ACCORD AND SATISFACTION.
I. The obligations of a written contract are not extinguished by__an
oral agreement for accord and satisfaction at a certain date. The
accord must be executed by a delivery and reception of the thing
agreed to be accepted in satisfaction. Arnett v. Smith, 55.
2. Held, that a certain oral agreement, referred to in the opinion, did
not amount to an accord and satisfaction, and was without legal
effect upon the rights and obligations of the parties as evidenced
by the written contract. Arnett v. Smith, 55.
1. Section 3491a, Rev. Codes 1899, construed and held, that the doctrine
of tacking possessions is not applicable. Streeter Jr. Co. v. Fred-
rickson, 300.
2. Held, in an action to quiet title and determine adverse claims under
$ 3491a, Rev. Codes 1899, it is necessary that taxes shall have
been paid on the premises claimed for ten years. Streeter, Jr. Co.
v. Fredrickson, 300.
ALTERATION OF INSTRUMENTS.
A written order for a threshing machine was altered to show pro-
vision for security, held, that the alteration was not a material one,
in view of the fact that the defendants had given such security,
and received the machine uninfluenced by the contents of the order
as changed. Machine Co. v. Ebbighausen, 466.
1. The rule by statute in this state, like that of common law, from which
it is taken, declares the owner of live stock liable in damages for
traspass by such stock on the lands of another. Ely v. Rosholt, 559.
2. When live stock, except hogs, between November 1st and April 1st,
range upon the uninclosed lands of another and injure personal
property thereon, the owner, or person in charge of such live stock.
is not liable for such damage in the absence of proof of willful in-
jury. Ely v. Rosholt, 559.
3. Under §§ 1549 and 6153, Rev. Codes, certain live stock is permitted
to run at large between November 1st and April 1st each year, and
are not permitted to run during the other months. except in those
counties where the provisions of chapter 42 of the Code of Civil
Procedure have been abolished. Ely v. Rosholt, 559.
APPEAL AND ERROR. SEE JUSTICE OF THE PEACE, 24; MAN-
DAMUS, I.
I. A motion to affirm a judgment, where trial de novo is demanded,
which is upon the sole ground that the statement of the case does
not contain all the evidence offered at the trial, will be denied, even
though the statement is insufficient to authorize a retrial, when
error is properly assigned in appellant's brief upon the judgment
roll proper. State v. Heinrich, 31.
APPEAL AND ERROR-Continued.
2. Where there is a conflict as to execution of a contract and the verdict
of the jury is supported by a clear preponderance of the evidence,
the verdict will not be disturbed. Talbot v. Boyd, 81.
3. The Supreme Court will, under rule 12 (6 N. D. xviii) affirm the order
appealed from where the appellant wholly fails to assign errors in
his brief. Wilson v. Kartes, 92.
4. Held, construing § 5605, Rev. Codes, that the written notice of the
entry of judgment required by said section to set the time for
appeal running in order to be available against an appellant must
be served upon such appellant by his adversary, and that service by
an appellant upon the respondent does not operate to limit appel-
lant's time for appeal. Prescott v. Brooks, 93.
5. Under 8 5630, Rev. Codes, the only retrial authorized is upon an
appeal from the entire judgment and complete transference of
jurisdiction to the Supreme Court. Held, that where the appeal
is from a portion of the judgment, with a request for the retrial
of only a portion of the case, no jurisdiction is conferred on the
Supreme Court and the appeal will be dismissed. Prescott v.
Brooks, 93.
6. A reference having been consented to, counsel cannot be heard to
object thereto for the first time on appeal. Clopton v. Clopton, 212.
7. An application to the district court for a new trial, based upon newly
discovered evidence, and also on the ground that the evidence
given at the trial is insufficient to justify the verdict is addressed
to the sound judicial discretion of the court. Pengilly v. Case
Mach. Co., 249.
8. An order granting a new trial will be affirmed in the absence of
a showing of an abuse of discretion. Pengilly v. Case Mach.
Co., 249.
9. Upon an appeal from an order granting a motion for new trial, which
is made upon a statement of the case, the appellant must embody
in his abstract such portions of the statement as will establish
the errors upon which he relies for a reversal. In case of a
failure so to do the order will be affirmed. McMillan v. Conat, 256.
10. In an action for the purchase price an instruction to the jury that a
substantial compliance with the contract would entitle the plain-
tiff to a full recovery, held error. Held, further, that the instruc-
tion was without prejudice, for the reason that the jury found
that there was not a substantial compliance. Society v. Hil-
dreth, 262.
II. On the trial an answer was allowed to the following question, duly
objected to "Did the defendant corporation, *** or anyone of
them, pay back to you the $53.24?" Held prejudicial error for
which a new trial will be granted. Thompson v. Ins. Co. 274.
12. An appeal will be dismissed where it is taken from a part of the
judgment only. Crane v. Odegard, 342.
13. Held, that where an application is made under § 5298, Rev. Codes.
1899, to set aside a default judgment, it is addressed to the sound
judicial discretion of the court, and the order of the trial court
will not be disturbed unless it clearly appears that there has been
an abuse of discretion. Wheeler v. Častor, 347.
14. Held, that orders of the trial court setting aside default judgments
are seldom disturbed where the court below directs a new trial
on the merits. Wheeler v. Castor, 347.
APPEAL AND ERROR-Continued.
