited by the federal constitution." Cattle Co, 
V. State, 68 Te?^ 545, 4 S. W. Rep. 865. Many of the authorities 
already cited bear upon this subject, and from them the conclu- 
sion is clear that, where the legislature has the power to establish 
by law state institutions, — as, for instance, a state penitentiary, 
— it also has the power, as incident to the power of establishment, 
to say by what means and agencies the law shall be carried into 
effect; and, even when all appointing power is expressly denied 
to the legislature, it still has power to annex additional duties to 
an existing office. Walker v. City of Cincinnati, 21 Ohio St. 14; 
State V. Harmon, 31 Ohio St. 250-258; Bridges v. Shallcross, 6 W. 
Va. 562. If this be not true, and if the exclusive power of 
appointment rests in the executive, then the relator must 
assuredly fail in this case, because the law which established the 
penitentiary (Ch. 30, Sp. Laws Dak. T. 1883) declared the warden 
thereof to be a public officer, and directed that his appointment 
should be made^ by the board of directors. Relator is in this 
court claiming title to an office by virtue of an appointment by a 
board created and vested with appointing power by the legisla- 
tive assembly, but urges in support of his claim that the appoint- 
ing power is vested exclusively in the executive, and the legisla- 
tive assembly can in no manner control the same. 

If in any case a court should be controlled by contemporaneous 
construction, we are certainly bound in this case. That the con- 
» stitutional convention that framed that state constitution fully 
understood that the senate might be empowered to act with the 
executive in making appointments to office is perfectly clear from 
§ 39 of the constitution, which provides "that no member of 
the legislative assembly shall receive any civil appointment from 
the governor or governor and senate during the term for which 



r 



STATE V, BOUCHER. 4II 

he was elected." Every governor of the state, since our admis- 
sion into the Union, has also acted upon the same theory by sub- 
mitting to the senate the names of nominees for appointing 
offices, and every senate has acted upon such nominees by con- 
firming or rejecting the same. During the three sessions of the 
legislature that have been held since statehood, and since the 
adoption of the construction, not less than 23 separate laws have 
been passed creating appointive offices where the governor has 
been required to share the appointment with some other person 
or persons or body, usually the senate. All of these acts, seven 
of which were passed by the last legislature, and signed by the 
present executive, are unconstitutional and void, on the theory 
that the exclusive appointing power rests in the executive. 

Thus much we have deemed it proper to say in explanation of 
the position taken in the original opinion. It is apparant from 
what we have said that our original views are in no manner 
changed. We are required in this case to choose between officers 
appointed by the governor and senate and officers appointed by 
the governor atone. In declaring the former to be the legal 
officers, we have no fear of in any manner violating the declared 
will of the sovereign people of this state, as expressed in their 
constitution. The petition for rehearing is denied. All concur. 

(56 N. W. Rep. 142.) 



412 NORTH DAKOTA REPORTS. 

Owen Martin vs, Wm. R. Hawthorn, et al. 

Opinion filed Nov. 6th, 1893. 

Lien for Threshing Grain — Notice — Action for Conversion— Evidence. 

When a party cUiming to have a thresher^s lien under Ch. 88, Laws 1889, 
takes possession of the grain, and sells the same, and an action is brought 
against him by the owner of the grain for converting the same, it is incumbent 
upon the lien claimant to show at the trial not only that he filed a verified 
account in writing embodying, among other things, a description of the land upon 
which the grain was grown, but he must further prove that, as a matter of fact, 
the grain upon which the lien is claimed was grown upon the land described in 
the writing on file. Accordingly, h^idy where in such action the defendant 
(lien claimant) rested his defense without offering any testimony tending to 
show where the grain in question was grown, and the plaintiff testified that no 
grain was grown in the year in question upon the land described in the state- 
ment filed with the register of deeds, it was error in the trial court to deny 
plaintiff's motion to strike out all evidence in the case relating to the lien. 

Appeal from District Court, Stutsman County; Rose, J. 

Action for conversion by Owen Martin against William R. Haw- 
thorn and others. Defendants had judgment for costs, and plain- 
tiff appeals. 

Reversed. 

S, L. Glaspell, for appellant. 

The defendants failed to make a good defense, in that they failed 
to show by evidence where the grain was grown. Lavin v. Bradley ^ 
I N. D. 291, (47 N. W. Rep. 384;) Parker v. First Naf I Bank, 3 N. 
D. 87, (54N.W. Rep. 313.) 

Fredrus Baldwin, for respondents. 

Argued that the lien statement described the land and when in 
evidence supplied the necessary proof to sustain the verdict. 

