debtedness, will not constitute a fraudulent concealment. 2 Pom. Eq. Jur. § 906; Bigelow, Fraud, 36, 37. But this was not a case of mere passive nondisclosure. The object of De Laittre's inquiry clearly was to ascertain Bauman's financial condition and ability to pay. Bauman's statement was in response to that inquiry, and when he undertook to answer he was bound to tell the whole truth, and was not at liberty to give an evasive or misleading answer, which, although literally true, was partial, containing only half the truth, and calculated to convey a false impression. The natural construction which would, under the circumstances, be put on this statement is that he had $3,300 capital in his business. It was couched in language calculated to negative the idea that this was merely the gross amount of his assets, and that he owed debts to the extent of two-thirds or the whole of the amount. Such a statement, made under the circumstances it was, might fairly and reasonably be understood as amounting to a representation that he had that amount of capital which was and would remain available, out of which to collect any debt which he might contract with plaintiff. We think this is the way in which men would ordinarily have understood it. It is immaterial that inore explicit inquiries by plaintiff would have disclosed the fact of this indebtedness. It does not lie in Bauman's mouth to say that plaintiff relied too implicitly on this general statement. To tell half a truth only is to conceal the other half. Concealment of this kind, under the circumstances, amounts to a false representation. It is suggested that it does not appear but that Bauman had subsequently paid for these goods. It does appear that they were bought on credit. If they were obtained by fraud, then the sale was voidable, ab initio, at the election of the plaintiff. If anything had since occurred which amounted to a waiver of the right to rescind, or a ratification, such as the acceptance of the purchase money, we think this was a matter of defense, the burden of proving which would be on defendant. Plaintiff introduced no evidence of fraud in his case in chief, but reserved it in rebuttal. When plaintiff rested his case in chief, defendant moved to dismiss the action, which the court refused. It is unnecessary here to decide whether this evidence should have constituted a part of plaintiff's case in chief, and whether or not the motion to dismiss was properly denied, inasmuch as the evidence was afterwards supplied. Berkey v. Judd, 22 Minn. 287. Order affirmed. In re Guardianship of HAUSE, a Spendthrift, and another v. WOOD, Guardian, etc., of said Spendthrift. Filed June 9, 1884. A creditor of a spendthrift, under guardianship, has a right to be heard in the matter of allowing the guardian's account, and, if aggrieved, has a right to appeal from the judgment of the probate court upon such accounting. No previous allowance of his claim by the probate judge or by commissioners is required, in order to give him the status of creditor. Where a party has not appeared in the probate court, he can only appeal when he "had not due notice or opportunity to be heard." Gen. St. 1878, c. 49, 14. 'Opportunity" here means such opportunity as the party is entitled to by law. Want of opportunity is some act or omission in the proceedings which denies or abridges the party's legal rights. Hence the mere fact that notice duly served by publication did not convey actual notice to a party, does not amount to a want of opportunity, within the meaning of the statute. Appeal from a judgment of the district court, Hennepin county. Thomas Canty and R. H. Day, for appellants. Woods & Hahn, for respondent, Charles H. Wood. MITCHELL, J. Every guardian, if he have assets, is required to pay all just debts of his ward. Gen. St. 1878, c. 59, § 29. If he refuse, an action will lie upon the guardianship bond; at least, where the debt has been first ascertained by a judgment against the ward. Conant v. Kendall, 21 Pick. 36; Cole v. Eaton, 8 Cush. 587. In such an action the order or judgment of the probate court, upon an accounting by the guardian, would be conclusive as to whether he had assets in his hands, and the amount of them. We are, therefore, of opinion that a creditor of a ward is entitled to be heard in the matter of allowing the guardian's account, and, if aggrieved, has a right of appeal from the judgment of the probate court upon such accounting. The statute does not provide for an allowance of claims against spendthrifts under guardianship, as in the cases of claims against the estates of deceased persons, or against insane persons under guardianship. No