15. Held, that the instructions upon which the case was submitted to
the jury were not misleading, or prejudicial to the defendant, and
that the motion for a new trial was properly denied by the trial
court. State v. Thoemke, 386.
16. Held, that the court did not err in denying defendants motion for a
new trial. Nokken v. Mfg. Co., 399.
17. In an action to recover damages caused by the alleged negligence of
the defendant, held, that the court did not err in submitting the
question of the defendant's negligence to the jury. Nokken v. Mig.
Co., 399.
18. The granting or refusal of a preliminary injunction, as well as the dis-
solution of the same, rests in the sound judicial discretion of the
trial court, which will not be reversed or controlled except for
error or abuse. Dickson v. Dows, 404.
19. Held, that the order of the trial court dissolving a temporary injunc-
tion was properly made, and is affirmed. Dickson v. Dows, 404.
20. In an action for the foreclosure of a contract for the sale of land,
where the complaint in intervention does not show that the inter-
vener would either lose or gain as a result of a judgment in the
action, the district court erred in refusing to strike out its ex-parte
order permitting the intervention. Dickson v. Dows, 407.
21. Held, that error cannot be predicated on a ruling sustaining an objec-
tion to a question when the answer called for is thereafter fully
given by the witness. Bank v. Monson, 423.
ASSIGNMENT FOR BENEFIT OF CREDITORS.
In an action to compel the assignee, after a full accounting and dis-
charge, to account anew, Held, that the complaint fails to state a
cause of action. Freeman v. Wood, 1.
I. In an action brought to recover damages for alleged breach of con-
tract, an attachment levied on property of the defendant, a non-
resident, brought into this state for lawful purpose, will be set aside.
Woodhull v. Trust Co., 157.
2. Where a receiver has obtained rightful possession of personal prop-
erty within the jurisdiction of his appointment, he will not be de-
prived of its possession, when in the performance of his duty, he
brings the property into this state. Woodhull v. Trust Co., 157.
3. If the property is seized by a creditor prior to the appointment of
the receiver, or before his taking possession in the state of his
appointment, attachment will lie. Woodhull v. Trust Co., 157.
ATTORNEYS. SEE DISTRICT AND PROSECUTING ATTORNEYS.
1. Held, upon the facts stated, that in procuring the judgment to be en-
tered the accused was guilty of deceit whereby the court was misled
and fraudulently induced to enter a judgment which it did not desire
and had not directed to be entered. In re Freerks, 120.
2. Held, that a fraudulent use was made of a false and fraudulent judg-
ment by an attorney. In re Freerks, 120.
3. Held, that in committing the fraud stated the attorney was guilty of
such unprofessional conduct as would warrant suspension from
practice or disbarment under § 428, Rev. Codes. In re Freerks, 120.
4. Under extenuating circumstances stated in the opinion attorney was
suspended, to be conditionally reinstated upon terms stated. In re
Freerks, 120.
5. Held, that while supreme court has authority to discipline attorneys,
as a general rule disbarment proceedings should be initiated in
the district court. In re Freerks, 120.
6. Where an attorney procures his admission to the bar by a gross and
inexcusable act of deception practiced upon the court, the order
admitting him will be revoked. In re Olmstead, 306.
7. Held, upon the showing stated in the opinion, that the applicant
should be restored to practice. In re Simpson, 526.
8. A court which has the power to suspend or disbar an attorney also
has the power to reinstate. In re Simpson, 526.
9. Upon application for reinstatement, the mere formal proof of good
moral character required for admission is not enough; the proof
must be of a satisfactory character, and of sufficient weight to
overcome the former adverse judgment. In re Simpson, 526.
10. It is the duty of attorneys to maintain the respect due courts of law,
and to refrain from offensive language, either towards the court,
counsel or witnesses. In re Voss, 540.
ATTORNEY AND CLIENT. SEE PRINCIPAL AND AGENT, I.
ATTORNEY GENERAL. SEE COURTS, 2, 4; QUO WARRANTO, 3.
AUSTRALIAN BALLOT. SEE ELECTIONS, 12.
A cashier's check is not subject to countermand like an ordinary
check. The relations of the parties are analogous to those in con-
nection with a promissory note. Drinkall v. Bank, 10.
BICYCLES. SEE MUNICIPAL CORPORATIONS, I-4.
1. The title of an endorsee of a negotiable note is defective when the
consideration is unlawful, or the indorsement is procured by un-
lawful means. Drinkall v. Bank, 10.
2. Payment, to effect a discharge, must be made to the rightful holder,
or his agent; but possession of a negotiable instrument indorsed in
blank by the payee is prima facie evidence of holder's right to pay-
ment, and payment to such a holder, made in good faith and in
ignorance of defects in his title, will discharge the instrument.
Drinkall v. Bank, 10.
3. Held, that the endorsement and delivery of a cashier's check by payee
to a gambler in payment of chips to be used for gambling does not
make the gambler a holder in due course, and his title thereto is
defective. Drinkall v. Bank, 10.
4. Held, there is substantial evidence to sustain the finding of the jury
that defendant maker of check had notice of defects in indorsee's
title prior to making payment. Drinkall v. Bank, 10.
Held, that a written instrument which authorized real estate brokers
to sell "the following described property," conferred only ordinary
authority, and did not authorize them to sign defendant's name to
the contract of sale. Brandrup v. Britten, 376.
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