Wallin, J. This action is brought to recover the value of a 
quantity of wheat owned by the plaintiff, which the defendants 
seized and sold in attempting to foreclose an alleged thresher's 
lien in favor of the defendant Hawthorn. The only question pre- 
sented upon the record is whether or not the alleged lien was 



MARTIN V, HAWTHORN. 4I3 

valid under Ch. 88, Laws 1889. We think the lien proceedings 
were fatally defective, and that the judgment must therefore be 
reversed. The statute under which defendants attempted to jus- 
tify their seizure of the grain, while incomplete and incongruous 
in many of its provisions, yet imperatively requires, as we con- 
strue it, that the party seeking to perfect a lien upon grain 
threshed by him to file with the register of deeds a written and 
verified statement embracing certain features enumerated in the 
statute, among which is a description of the land upon which the 
grain was grown. In Parker v. Bank, 54 N. W. 313, this court 
had occasion to consider this fesCture of the statute, and in its 
opinion the following language was used: "Yet the statute . is 
peremptory in requiring the statement to contain a description of 
the land on which the grain was grown, in order to entitle a party 
to the lien given by the statute." We still think that the benefits 
of the lien cannot be realized in any case without a substantial 
compliance with that feature of the law which positively requires 
the filing of a statement. In the case under consideration the 
thresher (Hawthorn) filed a statement which was regular on its 
face, and which embraced a description of certain land, viz: 
W. % section 28, township 144, range 65; and the statement 
further declared that the grain in question was grown upon such 
land. But the filing of a statement regular upon its face does not 
alone suffice to secure the benefits of the lien in a contested case. 
It was necessary to show at the trial that the grain threshed was 
in fact grown upon the land described in the statement on file. 
The only evidence offered by defendants to establish this vital 
fact came from the defendant Hawthorn, who testified as follows: 
The defendant William R. Hawthorne testifies that he went upon 
the west-half of (W. j4) oi section 28, township 144 north, of 
range 65 west of 5th p. m., in Stutsman County, N. D., to thresh, 
and threshed the grain of plaintiff thereon." This evidence, not 
being contradicted, certainly showed that defendants threshed 
grain for the plaintiff upon the land described in the account on 
file. This evidence was, however, wholly irrelevant to any issue 



414 NORTH DAKOTA REPORTS. 

in the case. As a matter of fact there was no statement contained 
in the account on file touching the locality or place where the 
defendant did the threshing; nor does the law require any state- 
ment in writing to be made, or any proof made as to the place 
where the work of the threshing is performed. This requirement 
of the statute has reference only to the tract upon which the 
grain in question is grown. The defendants having rested their 
case upon the testimony above set out, "the plaintiff testified that 
he raised no grain on the land described during the year 1890, 
and had no grain threshed on such land during the year 1890." It 
will be noted that the plaintiff'^ testimony, as above recited, is in 
conflict to that given by the defendant Hawthorn as to where the 
threshing was done; but as has been seen, the place of doing the 
work is not all relevant to any issue in the case. The testimony 
of the plaintiff stands alone, and is not sought to be rebutted upon 
the material matter of where the grain was grown. The plaintiff 
swore positively that he "raised no grain on the land described." 
Plaintiff's testimony, standing alone, as it does, conclusively 
shows that the statement made in the account filed as to the tract 
of land upon which the grain in question was grown was errone- 
ous and untrue in fact; in other words, the defendant signally 
failed to prove a fact which is essential to be proven in all cases 
arising under the statute. Both sides having rested the case upon 
this testimony, plaintiff moved in the court below to strike out all 
evidence relating to the lien as immaterial and incompetent, 
"because no grain was raised on the land described in the lien." 
This motion was overruled, and plaintiff preserved an exception 
to the ruling. We are clear that the ruling was erroneous. The 
evidence should have been striken out, and the refusal to do so 
was error to plaintiff's prejudice. It will be unnecessary to con- 
sider other assignments of error found in the record. A new 
trial will be ordered. All concur. 
(57 N. W. Rep. 87.) 



REEVES & CO. Z;.CORRlGAN. 415 

Reeves & Co. vs. William Corrigan, et al. 

Opinion filed December 7th, 1893. 

Written Order for Machinery — Contmction Contract for Sale — Alteration 
by Agent. 

Plaintiff, a corporation, was engaged an the manufacture of farm machinery 
at Columbus, Ind., and W. & R. were plaintiff's agents for the sale of 
machinery at Lisbon, D. T. The defendants negotiated with plaintiff, through 
said agents, for the purchase of a certain straw stacker, and signed and deliv- 
ered to such agents a written order directing that such straw stacker be for- 
warded from plaintiff's place of business, and delivered to the defendants, at a 
time stated in the order, at Lisbon, D. T. The terms of the proposed purchase, 
including the price and terms of payment, were embraced in the order, with 
other stipulations, including a warranty of the machine, toupled with a right to 
rescind, and return the machine, etc. Pursuant to such order, and in due time, 
plaintiff forwarded the straw stacker, and delivered it to the defendants at 
Lisbon. In an action for the purchase price, defendants denied the purchase, 
and set up an alleged oral agreement with plaintiff, through said agents, where- 
by the defendants took possession of the straw stacker on trial only, but did 
not purchase the same. The trial court instructed the jury as follows: "When 
the machine came, and before Messrs. Maddox & Corrigan took the machine, 
they had the power or the option at the time to say to these plaintiffs: 'We 
will not take the machine on the terms of the written order. We have con- 
cluded not to take the machine on those terms.' They had a right to rectify 
the terms of that purchase. They had a right to refuse to take the machine at 
all." I/eld^ that such instruction was error. Whether the order was or was 
not a contract of sale, or whether or not the title would pass after the delivery 
of the order and its acceptance, but before the defendants had received the 
machine, is not material in such a case. In any view of the transaction, the 
order was not a nullity. After the plaintiff, strictly pursuant to the require- 
ments of the order, had accepted the order, forwarded the machine, and ten- 
dered it to the defendants at Lisbon, it was incumbent upon the defendants to 
receive and settle for the machine in accordance with the stipulations contained 
in the order. Defendants could not, after a tender, arbitrarily, and without 
cause, refuse to receive the machine under the terms of the order, without 
violating their agreement, and being liable in damages therefor. 

