MECHANICS' LIENS-continued.

ent therefor, a mechanic's lien which arises by operation of law upon the
filing of a lien statement for building materials furnished does not attach
to land acquired under the homestead laws, where the debt was contracted
and the materials furnished before the patent was issued.
Lumber Company v. Erickson, 365.

MORTGAGES.

Bovey-Shute

1. Where the owner of land executes a mortgage thereon to secure a note long past due at the time of the execution of the mortgage, and there is no new or independent consideration for the mortgage and no extension of time of payment of the note, and the payee has surrendered no existing legal rights, and there is no new note, payable on demand or at a future time, taken at the time of the execution and delivery of the mortgage, held that the wife of the mortgagor, who signed the mortgage with her husband, was merely a surety. Maas v. Rettke, 63.

2. And further, held that there was no consideration, so far as she was concerned, for the execution and delivery of the mortgage, it also appearing that she received no part of the consideration of the past due note which the mortgage was given to secure. Maas v. Rettke, 63.

MUNICIPAL CORPORATIONS.

1. As it appears, the city of Bismarck granted to plaintiff's assignor a fran chise to use the streets of the city of Bismarck to serve gas to the city and the people. The franchise did not fix the rates for gas, but it did clearly fix the highest rate that might be exacted. And the grantee agreed in writing to furnish gas at prices not to exceed the limited rate. There is no claim that the contract was made without consideration, or that it was effected by fraud, duress, or imposition. Hence the gas company has no right to charge for gas any sum in excess of the limited rates. Bismarck Gas Company v. District Court of Burleigh County, 385.

NEGLIGENCE.

1. In January, 1916, at Minot, the plaintiff was in the employ of the defendant. His business was on the evening of each day to fill with coal the tender of a switching engine, by shoveling the same from a coal dock adjacent to the tender. By attempting to step from the tender onto the edge of a plank,the near side of the coaling dock,-and to walk the edge of the plank, the plaintiff lost his footing and fell some 3 feet between the coal dock and the tender, and was badly hurt. The plaintiff's injury was not caused by the negligence of the defendant or of any of its employees, or by reason of any defect or insufficiency in its cars, engines or appliances. Hence the plain41 N. D.-43.

NEGLIGENCE-continued.

tiff has no cause of action. Vanevery v. Minneapolis, St. Paul & S. Ste. Marie R. Co. 599.

NEGOTIABLE INSTRUMENTS.

1. A holder in due course of a promissory note must establish his good faith, as a matter of law, either by direct and uncontradicted testimony or by circumstances which show consistently the good faith of his purchase so that no fair-minded person can draw any other inference therefrom. Sweet v. Anderson, 375.

2. Where the plaintiff, claiming to be the bona fide holder of a promissory note in due course, does not testify that he purchased the same in good faith, and where the surrounding circumstances show that for several years prior thereto, he was the attorney for, and a stockholder in, the corporation named as payee in, and the indorser of said note, and was possessed necessarily or impliedly of such knowledge as might lead fair-minded men to draw different inferences concerning his good faith, the question of the good faith of such holder is for the jury. Sweet v. Anderson, 375.` 3. This is an action on a promissory note of the Jamestown Gas Company. This note was given for the balance of an account due from the gas company to the plaintiff. It was made in the name of the company by one A. D. Grant, who was the general agent, general manager, secretary and treasurer of the company. It is held that Grant had ostensible authority to execute the note on behalf of the gas company. MacKay v. Jamestown Gas Company, 471.

NEW TRIAL.

1. Defendant in due time made a motion for a new trial on the ground of newly discovered evidence. The motion was overruled, and in this there was no error. State v. Hiertz, 55.

2. Where a party invites, and in effect consents to, a ruling, he is ordinarily estopped from asserting that the ruling was prejudicial. Chaffee Bros. Company v. Powers Elevator Company, 94.

3. An order denying a new trial entered subsequent to the judgment cannot be reviewed on an appeal from the judgment. Chaffee Bros. Co. v. Powers Elevator Company, 94.

4. This is a personal injury suit in which plaintiff seeks to recover for an injury resulting from the alleged negligence of the defendants. For error in the instructions, the judgment is reversed and the case remanded for a new trial. York v. General Utilities Corporation, 137.

5. Under the provisions of § 8 of chapter 31 of the Laws of 1913, it will be presumed on appeal that a new trial was not granted on account of the insufficiency of evidence to support the verdict, unless the insufficiency or unsat

NEW TRIAL-continued.

isfactory nature of the evidence is expressly stated in a memorandum
prepared by the trial judge. Pratt v. Huber Mfg. Co. 301.

6. Where a complaint is for actual fraud and the special findings negative such
fraud, and the findings otherwise sufficiently cover the issues of the case,
it is error to set aside a judgment rendered on such findings and to order a
new trial. Pratt v. Huber Mfg. Co. 301.

7. Defendant was convicted of grand larceny and sentenced to state's prison for
not more than five years nor less than one year, and he appeals to this
court. He assigns error based on objection and exceptions to the evidence
and the charge to the jury. Held, the record shows no error and does
show that defendant has had a fair trial. State of North Dakota v. Dodds,

326.

PARENT AND CHILD.

1. Although the usual presumption is that services rendered by a child to its
parents are gratuitous, in the absence of an express contract therefor, never-
theless, where the circumstances are exceptional and the character of the
services rendered peculiar, a contract may be implied to pay for such serv
ices. Bergerson v. Mattern, 404.