previous allowance of such a claim by the probate judge or commissioners is necessary to give the holder the status of a creditor. Hence the records of the court need not, and would not, show who were creditors. The only remaining question is whether the appellants brought themselves within the other provisions of section 14, c. 49, Gen. St. 1878, which read as follows: "The appeal can only be taken by a party aggrieved who appeared and moved for or opposed the order or judgment appealed from, or who, being entitled to be heard thereon, had not due notice or opportunity to be heard; the latter fact to be shown by affidavit, and filed and served with the notice." The appellants did not appear in the court below. They had “due notice;" that is, the notice which the law authorizes, and which the court ordered, to-wit, by publication once a week for two successive weeks in the Minneapolis Daily Tribune. Therefore, they have no right of appeal under either of these heads. They, however, claim this right upon the ground that they had no opportunity to be heard in the court below. This they rest solely upon the fact that they had no actual notice of the hearing, the published notice not having come to their personal knowledge until after the order was granted. We do not think this amounts to a want of "opportunity to be heard," within the meaning of the statute. "Opportunity" means a fit or convenient time; a time favorable for the purpose; a convenience or fitness of time and place, etc. Webst. Dict. If a fit and proper time and place have been fixed, and notice thereof given which the law declares sufficient,—in short, if all the opportunity is given which the law provides for,-it cannot be said, in any legal sense, that a party had no opportunity to be heard. It seems to us that want of "opportunity to be heard," like the want of “due notice," refers only to some act or omission in the proceedings which has deprived the party of his full legal rights in the premises; that is, that the opportunity here referred to is such as the party is entitled to by law. The right of appeal under the second clause of this section seems to be made to rest upon the fact that the party's legal right to be heard in the court below has been abridged or taken away. We are strengthened in this view from the fact that relief against surprise, or excusable inadvertence, or neglect, is otherwise provided for by the power vested in the probate court in such cases upon proper showing to vacate its order. This power is clearly implied in the sixth subdivision of the preceding section, (13.) Therefore, if a party has suffered a default because the published notice did not come to his knowledge, or if, from accident or other circumstances, he was prevented from being present at the hearing, his remedy would be to apply to the probate court for relief, and not by appeal. Order affirmed. In re MINNEAPOLIS & ST. L. R. Co. Filed June 9, 1884. The charter of the railroad company (chapter 57, Sp. Laws 1870) provides that upon petition of the company the court may make an order appointing commissioners to ascertain and determine the damages or compensation to be made to the owners or others interested in land proposed to be taken for the purposes of the railroad, and shall fix a time and place at which the commissioners shall meet to organize and hold their first meeting; and that notice of such meeting shall be entered in the minutes of said court, and the same shall operate as notice to all parties. The order in this case was that said commissioners shall meet to organize and hold their first meeting in the village of Waseca, (a populous village embracing two square miles of territory.) Held, that this was not fixing a place of meeting, within the meaning of the act. No notice of the meeting was ever entered in the minutes of the court. Held, that on account of these two omissions the award of the commissioners was invalid as to a land-owner who had no actual notice of the time and place of meeting, and who had never voluntarily appeared before the commission. The court, therefore, properly denied a motion for judgment on the filing of the report. Appeal from an order of the district court, Waseca county, denying motion for judgment. Lewis & Leslie, for respondent, Kanne. Collester Bros. and J. D. Springer, for Railway Co., appellant. MITCHELL J. These proceedings were had under chapter 57 of Special Laws of 1870, entitled "An act to amend an act entitled 'An act to incorporate the Minnesota Railroad Company,' approved March 3, 1853, and the acts amendatory thereof." After the report of the commissioners had been filed, the company