Signing Order — Knowledge of its Contents Presumed. 

The order in question embodied the following stipulation: "The stacker is 
hereby purchased and sold subject to the following warranty and agreement, 
and no one has authority to add to or abridge or change it in any manner." 
Held, that defendants, having signed the order embracing such stipulation, are 
presumed to be aware of this feature of the order, and are bound to know it and 
observe its requirements. The stipulation was lawful, and one which the 
parties had a right to make, and, being made, the defendants, while it was in 



4l6 NORTH DAKOTA REPORTS. 

force, could not lawfully enter into an oral arrangement with plaintiff's agents, 
the terms of which are wholly inconsistant with those stipulated in the writing. 

Verdict not Justified by the Evidence. 

After an examination of the evidence, keld^ further, that the verdict returned 
was not justified by the evidence. 

Appeal from District Court, Ransom County; Lauder, J. 

Action by Reeves & Co., a corporation, against William Corri- 
gan and Eugene Maddox. Defendants had judgment, and, from 
an order denying a new trial, plaintiff appeals. 

Reversed. 

L. W. Gammom and Steele & Rees, for appellant. 
Rourke & Allen, for respondents. 

Wallin, J. This action is brought to recover $200 and inter- 
est as the alleged purchase price of an implement called a 
"Reeves Patent Straw Stacker," which the complaint charges was 
sold by the plaintiff, a corporation, to defendants, at Lisbon, D. 
T., on September 21, 1888, for the agreed price of $200, to be paid 
in installments of $100 each, in November, 1888, and in November, 
1889. Defendant Maddox, the partner of Corrigan, was not 
served with the summons, and never appeared in the action. 
Defendant Corrigan answered the complaint separately, and 
denied that the defendants, either jointly or severally, or in any 
manner, ever bought the straw stacker of the plaintiff, and further 
answered, in substance, as follows: That at the time stated in 
the complaint the defendants, who were partners in a threshing 
outfit, were induced by the plaintiff, through its agents at Lisbon, 
D. T., to take the straw stacker in question on trial, and defen- 
dants did take the same for trial only; that the agreement was 
that these defendants should try the stacker, and if it should do 
good work, and give them full and entire satisfaction, that the 
defendants might then at their own option, purchase the stacker, 
or not, but, if they chose to purchase it, that it could then be pur- 
chased at the price stated in the complaint; that defendants tried 
the stacker, and found it defective, and that it did not do good 



REEVES & CO. V, CORRIGAN. 417 

work, nor satisfactory work; and that defendants never did pur- 
chase the same. A jury trial was had, resulting in a verdict for 
defendants. A statement of the case, embracing the exceptions 
and all of the evidence, was settled, and a motion for a new trial 
was made, on the ground of alleged errors of law occurring at the 
trial and for alleged insufficiency of the evidence to justify the 
verdict. The motion was denied. ' 

There is no substantial conflict in the evidence. The following 
facts are conceded: That, in the year 1888, plaintiff was engaged in 
the sale of agricultural implements at Columbus, Ind., and was 
then selling the Reeves patent straw stacker. That, at the same 
time, plaintiff was represented at Lisbon, D. T., by the firm of 
Worden & Rickford, which firm was then in the machine business 
at Lisbon, and were plaintiff's local agents there for the sale of 
the straw stacker. That at the solicitation of plaintiff's said 
agents the defendants signed in their firm name, and delivered to 
plaintiff's said agents, an order for a Reeves straw stacker, which 
order was in the following words and figures: "Dated at Lisbon, 
D. T., July 17th, 1888. W. E. Worden: You .will please deliver 
to me at Lisbon, D. T., on or about the ist day of August, 1888, 
new Reeves patent straw stacker, all complete; said stacker to be 
of the ordinary width and length, and is intended to be attached 
to a Buffalo Pitts separator, built in 1885. Where in considera- 
tion thereof, I, or we, agree to receive the same, pay the freight 
and charges from Columbus, Ind., and at the same time settle for 
said .stacker in cash and notes, in the sum of two hundred dollars, 

as follows: Cash in hand, ; note due November ist, 1888, 

for $100.00; note due November ist, 1889, for Sioo.oo; note due 

1st, 188 — , for $ . Notes to be made payable to the 

order of — , and their blanks shall be used, and bear the 

highest rate of legal interest from date until paid. Said notes to 
be accompanied by a mortgage on additional property, if required, 
or other approved security. This stacker is hereby purchased 
and sold subject to the following warranty and agreement, 

N. D. R. — 27. 



4l8 NORTH DAKOTA REPORTS. 

