ABATEMENT AND REVIVAL.
1. In an action for the conversion of grain under a croppers' contract, it is
held, for reasons stated in the opinion, that no error prejudicial to the
defendant occurred in the trial of the case. Littler v. Halla, 180.
1. In an action to recover damages for the destruction of certain hay it is
held that the trial court properly refused to direct a verdict, or order
judgment notwithstanding the verdict, in favor of the defendant. Griffin
v. Wiese, 58.
1. Where one party adopts a form of inquiry for the purpose of eliciting cer-
tain facts, he cannot predicate error upon the adoption of the same form
by the adverse party. Prescott v. Merrick, 67.
2. Where at the close of the trial a party informs the trial court that there
is only one issue of fact to submit to the jury, he cannot be heard to
say on appeal that there were other questions of fact which should have
been submitted. Marshall Wells Co. v. Regan, 125.
3. In an action to determine adverse claims where the answering defendant
has asserted the lien of its mortgage and demanded foreclosure thereof,
and where, pursuant to stipulation, an abstract of title has been in-
troduced showing such mortgage and also proof of the indebtedness for
which the mortgage is security, and where the possession of the power
of attorney has not been alleged in the answer, it is held, upon appeal,
for reasons stated in the opinion, that the appellant is in no position to
question the due execution of the mortgage nor the absence of pleading
or proof concerning the possession of a power of attorney. Fendrich v
Buffalo Pitts Co. 201.
4. An action is brought to recover for money had and received, and for the
purchase price of certain merchandise. The court directed a verdict in
favor of defendant and for dismissal of the action, which, for reasons stated
in the opinion, is held to be reversible error. Harris v. Hessen, 330.
APPEAL AND ERROR-continued.
5. In an action under the Newman Act (Comp. Laws 1913, § 7843), prior to
the amendment of chap. 8, Laws 1919, the supreme court upon appeal
reviews the proper testimony in the record, and it is to be presumed that
the findings of the trial court are based upon proper testimony in the
record, unless the contrary is made to appear. Roberge v. Roberge, 402.
6. Where no motion for dismissal as to the railway company was made until
the close of the plaintiff's case, and where no facts appear in the record
showing that the defendant railroad administration was denied a fair
trial by reason of the joinder of the railway company as defendant,
failure to dismiss the action as to the railway company is not pre-
judicial error requiring a reversal as to the Federal railroad administra
tion. Morrell v. Northern P. Ry. Co. 535.
7. Where the district court has made its order opening and vacating a
judgment entered by default against a garnishee, for the purpose of per-
mitting a meritorious defense, its action, as a rule, will not be disturbed,
unless an abuse of discretion appears. Truax v. Alton, 548.
8. This is an appeal from a judgment against the Director General of Rail-
roads and the railway company for $500 and interest, as the value of
four horses that were turned out on the prairies in January and Feb-
ruary, 1918 and killed on a crossing by one of defendant's trains. It is
held: (1) The admission of evidence to establish that other trains not
shown to have been equipped as the train in question did not ring the
bell or sound the whistle, upon approaching the crossing, was prejudicial
error, requiring a reversal of the judgment. Brown v. Minneapolis, St.
P. & S. Ste. M. Ry. Co. 582.
9. Where during cross-examination of a party, counsel persists in pursuing
an improper line of examination for purposes of affecting credibility,
the questions asked relating to the witness's commission of prior petty
offenses, and the rulings thereon, being accompanied by intimations of
possible admissibility for certain purposes, it is held that the asking of
the questions and the pursuit of the line of examination was prejudicial
error. Piechotta v. Fried, 620.
1. Defendants were charged with the crime of an assault with a dangerous
weapon with intent to do great bodily harm, and convicted of a simple
assault. The sentence of each is to pay a fine of $25 and costs, with
imprisonment until the same is paid. The verdict is well sustained by
the evidence and the judgment is affirmed. State v. Klemmons, 177.
2. Where the defendant had been arrested on a criminal charge of assault,
and upon preliminary hearing before a police magistrate had not testi-
ASSAULT AND BATTERY-continued.
fied in his own behalf and had been bound over to the district court, the
action of the magistrate in binding him over is admissible in a civil
action to recover damages for the same assault. Piechotta v. Fried, 620.