moved for judgment thereon in pursuance of the provisions of section 4 of the act. The motion having been denied, the company appeals. This act provides that upon the petition of the company and notice to the land-owners the court may make an order appointing three commissioners to ascertain and determine the damages or compensation to be made to the owners or others interested in said lands, and fix a time and appoint a place at which said commissioners shall meet to organize and hold their first meeting; that notice of such meeting shall be entered on the minutes of said court, and the same shall operate as notice to all parties.” The filing the petition, and the service of notice of the time and place where such petition will be heard, brings the parties into court, and gives the court jurisdiction to make the order. But in order that the land-owner may have an opportunity of appearing and maintaining his rights before the commissioners, the law provides that the court shall fix the time and place of meeting, and that notice thereof shall be given to the parties interested. The notice provided for is by entry in the minutes of the court. Hence all parties who have been brought into court by notice of the petition are bound to examine the minutes of the court, in order to ascertain the time and place fixed for the meeting of the commissioners, and they have a right to expect that these minutes will give them this information. As it is proposed to take their property in invitum, it is essential that they have whatever notice the statute requires of the time and place when the commission will meet, which is to assess the amount of their damages. Lohman v. St. Paul, S. & T. F. R. Co. 18 Minn. 174, (Gil. 157.) The order in this case is "that said commissioners shall meet to organize and hold their first meeting at the village of Waseca, county of Waseca, Minnesota, on the fourteenth of June, 1877, at 2 o'clock P. M." This order failed to fix a place of meeting within the meaning of the law. Waseca was a populous village or city, embracing two square miles of territory. No notice of the meeting was ever entered on the minutes of the court, nor was the order itself ever recorded or entered in any record-book. For these reasons,-(1) that no place of meeting was fixed by the court, and (2) that the statutory notice of the meeting was never given to Kanne, we think, the award of the commissioners was, as to him, invalid, and therefore the court properly denied the motion for judgment. It is urged that Kanne had actual notice of the time and place of meeting, and waived any irregularities in the proceedings by a voluntary appearance. All that the record discloses is that the commissioners, without previous notice, came out upon his land on the fifteenth of June and remained there about 20 minutes, at which time Kanne saw them and was informed by a third party who they were, but that they neither called on him, nor gave him an opportunity to present his claim for damages or to produce his evidence, or informed him when or where they would meet for any such purpose. Such a casual meeting, and seeing them under these circumstances as they passed over his farm, cannot by any possibility be tortured into a voluntary appearance in the proceedings, or into actual notice of the time and place of meeting. The distinction between the facts in this case and those in Rheiner v. Union Depot Street Ry. & T. Co. 17 N. W. REP. 623, is very marked. These views render it unnecessary to consider other points discussed by counsel. Order affirmed. END OF VOLUME 19. INDEX. [ This index refers to the pages in the body of the book in every instance, including ABANDONMENT. See DIVORCE, 639. ABSTRACT. Appeal will not be dismissed on motion, because the abstract does not purport to See APPEAL, 303, 879. ACCEPTANCE. See DRAFT, 867; SALE, 135. ACCIDENT. See NEGLIGENCE, 744. ACCOUNT. Appellant's objections only will be considered on an appeal from a decree for an Interest does not run on an unsettled or unliquidated account, unless there is an Partner's expenses, incurred in the legitimate prosecution of the firm business, ACKNOWLEDGMENT. See STATUTE OF LIMITATIONS, 697, 970. ACTION. Assignor for benefit of creditors derives no new right under Rev. St. 1878, § 1699, See ASSAULT, 182; ASSUMPSIT, 962; BRIDGE, 97; BURDEN OF PROOF, 295; CON- ACTION EX DELICTO. See WARRANTY, 46. ACTION FOR ILLEGAL SEIZURE BY OFFICER. See TRIAL, 385. ACTION FOR INJURY TO REAL ESTATE. See ESTATES OF DECEDENTS, 391. ACTION ON COVENANTS OF WARRANTY. See VENDOR AND VENDEE, 501. Judgment that cuts off all of defendant's right except to redeem should deter- |