and no one has any authority to add to, abridge, or change it in 
any other manner: That it is well made, of good materials, and 
with proper management it is capable of doing first-class work; 
that the purchaser shall have bne day to give it a fair trial, and, 
if it should not work well, written or personal ' notice, stating 
wherein it fails, is to be given to the agent from whom it is 
received, and reasonable time allowed to get, to it, and remedy 
defects, if any, (the purchaser rendering necessary and friendly 
assistance,) when, if it cannot be made to do good work, a reason- 
able time shall be allowed to get a man from the house; and, if 
the stacker cannot be made to do good work then, it shall be 
returned to the place where received, and a new stacker given in 
its place, which shall fill the warranty, or the notes and money 
will be refunded; which, when done, shall be the settlement of 
the whole transaction. Continued use of the stacker for more 
than one day shall be evidence that the warranty is fulfilled. 
Order taken by Worden & Rickford, P. O., Lisbon, D. T. Corri- 
gan & Maddox." Pursuant to said order, the plaintiff, in due 
time forwarded a Reeves straw stacker to their said agents at 
Lisbon, and the latter delivered the same to the defendants at 
Lisbon, and defendants removed the same, and operated it at least 
one season, i. e, in 1888, and a part of the next season. The straw 
stacker has never been returned, and at the time of the trial, 
which occurred in December, 1891, it was in defendants* posses- 
sion. At the time of the delivery of the stacker, two promissory 
notes were executed and delivered to Worden & Rickford, paya- 
ble to the plaintiff's order, for the sums stated in the order, and 
by their terms the notes fell due at the times mentioned in the 
order. A chattel mortgage was also given to secure the notes. 
The notes and mortgage were signed by the defendant Corrigan 
only, and for some reason, not explained in the record, were not 
signed by defendant Maddox. The action is not upon the notes, 
but they and the mortgage were put in evidence, without objec- 
tion, as tending to support the plaintiff's allegation of a sale and de- 
livery of the stacker to the defendants as alleged in the complaint. 



REEVES & CO. V. CORRIGAN. 419 

In support of its complaint, the plaintiff put in evidence the 
deposition of W. E. Worden, who after stating that he resided 
at Lisbon, at the time in question, testified as follows: "Q. State 
whether you had, during the summer of 1888, any business tran- 
sactions with the defendants, Corrigan & Maddox. A. I did. Q. 
State whether you had such a transaction with reference to what 
is called the *New Reeves Patent Straw Stacker.' A. I did. Q. 
What relation at that time, and in that transaction, did you bear 
to Reeves & Co., the plaintiff in this action? A. I was agent for 
them. Q. For the sale of their manufactures at that place? A. 
Yes, sir. Q. What transaction did you have with defendants, 
Corrigan & Maddox? A. I sold them a machine. Q. What 
machine? A. I sold them a Reeves stacker. Q. Known as the 
'Reeves Patent Straw Stacker?' A* Known as 'Reeves Stacker.' 
Q. State whether or not you had a written order from the defen- 
dants for the purchase of such a stacker. A. I did. [Here the 
order above set out was put in evidence without objection.] Q. 
State whether or not, upon this written order, Exhibit A, you 
delivered to the defendants the machine in question. A. I did. 
Q. State whether or not you sold this machine to the defendants, 
or whether the machine was to be tried by them, and purchased 
by them, at their option, after trial. A. I sold them the machine, 
guaranteed material and workmanship, to be returned in case it 
did not fill the guaranty. Q. Did they ever return it? A. They 
never tendered it back, to my knowledge. They never returned 
it. Q. Was it upon any other condition than that stated in the 
written order. Exhibit A, that you delivered the machine in ques- 
tion to the defendants? A. I do not remember any other condi- 
tion. Q. State whether or not it was in fulfillment of this written 
order that you so delivered the machine to them. A. Certainly." 

In support of the defense, the defendant Corrigan testified as 
follows: "Q. I will ask you to state just what that transaction 
was. A. Mr. Worden insisted on me, quite a while, to buy a 
Reeves stacker to attach to my threshing outfit. I gave him an 
order, after quite a while, and a short time after I took a straw 



420 NORTH DAKOTA REPORTS. 

stacker out. Mr. Worden came out. The day he came out, we 
did not thresh any of any account. Our engine did not work 
right. So we did not give the machine a trial, and he promised 
to come back. He came back once, and did some little fixing 
about it, — showed me some points. Q. What led up to your tak- 
ing the straw stacker? What was the understanding? Say 
whether you bought it outright, or what you were to do with it, — 
take it out and try it? By the court: Just state the transaction 
had between you and Mr. Worden at the time you took the straw 
stacker out, or the substance of it. A. Well, at the time he came 
out to try the stacker, and put her in running order. At the time 
the machine did not work right, and he promised to come 
back, and get her rigged out and in running order. My recollec- 
tion of the conversation is that I was to take it out and try it, and 
if she proved to do good work, — to carry the straw off our separa- 
tor, — and to be made of good material, I was to keep her. If not, 
I was to return her. This was somewhere near the ist of Septem- 
ber. I took the straw stacker out. It did not work very good 
the first day. Mr. Worden was there when it started. Q. Did he 
make it work good before he went away? A. No. We run her 
for awhile." On cross-examination, Corrigan's testimony as to 
taking possession of the machine is as follows: *'It was about the 
1st of September that I got the stacker. I signed the written 
order for it some little time before that. I don't know exactly 
how many days I used the stacker that fall. Threshed some jobs 
with it. I used it some the next fall. Threshed some jobs with 
it. One job we did not finish, I know. Started on that, and she 
collapsed, — had a break up. I never took the machine back, but 
offered to take it back somewhere about the loth or 15th of Sep- 
tember, I think. I don't think that I took the machine out. Had 
some talk with Mr. Worden in regard to the machine being 
delivered. He did not ask me to pay for it in advance. Q. Did 
he ask you to give some notes in settlement? A. Yes, I signed • 
some notes. I did it on condition that he was to make everything 
work right." Corrigan further testified as follows: "Q. What 



