the crime charged, unless such proof fairly and reasonably tends to show
such motive. State v. Hakon, 133.
Sa. It is error to admit proof of acts and declarations of third persons not in
the presence of the defendants, unless a conspiracy has been shown between
the persons making such declarations or doing such acts and the defend-
ants, and that such acts or declarations were made or done in furtherance
of the object of the conspiracy. State v. Hakon, 133.
9. Where the information simply charges malicious and felonious administering
of poisons to domestic animals, it is error, in view of the provisions of the
statute, to show the poisoning of such animals by exposing poison with
intent that it shall be taken by them. State v. Hakon, 133.
10. Held that the findings of the trial court in favor of the accused on certain
charges are sustained by preponderance of the evidence, but the
charge that he has been guilty of disrespect to the court in connection with
proceedings in a certain transaction set out in the evidence is not supported
by any evidence regarding that transaction. In re Maloney, 157.
11. Held, further, that the charge of attempting to deceive the court in violation
of his duty as an attorney is not sustained by that degree of clearness
which justifies the court in suspending an attorney, particularly in view
of the accused's explanation of the transaction and the absence of evidence
in direct conflict with his version. In re Maloney, 157.
12. Following Bank v. Flath, 10 N. D. 81, 86 N. W. 867, that plaintiff, a pur-
chaser in due course, etc., of a negotiable note, must show himself such,
when the defendant pleads and shows that the note was obtained by the
payee through fraud, or negotiated in breach of faith, and it is sufficient
that plaintiff shows a purchase for value and before maturity; and, fur-
ther, that good faith does not require the purchaser to inquire as to the
purpose for which the note was given, or as to possible defenses, and bad
faith is only imputed from knowledge or notice of fraud or defense, and
mere knowledge or notice of suspicious circumstances will not defeat
recovery. Held, further, this rule has not been relaxed by the negotiable
instrument law. Am. Nat'l Bank v. Lundy, 167.
13. To defeat recovery on a negotiable note, purchased before maturity, for fraud
in the inception of the note or negotiated in breach of faith, the indorsee's
actual knowledge of the infirmity or defect, or knowledge of facts amount-
ing to bad faith, must be shown. Am. Nat'l Bank v. Lundy, 167.
14. Sec. 6702, R. C. 1905, provides that constructive notice is notice imputed
by the law to a person not having actual notice, and § 6703, R. C. 1905,
that every person who has actual notice of circumstances sufficient to put a
prudent man upon inquiry, and who omits to make such inquiry with rea-
sonable diligence, is deemed to have constructive notice of the fact itself,
since the enactment of the negotiable instrument law can have no appli-
cation to actions upon negotiable instruments in the hands of indorsees
before maturity, if they ever had such application, being superseded by
§ 6358, which defines notice in such case as actual knowledge of the in-
firmity or defect, or knowledge of such facts as to amount to bad faith.
Am. Nat'l Bank v. Lundy, 167.
15. In an action by an indorsee, before maturity, on a negotiable promissory
note, proof that others than the defendants had given notes for a similar
consideration, which were in the plaintiff bank, for collection, which bank
had been informed by the makers that they suspected fraud in such notes,
who thereafter informed the bank that matters were satisfactory and paid
the notes, is inadmissible. Am. Nat'l Bank v. Lundy, 167.
16. In a prosecution for violations of the prohibition law, a list of special tax-
payers, certified by the internal revenue collector, including defendant's
name, was received over objections. Held, error for reasons stated in the
opinion. State v. Gottlieb, 179.
17. Defendant's receipts for freight shipments are competent evidence as admis-
sions against him. State v. Tracy, 205.
18. Court's caution to the jury during the trial held sufficient, in the absence of
a request by defendant for more definite instructions. State v. Tracy,
205.
19. It was stipulated that assured died by strychnine poisoning, whether adminis-
tered by deceased, and if so, with suicidal intent, is left to mere inference
by the testimony, and was a question of fact for the jury, and not of law
for the court. Held, defendant's motion for directed verdict, properly
denied. Paulson v. M. W. of A. 235.