1. Under Sec. 5446, Comp. Laws 1913, a cause of action for the breach of
a covenant of seisin is assignable. Beulah Coal Min. Co. v. Heihn, 646.
2. Where an action for breach of a covenant of seisin is brought by an as-
signee of the grantee, and it is shown that the assignee paid to his
assignor the same consideration which the assignor paid to his grantor,
the assignee is entitled to recover the same damages that the grantor
might have recovered if he had maintained the action. Beulah Coal
Min. Co. v. Heihn, 646.
1. In this proceeding it is held that the findings of the referee to the effect
that the accused attorney misappropriated funds which he had collected
for, and which belonged to, his client are fully sustained by the evidence;
and it is ordered that he be disbarred. Re L. N. Torson, 200.
1. Where an original application is made which seeks to restrain and prohibit
the further continuance of alleged wrongful acts by the attorney general,
the supreme court may exercise its original jurisdiction independent of
any application to or the consent of such attorney general. State ex rel.
Lofthus v. Langer, 462.
1. Plaintiff brought an action to recover upon a debt discharged in bankruptcy,
on the theory that a new promise of payment, by the debtor, after the
adjudication, had revived the same. The case was tried to a jury, and,
after the evidence was submitted, the court directed a verdict in favor
of the defendant, on the ground that there was no evidence showing a
new promise. It is held, for reasons stated in the opinion, that the court,
in directing a verdict, was not in error. Holden v. Chamberlin, 353.
1. Where the payee of a note transfers it by indorsement to a bank in which
such payee is a director but not an active officer, the director's knowl
edge of the true consideration is not imputed to the bank. First Nat.
Bank v. Carroll, 62.
BANKS AND BANKING-continued.
2. In this country there are two different theories as to the liability of banks
which undertake the collection of commercial papers at a distance. One
has become known as the "New York rule," and the other as the "Massa-
chusetts rule." Under the so-called "New York rule," the bank which
receives such paper in the first instance is responsible for the conduct of its
correspondents and subagents as fully as though it had performed the
entire service itself. Under the "Massachusetts rule" the bank which
receives out-of-town paper for collection is responsible only for its own
negligence, and not for the negligence of its correspondents or subagents.
In the instant case it is held that the evidence does not justify a re-
covery under either rule. Verret v. State Bank of Rolla, 220.
3. In a criminal prosecution, under chapter 57, Sess. Laws 1915, for making
false entries in the books of a banking association, where the informa-
tion charged the defendant, the cashier of the bank, with making cer-
tain false entries in the "Daily Balance and General Ledger," of the bank,
and where the evidence showed that the defendant managed the bank
and was responsible for the condition of its books; and that he personally
made false entries in the certificate of deposit book, a book of original
entry, from which the bookkeeper in regular course carried them into
the “Daily Balance and General Ledger," it is held: (1) There is no
variance between the allegations of the information and the proof. (2) A
managing officer of a bank, responsible for the condition of the books and
who has knowledge of the manner in which they are kept, may be charged
with criminal responsibility for a false entry in the ledger made by the
bookkeeper, where he, the managing officer initiated the false entry in a
book of original entry. (3) Where the information charges the defendant
with falsifying specific certificate of deposit entries, resulting in the
showing of a false total of certificates of deposit outstanding, it is not
incumbent upon the state to prove that the falsity of the total was
unaffected by other transactions. (4) In a prosecution under chapter
57, Sess. Laws 1915, for making false entries in the books of a banking
association, gain to the defendant or prejudice to the banking association
is not an ingredient of the offense. (5) Evidence may properly be excluded
if, in the state of the record at the time it is offered, it is in its nature
cumulative and calls for a conclusion of the witness which the jury can
readily draw from the testimony preceding. (6) Where the defendant
had corrected the false entries, and where he testified that their falsity
was originally due to accident and mistake, and the corrections were made
for the sole purpose of rectifying the books and making them correct, no
error was committed by the trial court in sustaining objections to ques-
tions inquiring as to whether the defendant had realized any gain to
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