REEVES & CO. V. CORRIGAN. 421 

agreement had you with Mr. Worden to keep it over the next 
season? A. The agreement was to keep it over, and he was to 
put it into good running order the next year. In the condition 
the machine was at the time I got it, it was not worth anything to 
me, and now lays about six miles out here. I offered to return 
the machine, but did not return it because Mr. Worden induced 
me to keep it. Q. For what reason? How did he induce you 
to keep it? A. He always claimed that he could make it work, 
and that it would work." In 1889, Corrigan sold his interest in 
the threshing outfit to his partner, Maddox; and, with respect to 
the stacker, Corrigan testified: **Q. Then any interest that you 
had or might have in the straw stacker was transferred to Maddox 
at the time the machine was transferred, as I understand it? A. 
Yes. Q. And, if Mr. Maddox was satisfied with the straw stacker, 
he was to pay for it? A. Pay for it .if it worked, — do good work." 
Thomas Gilbertson testified as to the circumstances attending the 
delivery of the stacker as follows: "Q. I will ask you if you 
heard the conversation between Mr. Corrigan and Worden at the 
time? A. Part of it, yes. Q. State what that conversation was? 
A. Well Mr. Corrigan was in favor at that time to take the 
stacker, as I heard, and, if the stacker didn't work, needn't keep 
it, and Maddox was in with him; and finally Mr. Worden talked 
him into taking the stacker, providing, if it — if the straw stacker 
— didn't satisfactorily work, that the stacker could be returned. 
That is as near as I can remember. Mr. Worden was coaxing 
these boys to take the stacker out, and he says. 'If it is not satis- 
factory you need not keep the stacker, but we will see that the 
stacker works satisfactory.' " Corrigan was recalled, and testi- 
fied that the understanding was that if they took the machine 
they were to pay $200 for it, according to the agreement. 

The court instructed the jury at length upon the issues in the 
case, and, among other things, charged the jury as follows: 
"Messrs. Corrigan & Maddox signed an order, and delivered it to 
Mr. Worden, the agent for the plaintiffs, for this machine, — for 
the purchase of this machine, when it came. That is not the 



422 NORTH DAKOTA REPORTS. 

contract of sale. That is a customary contract, called, in lieu of a 
better name, a *cdntract for a sale in the future.' The title does 
not pass. The machine is not delivered at the time the order is 
signed, and it is simply a contract for the sale of property in the 
future. When the machine came, and before Mr. Maddox and 
Mr. Corrigan took the machine, they had the power or the option, 
at the time, to say to these plaintiffs: *We will not take the 
machine on the terms of the written order. We have concluded 
not to take the machine on those terms.' They had a right to 
rectify the terms of that purchase. They had the right to 
refuse to take the machine at all. If you shall find that there 
was such a revocation of the terms of that order before the prop- 
erty was delivered, then, so far as the written order was changed, 
it will be superseded by the oral contract between the parties at 
the time this property was delivered to Corrigan & Maddox.'* It 
is unnecessary to quote the whole charge. We need only state 
that the court submitted the question to the jury, upon the evi- 
dence, whether, as a matter of fact, the stacker was delivered to 
the defendants under the terms of the written order signed by 
them, or whether that order was set aside or materially modified 
by the defendants by a new oral arrangement made at the time 
of the delivery between the defendants and plaintiff's agents at 
Lisbon. This question is submitted as the pivotal question in the 
case. The court further instructed the jury: "As to whether the 
machine worked or did not work is not material, in the view the 
court takes of this case. The simple question here is, did Messrs. 
Corrigan & Maddox buy the machine at the time they took it 
out? Did they buy it with a warranty, or did they take it on 
trial? If these defendant^ bought the machine with a warranty, 
they had a right to rescind the contract and return the machine, 
but it is not contended here that the defendants ever rescinded 
the contract. That is not claimed by the defendants in this suit." 
There are several assignments of error, but those chiefly relied 
upon in this court are as follows: '^ First, That the court erred in 
refusing to direct a verdict for the plaintiff. Second, The evidence 