20. The law presumes that the insured did not commit suicide, but that the
strychnine was administered through accident or mistake, and the burden
of proof is upon defendant to overcome such presumption. Paulson v.
M. W. of A. 235.
21. Where a fact in issue rests solely upon inferences to be deduced from other
facts, and it can be said that reasonable men might fairly differ as to the
inferences to be deduced from all the circumstances disclosed, it is a
proper case for the jury. Paulson v. M. W. of A. 235.
22. Evidence in this case does not show a contract, and the trial court properly
directed the jury to find for the defendant. Kane v. Sherman, 249.
23. The acceptance of rent, as referred to in § 5531, only operates as evidence
that the landlord consents to the renewal or extension of the contract;
and where the evidence is adequate to establish the fact of such consent
without his having received rent, the receipt or failure to receive rent is
not material. Wadsworth v. Owens, 255.
24. In this case the evidence shows no agreement to merge titles, and they will
be kept separate. May v. Cummings, 281.
25. In the absence of evidence of the value of the occupation of lands, the mort-
gagor is not entitled to any credit upon his notes. He has the burden of
showing such value. May v. Cummings, 281.
25a. Courts will protect the use plaintiff in the control of the suit, and the
nominal plaintiff cannot end the litigation by a deed to the defendant, after
he has transferred his title to the use plaintiff. In this action, however,
the defendant's deed was given prior to the deed to the use plaintiff, and
the defendant may plead and prove same as a defense against the use
plaintiff. Hanitch v. Beiseker, 290.
26. The evidence examined, and held to show that the employment of the defend-
ants by the plaintiff was under a contract authorizing them to act as
factors for the plaintiff, and not as plaintiff's brokers. Hence, defendants
had the right to purchase grain in their own names, and ship the same
to plaintiff, retaining title in themselves as security for their advances to
plaintiff. Turner v. Crumpton, 294.
27. The Code regulating appeals from justice courts requires appellant to furnish
appeal bond with sufficient surety, to be approved and filed with the clerk
of the district court. Appellant took such appeal and filed the under-
taking; the clerk failed to indorse the filing and his approval thereof,
but filed the undertaking, and notified the justice to transmit the record to
the district court, as required by § 8507, R. C. 1905. Held, that such
notice, which could only be given upon the approval of the undertaking,
presumes such approval, notwithstanding the failure to indorse the same.
Schulz v. Dahl, 302.
28. Plaintiff offered to show that all conditions of the subscription paper were
complied with by respondent. Appellant offered to prove a parol agree-
ment with the pastor, who took the subscription, that it should not be
binding unless such pastor continued with the church, and that he did
not so continue; and that appellant undertook to cancel his subscription
when about $3,000 were subscribed. Held, not error to exclude the offer;
as appellant's counsel stated that he could not show that $6,000 was not
provided for when the cancelation was attempted. Thompkins v. Dennie,
305.
29. While bastardy proceedings are quasi criminal in their nature, the trial of
the action under § 9653, R. C. 1905, is governed by the rules of civil trials,
and the state has the burden of proving its allegations by a fair prepon-
derance of the evidence only. Instructions requiring a stronger degree
of proof were properly refused. Instructions given, examined and found
correct. State v. Brandner, 310.
30. Trial courts have wide discretion as to leading questions. The complainant
was eighteen years old, without education, and testified through an inter-
preter. She was being examined about acts of illicit intercourse and the
birth of a bastard child, born to her three weeks prior to the trial. Under
those circumstances, leading questions by the state were properly allowed.
State v. Brandner, 310.
31. Where mortgaged wheat is sold to an elevator company, and no act of con-
versation is shown until a demand and refusal to deliver, it is error to
direct a verdict for the plaintiff mortgagee suing for conversion, when the
only evidence of value relates to a time practically a month prior to de-
mand and refusal. Towne v. St. Anthony & Dak. Elevator Co. 8 N. D. 200,
77 N. W. 608; Citizens Nat'l Bank v. Elev. Co. 335.
32. In an action by a second mortgage of wheat, against an elevator company
for converting such wheat, proof of a prior mortgage thereon, duly filed,
and unpaid, does not constitute a defense, but when properly brought be-
fore the court may be shown in mitigation of damages, to the extent of the
amount due on and secured by the prior mortgage. Citizens Nat'l Bank
v. Elev. Co. 335.