PRINCIPAL AND SURETY.

1. In such action a defendant surety, to avail itself of the defense of exon-
eration under § 6683, Compiled Laws 1913, requiring a creditor to proceed
against the principal upon the requirement of the surety, must allege in
its answer a reasonable notice and demand to proceed against the principal
and prejudice resulting to the surety by reason of the failure of the cred-
itor to do so. Brioschi-Minuti Company v. Elson-Williams Construction

Co. 628.

PUBLIC LANDS.

1. Under § 2296, Ü. S. Rev. Stat. which provides that no lands acquired under
the homestead laws of the United States shall in any event become liable
to the satisfaction of any debt contracted prior to the issuing of the patent
therefor, a mechanic's lien which arises by operation of law upon the filing
of a lien statement for building materials furnished, does not attach to
land acquired under the homestead laws, where the debt was contracted
and the materials furnished before the patent was issued. Bovey-Shute
Lumber Co. v. Erickson, 365.

QUIETING TITLE.

1. In an action to determine adverse claims, where the executor and the heirs

QUIETING TITLE-continued.

at law of the estate of the deceased are parties thereto, and the findings of the trial court are in favor of the estate, the judgment thereupon should quiet title in the heirs at law, and in the executor for purposes of administration. Druey v. Baldwin, 473.

2. In an action to determine adverse claims, where the plaintiff asserts a title as vendee, under a contract for a deed, and where the appellant under a general denial seeks to defeat the title of the plaintiff by reason of a resulting trust and a conveyance made to defraud creditors, it is incumbent upon the appellant to establish such resulting trust of conveyance made to defraud creditors by clear, substantial and satisfactory proof. Bernauer v. McCaull-Webster Elev. Co. 561.

3. Held, under the evidence, that the trial court properly denied title in the plaintiff, as vendee, in a contract for a deed as against the claims of the appellant herein, asserting liens upon the premises involved made by a third party to whom the appellant asserted that the title in such contract for a deed inured by reason of a resulting trust, or by reason of the conveyance having been made to defraud creditors. Bernauer v. McCaullWebster Elevator Co. 561.

RAILROADS.

1. The Board of Railroad Commissioners have no general or inherent powers authorizing them to require railroad companies to establish stations at places not possessing the requisites described in the statutes. Aandahl v. Great Northern Railway Company, 577.

2. Section 4656 of the Compiled Laws of 1913 does not authorize the establishment of a new station within 5 miles of another station established in this state. Aandahl v. Great Northern Railway Company, 577.

3. Where a railroad company establishes a stopping place for receiving and discharging passengers, the Railroad Commissioners have authority to require the construction and maintenance of a platform and building sufficient for the accommodation of such traffic. Aandahl v. Great Northern Railway Company, 577.

4. Held, by a majority of the court, that the evidence in the instant case is insufficient to show that a stopping place has been established and advertised by the railroad company. Aandahl v. Great Northern Railway Company, 577.

RECORDS.

1. The purpose of the registration statute is merely to give subsequent purchasers and creditors a ready means of seeing the records of prior conveyances. When a person is in possession under a conveyance, or where a party has actual or constructive notice of the same, then the recording statute

RECORDS continued.

does not apply. Good faith means good faith; it means an honest intention
to abstain from taking an unconscientious advantage of another, even
through the forms and technicalities of the law. Mueller v. Bohn, 537.

SALES.

1. In an action for the recovery of damages for breach of warranty in the sale
of ewes, which warranty related to the time when the ewes would lamb, it
is held that there is ample evidence from which the jury could find an
express warranty. McCurdy v. Aylor, 187.

SCHOOLS AND SCHOOL DISTRICTS.

1. In an action brought by citizens and taxpayers residing within an area
affected by the proceedings of a board of directors of a special school dis-
trict annexing territory to the district, it is held that a complaint which
alleges the nonexistence of facts required to give the school board authority
to enlarge the district states a cause of action. Weiderholt v. Libon
Special School District, 146.

2. The legality of proceedings of a school board in reforming a district by add-
ing territory thereto, which could have been tested at the common law by
a writ of quo warranto or by information in the nature of quo warranto
may be tested in this state by a civil action in the district court under §
7969 of the Compiled Laws of 1913. Weiderholt v. Lisbon Special School
District, 146.

3. Section 400 of the Compiled Laws of 1913, making it the duty of the board
of health to make and enforce all needful rules and regulations for the
prevention and cure of contagious and infectious diseases, is construed and
held not to authorize the board of health to issue an order denying to chil-
dren the right to attend the public schools except upon condition of being
vaccinated, where it appears that there is no prevailing epidemic of small-
pox and no imminent danger from this disease is reasonably to be antic-
ipated. Rhea v. Board of Education, 449.

4. Sections 1346 and 426 of the Compiled Laws of 1913, defining the duties of
school officers with reference to the supervision of the health of school
children and their exclusion from school when infected with infectious or
contagious diseases, are construed and held not to authorize the exclusion
for nonvaccination, in the absence of a showing of danger due to the exist-
ence of smallpox in the community, or that such danger is reasonably im-
minent. Rhea v. Board of Education, 449.

5. Section 425 of the Compiled Laws of 1913, which provides for the vaccina-
tion of minors, and § 426, which enumerates the causes for which children
may be excluded from school, among which nonvaccination is not included,
are construed together, and it is held that the reasonable construction is