REEVES & CO. V. CORRIGAN. 423 

is insufficient to justify the verdict. Thirds To the following 
instructions given to the jury, to which an exception was saved: 
'When the machine^came, and before Mr. Maddox and Mr. Corri- 
gan took the machine, they had the power or the option at the 
time to say to these plaintiffs: "We will not take the machine on 
the terms of the written order. We have concluded not to take 
the machine on those terms." They had the right to recify 
the terms of that purchase. They had a right to refuse to take 
the machine at all.' " 

We are clear that all of the assignments of error are valid, and 
must be sustained. As we view the case upon the record, the 
entire charge of the court to the jury, in so far as it related to the 
material facts and issues, proceeded upon a misconception of the 
law, as applicable to the conceded facts. We think it will be 
unnecessary in this court, and was unnecessary in the court below, 
to consider whether the order for the machine, at the time it was 
signed and delivered by the defendants to the plaintiff's agents, 
operated as an absolute sale, or whether or not the title then 
passed to the defendants. The real case before the trial court 
wai this: The order had been executed and delivered. It 
embraced every element essential to a proposal to purchase the 
machine, including a description of the machine, the time and 
place when and where it was to be delivered to the defendants, 
the sum to be paid for the machine, including the terms of credit; 
also, an agreement to pay freight charges from Columbus, Ind., 
to Lisbon, and an express agreement to receive and settle for the 
machine in cash and notes, as specified in the order. The plain- 
tiff, relying upon the legal validity of the order, had complied 
with the requirements thereof to be performed by the plaintiff, 
and had forwarded the machine to Lisbon, and by its agents 
there had requested the defendants to take it away, and settle for 
the same. Upon this state of facts, it was quite immaterial 
whether, in strictness, the title to the machine passed, or did not 
pass, at any time before defendants took possession. The 
material inquiry at this point was and is whether, when the 



424 NORTH DAKOTA REPORTS. 

machine was forwaded and offered to be delivered by plaintiff's 
agents to the defendants, they were under a legal obligation to 
comply with the terms of the order, and receive the machine 
under the order, and settle for the same. The trial court 
instructed the jury, in effect, that the defendants were under no 
such obligation. The court said: "When the machine came, and 
before Mr. Maddox and Mr. Corrigan took the machine, they had 
the power, at their option, at the time, to say to these plaintiffs: 
*We will not take the machine on the terms of the written order. 
We have concluded not to take the machine on those terms?' 
They had the right to rectify the terms of their purchase. They 
had the right to refuse to take the machine at all." No reason 
was offered by the learned trial court in support of its views, as 
above expressed, upon this feature of the case; and, from our 
point of view, no legal reason and no authority can be found in 
support of the instruction last quoted. It is, in our opinion, fun- 
damentally unsound to assert that a valid agreement, which is not 
assailed as being made fraudulently, or under a mistake of fact, 
or under duress, is not binding upon the parties to is simply and 
solely because one of the parties n^ay elect, without cause, to repu- 
diate it after it has been relied upon and performed by the other 
party. The claim is not made that, before or at the time the 
defendants took away the machine, they found any fault with its 
construction, or pretended that the plaintiff had not fully per- 
formed its part of the agreement in manner and form as stipulated 
in the order. Let it be conceded, for argument's sake, that the 
title did not pass in advance of an actual delivery of the machine 
to the defendants; and the fact will remain that the defendants, 
by their deliberate agreement, were bound to receive and settle 
for the machine, when it was offered to them. This agreement 
could not lawfully, and with impunity, be violated by the defen- 
dants; and, if they had actually refused to accept the machine 
under the contract, — which, so far as appears, they did not do, — 
they would, beyond a peradventure, have been liable in damages 
for their breach of contract. 



REEVES & CO. V, CORRIGAN. 425 

There is another objection to the above instructions, as given 
to the jury, which, as we view it, is equally fatal to the verdict: 
In its charge, the trial court overlooked — at least, did not com- 
ment' on — the following clause of the writing signed by the defen- 
dants: "This stacker is purchased and sold subject to the 
following warranty and agreement, and no one has any authority 
to add to or abridge or change it in any manner." If the alleged 
oral agreement was made at all, it was made by and between the 
defendants and the agents of the plaintiff, who were forbidden by 
the terms of the writing from making the change; and such pro- 
hibition was brought home to the defendants' knowledge in the 
very writing which they had signed, and upon which plaintiff had 
acted. The court, by its instruction to the jury, must have 
assumed that the inhibitory clause in the agreement was a mere 
nullity. Here also, the court below advanced no reason for this 
view of the matter, and we are confident that no good reason can 
be given. We think the restriction, upon the power of plaintiff's 
agents to alter, change or abridge a written contract, when once 
deliberately made with the plaintiff, is not only a reasonable re- 
striction, but is also a perfectly legal one, and will bind all per- 
sons dealing with plaintiff's agents, and having knowledge of the 
restriction. Fakey v. J^achifie Co.] (N. D.) 55 N. W. 580, 3 N. D. 
220. No claim is made that plaintiff ever waived the restriction. 