33. A justice's transcript on appeal cannot be impeached collaterally in the
district court, which properly denies defendant's motion for an order re-
quiring the justice to alter his docket entries, for the same reason that
court properly refused to receive parol proof contradicting such entries.
Heard v. Holbrook, 349.
34. Under the facts of this case, held, in the absence of fraud or mistake, it will
be presumed that accountings and settlements were fairly made and em-
braced all prior transactions between the parties. Held, further, that
burden is on defendant to overthrow such presumptions in which they have
failed, and to show that such settlements were erroneous in respect to
any item in the account. Wood v. Pehrsson, 357.
35. It is contended on behalf of one of the defendants that she was, at the time
of signing the notes and mortgages, of unsound mind and mentally in-
competent to enter into a binding obligation. The evidence fails to show
that she was "a person entirely without understanding," within the mean-
ing of §§ 4018, 4019, R. C. 1905, and it is accordingly held that such
defense is not established. Wood v. Pehrsson, 357.
36. In applications to vacate a decree of divorce entered against the applicant
under the circumstances of this case, it must appear that she is acting
with good motives, and not for an increase of advantage to her. Wiemer
v. Wiemer, 371.
37. A presumption in favor of regularity of taking deposition, and proper per-
formance of duty by the officer taking same, applies in the absence of proof
to the contrary; and the burden to rebut such presumption is upon the
party seeking to suppress the deposition. Patrick v. Nurnberg, 377.
38. In the absence of proof it will be presumed the officer taking the deposition, or
the witness testifying by deposition, reduced the same to writing, and the
testimony may be examined to supplement the officer's certificate in such
respect. Patrick v. Nurnberg, 377.
39. Those dealing with a municipal corporation, a village, are presumed to know
the extent of its powers, and cannot hold it liable because of representa-
tions or contracts of its officers concerning matters not legally within
its corporate powers. Hart v. Wyndmere, 383.
40. Evidence examined and held sufficient to sustain the verdict rendered, and
judgment ordered thereon. Hart v. Wyndmere, 383.
41. In claim and delivery, judgment for the value of the property and damages
may be rendered where the property has been destroyed or lost and cannot
be returned. In such case, with no proof to the contrary, it will be pre-
sumed, as against the defendant, that the property has been destroyed or
lost and cannot be returned, but there is no such presumption against the
sureties on the bond; as against them such exceptional facts warranting
a money judgment must be alleged and proved in a suit on the bond.
Larson v. Hanson, 411.
42. In bastardy proceedings, where the question of the premature birth of the
child is involved, it is not error to ask the mother to state generally the
length of the child at the time of birth, and to use her answer as basis for
hypothetical questions propounded to a physician in order to elicit his
opinion as to whether the child was, in fact, prematurely born. State
v. Banik, 417.
42a. Evidence examined, and held sufficient to justify the verdict. State v. Banik,
417.
43. Construing § 5948, R. C. 1905, held, that the company cannot be permitted
to show that the actual date of the issuance of a policy of life insurance
was of a later date than the date recited in the contract, where the policy
contains an acknowledgment of the receipt of the premium. Harrington
v. Mut. Life Ins. Co. 447.
44. Provisions of § 4069, R. C. 1905, to the effect that no divorce can be granted
upon the uncorroborated statement, admissions, or testimony of the
parties, is intended to prevent collusion, and, following Cloptin v. Cloptin,
11 N. D. 212, 91 N. W. 46, it is held, that where the facts and circum-
stances of a divorce case are such as to preclude any possibility of col-
lusion, and the court is convinced from the facts of the justice of the
plaintiff's cause, only slight corroboration is necessary to sustain a decree
in her favor. Tuttle v. Tuttle, 503.
45. Certain testimony examined, and held, that, irrespective of the foregoing
rule, the testimony of the plaintiff as to the acts of the defendant is
amply corroborated. Tuttle v. Tuttle, 503.
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