The views already expressed will necessitate a reversal of the 
order appealed from, but we may add to what has been said still 
another — and, we think, equally fatal — objection to the verdict. 
We think the evidence, all of which is certified up, does not justify 
the verdict. The jury, by their verdict, have said, in effect, that 
the written terms of the agreement, as stated in the order, were 
set aside; and a new and different agreement as to the terms of 
the delivery of the machine was made by parol, at the time 
when defendants took the machine away from Lisbon. A care- 
ful and repeated perusal of the evidence found in the record has 
served to convince us that the testimony in the case signally fails 
and comes short of establishing any such new and oral arrange- 



426 NORTH DAKOTA REPORTS. 

ment. In other words, the defense pleaded in the answer is, in 
our judgment, without support in the evidence. Plaintiff's agent, 
as has been seen, testified, pointedly and squarely, that he 
delivered the machine to the defendants under the written order, 
and in fulfillment of its terms. This was never contradicted by 
testimony. Defendants produced two witnesses, and only two, 
who testified as to the talk had on the occasion of the delivery of 
the machine to the defendants. We have already quoted from 
the record what was said by the two witnesses. To our minds, it 
is significant that their testimony discloses nothing like an effort 
on defendants' part to be relieved from their contract obligations 
as enibodied in the writing. It does not appear from the testi- 
mony that either of them refused to accept the machine upon the 
terms stated in the writing, nor does it appear that a request or 
suggestion was made at the time, looking to a desire on defen- 
dants' part of being released from the terms of the written agree- 
ment. Gilbertson testified: "Mr. Worden was coaxing these 
boys to take the stacker, and he says, 'If it is not satisfactory 
you need not keep the stacker, but we will see that the stacker 
works satisfactorily.' ■' Corrigan testified in substance to the 
same thing, and stated further: **Yes, I signed the notes. I did 
it on condition that he was to make everything work right." It 
would be unprofitable to reproduce the testimony at greater 
length in this connection. It is quoted above. We have read it 
carefully, and are satisfied that it harmonizes with the terms of 
the written agreement, with respect to receiving the machine, 
settling for it, trying it, and returning it if not satisfactory, all 
of which details were fully anticipated and provided for in the 
well guarded agreement which was reduced to writing. The 
statement made when the stacker was delivered, that it could be 
returned if it failed to do good work, was in entire harmony with 
the written contract, which expressly provided that in such event 
a new stacker would be given, which would fill the warranty, or 
the notes would be returned Upon the testimony adduced at the 
trial, we can find no support for the verdict. In the disposition 



STATE V. NOMLAND. 427 

of the case, we have had occasion to apply only the elementary 
principles of the law of contracts, and hence we have not con- 
sidered it necessary to fortify our views by the citation of numer- 
ous cases. It appearing conclusively from the record that the 
defendant Corrigan has no valid or legal defense to the plaintiff's 
cause of action, therefore the order appealed from must be 
reversed, and the District Court will be directed to enter judg- 
ment for the plaintiff, as demanded in the complaint. All .concur. 
(57 N. W. Rep. 80.) 



State ex rel Wm. H. Standish vs. Knud J. Nomland. 

Opinion filed December 7th, 1893. 

Constitutional Provision — Subject of Act Not Expressed in its Title — Act 
Void. 

Chapter 48, Laws 1893, entitled '*An act creating the office of the board of 
state auditors and prescribing the duties thereof,** and which provides that said 
board shall check up the books of the state treasurer at intervals, and ascertain 
the funds on hand, and shall, with the governor, designate certain depositories 
for such funds, and shall, with the governor, approve the bonds of such deposi- 
tories, and which requires the treasurer to deposit the state funds in such 
designated depositories, and requires such depositories to pay interest thereon, 
and relieves the said treasurer and Us bondsmen from liability for money so 
deposited, held^ void, as a violation of § 61 of the state constitution, because 
the subject of the act is not expressed in the title. 

Appeal from District Court, Burleigh County; Wiricfiester, J. 

Action by the State of North Dakota, at the relation of William 
H. Standish, attorney general, against Knud J. Nomland, state 
treasurer, for mandamus. There was judgment for plaintiff, and 
defendant appeals. 

Reversed. 

Frank V. Barnes, for appellant. 

This enactment is in violation of § 6, Art. 1 1 of -the constitution 
of the state in that it embraces more than one subject. The 



4^8 NORTH DAKOTA REPORTS. 

leading features of the act are neither expressed nor referred to 
in the title. The purpose of the provisions of § 6i Const, was, 
firsts to prevent ''hodge podge" or "log rolling" legislation; second, 
to prevent surprise or fraud upon the legislature; and third, to 
fairly apprise the people through such publication of legislative 
prpceedings as are usually made of the subjects of legislation that 
are being considered in order that they may have an opportunity 
of being heard thereon. Henderson v. London & Lane Ins, Co., 20 
L. R. A. 827; People v. Makaney, 13 Mich. 481; Hm. Mut. Ins. Co. 
V. New York, 8 N. Y. 241; State v. Davis, Co. Judge, 2 la. 280; 
Grubbs v. State, 24 Ind. 295; Harris v. People, 59 N. Y. 599; Cooleys 
Const. Lim. 173. The title to the act must express the subject 
so clearly as to give notice of the legislative purpose to those 
interested therein. Re Pottstown 117 Pa. 538; State v. Tucker, 48 
Ind. 355; State v. Demoncfiet, 3 So. Rep. 565; Brown v. State, 4 S. 
E. Rep. 861; Brooks v. People, 24 Pac. Rep. 553; Sanilac Co. v. 
Aplin, 36 N. W. Rep. 794, Gilbert v. McCarthy, 34 Minn. 318; 
State V. Cantiency, 34 Minn, i; Mississippi and Rum River Boom 
Co. V. Prince, 'i^At Minn. 79. 

Wm,. H. Standish, Atty Gen'l and /. B. Wineman, for respondent. 

Any provision of the statute incidentally connected with or 
leading to the subject or object expressed in the title will be 
included by it. State v. Haas, 2 K. D. 202, (50 N. W. Rep. 254;) 
State V. Woodmansee, i. N. D. 246, (46 N. W. Rep. 970;) State v. 
Barnes, 3 N. D. 131; Blake v. People, 109 111. 504. 

Bartholomew, C. J. Chapter 48 of the Session Laws of 
1893 is entitled **An act creating the office of the state board of 
auditor's and prescribing the duties thereof." The first section 
constitutes the secretary of state, the state auditor, and the attor- 
ney general such state board of auditors, and directs that as such 
board they shall examine the books and vouchers of the state 
treasurer, and ascertain the kind and amount of funds in the 
treasury, at least twice in each year, and make report of their 
doings in the premises to the governor; and they shall also witness 



STATE V. NOMLAND. 429 

and attest the transfer of books, property, and funds by an 
outgoing to an incoming treasurer, and report to the governor. 
The second section directs that all funds belonging to the state 
shall be deposited monthly by the state treasurer in one or more 
national or state banks in the state, such bank to be designated 
by such board of auditors and the governor, and such banks shall 
pay to the state interest on the monthly balances for funds so 
deposited at the rate of not less than 3, or more than 4, per cent, 
per annum. Section 3 provides what bond shall be given by such 
banks, and that the same shall be approved by the governor and 
said board; and § 4 exempts the state treasurer and his bondsmen 
from liability for all money so deposited by reason of the failure, 
bankruptcy, or other act of such bank. It is conceded that the 
board of state auditors, after strict compliance with all the pro- 
visions of the statute, designated certain banks within the state 
wherein the public funds should be deposited, and so notified the 
defendant, who is state treasurer, and requestcid him to deposit 
the public funds accordingly. The treasurer declined to comply 
with such request, and it is sought in this action to compel com- 
pliance by mandamus. The defendant bases his refusal upon two 
grounds, — the first being that the act above mentioned was never 
passed by the legislative assembly of this state; and second, that, 
if so passed, the act is unconstitutional and void. The trial court 
ruled both points adversely to defendant, and he appealed the case 
to this court. 

We shall notice but one ground of reversal. The act is assailed 
as in violation of § 61 of our constitution, which reads: **No bill 
shall embrace more than one subject, which shall be expressed in 
its title, but a bill which violates this provision shall be invali- 
dated thereby only as to so much thereof as shall not be so 
expressed." The equivalent of this provision is found in the con- 
stitution of nearly every state in the Union, and few provisions 
have been oftener before the courts for construction. Origin- 
ally, the provision was highly remedial in character. Under the 
old practice of uniting several subjects in the title of one act, or 



430 NORTH DAKOTA REPORTS. 

of stating one subject and adding "and for other purposes," much 
vicious legislation found its way to the statute books. Legisla- 
tors, interested in one object, were forced to support others of 
which they did not approve in order to secure favorable action 
upon their own measures, and laws were passed of which the 
public had no intimation until they had gone beyond the stage 
when petition or remonstrance could avail. This practice was 
effectually struct down by the constitutional provision above 
quoted. Sworn to support the constitution, legislators have sel- 
dom, if ever wantonly violated this requirement. When violated, 
it has generally been through inadvertance. The courts, recognizing 
the character of the evil sought to be effaced, have been slow to 
rigidly apply the provision to cases where such evils did not, and 
could not exist, particularly when the result of such rigid applica- 
tion of the provision would be only less mischievous than the evil it 
was intended to cure. An examination of the cases will show 
that the author might have used stronger language when he said, 
in speaking of this provision: "There has been a general dispo- 
sition to construe the constitutional provision liberally, rather 
than to embarrass legislation by a construction whose stricture is 
unnecessary to the accomplishment of the beneficial purposes for 
which it has been adopted." Cooley, Const. Lim. 176; and see 
the line of authorities there cited. In Mauch Chunk v. McGee, 81 
Pa. St. 433, it is said that "useful and honest legislation should 
not be defeated by rigid adherence to the letter of the constitu- 
tion, or pretext to be caught at to avoid legislation, when it can 
be fairly reconciled with the constitution." Legislation is often 
complex. The accomplishment of one purpose sometimes 
necessarily involves the accomplishment of another purpose. 
Refinement upon this constitutional provision, and the enforce- 
ment of a narrow construction, would greatly embarrass the legis- 
lature, and nullify a large percentage of most beneficial legislation. 
This court should be careful to destroy no legislation sanctioned 
by the law making branch of the state government unless such 
legislation be a clear violation of the constitutional requirement. 



STATE V.